The SOPA/PIPA debates have reopened the discussion over the issue of online piracy, over whether or not it’s stealing, over the amount of economic damage it does to content producers, and whether or not the response will destroy the internet as we currently know it. Over at Slate, Matthew Yglesias and Caleb Crain are hashing out the question of copyright. Crain takes Yglesias to school here on the question of whether or not copyright infringement is theft, but even so, I think they miss an important issue.
Let me start by saying that I think there’s really no legitimate argument that downloading content protected by copyright isn’t theft. The fact that Yglesias is twisting himself into knots in order to argue that if you look at downloading in one specific way it might not quite be theft is evidence of that. If you’re having to construct special circumstances and questionable analogies in order to make a case, your case is on pretty shaky footing.
But here’s what Crain is missing. The question over whether or not it’s stealing is irrelevant at this point. There’s no social stigma attached to being a downloader the way there is to, say, shoplifting, and I suspect that most people who are generally opposed to downloading (who don’t have a financial stake either way) don’t think of downloaders as morally repugnant people. Part of that comes from the fact that there’s still a relatively small number of people who are downloading (compared to the general internet populace), and part stems from the general public’s lack of understanding about what’s going on or how.
I think, though, that the bigger reason why there’s no social stigma attached to downloading is because, on some level, most people break laws when we find them inconvenient and when we don’t see harm in doing so. Drivers exceed the speed limit all the time–some do it recklessly, but others do it moderately. I’ve been known to go 75 in a 70 under the notion that a state trooper isn’t likely to pull me over when there are people going 80 or faster. I rationalize it by saying to myself that the damage I’m doing is minimal at worst. There’s no question I’m breaking the law, and if a trooper gives me a ticket, then I can’t really complain about it (though I no doubt will).
This is how the casual downloader sees what they’re doing–they’re doing 75 in a 70. They’re getting a movie once in a while, or a TV show that’s not available on their cable package, or an album from their youth. They don’t see themselves as doing serious damage to the economics of intellectual property. And on an individual level, they’re right. There are people who are the downloading equivalent of the drunk driver going 130 in an M-1 Tank through a school zone (I have no idea if that’s possible, but the image is vivid, right?). They hog tons of bandwidth and make money off the pirated content itself or off advertising ways to get to the pirated content.
We can take this analogy a little further. The person who gets a ticket for driving 5 miles per hour over the limit probably has reason to feel like the punishment is harsh. Not only is there the issue of the cost of the ticket, but there’s the chance that one’s insurance rates will go up, and one’s time will be spent dealing with the aggravation of a ticket. The ticket for the person going 5 mph over the limit hurts more than the one for going 20 mph because the fine feels disproportionate to the offense.
The same goes for occasional downloaders who get tagged by content companies. Lawsuits with six-figure demands for downloading movies feel overly harsh, both to the people being sued and to bystanders (especially when the proof being offered is questionable much of the time). It feels like users are being targeted more than the providers are.
There’s one last reason why this whole question is irrelevant though, and it’s linked to technology. Even before the current versions of SOPA and PIPA were shelved, hackers were posting workarounds so that downloaders could get to the content they want. The pirates have always stayed ahead of legislation and enforcement, and there’s no reason to suspect this will change in the future. Not even if governments are willing to break the internet in an attempt to try.
19 responses
The other reason there is little social stigma attached to file sharing (or “pirating”) is because it hasn’t been proven that it’s harmful. Some studies have shown that pirates actually buy more media (search similar phrasing and studies/coverage will pop up); it has also been suggested that pirates buy some of the content they pirate.
All of the studies (both for and against pirates) remain small and murky. It seems entirely possible to me that piracy is directly detracting from artists, but so far I haven’t seen much that actually supports that conjecture.
A little anecdotal evidence: all the pirates I know are rabid media consumers. They purchase far more media (books, music, films/DVDs – choose your poison) than is average. Their voraciousness spurs their piracy but also their spending.
“Let me start by saying that I think there’s really no legitimate argument that downloading content protected by copyright isn’t theft.”
Richard Stallman would disagree with you heartily (and I agree with Stallman). File sharing should be legal – and artists should be directly compensated. These two goals are not necessarily opposed. Here’s a Stallman article on this very issue (there are more on his site):
http://stallman.org/articles/internet-sharing-license.en.html
I always wonder whether people living in countries where they can’t access a piece of media (except via file sharing sites) still qualify as “thieves.” How about if they’re students trying to access a text not printed in their country?
Its been said before, but to me file sharing is quite similar in some ways to librarianship. There is generally an initial purchase of the text (or else it wouldn’t be available for distribution); the text is then put in a user-curated collection, which is selected and downloaded by other interested parties.
Again, there is an issue of artist compensation, but as Stallman points out, there are feasible alternate models.
“The pirates have always stayed ahead of legislation and enforcement, and there’s no reason to suspect this will change in the future.”
EXACTLY.
Emily,
Thanks for your comment. I would like to point out, though, that I never said file sharing shouldn’t be legal–I said that it is theft, and under current law, it is. There’s really no arguing that point. We can argue over whether or not it should be illegal, which is what I believe you and Stallman are talking about, but that’s a different discussion.
I’m also not really convinced that downloaders are huge purchasers of media. The studies, as you say, are murky at best, and the reasoning behind them strikes me as people looking for a justification for their actions. But more to the point, I don’t think it really matters one way or the other. Piracy happens, and is going to continue to happen no matter what obstacles get thrown in the way. Smart producers of content find ways to make money regardless of piracy. It’s happening already, which may be the final reason why attitudes don’t really matter.
Actually, it’s copyright infringement rather than theft; it’s what every parent who recorded a Disney movie on a VCR did, it’s what you did when you xeroxed two chapters out of a book for your senior thesis research. I’m not saying it’s all right to do it, but since you are talking about the law it seems the legal definition is actually important to your argument.
Speaking of “questionable analogies,” how many downloaded Nirvana albums are the moral equivalent of a drunk driver running down children, exactly?
When I actually compare copyright infringement to a drunk driver running down children, I’ll give you the ratio. Deal?
Speeding is an example I’ve always used – littering and drug use are others – civil crimes many of us are ‘guilty’ of occasionally.
One thing I’ve noted is that some people think that the law should be absolute – i.e. surely something is either a crime or not? There’s a failure to grasp that civil law is often a series of signs.
As for Emily’s comment – I’m afraid I’ll have to turn to anecdote. I work in the software development industry – our companies product has been purely digital since the 80s, and the main way we make money is through licence sales – we also sell consultancy and services, but the main earner is IP.
Yet the majority of the people in my department ‘pirate’ most of their media. One of them even asked me why I still pay for mine – why I have a cable package. ‘What do you get out of it?’.
I know someone else with a Kindle – and 40,000 ‘pirated’ books – who stated ‘I’ll never have to buy a book again’. None of these people earns less than $50,000 a year.
When questioned as to how they expect new books/films/games/music to be funded, responses tend to vary between the honest (‘I don’t care’) to the deluded (‘from merchandising’) – but the common theme, given that few of them attend live shows or buy merchandising is really ‘by someone else paying for it’.
And while I like Stallman’s cube root solution to the ‘problem’ of winner takes all, what does ‘most popular’ mean?
Most downloaded? Most listened to? How should money be split between 50,000 copies of a book, and 50,000 copies of a Pixar-style animation or XBox game, given the hundreds of people it takes to create either?
And who is ‘the artist’ in those cases – or are we saying that only clearly defined sole artists and groups are allowed to be beneficiaries??
And is ‘most popular’ the right way to do it – the current model allows for the niche and unpopular to charge more.
Brian,
“Piracy happens, and is going to continue to happen no matter what obstacles get thrown in the way. Smart producers of content find ways to make money regardless of piracy. It’s happening already, which may be the final reason why attitudes don’t really matter.”
I do agree with this, but not with moral objections to piracy (even if it is currently outside copyright law).
“The studies, as you say, are murky at best, and the reasoning behind them strikes me as people looking for a justification for their actions.”
This is true of anti-piracy findings as well.
Jule,
“I know someone else with a Kindle – and 40,000 ‘pirated’ books – who stated ‘I’ll never have to buy a book again’. None of these people earns less than $50,000 a year. When questioned as to how they expect new books/films/games/music to be funded… the common theme, given that few of them attend live shows or buy merchandising is really ‘by someone else paying for it’.”
I disagree with your colleagues’ disinterest in artist compensation. I hope a majority of “pirates” are not this uninterested in the production of media (though again, there are no clear stats on this yet). However, for the sake of argument, let’s say these people (who don’t consider or care about artist compensation) make up the majority of “pirates.” Would this person who “pirated” 40,000 books have contributed significantly to book sales otherwise? How many of those 40,000 would he have paid for? How does this differ from borrowing say, 40,000 library books? (Aside: of course these people can afford to buy all their books and thus don’t have to rely on libraries, but that doesn’t mean they wouldn’t use them.) Regardless, if they persist in pirating – and they will, per Brian’s argument – an alternate system of compensation must be devised. This system must circumvent the people who access media without interest in compensating those who create it. Stallman’s cube root and crowd funding are two excellent starting points.
Re: niche work currently charging more. I think the best system would see Stallman’s cube root working in tandem with other models. Gluejar (http://gluejar.com/) is an interesting example in a crowd funding model that would pay an artist (and publisher!) prior to distribution. Artists and publishers could produce niche works with the support of the small but loyal audience interested in that work.
I wonder also whether crowd funding would allow more contact with artists and therefore help media consumers understand what exactly goes into the creation of a work – in terms of hours or number of people needed.
As for compensation of groups, this is a sticky wicket. It’s difficult, however, to respond to the question of Pixar or X-Box, as both pay salaries (as I understand it, DVD sales don’t pay royalties to, for example, animators or editors). But for group projects, like films, it seems a crowd funding approach might also work. For some independent films, it already is.
I agree that the whole issue of creative compensation requires greater analysis, but at the moment it appears feasible for popular and niche artists.
There are some people who go to great lengths to get things for free. But the majority of people seek the path of least resistance. It is easier for me to let Netflix siphon off a few dollars from my bank account than to spend time searching online for “free” movies, so that’s what I do. But if Netflix lacks the movie I really, really want to see, watch me go searching.
The only movies I “own” are (a handful of DVDs I bought before instant streaming existed and) the ones I was forced to download because I couldn’t get them easily via my preferred legal means. They take up hard-drive space and I’d rather not own them, honestly. I’d delete them if I was sure I never wanted to see them again — or if I was sure I could stream them in the future.
I agree that this is a minor, minor crime. Maybe it’s “theft,” but of something very small and virtually valueless — like taking a shell off the beach. You “shouldn’t” do it, but everyone does it. Who the hell’s ever been arrested or even fined for taking a shell home after a trip to the beach?
Actually it is not in fact theft. Intellectual “property” is a misnomer as any copyright scholar will tell you. Copyright is a temporary monopoly granted under rules set by Congress. Breaching that monopoly is illegal under some circumstances, yes, but it is not in fact theft. There are numerous specific instances where it is not illegal. The use of the word theft to describe it has been characterized by no less an authority than William Patrie, author of the dominant treatise on copyright law, former counsel to the Congressional subcommittee with responsibility for copyright law, former counsel in the US Copyright Office etc. as a kind of moral panic, akin to red-baiting. To call it theft is in fact the act that requires semantic gymnastics, it’s just that those semantic gymnastics have been performed for the past century by content distributors (not, ironically, content owners) with such aplomb that they had won the battle for naming rights to the activity of breaching copyright. Most visible in those ludicrous FBI admonishments at the beginning of videos.
I strongly advise you to read Patry’s current and previous books on copyright law, history, and reform, both available from Oxford University Press.
“All of the studies (both for and against pirates) remain small and murky. It seems entirely possible to me that piracy is directly detracting from artists, but so far I haven’t seen much that actually supports that conjecture.”
Really? You haven’t seen the entire music industry’s profits collapse? Pirating obviously hurts these industries. You can argue if that’s good or bad, but it unquestionably does. I used to buy into the “it exposes us to more music and now we buy more!” argument back in the Napster days. But I was wrong. Basically no one I know buys any music at all anymore. Maybe 2 or 3 albums a year from bands they know personally. This is from people who used to buy 2-3 albums a week.
And no, they don’t go to more shows or spend more money on merch. You know what they do? They save up the money they used to spend on movies and books and music and give it to big corporations like Apple and Amazon for new tech products. Blarg.
“I always wonder whether people living in countries where they can’t access a piece of media (except via file sharing sites) still qualify as “thieves.†How about if they’re students trying to access a text not printed in their country?”
Also, no offense but this is such a jerk off argument. Really hate how every time pirating and artist compensation comes up, rich Americans who spend hundreds on electronic products they play stolen media on try to do this weird hand waiving “but starving Africans steal music too!” bullshit.
“How many of those 40,000 would he have paid for? How does this differ from borrowing say, 40,000 library books?”
Libraries purchase books and are also important community spaces. Using libraries helps their funding. Stealing 40k books doesn’t do jack shit for anyone except the pirate.
I do agree that you can’t do a 1 for 1 equation between downloading and, say, stealing a CD. Most people do download more than they would buy, but most of them still WOULD buy more at the same time. Also, it is always weird that people act like there is some great moral difference between stealing a CD that costs like 25 cents to make technically and downloading a file. Is that 25 cent difference really a big moral deal?
No, the problem with shoplifting is that you are stealing the content, not the cheap plastic. Same with downloading.
This is exactly why the “theft or not theft???” argument is silly. The physical product that pro-pirating people pretend is so important is just a cheap piece or plastic (or glue and wood pulp as the case may be.) The content has always been what’s important/valuable.
“When questioned as to how they expect new books/films/games/music to be funded, responses tend to vary between the honest (‘I don’t care’) to the deluded (‘from merchandising’) – but the common theme, given that few of them attend live shows or buy merchandising is really ‘by someone else paying for it’.”
I was recently discussing this, in regards to publishing, and someone told me with a straight face “well writers can just tour more and do more readings to get money”
:-/
Richard,
You’re a perfect example of what I was talking about in my post about Yglesias twisting himself into knots to say this isn’t theft. The plain meaning of the word theft is the act of taking something which doesn’t belong to you without the permission of the owner. You can play games with the nature and definition of intellectual property all you want, but that doesn’t change the fact that when a person downloads the latest Harry Potter movie or the complete discography of the Wu-Tang Clan without paying the people who own the rights to it, they’re committing a theft. It’s pretty clear that I’m not talking about anything that could be covered by fair use–I’m talking about the act of downloading copyrighted content that’s available for purchase–so let’s not play games here.
And all that is beside the point of my blog post. It doesn’t matter anymore whether or not we think of it as theft because as a society, we’ve decided that even if it is theft, we’re going to tolerate it up to a point. All we’re arguing over now is where that point is. How much piracy will we accept. Big content owners want that number to be 0%, which is impossible to reach. Pirates want that number to be 100%, and to hell with the people who actually create the content and want to earn a living from it. Put me somewhere in the middle–an artist whose work is protected by copyright, but who recognizes that piracy is going to happen no matter what protections are raised against it. So I don’t worry about it anymore. If I’m going to make money from my art, I’m going to make it by hustling my work directly to paying customers, and hopefully I’ll build a loyal enough audience that they’ll be willing to pay me to do more work.
Yes, when Richard says it isn’t actually theft he is saying it isn’t TECHNICALLY theft under US law. However, when Brian says it is theft he is talking about the general definition of theft. I certainly don’t think that US law is the ultimate judge on what words mean what. Either way, under US law it isn’t technically theft but it is theft in the common sense of the word.
L,
Re: the music industry. Foremost, I was talking about loss of profit to artists, not to corporations. The music industry may have been making a great profit; individual artists not so much. My argument is about whether artists can be compensated and therefore continue to create, not whether industries are able to maintain their status quo.
I agree that it’s disheartening that there are people out there totally uninterested in whether artists can continue to produce (although I reject Brian’s assertion that pirates all fall into this category), but that’s another why we need a better system in place to compensate the artists.
“Also, no offense but this is such a jerk off argument. Really hate how every time pirating and artist compensation comes up, rich Americans who spend hundreds on electronic products they play stolen media on try to do this weird hand waiving “but starving Africans steal music too!†bullshit.”
I had two points here: the first is to query how downloads in other countries might effect statistics. When people see that a book was “downloaded x times,” they tend to assume that 100% of the downloads are done in their country. The second is whether you would still consider it stealing if someone were unable to access that piece of media in their own region were the downloader (i.e. they were unable to access the media to begin with, and would therefore would not and could not have purchased it). File sharers are an international group. On the other hand, many media releases have increased global availability of materials, simultaneous releases of films in different countries, et cetera.
You’re right that libraries do purchase a book initially, but so does someone who uploads a file to share (or the person before them did, or the person before them did). Obviously, however, I agree that using libraries is generally a good thing. Use libraries!
“The content has always been what’s important/valuable.”
I agree with this. The content is what’s important/valuable, which is why we should focus on how to compensate artists and not on whether the current model supports “industries.” This is not to say that those industries offer nothing, only that it’s clear that, as Brian says, they need to shift their current model. I would like to see a model that focuses on content and the people who create it (artists), rather than third parties.
Emily:
Thanks for your (level-headed) response. You are correct that I overlooked your use of the word artist. I think that this is hard to calculate because different artforms work differently. In music, shows and merch have almost always been whats bands relied upon, so downloading may not hurt them as much. Anything to do with film, I’d have to feel certain that the artists involved are losing money alongside the industry and non-artist parts. For books? I think it is too early to study, since most people still don’t own e-readers and the number who download is pretty small. My guess is that it will cause pretty direct loss of revenues to artists if book downloading becomes nearly as widespread as music downloading among readers.
writers really don’t have any other ways to earn income off of their writing, except tangentially through teaching.
Would I consider it stealing to steal a book you couldn’t get otherwise? yes, but that doesn’t mean I’d consider it wrong. I also wouldn’t personally mind of starving people stole food from corporate stores. I don’t personally share the kind of Kantian idea of universal morality. And in illegal downloading in particular, there is plenty of grey area.
“You’re right that libraries do purchase a book initially, but so does someone who uploads a file to share (or the person before them did, or the person before them did).”
This is not necessarily true. Someone might easily steal the book or buy it, scan it, then return it and get their money back. But my main point is that libraries serve an important function to communities and lower income people and I find it highly disingenuous that so many–not necessarily you–middle to upper class Americans who haven’t set foot in a library in a decade, if ever, use some “yeah I pirate all my books but it is the exact same as a library! Do you hate libraries?” argument.
“I would like to see a model that focuses on content and the people who create it (artists), rather than third parties.”
Yes! What is most depressing to me about the way things are going is even in the diminishing content returns, the profits are just going to gross corporations like Apple or gross millionaire assholes like Kim Dotcom. I can see a future where most people have a Netflix, a Spotify and a book version of those instead of pirating, but I do not like having so much power invested in a few companies. That never works out well.
Interesting post, Brian. You are absolutely right that it is so besides the point to debate about whether content piracy is theft or not, immoral or not. It’s happening and will continue to happen in the foreseeable future. Currently most people don’t pirate content, particularly because most people don’t know how and/or have no interest in putting any effort into searching for virus-free/malware-free content, so it’s not like this is a massive cultural epidemic anyway. It’d be great to come to a place where, like what Emily DB said above, we can focus on how our evolving model can adequately compensate the content makers, not the corporatist industries or even the content consumers like we usually do.
Sorry I should have been more clear, I was puzzled by the drunk driver in an M-1 tank in a school zone analogy. Leaving that aside, your first comment to Emily DB seemed to specify that the concept of theft you were discussing was a legal one (“under current law”), so I don’t see how Richard’s explicating the law and providing references is “twisting”. Morals are a different matter. Of course since I think your argument is that the law is pointless, I believe we are ultimately in agreement.
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