I remember in high school, one of my friends said that he pirated a $5,000 piece of software “just cuz”. At the time, it seemed illegal obviously, but nothing worth condemning or making a fuss over. It is a lot of money, but it seems that no one was harmed. If anything, it seemed outrageous that any piece of software could cost more than many people’s monthly salaries. Fast forward a few years, and it seems that everything is able to be torrented. Game of Thrones had some of the most torrenting in history, while at the same time being one of the most profitable shows. As the number of streaming platforms grow, people might pay for one or a few streaming services, but they are not going to pay for 12 different services so that they can have access to all of them. The cost of signing up for just a few exclusive series is not worth it. In academia, professors will give out their papers and even books for free.
The problem with pirating is that it seems illegal, it seems like we are wronging someone, that we are stealing. Simple counter arguments to this is that you were not going to ever watch the show or read some book if you had to purchase it anyway. I do not think any of these are very robust arguments that either side would accept.
How I propose to solve this is through Kant’s theory of right. Kant even discusses a similar topic multiple times in relation to publishers and authors of books. However, I am going to refrain from talking about all sorts of piracy, which I will explain why at the end.
Note - this is extremely sketch like and fast movement through Kantian parts. Any deeper treatment would be a full paper basically.
Without getting too into detail about how Kant arrives here, he states that the guiding principle for thinking about right and justice is the Universal Principle of Right which is stated as
Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law.
Now, this is logically prior to anything else so far in Kant’s metaphysics of right. We have not brought up private property or coercion or freedom of speech, which is important to note.
Any action that hinders someone else’s actions from coexisting with the freedom of everyone else is doing someone wrong. This has nothing to do with the inner willing of any person, Kant’s right is restricted to the forms of our actions.
Now, some action that hinders someone’s external freedom is wrong, but by the law of contradiction, something that hinders a hindrance to freedom is right. We can see now how coercion itself is not right or wrong, it must be examined in light of the prior principle of the UPR.
Kant uses the UPR to generate what he calls the innate right to freedom, which is stated as
Freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity.
This generates equality, the “independence from being bound by others to more than one can in turn bind them”. It makes one their own master of one’s self. It makes one beyond reproach, which is similar to the sentiment behind “innocent until proven guilty”. It also makes speech free, since speech in itself is not coercive. Speech is something another can simply ignore.
Kant argues that there is only one innate right, I believe, since our body and our speech and our deeds could only be attributed to ourselves. While external corporeal things could be either “mine or yours”.
This brings us to private right. Kant says that to have a right to something, it must be possible to have intelligible possession. This differs from empirical possession, where I have something in my hand. If someone were to take a book from my hand, it would be battery since they have to physically remove it. But to have a right to something, I would be wronged if someone used my book, took it, or destroyed it without my consent.
However, in the state of nature, Kant thinks there is only provisional right, no conclusive right. This is since in the state of nature there is no rightful use of coercion. If I was to coerce someone, it would be my unilateral choice imposed on another. Even if I was to take back the book I made myself, paper and words and everything, I would still wrong them in coercing them. Even less serious, each can only do in the state of nature what seems right and good to each individual. Say two neighbors wanted to decide how to divide the boundary of their property. There is no empirically determinate answer to this, each can only do what they think is best. If they happen to not just agree peacefully, the neighbors might resort to violence because they feel that they would hindering their hindrance to wrong. Kant goes on to argue as well that if this does happen, the neighbors do not wrong each other materially, but formally and in the highest degree by staying the state of nature.
Skipping a bit, Kant argues that public right entails not just a libertarian view of private right relations, there are public right guarantees. Take for example the case in a civil condition of a starving and homeless person. It is a crime to steal, but he has no access to food, to survival, so he must steal. A libertarian (some Stoics apparently too) would argue that the wrong is on the child for stealing. However, Kant argues that poverty is a matter of public right, not private right. The moral of this example is that the freedom of the individual must be reconciled with the freedom of all. This is how you generate things like public roads as well. I must be able to get from A to B anywhere in the state, and no one should make me trapped from doing that.
Another public right the state has is education. The state thrives on merit, the best people in the best positions. The state and the ruler must regard itself as existing for perpetuity, so it has a duty to provide education for people.
Kant did himself write about books in two places. First, it was on the “Wrongfulness of Unauthorized Publication”. The second was in the section “What is a Book?” in the Doctrine of Right, and in “On turning out books”. The one I would like to focus on most is that, in the Doctrine of Right section since Kant tells us what a book is. What Kant argues is that a book is none other than the thoughts of the author, of some person. Kant also rehashes some older position that if someone who is not the authorized publisher of a book publishes a book, they wrong the publisher. Kant gets at the problem of piracy in the following quote
Why does unauthorized publishing, which strikes one even at first glance as unjust, still have an appearance of being rightful? Because on the one hand a book is a corporeal artifact that can be reproduced (by someone in a legitimate possession of a copy of it), so that there is a right to a thing with regard to it. On the other hand, a book is also a mere discourse of the publisher to the public, which the publisher may not repeat publicly without a mandate from the author to do so, and this is a right against a person. The error consists in mistaking one of these rights for the other.
Kant seems to be clearly referring to status right, in that, the publisher is speaking only on behalf of the author. Not mentioned before, but status right is a right we have to persons akin to things. This is a right a parent might have over their child or a lawyer representing someone in court.
Kant also says a discourse is not the same as a concept, say some work of art. If someone reproduces a painting and does not try to pass it off as an original and sells it, no wrong has been done because it was still “their” reproduction. But if someone was to reproduce my book without my consent, they wrong the publisher since my I still wanted to get my discourse and speech out into the public, but the authorized publisher was the one who had the right to my thoughts.
If someone massively edits my book for example, or quotes it extensively, it might be left up to a court to decide this problem since determining what amounts to an unauthorized publishing is indeterminate (1 page of quotes out of 100 original pages not plagiarism, but maybe 99/100 is).
Now, what about pirating PDFs of books? Kant seems pretty explicit that the you wrong the publisher in the case of books, but what if there is no publisher? Say I wrote a book. There is a print version that was my work, my thoughts, my speech. If I post this, someone downloads it, it seems like just a modern version of the public square, a public speech. Now, I think Kant would say that if someone whipped up a printing press and bound a book and everything, the same book that copy editors and whatnot worked on along with the author, and then I sell it, that should be wrong on Kant’s account.
What about when someone photocopies a book they own and give it to someone else for free? I think that this would also be a wrong in Kant, since you are effectively republishing it, even in a shittier and unbound way.
What about a PDF of the published version? I think that this would constitute a wrong in that the published version had labor in it from the copy editors and whatnot that might have been expected to profit. But what really is the cost of the PDF version, the one that is not printed? I cannot imagine that an academic philosophy book would still cost $100 dollars, if you take out the physical cost. This should be a similar metric to why Netflix is so cheap. Pre-Netflix, you might have paid 5 bucks to rent a movie, or 10-20 for the DVD. But now that technology has made it so simple to get PDFs to literally billions of people, these books should be a lot cheaper if someone opts out from the print version.
Another issue with why so many people pirate papers and books is because of the outrageous cost. The state Kant argues has a right to public education, but in America especially, education is shunned and discouraged. We know this since college is so expensive. Once not part of a university affiliation as well, reading individual papers is expensive. So I think that a just state would fund more education so that the people who edit, publish, and write do not have to worry about making a profit, since education is not something that ought to make a profit. The ideal state would make it simple for citizens to pay low costs for academic works, from new biology studies to new philosophy books. The state should encourage this. Similar to a state that wants low cost healthy food, or low cost great insurance. It is not that vegetables or health care become free, but they become substantially reduced. Your medical bill goes down by half, your vegetable costs go down by 80%. The failure is not on the individual, like the starving child, it is on the failure of the state in not encouraging education. Maybe the state should not deem certain things as to be funded by the public, like Jordan Peterson books, it can be limited to the people who are part of the university system, say Korsgaard’s new animal ethics book, since that is supposed to be the pinnacle of education and providing the public with a service, not just the minority who go to university.
One last issue to discuss is that, is a book just a corporeal artifact? If I loan my car out, or invite a friend over the sit on my couch, I am sharing with them my private property. Is a book similar? Is a PDF of a book similar? Companies surely have not tried to sue people for letting people read borrowed books, what about a borrowed PDF? This seems like a really difficult problem, since one person now could post their legitimate copy of a PDF they bought on gen lib. Kant seems to argue that it is not just a corporeal artifact. However, sharing a physical book is not publishing a book, so that cannot be wrong. PDFs of an original book may be different, it may amount to stealing as mentioned above. However, I would argue that the wrong is still system. If a PDF of an academic work paper cost $.50 cents, or you just paid JSTOR a monthly subscription for 5 bucks. If you cannot afford the 60 a year, I am sure that there would be policies in place to make it free, just like grants for education. The real injustice is that not only is education at university unequal, many Americans cannot afford it and many of those who do are in substantial debt after, the academic book and paper market is even more unequal in access to education. I blame our default mindset that you can just put a price on anything in this country, not the individuals who are pirating books and papers.
It seems that some things do not count as discourse on Kant, and for good reason. The new marvel movie or something seems to not be related to education, and if someone pirated that I could see how that is wrong, it is not just a mere reproduction like a painting, it just unauthorized distribution of the same movie. Now, a state might say that art is related to education, which seems to be the case now, and so certain movies could be made part of that. Similarly, some works such as Leaves of Grass might be encouraged to be substantially reduced in print or free online in PDFs.