I was just reading up on torts; you never know when you might wake up and—shades of Kafka—you’re a lawyer. What bothers me is the ease with which one can acquire copyrighted materials online with no remuneration to the copyright owner, and the question is, is there some point where the ease of access itself alleviates the onus of what would otherwise be theft. As I’ve said recently, this is one of the usual arguments given in support of this activity: it’s so easy, therefore it must be okay to do it. But should we measure whether an action is moral simply because we are easily, or not easily, enabled to do it?
In tort law there is a concept called attractive nuisance, which applies to having property with inherent danger that could appeal to children. If you have a swimming pool at your house, for instance, that is an attractive nuisance. If children sneak into your pool, their safety is your responsibility because you created the attractive nuisance. As the owner of a swimming pool, therefore, you are responsible for keeping children out of it. So, you build a fence around it, and lock the gate. My understanding of attractive nuisances is slim, but I gather that it probably does not apply to situations where the attractees are adults. An adult knows better than to trespass on your property in the first place, whereas a child might consider the pool an invitation. But people downloading “free” music or movies or software mostly cannot claim ignorance of the ownership of these materials. Besides, ignorance of the law is no excuse, as the adage goes. Still, free content is, by some definitions, an attractive nuisance.
Let me say this: 09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63-56-88-c0. This series of numbers (google them if they’re not familiar to you) has sparked numerous discussions that go beyond the pure theft of creative material. As the creator of material, or as an employee of a content provider (I am or have been both), I believe and act upon the belief that creators of materials are entitled to the fruits of their labors. I wrote a novel, for which I was paid every time someone purchased a copy of that novel. Sounds good to me. I have written other material that I have given away (like what you’re reading now). I abet the free dissemination of Nostrum, which its creators feel should be available for free. The call is made at the level of the creator. You want to get paid for your work, then if someone wants that work they should pay you for it. You want to give it away, then that’s your decision. The marketplace will decide if people are willing to pay for your work or not. I don’t believe that the market place can decide, however, that they don’t like the price, and because they don’t like the price, they are justified in stealing it; I don’t think that’s anywhere in my copy of Adam Smith. But we keep coming back to the added attraction of the material’s availability for free despite the creator’s desires to be remunerated. Simply switch the discussion to musicians, who work hard writing and performing music. If they want to be paid for what they do, either you decide you’re willing to pay the price, and then you can have it, or decide that you’re not willing to pay the price, and then you can’t have it. Traditional market factors act on both sides. But in a world where, if you’re not willing to pay the price, you can still have it, then there’s issues.
There is, I think, a justifiable argument that the accessibility of content, the 09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63-56-88-c0-ability, if you will, does change the situation. No, I don’t automatically have the right to content simply because I have the access to content, but the access to content could indeed require a new approach to the rights to content. The owners and managers of content must accept that music and movies and software can be downloaded “unofficially” by anyone so inclined, and figure out a way to adjust the market accordingly. They must, if you will, remove the attractive nuisance, and in such a way as to profit from their labors. End-users have no just claim on content just because content exists in a claimable fashion, but the claimable fashion does dictate a need to rethink the content. Spiderman 3 is available on BitTorrent. Is the S3 content manager’s response making it a movie that one must see in the movie theaters? I guess so. But there’s more to it than that. At the point where every movie in the universe is available through the ether, then what? I honestly don’t know.
Still, at some point, the ethical decision to steal or not to steal is made on the personal level. So I don’t steal. But if you don’t define download S3 as theft, and for that matter, if the 09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63-56-88-c0 community supports you in not defining it as theft (assuming morality is a matter up for vote), then what?
Ah, the moral dilemma.
[Note from the content provider: I’ve changed my mind. Please send all your money to my email address if you wish to confront other moral dilemmas by continuing reading Coachean Life after the upcoming hiatus. Menickian bile will no longer be free for the asking, you spalpeen!]
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