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.
