The Ethics of Internet Piracy

As someone who occasionally has not fully respected the Intellectual Property Rights (IPS) of content producers and providers, I feel I can offer an insider's perspective on the intense debate over censorship and piracy that led last week to the defeat of anti-piracy legislation in the U.S.  In one sense, it was a battle between behemoths: the music and movie conglomerates, threatened by the loss of ticket, DVD and CD sales, against the major gatekeepers of the internet, Google and Wikipedia foremost among them, who believed the proposed bills would introduce government censorship.

Among my friends have been numerous writers and musicians who make their living by selling their creativity to the public.  Replication of original work has been a possibility, and hence a threat, ever since the invention and widespread use of photography, copy machines and sound duplication devices.  In Vietnam and Cambodia I've seen children selling poorly-copied reproductions of bestselling books on street corners.  Counterfeit DVDs and CDs are on sale at sidewalk stalls everywhere tourists and Thais gather in Bangkok.  This also goes for fake Prada and Gucci items.  Somewhere a designer, singer and author are being short-changed by these criminal replicators.

Then there are the poor students and other cheapskates who have become accustomed to the internet and all its offerings being free.  Digital items are insubstantial, ethereal.  My copying of anything digital, from a photo to a pdf article or a selection of megabytes that constitutes a book or movie, is effortless, an instant of shoplifting that goes unnoticed in the grand scheme of things.  The problem comes when I download a book that I might have bought at the neighborhood store (or Amazon), or I grab a new CD or song at a BitTorrent site online that I might have purchased from iTunes or one of the few music outlets still surviving.  Copying becomes theft when it precludes a physical purchase, thus denying its creators their livelihood.  You might also argue that piracy contributes to the decline of bricks-and-mortar stores if the legal online megasellers had not already done that.

When I moved at 13 to California, the first friend I made in junior high school took me to the downtown area one Saturday where we browsed comic books at a cigar and news store (a type of retailer that has gone the way of the Dodo bird).  Paul was a man of the world and he stuffed a comic in his pants and strolled toward the door.  "Hey you!" shouted the clerk, and gave chase.  Appalled and fascinated, I ran alongside Paul until we outdistanced the man.  In high school I was always too scared to shoplift but I knew girls that stole cosmetics and boys that took 45rpm records from Woolworth's.  Years later, I was in a bookstore in Berkeley with the woman who was to become my second wife.  She took a hardback copy of Andre Codrescu's autobiography, The Life & Times of an Involuntary Genius, and stuck it in her purse.  Again, I was appalled and fascinated by the willfulness it takes to steal.  A little later, at the KPFA studios where Codrescu was doing an interview with my friend Pat, we showed him our trophy and he was duly impressed.  It was not long after Abbie Hoffman had written Steal This Book, a title which I'm sure did not make the publisher happy.

While working in the music business in the 1970s, I encouraged established photographers to take pictures of our artists and sell them to magazines and newspapers.  The enfant terriblé Jim Marshall used to drop by my office to look through my collection of books and magazines to see if anyone had used his highly regarded photographs without permission.  It was rumored that Marshall carried a gun which he had once used to someone's regret.  He was always cordial to me, and I hired him one year, all expenses paid, to take photos at Willie Nelson's 4th of July picnic. A few years later, when I was art director at Guitar Player, a photo came from the Grateful Dead's office for a story on Jerry Garcia and I used it, assuming that Marshall had been paid.  Apparently not.  When the issue was published, he called me and screamed for an hour, threatening to blow my head off.  At the record company, I often paid photographers a flat fee for publicity photos which would then be reprinted widely in connection with record reviews and interviews.  Each use, of course, meant less of a market for the photographer's original work.

Internet piracy is called theft, but it's the possible future lost sale that constitutes the loss since copying diminishes nothing.  If I copy a CD that I borrowed from the library, I add to the items in the world.  The library doesn't suffer.  My brazen girlfriend's theft of the book damaged the store by depleting its inventory, just as Woolworth's suffered from the raids by teen shoplifters on their stocks of cosmetics and records.  Codrescu could care less that his royalty statement would be shortened.  If she taken it out of the library and loaned it to me to read after finishing it, that would not constitute theft even though it means that I would not buy the book.  Confusion and contradictions abound over exactly what is theft when it comes to replicated products that were mass produced.

The historian in me cannot help but point out that in the 19th century, French anarchist Pierre-Joseph Prudhon claimed that "property is theft," which is an interesting way to looking at the todays charges that the piracy of intellectual property is theft.  And he was preceded by Jean-Jacques Rousseau who wrote,

The first man who, having enclosed a piece of ground, bethought himself of saying 'This is mine,' and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody. 

Ownership is a modern concept.  Claiming authorship or of being the creator of words and notes for a piece of music parallels the the period of patronage when royalty basked in the glow of the artists they supported.  The rise of capitalism promoted individualism over community (and anonymity) and there were few creators who did not want to be remember by posterity.

The invention of photography was a disaster for portrait artists and painters renowned for their realistic works of art.  The camera could reproduce reality more faithfully.  So artists turned to more abstract themes in order to depict meaning from within rather than merely represent the external world.  Recording companies were threatened by the rise of radio in the 1920s, thinking that no one would buy records if they could hear them for free.  Fifty years later the Sony Walkman made it easy to record and share audio tapes.  Predictions of doom, however, failed to materialize.

The consolidation of content providers has raised different questions.  Huge entertainment and publishing corporations control most of the world's music, movies and books.  They finance and distribute the products of an increasingly homogenized global culture (with significant local variations, such as Korean pop, which is hugely popular throughout Asia but not America and Europe).  The "content producers" (a disagreeable name for creative artists) are often at the bottom of a hierarchy run by lawyers and businessmen (mostly).  It's hard to say how much an illegally downloaded movie, CD or book impacts their livelihood.  If the situation were different, if the writers and musicians could deal directly with their readers and audience, then stealing their work would be more ethically noticeable, and perhaps the idea that everything on the internet should be free would slowly change in the thinking of many consumers.

A new paradigm is needed for artist and audience.  The Occupy movements are showing a growing dissatisfaction with a world controlled by corporations.  Many are rejecting the notion that property takes precedence over people, and ownership over justice.  The concept of "intellectual property" is enormously flawed, allowing agribusiness to patent seeds developed over centuries and pharmaceutical companies to patent the gene sequences of indigenous people without their knowledge.  It was designed by corporations to maximize profit.

Musicians and writers must extricate themselves from this system which epitomizes the destructiveness of the global economy.  Both Amazon and Apple, through its iBooks program, have announced ways for writers to produce their own books and sell them online.  While both large companies must be treated with suspicion, the idea of creators taking at least some initiative and control is a good one.  Many musicians, including some like Radiohead, are learning how to use the internet to reach their listeners directly, cutting out the established music provider.  Music companies, like newspapers, will cease to exist in their present form.  YouTube has made it possible for film artists to reach a wider public and I'm sure high speed internet connections will allow filmmakers eventually to promote their creations outside of the corporate studio and distribution systems.

Internet piracy does not usually conjure up an image of Jack Sparrow in the Caribbean. But if I'm correct, the destruction of the old system of linking creators with their audience will pave the way for something new, just as capitalism did when it destroyed the old patronage system which funded composers and artists for centuries.  Rather than focus on the unethical counterfeiters in Asia, duplicating blockbuster movies on DVD and CDs by hit singles artists, we should think of the thousands of interested computer users who currently are illegally downloading movies, books and music as primed and ready to communicate directly with internet artists.

(For a more critical look at piracy, read Danny Goldberg's essay, "Kill the Internet -- and other anti-SOPA Myths," in The Nation.  He spent many years in the music industry after I left.)