A correspondent on the Ethics Scoreboard Forum who described himself as an ethicist referred the Scoreboard to his blogged arguments that file-sharing…acquiring copyrighted music over the internet without paying for it…was ethical. After reviewing the longer of two articles he referenced, the Scoreboard offers the following response:

Dear File-Sharer:

When I first read your post on the Forum, my written response was that I had yet to see an ethical analysis that supported file-sharing, and that I was eager to read your essay on the topic. Now that I have read your piece, I am absolutely convinced: I still haven’t seen an ethical analysis that supported file-sharing. What you have provided is a self-serving and breath-takingly flawed argument that is not grounded in ethics, logic, research, facts, common sense, or even accurate observations.

[Before I expand on all this, I have to inject a comment. You referred to yourself in your message as “an ethicist.” That’s a bit of a stretch, don’t you think? You are 20 years old, according to your blog, and presumably a student. There is no evidence that you teach ethics, have been published on the topic (other than your own blog), lecture on ethics or have ever been paid a penny to render an ethical analysis of anything. This doesn’t affect the validity of your analysis…it is what it is…but honestly, referring to yourself as “an ethicist,” which is a profession, is a bit like saying you’re “a dog breeder” because your Golden Retriever had puppies. Misrepresenting yourself is never a good beginning to an ethics discussion.]

Your essay is entitled “The Ethics of File-Sharing,” though a more accurate title would be, “The Excuses of a File-Sharer.” You state at the beginning that that is indeed what you are, and frankly, it explains a lot. The essay is not a dispassionate and open-minded examination by someone inquiring into the ethical implications of a new behavioral phenomenon. It is a retroactive attempt at justification by someone who has been doing something wrong and fully intends to keep doing so without wanting to invest in the inconvenience of a squawking conscience. In other words, you begin with a personal bias and an interest in the outcome. It shows.

Your essay is divided into ten arguments for the ethical nature of file sharing, four “myths” and six “realities.” I must admit that if I had not agreed to review your article, the first section, “Myth #1: File-sharing is stealing,” would have provoked me to stop reading after the first paragraph.

File-sharing is obviously stealing, and the only way you “prove” that it isn’t is by using a definition of stealing that has no moorings to reality:

“Before the digital age, stealing was cut and dried. If you took something from someone else that you had no right or legitimate reason to take, you were stealing. How could you verify if someone had stolen something from someone else? If the accused had the item and the owner of it did not, then it had been stolen. It was that simple. So when the digital world came around, what changed? The answer is nothing. This is still the way we can tell if something has been stolen. If the owner of the thing still has it, then it obviously hasn’t been stolen.

This description has a teeth-jarring logical pot-hole: it ends up using “the way we tell if something has been stolen” as an element of the act itself. But this is not so. There are many, many situations in which something is stolen but the owner would not necessarily be able to tell that he had been robbed. The owner of well or a stream may never discover that someone is stealing his water: there is still water for his use, and the finite amount of the property is not known. A movie-goer who sneaks into a theater without paying for a ticket has stolen his viewing of the film, yet the film is still available to others and the theater owner may never be aware of the theft. Certainly the film’s investors, the actors and the studio that made it won’t, and they may have lost a portion of the unpaid ticket price. In the case of file sharing, as it happens, there is a valid argument that the owner doesn’t still have what was stolen, which was his right to dictate the terms under which the particular user (the file-sharer) could benefit from his creation. But whether it is the creation that is being stolen or the right to use it, it is still stealing.

Did you consider consulting a dictionary before putting into print your strange definition of stealing? Here’s one legal dictionary’s definition of “theft,” which is the technical term for stealing:

theft n.: the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker’s use (including potential sale).

I see nothing in this definition that says the owner must notice the property stolen is missing or not still have use of it himself. This definition accurately describes file-sharing. So does this one, from Merriam Webster:

theft n.: an unlawful taking of property

Is it stealing if you take my picture off the internet and use it in ads for file-sharing software without paying me or getting my permission? Absolutely, but I still have my boyish good looks. My image is my property no matter how many times it is duplicated and used this way, and taking it is theft. So much, therefore, for this argument of yours:

“…If the owner of the thing still has it, then it obviously hasn’t been stolen. But what if someone else has it that didn’t have it before? The answer is simple: they didn’t steal it, they copied it. It’s a completely different act. It may be unethical for other reasons we shall later discuss, but it is a different act from stealing.”

In order to support your argument, you have simply devised a narrow definition of property that isn’t used in this society…and that’s how we define theft, by what we define as property. What you define as property is factually incorrect. Continuing on from the last paragraph…

…This is clear from the way we view things other than file-sharing in society. For example, in architecture the vast majority of design elements are copied from other locations in history and in the present. Everything from the silverware you eat with to the furniture you sit in to the light bulbs you light your home with has been copied from somewhere. This is the mechanism by which good ideas are spread throughout society. And what about non-physical items, like ideas or methods? Every time you quote a famous person, or teach someone else something that was taught to you, or tell a story that was told to you, you are copying an idea. Again, this is the mechanism by which good ideas are spread, and it’s an act totally unlike stealing…

Ah…so much misinformation, so little time! One can indeed ethically copy from great works of architecture because they are centuries old and the architects are long dead, but use the original design of a living architect and you will find yourself in court, because it’s stealing. If you copy an original Valentino dress for your own use, it’s also stealing: just try wearing it on “the red carpet.” If an artist friend copies an abstract Bruce Gray painting for you to hang in your house, you’ve robbed artist Gray of the proceeds he would receive from a licensed copy or the original; you’ve robbed him. If you are choreographing a professional production of “Grease” and use Patricia Birch’s choreography without her permission, you have stolen it, and she will get a court judgement against you for its value.

As for your light bulb example, you appear to be blissfully unaware of the concept of a patent, which legally establishes a property right in an original idea, an invention. For as long as a patent lasts, nobody can copy an originator’s invention without permission or paying for the privilege, though people try. It’s called stealing a patent…patent infringement. Similarly, your charming belief that intangible ideas are not property would be quite a surprise to the thousands of people who hold intellectual property rights, the drafters of the laws that protect their ideas, and the lawyers in the billion dollar intellectual property protection industry.

Now, you may say, as some have, that this shouldn’t be, that ideas should not be property. And that is a perfectly respectable idea, except that the concept of property is defined by our society, not individuals. The native American tribes didn’t believe that land was property. Some of the Hippies in the Sixties didn’t believe anything (except maybe drugs) should be property: ever hear of Abby Hoffman’s Steal This Book? You are certainly free to start a society in which ideas and music and art aren’t property, or where turnips or LEGOS or cats aren’t property, for that matter. In that society, these things can’t be stolen. Go ahead, establish it, call it “File-sharinglandia;” see if anyone wants to live in it. Good luck to you. But while you’re in this society, you are not free to live by definitions of property that are counter to practice, tradition, and law. File-sharing is stealing, and stealing is wrong. Your definition of stealing, in which file-sharing is something else, exists only in your mind.

Once that argument fails, you don’t have much left. “Myth #2: File-sharing is plagiarism” makes an argument that doesn’t need to be made. Of course file-sharing isn’t plagiarism. It isn’t fly-fishing either. But it is stealing. Next!

Next is “Myth #3: If it’s easy, it’s wrong,” which you begin like this:

“I haven’t heard anyone actually articulate this position, but it seems to be behind a lot of the thinking on filesharing. People, it seems, are more likely to think something is wrong if it’s easy.”

This charts new territory in the art of setting up straw men: let’s take 300 words to disprove a “myth” that makes no sense and that no rational person would ever believe. Something is unethical because it’s easy? What nonsense. But I will say this: you do a better job arguing against imaginary ethical arguments than you do against valid ones.

Take “Myth #4: copyRight, copyWrong” (cute title!), for example. Right off the bat, you make an assertion that is just plain ethically wrong:

…But more importantly, simply because something is illegal does not make it inherently unethical. What we have to look at is why something is illegal in the first place.

Fascinating. Since conduct is made illegal because a society decides that it is in some way damaging to individuals in the society or society itself, what legally prohibited acts are ethical? I suppose there are a few, such as some victimless crimes, but as discussed above, stealing property, as in file-sharing, isn’t victimless. And you miss one very basic point: breaking the law is itself unethical. It is a violation of a promise, through your social contract with your country, province, and town, to abide and respect rules of conduct, or pay the penalty of breaking them.

Then you make this remarkable statement:

"But first, let me make a clarification on distribution versus copying. In Canada, at least, there is no law against copying copyrighted material. The law is against distributing it.”

Hmmm. Odd, then, that the dissertation on Canadian copyright law on the website of one of Ottawa’s leading intellectual property law firms, Bowley, Kerr, and Collins, states:

One very significant right granted to the owner of Canadian copyright in a work, is the exclusive right to reproduce the work, (or any substantial part of the work) in any material form whatever.

For example, the owner of copyright in a book has the right to stop others from making copies of the book, (or any substantial part of the book), whether the copying is by way of a commercial printer, a photocopy machine, or by way of a computer image/text scanner.

Sure sounds like a prohibition against copying to me! As for your contention in the same section that …

“Copyrights are not rights. There is no right to control ideas that you make public.”

…the dissertation has this to say:

“Moral” rights are also protected under Canadian copyright law…and include the author’s right to the integrity of the work (that is, the author’s right to stop the work from being distorted, mutilated or modified, to the prejudice of the author’s honour or reputation, or from being used in association with a product, service, cause or institution).

You know, arguments are wonderful things, but someone who publishes an argument, as you did, has an ethical obligation to do research, check facts, and not just pull phony facts out of the air. It is not hard finding the text of Canada’s Copyright Act, and as you so sagely pointed out in Myth #3, just because something is easy doesn’t make it wrong. What’s wrong is making assertive statements about the law when you have no idea what the law really is.

The rest of your essay, the so-called “realities,” descend into typical rationalizations and occasionally non-sequiturs:

• In “Reality #1: Copyright is not a matter of ethics; it is a matter of economics,” you argue, without presenting any support, that copyrights no longer encourage creativity. That’s an argument, if it can be supported, for changing the laws in the future, not for the propositionthat file-sharing in the present is ethical. The fact that a rule may not be perfect or that you believe a system can be improved does not give you ethical leave to break the rule or defy the system.
  
  
• “Reality #2: There are effective alternatives to copyright” similarly has nothing to do with the ethics of file-sharing. When the creators of art, design, music or intellectual property agree to another system, or government develops a new one for the good of society, then that system will define the right and wrong uses of creative material. Using theoretical systems to justify breaking existing ones is not ethical, it is cynical.
  
  
• “Reality #3: Filesharing is not hurting industry” is a thinly disguised version of the familiar “these guys are making so much money why should they care” rationalization for stealing, popular with file-sharers and shop-lifters alike. It’s not for you to determine whether the misappropriation of someone’s property is harmful; it is entirely the right of a property’s owner to use, sell, or license that property as he or she sees fit.
  
  
• By “Reality #4: Change is good,” your essay has abandoned whatever gossamer pretense it had to being an ethical analysis to descend into full excuse mode. The argument is now “this is going to happen whether you like it or not, so you might as well like it.” It really shouldn’t be necessary for me to point this out, but change is sometimes good, and sometimes bad; usually it is good in some ways and bad in others. There is no ethical principle that declares change to be a core ethical value, because it isn’t one. “Reality #5:Transition is tough” follows through on the theme, explaining that while having file-sharers like you steal their musical property for your use and pleasure without paying a cent may be unpleasant for the artists and record-producers, it is simply a temporary inconvenience on the way to something “better.” Presumably you have the same message for the victims of movie and soft-ware piracy. This may be the first time I have ever known ethical principles to be claimed on behalf of the statement, “When rape is inevitable, relax and enjoy it.
  
  
• Very appropriately, you save “Reality #6: Other changes are in store” for last. It indeed belongs at the end, because it is nothing but a version of the rationalization the Scoreboard has designated as the bottom of the barrel: “This isn’t the worst thing!” It’s okay, this “reality” argues, for file-sharers to take music files, because it pales next to all the other mayhem computer technology is going to make possible. One cannot justify a wrong by comparing it to worse wrongs, especially un-named theoretical wrongs.

You may, when all the shooting subsides, prove to be correct about file-sharing. It may become so entrenched and wide-spread that there will be no alternative but to devise other systems of distributing music and paying artists and producers. But that doesn’t have anything to do with whether file-sharing is ethical. I read your essay and it literally gave me nightmares, because it embodies all the tendencies that led to the creation of this website. The inability to distinguish ethical principles from wants and needs. The rampant use of self-deceiving rationalizations to justify bad conduct. The embrace of mob ethics…if enough people do it, then it isn’t wrong…and most of all, the post-modern conceit that any opinion is a legitimate one, regardless of whether it is based in fact, fantasy, or falsehood.

There may yet be an ethical argument for file-sharing to be made. You’re articulate and thoughtful; maybe you’ll be the one to make it. But in order to do that, you’ll have to do the work of acquiring real facts, learning about real laws, and applying disciplined analysis. For now, your argument for file-sharing is no more or less than “It’s free, it’s convenient, and I want to do it.”

It isn’t ethical, but it’s the best you have.

Sincerely,

Jack Marshall, President, ProEthics, Ltd.

The entire article discussed above can be found at http://fugitivethoughts.blogspot.com/2005/09/ethics-of-filesharing.html