Piracy and Free Software

Posted 11 Oct 2010 at 16:51 UTC by mako Share This

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 support.

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. 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 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."


Oppose, posted 27 Oct 2010 at 06:58 UTC by audriusa » (Journeyer)

Free software is largely about access to the source code. Illegal copying of binaries does NOT make the source code open. It actually helps to confine even more people, now suggesting them proprietary stuff for free or under very reduced price. More pirate software means less true Free software.

Because of that, I think, Free software movement is fundamentally different and could better cooperate with initiatives against illegal copying, offering obvious alternatives.

wrong frame of reference, posted 21 Nov 2010 at 05:16 UTC by notzed » (Master)

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 purposes.

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 time yet.

And free software is about much more than mechanical access to the source code.

Re: wrong frame of reference, posted 24 Dec 2010 at 23:26 UTC by Omnifarious » (Journeyer)

`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.

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 marketing purposes.

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 on us.

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.

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