I’ve been reading Intellectual Property is Common Property by Andreas Van Gunten over the last couple of weeks and it has seriously challenged many of my intuitions on the topic of piracy and intellectual property. Specifically, its been making me think about the ethics of piracy from my utilitarian and consequentialist perspective and where it fits exactly in my moral framework. I’ll be sharing those thoughts here. First, what is piracy? Let’s look at some modern definitions:
the unauthorized use of anothers production, invention, or conception especially in infringement of a copyright – Merriam Webster
the unauthorized reproduction or use of a copyrighted book, recording, television program, patented invention, trademarked product, etc. – Dictionary.com
I think a good place to begin is to question whether or not piracy is identical to theft. Theft is universally perceived as morally wrong for reasons we will soon explore. By comparing the two, we can gather insight into why we may or may not think piracy is morally equivalent. However, even if it is true that piracy is not equivalent to theft in every respect, logically it does not follow that piracy is morally unproblematic. This is important to keep in mind.
Why is it that humans universally perceive theft as morally wrong? From a utilitarian and consequentialist perspective this is because of the harm it causes through an immediate loss of value. If I were to steal a shovel from a shed, the owner of that shovel could no longer use it. The shovel can only be owned and used by one person at a time. Therefore by depriving the owner of their possession and their ability to use the shovel- I’ve clearly harmed them.
In economics, goods that can be used by only one consumer at a time are called rivalrous goods. Rivalrous goods are almost always tangible and will have either durable or non durable characteristics. The shovel in my previous example would be an example of a durable rivalrous good. Likewise an apple would be an example of a non durable rivalrous good because once an apple is eaten it is “used up” and can no longer be eaten by others. There are also some examples of non-tangible goods that are rivalrous- notably domain names and radio bands. When people refer to theft they almost always mean the theft of rivalrous goods.
However, there are also non-rivalrous goods that exist where the cost of providing the good to an additional individual is zero. For example, Broadcast television is a non rival good because when a consumer turns on a TV set, this does not prevent the TV in another consumer’s house from working. Other examples of non-rival goods include scenic views, cinemas, national defense, clean air, street lights, and most notably intellectual property. When asking whether piracy is identical to theft, there’s another underlying question: Can non-rival goods be stolen?
Image via wikipedia
When I was 15 I remember sneaking into a cinema to see the movie Superbad without paying. In the case of Club goods, where non rival goods can be excludable, one could attempt to argue I had “stole a sale” from the cinema. I would have made a purchase otherwise. Intuitively this may make sense, however when you examine the concept of “stealing a sale” a bit closer, it seems to stretch the definition of theft to almost be incoherent. After all, a sale is simply a value transaction. How does one “steal” something as abstract as an exchange value? Rather, it seems to me that there are just and unjust transactions.
So to answer the question: Can non-rival goods be stolen? The answer is no. However, non-rival transactions can certainly be unjust and morally problematic. Interestingly enough, this seems to be particularly true if the systems in place are unable to efficiently regulate and organize non-rival good distribution. In the same way, piracy is not identical to theft, but it can still cause harm to the producers of non-rival information goods because of the free rider problem.
If we were to accept these conclusions, it would seem to me that there would be multiple levels to piracy with different ethical implications. Consider the following four scenarios:
- Consume copyrighted movie without permission for private use
- Consume copyrighted movie without permission and edit the content for private use
- Consume copyrighted movie without permission, edit the content and share for public use
- Consume copyrighted movie without permission and share for public use
In each of these scenarios we are consuming copyrighted content without permission. The variables at play here are private vs public and edited vs original. Interesting to note is that scenarios 2 and 3 are actually legal in many cases under fair use in the United States, while the others are not. The mere act of editing copyrighted content makes it “fair.” Nevertheless, from an ethical standpoint scenarios 2 and 3 are ethically equivalent to scenario 1. Scenario 4 in contrast could be argued to be ethically worse for encouraging more piracy because it is sharing the original content with the public. Thus leading to a greater free rider problem.
At a deeper level, what we are really talking about when discussing the ethics of piracy is whether or not “intellectual property” is legitimate. If it is not legitimate- as Andreas Van Gunten asserts in his book- then it can be argued that piracy is simply a way of spreading creative works and increasing human innovation. Indeed, piracy could very well be a a neutral or ethical act.
“I assert that for all types of just society it is desirable that human communication, cultural productivity and scientific progress serve the development of society in a sustainable way. Sustainability here means that the just society can be developed in line with its values while maintaining its resources for the following generations.
There is disagreement of course about values, and about how resources can be maintained in such a way. There is also a lot of disagreement about whether a political structure is needed, how such a structure should be constructed, and how much interference with individual freedom would be acceptable to create wealth equality amongst its members. And values are of course not static but are always in slight modification.
My aim is not to try to solve these fundamental problems but to show that a society where intellectual property is common property has a better chance to prosper, independently of the question whether its basic values are more libertarian or more egalitarian. The premise is that the more cultural artefacts and the more scientific ideas are developed and produced, and the more freely human communication can happen, the more sustainable a society grows. This is the classical liberal argument for freedom of speech.” –Intellectual Property is Common Property, Andreas Van Gunten
If one accepts Guntens premise that in a society where intellectual property is common property and “more cultural artefacts and the more scientific ideas are developed and produced, and the more freely human communication can happen, the more sustainable a society grows,” then this is a society we ought to strive for from a utilitarian perspective.
Nevertheless, I can sympathize with those that are skeptical of Guntens views. They appear counter intuitive to many given the status quo on copyright, patents, and other laws. Furthermore, it may very well be the case that “possessing” intellectual property individually leads to a more prosperous society than one unable to do this. I remain agnostic.
Whatever your beliefs, I highly recommend checking out Guntens work. Piracy will continue to remain an interesting ethical question- one that is volatile to a technological environment and the laws we set in motion. Let’s see where it goes.