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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.

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10 Comment on this post

  1. Personally, I find that the arguments for legalizing file-sharing are quite strong.

    1) To truly stop file-sharing would require a considerable narrowing down of civil rights.
    2) Claims about file-sharing damaging sales are dubious at least, with some studies (e.g. Blackburn 2004, ) reporting that it’s only the already popular ones – who’ll do fine anyway – who suffer, with the less popular ones benefiting.
    3) Its existance forces commercial entities to actually compete and innovate instead of benefiting from their monopolies, exemplified well by the development of Spotify.
    4) Allowing file-sharing would be the greatest step forward for the availability of culture since public libraries, if not greater.
    5) Hunting file-sharers also hurts those who are remixing the culture to create new works.
    6) File-sharing causes more net good than harm – most people download more than they would or could ever buy anyway, so the net benefit to the consumer is larger than the net harm to the industry. ( reports that “Although downloading reduces revenue by $25 per capita, it raises consumer surplus by $70 per capita (for their purchases of hit albums, 1999-2003). The reduction in deadweight loss ($45 per capita) is nearly double the reduction in industry revenue (from individuals in our sample)”, as one example.)
    7) To restrict civil rights in order to maximize the profits of a specific industry is absurd in any case – comparable to the car industry requiring bicycles to be outlawed as the bicycle sales were harming their profits.

    You argue that “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”. This implies that we do have valid economical and social grounds for defining *copying* someone’s property as *taking* it, and that human instincts aren’t well adapted to this necessary definition. However, given the several strong arguments for not classifying it as such (and do also note the critique towards all forms of intellectual property by the economists Boldrin & Levine, ), I feel that you’d need to justify this reasoning a bit more before implying that those in favor of legalization are simply failing to grasp the necessity of a more abstract form of property.

    (The author of this comment is a board member of the Pirate Party of Finland, which has also received a boost in support from the Pirate Bay case.)

  2. My point was not that copyright infringement is “taking”, just that *claiming that it is* will run counter to deep intuitions. This is likely why the content industry has failed to convince people that they are doing anything wrong, and why legal attempts to control infringement have been (comparatively, if not practically) successful.

    That intellectual property is nonintuitive is not a valid reason to think it is nonexistenct or wrong; that is a separate argument. But even if IP was totally uncontroversial from an ethical, economic or political perspective it might not be supported by people in practice. There are plenty of examples in economics where conclusions that are uncontroversial among economists are regarded as totally unintuitive and even politically unacceptable by the public.

  3. Fair enough, and I have no dispute with the main argument of IP being possibly counter-intuitive. Still, I did read an implied “IP infringement is wrong in any case” tone between your lines (“despite arguments which I think are rather weak”, “rather than trying to examine how wrong infringement is”). Was this a misinterpretation? If not, I would be curious to hear your reasons for thinking so, as I was personally a bit surprised to discover that was your stance (I’d automatically assumed that you’d be a Pirate supporter).

  4. I agree with the first commentator on most points, in particularly these two: 1. the big thing that the anti-piracy crew always fail to acknowledge on record is that at least one of the consequences of file-sharing is a massivly good thing: more people are listening to a greater variety of music, and are losing no money doing so. This fact would seem to account for the great part of the intuitive support.

    2. An inquiry into the psychological basis of the support of file-sharing wouldn’t necessarily undermine that support (or, if it it did, it might similarly undermine the validity of any moral judgement). The most wide-spread and reasonable reaction to the “You wouldn’t steal a car” advert on dvd’s has been “No, it isn’t anything like that.” (A comedian recently pointed out that people are now dowloading movies from pirate bay, just to get away from that annoying advert).

    In addition, no attempt at personalising the issue has yet led to a decrease in file-sharing – though this might be because the victims who have gone public are nausiatingly well-off already. It was probably a tactical blunder to go for high-profile rather then high-identificability.

  5. Kaj, I’m myself of two minds about copyright infringement. I think the economic argument that IP supports innovation is true to some extent, yet I think there are economic and cultural benefits of free sharing. I think there is an important emotional link between the creator and the created object/information that might imply that they should be able to dictate some or all of the uses it has, yet for many forms of infomation this link in practice is weak. I am terribly annoyed by rights infringing laws being pushed worldwide by the content industry, yet I am somewhat worried that there is a dearth of constructive alternatives. And so on.

  6. Quote: “if it is criminal to provide a service that makes it easy to download copyrighted information, then they [Google, Facebook, YouTube] 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.”

    I do not understand your reasoning.

    Most products and services have a legitimate use, but sometimes, they are used for criminal activities. Is the supplier responsible for the misuse of the product or the service?

    Mike Unwalla

  7. Hi Anders,

    A few questions/thoughts:

    1) Your last response sounded a bit vague by your usual standards – do you know of specific counterpoints to the economic papers Kaj linked to? (specifically to support the ‘the economic argument that IP supports innovation is true to some extent’ point – I know of plenty of anecdotal examples of the reverse – artists having to produce something genuinely appealing in order to get voluntary funding – but no overall assessment of the picture)

    2) Re buying ‘a specific instance’ of IP. IP laws seem quite inconsistent on this. If I buy a CD from Sony, as I understand it, what I’ve supposedly bought is that CD, not the data on it. But there are also laws in the English-speaking world at least limiting what I can do with that CD. I don’t remember their exact form, but I believe that I’m not allowed to play ‘my’ copy of the CD in a public area, (especially?) as part of a commercial enterprise. Similarly, I’m not allowed to stream it online without paying a royalty for the privilege, even if the listeners are unable to retain or request the data (hence Pandora having to block non-US users).

  8. 1) I haven’t kept up with the (serious) debate, I have just noted that there seems to drop in papers on both sides that doesn’t look like they can be automatically dismissed. So I go with Bertrand Russell’s principle that when authorities disagree, it would be foolhardy to consider the question settled or take a strong stand on one or the other side without serious study. It would even be surprising if there was any kind of nicely clearcut answer, since it is not too hard to find examples showing both benefits and problems with IP, varying by market, location, time, type of product and whatever.

    2)Yes, a lot of our digital possessions are not our possessions in the sense we normally put in the term (e.g. having a full bundle of rights to do whatever we want with), but are actually very strongly constrained. The laws not so much inconsistent as nonintuitive.

  9. Harrison Ainsworth

    “makes people quite willing to engage in an activity they would not do if it was tangible and personal”

    This is nearly the crux. The rational structure of people’s actions is not some casuistry, it reflects the basic physical fact — and surely the physical facts should be the ultimate basis for a moral evaluation (at least any that is useful). Copying *doesn’t* deprive anyone. Sharing *does* only add to the total. The more free copying/sharing of abstract goods, the more we all benefit, and at little to no cost — that is almost a paradigm of morality. What needs a defense is why we should be *stopped* from freely sharing. Copyright proposes this, wholly conditionally as a commercial expedient, yet evidence to support it is weak, if not supporting the very opposite.

  10. To me (speaking as a music producer) the idea of an agreement or contract between the customer and myself is important, as is the issue of trust between people generally.

    I sell my music on the condition that the customer promises not to give copies of it away for free. By purchasing the music, (I take it that) the customer is agreeing to these conditions and would thus be acting immorally if he or she went on to share it illegally. I would not sell music to a customer who made it clear that they intended to give it away to others.

    I don’t see why I shouldn’t be entitled to attach any conditions I want, including very unusual ones to the purchase of my music (just as I can set whichever price I want) – for instance, I might ask that the purchaser not play my music on Wednesdays – and hold the customer morally (and legally) accountable for breach of these conditions. After all, if a customer finds them unreasonable, then he is able to pass up the opportunity to make a purchase.

    Restrictions on the customers’ use of my product subsequent to the purchase can, to my mind, be justified by analogy to physical products: copying a cd and distributing further instances of it is equivalent to divining the workings of, and manufacturing and distributing, copies of patented mechanical products, except that, in the case of cds, the analysis of the product and process of manufacture of copies are trivial. Analogies to patent infringements may help give intellectual property issues in music more intuitive purchase.

    Whether illegal sharing works in my favour – advertising my music or leading to greater sales – is irrelevant. It is not up to others to assume the job of empire building; if it seems that free releases make financial sense, then I am perfectly able to release some music without the attached requirement that the customer not pass it on for free.

    The ‘copying does not deprive anyone’ line is incorrect: if I cannot make enough money from my music, then I must earn my crust more conventionally, reducing the time that I can dedicate to my craft and depriving the world of a greater variety and quantity of music. Sharing may increase the quantity of music available to individuals but decreases the absolute quantity of music.

    As far as the acceptance of file sharing goes, I would imagine that this is because most shares are far removed from the original ‘breach of contract/trust’ between seller and buyer – similarly, people may feel less guilty about their handling stolen goods rather than stealing them or buying counterfeit goods rather than producing them.

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