Benjamin Mako Hill, one of my favorite young academics has a great piece up on the ethics of Free/Libre/Open Source Software and the pirate party. I have personally been conflicted over this issue. I am a strong support of Free Culture and also a strong supporter of the Pirate Party. Ben’s points are worth looking at in detail. I have reproduced his whole piece Piracy and Free Software here with extensive comment:
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.
Stalman understates the choice 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.
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.
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.
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.
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.
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.
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 topic). They are looking for ways to compete with sharing. Do not under estimate the power of sharing.
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.
Copyright in a world without GPL or CC BY SA is clearly broken. 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.
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.
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.
I strongly disagree here. 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.
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.
This is a matter of perspective. 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.
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.”
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.”