I’ve always been very suspicious of the piracy statistics put out by what you might call the “IP industry” – big software, music, and movie companies and lobby groups. So it’s gratifying to see Ben Goldacre demolishing the latest claim that piracy is “costing £billions”. Summary: they guessed the figures, then “accidentally” multiplied them by 10 before telling the press.

But it led me into some other discussions about piracy, such as Greg Pyes’ defence of the “piracy = stealing” argument, and got me thinking about the complexity of when “piracy” is actually immoral (as opposed to illegal) .

In a discussion with my sister a while ago, we came to the conclusion that the IP industry should not be allowed to make us feel guilty about piracy – they have no moral high-ground. But nor should we allow ourselves to feel smug about it – I know people who take great pride in how much money they’re saving, downloading things they may or may not use/watch/hear. It is very important to remember that they don’t have the moral high-ground either.

So what should we be considering immoral, and what is “OK”? Let’s ponder some examples:

  1. You buy a book, and lend it to your friend.
  2. You buy a book, and pass it on to your friend, telling them to pass it on in turn.
  3. You buy a book second-hand, or take one to a second-hand or charity shop.
  4. You photocopy an entire book, and give someone the copy.
  5. You buy a CD, and play it at a party to a dozen of your friends.
  6. You buy a CD, and play it in a bar to a hundred strangers.
  7. You buy a CD, and copy it onto your PC or iPod.
  8. You borrow a CD from a friend, and copy it onto your PC or iPod.
  9. You tape a song from the radio.
  10. You make a compilation tape from your CD collection to give to a friend.
  11. You copy an entire CD and give your friend the copy.
  12. You copy an entire CD and sell the copy.
  13. You sell a rare record that is “out of print” on eBay, for far more than its original price.
  14. You download a “pirated” copy of a song you already own on tape or vinyl, in order to have a digital copy.
  15. You publish a digital copy of a rare “out of print” track via the web/P2P/etc so that other fans can have access to it.
  16. You download a “pirated” track by an artist that’s been recommended to you, to “try before you buy”.
  17. You download a “pirated” album because you couldn’t find it elsewhere.
  18. You download a “pirated” album because you don’t think it’s worth the money.
  19. You download a “pirated” album because you can’t be bothered to buy it.
  20. You spend your whole life downloading pirated DVDs and TV programs to watch in bed.
  21. You spend your whole life selling pirated DVDs and TV programs to fund your drug habit.

Now, if you take a black and white view of piracy, every single one of those is piracy, and therefore immoral – they all breach the basic concept that you have to pay for the content you use. But I think you’ll agree, reading through that list, that some are worse than others – and that some of them really aren’t bad enough that they should be seriously illegal.

So what are the factors we’re judging them on?

  • Difficulty – If someone’s gone to the trouble of photocopying every page of a book, just to avoid paying for a legitimate copy, we’re inclined to take a dim view of their attitude. Copying has always been possible (even when it involved copying every letter of a book by hand) but technology has made it easier, to the point where it’s sometimes hard to avoid making a copy. Still, if someone spends hours – and a small fortune on storage – donwloading Blu-Ray rips, I’d feel entitled to ask why they don’t just buy the bloody movies.
  • Victims – The “piracy is theft” argument relies on the idea that there’s someone losing out as a result of your piracy, but piracy is about copying, so no-one is physically deprived of anything. If you know you wouldn’t have paid for something, getting a free copy isn’t really losing anyone anything – and in some cases, it can actually help them, as is commonly argued with exposure to music. But if you know you would have paid for it, but got it for free out of greediness, or just laziness, then you are depriving someone of money. This is complicated slightly when – as with the major record companies – you know that the money wouldn’t go to the people who deserve it anyway…
  • Profit – If knowingly depriving someone of money is bad, making money at their expense is surely worse – if you refuse to spend £20 on a DVD, why should you make £20 selling it?
  • Scale – I think most people would agree that making a copy of your favourite album for your sweetheart is very different from giving out copies of that album to everyone you pass in the street. And while laws generally draw the line of legality at “none”, we do talk about “the punishment proportionate to the crime”, and possession of drugs is distinguished from “intent to supply” largely on quantity.
  • Alternatives – A few of the examples above cover situations where there is no easy way of getting hold of something “legitimately”. This is kind of the flipside of the “difficulty” point: it would be unreasonably difficult to do the “right” thing, so you knowingly “bend” the rules. When MP3s first took off, there were no legitimate sources of MP3s, so could anyone really be blamed for copying them illegitimately?

What’s the point of analysing everything in this way? Because it’s the only way we can make any progress in finding a future that’s fair on content producers without hiding our heads in the sand. The music industry, at least, is beginning to wake up to the “Alternatives” point, first with iTunes, and increasingly with subscription and “radio” type services like Napster, last.fm, and Spotify.

But we as a society – and all the lawmakers and lawyers out there – need to take the other points seriously, and be more discriminating in our judgements: if someone is wontonly, methodically, cynically getting a massive free ride off pirated content, we should not be afraid to tell them they’re an idiot, and brand them a criminal. But if they’ve downloaded half a dozen songs, some of which aren’t even on sale in HMV, then, frankly, that’s life.