Commentary: The Ethics Of Torrents

SFFaudio Commentary

Look at this screenshot. Just look at it!

The Pirate Bay - Ethics

It’s screenshot of a torrent for an audiobook about ethics. The audiobook in question (one from Recorded Books’ The Modern Scholar series) is entitled Ethics, A History Of Moral Thought. It’s a course by Peter Kreeft, a professor of philosophy at Boston College and the uploader is listed as “anonymous”.

Why did he or she upload it?

Why did he or she do so anonymously?

Was uploading it wrong?

Am I wrong to download it?

Am I wrong to even point it out?

You may have answers to these questions. If you do they’re probably swirling around somewhere inside of you – but if they are of the sort of answers that are ready to latch on to just about any reasonable sounding analogy, the kind of analogy that matches the conclusion you want to come to, I’m betting they are the wrong answers.

If your answers to those questions don’t originate in your brain (figuratively) as much as they do your gut (again figuratively) we’d probably call those answers moral answers.

If, on the other hand, your answers have a structure to them, are logically argued towards (rather than just intuitively felt) and have some basis in experience we’d probably call those ethical answers.

Let’s go through the old argument:

1. Theft is wrong.
2. Using torrents is stealing.
_________________________
3. Therefore torrents are wrong.

This argument sounds good. It is simple and has a morally satisfying conclusion.

But if the premises have something wrong with them, we must reject the conclusion.

The problem is with premise #2 .

Torrents are/is a technology, like podcasts and email. Technology doesn’t usually come in only one flavour, just good or wholly evil. Torrents are the same. Copyright owners torrent their own material – that isn’t wrong. Public domain material is torrented – that isn’t wrong. So torrents themselves aren’t the problem. Even if we associate 99% of all torrenting with wrongful behavior that doesn’t make the technology wrong. Etc. Etc.

So what is wrong exactly? Is it that copying is theft?

Let’s go through that argument:

1. Theft removes a thing from someone’s use.
2. Digital copying does not destroy the original.
__________________________________
3. Therefore digital copying is not stealing.

Makes sense right? So theft, at least the precise meaning of it isn’t the problem. How about this argument:

1. Harm is wrong.
2. To infringe upon copyrighting causes harm.
___________________________________
4. Therefore copyrights shouldn’t be violated.

I like this one. I think a lot of other people like it to. My only problem is with premise #2. What does it mean exactly?

Does it mean that someone is physically wounded? Clearly not. I’m betting this isn’t a physical thing at all. Maybe it is something else, or maybe it’s purely financial.

Is there a financial harm?

Maybe!

Let’s have a look at that one such argument:

1. Copyright generates revenue for copyright holders.
2. Infringing on copyright subverts copyright.
___________________________________
3. Therefore not infringing copyright helps copyright holders financially.

And if you believe #1 I’ll happily lease this post for 1¢ per day (minimum 100 days please). Premise #1 in the above argument just isn’t true. It can be true, but it sure doesn’t make for as compelling an argument:

1. Copyright can generate revenue for copyright holders.
2. Infringing on copyright subverts copyright.
___________________________________
3. Therefore not infringing copyright could help copyright holders financially.

That’s enough to start with.

If you would definitely not have paid for Ethics, A History Of Moral Thought would it have helped the copyright holder?

If you definitely would have paid for Ethics, A History Of Moral Thought, then why haven’t you?

If you once considered it, but didn’t buy it, I’m betting it is either price or convenience that’s prevented you.

Both can influence ethical arguments, but often don’t because they complicate matters.

Consider:
$49.95 + shipping used CD on Amazon (no DRM but slightly inconvenient format) – copyright remuneration $0.00
$38.95 on Audible (with DRM) – copyright remuneration UNKNOWN
$30.36 + shipping used on cassette (no DRM but inconvenient format) – copyright remuneration $0.00
FREE on Audible for first time customers (with DRM) – copyright remuneration UNKNOWN
FREE on ThePirateBay.org (with no DRM and no inconvenience) – copyright remuneration $0.00
FREE at your public library (variable formats and convienience) – copyright remuneration UNKNOWN

What we end up with is a lot of question marks. And if you suspect that the answers to the three UNKNOWNS above aren’t likely to be equal I agree with you. But what I find more interesting is that two of those $0.00 answers actually don’t generate any moral disgust in most people and I think that may be where our answer lies.

Yeah, I said it. The used versions of books are neither immoral nor unethical!

And why is it exactly that the arguments in favour of making the purchase of used books unethical have all failed to change our minds?

Now weigh those variable UNKNOWNS against these knowns:

Negatives regarding download of copyrighted material via torrent:

1. Copyright holders do not directly benefit monetarily.
2. You may be, depending on jurisdiction, in violation of a law – which may be scary.
3. You may feel guilty.

Positives regarding download of copyrighted material via torrent:

1. Convenience – torrents are fast and easy, they are often better labelled versions of the content, they lack DRM.
2. Price – torrents are free.
3. Intangibles – sharing makes you feel good, other torrent users benefit, copyright holders may benefit indirectly.

If our reasoning happens inside a big bag of blackness our reasoning is going to be poor. Ethics is hard. I’d like to hear some arguments.

What’s your answer to these questions?

Posted by Jesse Willis

13 thoughts to “Commentary: The Ethics Of Torrents”

  1. It isn’t a question of the “where” but of the content involved. If torrents provide you faster access to something you can legally have access to, go for it. If you are trying to argue your way around the law, then it doesn’t matter where or how you are doing it, from bit-torrent sites to the photocopier in the library.

    Copyright owners ALONE have the right to copy, distribute, and adapt their work. If you are not the copyright owner, you do not have the rights to do so without first seeking and receiving explicit permission.

    The arguments you are making have largely to do with fair use of an item that an individual has already purchased. Even within fair use, the issue of monetary gain is only one of many issues that have been considered in court cases. They have also looked at how the item was used (public access such as on a website would not be in your favor for fair use), the entirety of the item used (the full textbook in your example would be far less likely to be considered fair use), the intention of the person violating copyright, and what the purpose of the use is (educational use being more likely to be fair use than entertainment). Unfortunately, because we’re talking about interpretation of the law here and not the law itself, there are no black and white answers. Some institutions have created fair use checklists that are helpful (Columbia University’s Copyright Office is pretty helpful, as is Stanford’s).

    I admire your effort to try to use deductive reasoning to create your own version of what you wish was true about the use of information. But we’re not talking about logic, we’re talking about the law.

  2. The post was not designed to speak to the legal implications or ethics of violating law. I think that’s an interesting topic, but it wasn’t the one I was trying to address.

    I was aiming more at the ethical implications of torrents in comparison to other ways of accessing a copyrighted work – ones that also didn’t involve $$ to copyright holders (like being gifted a used book from a a friend, buying a used copy, trading copies on USB sticks, or even swapping Kindles).

    Those other content acquisition methods seem generally non-controversial, and I wonder how one can make sense of what seems to be a general bias against what is essentially a more efficient method of access of same.

    If you set the law aside, and I think we should when we talk of ethics, then what argument might you use to explain your stance, whatever that may be, on torrents?

  3. Well one argument would be sheer scale.

    Can we agree on the fact that if EVERYONE got their audiobooks for free, there would be no companies that could afford to make audiobooks?

    With a physical paperback copy, there is a limit. That paperback can only be read so many times before it falls apart. Lending libraries have been around for a very long time – they buy their physical copies and lend them, a reader at a time.

    When you make a digital copy and share it online, there is no limit to how many people can download it. The higher the number of people who get their audiobooks this way, the fewer sales the audiobook companies get – even if the percentage of downloaders who are potential buyers is low. That digital copy has no limits.

    The argument that it actually boosts sales? Well, I don’t know about that. But I do know that it’s the decision of the copyright holder to run their business that way. I also know that businessfolk WANT to make money. That they are not falling all over themselves to give their audiobooks away for free is telling. They disagree with you.

  4. Scott,

    Yeah, I think scale, or maybe the efficiency, is the key to why torrents are reviled.

    There is serious price discrimination going on, but does the scale – the fact that more people can do something – make it worse?

    I bet we’ve all navigated all this in other systems. We’ve between trading time for $$ cost and trading $$ for convenience since well before the internet.

    When the convenience becomes more efficent, as with torrents, we see some significant differences in the feeling, but I get the impression that the feelings will change over time. Most of the repugnance seems to be knee-jerk, rather than logically thought through. That’s my experience anyway.

    There is a time cost to going to a used bookstore, an expense, that is just as tangible, if not as countable as the $$. But that cost is to the reader, not to the copyright holder. With torrents the cost of aquisition is closer zero, but it still exists and has the same effect, except it is magnified.

    I think audiobooks is a particularly good case, when I started listening to audiobooks the unabridged ones were totally and completely unaffordable, hundred dollars or hundredS in some cases. So to make them affordable I made them far cheaper to acquire by going to the library, buying them used on ebay, or at thrift stores and library sales, selling the ones I’d bought and finished with on ebay, ordering them wholesale for retail sale and of course starting a website with you.

    Authors, like Robert J. Sawyer, would hate me for that. He want us to be buying only new copies of his books – he discourages used book purchases – I suppose he does so in the hope that pent up demand will equal dollars.

    The first book I bought of his, his first novel, I bought used. I liked it.

    I bought almost every paper book he’s written since then NEW. I guess his model could be right – but doesn’t the fact that I’m trying to benefit matter too?

    Let me take your end case question “if EVERYONE got their audiobooks for free, there would be no companies that could afford to make audiobooks?” and ask if that is actually possible?

    Lets assume that everyone used torrents, and nobody purchased audiobooks ever again. Do you think that could happen? I don’t think it could. Even the most famous case of market disruption, the one that goes automobiles put the buggy whip manufacturers out of business, isn’t actually true. There are still buggy whip manufacturers out there – they just don’t do anything close to the business that they did.

    Now let me ask you this. Have you noticed that the audiobook business doesn’t seem to have been decimated by the existence of torrents? Have you noticed that Jane Eyre is still being sold on bookstore shelves? I saw one priced at $16.99 for a paperback the other day. And despite the existence of all those millions of copies of Jane Eyre out there it is still selling.

    And looking at it that way aren’t torrents simply another method, for poor but savvy young people to make the unaffordable more affordable?

  5. Jesse,

    You said: “There is serious price discrimination going on, but does the scale – the fact that more people can do something – make it worse?”

    Is “price discrimination” your way of saying that prices are too high? I guess that’s a different discussion, but in order to get lower prices, more people have to be buying an item. Torrents are certainly not helping that situation.

    I don’t know how to explain this further. It’s true that the publisher’s ideal system is that every single reader pay money into the system. That would allow publishers to sell books for the absolute lowest possible price that they need to pay all the people involved with making the books – authors, editors, management, etc.

    The system (like every real-life system) is not ideal for publishers. Not all readers put money into the system. So they compensate by having to set the price of books higher. Fewer buyers means higher prices. Because of the limitations of physical copies that I mentioned, the system still worked. Prices could be set at an acceptable level for buyers, and people could make their living writing and publishing.

    With these audiobook torrents, though, there is no limiting factor. A person need only know how to download torrents, and it gets easier every single day. Every single day, new people are downloading. There is a percentage of those new downloaders that are actual buyers of audiobooks that aren’t going to buy them any more. The more of these buyers lost to “Hey, free stuff!” the fewer people audiobook companies are selling to, and the harder it is to survive.

    ESPECIALLY the small businesses.

    Businesses that are, by the way, made up of people.

  6. Scott,

    Price discrimination is what restaurants and movie theaters do when they offer discounts to children under 12 and seniors. Businesses don’t do this because it would be a social good, they don’t subsidize these groups to be nice, they do it to maximize profits.

    A single price point will not capture as much profit as such discrimination. Children under 12 have far less money than adults (if any at all), they are most often offered a lower price point as a kind of incentive to purchase more. But the case is even more fascinating for seniors – who may or may not have less money than other ages (but certainly have more than children under 12)., Such discrimination increases overall profits because groups with less of an interest, but an equal or similar incomes, are willing to pay at the same rate. Seniors don’t tend to want to go to movie theaters.

    Prices are not wholly based on cost, in fact cost is only a small factor in the determination of price. Remember that copy of Jane Eyre I mentioned? $16.99 for a paperback. That’s the result of something other than simply cost!!

    This:

    “That would allow publishers to sell books for the absolute lowest possible price that they need to pay all the people involved with making the books – authors, editors, management, etc.”

    could never be a for profit company’s goal – NEVER. Your model is wrong.

    “Prices could be set at an acceptable level for buyers, and people could make their living writing and publishing.”

    If you can find an period in history in which anything like even close to half of the writers could make a living from writing, I would be very impressed indeed. Writing is not, and never has been, something people do because it is a good business model. Its something, as all those writing podcasts say over and over, that writers feel they have to do. Writers who happen to make their living from writing are the freaks, not the rule.

  7. Good point Robert. There are more and more audiobooks available today, but many of them are still books for the blind, or require a credit card to access.

  8. Yeah, there are a lot of things that go into cost, including (horror!) profit. I was pointing out some of the things that a company needs to cover to get that audiobook into your digital hands. There’s no way I can be comprehensive. Doesn’t change anything I said.

    And on the writers? Your point is irrelevant. Either file-sharing audiobooks negatively affect sales or it doesn’t. If it does negatively affect sales, then writers are affected and their ability to write for a living is also affected. As are the narrators, the editors, and the folks who keep the studio clean.

  9. “Copyright generates revenue for copyright holders.”

    You’re right. Not always true in every situation. But, and I say this as a guy who has spent thousands of hours developing and creating content for free distribution, without copyright protection for my creations ensuring that if ANYBODY ever actually gets to profit from The Red Panda or Black Jack Justice, it will be me… well, I’m not sure I would have bothered. Nor would I have done if I didn’t have the right to stop well-meaning fans from churning out alternate stories involving my characters.

    And certainly part of the motivation for the regular donations that make the continued production of the Decoder Ring Theatre shows possible is access to the members page, where downloads of the otherwsie unavailable Audiobooks of Crime Cabal and Mind Master can be had for free.

    Maybe all of this doesn’t have much to do with Ethics. Maybe this is too practical a discussion to have on a theoretical level. Anyway, my two cents.

  10. Gregg,

    Interestingly I’ve never seen a torrent for DECODER RING, but I’m betting that’s because its super easy to get and universally available. I get my Decoder Ring Theater straight from the source, the DRT podcast feed.

    I’ve just donated $20 USD in the DRT PayPal.

    I didn’t do that because it was copyrighted, but rather because that’s how much I can afford and because you’ve got great shows that I want to support. Keep up the great work!

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