Unauthorized File Sharing: Is It Wrong?

We’re kicking off our Copy Culture in the US and Germany pre-release festivities with a fresh(ish) look at an old question: is unauthorized file sharing wrong?  Or more properly: do Americans think it’s wrong?

Let’s recall that there are two conventional ways of talking about the ethics of copying copyrighted stuff–both in relation to the theft of material property. First: that copying is not like theft because it is non-rivalrous–making a copy does not deprive the owner of the use of the good.  For short, call this the Paley position–the defense of digital culture, in particular, as a culture of abundance.  Second: that copying is like theft because it deprives the owner of the potential economic benefit from the sale of that good (in the case of downloading, to the copier).  Call that the MPAA position–the defense of culture as a market that depends on the scarcity or controlled distribution of digital goods.

Modern copyright law recognizes that copying can look more like one or the other depending on circumstances.  Historically, large-scale copying required a factory, which implied commercial purposes, which made infringement look more like a deprivation of the rightsholder’s potential income.  ‘Commercial-scale’ infringement thus became the most common trigger for the application of criminal law.  Small-scale copying, in contrast, generally involved personal networks and non-commercial intent.  Some of these uses became ‘fair use’ or ‘fair dealing’ in national copyright traditions.  Other uses triggered civil but not criminal liability.  And in practice, the inefficiency of chasing individual infringers created wide de facto latitude for personal use.

In much of Europe, this latitude was codified in the form of ‘private copy’ rules, which allowed personal copying in return for a payment of levies on copying technologies–blank media, tape recorders, and so on.  In the US, despite some efforts in the early 1990s to create such rules for Digital Audio Tape (remember that? No?), the private copy model never took hold, leaving most of the practices associated with sharing media illegal or under a cloud of legal uncertainty.

Imagine Copy Culture–the sum total of informal copying–as a shifting product of what the law says, what wider ethical analogies people subscribe to, what parts of the law can be efficiently enforced, the relative ease of access to content through legal channels, and finally, what technological capacities for copying and sharing are readily available.  The commercial scale / private copy distinction was  the most important 20th century tool for mapping these interactions.  As individuals began to be able to copy on a large scale, the technological basis for the commercial / private distinction began to break down.  The past two decades of industry IP activism can be understood as an effort to compensate by ratcheting up the other limiting factors–law, enforcement, and moral persuasion.  We’ve seen this in the creeping criminalization of personal copying under US law, and–as excessive sanctions demonstrate low returns–in the shift toward automated surveillance and punishment strategies online.  And we see it in the array of efforts to make and remake the ethical argument.  Much of the current copyright debate is framed as if the MPAA can win the hearts and minds of the copiers.  As if it’s just a matter of telling the story better and more often.

Accordingly, nearly all consumer-directed IP enforcement plans are now framed in terms of education, including plans in which education refers primarily to fear of punishment rather than moral persuasion (such as the various ‘graduated response’ programs underway in France, the US, and other countries).  Policymakers and industry stakeholders like to talk about education because they like to imagine a soft solution to piracy, in which “respect” for IP grows and piracy withers away.  By the same token, nobody wants to talk about a copyright regime based primarily on mass surveillance and punishment. It’s terrible marketing.

So regardless of whether anybody actually believes that education can work, there is a lot vested in pretending that it does.  As we argue in our Media Piracy report, soft education campaigns of the school curriculum or public service announcement variety are usually a sign of paralysis of the copyright debates, not progress.  They appear when governments resist implementing more punitive measures on behalf of copyright holders and businesses resist changing their business models to lower the costs of legal access.  Under these circumstances, everyone can agree to blame the consumer, who needs to be educated to respect IP.  And nobody will look too closely at the fact that there is no evidence that these efforts work.

Rather than ask people to judge the morality of unauthorized downloading, we were interested in how people distinguish the different public and private contexts of copying   And so we asked respondents whether different kinds of copying and ‘making available’ were “reasonable.”  Our results suggest three things.

First, that strong moral arguments against file sharing mistake the structure of public attitudes.  Not surprisingly, the public engages in many of the same negotiations of context as the law.  For most people, like theft and not like theft are not diametrically opposed moral judgements about copying.  Rather, they operate on a continuum.  They depend on the context and scale in which copying takes place.  Copying, our data makes clear, is widely accepted within personal networks, reflecting a view of culture as not only shared but also constructed through sharing. Outside networks of family and friends, in contrast, a commercial and property logic tends to prevail.  Support for more active forms of dissemination and ‘making’ available’ through such networks is quite low.  Support for commercial infringement–selling copied DVDs–is minimal.

Second, there is a strong generational divide in attitudes, with 18-29 year olds far more likely than older groups to view a wide range of copying practices as reasonable.  This shift is strongest in relation to sharing within networks of ‘friends’–a category that has become very elastic in the last few years through the rise of online social networks.  Among 18-29 year olds, sharing with friends is entirely normalized and large in scale.  On average, ‘copying from friends/family’ accounts for nearly as much of music file collections as ‘downloading for free.’  What are the reasonable boundaries of such a network?  My siblings? My five closest friends? My 500 Facebook friends?  Or the 5000 music aficionados who subscribe to a private file sharing network?  This is where the rubber hits the road as people develop their own digital ethics.  The law has not begun to address it, and educational efforts to convince people that sharing within communities is theft are likely doomed.

Third, there is plenty of evidence that these ethical issues sit lightly with most file sharers.  Sharing and downloading operate in a notionally contested ethical space, but rarely rise to the level of a major ethical dilemma.  I take this to be the meaning (and real scandal) of NPR-Interngate: the fact that the intern, Emily White, admitted to understanding the ethical arguments against file sharing and… didn’t care.  One sign of this in our work  (and in numerous other surveys) is that large numbers of file sharers can be shown to agree with versions of the claim that online file sharing is wrong.  The profile of P2P users in our study closely tracks our under-30 group in general–including the relative lack of tolerance for uploading.

Data from the Australian film and TV industry association, IPAF, makes this more explicit.  In a 2012 survey, they found that 49% of “persistent illegal downloaders” agreed with the statement that “movie/TV piracy” is “stealing/theft.” But when asked whether they contribute to “the problem of TV/movie piracy,” 74% of  chose “It’s not something I give a lot of thought to.”

It’s certainly possible to see this as selfish behavior–of just rationalizing getting stuff for free.  And no doubt that enters into it.  But this explanation seems  inadequate to explaining the demographic shift in attitudes underway. Rather, it seems better to talk about growth of a different kind of audiovisual culture, marked by expectations of universal access and by sharing within increasingly Internet-mediated communities.  The older ethical framework is still present and can be triggered by the right questions, but the underlying practices are completely normalized in those community contexts.   The dilemma for both industry and the law is that the situation is unstable: the labor of copying continues to fall toward zero and the  community is no longer limited to a small group of friends.  It has shifted outward.

 

More….  What do Germans think is “reasonable”?  The answers are similar, with an even sharper generational divide.

ps…  I got an email from a reader taking me to task for conflating file sharing with  file sharing of infringing materials.  That’s a fair point.  There is nothing wrong with file sharing.   So I added ‘unauthorized’ to the title.  The downside is that it’s not clear what’s authorized–and by whom.  Is sharing with friends and family members authorized?

In Germany, the answer is yes–provided that the provenance of the copy is “not clearly illegal.”  Needless to say, this becomes confusing  as soon as second-order sharing enters into the picture–or large-scale sharing.  This is one reason why it’s interesting to ask people what they think is reasonable, rather than legal. The jurisprudence remains very confusing around these issues.

In the US, the answer is probably no–unless such sharing falls within the boundaries of fairly narrow fair-use claims.  Anyway, I go back and forth on nomenclature.  You pick your poison.

 

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