For perspective, let's deal with copyright infringement
separately on legal, moral, and financial planes.
Legally, U.S. Code forbids copyright infringement. A person, by default, has copyright to any and all of his creative work without an application process, without registration, without necessarily intending to have it. Refusing copyright over a work -- passing it into the public domain -- takes more effort from the author than copyrighting it did. Copyright lasts somewhere between 70 and 90 years. And the U.S. forbids copying the work without permission of the copyright holder. Thus far I agree with Braunbeck completely. In fact, I daresay everyone knows the following two facts:
- That copyright infringement is illegal, and
- That you'd get away with it.
So let's move on. Morally, the issue becomes cloudy. Our corpus of intellectual property
law, including copyright
s, and perhaps trade secret
s, exists purely for pragmatic reasons. Thomas Jefferson
remarked famously, and in my opinion quite incisively, that
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself, but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.
He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breath, move, and have our physical being, incapable of confinement or exclusive appropriation.
Inventions then cannot, in nature, be a subject of property.
No one has a fundamental right
to ownership over an idea or even creative work. Ideas are non-rivalrous
, TJ says -- my use of your idea does not diminish your own use. Therefore we maximize social utility
by sharing ideas.
Deontologically, humans have no inherent right to restrict others' access to information, original or not. On the other hand, one might certainly make the case that humans do have an inherent right to learn: to drink from the fountain of wisdom that tropes for the sum of human knowledge. Thus follows public education, free speech doctrine, and widespread respect for human expression and learning.
This point -- that there's no universal, inherent, fundamental human right to restrict others from an idea -- has proven difficult for some readers, so I'll unpack it a little more with an analogy. Let's take any typical good, both rivalrous and excludable: a loaf of bread and a pound of fish. It's rivalrous because, when you eat the food, it diminishes my ability to eat it. And it's excludable because I can prevent you from eating the food: I'll lock it in my kitchen, where you can't get to it.
But imagine, somehow, by narrative fiat if you will, that we define the bread and fish to be non-rivalrous. What does that mean? It means that no matter how many other people eat the fish and the loaf, the same amount remains left over. Our bread and fish have become a bottomless cornucopia; we could feed unlimited throngs of people at no cost. But let's suppose I don't want to end world hunger; instead, I want to keep the food locked in my kitchen and let vast populations continue to starve. Let's even go so far as to imagine that a third-world dictator pays me twenty thousand dollars a year to keep it that way. Would humanity be justified, collectively, in rising up against me and taking the bread? Seizing the fish? Feeding the starving masses at the expense of my claimed right to exclude people from the feast? I think it would, and if you agree, then you understand why there is no inherent human right to own ideas. Non-rivalrousness of a good negates the deontological justification for propriety. In simpler words, if a good can be shared by all without diminishing its utility for any, then it should not be considered property in the traditional sense.
Whence, then, intellectual property law? Ironically, utilitarianism gives us our motivation and justification: when the government grants the individual a limited monopoly over his work, it allows him the ability to profit from it, and an ability to profit becomes an incentive to create. But in an age of moneyed interests and widespread propaganda, we must take care to remember the path we traveled in justifying intellectual property laws: they are entirely utilitarian, hinged on and owing to their ability to incentivise the creation of original work. And they come at a cost: the restriction of the individual's ability to drink freely from the fountain of human knowledge. Their lease on legal life must therefore remain contingent upon the benefits of motivating creation outstripping the costs of restricting access to the fountain.
So when evaluating whether a particular piece of copyright doctrine or even an individual case of copyright infringement are morally sound, we must evaluate the benefit to the individual of accessing the information with respect to the burden to artists' incentives. Subtract A from B, and if we have a positive utile count, then by all means restrict the access with a clear conscience.
This evaluation leads us to our third area of discussion: the finances of copywrong. Here we tend away from the general case and look more closely at the specific case of Braunbeck and his writing.
First we will attempt to evaluate the value a copyright infringer gleans from illegally downloading his work. Let us assume that his book -- which is what Braunbeck says concerns him -- takes between three and four hours to read. Assuming the reader could otherwise spend that time at a minimum wage job and make a total of at least $18 for the same amount of time, it is fair to conclude that he valued his consumption of the work at greater than or equal to $18. (As to the pirate who downloads but doesn't read the book -- well, obviously he has no desire, before or after the download, to purchase it. Therefore he's a zero in both categories, and consequently has committed no moral offense.)
Now, let us evaluate how much the piracy costs Braunbeck. In his writeup, he claims that every download of his book reduces his income by $0.60. But in his calculation, he makes one significant and faulty assumption: that, had the pirate not had illegal access to the work, he would have made a legal purchase instead. Instead, as any Probability 101 class teaches, we must multiply the cost of a lost sale by its probability to get the net expected loss.
So what's the probability that a pirate would otherwise have purchased Braunbeck's book? Consider that he claims that a best-seller achieves only 100,000 sales. We'll (generously) assume that this applies to the U.S. only, and (less generously but by his own admission) assume that Braunbeck's book does not qualify as a best-seller. Of the United States' 280 million citizens, then, less than 100,000 will purchase the book. Therefore, the probability of any single citizen purchasing his book is 100,000 divided by 280,000,000, or 0.000357.
(A note, in the interests of full disclosure: that, right there, was the step that the statisticians among us revile and dispute. I admit my analysis does not meet academic standards of rigor, but I think it's a pretty decent best guess. The figure we're aiming for is the probability that a given pirate, deprived of his means of piracy, would otherwise buy the book. So starting at my figure as a baseline, in which direction is it biased? Readers suggested, essentially, that a pirate willing to hunt down and download Braunbeck's work is more likely to buy the book than someone selected at random from the country's population. This may be, but I contend that most pirates of his work aren't specifically looking for it; rather, they're browsing the stacks on IRC and downloading any/all works that sound vaguely appealing. In this case, without piracy, the individual would never have heard of the work -- or they would turn to another, legal, browsing medium, like the library or a bookstore, where Braunbeck's work would face much stiffer competition from the sum total of published authors (rather than only those who had found their way online). From what I've seen of the dark underbelly of IRC, this casual aisle-browser is closer to reality than the motivated pirate sifting through channel after channel in his search for Braunbeck's work. Also in this analysis, consider that Braunbeck is not a household name, and imagine your own behavior regarding an archive like Project Gutenberg; I imagine most (99.9%+) who go to Project Gutenberg look for a household name like Lewis Carroll or George Orwell and, in the chaos of contemporary digital archives, only stumble upon lesser known authors. In any case, while I believe my number reflects reality, I don't pretend that the analysis used to reach it adhered to principles of unapproachable rigor. But even if the figure is significantly off, my conclusions can afford a very large margin of error. In any case, since it is impossible to calculate the value rigorously, let us continue our odyssey with my figure as a best guess.)
$0.60 * 0.000357 = $0.000214286.
He therefore loses approximately one fiftieth of one cent per incident of copyright infringement. If he finds a single dollar bill on the street, it'll cover his financial losses for another forty-six hundred infringements. Compare that to the $18 the book is worth to the kid who reads it; incurring a dollar loss to copyright infringement means Braunbeck has provided the human race at least $84,000 of utility to others. Eighty-four thousand to one is a damn good return on investment. If, by sacrificing a single dinner, I could deliver a eighty-four thousand meals to people who need them, it would be heinously selfish of me not to do so. Even if I were on the brink of starvation, how could I justify depriving eighty-four thousand other similarly starving people of a meal? I couldn't; that rate of societal return on investment would be too great to ignore. Consequently, neither should Braunbeck.
Though the law must be clear and categorical about the dos and don'ts of copyright, it appears to be absolutely acceptable, morally, to download and read Braunbeck's work. If you like, mail him a penny; that'll cover your infringement and 49 others'.