The practice of digital piracy raises both legal and moral questions.

Many millions of people throughout the world have illegally downloaded the fifth season of Game of Thrones.

Legally speaking, what they have done is a violation of intellectual property rights, or ‘piracy’. But is it morally wrong?

It might seem obvious that downloading is wrong. After all, it is illegal.

But there are many things that have been illegal that people don’t think are morally wrong.

Same-sex relationships, divorce and many other practices that are now widely accepted as morally acceptable were once outlawed and criminally sanctioned.

Few people think they were wrong just because they were illegal.

Rather, they tend to think the laws governing these behaviours were unjust, so appealing only to the illegality of downloading doesn’t settle whether it is okay, morally speaking.

Two rival camps dominate public discussion around the ethics of illegal downloading.

On the one hand, there are what might be called “fundamentalist libertarians”.

These think that all ideas and artistic creation should be held in common and be freely accessible to all.

In their view, intellectual property, in the form of copyright and patents, unfairly restricts access to ideas and expression.

They consider illegal downloading to be a victimless crime and do not think it imposes significant cost on anyone.

On the other hand, there are what might be called the “fundamentalist protectors”.

This camp thinks that illegal downloading is equivalent to common theft.

The digital differences

Despite their currency, both of these positions are overdrawn and seem at odds with moral common sense.

This view is vividly expressed in the aggressive message that often precedes films in Australia: “You wouldn’t steal a car, you wouldn’t steal a handbag, you wouldn’t steal a television, you wouldn’t steal a movie. Downloading pirated films is stealing.”

According to fundamentalist protectors, the massive penalties that are sometimes attached to illegal downloading are important because they send a clear message that this practice should not be tolerated.

This seems to be the view of much of the entertainment industry, as well as public officials and legislatures in countries that produce and export a lot of intellectual property.

Despite their currency, both of these positions are overdrawn and seem at odds with moral common sense.

In common theft, the owner of property is entirely deprived of its use, as well as their ability to share it and dispose of it as they choose. Common theft is zero-sum: when I steal your handbag, my gain really is your loss.

The same is not true when I download a digital file of your copyrighted property. In downloading your film, I have not excluded you from its use, or your ability to benefit from it. I have simply circumvented your ability to exclude me from its use.

Criminal sanctions seem warranted in thefts where one person’s gain is very clearly another person’s loss.

But things are not so clear when the relationship between gain and loss are more complex.

And of course there are ways that owners of intellectual property can gain, overall, from infringements of their rights.

The more accessible their products become, the more people may want to consume them. This certainly seems to be the case with products like Game of Thrones.

On the other hand, the fundamentalist libertarian position is problematic because it treats all intellectual property infringement as a victimless crime.

For one thing, intellectual property rights are an important means by which people gain profit from the effort that they put into the production of creative works.

That they can profit in this way provides an important incentive – aside from the intrinsic value of the productive activity itself – for them to engage in socially useful productive activity.

Thus, not protecting the rights of the producers in some meaningful way is bad for everyone.

Infringing intellectual property rights can also increase cost to those who pay for the good, in the form of higher prices.

A question of morality

The question of the morality of illegal downloading is so difficult because it takes place in an environment in which the penalties attached to this behaviour ordinarily seem to be overkill, but where there are pretty clear social costs to engaging in it.

What, then, should be done? For starters, it seems important to stop treating intellectual property infringement as common theft and to develop different legal remedies for its protection.

As legal philosopher Stuart Green has pointed out, prior to the 20th Century, theft law consisted of a sort of ad hoc collection of specific theft offences and specific kinds of property that were subject to theft.

Different rules applied to different offences and intangible forms of property, like intellectual property, were not included in theft law at all.

We may need to return to the rules that are well suited to protecting different forms of property.

In the meantime, it seems incumbent on consumers to try to respect intellectual property unless doing so imposes unreasonable cost on them.

Refraining from accessing patented essential medicines that are inaccessible due to price does seem an undue cost.

Refraining from watching the latest season of Game of Thrones, does not.

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