A Design-Centered View of Digital Piracy

While the rage has died down in recent years, many of my readers will remember a time in the 2000s when big media companies were screeching nonstop propaganda about the evils of media piracy, particularly music. As it happens, the rage has died down because of the arrival of new tools that made it easy for people to legally obtain the music they were previously “stealing.” Strangely, other industries seem to have not yet taken the hint, so I think it’s worth taking a look at the design issues here and how anyone interested in selling something that could potentially be pirated can stop worrying about losing their livelihood to pirated copies.

Straightening out our ethics

First of all, let’s get something straight: I don’t, as a general rule, condone piracy; it is illegal, and for the most part for good reasons. This said, the ethical issues here have been and continue to be greatly exaggerated, so let’s take a moment to break down the hype into actual issues.

To begin with, you might have noticed that I put “stealing” in quotes in the introduction. That’s because piracy isn’t stealing, no matter how much people might tell you it is. A standard component of both the legal definition and the everyday understanding of stealing is an intent to deprive the rightful owner of the stolen item’s use. While this intent might ordinarily be assumed if I, for example, walked out of a store without paying for my purchases, if I was able to clearly demonstrate the lack of such intent – say, by showing that I had a stroke and was taken away from the store in an ambulance with the items still on me, or by returning to the store with the items a few hours later, explaining I was distracted and forgot to check out, and offering to pay for everything – I wouldn’t be convicted of stealing. (Provided, of course, that I returned the items to their owner or legally purchased them. I don’t get to keep them for free regardless of whether I meant to take them!). But digital content is not subject to scarcity, and making a copy of said content, illegally or otherwise, has no effect on the original and doesn’t deprive anyone at all of its use. Thus, calling it “stealing” is misleading.

That’s all well and good, but presumably pirating something still means I’m not paying for it when I otherwise would have, right? Not so fast. In one particularly amusing lawsuit, the amount of damages the RIAA claimed against popular torrent site The Pirate Bay logically required that said site had, over the brief course of its existence, caused the loss of more revenue for media producers than all the money in circulation at the time! (The humor site Cracked did a popular infographic on this.) The point is that it’s not at all safe to assume that if someone pirates a copy of something, this was done in lieu of legally purchasing a copy of it. For instance, someone might pirate far more content than they could or would have paid for, pirate something only because they were unable to find a legal copy of it, or download an illegal copy of something after already purchasing a legal copy because they lost the original or it came with frustrating copy-protection restrictions that prevented them from freely using the content they paid for.

We also do need to consider that the wider distribution and publicity occasioned by bootleg copies can reasonably be assumed to somewhat stimulate demand for legal purchases. Using this argument to ethically justify piracy seems disingenuous in the absence of clear and convincing data showing that this effect is greater than the losses caused by people not paying for things, but leaving out this mitigating factor would be wrong as well.

All this doesn’t mean copying something without paying for it comes without any ethical concerns at all. If the creator of that content wants you to pay them for it, and you use it without doing so, that still rightly makes most people feel at least uneasy, even if it isn’t necessarily directly to the creator’s detriment. (Within limits: if the “creator” holding the copyright is a multi-billion-dollar corporation who ripped off the actual artist(s) and isn’t paying any ongoing royalties, it’s pretty hard to feel any sympathy at all!)

I do think that models where more digital content is freely available and creators make money on subsets of that content or related services are worth pursuing further. This model has worked spectacularly well for open-source software, among other places, and I suspect it could work well in more. That said, I support the right of creators to decide how their content is used (within reasonable limits), and I can imagine highly problematic consequences if piracy were to become legal, so I for the most part support the present laws. However, piracy bears only a superficial similarity to theft, and it needs to be treated separately.

A sea change in music piracy

Music piracy as a recognized problem started to decline rapidly in the late 2000s and today is virtually nonexistent in the public awareness. Cases that are technically illegal have been and remain common, such as mixtapes passed between friends and family members, cruddy recordings of live concerts, or bootleg copies of albums that are no longer sold. However, most agree these cases have no appreciable impact on the market for recorded music. It’s nothing like the days of Napster anymore.

So someone seeking to understand piracy might reasonably ask, what changed? The most likely answer is simple: it’s so easy and affordable to get music legally now that bootlegging it doesn’t make sense. iTunes changed the entire landscape of the music industry by making it possible to quickly and easily purchase any music you wanted – including individual tracks from an album – from the comfort of your own home. When iTunes got rid of their DRM, people no longer had to worry about losing access to the music they paid for (a problem which pirated music didn’t have). Then, with the rise of true broadband, always-on internet access, streaming services took it a step further: for a flat monthly fee, you could listen to basically anything you wanted. Even for free, you can listen to a wide selection on YouTube or Spotify, if you’re willing to put up with a few ads.

Note: Streaming services aren’t an unqualified good by any means; in particular, they don’t pay artists very well, often requiring hundreds of thousands of plays per month to earn minimum wage. But that’s a separate issue.

The thing is, pirating things (music, movies, books, software, whatever) is a pain in the butt. Because making the content available for free download tends to be illegal, it’s often not straightforward to find the content in the first place. Then when you do, it might be low-quality, the wrong version, not split properly into tracks or sections, full of extra changes or additions, bundled with malware, and so on. You might have to manually run some software to extract the content or convert the format into one you can easily use. These difficulties are by no means insurmountable, especially for the digitally literate, but when the alternative is to pay a small fee and get top-quality content delivered immediately at the click of a button, it’s hard to justify the inconvenience. People are lazy, and they want to consume their media and use their software, not figure out how to get it!

On the other hand, when issues like these apply to the legal purchase, the calculus reverses:

• It comes with copy-protection restrictions that make it hard to use even for legitimate purposes.
• It’s unreasonably expensive or can only be bought along with other, loosely related, content.
• It’s only available in some countries or under certain conditions.
• It’s out of print or not available from anywhere at all.

The easy way to prevent piracy

Here’s the cure, then: deliver quality content at a fair price and make it easy for everyone to buy it, using whatever pricing and delivery model makes sense. If you can do that, the vast majority of people will just pay for it. Further, most of the people who do pirate it wouldn’t have paid for it anyway.

Let’s consider that last claim more closely. In earlier sections of this article, I’ve suggested some reasons people might pirate things. I’ll now put together a more comprehensive list of reasonable motives and point out that most of them don’t reduce the number of purchases (and might even increase them). You may be able to think of some I’ve missed, but this list should include all the most obvious and important reasons that people pirate things:

1. They were given a bootleg copy of something they wouldn’t have known about or paid for on their own.
2. They don’t want the content enough to pay for it, but they’ll take it if they can get it for free.
3. They can’t afford to buy the content.
4. They are unable to legally buy the content because of location-based copyright or shipping restrictions.
5. They are unable to legally buy the content because it’s not sold by anyone anymore.
6. They can’t figure out where to legally buy the content or how to complete the purchase.
7. They do not want to pay for the content because it requires them to buy additional products or services they don’t need, but they would have bought it if they could unbundle.
8. They do not want to pay for the content without trying it out, and would not buy it without the opportunity.
9. They bought the content in the past, but it’s in a format they can’t use or they lost their copy.
10. They bought the content in a physical form, but it hasn’t arrived yet and they need it now.
11. They bought the content, but it came with copy-protection restrictions that prevent them from using it on their own devices.
12. They want to obtain a library larger than they could if they had to pay for everything.
13. They do not want to pay for the content, but they like it enough that they would have bought it if they couldn’t pirate it.

In (1), (2), and (3), piracy is a net gain to both the pirate and the creator: the pirate wouldn’t have bought anything anyway, and she may well go on to legally buy some content or suggest her friends legally buy some content, if she likes what she sees.

In (4), (5), and (6), the same applies: the pirate wouldn’t have bought anything anyway (she even tried and couldn’t). Further, it’s hard to fault someone for pirating something when they made an honest attempt to pay for it and were unable to!

In (7) and (8), the pirate stands on shakier ethical ground, but again she likely would not have bought anything anyway. In (7), she might have bought the bundle. But if the creator or distributor follows my advice above, they won’t be in this situation in the first place.

In (9), (10), and (11), the “pirate” has in fact already paid under the assumption she would then have the right to use it, so making her pay again seems ethically indefensible, even if she would have paid had she been unable to pirate it. And again, the distributor can eliminate many of these motives by following my advice.

In (12), had the pirate been unable to pirate some particular content, she would most likely have just passed over that content since the goal is volume; in rare cases she might have bought it instead. And some people do this and then go legally buy some of the content they like, which drops us into the same category as (1), (2), and (3).

Only in the singular case of (13) does the creator or distributor clearly lose revenues that they seemingly deserved.

In conclusion, if distributors follow the basic business advice outlined at the start of this section, (13) are the only pirates they need to worry about. And offering content at a fair price with low-friction purchases is sufficient to put a giant dent in the number of thirteeners, because convenience has a huge impact on what people are willing to pay.

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I forgot to mention last week: welcome back to Control-Alt-Backspace, and happy New Year!

I also wanted to point out that I’ve added a section on gendered language to my disclosures. This addition merely formalizes what I’ve already been doing since I started the blog, but if you’re interested in my choices, you might appreciate the explanation.