Is illegal downloading really stealing?

MANY millions of people throughout the world will illegally download the fifth season of Game Of Thrones, released today by HBO. Legally speaking, what they will be doing is a violation of intellectual property rights, or "piracy". But will they be doing anything morally wrong?

It might seem obvious that it is wrong. After all, it is illegal. But there are many things that have been illegal that people do not think are morally wrong. Same-sex relationships, divorce and many other practices that are now widely accepted as morally acceptable were once outlawed and criminally sanctioned.

Few people thought they were wrong just before these were legalised. Rather, they tended to think that the laws governing these behaviours were unjust. So appealing only to the illegality of downloading does not settle the question of whether it is okay, morally speaking.

Two rival camps dominate public discussion on the ethics of illegal downloading. On the one hand, there are what might be called "fundamentalist libertarians". These think that all ideas and artistic creations should be held in common and be freely accessible to all.

In their view, intellectual property, in the form of copyright and patents, unfairly restricts access to ideas and expression. They consider illegal downloading to be a victimless crime and do not think it imposes significant cost on anyone. In their view, the serious criminal sanctions that are sometimes attached to illegal downloading are draconian and unjustified.

On the other hand, there are what might be called the "fundamentalist protectors". This camp thinks that illegal downloading is equivalent to common theft.

According to fundamentalist protectors, owners of intellectual property deserve just as much protection and means for redress as those who have had their handbags or television sets stolen, including civil and criminal sanctions against those who have violated their intellectual property.

For them, the serious penalties are important because they send a clear message that this practice should not be tolerated.

This seems to be the view of much of the entertainment industry, as well as public officials and legislatures in countries that produce a lot of intellectual property.

Despite their currency, both of these positions are overdrawn and seem at odds with moral common sense. The fundamentalist-protector position is problematic because there are clear and morally relevant differences between stealing someone's handbag and illegally downloading a television series.

In common theft, the owner of the property is entirely deprived of its use, as well as his ability to share it and dispose of it as he chooses. Common theft is a zero-sum game: When I steal your handbag, my gain is your loss.

The same is not true when I download a digital file of your copyrighted property. In downloading your film, I have not excluded you from its use or your ability to benefit from it. I have simply circumvented your ability to exclude me from its use. To draw an analogy, this seems more like trespassing on your land than taking your land away from you.

Criminal sanctions seem warranted in thefts where one person's gain is very clearly another person's loss. But things are not so clear when the relationship between gain and loss is more complex.

And, of course, there are ways that owners of intellectual property can gain, overall, from infringements of their rights. The more accessible their products become, the more people may want to consume them. This certainly seems to be the case with products like Game Of Thrones, a fact recognised by its producers.

On the other hand, the fundamentalist-libertarian position is problematic because it treats all intellectual property infringement as a victimless crime. For one thing, intellectual property rights are an important means by which people gain profit from the effort they put into the production of creative works.

That they can profit in this way provides an important incentive for them to engage in socially useful productive activity.

This is evident in other fields, such as the research and development of medical treatments: Firms have little reason to invest resources in developing vaccines and other goods if they cannot benefit from their distribution.

Thus, not protecting the rights of the producers in some meaningful way is bad for everyone. Infringing those rights can also affect those who do pay for the products, in the form of higher prices. Those who pay for intellectual property are effectively subsidising its use by those who do not. In most cases, this seems unfair.

The question of the morality of illegal downloading is so difficult because it takes place in an environment in which the penalties attached to this behaviour ordinarily seem to be overkill, but where there are pretty clear social costs to be engaging in it.

What, then, should be done?

For starters, it seems important to stop treating intellectual property infringement as common theft, and to develop different legal remedies for its protection. Various kinds of property warrant different forms of protection. This is hardly a novel idea.

Prior to the 20th century, different rules applied to different offences, and intangible forms of property, like intellectual property, were not included in theft law at all. We may need to return to rules suited to protecting different forms of property.

In the meantime, it seems incumbent on consumers to try to respect intellectual property rights unless doing so imposes unreasonable cost on them.

Refraining from accessing patented essential medicines that are inaccessible due to price does seem unduly costly. Refraining from watching Game Of Thrones, the ardour of its fans notwithstanding, does not.

At the same time, we should strongly resist the massive penalties levied on downloaders when they are caught. The practice of "speculative invoicing", whereby people are sent letters that offer the opportunity to pay a sum to prevent legal action seeking vast sums, is seriously objectionable.

Even if what the downloaders have done is wrong, it is much worse to overpunish them.

This article was first published on Apr 14, 2015.
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