Mike Masnick finds another MPAA flack in high dudgeon in response to the simple factual observation that, especially a rough economy, studios and networks risk audience flight to BitTorrent if they don’t make their own digital offerings more consumer-friendly:
In other words: movie and TV theft is inevitable. Why? Because it’s easy to steal something that, in physical form, exists only as data, and easy to justify stealing it as a result?
First, as Masnick notes: Yes! However huffy you get about it, however morally outrageous you might find it, online copying clearly isn’t going anywhere. Lots of bad things are, indeed, pretty much inevitable regardless of what we think about that fact.
Second, a couple things worth pointing out about this familiar copyright maximalist trope. You know the one: “If you wouldn’t shoplift a CD, you shouldn’t think it’s any less wrong to ‘steal’ music and movies just because it’s easier to get away with!”
I always find this an odd line to take, because one of the reasons it’s easy to get away with copyright infringement than theft is that copying has no direct impact (and in many cases not even an indirect impact) on the rights holder, which means they don’t just have to expend resources to find infringers—it takes some work just to find out how much infringement is happening! And this seems relevant to the aptness of the equivalence with stealing.
Suppose I tell you that assaulting people is wrong, and it doesn’t become any less wrong just because it’s easy to get away with, owing to the fact that the victim doesn’t notice. You might think a reasonable response is that, while it’s surely possible for a genuine assault to go unnoticed by the victim under certain circumstances, that sounds like a prima facie reason to wonder whether what we’re talking about really is an assault. It’s a little odd to lean on this “don’t forget it’s theft just because it’s so easy!” when the reason it’s easy is also a reason it’s not a whole lot like real theft.
The other point to make is that, while I’ve certainly never done it, shoplifting actually also seems pretty easy. I suspect a well-dressed person who’s minimally clever about it could routinely just walk off with small items from brick-and-mortar shops. For someone in the habit of doing it, safely pocketing a couple items from a low-security store now and again probably is not appreciably more difficult or risky than hunting down a new movie on BitTorrent. Probably some small percentage of adults do just that. But the vast majority of people who download pirated music or movies clearly don’t. Indeed, probably the reason it would often be easy is precisely that the vast majority of people think stealing is wrong, and so most people don’t do it even when they can easily get away with it. Since most people are honest, shops that don’t sell especially expensive items generally don’t find it worth investing in higher security to deter the few exceptions, since the security would often cost more than the stolen items.
That makes this, too, an oddly counterproductive comparison for copyright maximalists to make. Because once you acknowledge that physical stealing is, in many circumstances, effectively about as easy and low-risk as pirating, you need to come up with some other story to explain why vast numbers of people who’d never dream of doing the former will do the latter. And the obvious answer is that despite a relentless propaganda campaign aimed at equating the two, most people intuitively see a difference between copying and stealing, for reasons that have nothing to do with how easy or risky it is. That doesn’t mean people who pirate necessarily think it’s morally unproblematic—they might do it a bit guiltily, thinking they really ought to be paying—but regard it as a venial sin, not something on the same order as real theft.
Of course, a widespread moral intuition is no infallible guide—plenty of societies countenance grossly immoral practices—but it seems at least like an important data point, at least. First, because it seems wildly out of wack to impose such enormous penalties (often, indeed, far in excess of what would apply to someone who did shoplift the same music) on actions that most people sincerely do not regard as wrong. Even if it were the efficient thing to do (because only very high penalties will deter piracy enough to save valuable industries) it would not seem particularly just. Second, because any system of rules relies overwhelmingly on voluntary compliance—on people respecting the rules because they dovetail with people’s views about what’s right and wrong, not because of formal enforcement measures. That makes law and regulation that run contrary to people’s moral intuitions vastly more costly to enforce, precisely because so much more actual enforcement is necessary to achieve the same level of compliance. That, in turn, means that the social gain from achieving given level of rule compliance has to be much higher to make the rule worthwhile.