Over the last few years, many advocates of access to information have
gathered and organized under the banner of piracy. Should FLOSS and free
culture advocates embrace advocates of piracy as comrades in arms
or condemn them? Must we choose between being either with the pirates or
against them? I believe that, unintuitively, if we 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. On free culture and free software's terms, we can
suggest that piracy is not ethically wrong, but that it is an
shortsighted and unwise way to try to promote sharing that we should not
Piracy and Free Software
This essay is a summary of my presentation at the
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. It was first posted on my
blog and there are comments and conversation there.
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
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
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
anti-copyright policies. Free culture leaders, like Lawrence Lessig,
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.
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
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."
This is framed poorly.
`Piracy' itself is such a loaded term it would be better to avoid it.
Even in the 'copyright sense' piracy is a criminal commercial activity
which sells counterfeit copies of existing products. This of course has
nothing whatsoever to do with friends sharing their possessions.
I imagine even `pirate parties' are somewhat more complex than just
wanting to remove copying rights, and their name is more for marketing
There is perhaps one significant area of common ground though.
Copyrights are being abused by rights holders to extract a private rent
from the public domain without time limit. This has major implications
for society as a whole. In most cases the real money isn't even being
made by the original authors or creators of the works. And even in the
rare cases when it does and is significant, one also has to wonder how
much money is enough compensation - does some rock-band really deserve
to make millions for their contribution to society. Does anyone deserve
to make enough money to fund a non-productive life for several
generations of their progeny?
So there is a great need for copyright reform, although all signs are
that it will get worse before it gets better. And I somehow think most
people will be more concerned with other more important issues for some
And free software is about much more than mechanical access to the
`Piracy' itself is such a loaded term it would be better
to avoid it. Even in the 'copyright sense' piracy is a criminal
commercial activity which sells counterfeit copies of existing products.
This of course has nothing whatsoever to do with friends sharing their
Well, that sounds all nice and neat, but the problem is the people
who want to stamp out 'piracy' actually want to stamp out sharing. They
care not one whit for whether or not an activity is commercial or not.
And they call people sharing 'piracy'.
So, whether or not the term is loaded, it's the one we're stuck with.
Better to reclaim it than look like the definition police trying to
explain why we aren't 'pirates' like those other people over there.
I imagine even `pirate parties' are somewhat more complex
than just wanting to remove copying rights, and their name is more for
The 'pirate parties' well understand what I just said. And while you
are absolutely correct that they (generally) want a more nuanced
approach than eliminating copyright all together, it's quite clear that
they realize that the other side in the debate is going to call them
'pirates' no matter what they do. Better to claim the term proudly and
redefine it in the mind of the public than to try to explain why the
other sides favorite label shouldn't stick (even though it will).
And I think free software advocates have a great deal in common with
copyright reformers. I think we should engage and support the pirate
parties while clearly remaining separate from them so if their bold
attempt to reclaim a misused word fails we won't get so much of the ick
So there is a great need for copyright reform, although
all signs are that it will get worse before it gets better. And I
somehow think most people will be more concerned with other more
important issues for some time yet.
I can think of no more important issue than the future of ideas.
Unfortunately, it's one of those long term things that a lot of people
can't see the importance of yet.