Is downloading really stealing? The ethics of digital piracy

April 13, 2015 by Christian Barry, The Conversation
Is downloading really stealing? The ethics of digital piracy
Piracy might be theft, but it’s not the same as robbing someone of their material possessions. Credit: Josu/Flickr, CC BY

Many millions of people throughout the world will illegally download the fifth season of Game of Thrones, released today by HBO. Legally speaking, what they will be doing is a violation of intellectual property rights, or "piracy". But will they be doing anything morally wrong?

It might seem obvious that what they will do is wrong. After all, it is illegal. But there are many things that have been illegal that people don't think are morally wrong. Same-sex relationships, divorce and many other practices that are now widely accepted as morally acceptable were once outlawed and criminally sanctioned.

Few people think they were wrong just before they were legalised. Rather, they tend to think the laws governing these behaviours were unjust. So appeal only to the illegality of downloading doesn't settle whether it is okay, morally speaking.

Opposing views

Two rival camps dominate public discussion around the ethics of . On the one hand, there are what might be called "fundamentalist libertarians". These think that all ideas and artistic creation should be held in common and be freely accessible to all.

In their view, intellectual property, in the form of copyright and patents, unfairly restricts access to ideas and expression. They consider illegal downloading to be victimless crime, and do not think it imposes significant cost on anyone. In their view, the serious that sometimes attach to illegal downloading are draconian and unjustified.

On the other hand, there are what might be called the "fundamentalist protectors". This camp thinks that illegal downloading is equivalent to common theft.

This view is vividly expressed in the aggressive message that often precedes films in Australia:

You wouldn't steal a car, you wouldn't steal a handbag, you wouldn't steal a television, you wouldn't steal a movie. Downloading pirated films is stealing.

Piracy might be theft, but it’s not the same as robbing someone of their material possessions. Credit: Josu/Flickr, CC BY

According to fundamentalist protectors, owners of intellectual property deserve just as much protection and means for redress as those who have had their handbags or televisions stolen, including civil and criminal sanction against those who have violated their intellectual property.

For them, the massive penalties that are sometimes attached to illegal downloading are important because they send a clear message that this practice should not be tolerated. This seems to be the view of much of the entertainment industry, as well as public officials and legislatures in countries that produce and export a lot of intellectual property.

In a recent speech, for example, US President Barak Obama claimed:

We're going to aggressively protect our intellectual property […] Our single greatest asset is the innovation and the ingenuity and creativity of the American people […] It is essential to our prosperity. But it's only a competitive advantage if our companies know that someone else can't just steal that idea and duplicate it.

Excluding theft

Despite their currency, both of these positions are overdrawn and seem at odds with moral common sense. The fundamentalist protector position is problematic because there are clear and morally relevant differences between stealing someone's handbag and illegally downloading a television series.

In common theft, the owner of property is entirely deprived of its use, as well as their ability to share it and dispose of it as they choose. Common theft is zero-sum: when I steal your handbag, my gain really is your loss.

The same is not true when I download a digital file of your copyrighted property. In downloading your film, I have not excluded you from its use, or your ability to benefit from it. I have simply circumvented your ability to exclude me from its use. To draw an analogy, this seems more like trespassing on your land than taking your land away from you.

Criminal sanctions seem warranted in thefts where one person's gain is very clearly another person's loss. But things are not so clear when the relationship between gain and loss are more complex.

And of course there are ways that owners of intellectual property can gain, overall, from infringements of their rights. The more accessible their products become, the more people may want to consume them. This certainly seems to be the case with products like Game of Thrones, a fact recognised by its producers.

Protecting public goods

On the other hand, the fundamentalist libertarian position is problematic because it treats all intellectual property infringement as a victimless crime. For one thing, are an important means by which people gain profit from the effort that they put into the production of creative works.

That they can profit in this way provides an important incentive – aside from the intrinsic value of the productive activity itself – for them to engage in socially useful productive activity.

This is evident in other fields, such as research and development of medical treatments: firms have little reason to invest the time and resources in developing vaccines and other public goods if they cannot benefit from their distribution.

Thus, not protecting the rights of the producers in some meaningful way is bad for everyone. Infringing intellectual property rights can also increase cost to those do pay for the good, in the form of higher prices. Those who pay for intellectual property are effectively subsidising its use by those who do not pay for it. In most cases this seems unfair.

A different kind of theft

The question of the morality of illegal downloading is so difficult because it takes place in an environment in which the penalties attached to this behaviour ordinarily seem to be overkill, but where there are pretty clear social costs to engaging in it.

What, then, should be done? For starters, it seems important to stop treating intellectual property infringement as common theft, and to develop different legal remedies for its protection. Various kinds of property are different, and warrant different forms of protection. This is hardly a novel idea.

In his fascinating book, 13 Ways to Steal a Bicycle: Theft Law in the Information Age, the legal philosopher Stuart Green has pointed out that treating all infringement of property as theft subject to the same legal rubric is a relatively new development.

Prior to the 20th Century, theft law consisted of a sort of ad hoc collection of specific theft offences and specific kinds of property that were subject to theft. Different rules applied to different offences, and intangible forms of property, like intellectual property, were not included in theft law at all. We may need to return to rules that are well suited to protecting different forms of property.

In the meantime, it seems incumbent on consumers to try to respect unless doing so imposes unreasonable cost on them. Refraining from accessing patented essential medicines that are inaccessible due to price does seem unduly costly. Refraining from watching the latest season of Game of Thrones, the ardour of its fans notwithstanding, does not.

At the same time, we should also strongly resist massive penalties levied on downloaders when they are caught. The practice of "speculative invoicing" – whereby people are sent threatening letters that offer the opportunity to pay a sum to prevent legal action seeking vast sums – is seriously objectionable. Even if what the downloaders have done is wrong, it is much worse to over-punish them.

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25 comments

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KBK
1.9 / 5 (7) Apr 13, 2015
Get rid of money, as concept and realization. Remove the animal profit motive. which was and is screwed up beyond belief, in the first place.

Money and the concepts behind it, are pure unadulterated animal sociopathology, as a defining core expressive point. We need none of that in this world, if we want to emerge into a functional world.

Not a cashless society, but no way for scarcity to exist so no control levers exist. get rid of not just money, but it's core concept and methodology of unfolding and execution within society.

Look deeper: It's the money concept, stupid.
Eikka
3 / 5 (6) Apr 13, 2015
You don't need to be a fundamentalist libertarian to see that copyright is an artifical construct designed to benefit a small group of people by exploiting the ignorance of the masses.

It's essentially creating a fiction that something which is not scarce, is scarce, and therefore carries value that is subject to supply and demand; but when the supply doesn't cost anything to the supplier, the cost and "value" are completely arbitrary. They're imaginary.

In other words, any "intellectual property" costs as much as you get people to believe it costs by whatever psychological marketing trick. It has nothing to do with fair compensation, or compensation for work for that matter in the first place. It's about pulling your nose and making you say "thank you".

Eikka
4 / 5 (6) Apr 13, 2015
Look deeper: It's the money concept, stupid.


Money, and debt for that matter, are an essential tool by which a society works because it automates a whole lot of the decision making processes necessary to run an economy. In fact, you largely don't need to run it - it runs itself. Without money, without supply and demand being mediated by a common standard unit of measurement, you don't know what to make to whom, when and where, and how much effort you should expend to it. You'd have to start manually measuring and directing everything.

The soviets tried to measure consumption and direct production by other means than money, but they found it cumbersome and people simply started cheating the system.
Eikka
3.8 / 5 (5) Apr 13, 2015
For one thing, intellectual property rights are an important means by which people gain profit from the effort that they put into the production of creative works.


They shouldn't and needn't be.

This is evident in other fields, such as research and development of medical treatments: firms have little reason to invest the time and resources in developing vaccines and other public goods if they cannot benefit from their distribution.


That is simply confusing copyright with patents and trademarks. Downloading a movie doesn't equal stealing someone's R&D.

Those who pay for intellectual property are effectively subsidising its use by those who do not pay for it.


Those who pay for intellectual property are paying into a scam. None should pay.

People should pay the authors of creative works directly for their labor. They work for hire anyhow, and lose their copyrights to whatever company they're working for, be it a record label or a movie studio.
Eikka
2.3 / 5 (3) Apr 13, 2015
firms have little reason to invest the time and resources in developing vaccines and other public goods if they cannot benefit from their distribution.


More on this point: this is only true when talking of actual physical goods.

The IP fiction is that intellectual property should be handled like physical objects that require significant time, energy and labor to manufacture. Of course, creative content takes work to create, but once created it doesn't need to be made again.

Creative content is different from physical goods. Someone can't steal your movie half way in the making and finish it before you do. They can pirate it once it's finished and already in distribution, but then you're losing profits only because you're trying to sell it like a physical product - copy by copy.

If you were half intelligent, you'd ask the money up front, but then you'd have to negotiate over the total price and couldn't trick the public into paying any more.
Noumenon
2 / 5 (5) Apr 13, 2015
In common theft, the owner of property is entirely deprived of its use, [....]
The same is not true when I download a digital file of your copyrighted property. In downloading your film, I have not excluded you from its use, or your ability to benefit from it.


Patently false. Criminals will use what ever logical contortions needed to justify their degenerate behaviour. You have deprived them the right to their property,.. that right extends to charging you money for its use.

If you Value some intellectual property's use, you should on at least moral grounds, pay the amount requested of you,... but more importantly, paying for Value is what motivates the production of that Value.
Noumenon
2.5 / 5 (4) Apr 13, 2015
It's essentially creating a fiction that something which is not scarce, is scarce, and therefore carries value that is subject to supply and demand; but when the supply doesn't cost anything to the supplier, the cost and "value" are completely arbitrary.


The cost for production of intellectual property doesn't just consist in the cost of physical media in which it is conveyed.

You're creating the Fiction that 'scarcity' is even relevant here. They, the owners of the intellectual property, are creating the Reality that their product is desired despite its infinite supply.

When you buy intellectual property you're not buying the physical media principally, whether in physical book form, DVD, or electronic download, or streaming. You're buying the Value inherent in the intellectual property. Your argument is vacuous.

It is in the companies best interest not to charge too much, wrt the perceived Value of their product, for otherwise they will lose sales.
Noumenon
3 / 5 (4) Apr 13, 2015
It's the same underdeveloped mentality that thinks that a "tare down" and cost analysis of say an Apple iPhone means anything wrt what Apple charges for an iPhone. It means very little.

The TV show in question is elaborate and expense to produce. Why do you expect companies to risk huge sums of money bringing you that entertainment without expecting a motivational return on investment? Why would there ever be anything worth having produced ever again with your deranged mentally?

Vietvet
3 / 5 (4) Apr 13, 2015
@Eikka

You sound like someone who has done a lot of illegal downloading.
MrVibrating
4.7 / 5 (3) Apr 13, 2015
There's grey areas, such as the question of whether every download constitutes a lost sale - on the one hand, perhaps if something isn't downloaded, the downloader would never have bought the product anyway; while on the other, there's 'ethical downloaders' in the old 'shareware' vein who will buy because they appreciate the value of the product and wish to support it, but might not have done so without downloading first.

Then there's the issue of poorer folks denied access to culture by poverty, perhaps despite being hard workers - these aren't lost sales, there's no cost to the supplier for the copy, and in this sense the Piratebay is just Netflix for underdogs - but with a poorer selection of lower-quality copies.

A download is just a long binary number with no inherent medium - it's innately replicable onto any media at no cost to the producer, hence the principal objection is the questionable notion of lost sales, and the 'fairness' compared to those who pay full price..
MrVibrating
4.7 / 5 (3) Apr 13, 2015
..Alos there's a lot of flops and poor B movies on the torrent sites, many of which give the impression of being uploaded by the producers themselves, desperate for any kind of audience. Then there's shows that will be aired imminently, but aired first in another region, and forgot to set your TiVo for that show? Why not grab it off the 'net instead - what's the substantive difference?

Lotta grey areas here..
rp142
2 / 5 (2) Apr 14, 2015
Stealing and theft apply to physical objects. Copyright infringement is not theft - making a copy of something does not take anything away from the original - but it is illegal.

Sympathy for content creators is lost over nonsense claims, ridiculously high damages amounts and what are often high prices for legal digital downloads.

An illegal download is not equal to a lost sale because there is no guarantee that the individual would be willing or able to pay to legally download or otherwise legally consume the content. As content becomes more expensive than free the willingness to risk your money on something that might be disappointing decreases. There are also those that illegally download to see what something is like before going out and buying a legal version or download illegally to backup their legally purchased DVDs.

If everyone paid for content we might get lower prices and remove an incentive to pirate.
Eikka
2 / 5 (4) Apr 14, 2015
When you buy intellectual property you're not buying the physical media principally, whether in physical book form, DVD, or electronic download, or streaming. You're buying the Value inherent in the intellectual property. Your argument is vacuous.


No you aren't, because you don't actually get to own it.

The value of creative works is in the making of them - not in the copies. You cannot pin "value" on something that is infinitely duplicable because you'd have to argue that this value increases infinitely as more and more copies are made. That would be absurd.

Therefore you do not buy any value when you purchase a DVD or a book. You're only buying into a scam.

DIGITALLY COPYING - is not stealing... but it does deprive the creators of an income.


The only one who's depriving anyone an income is the creator who chooses to monetize their product in a stupid way that ultimately doesn't work and is ethically unsupported.
Eikka
2.3 / 5 (3) Apr 14, 2015
It is in the companies best interest not to charge too much, wrt the perceived Value of their product, for otherwise they will lose sales.


That is true, but the issue here is that the percieved value of the product is fictional. It's based on a lie.

The true value of the product is the labor, resources, materials, etc. spent in creating it. You can add a modest profit on top if you will, but that doesn't change the fact that the true value of the product is a one-time non-recurring thing.

Meanwhile the percieved value that they're trying to sell is arbitrary. The music album costs $20 whether there are 10 or 10 million people buying it, but it also costs $15 and $10, and $5 when it finally hits the discount shelves.

The point of the copyright system is that the producer or publisher is trying to make the cumulative percieved value greater than the true value (including profit), to profit more, by exploiting their monopoly and the ignorance of the public.

Eikka
2.3 / 5 (3) Apr 14, 2015
The article asks whether those who buy the creative content are actually subsidizing the thing for those who simply download it - implying that this is intuitively wrong.

Well, if you buy a video game on the release night and pay $85 for it, aren't you "subsidizing" it for those who buy it a year later for $3 on Steam?

Same thing.

They're selling the same thing at different prices to different people anyhow - what difference does it make if someone gets it competely free?
Eikka
2.3 / 5 (3) Apr 14, 2015
It's the same underdeveloped mentality that thinks that a "tare down" and cost analysis of say an Apple iPhone means anything wrt what Apple charges for an iPhone. It means very little.


It means quite a lot, because you can compare it to other similiar products and conclude that the iPhone contains a lot less value in hardware and a lot more "value" in the trademark. You can also check the reported profit margins to shareholders and support the notion with that.

Any rational consumer would want to know when they're paying for thin air.

Why do you expect companies to risk huge sums of money bringing you that entertainment without expecting a motivational return on investment?


Strawman argument.

I don't. I'm simply criticizing the means by which they obtain their return of investment.

A free market society cannot function on the principle of fool me once, fool me twice. When we're paying for imaginary value, it's a market failure - the system breaks down
Eikka
2.3 / 5 (3) Apr 14, 2015
To put it simply:

The free market operates on the principle of supply and demand where prices are kept in check by competition.

The copyright restricted market operates on the principle of supply and "Let's see how much money you've got".

The reason why top actors like George Clooney can demand $50 million for a role is not because he actually needs that much money to act in a film, or because he's that much better than the next guy, but because the studios can make that much money and more with their copyright. What's $50 million when you can expect $600 million from the brand?

Yet if you ask the public, should we pay $600 million for a single movie, what do you think the answer would be?
rp142
1 / 5 (2) Apr 14, 2015
Wow, that is an excellent demonstration of spamming the discussion to get around the comment length limit... Not much of it even seems to be on topic.
Noumenon
2.7 / 5 (3) Apr 14, 2015
Why do you expect companies to risk huge sums of money bringing you that entertainment without expecting a motivational return on investment? Why would there ever be anything worth having produced ever again with your deranged mentally?


Strawman argument.

I don't. I'm simply criticizing the means by which they obtain their return of investment.

But you're not 'simply criticizing', your advocating stealing that decisional right from its owners. And by advocating stealing you do indeed expect either 1) the creators to bring you their intellectual property for your personal enjoyment for no benefit to themselves, as if they are your servents, and 2) you don't mind them receving money as long as it comes from someone else, as if that decision is rightly yours.

Noumenon
2.3 / 5 (3) Apr 14, 2015
A free market society cannot function on the principle of fool me once, fool me twice. When we're paying for imaginary value, it's a market failure - the system breaks down

As a legitimate consumer, one is responsible for their own purchasing decisions,... in researching a company and reading reviews of its products.

You don't know how capitalism works. The perceived value of a product is simply in what people are willing to pay.

The hypocrisy and fraud of pirate-criminals is obvious..... If you find no value in a product, then you would not have bought it anyway by your own admission,... but yet you still evidently have a desire to possess it since you advocate pirating it. Normally when one sees little to no value in an object, by definition, they don't seek to possess it.
Noumenon
2.3 / 5 (3) Apr 14, 2015
Your mentality seems contaminated with communist notions wrt value of products.... that their value consists only in what it cost to produce them, rather than its perceived value. Yet, you would not want to pirate a movie made in North Korea, or own a car made in soviet era Russia.

A free market society cannot function on the principle of fool me once, fool me twice. When we're paying for imaginary value, it's a market failure - the system breaks down

The capitalist system weeds out companies who make poor products by lack of sales and bad reputation. They are unsustainable unless they offer something of perceived value.

A free market capitalist society cannot function if property rights are violated.
nowhere
3.3 / 5 (4) Apr 15, 2015
But you're not 'simply criticizing', your advocating stealing that decisional right from its owners.

No he's criticizing the owner's distribution method, i.e. selling a copy to a third party, who agrees to a practically unenforceable contract where he essentially gains no rights to his purchased copy. Then the owner expects everyone else to oblige and enforce this contract…that they never agreed to.
And by advocating stealing

Since he obtained his copy form the third party he has in no way agreed to the owner's contract and is not morally obliged to do so.
the creators to bring you their intellectual property for your personal enjoyment for no benefit to themselves

The creator received benefit when it was sold to the third party.
as if that decision is rightly yours.

You say that as though it is his responsibility enforce the creator's contract, or abide by a contract someone else agreed to.
Eikka
2 / 5 (4) Apr 17, 2015
But you're not 'simply criticizing', your advocating stealing that decisional right from its owners.


You're begging the question that there should be such a right with an owner. Without copyright, there would be no such thing and nothing to be stolen.

If you argue that we can't take away copyright because that would constitute "stealing a right", then you're simply confusing law with morality, or you're again begging the question that copyright isn't simply arbitrary legal fiction.

You need to justify copyright first before applying it in this argument.

And by advocating stealing you do indeed expect either 1) the creators to bring you their intellectual property for your personal enjoyment for no benefit to themselves, as if they are your servents, and 2) you don't mind them receving money as long as it comes from someone else, as if that decision is rightly yours.


Non-sequitur and Strawman arguments.

You have no valid argument.
Eikka
2 / 5 (4) Apr 17, 2015
you don't mind them receving money as long as it comes from someone else


Especially this point is completely false.

I'm perfectly happy to pay an author as long as they state what they want, what they have to offer, and don't try to weasel into my wallet.

I feel cheated that copyright holders are allowed to sell me air. I don't need to buy a separate license to listen to music - I can turn on the radio or the TV and it's there, for free. Though in fact, I'm being forced to pay for it because the public media pay royalties and licenses for the material they broadcast, which they then make me pay.

This forced redistribution of wealth trickles down to the cost of products I buy and the price of gasoline I pay even though I never asked for any of it , because e.g. the gas station I frequent has to pay BMI to keep a radio or a jukebox.

The irony is that copyright is actually socialism in disguise.
Eikka
2.3 / 5 (3) Apr 17, 2015
Your mentality seems contaminated with communist notions wrt value of products.... that their value consists only in what it cost to produce them, rather than its perceived value.


There is an inherent logical fallacy in arguing that the value of products equals their percieved value, because it's saying that prices result simply from prices. That's to say, what anything should cost is however much you manage to make-believe.

You're arguing for a market system that works on the pricinple of separating the fool and his money.

That may be the consequence of running a capitalist system in an imperfect world, but that's certainly not the purpose and point of it - on the contrary. Free competition with supply and demand is supposed to bring prices down as close to the cost of production as feasible to distribute wealth reasonably fairly.

Copyright tips the game in favor of the rights holders. It's more apt to say that copyright is stealing from the public.

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