Claim: Piracy is like not-buying. Not buying is legal, therefore piracy should be, too.

Response: The major issue with copyright is giving customers an incentive to buy digital media (instead of getting free copies and not supporting the creator pay-off the debts incurred by creating it in the first place).

We have three possible situations:

(1) The consumer doesn’t pirate or buy the product. Neither party benefits (the creator doesn’t get paid, the consumer doesn’t get the product).
(2) The consumer pirates the product. The consumer benefits (free stuff), but the creator doesn’t get paid.
(3) The consumer buys the product. The consumer benefits (they have the product) and the creator benefits (they get paid).

If only situations #1 and #3 exist (or if #1 and #3 are the only moral options), then the consumer has an incentive to pay the creator. This is sort of like the creator saying, “We’re going to go through this transaction together – either we both benefit or we both lose. If you have the option of getting the benefit of my product without me getting the benefit of your payment, then the deal is off because I can’t remain financially solvent if I let people do that. Similarly, if I was playing a concert, I could let everyone in for free, but there are a lot of bills associated with putting on that concert, and I want people to help for them. As long as they’re getting the benefit of hearing the concert, it’s reasonable to tell those people they need to buy a ticket.”

There aren’t a lot of good reasons why a consumer wouldn’t always choose piracy every time instead of paying. The existence of #2 as an option (assuming that piracy has the same moral status as buying) eliminates the incentive to pay for products. Thus, widespread acceptance of piracy leads to a financial problem for creators, leading to bankruptcy, which makes the whole society worse-off (because now they don’t even have the possibility of getting the product at all).

Related Claim: I’ve heard the related claim that “if piracy is illegal because it deprives you of a sale, then not-buying should also be illegal because it also deprives you of a sale (and can lead to bankruptcy)”. The intended conclusion of this argument is that piracy and not-buying should have the same legal status, and you obviously shouldn’t make not-buying illegal, so you should make them both legal.

Response: This misses the point about incentives. If we took that argument seriously, then we should change a lot of thing in society. For example, not attending a concert equals one less ticket sold (*in many cases) and it’s legal. Therefore, sneaking into a concert should be legal, too. Using the same logic, we’ve just proved that sneaking into concerts should be totally legal. There are lots of cases like this – where it doesn’t really cost creators money to add one more consumer. For example: amusement parks, greyhound buses, and hotel rooms (i.e. vacant hotel rooms should be free). (Some might counter-argue that these things have limited capacity, so a free-ride might deprive the bus-owner of an extra sale. This argument only works in the case where every seat is taken, however. It’s easy to work-around that argument by saying, “All empty seats should be free. Paying customers can take the seat of a non-paying customer if every seat is taken.”) You can also imagine similar cases where people say “I shouldn’t have to pay taxes to the United States because if I lived in a different country, I wouldn’t pay taxes to the US. Since it’s legal for me to live in another country, it should be legal for me to not pay taxes to the US. I’m ‘depriving’ the US government of taxes either way.”

One example I sometimes think of is this: imagine that you and two friends are taking a trip down to Florida for spring break. Let’s say that you rent a van and a hotel room. All of these costs add-up to $1000. You split the costs three-ways for a total of $333 each. At the last minute, your other friend (who we’ll call “Steve”) decides he can go on the trip. Steve thinks about it a bit and says, “Well, you guys are already paying for the car and hotel. There’s enough extra space for me and my stuff in the van. You’ve already got the hotel room, and I can sleep in there. This means I shouldn’t have to pay.” Nobody would be very happy about the idea of Steve getting a free trip. They say that Steve should have to pay, too — that each of you should pay $250. This is essentially what pirates are doing – acting like Steve. They say, “It doesn’t cost any extra money to add me. I should be allowed to get all the benefits but none of the costs.” This is essentially how creators view pirates – as people using self-interested logic to justify not having to bear any of the costs. Meanwhile, other people (the creator) has to bear the costs.

Now, you and your friends could decide to let Steve travel on the trip for free (maybe you feel bad because Steve doesn’t have a lot of money), but it shouldn’t be up to Steve to make the decision about whether or not he should have to pay.

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