[onlawschool]

The file-sharing/theft analogy is a fairly sound one. If I steal tangible property--say, a pack of gum--very few people would argue that my decision to do so was ethically defensible. Given that intangible property--say, a song--may be much more expensive to produce and arguably adds much more social value for having been created, why should we treat intangible property any differently?

Lets keep analogizing...

Like the manufacturer of the pack of gum, the song's creator has invested time and money into the development, production, and distribution of that product. And like the gum, the song has some intrinsic value (or else why would I take the time to download and listen to it?). Why should I be able to realize that value for my benefit without compensating the person responsible for its creation any more than I should be able to enjoy a delicious pack of bazooka joe without ponying up to the candy store?

One might argue that the ability to reproduce the digital download without imposing any cost on the creator of the intellectual property differentiates the intangible from the tangible. If my friend has 10 apples for sale at $1 a piece and I eat one while he isn't looking, he now only has 9 apples that he can sell, limiting his maximum gross revenue to $9. This feels wrong because the product is tangible & the loss quantifiable. On the other hand, if my other friend records a digital video that she is selling and I download it for free, she can still sell 10 more copies of the song and earn $10. However, had I paid for the download, she would have $11 rather than $10.

In each case, my unauthorized consumption left the person who had spent their own resources (both human and capital) with $1 less at the end of the day.

I might try and justify having downloaded the video for free by telling myself that my illicit consumption whet my appetite for her films, making me more likely to make purchases from her in the future. However, the same could be said for the juicy apple that I took from my other friend. Perhaps because I stole my first apple I will now come back and patronize his fruit stand regularly. Ultimately he will sell more fruit because of my indiscriminate apple theft, yet my original sin still feels unethical. As well it should.

When Curebit allegedly violated the intellectual property rights of 37 Signals, they suffered quite the backlash here on HN (http://news.ycombinator.com/item?id=3523024).

Of course, it is easy to distinguish between downloading someone's intellectual property for personal use and misrepresenting another's intellectual property as your own, especially for commercial purposes. Yet, at their core, both acts simply represent varying degrees of the same unethical behavior.

Like it or not, your gain, whether tangible or intangible, comes at the expense of the counter-party to the would-be transaction. Further, if enough people felt justified in their apple theft, it would be harder to find a decent fruit stand. Fruit vendors would close up shop or begin selling cheaper, lower-quality apples in order to minimize their losses to theft. Similarly, if enough people feel as though misappropriating intellectual property is acceptable, it is much more difficult for creators of such to continue to afford create.

The ability to monetize one's work, whether it be apple mongering or song writing, incentivizes and finances the production and distribution of higher quality apples and songs. Remove those incentives and both the artist and the entrepreneur will ultimately be unable to sustain their efforts in the long-run.

[csallen]

Thanks for the post. I find myself both agreeing with some of your points, but disagreeing with the way you've chosen to frame the debate:

  I agree that:
    - theft necessarily deprives the victim of property
    - an of act copyright infringement *can* adversely affect the victim
    - copyright gives many people an incentive to create art
    - some artists support themselves entirely via profits from copyright
  I disagree that:
    - copyrighted material is the equivalent of property
    - copyright infringement *ever* deprives the victim of property
    - an act of copyright infringement necessarily affects the victim adversely
    - copyright infringement today noticeably harms the progress of the arts

Your view -- that copyrights make an author's work the "property" of that author -- is extremely common. Given the historical evidence, however, I believe that view is completely at odds with the purposes of copyright (in the US, at least). In the words of Thomas Jefferson:

  "Inventions then cannot, in nature, be a subject of property. Society may give
  an exclusive right to the profits arising from them, as an encouragement to men
  to pursue ideas..."

Our copyright laws do not treat words, ideas, thoughts, etc as property that can be owned. They simply give artists exclusive rights to how their creations can be used: copied, sold, displayed, performed, etc. Infringing upon someone's copyrighted work by performing it without permission, for example, is therefore not the same as theft. Even the Supreme Court of the United States agrees: "...interference with copyright does not easily equate with theft, conversion, or fraud."

This technical/legal difference translates into a moral difference, because it necessarily changes the way you view the issue. The Constitution's framers consistently espoused that speech, ideas, and invention should be free, and that copyright is an exception to this freedom. It was created solely to provide incentives for creation, not because it's "morally necessity" to compensate authors. If anything, it was viewed a moral wrong, allowed only because of the incentives it created. More quotes:

  "That ideas should freely spread from one to another over the globe, for the
  moral and mutual instruction of man, and improvement of his condition, seems to
  have been peculiarly and benevolently designed by nature... Society may give an
  exclusive right to the profits arising from them, as an encouragement to men to
  pursue ideas which may produce utility, but this may or may not be done,
  according to the will and convenience of the society, without claim or complaint
  from anybody... generally speaking, other nations have thought that these
  monopolies produce more embarrassment than advantage to society"
  -- Thomas Jefferson

  "That, as we enjoy great advantages from the inventions of others, we should be
  glad of an opportunity to serve others by any invention of ours; and this we
  should do freely and generously."
  --Benjamin Franklin

So copyright infringement is certainly not the equivalent of theft. All that said, you may claim that it remains immoral because it decreases artistic incentives, and in doing so hinders the progress of the arts and sciences. If you were to say that, I would agree with you completely. However, today we've expanded the umbrella of what qualifies as an "infringement" much too far.

Original copyright law focused almost exclusively on profits. Works could be shared, read, performed, displayed, etc, as long as it was done in private and for free. Only for-profit public uses of a work required permission from the author. The point was not to force everyone who enjoyed your work to pay, but to ensure that you had a monopoly. In other words, to ensure that no one could compete with you financially. For example, another artist using your work and selling it.

Today, things are different. We have the internet, CD copying, file sharing, etc. These allow people to enjoy share and enjoy artistic works freely and privately. It's not the same as, say, copying 1000 VHS tapes and selling them to passersby on the street.

So when the record labels lobby Congress to make file-sharing illegal, because now they only make $10billion a year instead of $14billion, that's a perversion of copyright law. That's what's immoral. Copyright law doesn't exist to guarantee middlemen insane profits. Nor does it exist to control what citizens do for free in their own homes, whether or not that activity ultimately affects artistic profits. It exists to provide sufficient incentives, and that's it.

The ONLY argument for the immorality of piracy must revolve around whether it is actually harmful to the progress of the arts. My question to you is this: Has the rampant file-sharing made possible by the internet harmed artistic or scientific progress? Are books and movies and plays and inventions disappearing? Is the current state of things unsustainable? Most certainly not. If anything, the opposite is true: sharing on the internet has only spurred the creation of new arts and invention by creating a bigger and more easily-accessible market than has ever existed.

The question can also be presented in reverse: Has the repeated extension of copyright terms, lobbied for by giant content companies, helped the arts? When oure forefathers created copyright law, it lasted a maximum of 28 years. Today it lasts for an entire lifetime PLUS 70 years. Entire decades worth of movies, books, music, etc are being lost, as they remain under the control of copyright owners who have abandoned them because they are no longer profitable. The public could have and would have maintained them and improved upon them. But instead, we have to watch them rot. I'll finish with this quote, from a court case in 1821:

  "While one great object was, by holding out a reasonable reward to inventors, and
  giving them an exclusive right to their inventions for a limited period, to
  stimulate the efforts of genius; the main object was `to promote the progress of
  science and useful arts;' and this could be done best, by giving the public at
  large a right to make, construct, use, and vend the thing invented, at as early a 
  period as possible, having a due regard to the rights of the inventor. If an
  inventor should be permitted to hold back from the knowledge of the public the
  secrets of his invention; if he should for a long period of years retain the
  monopoly, and make, and sell his invention publicly, and thus gather the whole
  profits of it, relying upon his superior skill and knowledge of the structure;
  and then, and then only, when the danger of competition should force him to
  secure the exclusive right, he should be allowed to take out a patent, and thus
  exclude the public from any farther use than what should be derived under it
  during his fourteen years; it would materially retard the progress of science and  
  the useful arts, and give a premium to those, who should be least prompt to
  communicate their discoveries."