An Ethical Analysis of Digital Piracy

This is a paper I wrote for a seminar in digital property rights, I've done nothing more than just copy and paste it, so it's rather longer than a typical blog post. I was hoping to make it so the citations jump to the endnotes on a click, but I can't make it work right now. So clicking on the links won't do anything useful unfortunately.

Introduction

Digital piracy is the illegitimate acquisition of digital content. Piracy is therefore illegitimate by definition. For many people, that is enough to rule it morally impermissible. That conclusion, however, misses the point. Law is supposed to follow the conclusions of ethics. Dr. Martin Luther King Jr. famously said, “there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”1 Of course, piracy is not anywhere near as important as civil rights. Nevertheless, the general principle stands: what is morally permissible is not always the same as what is legally legitimate.

The relationship between law and morality is complicated. In principle, everyone can agree that laws should advance moral goals. This does not mean, however, that the law should ban all immoral activities. For instance, cheating on a spouse is almost certainly an immoral act. That doesn't mean, however, that the law should ban cheating. It is also sometimes permissible to legally ban activities that are morally permissible. For instance, there is nothing morally wrong with wanting to take a picnic at a classified air force base. Nevertheless, the government is acting legitimately when it bans that activity. The government has no good way of distinguishing a harmless picnic from the activities of foreign spies. The point is that the ethics of an activity may or may not align with the law, even in a scenario in which the law is written perfectly. Thus, it is important to examine the morality of actions outside of a legal context.

There is a widespread movement to alter the intellectual property laws that control the distribution of copyrighted content online. The Creative Commons license was established to allow creators to willingly designate their work as available for use beyond the constraints of traditional copyright.2 Legal scholars focused on intellectual property issues are advocating various levels of reform to national and international copyright law. The fight to change intellectual property law is important. This paper, however, will focus on a different issue. Given the laws that are currently in place, when, if ever, is it morally permissible to commit digital piracy?

The answer to that question is of critical importance right now. Piracy is currently happening on a massive scale.3 There is widespread disagreement as to what effect piracy is having on the creators and distributors of content, but it is impossible to deny that piracy is happening. Without the law to guide them, millions of individuals are making their own private decisions about what sorts of piracy are acceptable and which are unacceptable. This paper will focus on offering some level of guidance to those who are currently engaged in piracy or are considering piracy. I will begin by looking at some of the issues involved in the ethics of piracy, and I will conclude by offering my own criteria for morally permissible piracy.

An important caveat: I do believe that certain types of piracy are morally permissible. However, piracy is by definition illegal. I am not advocating that you go and break the law. There are consequences to breaking the law that go beyond my consideration. It is up to the reader to decide whether or not the risks of breaking the law are worth it. This paper is focused on whether or not one can be held morally blameworthy for acts of piracy; that is a different question than whether or not one should actually perform acts of piracy.


I

There are a number of arguments for why piracy is wrong. Generally, the arguments can be divided into two separate categories. The first argument against piracy is an argument from the innate rights of the creator. This approach often makes an analogy between physical property and intellectual property, and argues that the creator of content has a right to control how that content is used and distributed. The second approach is based on the premise that intellectual property restrictions are necessary for incentivizing and rewarding the creation of socially beneficial content.4

These two approaches correspond with two different approaches to ethics. The first argument is a “means-based” argument. It says that, in principle, a creator has a right to his or her content. Using the owner's content in a way that the owner has not approved is wrong, regardless of consequences. The second argument is an “ends-based” argument. It points out that society wants content to be created, and that acts of piracy undermine the incentives that encourage content creation. In practice, opponents of piracy often use both arguments together, either explicitly or implicitly.

The means-based argument says that piracy is wrong because it violates the right of a creator to control the way their content is used and distributed. It is based on an analogy to widely accepted views on physical property rights. The concept of property has existed for a very long time, but modern thought on property rights originates with John Locke. According to Locke, each person owns himself completely. Self-ownership is the basis for the ownership of things beyond the self. When a person puts his or her labor into something, they take ownership of that thing. In a metaphysical sense, a person's labor is part of the person, and when it goes into an object it remains owned by the person who provided the labor. A property holder owns a thing because part of the property owner is mixed with the thing. From this conceptual base, Locke allows for the idea of legitimate exchange. If a person owns something legitimately, then that person has the right to transfer the property to another person. In a modern economy, exchange dominates the property world. People put their labor into things in exchange for things into which other people have put their labor.5

Locke's ideas are based on certain basic principles. Self-ownership is a basic principle in Locke's framework. Another key idea in Locke's thinking is that the main value of a thing is the work that is put into developing that thing. His point is that resources are worth nothing without the labor involved in extracting the resources and turning them into something useful. Locke does set certain limitations on his own theory. He generally assumes that resource acquisition does not come at the cost of others. However, he does say that legitimate acquisition of resources requires that one leaves “enough and as good”6 for others.

It is a simple task to draw up an analogy between Locke's concept of property and the less tangible world of intellectual property. The creation of ideas, or any form of creative content, is brought about by a person's thinking. Anyone who has spent substantial amounts of time writing a book, composing a piece of music, or designing a consumer product understands why the creative process can be characterized as a form of labor. It may not involve much physical effort, but it can be mentally exhausting, and requires a great deal of time to get right. This labor can easily be seen as part of oneself. In fact, it often seems like the products of the mind are more a part of oneself than the products of physical labor. If we accept the principle of self-ownership, it appears clear that creators should be given strong property rights over their work.

James Boyle, a legal scholar and co-founder of the Creative Commons Foundation, offers a criticism of this approach. Boyle points out that ideas are not created from nothing. New ideas and new cultural content are always built on what came before. Isaac Newton is famous for saying, “if I have seen further, it is by standing on the shoulders of giants.”7 Boyle points to the example of Ray Charles and his famous song, “I Got a Woman.” This song was revolutionary in important ways (it is seen as the birth of soul music), but every important innovation in the song can be traced as the development of ideas to which Ray Charles had already been exposed.8 Creativity does not occur in a vacuum. Other examples to consider are the large number of scientific advances that occurred simultaneously in different parts of the world. Leibniz and Newton invented calculus at the same time, with no evidence of contact between the two. It is much more reasonable to conclude that conditions were right for the invention of calculus than it is to conclude that Leibniz and Newton both happened to have the same flash of unique creative insight at the same time.

Of course, music and mathematics are different. Arguably, the course of math is preset by the basic laws of logic. Advancements must occur in a particular order, or not at all, so advancements in math are simply a race to see who will figure out the next big thing first. Boyle's analysis of Ray Charles, however, shows that his invention of soul was in a sense the logical development of what came before. If Ray Charles hadn't come up with it, it is reasonable to think that someone else would have, and not too long after.

If it is true that major breakthroughs are built primarily on work done by others, it implies several important things about intellectual property. First, it is unfair to assign all the credit for an innovation to a single individual. Perhaps the innovator deserves a slightly larger share of the credit, but they are not the sole originators of the idea and should not receive sole credit. Second, there is a limited amount of innovation possible. Once Newton and Leibniz invented calculus, nobody else could invent something of similar importance until a great deal more work had been done in the field. Innovation is not an unlimited resource; it is more like gold, with a supply that is limited and difficult to expand. When innovators acquire all the rights to an innovation, they aren't really leaving “enough and as good” for everyone else. The incremental advancements made by other people are the resources with which innovators work, and once an innovator has made the great leap, it is no longer possible for other slightly slower innovators to step in and make advancements of similar importance.

Of course, most intellectual property is not in the ownership of great innovations. It mainly consists of individual, unremarkable books, songs, minor patents, and other scraps of culture and innovation. If the great innovations cannot be truly said to be original, it is hard to see how the wide array of minor contributions could be considered original either. Every pop song is part of a musical tradition, involving a bewildering variety of global inspiration. Every novel is the product of dozens of older stories that established genre conventions, literary devices, and character archetypes from which the author drew to create his or her own work.

Appealing to Locke's concept of property is ineffective as an attack on piracy. The line drawn between a creator's original contribution and prior influence is too vague and nebulous a line to support any strong stance. It is clearly unfair to allow people who are part of a working cultural community to grab the ideas of an entire group and lock them down as their own personal property. The pirate has a strong case that Locke's metaphysical arguments do not support a complete, publicly sponsored monopoly for the creator of a piece of culture. The pirate is also within reason to argue that the creators of cultural content have no special, unique claim to their creations.

The second argument against piracy is more difficult to counter. According to the ends-based argument against piracy, intellectual property law serves a valuable social function. It is in society's best interest to encourage the creation of intellectual products, whether it be in the form of productive innovations or artistic achievements. According to the ends-based argument, the best way to encourage useful creation is by giving the creators a monopoly over the use of their creation.

This is the justification the United States constitution gives for copyright and patent law. According to the ends-based approach, the special privileges granted creators should only go as far as is necessary to encourage significant creative activity. The constitution specifically calls for a limitation in how long intellectual property lasts. The point of this limitation to creator privileges is that giving creators extra time is unnecessary for fostering further growth.

There is a general tension in the ends-based system. Following the economic logic, increasing rewards for creators increases the amount of innovation and creativity that will take place, but lowering the barriers allows society to get more use from the content it does have. The goal is to find a fair equilibrium, one which maximizes overall social welfare. It is unclear, however, how often the creators of intellectual property law understand this point. For instance, recent changes in copyright law extended the length of copyright on works that already exist. Since the work already exists, increasing the creator's rights serves no clear purpose in terms of incentivizing creativity.9

It is also not at all clear that increasing the rights of creators invariably spurs greater creativity. Boyle's point about the way innovation builds on previous innovation shows how creating strong barriers in intellectual property could slow innovation down. It is not just that increasing creator's rights has diminishing returns; at a certain point, it seems likely that making intellectual property rights too strong would actually reduce society's total creative output, while simultaneously reducing society's ability to make us of the content it already has.

Despite the criticisms above, the ends-based argument for intellectual property makes sense. Certainly, it can go too far, and it is sometimes used to support policy that actually goes against the public well-being, but the basic idea of it is strong. Creators are an important part of society, and they should be compensated for their efforts. Compensation encourages people to create content, and just as importantly allows some people to support themselves by creating content. Dedicated creators are of clear benefit to society, and copyright law is one tool that allows such people to exist. Copyright is also convenient in that it democratizes content creation. There is no government body that has to evaluate cultural products and decide which creators deserve support. Instead, the market handles it by giving money to people who make good things and not giving money to those who fail to make good things.

II

The question this paper initially posed was, “when is piracy morally permissible?” After going through and criticizing some of the major arguments against piracy, it is possible to build a framework for morally permissible piracy.

The right to pirate arises when the rights holders of cultural content fail to uphold their obligations. The purpose of granting creators rights is to encourage the creation and distribution of more and better content. Rights holders inflict social harm when they refuse to distribute their content, and lose any legitimacy in making a moral claim against pirates. Intellectual property is meant to reward those who distribute. It is not meant to enable creators to refuse to distribute.

Culture is not something that can be morally owned by a single person. Everyone in the world is part of a global culture. The creators of culture are part of a larger community of creators, and that community of creators is in turn part of the global community. Everyone contributes to global culture. Some people directly create culture, for instance writing songs and books. Other people are more indirect in their contributions. Every time someone buys a concert ticket, or introduces a friend to a great new book, they are helping shape the course of global culture. The culture of today could not have been created without the indirect support of billions of people. Each of those people has a stake in their own culture, and a right to participate. A rights holder who refuses to distribute violates the rights of everyone in the world to take part in their own culture. When society assigns intellectual property rights to an individual, they become curators of that piece of content. As long as they exercise their powers responsibly, the world should respect their rights. When rights holders fail to uphold their obligations, the world has no obligation to respect the rights of the failed rights holder.

Piracy is acceptable is when the rights holder of the content has, for whatever reason, chosen to make their content unavailable. The most common instance of this happening is when rights holders choose to prevent distribution of their content into different areas of the world (for instance American television networks preventing their shows from airing overseas). If a person has no access to content in their area, they are entitled to acquire it in any way they please.

The pirate is doing little harm in acquiring the content illegitimately if the rights holder has refused to make the content available. If the rights holder is refusing to sell in a market, then the pirate isn't costing them a legitimate sale. If the rights holder wants to make money in a market, they should release to it immediately.

Certain allowances should be made for staggered global releases. For instance, if a rights holder wants to do a midnight release that rolls through multiple timezones, that isn't hurting anybody, and their intellectual property rights should be respected. If a release in a particular country is held up for legal reasons, pirates should be wary of jumping to piracy as a solution (although they might want to encourage their government to move faster). If a rights holder wants to hold special pre-release events for marketing hype, that is probably acceptable as well. What is not acceptable is for a rights holder to hold on to important cultural content and refuse to release it for a long period of time.

Piracy is also permissible when a rights holder makes their content impossible to acquire through reasonable channels of distribution. The point of content is to be distributed. If a rights holder refuses to distribute their work in a reasonable, accessible way, they forfeit whatever right they have to the benefit of their work.

Reasonable distribution systems must take advantage of whatever technology is widely available. If an author in the 1600s refused to have his book printed and only made handwritten copies available, then a printer would be ethically justified in taking the manuscript and printing it himself. Today, the internet is the new printing press. Many services have proven that releasing content on the internet is a perfectly viable business model. Rights holders are obligated to make their content available online, as part of their general obligation to distribute.

Part of reasonably distributing content is making the content available to people who are willing to pay a fair price. HBO currently does not allow anyone to pay to access only a single show they watch. HBO also has no online-only subscription. This is a failure to distribute their content in a reasonable way. It is acceptable for HBO to make money on its shows. It is not acceptable for them to arbitrarily force consumers to pay for all of their shows in order to access any of them. The practice is an abuse of the rights granted to HBO by the law, and pirates are justified if they choose to bypass legitimate payment.

Whether or not a distribution system is reasonable is somewhat contextual. Rights holders should not be considered obligated to release their content in unprofitable or unproven ways. For instance, some of the same complaints I used against HBO could be used against Netflix. However, I don't think the same criticisms apply. Netflix does its best to provide as much content as possible, and does it in a convenient, inexpensive way. By providing so much content for a subscription, Netflix encourages people to watch things they wouldn't otherwise, and is able to provide more content for a lower cost than if they used an individual sale model. HBO cannot be said to be doing the same thing. If HBO was actively trying to push its cost down and include more content, then perhaps their business model would be more acceptable. Instead, their approach is to avoid partnering with anyone and keep their content completely exclusive to their own costly platform. It is unsurprising that the most pirated television show is the HBO program Game of Thrones.10

If content providers price their content so high that a person has no chance of being able to afford it, piracy is acceptable. Rights holders have the right to make a living off of their content, and they even have a right to become wealthy. Legally, they have the right to set the price however they like. This legal right, however, does not constitute a moral right. Morally, a rights holder is only justified in charging a fair price. It is difficult to provide specific criteria for what represents a fair price. A fair price necessarily varies from person to person. A fair price for a wealthy American may not be a fair price for a poor person in China. A rights holder must find a way to give as many people as possible a fair price, and must accept that those who cannot pay will pirate the content. A good rule of thumb is that a person is justified in pirating content if, in the absence of piracy, they would rather do without the content than pay for it at the given price. The importance of this threshold is that pirating content for which one would never pay causes no loss of profit for the rights holder. Since the cost of distribution online is virtually free, there is no reason anyone should be denied the ability to engage with global culture based purely on their ability to pay.

Conclusion
Piracy is currently doing a great deal of good in the world. People in Europe can watch American television shows, even though the American networks don't want them to. Americans can freely watch Japanese anime series, with subtitles created by unpaid community translators.11 People (particularly young people) all over the world can learn English by watching bootlegged American movies. Culture is a mode of communication, and the free distribution of culture created by pirates is letting people in distant parts of the world communicate with each other. Cross-cultural communication is one of the most important aspects of the evolving digital world. Rights holders tend to stand against the tide of global culture. Movie studios region lock DVDs, television networks refuse to release their content internationally, and approved professional translators often take much longer to make content available than communities of enthusiastic fans. Learning how to talk to each other is what will make the world a peaceful place, and in the nuclear age, peacefulness is the only option.

We do not have to simply accept that the owners of digital property have the right to do whatever they want. When companies exploit their workers, workers are entitled to go on strike and picket their employer. The only reason this right is recognized today is because people chose to exercise the right before it was granted legally. Piracy is not recognized legally, but it serves an important purpose in the world. Until the laws are changed or rights holders learn to uphold their obligations, piracy will continue to be morally justified. Once rights holders begin to follow the rules of fair distribution, then they will have moral support to their arguments against pirates.

Notes

1 Dr. Martin Luther King Jr., “Letter From a Birmingham Jail.”

2 Creative Commons Foundation, creativecommons.org.

3 Recording Industry Association of America, “The Scope of the Problem,” http://www.riaa.com/physicalpiracy.php?content_selector=piracy-online-scope-of-the-problem.

4 Stanford Encyclopedia of Philosophy, “Intellectual Property,” http://plato.stanford.edu/entries/intellectual-property/#JusCri.

5 John Locke, Second Treatise of Civil Government, “Chapter 5: Of Property.”

6 Ibid., Section 27.

7 Isaac Newton, “Letter to Robert Hooke,” Feb 5, 1675-6.

8 James Boyle, The Public Domain: Enclosing the Commons of the Mind (New Haven: Yale University Press, 2008), 126-138.

9 Boyle, The Public Domain, 131.

10 Kirsten Acuna, Business Insider, “The 10 Most Pirated TV Shows,” 3 April 2013, http://www.businessinsider.com/most-pirated-television-shows-2013-4?op=1.

11 Fansub.tv is one example of a community site built around creating and distributing fan translations of Japanese anime and manga.