Peter Frase

There's a perpetual argument, among people who care about intellectual property law, about whether unauthorized copying (downloading mp3s, say) is properly called "stealing", and whether it's morally equivalent to taking a physical object from someone. There are powerful forces that want to draw an equality between copying and stealing, as we recently saw in comical style in the [Aaron Swartz](http://www.peterfrase.com/2011/07/artificial-scarcity-watch-arrested-for-downloading-from-jstor/) case. The contending positions in this debate reflect fundamental differences of opinion about how we should view the circulation of immaterial goods like musical recordings or software; I want to draw out some of these differences by contrasting three recent posts from three different authors on the copying-versus-stealing issue.

[Matt Yglesias](http://thinkprogress.org/yglesias/2011/09/01/310455/copy-digital-files-still-isnt-the-same-as-stealing-physical-objects/) recapitulates the standard argument of intellectual property critics, which is the one I've always been most sympathetic to: copying and stealing are totally different things. This position turns on the distinction between what economists call "rivalrous" and "non-rivalrous" goods. A good is rivalrous if you can't give one person access to the good without reducing someone else's access to it. If I walk into a store and take a pair of shoes, for example, then I have more shoes than I had before, but the store has less shoes. With non-rivalrous goods, on the other hand, you can expand access without reducing anyone's ability to enjoy the good. So if I copy an mp3 file, then I have one more mp3 than I had before, but nobody else has less mp3s. The upshot of this argument is that it doesn't make sense to restrict the distribution of non-rivalrous goods unless such restrictions are necessary to encourage people to create the non-rivalrous goods in the first place. That latter rationale is the one written into the part of the constitution that permits copyrights, but IP critics today hold that copyright has expanded far beyond this original purpose.

Yglesias was responding to a post from [Gavin Mueller](http://jacobinmag.com/blog/?p=1465), which stakes out the position that copying and physical stealing are basically the same. But rather than take the IP lobby position that copying is stealing, Mueller basically argues that stealing isn't really stealing either, because things like mass-produced shoes aren't scarce in the way the theory of rivalrous goods requires. I have some problems with Mueller's argument, so let me reconstruct it in a form that I think is more defensible.

In a capitalist economy, manufactured commodities aren't "scarce" in the narrow sense. That is, the quantity of shoes in the world isn't fixed. There are factories around the world that could ramp up production of shoes if they wanted to, especially in a recessionary period like this one. What constrains the supply of shoes at the margin is the lack of *demand* for them. But if some people go and steal some shoes from a store, then the owner will have to order more shoes sooner than she otherwise would have, and as a result there will be more shoes in the world than there would have been otherwise. As long as the amount of shoplifting is small relative to the amount of shoes that are sold, the result will not be to put the shop out of business; rather the loss will be absorbed through some combination of reduced profits or higher prices for paying customers.

You could therefore make the argument that a certain amount of shoplifting is welfare-improving for society as a whole, particularly if the owners and paying customers are richer than the shoplifters, and thus able to afford absorbing the cost of the shoplifted loot. Moreover, shoplifting is good Keynesian stimulus! The problem, of course, is that it's heinously unfair to decide who gets free shoes on the basis of who's crafty and daring enough to be a good shoplifter--but that's a different kind of argument, a *moral* argument, and I'll get to that below.

For the third position in this debate, we have [Kevin Drum](http://motherjones.com/kevin-drum/2011/09/it-stealing-or-sharing), who also takes the position that copying and stealing aren't so different--but he touches down close to the IP lobby position that copying is like physical stealing, and both are always wrong. Drum bases his argument on the monetary cost of copying or stealing. If you steal shoes from someone, you've deprived them of the retail price of the shoes (or perhaps somewhat less than that if the shoes were bought on discount, old and worn, etc.) Likewise, if you copy somebody's album, then "his loss is the royalty payment he won't get on the album you didn't buy."

The problem with this line of argument is that Drum has redefined "stealing" in a way that makes it almost infinitely expansive: whether you steal a person's shoes or copy their album, he says, "in both cases, you're causing [them] to take a financial loss." But the right not to take a financial loss is not a right that capitalist societies have traditionally recognized--indeed, the notion that property owners should be guaranteed a revenue stream from their property is a [rentier logic](http://www.peterfrase.com/2011/07/slouching-towards-rentier-capitalism/). It's a bogus argument when it's made by German banks demanding full payment on their [crappy loans](http://yglesias.thinkprogress.org/2010/12/the-questionable-prudence-of-the-savers/), and it's equally bogus in this context.

By the "financial loss" criterion, all kinds of things that we think of as legitimate constitute "stealing". If I badmouth a bad auto mechanic on the Internet and reduce his business, I'm "stealing" his reputation. If Apple introduces a really popular new iPhone that causes people to switch from Android, it's "stealing" Android's market share. Drum recognizes this and admits that "there are lots of ways of causing people to take a financial loss, and not all of them come under the rubric of stealing." But he doesn't make a real case for why copying is more like shoplifting than it is like posting negative Yelp reviews. Instead, he blows off the whole argument by saying that "it mostly seems to be a way of avoiding the very real fact that you've caused someone a financial loss by appropriating something you haven't paid for." But this just begs the question: the whole issue under debate is about *what it's legitimate to make people pay for*.

My take on all of this is that these issues can't be resolved by appeals to economics or financial damage. This argument is really about two conflicting sets of values about how culture and knowledge should be treated, or two different "moral economies". The term "moral economy", as used by historians, refers to the beliefs people hold in common about what constitutes legitimate and proper behavior by economic actors, and what is unacceptable even if it is legal or profitable. As E.P. Thompson said in a [famous essay](http://libcom.org/history/moral-economy-english-crowd-eighteenth-century-epthompson) about English bread riots in the 18th century:

> It is of course true that riots were triggered off by soaring prices, by malpractices among dealers, or by hunger. But these grievances operated within a popular consensus as to what were legitimate and what were illegitimate practices in marketing, milling, baking, etc. This in its turn was grounded upon a consistent traditional view of social norms and obligations, of the proper economic functions of several parties within the community, which, taken together, can be said to constitute the moral economy of the poor. An outrage to these moral assumptions, quite as much as actual deprivation, was the usual occasion for direct action.

Thompson goes on to observe that at this time, "bakers were considered as servants of the community, working not for a profit but for a fair allowance"; hence their behavior was constrained not just by what was legal or profitable, but by what was considered morally right.

Moral beliefs about what is legitimate economic behavior are not unique to early capitalism, but exist even in a hyper-marketized age like our own. As Karl Polanyi [argued](http://www.scribd.com/doc/24760408/Karl-Polanyi-s-Concept-of-Embeddedness-Fred-Block), all economies are embedded in a broader set of social relations. And moral economies are very much in play in the debate over copying and stealing. In the Aaron Swartz case, for example, a lot of the outrage was about a moral assumption: that academic work done mostly for free, by professors who are often supported by taxpayer money, shouldn't be locked up behind an incredibly expensive paywall.

In the general debate over intellectual property, I discern two antithetical moral economies, which I think lie beneath many of the contending positions.

The first views the wealth of human culture and knowledge as something that is the shared cultural wealth of all of us. It recognizes that all new works of art and science are built on the foundation of older works, and go on to influence future works in their turn. It regards sharing, adapting, and improving older works as a positive value, and restricting access to existing culture as a negative value. Thus, in this moral economy, it is of the utmost importance that we be able to share and copy freely. Any restriction on the right to share and copy must be rigorously justified and shown to be in the interest of increasing our cultural wealth overall--as in the U.S. Constitution's statement that copyright is allowed if it serves "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." While it isn't inherently incompatible with intellectual property, the trajectory of this moral economy is to create a new kind of [class struggle](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=586463) and to put us on the road to [dotCommunism](http://emoglen.law.columbia.edu/my_pubs/dcm.html).

The contrasting moral economy holds that when someone participates in generating a new work of culture or knowledge, then that person has the inherent right to control the distribution and reuse of that information, and to receive payment for any profitable use to which that information may be put. Far from seeing pervasive restrictions on copying as a necessary evil, it sees them as exalting and honoring the hard work and creative genius of those who make new art and science. In this moral economy, to appropriate the creations of another is to violate the creator. But that way lies [anti-Star Trek](http://www.peterfrase.com/2010/12/anti-star-trek-a-theory-of-posterity/).

I think the debates about intellectual property would be a lot more productive if we recognized that they are fundamentally about two different and competing moral orders. I know that whenever I talk about these issues with normal people--i.e., not geeks who are obsessed with IP law--they aren't very interested in arguments about economic efficiency or rentier capitalists. They're interested in what's *right*, and views about that range from the demand that culture should be [free as in freedom](http://www.gnu.org/philosophy/free-sw.html) to the insistence that above all else, you must [pay the writer](http://www.youtube.com/watch?v=mj5IV23g-fE).\*

\* *Which, to be clear, I'm in favor of. I just have other ideas about how [the writer should get paid](http://www.cepr.net/index.php/publications/reports/the-artistic-freedom-voucher-internet-age-alternative-to-copyrights/).*