In Defense of Pirates (reposted from Techdirt)

I’m an infrequent commenter on Techdirt, and my replies there occasionally get rather long-winded. One particular reply, to this post, got long enough that I feel it’s worthy of a post all by itself. So, without further ado, In defense of pirates:

There is an idea that, in my opinion, is very important in any discussion of copyright/patent/IP. The idea is this: “Content creators deserve to get paid for each and every use of their content”. Whether that content is a song, a program, a design, or any other kind of information, the idea is that the maker of that information has a right to be rewarded for every use of that information.

This idea appeals to our notions of fairness, especially when you consider an analogous physical situation: the skilled craftsman, whom I will call “maker” because I’m a Doctorow fanboy. A very good maker has the power to make something that no one else can make, like a Stradivarius violin, and there’s no way to get a violin like that without either buying it from Stradivarius or buying it from someone else who bought one… or stealing it, of course, but we have ways of preventing theft. The point is that the maker has total control of how many copies there are of what they sell, and whenever you see a copy in the wild, you can safely assume that the maker got paid for it.

Moving back to the realm of information, we still have skilled makers, making patterns of information that no one else could have made. We value what they make, and we want them to be rewarded, just as the physical makers are rewarded… and the information makers want to get paid, so our interests line up. So far, so good.

But now we run into trouble: information, unlike physical goods, is very easy to copy. It may take a genius to write a good book, but any common scribe can copy it. And then there are the copy machines. In fact, go take a look at all the books you own, and tell me: how many of them are copies? In my case, the answer is: all of them. I don’t own any original manuscripts (unless you count my own writings, but I don’t consider my jumbled piles of scribblings to be books). If I want to read something by, say, Edgar Allen Poe, I don’t have to ask Poe to write me a fresh copy, nor do I have to deprive anyone else of their copy. I just need someone who’ll let me make a copy of their copy. And whenever I see a copy of Poe’s work in the wild, I can usually assume that Poe wasn’t paid for it, since the vast majority of existing copies (including the one on my hard drive) were made long after his death!

Now, this offends our notions of fairness! “How can someone get something for free? Someone had to have lost something!”, we think. And so we call copying “theft of intellectual property” or “piracy”, because it feels like something got stolen. But this is wrong. Nothing has been stolen. No one’s purloined a violin. Neither the maker nor the customers have lost anything when one customer makes their own copies and gives them away.

Now this is the point in the discussion where pro-copyright folks bring up sunk costs. It takes time, talent, and energy to make good content, just as it does to make a good violin. Surely the content deserves some protection, yes? But wait! Somebody moved the goalposts. “Sunk costs” didn’t even come up when we were discussing the Stradivarius. Why bring them up now?

But more generally, sunk costs are irrelevant, for 2 reasons:
1. There is no direct relation between sunk costs and quality. There’s a lot of literature on this subject, but here’s my favorite piece of evidence: going by official records, the most expensive film in history was Spider-Man 3. Whether you count inflation or not, that’s the top. Worth the investment? I didn’t think so.
2. There is no end to the amount of monopoly that we can justify by appealing to fixed costs. We could even justify slavery (The landowners put a lot of time and money into raising those negroes, so don’t they have a natural right to claim the product of the negroes’ labor?). Unless we’re trying to justify the total state, we need to do better than to appeal to costs.

In fact, let me harp on that second point some more. Sunk costs were the justification for DRM. And what is DRM? It is the loss of control of your own computer. It invades your privacy and takes over your property. Snowden’s leaks are only the latest reminder of how dangerous this sort of thing is. Crooks and elites are all too eager to gain control of our lives, and we shouldn’t be giving them any opportunity to do so. That’s why DRM is inherently bad (Why, Mozilla? Why?). I won’t let anyone try to justify it with a sob story of how much it costs to make good cinema.

Now then, if DRM can’t be justified on the basis of sunk costs, what can be justified? For the effects of copyright are in need of justification.

Remember the central idea, that content creators deserve to get paid for each and every use of their content (or at least, for every copy). The practical effect of this is to deny customers their freedom to communicate. They must either report to the creator for every copy they make and submit to a fine, or they must refrain from copying at all. This is a broad prior restraint on speech and press. Is it justified?

It gets worse. All manner of communication goes on in private, and all of it is potentially full of illicit copies. If we want to pay the creators for every copy, we’ll have to either revoke the right to privacy in order to track down the copies, or we’ll have to pass a blanket tax on private communication (in effect, assume that all people are guilty and punish them in advance). The current U.S. legal system has both the loss of privacy and the punitive tax. Are either of these justified?

In summary, the idea of getting paid for every copy is nice, but there’s no way to implement it without compromising or abandoning other nice ideas, such as free speech, privacy, presumption of innocence, and secure ownership of personal property. That’s a lot to give up, and for very questionable benefits, too.

That’s why I have no qualms with “piracy”, and I refuse to condemn the file-sharers. Not because they’re heroic or anything like that, but just because they’re doing nothing wrong. Copying, sharing, and ruining people’s business plans are natural human activities, and no one has any business trying to outlaw them.

P.S. Given the opportunity, I would download a car. Wouldn’t you?