King Downloading Backlash: Randy and the Rationalizations

Ethics Alarms wasn’t the only one to challenge Randy Cohen’s embrace of illegal downloading in his “The Ethicist column last week. It caused a great deal of debate elsewhere, and , as usual, most of the tech heads sided with Cohen. Two of the most common arguments were endorsed by the excellent blog Tech Dirt. The first is the most popular, and the easiest to discard. The second is equally wrong, but explaining why takes longer.

Cohen famously wrote that downloading a bootleg electronic copy of a Stephen King novel (after the downloader had bought the hardcover book to assuage his conscience) was illegal but ethical. I wrote, correctly, that breaking the law is inherently unethical, and I am always amazed at how many people try to dispute this. It is inherently unethical because the ethical duty of citizenship requires that we respect and follow the laws and rules of our community. Breaking the law just because it benefits us is a clear breach of the “what if everybody did it?” principle. Civilization is chaos without laws, and it is unfair for some people to disobey the laws at will: if they do, eventually nobody will obey the laws. What gives the downloader, or Cohen, the special right to decide that a particular law doesn’t count? Nothing. Either nobody has that right, or everyone does. If everyone does, society collapses.

There is an ethical way to break a law one believes is wrong and unjust, and it is Thoreau’s way. Break the law openly as a protest, and accept the punishment: this is civil disobedience, and it is honest and courageous. Cohen, however, is advocating surreptitious law-breaking. Thoreau wouldn’t approve, and neither do I.

[The other kind of law-breaking which may be ethical is when an individual must break the law to save an individual from grievous harm, as when one breaks the speed limit to rush an individual to a hospital, or steals otherwise unavailable medicine to save a child’s life. It should be obvious that stealing a Stephen King novel doesn’t reach this level of necessity.]

Then there is this argument, quoting Mike Masnick on Tech Dirt:

“…First of all, the situation he was discussing was one where the ebooks were not even available — so it wasn’t even a question of the author losing any money. And that’s the key point that Cohen is making, which seems lost on the people attacking him. Morality only really comes into play when there’s a question of who wins and who loses. When you need to make such a choice, that’s a moral question. If there are no losers, there’s no moral question to deal with. What Cohen is pointing out — quite accurately and ethically — is that in a scenario in which there is no loss, but only gain, then it cannot be seen as unethical. What the person above was stating is totally different. In each of those examples there is a real loss. Something scarce is taken, and that means others can’t have it. But with the ebook of a book that hasn’t been released in that format, that’s not even a question.”

What is being proposed here is really the “no harm, no foul” rationalization, and as usual, it doesn’t wash. If someone breaks into my house while I’m asleep, watches my TV, then leaves, putting everything back where it was, is that wrong? Mike would say not—after all, what have I lost? I will never know what has happened, Mike would argue, so it’s OK. Of course, it isn’t OK. The house is mine, and I have an absolute right to decide who uses it, even if I’m not using it myself. Nobody has the right to use my property unless I give permission. Mike’s argument would allow strangers to live in my house while I’m gone, drive my car (as long as they refilled the tank), even sleep with my wife, as long as I didn’t know and “didn’t lose anything.” It is the ethical equivalent of “a tree that falls in the forest with no one around makes no sound.” An affair my wife never learns about? I win, nobody loses, so nothing “is wrong.”Go ahead and secretly use your neighbor’s Wi-Fi too–it isn’t costing him any more, even though you’re getting it free. The Wi-Fi provider, isn’t losing either, because if you didn’t get the signal free, you still wouldn’t pay for it. Nobody loses!

It should frighten us that people think like this. If nothing else, we are harmed by our undiscovered unethical acts, because it corrupts us, damages our moral compass and our ethics alarms. The more we come to believe that theft is acceptable, the less acceptable we become as members of society.

Anyway, even if it wasn’t logically and ethically bankrupt, and it is, Masnick’s argument doesn’t apply here because there are losers. Let me list a few:

  • Using the illicit copy encourages others to make illicit electronic versions of other copyrighted works. Other readers will use them instead of buying a hardcover version.
  • The owners of the copyrighted material do not want to have it acquired in this way. Their wishes, which they have an absolute right to have followed to the letter, are disobeyed. That is harm. They lose.
  • The availability of bootleg e-versions of the novel reduce demand for a legitimate e-version, making the venture less profitable, and maybe impossible. A loss.
  • When the e-version is available, the only reason the downloader won’t pay to buy it is that he already has it. A purchase is lost.

I’m sure there are others, but these are plenty. The point is, there are losers. Stealing the electronic version of the novel would be unethical in any event, but even using Masnick’s formula, Cohen’s reasoning doesn’t turn theft into fair use.

I do think “Randy and the Rationalizations” would be a great name for a rock band, however.


Note: “The Ethicist” is 3 for 3 this Sunday, with all advice squarely and indisputably ethical.

6 thoughts on “King Downloading Backlash: Randy and the Rationalizations

  1. Pingback: Valuable Internet Information » King Downloading Backlash: Randy and the Rationalizations « Ethics …

  2. Cohen’s blindspot is failing to consider all the possible victims and confidently (arrogantly) declaring that he has found the greater good. His pithy nod to “ethics, forestry and fitness training” ignores the future seller of the online version that is bypassed by the pirated version.

    If the writer had copied the entire book into a .pdf and put it on their Kindle for personal use it would be a more accurate comparison to putting a CD on an Ipod, with a better claim that it was ethical – but certainly not by downloading an pirated copy.

    Illegal = Unethical is a pretty reliable formula that should be challenged with care.

    • But you know, Kevin, every time I write about how violating a law intentionally and surreptitiously is per se unethical I get mocking comments. This battle goes way, way, back to my college days, when I refused to use pot despite it virtually being thrust in my mouth by friends. “It’s wrong, that’s all,” I said. “Just because it’s illegal? Seriously? Even if it’s a stupid law?” “Even if it’s a stupid law,” I’d answer, to guffaws. “Citizens have a duty to obey laws, whether they risk arrest and punishment or not. Illegal is wrong enough for me.”

      (I don’t think it’s a stupid law either.)

  3. Jack,
    No pot smoking? What a buzz kill ..


    PS: Concerning my sawdust/plank argument: I’d agree that this was an issue worthy of serious consideration more if it weren’t for the fact that illegal downloading (much like grass) is not a “gateway” to future crime. People download because it’s free, fast, and the risks of getting caught are rather slim (also like grass), but are likely to leave it there. Were we to live in a world with no other crime or major ethical issues then yes, arrest the downloaders. But, unti then, we have much larger fish to fry ..

  4. Jack,
    Wait. Does that mean I win? Probably not considering my less than stellar debating record, but it soothes my ego to think such is the case .. so I will.

    All the best ..


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