Piracy and the Writers' Strike

R. Porter asks,

Steve, this is really late, but I was wondering if you could address the interesting ethical questions raised by this suggestion regarding piracy during the WGA strike.

Where this suggestion refers to

Kay makes this point about piracy in a time of war:

What I don't want people to do, however, is download episodes from iTunes or watch episodes on a network's website. WRITERS DO NOT GET COMPENSATED FOR THAT. Our "Moonlight" episode was one of the most popular downloads of the week and we get nothing.

When you illegally download something and the network doesn't get any money for it, they call it piracy. But when you download something or watch streaming video with commercials and the writers don't get any money for it, the networks call it promotion. DON'T LET THEM GET AWAY WITH THIS. Steal from the networks. You KNOW how much they hate it. But we're not supposed to hate it if they steal from us. Somehow, that's their logic. If you don't know how to use Bittorrent, go read up on it. It's very simple, and you can find anything you're looking for [on sites like Torrentz and MiniNova]. The quality of Bittorrent downloads is, ironically, FAR better than the downloads you can get at iTunes or the streaming video on the networks' website. So if it's not out on DVD, don't let those bastards make one red cent off the writers, directors and actors. Because they're STEALING from us.

Piracy in a time of war is known as privateering.

Before I comment, here's a primer on the writers' strike -- So, the writers whose work it is profited upon by the networks with no compensation to those whose labor and intelligence produced the work. The work can be acquired without compensation to the networks and so the writers are asking people to treat the networks as they treat the writers, something the networks deplore when they are on the short end of the stick, but don't mind when on the long end.

The easy part is to condemn the double standard. Yeah, the networks are corporate scum, we should all be supporting the writers here.

The question is whether there is something wrong with the downloads. The obvious argument against doing it is that the writers begin by admitting it is morally problematic because it forms the basis of their grievance and two wrongs don't make a right.

The arguments on the other side are three: (1) You are not just randomly downloading these things and not compensating the owner of the intellectual property for personal gain, but rather doing so as a stand against injustice, you are acting for the greater good, (2) You are doing this with explicit permission from the person who created it and therefore has the right to give it away if he or she chooses, therefore it is not stealing, (3) invoking the "in a time of war" idea, there are certain situations where the social contract is no longer in enforcement because of a revolution which requires destroying the old institutions and rebuilding from the ground up which is what is happening now with the strike.

I will leave Hanno to reply to 3 and whether it fits this situation (it's one of those issues he's thought a whole lot about). I'll simply look at whether 1 and 2 override the argument on the other side. The first one seems weak to me as the downloading may be a symbolic act and it may feel good to give someone a taste of their own medicine, but it really is not something that is truly contributing to furthering the cause.

The second argument on the other hand is interesting because it considers the questions of the distribution of rights for intellectual property. The reason I so dislike the notion of intellectual property is that it applies 16th century ideas that make sense when talking about material goods and tries to apply them to non-material ideas. The whole thing stinks of a category mistake and this is exactly the sort of case that shows it. Who has the right to the thing created? Surely, one has rights to the fruits of one's labors and these would be alienable rights that the writers could distribute to any or everyone if they choose. But suppose exercising those rights conflicts with the rights of the benefactor, in this case, the networks. Do they even have these rights or did they wrongly appropriate them because they have money and power? And if they exercise their rights by violating those of the writers, does that then allow the writers to respond in kind because of a broken contract -- implicit, in this case, the explicit one being negotiated by this process.

Gotta say, I don't know, but the writers here have a point in making the whole morass visible in this way. It is a great illustration of the murkiness and trouble that surrounds the entire notion of property rights.