Apr 30 2009
Why Piracy is Not Theft: A Propos of the Pirate Bay Ruling
One week ago, a Swedish court convicted, and sent to prison, the founders of Swedish file-sharing website Pirate Bay (PB) on charges of breach of Swedish copyright law, allegedly for `making copyrighted material available’. The plaintiffs, among whom Warner Bros, EMI, Columbia Pictures, and 20th Century Fox are but prominent instances, dropped the charge of `assisting copyright infringement’ at an early stage. The prosecution’s case was spearheaded by a claim to the effect that the raison d’être of PB was to make such (copyrighted) material available, in contrast -according to the prosecution- with search engines, such as Google, which merely make it available upon search.
A Précis of the Legal Case
It is not, normally, the job of a post office to look at, and censor, letters that contain, or are suspect of containing, copyright material. If such a suspicion has reasonable grounds, then it must be reported to the appropriate authorities -usually the police- which must, in turn, investigate the alleged crime. If and when the police does so investigate, the police has a legal right to ask that the letter not be delivered, and/or to charge the sender with the relevant offence.
To the extent that the post office analogy covers the PB case, it follows that the sole responsibility which can be ascribed to the PB owners is their failure to so report reasonable suspicion of copyright infringement. Failure to report copyright infringement is not tantamount to breach of copyright, any more than failure to report rape suggests breach of the Attempted Rape Act. Under Swedish law, omissions of the sort carry penal sentences in accordance with Part II, Chapter 23, Section 6 of the Swedish Penal Code. According to this law, PB’s founders should at best have been charged as accomplices to copyright infringement `to a minor extent only’, and therefore given a sentence significantly lower than one year (if at all).

The prosecution would most likely be unmoved by the analogy above -indeed, it wasn’t- for, it would argue, the analogy does not cover the PB case. Rather, the prosecution would argue, PB is like a privately founded and maintained postal service that consistently facilitates infringement of copyright by making copyrighted material available. Questions of mens rea are inevitably salient in this connection: to the extent that A creates and maintains a postal service in good faith, with the sole purpose that A, B and C (and millions of others) freely exchange hard copies of lawful content, they cannot plausibly be blamed for creating or maintaining the postal firm. That is, they cannot be so blamed even if the content of the material circulated is unlawful. They could, perhaps, be held liable, and blamed for not reporting well-founded suspicions of breach of copyright to the police. But, as already indicated, such omissions are not tantamount to breach of copyright.
At this stage of the proceedings, the trial turned more into travesty than farce. The prosecution scarcely -as far as I understand its claims- brought forward compelling evidence to the effect that PB’s founders created PB with such intent. It was claimed, for example, that because PB’s founders made money from the very beginning PB was launched, it could be inferred that they had malicious (qua copyright-infringing) intent. PB’s defence lawyers argued, persuasively, that PB was neither making money from the outset, nor was subsequently making enough to cover all website running costs. It was the defence’s exasperation with lack of pertinent evidence about mens rea that prompted the -already famous- ‘King Kong’ reductio by one of the defence’s lawyers.
The four were, however, summarily convicted and sent to prison.
Even if one accedes to a belief that existing copyright law is reasonably fair, or just, the PB ruling cannot, in my opinion be justified. In what follows I want to briefly look at the minor premise underpinning this whole (legal and moral) debate, and argue that the very idea of copyright, as it has evolved through the (affluent) influence of the music and entertainment industry, and as it is presently being enforced by courts of law throughout Europe (and the US), is deeply -and in many ways- flawed.
Arguments for Copyright
A well-known argument for copyright sometimes pronounced by music industry multinationals and by individual artists -such as, most recently, Paul McCartney- is that creators of art have stringent moral rights over the disposal and use of the whole of their (creative) production, and over the full value such production can fetch in the `free’ market. Call this the right-libertarian argument. It follows from this that artists, or the music industry (or both), have rights to dictate not only the terms under which consumers will come to obtain access to their product, but also rights over the terms under which their product will exchange and trade in the open market. A rightful seller of a book -where `rightful seller’ is conceived in the sense of the two previous sentences- may legitimately ask the buyer not to photocopy a book for public distribution, or not to sell it for profit, or to visit the local police station before turning each page. Some of the aforementioned obligations on the side of the buyer are legally enforceable. Similar considerations apply in the case of CDs, DVDs, downloaded music, etc. (Certain well-known right-libertarians, such as Robert Nozick, and Jan Narveson, have propounded similar arguments in an effort to justify private property in physical -non-software- resources.) It follows that piracy is theft, as piracy infringes the rights of the legitimate owners of copyrighted material.
Under present social arrangements in Europe (and the US), the vast majority of artists does not get the bulk of rewards from its creative activity: the music industry appropriates a large part of such rewards (although it contributes very little into the value of artistic creation). Right-libertarian defenders of copyright are scarcely touched by this claim, however. For, they argue, as long as the artist is free -i.e. not coerced- to enter into a contract with, say, a record company, there is nothing morally suspect about the tripartite relationship between the artist, the company, and the market. It is an open question whether most artists are substantially free not to enter into such a contract with a record company -in my view they are not- but none of the claims that follow rely on the answer to this question.
A second argument for copyright does not rely on the, so-called, `self-ownership’ premise of the right-libertarian argument. Rather, this desert argument claims that artists have rights to (the bulk of) market rewards, because they deserve rewards that accrue to them in virtue of their particular (creative) exercise of individual autonomy. Under present social arrangements such exercises of autonomy can only be sufficiently honoured through the mediation of free market reward structures. It follows that piracy is theft, as it infringes individual artists’ desert-based rights.
(If both these arguments seem sketchy, that’s because they are: in fact, neither of the two exhibits anything but formal coherence, let alone advance compelling justification.)
Picking the Gaps
Both the right-libertarian and the desert arguments illegimately priviledge inegalitarian social relations -perhaps due to a certain poverty of imagination! To take the former: even if we were to concede that people have stringent rights over what they produce (and to its disposal), it would not follow that appropriating a (large) part of the surplus artists and/or entertainment industry can get from the market is theft. For theft of an object implies illegitimate (intentional) appropriation of something that rightfully belongs to someone else. And it is perfectly plausible to claim that Warner Bros’, say, market profits do not rightfully belong to Warner Bros, because Warner Bros never had moral rights to the recording studios, advertising machinery, and money-capital it presently utilises.
In the case of software, the argument applies: piracy over X’s copyrighted tunes is theft if, and only if, X’s legal entitlements to both software and non-software resources are rightful or fair. But it is very easy to deny that either Warner Bros, or Madonna, enjoy rightful, or fair, entitlements over the (software and non-software) property and capital they have at their command and disposal. Indeed, it is wholly plausible to claim that both Warner Bros’ and Madonna’s property are theft, insofar as a large part of that property excludes third parties from appropriation of -what many would consider- their rightful share of (software or non-software) resources.
A similar argument applies in response to the desert claim: what people can rightfully own cannot be selected prior to deciding what constitutes a fair distribution of resources. For one does not, indeed cannot, have rights to exercises of autonomy outside the purview of his or her moral rights to such resources.
In response to this argument, some right-libertarians have produced a Wilt Chamberlain argument. They have argued that Warner Bros’ (or its shareholders’) and Madonna’s capital have arisen out of the spontaneous interplay of free choices by a large number of people. Any attempt to reduce the former’s share in society’s resources is likely to be both unproductive and freedom-reducing. Here’s why: each night, a large number of unconnected individuals chooses to spend some money, part of which will end up in the hands of Wilt Chamberlain. Accumulation of money from these individuals will naturally, almost inevitably, exacerbate the inequality between the vast majority and Wilt. This is, we are told, the predicament of humanity under capitalism, and it is not unfair. (The example has been discussed by Robert Nozick and, more extensively, in a well-known rebuttal by G.A. Cohen.)
Now notice that no one who attends a basketball game, or a concert, actually consents to Wilt, or Madonna, becoming super-rich. All their action implies consent to is that Wilt become $10 richer. Indeed, I may pay the $10 with a heavy heart, knowing that one thousand others will do the same, and thus regret that Wilt will become $10000 richer for a fourty minute game. For I am faced with a free rider problem: the inequality between me and Wilt is borne from factors that are beyond my control, and over which I cannot be held responsible, i.e. the choices of others. It is therefore perfectly reasonable to claim that, since most individuals are not responsible for their plight relative to Wilt, Wilt is not (morally) entitled to a vastly greater fortune than they. Similar considerations hold, mutatis mutandis, for artists, software companies, and the like.
If this argument is sound, then present copyright structures are not fair, and appropriation of legally copyrighted material is not unfair - and a fortiori not theft. Such structures are, furthermore, inefficient and unproductive, insofar as they restrict artists’ access to material they could otherwise remix or reuse to the benefit of all (save the entertainment industry).
Tentative Blueprints for a Better Structure
Artists -in marked contrast with the industry- are entitled to some sort of reward for the value they produce. The argument rehearsed above merely claims that neither the former, nor the latter, are entitled to market rewards for their work, not that they are not entitled to reward tout court. A better system would, at a minimum, do a number of things to improve both the efficiency and the fairness of access to artists’ work. First, it would sever the links between rewards to artists and industry revenues. To this effect, not-for-profit companies could be set up to advertise and disseminate artists’ work, to whom all surplus earnings from sale of music, film, etc., would accrue. Such companies are particularly easy to set up with the advent of the web. Second, artists whose work is available on the internet could be remunerated through fixed charges, paid for by all internet users, and incorporated into monthly internet bills. That would be akin to the system of TV licensing in the UK, with the crucial difference that revenues would accrue to creators of art, rather than one single multinational corporation (in this case the BBC). Distribution could proceed on the basis of approval (number of people judging the work as worthwhile), or popularity (number of downloads), or artists’ need (however measured), etc. Third, better structures of access to artistic work would abolish most forms of copyright in its present forms and promote the use of either forms of non-proprietary, not-for-profit copyleft, or very restricted -in duration and scope- copyright to the use of, and control over, artistic production.
Present copyright structures are inefficient, unfair, and, in many cases, exploitative. These facts alone should, in my opinion, provide reason enough to campaign vigorously for their replacement or radical transformation.
Nicholas Vrousalis



