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
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
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
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
- Conventional ownership.
- Conventional capacity to buy/sell.
- Absence of regret.
- No uncompensated externalities.
- Neither party coerced by human agency.
- Neither party coerced by circumstance; the disparity in BATNAs is not "too
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
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
- 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
- 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
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
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.