Response to discussion posts re. digital theft

Digital theft

I was quite struck by something in the discussion postings on digital theft. The majority of responses condemned piracy. The most common example was downloading songs.

But in response to the question of whether ad-blockers constitute theft, the overwhelming majority of people thought not. In fact, there were quite a few suggestions that it is absurd to liken the use of ad-blockers to theft.

Now this is interesting because many people gave definitions of theft along the lines of “taking something without paying for it”. But if you listen to a song on YouTube and use an ad-blocker, you are downloading that song (it is downloaded and cached on your device), but you are not paying for it, since payment is supposed to take the form of your being exposed to ads that you might see or click on. So by the definition of theft most people had in mind to condemn piracy, the use of ad-blockers should also constitute theft.

One of the points from the assigned article that I think deserves to be singled out is the differentiation of digital theft from material theft. With material theft, the victim of theft no longer what has been stolen. With digital theft, this is not the case. ‘Digital theft’ is really a metaphor. More accurately, digital theft really consists of two primary action-types: (1) Bypassing some kind of pay-wall that normally restricts access to content (for example: Searching for a password on the internet that allows you to access a subscription website). (2) Making a copy of content for which one is normally expected to pay (for example: Using a torrent to download a copy of a movie so you can watch it on your computer instead of buying or renting it).

With digital theft, the loss involved is really a sort of counterfactual loss – the originator loses something s/he would otherwise have had. It is thus not so much theft, as it is wrongful deprivation. [There is an interesting connection here, though it is not exactly the same, to the ethical distinction between acts and omissions (or doing vs. allowing harms –]

But what happens when it is reasonable to think that the counterfactual involved is not true? Suppose that Gerd wants a copy of SuperAwesomeSuite software, but cannot afford to buy it. So, she copies it from Ferd. Does Gerd do anything wrong? She does not deprive Ferd of his copy, so no loss is caused to Ferd. Is any loss caused to the originator? No actual loss is caused. But the counterfactual analysis of digital theft suggests that Gerd deprives the originator of revenue it otherwise would have received. But this is not true in Gerd’s case, because she could not afford to buy SuperAwesomeSuite. If she had not copied it from Ferd, she would have gone without it. So in cases like Gerd’s, if digital copying is to be considered wrong, some other account of its wrongness must be offered other than the wrongful deprivation (counterfactual loss) one.

One argument is that in copying the software Gerd does not counterfactually deprive the originator of revenue directly, but that she sets a bad example for others who copy instead of purchasing. It is they who counterfactually deprive the originator of revenue, and they would have been at least less likely to do so if they had not been emboldened by Gerd’s doing so first. Of course, this argument only works if others are aware of Gerd’s copying.

Another argument is that even if some particular act of digital copying is not itself an act of wrongful deprivation, it increases the likelihood that the user will perform a similar act of copying another time that is. This sort of argument might be made either by virtue ethicists (refusing to copy instead of purchasing establishes virtuous character) or by rule utilitarians (better consequences are more likely if Gerd does not copy than if she does).

Notice, also, that not all non-paying digital copying is considered wrongful deprivation. It is widely accepted, for instance, that copying only a portion of a text is generally considered acceptable, especially if it serves non-commercial purposes (even more especially if it is for educational purposes). But the grounds underlying the perception of permissibility here are murky. It is not clear how much of a work may be copied before it becomes impermissible (although the figure of 10% is commonly used, it is not clear why this should mark the cutoff point).

Furthermore, if partial copying of a text is permitted, then why wouldn’t partial use of software? Suppose Gerd only plans on using SuperAwesomeSuite for a few short tasks, after which she plans to delete the program since she no longer needs it. How is this relevantly different from partial copying of a text?

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