Piracy and Free Software

This essay is a summary of my presentation at the workshop Inlaws and Outlaws, held on August 19-20, 2010 in Split, Croatia. The workshop brought together advocates of piracy with participants in the free culture and free software movements.

In Why Software Should Not Have Owners, Richard Stallman explains that, if a friend asks you for a piece of software and the license of the software bars you from sharing, you will have to choose between being a bad friend or violating the license of the software. Stallman suggests that users will have to choose between the lesser of two evils and will choose to violate the license. He emphasizes that it’s unfair to ask a user to make such a choice.

Over the past few years, pirate parties have grown across much of the developed world. Of course, piracy remains the primary means of distributing media across most of the rest. Advocates of access to information have gathered and organized under the "pirate" banner, representing the choice of sharing with friends over compliance with license terms.

The free/libre and open source software (FLOSS) and free culture movements seem to have a confused and conflicted reaction to all this. On one hand, major proponents of several pirate parties are FLOSS and free culture stalwarts and several pirate parties have made FLOSS advocacy a component of their political platforms. Pirate Parties’ clear opposition to software patents and DRM resonates with both FLOSS and free culture communities. On the other hand, FLOSS leaders, including Stallman, have warned us about "pirate" anti-copyright policies. Free culture leaders, like Lawrence Lessig, have repeatedly and vociferously denounced piracy, treated even the intimation of an association with piracy as an affront, and systematically distanced themselves and their work from piracy.

Should FLOSS and free culture advocates embrace pirates as comrades in arms or condemn them? Must we choose between being either with the pirates or against them? Our communities seem to have no clearly and consistently articulated consensus.

I believe that, unintuitively, if you take a strong principled position in favor of information freedom and distinguish between principles and tactics, a more nuanced "middle ground" response to piracy is possible. In light of a principled belief that users should be able to share information, we can conclude there is nothing ethically wrong with piracy. Licenses have the power of the law but they are protected by unjust "intellectual property" laws. That said, principles are not the only reason activists choose to do things. Many political stunts are bad ideas not because they are wrong, but because they won’t work and have negative side effects. Tactics matter too. Even though there might not be anything ethically wrong with piracy from the perspective of free software or free culture, it might still be a bad idea. There are at least three such tactical reasons that might motivate free software and culture to not support piracy or participate in pro-piracy movements and politics.

First, a systematic disrespect for copyright undermines respect for all licenses which have been of a huge tactical benefit to free software and a increasingly important factor in the success of free culture. Copyleft licenses like the GPL or CC BY-SA have power only because copyright does. As Stallman has suggested, anti-copyright actions are anti-copyleft. That needn’t be an argument against attempts to limit copyright. Indeed, I think we must limit and reduce copyright. But we must tread carefully. In the current copyright climate, I believe that copyleft offers a net advantage. Why should others respect our licenses if we don’t respect theirs? Looking at the long term, we must weigh the benefits of promoting the systematic violation of proprietary licenses with the benefits of adherence to free software and free culture.

Second, piracy is fundamentally reactionary. Part of its resonance as a political symbol comes from the fact that the piracy represents a way that consumers of media can fight back against a set of companies which have attacked them — with lawsuits, DRM systems, and demonization in propaganda — for sharing in ways that most consumers think are natural and socially positive. But piracy focuses on reaction rather the fundamental importance of sharing that drives it. As a result, most pirates do not support, or are even familiar with, a principled approach to access to information. As a result, many piracy advocates who speak out against DRM on DVDs will be as happy to use NetFlix to stream DRMed movies for $5 a month as they were to download for free. The best rallying cries do not always translate into be the most robust movements.

Third, through its focus on a reaction, a dialog about piracy avoids engagement with the tough questions of what we will replace the current broken copyright system with. A principled position suggests that it is our ethical prerogative to create alternative models. The free software movement has succeeded because it created such a prerogative and then, slowly over time, provided examples of workable alternatives. A principled position on free software did not require that one provide working new systems immediately, but it makes the development of creative, sustainable approaches a priority. Attacking the system without even trying to speak about alternative modes of production is unsustainable. Free software and free culture call for a revolution. Piracy only calls for a riot.

Piracy, in these three senses, can be seen as tactically unwise, without necessarily being unethical. By taking a principled position, one can go build on, and go beyond, RMS’s comment. On free culture and free software’s terms, we can suggest that piracy is not ethically wrong, but that it is an unwise way to try to promote sharing. Without being hypocritical, we can say: "I don’t think piracy is unethical. But I also do not support it."

27 thoughts on “Piracy and Free Software”

  1. “Yes: NIN, Ok Go, Amanda Palmer.”

    Actually, NIN did not ditch their label and their whole campaign proves nothing. It lasted for several months, then they released the cd in a traditional manner and in fact sharing their “free” album is now illegal and people get warnings. Reason being – it was only a promotional campaign to make people buy more physical cds. You are not allowed to share NIN music online.

    So label ditching is very much in question. As a rule, major bands do not ditch labels, even if at some point they say so, it usually never happens.

  2. I wanted to take a second to send kudos. Great blog post! I believe all that use FOSS should consider what that means above and beyond just having great software.

  3. @Josh I believe it’s true that sharing non-free software is wrong, but I cannot say the same about sharing other kind of data (which’s discussed in this post).

  4. So Benjamin, I think you’re saying that the idea of a “pirate” associates (whether we like it or not) too strongly with the idea of free as in beer and not enough with free as in speech.

    I think this gets right to the point of why I heavily favor advocating/defending the rights of “file-sharers” rather than “pirates”.

  5. Brian: I think you’ve got your head in the sand in regards to streaming media. Calling someones business model antiquated doesn’t change the fact that most people seem to see no problem with these services and that they are mainstream in a way that makes comparisons to Magnatune, bless their heart, seem silly. All reports I’ve seen has shown that P2P traffic has been in sharp decline for nearly 4 years while streaming video, controlled by large centralized gatekeepers and increasingly often using DRM, has surged.

    Most non-political pirates, and that’s most of them, seem very happy to settle for DRM and ARR when it’s not too inconvenient. NetFlix, Hulu, the Olympics, and the World Cup each had pretty comprehensive ownership and DRM plans and don’t seem too concerned about the fact that they’re limiting themselves to the 95%+ of users who are willing and able to install Silverlight DRM. With hundreds of millions of viewers, it’s hard to see why they would.

    Here’s an illustrative example: Defective By Design launched an anti-NetFlix campaign. Quite a few folks who had been involved in DbD previously were upset by the campaign. They argued that DRM was bad because it kept from doing what they wanted with music they owned. For them, streaming media was different because they never owned it. DRM in this new situation wasn’t bad. Indeed, NetFlix streaming was more convenient and faster than the Pirate Bay. They were mad at DbD for trying to stop it!

    Should we vilify pirates? No. As you suggest, taking advantage of the intuition that information should be shared is a good place to begin our advocacy. But you’re missing the fundamental point if you try to create a movement under a banner which, you admit, references only a very partial and incomplete understanding. Folks will miss that point and nobody will blame them.

    If we adopt symbols that define our movement around getting movies gratis, what do we say when Hulu turns around and gives it to them? For reference, the millions of people who used to pirate films say, “thanks.”

  6. Thanks for the response Ben, this is a fascinating topic.

    4. Do you really believe this? Do you have evidence?

    Yes: NIN, Ok Go, Amanda Palmer.  All of these artists have seen the value of sharing and have ditched their labels along with antiquated business models to embrace a culture of sharing.

    It is true that the media middle men and grasping to dieing models with DRM, but even giants like apple are starting to realize that you can not compete with sharing by providing people with an inferior product, thus their move away from DRM on music and the emergence of alternatives like emusic and Magnatune. Are these new models ideal? No, but they are moving in the right direction. But without piracy I am skeptical we would have any music online, media middle men loved the CD and went online begrudgingly because their audience was already there listening to music. Piracy is a market force that encourages innovation, but not all innovation is good.

    Hulu and Netflix could still make money lot without the DRM, they just have not tried yet.  Their poor choices to implement drm will limit their market share and piracy will be one forces along with FLOSS/FC fighting to move them to a more ethical model.

    5. This is tougher, the fact that most young people pirate/share does not mean that they all get the pirate party agenda or understand FLOSS/FC. I would even conceded that most do not understand the philosophy or even know of it. But, this group of young pirates eyes light up when one discusses the philosophies of the pirate party. They have the potential to get behind a social movement and understands non-rivalrous in ways older generations often fail to grasp.  This is especially true of most younger people that creates content or remix. 

    We need to reach out to them and embrace them with support and a consistent platform for freeing culture, not admonish them.

    “We must both agree that Pirate Parties would be less successful if they were Free Culture Parties.”

    /agree

    “A large part of this is because they’re taking advantage of a semiotic gap between what most people think pirate means and what the pirate party says it means.”

    I agree there is a gap, but I think the supporters understand that information wants to be free (gratis) and have not been introduced to free (libre) which they often embrace when they become more fluent with the issues.

  7. Hi Benjamin,

    I think you didn’t conflate piracy and sharing, but you also didn’t clearly separate them.

    In short, is it right to say that you support sharing but see ‘piracy’ as a not optimal political tactic?

  8. Interesting comment from Brian and interesting reply from Benjamin. It’s an important subject that needs to be debated within the free software community.

    It’s obviously critical to avoid linking free software and anti-current-copyright movements. It shouldn’t be given on “take it or leave it” base which is a mistake hardcore advocates often make (I know I’ve done it).

    I agree with Brian that sharing* has done great harm to mega media corporations and I really like that. And although I agree with Benjamin on the fact that many antifeatures were made to fight sharing, it obvious that many of them only existed to extend monopolies and I’m not very sure whether proprietary technologies would have been compatible with software freedom if sharing haven’t existed.

    The example of free culture domination on encyclopedias and photos is very true. It’s just that I believe that many sharers’ ‘effort’ to share and access (made very easy by BitTorrent) doesn’t really conflict with the advancement of culture freedom. When you download one Hollywood movie or one American TV show you aren’t really wasting any effort or time in the wrong place.

    * I really don’t like to label ‘sharers’ as ‘pirates’ unless that’s in the context of challenge e.g. ‘The Pirate Bay’.

  9. Lots to respond to Brian! Thanks for your comment.

    2. Two points: (1) Piracy has also brought us DRM, trusted computing in its various forms, huge enforcement actions, and antifeatures of various kinds that have created major technology incompatibilities that free software and free culture are often at the losing end of. (2) Encyclopedia makers and many stock photography vendors are very worried about their business models because of free culture.

    4. Do you really believe this? Do you have evidence? It seem piracy is forcing new business models forward based on DRM, lower prices, more advanced market segmentation, faster distribution, and more convenience. An effective answer to BitTorrent has been DRM-supported streaming media like NetFlix and Hulu. Many people who have previously downloaded films use these systems. For example, it sure seems to me that widespread piracy of PC games has done more to support the creation of game streaming and DRM systems like Valve Steam than it has to support the production of free software PC games.

    5 (and others). There must be some confusion here. You seem to use the word “pirate” to refer to something more like “pirate party member.” I using the term to mean “a person who engages in piracy.” Do you really believe that a significant portion of people downloading Hollywood movies or buying copied DVDs in Mumbai are politically conscious, remixing, free speech advocates?

    We must both agree that Pirate Parties would be less successful if they were Free Culture Parties. A large part of this is because they’re taking advantage of a semiotic gap between what most people think pirate means and what the pirate party says it means. I also agree people use the term more broadly and that individual pirates have more and less political consciousness. But it’s unfair to criticize me for treating the word piracy as if it means what it does.

  10. I do think that piracy is unethical.
    If users  aren’t happy with license or they can’t afford the price of proprietary software, they should, instead of infringing copyright, not use that software, and look for other alternatives – that’s ethical.
    That’s why I never supported piracy, and will never support it, and IMO there should be some movement to battle piracy, that will increase users awareness of choice, and their moral sense.

  11. free software is successful.

    if culture has three parts (for the sake of this discussion): knowledge accumulation, art and entertainment. the only successful part of free culture would be then knowledge accumulation (with wikipedia as the giant success).

    all attempts to show how remixing and collaborative culture is great was more or less failure. in both art and entertainment.

    art & culture production and use is different than software production and use. still, the difference is in the eye of beholder.

    sentiment for the piracy is many times reaction to fail of free culture and not necessarily just reaction to copyright regime.

    focusing more on free science & education has much more sense after success of free software. it seems that  lessig after the eldred case was again too ahead of his time :) together with a lot of us.

    i found very inspiring when “pirates” were referring and playing with tradition of avanguard art and all of the ideas in the past which were questioning the very notion of private property and authorship.

    unfortunately free culture (mainly creative commons) was very conservative (at least not very playful) in that sense. and pirate parties (in many places) doing even worst job in offering schizophrenic messages saying they are basically against piracy and not against concept of copyright. everything would be forgotten if they were/will be successful.

    to make this short: i hope efforts with free knowledge, science and education will be as successful as free software so there will be good ground to go for the political change in the field of regulation of intellectual property. only then i think art & entertainment will catch up. meanwhile i’m glad there is someone to make art & entertainment mad and angry ;)

  12. Kaiku and Brian: Your both seem to argue that that one shouldn’t conflate “pirate” with just a call for piracy. A stronger form of the argument, and one that some pirate parties have taken in their platforms (I know, I linked two two such platforms and the Pirate International in my article), is that “pirate” doesn’t mean that one is primarily in support of piracy or that they have no official position in support of piracy!

    I’m all for nuance. But the idea that I could argue that supporting piracy is a bad idea and still call myself a “pirate” seems to me that the pirate parties are being disingenuous with their semiotics. They’ll take the symbol, because it has resonance, but they’ll to make it mean other things. I know that’s how politics works, but I find that distasteful. I also think it’s likely to backfire and makes it easier for others to dismiss you.

  13. Thanks for the great piece, this is an area where am also strongly conflicted as a FLOSS/FC supporter and a pirate supporter.  I have a few comments:

    1.  This is not a case of confusion on both sides, pirates are embracing free culture and FLOSS.  It is the Free Culture and FLOSS movement that are confused at best and at worst actively fighting against the pirates.

    2. I strongly agree tactics matter.  Sharing is a tactic and a good one.  sharing has done more to put real pressure on the abuses of IP then Free Culture has.  Content is not looking for new business models because CC is out selling them(PS in the long term I think CC will also outsell ARR but that is another point).  They are looking for ways to compete with sharing that often include sharing.

    3. GLP & CC BY SA along with others have tried to fix copyright by adding new more fair terms.  Some of these terms like BY are moral rights at their core others like SA try to keep they ecosystem of knowledge open for others to share. By disrespecting all rights reserved it does not make a commentary on BY or SA.  Ben’s and Richard’s logic breaks down here. The broad generalization that because pirates attack all rights reserved means they are attacking GPL or CC BY SA is wrong.  This is only true is pirates are able to abolish all copyright, but the more likely out come of the pirates actions is a reforming and rethinking of copyright.

    4. Pirates are looking at the long term, we know that knowledge is non-rivalrous and think that a system that tries to make it scarce is broken.  Pirates want a new economic model based on abundance to replace copyright.  That new system could have moral rights such as BY and reciprocal rights like SA while not having All Rights Reserved.  By flaunting the non-rivalrous nature of works we are forcing new business models forward that are built on sharing.

    5. I strongly disagree with your branding of pirates.  There are pirates of all levels of educations on these maters. The pirates described here are straw men that make one movement FLOSS/FC appear as academic principles saint while pirates are the uneducated masses that just want free stuff.  Most pirates I know would rather get behind a consistent platform that allows sharing, remix and free speech.

    6. Pirates are more then just sharers we are also, commentators (free speech advocates) and remix creators.  The idea of asking permission for any of the three activities sharing, commenting on or remixing is alien and the division between the lines is not clear.  to remix we often have to share to get around DRM.

    7.Stalman understates the choices here, it is not merely a choice of disappointing your friend.  In many cases sharing/piracy is about access to knowledge, justice and power.  With software the tools to learn a craft of coding are often extremely expensive and this barrier of entry create inequity. Sharing has to power to equalize playing fields.

    8. Pirates want radical change not just new licenses. FLOSS/FC is just one tool for change to pirates.  The pirate party especially outside the US has a platform for change. Pirates want a revolution and are not afraid to use all tools at their disposal to get one.

    I do not believe that sharing is either unethical or unwise. I will close quote form a piece I wrote 3 years ago on this topic in Reasons to Free Culture Through File Sharing:

      “I (Brian Rowe) personally and professionally advocate for many different solutions to the current problems related to locked culture. These solutions range from educating people, and organizations about the advantages of freeing their work, to legalizing sampling and non-commercial sharing. At the same time, I respect those who act in other ways to free culture.”

    Brian Rowe J.D.
    An over educated Pirate
    My comment is dedicated to the Public Domain.

  14. I would provide a counter-argument why having a pirate party would actually be constructive, but (as you state above) supporting a pirate party by the free software movement would not.

    A pirate party can provide a reactionary outlet for people that do not know or care about free software. It brings together new people that would not even consider the benefits of free software otherwise. It makes the ‘pie’ bigger.

    For people that are able and willing to understand free software message, it is important to stay with that message, but for people that do not want to think that far pirate ideology is a far simpler step in the same direction. Later there is a chance that some of them will put their other foot forward as well and join the free software revolution too. Any new free software person that we get via the pirate movement is a person that we are unlikely to get otherwise.

    A free software part does not have a chance in a parliamentary election. A pirate party (that strongly supports free software as part of it position) does have a chance as it is a bigger tent.

  15. Bejamin,
    very good points, even if Kaiku is right that “Most pirate parties are not trying to abolish copyright” (although I wonder how many of the people who voted them know this…)

    I would add to your reasons to not support piracy a fourth one: it is very stupid and counterproductive to support almost all current forms of piracy… because it only gives the majors “evidence” that they are right. I have explained this in “Mr Label’s nightmare” at http://stop.zona-m.net/node/88

    marco

  16. Another point is that to share works that are forbidden to be shared, you are in effect rewarding those who license their works under restrictive terms. Because, as we all know, “piracy” doesn’t actually harm the owners. It isn’t what they really want (they want to be directly paid) – but they’d rather you illegally share their works than ignore them altogether.

    “As long as they are going to steal it, we want them to steal ours.” – Bill Gates

  17. Have you actually read any material about political piracy? I suggest starting with piratpartiet’s principles (translated at http://www2.piratpartiet.se/international/english) and moving on from there. The finnish piraattipuolue has a similar agenda (translated at https://www.piraattipuolue.fi/english)

    Most pirate parties are not trying to abolish copyright, but only allow non-commercial distribution and bring some sense into the commercial realm by shortening the protected period.

    Please try not to see pirate parties only as proponents of what is currently referred to as “copyright infridgement”. They’re so much more.

  18. So Benjamin, I think you’re saying that the idea of a “pirate” associates (whether we like it or not) too strongly with the idea of free as in beer and not enough with free as in speech.

    I think this gets right to the point of why I heavily favor advocating/defending the rights of “file-sharers” rather than “pirates”.

  19. In general, I agree with your post and comments that embracing “piracy” does not help Free Software.  I’d add another one: when you pirate proprietary software, you just get a proprietary program for free, but you still can’t share and improve it, because you don’t have source.  (Remarkable reverse-engineering efforts notwithstanding, and take a look at the “romhacking” community for some exemplary efforts in that direction for very old game software.)

    On the other hand, when it comes to other forms of copyrighted works, such as text, music, images, and videos, I think the lines get a little blurrier; consider the concept of a “remix”, even one that goes beyond what “fair use” might consider legitimate.  I consider such things entirely reasonable (assuming credit to the original).  Even passing around the unmodified original in between friends often represents a case of “hey, listen to this”.  Passing around the unmodified original en masse, on the other hand, often has less to do with sharing and culture, and more to do with getting something for free.

    In short: I’d rather pay for Free Software than get proprietary software for free, legitimately or otherwise.  I’d also rather support remixers in many different forms, while not particularly embracing the people who just want things for free.

  20. “A principled position suggests that it is our ethical prerogative to create alternative models.”

    The need to create an alternative model presumes that there is a problem to be solved which requires a building of some “model”. I think a lot of people would argue that there is no inherent problem to tackle in the first place.

    If we agree that a lot of things which today are called “businesses” are not inherently something that requires to be a business (like music), let alone an “industry”, we would see that the whole copyright problem is non-existent.

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