Law in the Internet Society

The Anachronism of E-book Piracy

By convention, piracy essentially refers to robbery at sea. The crime lies here in the violent theft of property. [1] What I question first, though, is whether the analogy of online piracy, in particular e-book piracy, is accurate. To start with, online piracy involves no violence. This pares the problem down to theft, and thereby the idea of ownership of property. Theft, which is basically a change of possession of physical property without the owner’s voluntary and informed consent, is problematic because it necessarily deprives the owner of his own property through wrongful means. However, digitized material such as e-books is different in the sense that it can be shared without deprivation to others. In this respect, insofar as the analogy of “piracy” is meant to designate theft, the term “online piracy” is a misnomer.

It's propaganda. So?

Yet, despite this non-exclusive nature of digitized material, might online piracy somehow still be a wrongful means? In some sense, it is “wrongful” precisely because it duplicates and subsequently circulates digitized material, thereby infringing copyright law, which grants a copyright owner the exclusive right “to reproduce the copyrighted work in copies […]” and “to distribute copies […] of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. 106(1), (3). However, I am not convinced that online piracy is wrong simply because it is incompatible with the letter of the law. Copyright has two broad objectives: (1) to incentivize the creation of works; (2) to incentivize the efficient exploitation of works. [2]

I thought its purpose was to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

The basis of (2) is the likening of intellectual property to conventional private property: just as a person will bother to manage, maintain and improve a piece of property only if he has exclusive property rights over it, so an author will be encouraged to make his work better only if he is the exclusive owner of it. But this analogy is fallacious because ownership is necessarily linked to exclusive property under this model. Yet digitized material, unlike private property, is non-exclusive; changes effected by somebody else other than the author to a digitized copy of the work do not preclude improvements made by the author himself. If anything, it would be more accurate to compare this to making a separate copy of the private property, in which case the owner would not be prevented or discouraged from doing whatever he wants to do to the original. Nevertheless, the difference remains here that making a digital copy costs nothing.

As for (1), unless the incentive in question is solely the abstract idea of exclusive ownership itself (as opposed to the ultimate aim of profit), I fail to see how online piracy, at least in the case of e-books, does not add to the incentive, since e-book piracy has been repeatedly shown to boost overall book sales. Paulo Coelho, who licensed the exclusive right to HarperCollins? to sell his books in the US for a given period of time, and who does not own any of the translation rights either, nonetheless enabled the unauthorized free downloading of his books previously in various languages. This is an unambiguous instance of deliberate e-book piracy, yet it clearly spurred book sales. [3] The phenomenon was also observed by Neil Gaiman, who subsequently changed his opinion on e-book piracy. [4] Even research on a larger scale has affirmed this. [5] In view of these empirical results, how can e-book piracy be incompatible with copyright law in spirit?

How else then might online piracy be wrongful? The most salient problem is that it does not reward labor duly, since readers (when it comes to e-books) can consume without paying. This applies to the entire e-book production and marketing team: the author, the editor, the copyeditor, the designer, and the marketing and publicity personnel. However, at this point a distinction appears between the legal and the moral: if it is a moral imperative to pay the laborer when his good is consumed, then such doctrines as the first-sale and fair use doctrines should not exist at all since they permit certain reader-consumers to avoid payment. My purpose in bringing up these doctrines is not to say that they are analogous to online piracy, but rather to highlight that the law is less concerned about absolutes and definiteness than it is about balancing interests, such that a familiar moral principle or even an established legal concept like copyright may very well be overturned by realities like the free alienability of goods if we take the example of the first-sale doctrine. (Of course the first-sale doctrine is explained in theory by the “exhaustion” of the copyright owner’s exclusive distribution and display rights upon the sale of an authorized copy [6], but intelligence tells us that this is but a legal fiction used to justify the reality of things.) Drawing on this, I believe that whether it be copyright or the principle that labor be duly rewarded upon consumption, ideas that were conceived and established under a different paradigm have to adapt to new realities once the fundamental premises have changed, and if these changes have rendered the traditional idea incompatible with reality. Here the new premise is the unprecedented fact that one can now reproduce the good at no cost, whether to oneself or to the author—this is reflected in the way the term “online piracy” itself misrepresents the situation and is thus a misnomer. Otherwise, we will just be penalizing the e-book for its advantages, and for what it simply is.

It would be too facile to conclude that e-book piracy is hence not a problem. It is a problem insofar as it is wrong not to reward the laborer(s) every time the good is consumed (even though I still have difficulty reconciling this notion with the already extant first-sale and fair use doctrines). However, perhaps this could be tempered by the idea that e-book piracy is a double-sided sword that, through acting as free publicity, helps to increase overall book sales.

[1] As drawn from the definitions provided by the United Nations Convention on the Law of the Sea Article 101 (http://www.un.org/Depts/los/convention_agreements/texts/unclos/part7.htm) and the International Maritime Bureau (“the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act.” -International Maritime Bureau, Piracy and armed robbery against ships: a special report (London: International Chamber of Commerce, 1997) p. 2)

[2] Stephen M. McJohn? , Copyright: Examples & Explanations (New York: Aspen Publishers, Inc., 2006), p. 2-4

[3] http://paulocoelhoblog.com/2008/02/03/pirate-coelho/

[4] http://ruthellenparlour.com/2012/07/16/thinking-differently-about-ebook-piracy/

[5] http://toc.oreilly.com/2011/01/book-piracy-drm-data.html

[6] H. Ward Classen, A Practical Guide to Software Licensing for Licensees and Licensors (USA: American Bar Association, 2007), p. 16

Why are these footnotes, instead of links? What use are they to the reader at the end of the page, when you can make it easy for her to click anytime she needs to and ignore anything she doesn't require?


I don't understand the point of this essay draft. An "e-book" is just a file on the Net. If an author wants to make it available on terms that permit sharing, she can do so. That's what the Creative Commons portion of the free movement is designed to make easy. That's what copyleft is for. If she wants to make it available on terms that prohibit sharing, copyright exists to make that possible, too. You don't dispute that these current rights allocation schemes exist, and that violating rights so allocated is a civil wrong, and can under some circumstances be a crime, whether the rights being violated have been licensed in copyleft or copyright styles. Nor are you apparently arguing that copyright should be repealed, to be replaced either by copyleft or by an unrestricted public domain. So what is the draft's actual thesis?

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r7 - 23 Aug 2014 - 19:31:21 - EbenMoglen
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