Piracy and Stealing

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Arguing is hard.

Even as the only species we know to have discovered the idea, objective discourse doesn't come naturally to humans. Dispassionate discussion of ideas is thwarted by our internal frustration at every turn. And one of the most frustrating parts of arguing is the meta-debate.

We've all had the meta-debate before. It's a superset of the semantic argument: the fight we must win, not to prove our point, but to even be able to talk about it. The argument over what terms and nomenclature should be used in the discussion inevitably precedes the discussion, and often the discussion itself is postponed indefinitely by it.

"Piracy is stealing" is such a meta-argument. Like most meta-arguments, there is a side which believes it to be the argument itself: those who are vehemently against piracy (and potentially there's good reason for everyone to be against piracy, as I shall explain soon), often proceed as though equating piracy to stealing is making a great moral claim, and will defend it as the central tenant of the morality that justifies their argument.

This isn't actually the case. Neither rape nor murder is, strictly speaking, "stealing," yet both are considered morally wrong. Whether piracy is stealing or not has no bearing on when and whether it is moral. Yet a vocal group of anti-piracy activists are insistent on equating piracy to stealing, primarily due to its moral implications.

And certainly, for the majority, calling piracy stealing simplifies the debate. Piracy is stealing, stealing is wrong, therefore piracy is wrong. This is the crux of the meta-rhetorical strength of calling piracy stealing: you can stop the conversation there. You don't have to explain why piracy is wrong if piracy is stealing, because "as we all know," stealing is wrong. Jim Sterling was the first such commentator I heard admit it; that the real motivation in calling piracy stealing was to make pirates "feel" wrong about what they were doing:

We recognize that what they do actually is theft, for no reason other than they don't deserve the dignity of having it called anything else.

Ah, one of those joyous statements that simultaneously shows off the speaker's astuteness, and their political sliminess.

The position is both wrong and poisonous: its real tendency is to shut down argument, not win it, thus exempting anti-piracy rhetoric from intellectual review. It tends toward marketing rather than vetting the stance against piracy. It's the Michael Moore methodology: lying because telling the truth requires placing a bet on your audience's intelligence that you aren't willing to take.

But, I am falling in to the same trap myself. Is piracy stealing? The emotionally uninvested seem to be satisfied that the answer is "no" when presented with the simplest argument: theft deprives the owner of an object, piracy doesn't. It's an old refrain, and it's won all the converts it's going to win. There's really no sense in repeating it anymore.

But, we can go deeper. There are more powerful economic tools with which to discuss piracy, and we can apply them. Furthermore, we can apply them without having to make an argument against piracy. I will do so now, proceeding on the assumption that "intellectual property" is as valid a kind of property as any other, and the property rights thereto deserve just as much respect.

We can build an accurate picture of piracy around the concept of euvoluntary exchange. Euvoluntary exchange, which I may have mentioned in passing before, roughly etymologically translates to "truly voluntary exchange," which is an exchange in which absolutely every party concerned is a truly voluntary participant. While I won't go too far into the ideas around euvoluntary exchange (go ahead and click the link if you like), the theory that generally accompanies it is that euvoluntary exchange is always just. I'll leave proving that to the professionals (again, go ahead and click the link).

The criteria for proving an exchange is euvoluntary is simple (taken from the link above):

  1. Conventional ownership.
  2. Conventional capacity to buy/sell.
  3. Absence of regret.
  4. No uncompensated externalities.
  5. Neither party coerced by human agency.
  6. Neither party coerced by circumstance; the disparity in BATNAs is not "too large"

One and two are fairly intuitive. Three is a bit strange: we're using the decision-theory definition of regret, which is more precise than the intuitive one, and generally means that the thing we got wasn't as good as we had assumed when we made our decision. Four is going to be important, and means that if anyone other than the two people engaging in the exchange was somehow made worse off by it, they must be compensated (this is why slave trading is not euvoluntary; the slave doesn't really get much out of it). Five is obvious again; it's only euvoluntary if nobody held anyone at gunpoint. Six is probably the most complicated to explain, but we won't have much need of it here, so I'll simply leave it off.1

If euvoluntary exchange is always just, then for piracy to be wrong it has to break one of the rules above. However, for piracy to be stealing, it has to break the same rule that stealing breaks, in the same way. This is where the argument that piracy is stealing breaks down, because, as I will show, stealing is a coerced transaction and piracy is a transaction with an uncompensated externality. It's a rule five violation versus a rule four violation.

Stealing as a coercive transaction is simplest seen in a gunpoint robbery: you're being forced to "sell" your goods for no compensation. It's a bit fuzzier if we look at a cat burglar or pickpocket, who simply takes your possessions while you're unaware or sleeping, but we can stretch our definition of coercion to cover these without stretching it too far: you're being deprived of your right to evaluate the transaction and make a personal decision. If we take the middle case of a person drugging you, and then politely asking for you wallet, the connection is perhaps more intuitive. We could also establish coercion as "the opposite of consent," and borrow our definition from sexual assault law: you can't consent while drunk, you can't consent while asleep, and you can't consent while unaware of the other person's presence. You are coerced in all of these cases.

Piracy is, of course, more fickle to pin down. Let's analyze each stage of the transaction. We'll use the case of a physical DVD (season three of Teletubbies perhaps) as our example. Finding any oddities that emerge when we apply our model to pure digital distribution can be left as an exercise for the reader.

First, the purchase. We enter our local gadget warehouse, and, drawn to the peculiar foam-rubber gravitas of Tinkiewinkie &co, we purchase and take home our copy of Teletubbies Season Three. It's the most typical economic transaction in our whole scenario, and yet thanks to the mess that is IP debate, we're already in some euvoluntary trouble.

The question that arises is this: do we own the DVD? Some people on the freedom of information side of the argument have argued no; since we are unable to make copies or use the DVD as we see fit, we don't actually have conventional ownership of the DVD. This seems to violate rule two, since the store was not really able to "sell" us the DVD, in that they could not actually establish our ownership of it.

This is a bit of a mess, and fortunately it's specious. Restrictions on use of objects hasn't historically been considered to compromise our ownership of them. Outlawing murder doesn't lessen your ownership of a gun, or a knife. Noise ordinances don't lessen your ownership of your stereo or ridiculous car. Ownership and freedom of use are separate concerns. It's possible that we'd want to re-evaluate this in the light of specific extensions of copyright law, but we're interested in the general case today, and at any rate I don't foresee a lack of conventional ownership or capacity to buy and sell as frequently being the simplest way to discuss a clash between IP and euvoluntary justice, even if it does become applicable.

Now let's move to phase two of our transaction: for presumably archival purposes, you burn a copy of your Teletubbies DVD. While it may have changed, U.S. IP law did at one time recognize your right to make your own copies. Euvoluntary exchange isn't going to easily talk about this action anyway (nothing is exchanged, euvoluntarily or otherwise), so I think we can safely call this fair.

Finally, the act itself: you give one of the DVDs to your friend, the weary parent of a wayward toddler who's young life is crying out for some fluffy, primary-colored guidance. Let's run down the list:

  • We established at the original sale that you now have conventional ownership of the original DVD. Giving either one to your friend constitutes piracy, so we can assume you give her the original, which we've already established you own.
  • We get sticky with two again, since it's arguable that the effect of IP law is to interfere with your capacity to sell. However, we're interested here in the moral structure implied by IP law, not the law itself, so we'll allow that you're as able to "sell" the DVD as anyone.
  • Rule three is easy: you don't regret anything because you still have a copy of the DVD. Your friend doesn't regret anything because nobody regrets bringing the Teletubbies into their life.
  • Let's skip rule four for a second.
  • Rule five seems to check out. You willingly gave the DVD to a willing recipient.
  • Since I haven't defined it, I'll ask you to trust me that rule six is probably not violated in the general case.

So the exchange is very nearly euvoluntary. Moreover it is not coercive, and thus not stealing.

But, we left out rule four, for a very good reason. The argument against piracy states that by making this exchange, you deprive the original creator of potential money. The two participants are both happy and justly served, but a third party is worse off. That, if we believe it, is an uncompensated externality.

Intellectual property, which I stated before I will treat as a valid form of property for this exercise, is not stolen by piracy. It is only damaged by it. The value of intellectual property is tied to the value of selling copies, and that value goes down when you soak up the market with pirated copies. I've likened piracy to vandalism rather than stealing before, in an effort to placate some opponents. It hasn't taken, and in our new euvoluntary model I'm not sure if it's as powerful as it seemed, but it's certainly a better fit than theft.

And so we finally arrive at the real stickiness of the IP debate. The trouble for us now is that we haven't sufficiently defined externalities, and thus a clever person might make them appear everywhere. If a racist couple lives in a suburb, and a black man buys a house next to them, does his transaction with the realtor contain an uncompensated externality? If a new business opens up and competes with other similar services in the area, do all of that businesses transactions produce uncompensated externalites by reducing the market share of the incumbents? Silliness to be sure, and also possibly my fault, since I haven't even begun to dig in to prior work in defining what externalities are admissible under what circumstances. Will a firmer model of externalities squash all subjectivity, or will the debate rage on? And if our understanding of externality does become complete, will it vet IP law or crush it?

We seem to have just now truly begun to think about piracy, and we are able to do so only by discarding a three-word argument that was designed to end the discussion entirely. This is the frustration of meta-debate: we have to defeat our opponents just to get them to begin the actual conversation with us.

  1. We could technically just use the economic definition of "voluntary exchange," which leaves off item six. I stick with euvoluntary because voluntary exchange doesn't line up with our colloquial understanding of the word "voluntary," which tends to include only item five and nothing else (for example, "voluntary manslaughter" isn't voluntary in an economic sense). With euvoluntary exchange, you get one new word and one new concept, and there's less internal confusion. 

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