Law – Luke Lindsley

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 where it fits 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? 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. The Shovel can be used many times without being destroyed, but it can only be used by a single person. An example of a non durable rivalrous good would be an apple 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-rivalrous 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, we need to ask: Can non-rival goods be stolen?

Image via wikipedia

As Andreas Van Gunten explains in regards to intellectual property:

“A text in a book or a painting on a canvas are only rival-goods in the sense that the physical manifestation of the expression cannot be consumed more than once at any given time. The expression itself is non-rival. It can be consumed by many people at the same time as long as sufficient copies of the expression exist. The proponents of the current copyright system argue that the justification of intellectual property shares the same moral grounds as the justification of physical property.¹³ But only the physical medium has a rivalry character comparable to the physical goods by which control rights may be justified. As soon as the copying of the expression, which is what copyright law protects, does not need a physical medium anymore, which means that it can be done at zero or near zero cost, it loses its rivalry character. In other words, copying is not stealing, as the proponents of intellectual property rights try to convince us.

A printed book for example can only be read by one person at a time.¹⁴ If someone takes the book away from its owner, he can now read it and the original owner cannot. What we have here are the typical characteristics of a rival-good where the postulation of control rights may make some sense. But this changes completely as soon as a digital representation of the expression is available. In this case this would be an E-Book file or a website with the same text on it. If I possess an E-Book or have access to text on the World Wide Web, I am not limited in my enjoyment of the expression when someone else makes a copy and reads the text as well. As soon as the expression is no longer bound to a physical medium, and its manifestation is realised in a digital representation, the marginal costs for the second and subsequent copies are nearly zero and therefore it loses its rivalry character and its scarcity.”

Andreas Van Gunten answer to the question ‘Can non-rival goods be stolen?’ is no. However, non-rival transactions still seem to have the possibility of being 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.

“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.

Nevertheless, I can sympathize with those that are skeptical of Guntens views. They appear counter intuitive to many given the ingrained cultural status quo on copyright, patents, and other property 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 highly recommend checking out Guntens work. Piracy will continue to remain an interesting ethical question- one that is volatile to a technological evolution and the laws and norms we set in motion.

I recently came across a fascinating eBook, Understanding the Political Spectrum by R.G. Price. The 92 page book gives insight on the political history of the ‘Left’ and ‘Right’ and how they’ve changed throughout history. Everyone seems to have a loose interpretation of these terms, but those interpretations are abstract in nature. For example, left is liberal and right is conservative:

Price explains many political spectrum are too narrow in focus, often being one dimensional and outright nonsensical like the above. He acknowledges that some political spectrum like the Political Compass are useful tools to understanding an individuals politics, but argues that they are largely incomplete or misleading.

But what does the Political compass get right? It correctly identifies the right variables:

Price believes that power is at the root of politics. He explains there are three fundamental bases of power in modern society: The Church, the State and the Corporation. An individuals beliefs about how these powers intermingle determine ones political beliefs about the world. These beliefs become more strongly held as you move away from the center.

I agree with Price that these three are the predominant forces of power in society. These powers can vary greatly depending on where you are in the world, but their influence remains constant in modern societies.

Price expands on the political compass by unfolding the original into 4 quadrants:

The end result, is what Price identifies as ‘The Rational Spectrum’:

There are a few things on The Rational Spectrum that may raise a few eyebrows. First is the use of ‘Social Right’ and ‘Social Left’ for the vertical axis. Price explains that both the Social Right and Left don’t oppose each other on any given issue, but rather that they are both opposing Liberalism (The inner circle on the spectrum). In America today, liberalism may be more often thought of as libertarian.

Therefore liberalism is always the opposing force when discussing any social or economic issue for both the Left and Right. First, let’s look at some examples of specific social issues to give this point more clarity:

Social Right

Anti Gay Marriage vs Liberalism (freedom to marry regardless of sex)

Anti Marijuana Legalization vs Liberalism (freedom to use marijuana)

Anti Abortion vs Liberalism (freedom to terminate a pregnancy)

Social Left

Affirmative Action vs Liberalism (freedom to hire)

Gun Control vs Liberalism (freedom to buy, own and use guns)

Global Warming Regulations vs Liberalism (freedom to pollute)

Price goes onto explain that the Social Right and Social Left may even agree on some issues, but for drastically different reasons. One example he gives is the issue of pornography. The Far Right is against pornography because they believe its immoral for religious reasons. The Far Left on the other hand is against pornography because it represents the objectification of women. For Liberalism, however, pornography is perfectly acceptable because it’s just another form of human expression. Every social issue is a fight for regulation.

Now let’s look at the horizontal axis. Perhaps less surprisingly, this deals with economics and is what is traditionally meant by the terms “Left” and “Right.” However, Price makes a unique distinction in that Laissez-faire Capitalism is a centrist idea rather than a far right one which many other political spectrum’s claim. Price argues that the far right is actually Corporatism which wants regulations to reduce competition and create Oligopolies. The far left or Socialism in contrast, wants regulations on businesses so that their benefits are shared across society.

Similarly, the moderate left advocates for Social Democracy while the moderate right advocates for corporatistic capitalism. Social democracy is a mixed economy where capitalism is retained, but social welfare provisions are in place to make capitalist’s activity tolerable to society at large. I encourage you to read this article to better differentiate this and socialism. Likewise, corporatistic capitalism is in favor of corporate power, but to a lesser extent then the far right.

Here is a list of historical figures and groups and where they would place on the Rational Spectrum:

I highly encourage everyone to read Price’s work. You can buy his Ebook here.