Randy Cohen, the NYT‘s “ethicist” caused a minor uproar when he opined last weekend that although downloading a pirated electronic version of a book you already own might be illegal, it is ethical. It led to blood boiling on the part of some publishers and authors while others weren’t all that concerned. I tend to agree with Cohen.
I’m not an e-book fan so can’t say I have been in the position posed to Cohen. But I can identify with this in the context of music.
Given my age, I have shelves filled with vinyl LPs. Many of them are also floating around my house in audio cassette form. When those LPs are released on CD, it’s like I’m paying for them a third time. As a result, if someone has posted a digital version of an album I already own, I don’t see a problem with downloading it and putting it on my iPod. After all, the Audio Home Recording Act specifically says it does not violate copyright laws for a consumer to use, for noncommercial purposes, a digital recording device to copy musical recordings. If it is legal for me to make a digital copy of an LP or cassette I own, I don’t see how it is unethical to download a digital copy.
Now granted, books are not subject to the Audio Home Recording Act. But a copyright law doctrine called “first sale” says a person who buys a book can lend, sell, or give it away without having to get permission from the copyright owner. While the situation posed to Cohen doesn’t fall into this category, it also isn’t a situation where the owner of the book made or wanted copies to give others. As far as I know, copyright laws don’t prohibit someone who owns a book from making a copy of it for their own use (presuming, of course, it isn’t so they can sell the lawfully owned original). If the buyer of a book can copy it, why can’t they scan it to read in a digital format?
These situations also need to be distinguished from, say, going to a movie and then going home and downloading it or renting a DVD and making a copy of it. No ownership rights are created in those situations, only a license, and “owning” a pirated copy exceeds the scope of the license. My position does not mean I think it’s proper for people who do not own or have no intention of ever buying a book or album to obtain pirated copies. But I think Cohen is right in the scenarios I’ve laid out because I’ve already paid the creator or copyright holder and, as long as it is for my own use, can do with it what I please.
So if downloading music I already own in analog format makes me a pirate, at least I’m not the only one who thinks I’m an ethical pirate.
Only one thing is impossible for God: to find any sense in any copyright law on the planet.
Mark Twain, Mark Twain’s Notebook