Why online piracy is not (always) theft
There isn’t a lot of love for illegal downloaders on this blog, and to some extent I think that’s fair. But even if we accept that the activities of Pirate Bay and their ilk are ultimately unjustifiable, the jaw-dropping stupidity of some of the comments from the anti-piracy camp shouldn’t be allowed to go through unchallenged.
Illegal downloading need not be morally equivalent to theft of material goods, as James Murdoch (and those hilariously overblown ads at the beginning of DVDs) would have you believe. If I shoplift a DVD, then the shop selling the DVD can be said to have lost out in two different ways. First, they fail to get the money that they would have got had I bought the DVD, rather than stolen it. Second, they can’t sell the DVD to anyone else because I’ve nicked it.
I realise that those two sound pretty similar, but they’re not equivalent. Imagine that I don’t really want the DVD that much – I only steal it because it’s easy and the odds of getting caught are low. Clearly the first way in which the shop loses money now no longer applies. Now imagine that I also don’t actually steal the physical DVD – instead I walk into the shop, get out my laptop (complete with DVD-cracking software), put in the DVD, copy it, burn it onto a blank disc, and walk out of the shop, leaving the original DVD behind. Now the second way in which the shop loses money from theft doesn’t hold either. So is it still stealing if the shop can’t be said to have made a loss? And if not, why is illegal downloading any different?
What I’m seeking to demonstrate is that, paradoxical though it might seem, whether or not online piracy is theft might well depend on who’s doing it. If someone illegally downloads something they would otherwise have bought, then whoever owns the rights to what’s downloaded demonstrably makes a loss (and as I’ve said, I acknowledge that in cases where this does hold, online piracy is pretty hard to excuse). If not, (and, given that the stereotypical illegal downloader is a teenager – not the richest of demographics – I suggest that a significant proportion of illegal downloading comes into this category) then we seem to have the archetypal victimless crime. How one would go about proving this either way in a court of law I have no idea, but can we please bear this in mind when people start making hyperbolic claims about what is and isn’t theft?
