Ethics of File Sharing – The Shallowness of Most Accusations
Those who are open to others about their file sharing are keenly aware of the criticisms that are thrown at us, many times without much thought. Some of the more emotional accusations even equate us with pirates, a term that was easily adopted as a symbol of freedom and liberation from a monopolistic, elite royalty.
The remaining criticisms are flush with their own lack of thought as can be seen with a simple analysis. What follows is an examination of the anti-piracy accusations of morality, legality, and “health of industry” along with their ethical foundations that reveal the shallowness of most accusations.
The most direct condemnation of the ethics of file sharing is arguing that it has an inherent unethical quality, usually by equating it with theft. That the action can have such an ingrained quality can be found in deontological ethics. Under this framework the intrinsic quality placed on the action is a result of human reason—that simply possessing a pure thought process would lead all to the same ethical conclusion. This uniform basis of reason is actually an evolution from a religious basis of ethics, which defines its morality as a constant given by God and scripture.i Thus, when it is argued that piracy is inherently immoral without further qualifiers, it is a claim that reason can deduce the quality. The claim, then, is that those who share files are either consciously immoral or fail to use reason—insults that get nowhere. However, because theft is widely accepted as being inherently unethical the debate is not one of if file sharing is immoral, but if file sharing is the same as theft. This legal condition then brings us to the next accusation of the ethical foundation of contractualism.
One of the more common arguments to give file sharing an unethical quality is that it is simply illegal. That illegality is enough to prove unethical behavior, is based on contractualist ethics and that of a “social contract”. This ethical theory had its start in the 17th century with Thomas Hobbes who argued that individuals must freely give up rights to live in a society by way of a “social contract” with the state.ii That one must adhere to given laws for the sake of a safe society is a very strong argument, but works better for disruptive and harsh crimes, such as murder. It is a hard argument to equate the criminalization of copyright infringement with the security of one’s country.
The simpler argument, which does not rely on fear of death or self-preservation, lies in the fact that contractualist ethics does not differentiate between morals and legality. Thus, one’s social contract with the state places a moral quality in following the law, even if the behavior in question does not pose an existential threat to the state. However, this manner of thinking assumes a permanence of the status quo and cannot account for changes in laws. Hobbes’s 17th century was a very hierarchical one where those on the bottom of society simple had to accept the rules promoted from the top. The argument that one can only be ethical by following copyright laws is again a hierarchical promotion of laws, which is pushed onto the individual without accepting the possibility of change.
Damaging the Utility of the Industry (Utilitarianism)
Because the two prior theories hit a dead-end when one understands that file sharing does not necessarily need to be seen as unethical due to hierarchical laws or an intrinsic quality, the ethical theory of utilitarianism is one of the stronger arguments of file sharing opponents. This is the argument that claims file sharing is damaging the industries in question. Under utilitarianism, ethics are derived from what behavior creates the most utility—the most good for the most individuals. According to those defending industry, file sharing reduces general utility through decreased cultural and technological production as well as a general economic decline. In other words, the damage is simply higher than the benefits.
The problem with this utility based claim is that it relies on a rather simplistic analysis of the products. Because the products can be shared so easily at zero cost they engender a different utility relationship to the health of the industry. A good example can be the comparison to a physical product, such as done in the ridiculous anti-piracy ad that equated file sharing with stealing a car. As can be seen by the wide-spread ridicule of this ad, it is actually a stronger defense, rather than critique, of file sharing. The theft of a car actually does little direct damage to the auto industry as it is usually a theft from a consumer of the car. The same amount of cars is still purchased from the producer so the ethical question is on the individual who owned the car. Should the car be a digital good, capable of being shared, then the utility would be the value of giving away cars for free versus development of future cars, as the value is no longer in the car but in monopoly of design—its intellectual property. This is why the ad can be seen to actually defend file sharing.
The founder of utilitarianism, Jeremy Bentham, argued that the principle of utility is to “Always act so as to maximize the greatest happiness of the greatest number of people”.iii Thus, if cars could be shared it would be a difficult argument to not allow every person a free car for the sake of developing new models. Likewise, for industries whose products can be shared the same argument can be applied. With more movies already existing than could be watched in a life-time, it would be nearly impossible to argue against the utility of sharing movies (number of movies that exist * value of movie * number of people) is lower than the development of new movies. For other industries, such as technology, the argument becomes more complex, but this is still under the assumption that file sharing reduces innovation.
An interesting exercise with movies is in the examination of MPAA releases from 1965-2009, which is 6482 films.iv Multiply this to a conservative price of $10 (which ignores diminishing utility). Finally, this is multiplied times the number of people who would be affected, in my case I only use the U.S. approximation (300 million). This simple example places the utility of sharing only MPAA movies at 14 and a half quadrillion dollars. Even when accounting for diminishing utility (the value of $10 would decrease with access to more movies), the utility of sharing movies is much higher than the MPAA estimate of losses. Naturally this is a simplistic comparison, but exhibits the other side of the utility argument left out by Intellectual Property maximalists.
It is quite obvious to those who pay attention that file sharing will not have the industry dismantling effect its detractors claim, much less stifle innovation. There are myriad of examples of free digital products that continue to grow alongside their purchasable counterparts. The important point, however, is the utilitarian argument that file sharing is at the cost of industry and our economic well-being is a very simplistic analysis. Today we have an obscene amount of knowledge and utility at our hands that are separated from us by the overwhelming pay-walls of intellectual property. To add to this, the maintenance of the copyright regime requires a dismantling of online freedoms and privacy, a cost all too forgotten in the industries’ own analysis.
The Discourse of Ethics
While the previous forms of ethics may be appropriate for more obvious legal issues, such as murder or dealing with poverty, the complex nature of today’s issues requires more than arguments of reason and given laws. This is where Discourse ethics comes in by providing a societal base of ethical judgments. Discourse ethics argues that decisions on right and wrong are a cultural outcome based on the discourse of a society. That is, what is ethical or not is a collective decision of the people involved. It is not a fixed or given quality, but in constant reinterpretation to fit our current situation. Thus one’s laws are not inherent by reason or a calculation of utility, but as a constant reevaluation of values that are reflected in constitutional changes and court rulings and reexaminations. Thus, the legality of file sharing is not one of current legality or solely utility, but a choice of society and, consequently, is open to change. Being peoples who value freedom, individuality, and knowledge the growing support of intellectual property reform is a natural progression away from the monopolistic, constraining, and obsolete laws, which are constantly being expanded by those who benefit from them.
i Hutchings, Kimberly. (2010) Global Ethics: An Introduction. Polity Press: Malden, MA
iii Ibid, pp.30