The Ethics Of (Mis-)Using Copyright Content
By: Henry Rudgate
Tags: Ethics, Law, Technology, Copyright, Politics

(Iconic anti-piracy campaign by Motion Picture Association)

In the year 2000 Metallica heard one of their unreleased songs, I Disappear, on the radio. The band sought out the origin of the release and found the source was coming from Napster, a peer to peer file sharing service, along with their entire discography. Metallica claimed millions in damages along with other musicians who sued the company, Napster filed for bankruptcy in 2002 and the outcome has been a major chapter in copyright issues which continue to this day.

Today US senator Thom Tillis has contributed to the anxiety of Twitch streamers, YouTubers and internet pirates with his insertion of a bill amendment. The amendment would allow imprisonment for up to three years or a fine for those who are using copyrighted content without permission from the copyright owner. The amendment describes three things content creators cannot provide, the two most pertinent to content creators include: content that is primarily designed to perform the copyrighted content, content that has no commercial use except to provide the copyrighted content. The amendment doesn’t indicate a specific boundary between fair use and using copyright content for commercial distribution which makes it harder for content creators to know when they are acting within the law.

Ethics of Copyright Laws

(Pirate Bay via Google Images)

I would like to take this ongoing event as an opportunity to discuss the ethics and practical enforcement of online copyright laws. Is the distribution and use of copyrighted material without the owner’s permission ethical? The biggest talking point comes from the side that says no which is that ‘internet piracy is stealing’. To understand where they’re coming from it’s best to understand the chain of agreements that led to the product being sold. In a usual transaction the artist or copyright owner has a deal with a company e.g Spotify to use their products in exchange for payments and someone who pays for the product also pays into the pocket of the artist. However in the case of the pirate, the product is taken without payment therefore not paying the artist. The chain of agreements is broken by the pirate and the product is ‘stolen’.

This is rebutted by the pro-piracy side by saying there is a misunderstanding. The product is not stolen, at least not like stealing something from a shop. Instead the product is copied so that the pirate has their own and the ‘original’ is still intact. After all music, for example, is stored in such a way to be read by a computer which interprets the data and plays it. So the instructions that make the audio are duplicated rather than the music being stolen. Some argue that this increases the supply of the product which could lower its price affecting the artist.

Following from that last point, people argue that the copyright owner will lose money because of sales they could’ve got. This does not support most findings on the subject where it seems most benefit from peer to peer sites such as Napster. However findings also show that growing artists may suffer less sales, this could be even worse for them because they are at a critical stage in their career where it could fail whereas established financially secure artists don’t need to worry.

A Problem of Permission

The major ethical problem not involving money is when anti-piracy proponents say it is wrong in itself to pirate or misuse copyrighted content. When this argument is brought up, I notice it’s not usually explained well. People say it’s just wrong as if the argument ends there but I think there is a line of reasoning behind it. My interpretation is that pirates act without the permission of the copyright owner which is the bad in itself. However we might wonder why permission is ethically necessary? You might say: We are all bound to the state through the law and the breaking of that chain is unethical, it may be right to use copyrighted music without the owner’s position but not if it’s against the law. In this case the problem is with breaking the law not directly misuse of copyrighted content.

Whether breaking the law specifically is unethical rather than the act of piracy is really out of the scope of my investigation. Is it unethical in itself? After all you are using content someone has made without their permission. For it to be ethical it has to be okay to use it without their permission, so the question is about permission. I can’t speak for everyone but I think the reason why permission matters is because the copyright owner put their labour into the product or at least it was in some way legally obtained by the copyright owner from someone who put labour into the product. Then we are talking about fairness, is the act fair? Or justifiable despite unfairness.

Fairness in trade is where each party gets what is owed to them. The pirate torrents an album on pirate bay and the artist gains no money, at least in the short-term, but the artist didn’t lose a sale. The distributor makes money from advertisements while providing the album so it is arguable they owe the artist. They make money through the album, something they don’t have permission to but again the artist isn’t losing money. The only way illegal distributors could make it fair is if they boost sales or profits for the artist, that way they get paid in some form. However this form isn’t guaranteed and the distributor doesn’t pay the artist directly with an agreement.

Permission may be ethically negated all together, the concept of owning a song or any copyrighted material is absurd to some people. I mean specifically owning the instructions which make the song, a song comes to life through it being read and played with sheet music by a musician or by read and played with binary data by a computer. It’s more understandable when physical media is stolen but when instructions that make the media are pirated it becomes a gray area. We would like to see someone’s innovation rewarded but the concept of owning instructions or better put an idea can’t really be argued. The same thing applies to patents which benefit the inventor rewarding their creativity but at the same time there is the gray area problem.

Dealing With Misused Content

(US Senator Thom Tillis, ThomTillis.com)

Assuming it is unethical to distribute copyrighted content without permission there is the small matter of dealing with it. We could recognize that it’s unethical and simply shun the activity or we could continue involving the law. Senator Thom Tillis wants to make it punishable with a maximum sentence of three years in prison for illegal distribution and use. Is this too harsh? Especially for a Twitch streamer or YouTuber using the content in a transformative way or in a way such that the content isn’t the main product. Should a streamer be punished for playing copyrighted music quietly in the background whilst there is in-game music and commentary detracting from it?

In closing, There aren’t many financial drawbacks to piracy other than for rising artists, with that in mind I wouldn’t say it’s a major issue, something that needs to be policed, especially if it’s costing even more money to police. The ethical problem of piracy is subjective in judging how bad it is and from that it’s hard to say if policing is necessary. And besides piracy, these laws make it harder for streamers and YouTubers to create content. The cherry on top is that Thom Tillis has received money from companies such as Comcast, Sony Pictures and Motion Picture Association which draws his motivation into question.

I am Henry Rudgate, thank you for reading and if you liked this story follow me here on Medium.