A month ago I engaged in an interesting conversation with Luke Bergeron on his [now defunct] blog, about copyright law. My interest was prompted in large part by Luke’s incisive generational examination of the question of piracy.
Here’s how Luke initially framed the issue:
The real issue goes beyond digital piracy to copyright itself. Now, I don’t believe that digital file sharing, even of copyrighted materials, is theft. That’s probably a generational thing, but we’re gonna do our best to suss out as much meaning as possible. Keep in mind, this entry is a fluid conversation, so comment if you wanna participate.
So, theft seems to me like it is inherently defined by the taking of something from someone else, depriving them of it. Theft is a physical concept, based on a starvation economy, that there is a finite amount of resources to go around, and possessing resources means someone else will not possess them.
In truth, I think it is clear that morally, the act of pirating a product is, in fact, the moral equivalent of stealing… although that nagging question of what the person who has been stolen from is missing still lingers.
Two days ago I read a post from Marian Schembari on Digital Book World, called
A Gen Y Reaction to Macmillan’s Piracy Plan. In her comprehensive rant, Marian had this to say about piracy:
I’m not condoning piracy (sort of), but if major publishers are only going to look at the “legal” side of things and spend precious time and money fighting the inevitable, they are going to crash and burn.
I’m poor, I understand technology, and I guarantee I can find any book online, for free, in 10 minutes or less. You can delete and sue all you want, but at the end of the day the internet is a wide and limitless place, meaning it’s a waste of time, money and energy to fight it.
In response to Marian’s post, Debbie Stier of HarperStudio/HarperCollins wrote a post on her company blog, congratulating Marian for stating her overall case regarding Macmillan, and for giving insight into the Gen Y perspective.
Here’s the bottom line for me — whether you agree or not with Marian Schembari’s views on piracy, she has given us a glimpse into the psyche of a Gen Y reader. I appreciate her honesty. I believe this is a gift. I think we should listen.
I agree with Debbie. We should listen. But then we should reply.
To do any less is to treat Marian and Gen Y and Luke and anyone else who shares their views about piracy and content theft with condescension. We don’t pat seasoned peers on the head for showing us that they can put sentences together. We read those sentences, unpack them, take them apart — even hack them to bloody pieces — to see if they hold up.
Debbie’s right that it took courage for Marian to express her opinion, but the fact that Marian can express an opinion is not what’s important. It’s the resulting process of engagement — the conversation that takes place following the assertion of that opinion — that matters. And here I mean to single out not Gen Y but Gen X and the Baby Boom generation. Replacing wisdom and knowledge with the measuring of intelligence and facts may facilitate competition, but we lose something in that egocentric trade. While it’s true that some lessons have to be learned by each individual in each generation, it’s not true of all lessons. More importantly, it’s not true of the process of critical thinking itself, where critical thought can compound over time to produce generational benefits. (See also: penicillin; democracy.)
I also don’t think anyone should capitulate to generational opinion simply because a certain percentage of any generation has its fingers in its ears. If that was the right course of action we’d still have segregation in this country. It’s true that a certain percentage of every generation really does want to steal simply for the sake of stealing, but that doesn’t mean we should throw Marian and Luke or anyone else out with the Gen Y bathwater. What we should do is engage in a conversation so we can pass on the benefit of whatever meager wisdom we’ve accrued, while also testing our own assumptions. What’s happening with digital content is new in a very real way, which means we all need to talk this through.
I’ve stated my views on the question of piracy and content theft here and here. I’ve made the case that stealing is stealing: if it’s not yours, and it’s not being given away free, and you end up with it, then you stole it — and that’s true whether it’s a physical object, a digital file, or an idea.
But I also understand that it’s hard to make this case to Gen Y when massive corporations like Google are attempting to steal copyright authority from millions of authors covered by existing law. If Google can simply make a deal with another group (the Authors Guild) which obligates all authors under copyright to opt out of that deal, why can’t Marian make a deal with Luke to borrow his entire CD collection — and implicitly require the recording artists to opt out by imposing effective DRM? More to the point, is Google actually stealing anything when they scan a book and make it available online? Shouldn’t we actually applaud Sergey Brin for preserving the cultural history of Earth from fire and flood?
And speaking of the Amazon/Macmillan knife fight this past weekend, wasn’t Amazon actually stealing control of Macmillan’s products by selling those products at a price lower than Macmillan wanted? And even if they were, wasn’t that good for consumers? Didn’t it make books cheap?
My point here is that making Marian and Luke and Gen Y feel great about themselves because they can walk and chew gum at the same time congratulates them for meeting an absurdly low bar. These are serious people expression serious ideas and opinions. What they want is to be taken seriously, and to demonstrate the ability to think things through, and we should want that for them as well.
Look again at the conversation I had with Luke on his site. Look at the seriousness with which he engaged on the issues. That’s somebody who wants to know, and that’s someone who should be part of this conversation because in ten years Luke may be writing the books our grandchildren read. Or he may be setting public policy. Or leading a fight against a critical erosion of civil rights.
Why should Boomers and Gen Xer’s take the time to do this? Well, if you’re a consumer or consumer advocate, you can help Marian and Luke see that there are useful arguments against DRM that do not excuse theft or piracy as a cultural or generational right. Likewise, if you’re in publishing you can help Marian and Luke see that even though someone like Cory Doctorow is passionate about anti-DRM politics, his reasoning is a fraud.
All of which would mean we could get on with the more important matter of finding a workable solution to the problems of piracy and DRM, as well as address the massive generational transition that is currently clouding both of those issues. I want Marian and Luke not simply to be assertive and confident, I want them to be smart and right and to prove to me that they’re right. I want them, in ten or twenty years, to be able to take apart the charlatans they run across, for their own benefit, for my benefit, and for their benefit of society. But they’re not going to be able to do that if we refuse to engage them on the merits of their ideas.
In the DRM debate the obvious point we need to engage on is the premise stated throughout the above quotes: that copying digital content is not stealing. If Gen Y is wrong, it needs to be proven through argument. If they’re right, the same requirement holds. It’s not enough to just say that theft is inevitable or that it can’t be stopped any more than it’s enough to say that it’s immoral and wrong. Both sides have to argue the case on the merits.
The reason this is important is precisely because these issues have never been dealt with before. Ownership questions regarding digital content and theft are so new as to be without precedent. While applicable laws have been added to the books, those laws, like all new laws, are an opening salvo in what will probably be a long-running legal debate. As with laws that used to exploit or abuse members of minority groups, new laws covering digital content may simply be an attempt by established forces to stop right from trumping wrong. Then again, they may actually protect individual rights and be good for society as a whole.
I think Marian and Luke are interested in being part of the answer to these questions. I don’t think they’re asking for a free pass. When they ask what is being stolen if someone takes possession of a copy of a digital file, they’re asking a serious question. And to their credit I think it’s exactly the right question to ask.
We all agree that stealing a can of beans from a grocery store is theft, for two reasons. First, there’s a can of bean missing from the store. Second, we have a can of beans in our hands that we didn’t pay for. On the other hand, when we copy a digital file the original file is still there, and we don’t actually have a new object in our possession. So what’s actually being stolen?
The problem here is that asking what is being stolen almost compels a response that describes a physical object. It’s the same problem you run into if you try to define right and wrong by asking if anyone got hurt. It implies physical injury or physical loss, yet I think we all agree that PTSD or emotional trauma can be as damaging as a broken arm. Just as someone can be hurt emotionally, economically and in ways other than through physical injury to the body, the theft of digital content may involve stealing things that are not physical objects.
To see why, let’s look at two situations in which, as with digital content, we see no physical object being appropriated. Maybe by looking at non-digital examples we can gain some insight into what a person is being deprived of if we avail ourselves of a copy of their digital content.
First, let’s say you live in an apartment complex. Across the hall your retrograde neighbor still has the local newspaper delivered each morning. You also know that he sleeps until noon. If you get up each morning and take his paper into your house, read it, then carefully reassemble it and put it back in front of his door, was anything stolen?
Second, let’s say you’re a huge RHCP fan. You know they’re playing at a nearby venue, but you don’t have the money for tickets. You gripe to a friend, who says he knows how to sneak in without having to pay. The concert takes place as scheduled, nothing is different except that you and your friend are there. Was anything stolen?
The answer in the first example is that you stole a service you didn’t pay for. The people who made the newspaper and delivered it were paid by your neighbor to make the contents of that paper available to him on a certain schedule. Even though you didn’t disrupt that deal, you profited yourself by not having to pay for delivery. In doing so you not only saved yourself money, you also denied the creators of the paper the right to control their content in a way that they determined, and that’s true even if you would not otherwise have paid to read the paper yourself.
In the second example you stole an experience. Everyone around you had to pay for that experience, but you got it free. You didn’t alter the experience by stealing it, and you didn’t leave with anything in your hand, but in the same way that you denied the newspaper creators the right to control their product, you denied the band the right to control the experience it created.
Are these examples convincing? Maybe, but maybe not. If the assumption is, as Luke first stated, that only objects can be stolen, then neither of these examples holds any weight precisely because they don’t involve the theft of objects. But I think there might be another way to show that they do involve theft.
As is usually the case when downloading digital content, in neither of these instances did you ask anyone for permission first. You had the social approval of your friend when you sneaked into the venue — which is analogous to the social approval provided by content pirates themselves — but you didn’t call the manager of the venue or the band’s manager and ask permission to sneak in, just as you didn’t call your neighbor or the newspaper and ask if it was okay to read the paper without paying for it.
The reason you didn’t do this is because you knew that they would mind, even if you yourself are convinced that you’re not doing anything wrong. Free newspapers and free concerts are announced as such: that’s how you know they’re free. Things that have prices attached to them, whether you agree with those prices or not, are not free. You can steal them — meaning you acquire them at no cost — but you can’t take them and not pay for them and then say you didn’t steal them any more than you can walk into a store filled with physical objects and declare them all free.
And you know this. And you know you know this. And I know you know this.
Which means we’re not only having a conversation about theft, we’re also having a conversation about power. And that’s maybe the most important part of Marian’s post. It’s her declaration that Gen Y can’t be stopped, and she may well be right. At least, I don’t think anyone outside Gen Y can convince Gen Y not to strip the countryside bare.
What I am hopeful of is that Gen Y itself may recognize that there is a long-term cost to redefining content theft as legal, ethical, or even socially acceptable behavior. I’m also hopeful that it will ultimately be members of Gen Y who make this case to their peers. But none of that is going to happen (or happen soon) if we don’t engage the issue first. Today, right now, the obligation is on those people who believe that copying digital files without permission is theft to make that case. To that end the most important thing that can be said about piracy is that it is theft. There can be no equivocation on this point, because equivocation amounts to permission.
What Gen Y needs to be thinking about now, while they have all this power — and they do have an incredible amount of power — is that they are not simply exercising that power today. They are establishing a set of rules that everyone is going to have to live with in the future, and that includes their children. One day, maybe not too far down the road, Marian or Luke will have kids of her own, and those children may decide to create something (and it’s all going to be digital at that point). Maybe they’ll even try to start a small collective of artists and make a go of it in business, but that’s not going to be economically possible if the cultural norm says that copying digital content is not stealing.
Great generations aren’t great because they get away with whatever they can get away with. They’re great because they aspire to more than the minimum standard the law requires. To each member of Gen Y, and to anyone who is wrestling with the question of content piracy, I would simply say that you need to answer this question yourself, and to think about the long-term consequences of the answer you choose.
Don’t pass the buck and let someone else do your thinking for you. Luke isn’t doing that. Marian isn’t. Even the mysterious pirate confessor isn’t. Be your own compass. When civilizations do break down — as we’re seeing now in Haiti — ethics may become relative. But making ethics relative when there is no emergency simply reverses the equation, engineering a breakdown that would otherwise not have taken place.
If a crime is inflicted on you in the forest and no one can hear you scream, it’s still a crime. Even if nobody will ever know that you stole an MP3 or a e-book by downloading it from a website, it should matter that you know. And you should want it to matter, because the only people it really doesn’t matter to are sociopaths and psychopaths.
Doing the right thing takes more guts than flexing your generational biceps or kicking a corrupt corporation in the groin. It’s easy to take something for nothing, and Marian’s right that you can almost certainly get away with it. The odds are long that anything directly punitive will ever happen to you as a result of content theft.
The problem, however, is that you’re not just stealing content and you’re not just stealing from someone else. You’re also stealing from yourself.
— Mark Barrett