Kevin Drum takes a courageous and rare stand on the internet, arguing that yes, downloading millions of files from JSTOR while evading attempts by both JSTOR, and the owner of the network you're using, to stop you, is, well, pretty close to stealing:
This affair has raised a lot of hackles among the infovore set, but I'm a little stumped about why I should be outraged. As James Joyner says, maybe this should have been a civil matter, not a criminal one (though Swartz did break into an MIT network closet to do all this), but beyond that does anyone really think JSTOR should just sit idly by as their entire archive is downloaded? Would the librarians at Stanford sit idly by if someone backed up a semi and started shoveling hundreds of thousands of books into it? Sure, there's no evidence that you're planning to steal the books. Maybe you intend to return them all in two weeks. But come on. Are we really all expected to be that stupid?
Likewise, Swartz may say that he had no intention of putting his 4.8 million documents online, but come on. It's a pretty safe assumption, no? Swartz's suggestion that he just wanted to perform a research project is a wee bit improbable.
As near as I can tell, Swartz is basically engaging in civil disobedience, publicly breaking a law that he considers unjust in order to generate publicity. Fine. But one of the tenets of civil disobedience is that you accept that you're breaking the law and accept the consequences. Now he is.
Naturally, Kevin's readers lay into him, saying that this is completely not a good analogy, because of course, when you download JSTOR's files, JSTOR still has the files.
This is a concept that economists call "non-rivalrous goods", and it's very important to file-sharing advocates. I don't think it's going to far to say that for many proponents, it's at the very heart of their case.
And yet, it's not clear to me why this is supposed to be a devastating rejoinder--why rivalrousness is so fundamental to property that we should not have property rights over non-rivalrous goods. I get the sense that people find it intuitive that many people think property is, at its heart, a system for deciding how to allocate a limited and fixed set of stuff.
And, of course, it is that. But it's not just that. Property rights serve a lot of functions in our society, and property rights can attach to things that are quite nebulous indeed, like accounting entries in computers that exist in a physical space not visible to the naked eye. They are highly contingent in ways we rarely think about. I'm not sure how we settled on "it's non-rivalrous" as the reason that file sharing is a) not stealing and b) okay.
I've asked a bunch of libertarians this question, since they usually believe in very strong property rights as both a moral and an economic imperative--but also display a somewhat disproportionate aversion to strong intellectual property protections. So far, I don't feel as if I've gotten a lot of satisfying answers as to why people who support strong real estate protections and weak IP protections think that this particular argument matters so much. I have heard a lot of restatements of the definition of non-rivalrous goods, gotten many elaborations on why rivalrousness is different from non-rivalrousity, been told what the implications are for various markets and so forth. But they haven't, to me, advanced a theory of property--either moral or economic--to which the property "rivalrous" is really so obviously fundamental that in its absence, we're no longer dealing with property.
Reading through the comments to Kevin's post, it occurred to me how many of the analogies seem to have been designed by and for college students. Which is to say, they are reasoning from a pretty simple version of property, appropriate to someone who doesn't really engage in much commerce. The important aspect of property in these arguments is personal use. And of course it is true that if I have a JSTOR article, your copying that article does not deprive me of it.
But personal use is far from the only function of property in a modern economy. If you think about uses beyond what might happen in a dorm room or professor's office, these answers to Kevin's analogy seem less apt.
Think about a bookstore, for example. Why isn't it okay to take their books?
Because, unlike with file-sharing, I haven't deprived them of the use of the book, you will say.
But in the sense that file-sharers are talking about, Barnes and Noble is not using the book. They want to make money off of it, but they are not interested in reading it, or using it to prop up a shaky table leg, or impressing people who see it left on the coffee table. In fact, holding onto that copy of the book is costing them money.
Stealing the book doesn't deprive them of the use of the item, in the primitive way that most of the analogies offered by file sharers seem to me to depend on. What it does is deprives them of one very particular use: the ability to sell the book for its set price.
But isn't this exactly the use of which you deprive musicians of when you download an album that you otherwise would have bought? Once you download it for free, they can't sell it to you.
But other people can't use that book either, you will say.
Not that particular book, no, but who cares? In all important aspects, that particular book is identical to thousands of other books with the same words on the cover. It is very unlikely that anyone who shows up at Barnes and Noble with the purchase price of a book will be denied the opportunity to walk home with all the words, illustrations, and page numbers that you "stole". Barnes and Noble stocks many, many copies of the books they sell, and if their stock dips below the amount they want to hold, they will automatically order more.
There is perhaps some hypothetical case in which someone wants a rare book you have stolen right now and cannot get a hold of it for two days because of your actions, but these cases are going to be extremely rare: by definition, if Barnes and Noble does not have extra copies of a book around, it is because almost no one buys it. We probably should not construct a whole system of property rights around extremely rare boundary cases.
Moreover, no book sells every copy that the bookstore has. They get damaged, lost, and eventually remaindered--sent back to the publisher. One could plausibly argue that an individual book-thief is simply slightly lowering the eventual supply of remaindered books. Which is to say, the supply of nothing: some of those books used to be sold in remainder bookshops, but with the economics of bookselling being what they are, these days, as I understand it, they're mostly just destroyed. So really, you're not stealing a book: you're saving it from being pulped.
But the book cost them money
That's true. But it cost them a pretty small amount of money. You probably cost them more if you leave a mess in their public bathrooms, or mumble your latte order so that the clerk gets it wrong and has to do it over, but we don't give Barnes and Noble property rights in those things.
More to the point, this doesn't have anything to do with whether a good is rivalrous or not. It has to do with whether the good has a low marginal cost. Making records costs money too.
But not for the individual copy. Electronic files have zero marginal costs.
But hotel rooms and airplane seats also have near-zero marginal costs. Is it therefore okay to sneak into a hotel room, as long as you make the bed perfectly before you leave?
This brings us to the issue of trespass, which--despite the fact that it is often, maybe even usually, non-rivalrous, most libertarians don't support. If you own a cabin in a snowy and distant mountain, and I know for a fact that you cannot leave town for the weekend, is it okay to pick the lock and use my house?
You might break things.
Is it okay if I am very careful, or only occupy a small portion of the home filled with things that are not breakable?
I might change my mind and want to come.
The partners said everyone in your group has to work all weekend. Your wife is dying in a hospital bed, surrounded by all your friends and family. For whatever reason, I can be reasonably quite sure that you are not going to use this property this weekend. Is it okay, morally, for me to use it? Should you have legal rights against me if you find out? How about camping on a part of your property that you haven't trod in ten years?
Even if you clean up, you'll change things.
Seriously? We're arguing for a system of property rights because I disturbed some leaves on your property?
You might frighten away deer I hunt. You can't know whether you're damaging my property, or whether I might want to use it, which is why I should be able to decide whether I want you to change things.
But this is the argument of publishing houses, and increasingly, artists: they should be able to decide whether you get to make non-rivalrous use of what they created, and whether your use damages them.
Also, you could make the law clear that you had to be really, really sure that they wouldn't come, or you wouldn't break things, before you could use peoples' stuff. Law makes fine distinctions like this all the time.
(For that matter, as I understand it, the law actually does give me a right to trespass if, say, I am lost in a storm and am clearly going to freeze to death unless I break into your cabin. I may have to pay you for any damage I do, but I'm not legally in the wrong simply for entering your property.)
On the other hand, there are plenty of rivalrous uses that do not have clearly defined property rights, like how loud parties can be, how much smell or visual blight can be inflicted on a neighbor, how much care I have to take to keep the rat population down, how to allocate responsibilities and rights over common resources like ponds and trees that span property lines, and so forth. These questions are adjudicated differently in different jurisdictions, or by negotiation between neighbors, because no one has a particularly well developed theory of how such rivalrous uses should be allocated.
Now go back to those accounting entries at our bank. They do not take up any meaningful physical space, and they're non-rivalrous: if I copy them and pretend they're mine, you can still use yours.
To the extent that they're rivalrous at all, it's only because--as with intellectual property!--we have a social convention, and a very strong legal regime, that makes it that way. There's nothing inherent about the computer entries that makes it so we couldn't both claim to have the money in your bank account--and both be right, if the government and our neighbors would just agree with us.
And yet most of us think that counterfeiting is a very, very bad thing to do--that it is a next door neighbor to stealing, if not living in the same house. They think this even if the counterfeiting is so good as to be undetectable. Most people support the treasury's efforts to fight counterfeiting, rather than arguing that we should simply stay with the old, easy-to-counterfeit currency so that we could all enjoy the bounty of increased money supply.
Fine, counterfeiting is bad, but it's not stealing, you may say-- it's only stealing if it's rivalrous.
I think the argument about whether file sharing is "stealing" or some other word is really tedious and beside the point, and ends up in circles where you say that maybe it's wrong and it's not stealing and when your opponent concedes the point you argue that it's not wrong because after all, it's not like stealing and no one has less stuff . . .
But I digress. Let's talk about this distinction.
Why do we oppose counterfeiting, if it doesn't deprive people of anything? The answer is that it is stealing: by increasing the amount of currency in circulation, it makes everyone else's money worth just a little bit less. It's just stealing from everyone, instead of one specific person. Nor am I just playing with words; this has always been a historic justification for laws against counterfeiting, usually the most important one besides a bunch of puffery about the majesty of the state.
It's also, I'd note, the language used by a lot of libertarians about governments who print money in order to make their debts easier to pay back. And it's not really an unfair usage of the word.
It's important to note that most people who think about it agree that counterfeiting is basically like stealing even though no one counterfeiter is likely to have much impact on the money supply (with the possible exception of the government of North Korea, which was allegedly printing US bills on an industrial scale for a while). Even if you're having a tiny effect that only becomes really problematic in aggregate, I think the common intuition is that it's wrong to deprive people of even a tiny fraction of the full use of their money. If I made a perfect copy of your AT&T shares and sold them, no one would much care if I pointed out that you still had the physical certificates.
Or to take an example offered by Kevin Drum some time back:
But if he had a draft magazine article stored on his hard drive, and his girlfriend copied it and sold it somewhere without his knowledge, I'll bet he'd consider it stolen -- possibly with the word emphasized by hurled crockery and intemperate language. He'd consider it stolen even though, technically, he still has a copy too. And he'd be right to. Before the theft, he had the potential to earn a certain amount of money by selling the publishing rights to his work. Afterward, he didn't. That potential may not be a tangible physical object, but that doesn't make it a nonrival good. Once it's gone, it's gone.
We could argue about whether this is stealing or plagiarism, but who cares? We'd all agree it's really, fundamentally wrong. And not just because she's passing off someone else's work as her own, though of course that's part of it. I think most people would agree that it is much more wrong to plagiarize and publish an article that hasn't been sold yet, thereby depriving the author of the income they would earn, than to say turn in a column that was a straight lift from Montaigne.
All of which is to say that we don't, in fact, seem to think that rivalrousness is actually a fundamental property of property--we think that property rights still apply even when we're not using our property, and have no intention of doing so. We think that depriving Barnes and Noble, or the publisher, of the revenue from a book we stole is wrong--and that depriving a friend, or even a stranger, of the revenue from an article they wrote is also wrong even if no physical object is involved. We think that counterfeiting is very close to stealing, but more fundamentally, that property rights inhere in all sorts of things that are rivalrous only by the mandate of the state.
None of this establishes that we should have strong IP, of course--only that I don't think you can make a good case against strong IP by pointing out that Rihanna can still listen to "Pon the Replay" any time she wants. Or that copying is super cheap. Or that no individual file-sharer costs the owner of the rights very much money.
But of course, no system of property rights is built from first principles. Nor did property rights spring full-blown from the head of Zeus at the dawn of the universe. It's a highly contingent system that evolved over centuries, with all sorts of weird principles that we'd never have thought of if we'd been designing the thing from scratch. (For example, read the chapter in Moby Dick about the system for allocating rights over hunted whales. A lawyer once told me that in law school, his class was assigned to come up with a system to solve the problem. No one came up with anything that looked like what actually evolved; the only justification for the real system was that it worked.) That's why I don't find these heroic invocations of very simple principles nearly as convincing as, well, most of the avid file sharers I know.
As to whether we should have strong or weak IP rights, I'll leave that for another day, since I've gone on quite long enough.
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