Intuitive pirates: why do we accept file sharing so much?

Piracy is in the headlines, whether in Somalian waters or Swedish cyberspace. A Stockholm court this friday found four men guilty of promoting copyright infringement by running the popular file-sharing site The Pirate Bay and sentenced them to one year in prison as well as a 30 million kronor fine (about $3.5 million). The case will no doubt go to a higher court and the circus (as well as the piracy) will continue. Legally, at least in the sense of the spirit of the laws banning copyright infringement, the case is pretty clear. But morally, what is wrong with file sharing? And why don't people care?

The morally most relevant activity is going on among the millions of people actually doing the file sharing. From an ethical standpoint what the Pirate Bay did was merely helping people act in a certain way. It did not induce them to download the required software, look for downloads or upload their digital possessions, it just facilitated the process. Helping people to act in a bad way can be wrong, but it is rarely worse than the bad act iself.

One might argue that the facilitation if it is great enough is an inducement and might even be worse than individual acts: if a billionaire announces he will pay a pound to everyone who kills one butterfly, then the guilt of the ecological damage might accumulate more on him rather than the individuals. But in the case of file sharing, such sites would not be relevant if there was not an enormous amount of sharing going on already.

If the punishment is an indicator, society on a formal level regards copyright
infringement as a serious crime. A one year prison sentence is typical
for assault or (perhaps fittingly) handling stolen goods. Since the
court were only examining the crime of making 20 songs, 9 films and 4
computer games available this is pretty impressive. The economic damage
caused by The Pirate Bay is impossible to measure, but at least
according to the content industry enormous and a major societal
problem. However, they have a clear biasing interest and independent
estimates vary widely. It is somewhat jarring to note that in another
case, the family of a murder victim were awarded just 40,000 kronor for
their loss, but due to bureaucratic decision they eventually got no
money at all (Swedish article).

The individual views of people often diverge strongly from the formal level (especially in cases like the above murder victim compensation). The average Swede is likely far more accepting of copyright infringement than the court, and many have remarked on the severity of the judgement. Obviously millions are actively file-sharing and there is a noticeable political movement seeking to legalize it – despite arguments which I think are rather weak.

Rather than trying to examine how wrong infringement is, it might be more fruitful to study why people are not strongly against it.

Intuitions and copyright infringement

Just as naval piracy is something more complex than "robbing people using a ship" information piracy is not just simply theft, as some opponents commonly claim. The key difference is that while copyright infringement may cause an economic loss it does not appropriate the object or deprive the copyright holder of the use of the copyright. Information is a non-rival good, and its value can change in nontrivial ways by becoming more accessible (e.g. widespread software piracy has probably helped expensive software such as Photoshop and Windows to become standard even in poorer countries).

The concept of ownership is deeply ingrained in all humans, perhaps evolved from territoriality. It can be clearly observed when playing with children, who at an early age become aware that certain toys are theirs and become upset if others play with them. This innate "intuitive ownership" works well with material objects, which tend to be rival goods. It makes sense to have a right to exclude others from the property (since their use is rival) and control how it is used. On a more adult level, we tend to add principles such as the  right to benefit from the property and a right to transfer or sell it. If somebody handles our property without our permission we tend to become upset on an emotional level, regardless of any tangible loss. This is also why communal property is hard to maintain: it is non-intuitive, if people have no ties to it they will tend to undervalue/undermaintain it, and if they have strong ties there is a risk of jealousy.

Unfortunately these ownership intuitions generalizes badly for intellectual property. It is intangible and non-rival. Most of our intellectual properties are not ours either – they have been produced by other people and we have bought instances of them. This leads to two problems: first, we do not have a strong attachment to them. If somebody copies a digital book from me, I do not mind that he then rewrites it in an obscene way. The author of the book on the other hand may be upset – there is still an attachment to the product of their mind. Second, the long chains of ownership and licencing weakens our sense of ownership: much of the software on our computers is merely legally licenced from a corporation, which often is not even the employer of the programmers who actually wrote it. If somebody copies it, we do not feel any loss. The people who might be worse off are all upstream and highly abstract to us, and their loss due any individual act of infringement is apparently minor.

My conclusion is that the nature of intellectual property makes it hard to maintain the social and empathic constraints that keeps us from taking each other's things.

Furthermore, in western culture (and many others) economic aspects of society have also been systematically denigrated, often described as a regrettable necessity for the "real" emotional social life that holds true value. Often "commercial" is used to denote something which is not authentic and often at odds with authenticity. This means that the economic loss argument (creators will not get paid, less incentive to create) is weakened. In fact, since we are often told how bad the commercial aspects of life are, anti-commercial infringement may appear morally neutral or good. That just leaves concerns about content producer's moral rights to control how their products are used, a threat to their identity or autonomy. But again, if the distance to the real creator is long anti-commercial views have a good chance to dominate – few people think Disney Corporation is suffering an infringed identity if an alternate Mickey Mouse is drawn. We respect the moral rights of human creators, but not corporations. 

The combination of weak intuitions, a bias against commercial interests and powerfully diffused responsibility makes people quite willing to engage in an activity they would not do if it was tangible and personal. Laws are not going to change this unless the threat of discovery is serious. So maybe the best way of getting rid of infringement would be to reduce the social distance between creators and consumers, restore respect for commercial gain and especially to make the consequences of actions concrete.

Qui nebono?

The real problem with the case may not be for the pirates, but for Google, Facebook, YouTube and social media. After all, if it is criminal to provide a service that makes it easy to download copyrighted information, then they would likely be criminal. The fact that they are not intended for this purpose and that legitimate use dwarfs the piracy is probably not relevant. The key issue is that they provide indexes and search functions that enable downloading of information with no control over its copyright status: they are in many ways as much tracker sites as The Pirate Bay. Illegalizing linking to forbidden information is problematic, especially since such bans may need to be transitive – essentially banning the ability to search for anything that could lead to anything illegal.

Better information technology will make it easier and cheaper to copy and spread information of any kind – and more and more of our economic value will reside as information rather than matter. Current attempts at regulation seek to ensure that concepts of property best suited for material objects are imposed on things that are not, and often overshoot their target of ensuring commercial compensation by impeding privacy, technological development and other important freedoms. No wonder the content industry is lacking friends.

So far the only ones who have clearly gained something is the Swedish Piracy Party, who gained thousands of new members and might have a plausible shot in the EU elections in June as a protest vote, and the National Museum of Science and Technology who bought one of the The Pirate Bay servers and is now putting it on display.