Is ‘piracy’ theft? A response to Mike LaBossiere

Over at Talking Philosophy, Mike LaBossiere asks the question “Is piracy theft?” My immediate response is no and my reasoning is very similar to that of Markus Persson, who LaBossiere mentions in his post:

Normally one would expect that a commercial computer game developer would be opposed to the piracy of software. However, Minecraft creator Markus Persson’s stated that “piracy is not theft” at the Game Developers Conference.

Persson’s argument is exactly the sort that I have seen in student papers for years: “Piracy is not theft. If you steal a car, the original is lost. If you copy a game, there are simply more of them in the world.”

This is, of course, a compelling argument. It is also why I dislike using the term ‘piracy’ in relation to copying or sharing music and software. Piracy, after all, connotates Somali renegades raiding ships and taking hostages. In these instances (as with all cases of actual theft) a person is denied use of their legitimately acquired property. When software and music are ‘pirated’, however, the original owner still has his or her property.

But LaBossiere poses an objection:

If this is pushed, it might be taken as applying to identity piracy and pirating credit card numbers. After all, if someone pirates your identity or your credit card number, you still possess both. The pirate is merely using what they have pirated, just as the pirate merely uses the pirated software. As such, copying your identity or your credit card number would be piracy rather than theft.

On the face of it, this does seem like an absurd result. If it does really follow from Persson’s principle, then it would show that his principle is flawed. Unless, of course, this result does not follow or it does an one bites the bullet and accepts the results.

I disagree. Or rather, I do not believe that this conclusion necessarily follows. Even if it does, there is a flaw. Let me explain.

‘Pirating’ a credit card number – taken in this context, similar to pirating software, as meaning merely copying the digital information – is not necessarily wrong. As LaBossiere says, the person is still in possession of his credit card. But this argument falls apart once that information is actually used.

Theft occurs if the person who copied the information uses the credit card number to make purchases. In effect, they are stealing available credit from the card holder, who now no longer possesses that credit. More importantly, perhaps, they are stealing the credit card owners future labor because he will have to pay off the debt that the theft created.

The same argument could be made for identity theft. After all, I know other people’s social security numbers; but, that knowledge is not identity theft unless I use that information for nefarious purposes like obtaining credit in one of those person’s names.

The argument for those who believe piracy is theft then becomes something like, “Well, the pirates are stealing something from the original software publisher. They are stealing sells.”

“Stealing sells,” though, is not always unjust. Take, for instance, a case where software publisher A offers a comparable product at a cheaper price than software publisher B. It could be argued that software publisher A is stealing sells from software publisher B. Yet, it would be difficult to argue that this is unjust. Therefore, it seems that there are at least some cases where “stealing sells” is just and some cases where it is unjust.

For an unjust case, LaBossiere posits a scenario where someone maliciously spreads rumors that a vegetarian company is putting goat testicles in their food. This could lead to lost sells and it certainly is unjust. However, it is unjust because the vegetarian company was slandered. This is not entirely analogous to pirating software, but it does show that there are some ways that losing sells can be seen as unjust.

LaBossiere then claims that piracy is a case where the lost sales would be unjust:

Piracy certainly seems to be a situation in which revenue is lost via means that are unjust. After all, if I buy Starcraft II rather than a competitor because Strarcraft II is a better game, then that is hardly unjust. However, if I do not buy the competitor because I have pirated it, that seems to be a rather different sort of scenario. Blizzard has the right to compete, but I can hardly claim that I have a right to copy software.

He is right, of course, that pirating software is “a rather different sort of scenario.” This is obvious. But it does not logically follow that pirating software is also unjust.

To illustrate the supposed unjustness he attempts an analogy:

That this is so can be seen in the following analogy involving a test. One way to do well on a test is to “pay” an honest price by going to class and studying. Another way is to simply copy the answers off the person who actually attended class and studies. Obviously, the person copying is not stealing answers in the sense of removing them from the original test, but they have no right to those answers and it would be quite right to prevent them from doing so and punishing them. It would also make sense to regard them as stealing-after all, they are taking what they have not earned. Likewise for pirates.

There is a problem with this analogy. For me, at least, cheating on a test is not wrong because the cheater is “stealing” answers. The underlying moral principle here is, instead, fraud. The student is indeed defrauding the professor by inherently asserting that he arrived at the answers on his own. Moreover, if that student manages to obtain a degree, he is defrauding his future employer who expects that he obtained the degree by following the universities code of conduct, which presumable would not allow for cheating.

In the case of copying software there is no fraud committed. That is unless the pirate is distributing the software in a manner that suggests that the original publisher approved. For instance, if the Starcraft II pirate posted his ‘pirated’ copy of the game online with a message saying, “this is an officially licensed copy of the game approved by Blizzard,” then it would clearly be a case of fraud. Or, if the pirate distributed the game with packaging and a CD label that suggests that it is an official version of the game it would also be fraudulent, unless the consumer were explicitly told that it were an unauthorized version. When a game is downloaded on a torrent site, however, there is no expectation that it is an official version and therefore there is no fraud.

For more, check out the fantastic book Against Intellectual Monopoly

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Tagged as: Copyright, Ethics, Intellectual property, Law, Philosophy, Piracy