Randy Cohen writes the “Ethicist” column for the Sunday edition of the New York Times, in which he offers solutions to moral dilemmas for people who have a hard time figuring out for themselves the difference between right and wrong.
In the issue of April 4 2010, a reader posed the following dilemma:
I bought an e-reader for travel and was eager to begin “Under the Dome,” the new Stephen King novel. Unfortunately, the electronic version was not yet available. The publisher apparently withheld it to encourage people to buy the more expensive hardcover. So I did, all 1,074 pages, more than three and a half pounds. Then I found a pirated version online, downloaded it to my e-reader and took it on my trip. I generally disapprove of illegal downloads, but wasn’t this O.K.? C.D., BRIGHTWATERS, N.Y.
The preeminent ethicist’s solution? “In this case,” he pronounces, “it is not unethical.”
His reasoning? “Author and publisher are entitled to be paid for their work, and by purchasing the hardcover, you did so. Your subsequent downloading is akin to buying a CD, then copying it to your iPod.”
We’re sure this advice will warm the hearts of authors and book publishers desperately fighting to protect their literary properties from pirates and the ethical pygmies stealing e-books under the information-wants-to-be-free banner. (See I Want My E-Book and I Want It Now – Or Else!)
These dirtbags now have a champion in Randy Cohen. Go on, help yourself. The author and publisher have been paid once and don’t need to be paid for another edition of the same book. While you’re at it, rip off the book club and the mass market paperback editions.
Cohen’s exculpation of this morally challenged idiot buying an e-book from a pirate site is the equivalent of condoning the purchase of black market goods from a fence. Does anybody know what Talmudic tractate he consulted to justify stealing – to describe it as “illegal” but not “immoral?” If so, we invite you to submit chapter and verse.
Though Cohen’s column and photo are undoubtedly protected by copyright and we may be flouting copyright law by reprinting them in full here, his moral position has liberated us to do just that. If he and the Times‘s attorneys want to take issue with us, we will refer them to his disgusting perversion of morality spelled out in Exhibit A below.
Richard Curtis
********************************************
The Ethicist
E-Book Dodge by Randy Cohen
An illegal download is — to use an ugly word — illegal. But in this case, it is not unethical. Author and publisher are entitled to be paid for their work, and by purchasing the hardcover, you did so. Your subsequent downloading is akin to buying a CD, then copying it to your iPod.
Buying a book or a piece of music should be regarded as a license to enjoy it on any platform. Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you’ve violated the publishing company’s legal right to control the distribution of its intellectual property, but you’ve done no harm or so little as to meet my threshold of acceptability.
Unsurprisingly, many in the book business take a harder line. My friend Jamie Raab, the publisher of Grand Central Publishing and an executive vice president of the Hachette Book Group, says: “Anyone who downloads a pirated e-book has, in effect, stolen the intellectual property of an author and publisher. To condone this is to condone theft.”
Yet it is a curious sort of theft that involves actually paying for a book. Publishers do delay the release of e-books to encourage hardcover sales — a process called “windowing” — so it is difficult to see you as piratical for actually buying the book ($35 list price, $20 from Amazon) rather than waiting for the $9.99 Kindle edition.
Your action is not pristine. Downloading a bootleg copy could be said to encourage piracy, although only in the abstract: no potential pirate will actually realize you’ve done it. It’s true that you might have thwarted the publisher’s intent — perhaps he or she has a violent antipathy to trees, maybe a wish to slaughter acres of them and grind them into Stephen King novels. Or to clog the highways with trucks crammed with Stephen King novels. Or perhaps King himself wishes to improve America’s physique by having readers lug massive volumes.
So be it. Your paying for the hardcover put you in the clear as a matter of ethics, forestry and fitness training.
Richard — question for you: what do you think of people that buy a book then scan or retype it for more convenient personal use? As far as I know this ‘format shifting’ isn’t illegal. Is it the act of copying that bothers you or that of sharing? I have been ripping the pages out of my textbooks for years. Is that bad?
I’m not sure I see any problem here. But if you download an illegal file to avoid paying for one that you would otherwise be obliged to buy – well, you can see how strongly I feel about it. And for God’s sake, Mark, stop ripping pages out of your books – these are living things we’re talking about!
RC
Thanks Richard. I do hold a double standard between textbooks and literature. Hopefully that is worth something.
Randy Cohen’s advice presupposes that the author had licensed his or her e-book rights to the publisher of the hardback.
This is not always the case. It is conceivable that e-book rights could have been licensed to a different publisher. In this case, the e-book publisher has not been paid.
Or, for whatever reason, the author might have retained the e-rights.
Randy’s advice also presupposes that an author’s royalties for a hardback sale are as generous as those that might have been negotiated on an e-book contract.
As for what Randy says about the pirate not knowing, maybe the pirate will not know the identity of the downloader, but most file-storing/sharing sites show anyone who cares to look how many copies of a file have been downloaded.
Ideally, a hardback purchase should be accompanied by a complimentary, legal ebook version. Then, readers who would prefer to read on an e-reader would not have to face this dilemma.
Richard,
There is a significant difference between buying something off a pirate site, and downloading it. And don’t play dumb, you didn’t “misinterpret”, you know full well that you were misrepresenting the downloader’s actions; he didn’t buy anything from the pirate site.
You have an opportunity to actually discuss the issues at hand. Sadly you end up calling him names like a “morally challenged idiot” and throw an infantile tantrum.
I’ve never downloaded a pirated book (or song), but if this is the way you’re going to act then clearly you’re more interested in venting your impotent rage than in persuading an audience.
-cj
That’s a good idea, Rowena. Some books are so heavy to hold and hard to handle and that’s not just hardbacks. I wanted to bring Paullina Simons ‘The Summer Garden’ back from my vacation but it was just too heavy a paperback. I’ve have paid more for it if it had come with a ebook version. But I would NEVER illegally download a book no matter what the circumstances. It doesn’t fit with my view of ethical behavior.
Ethics aside, there’s no question that the publishers are encouraging precisely this behavior with their shortsighted “windowing” of ebook versions. What do they think people are going to do if they don’t make a legal download available? If people are looking for a book, and see it up for free, but not legally at any price, a great many people are going to say, “What the hell!” and take it.
Not that I condone pirate sites, or the patronizing of them. Even if I had no ethical reservations, I’d be afraid of what else I might pick up. But personally, as an author, I don’t lose a lot of sleep over them, either. Free promotion, if nothing else. And I certainly wouldn’t begrudge a reader grabbing a free e-version if he’d already paid for a hardcover–though I agree that a better system would be for a hardcover to come with an ebook version included.
I agree with cj. What are the ethics of misrepresenting the situation to suggest somebody was profiting from the illegal download? And the ad hominem? Poor show.
Anton,
Maybe no one profited from the illegal download in this particular case, but you must realize that people do profit from illegal downloads in many different ways.
Individuals and sites accept donations. They accept paid advertising. Some pirate sites and hosting sites run on a subscription model.
Users evade paying sales taxes, so the taxpayer is cheated. Some users collect the downloads, burn them onto CDs, and sell them on EBay.
Theft is theft. If you don’t want a heavy hardback, wait for the ebook, just like a consumer has to wait for the DVD if they don’t want to go to the theater for the latest movie. And in the same thinking, if I saw a movie in the theater, shouldn’t I be able to rip the movie from a piracy site. I paid to see the film, right?
I, personally, agree with Randy Cohen. If I buy the physical book but feel like reading it on my ereader then I don’t feel I should have to pay again just to be able to do this. It’s the same with music or movies. Ethically there isn’t anything wrong with format shifting.
I buy a lot of music on vinyl and CD, however I practically never listen to them, instead I often listen to MP3s/FLACs of the albums which I have either converted or downloaded ‘illegally’ to save me the time and annoyance of having to convert from the source. This is no different, it may be illegal but it is not unethical.
This is even more true when no digital version even exists, like in this particular case. The guy bought the physical book, since no official ebook existed, and then downloaded an unofficial ebook. He didn’t deprive anyone of money or anything. What exactly is your problem with this??
“The author and publisher have been paid once and don’t need to be paid for another edition of the same book. While you’re at it, rip off the book club and the mass market paperback editions.”
That doesn’t even make any sense, the content is exactly the same.
You should maybe think about what you’re typing instead of rambling on nonsensically in some sort of blind rage.
>but you’ve done no harm or so little as to meet my threshold of acceptability
Who appointed Randy Cohen to be the arbiter of what laws should be, or need not be obeyed? I expected at least an interesting argument from someone writing for the NY Times. His article is simplistic and juvenile. “I don’t like what the publishers are doing so feel free to disregard the law.” There are plenty of laws I don’t like. I have two choices: live by them, anyway, or work to change them. Where are the “ethics” in announcing I won’t do what I don’t want to do? I have teenagers who like that argument.
I’ve taken a bit more level-headed look at this issue on the TeleRead blog:
http://www.teleread.org/2010/04/06/p-books-to-e-books-the-ethics-of-downloading-and-the-legality-of-scanning/
In short, courts have found that consumers do have the legal right to “space-shift” media they own into other forms for reading elsewhere (except if it’s protected by DRM, thanks to the DMCA).
They do draw a legal distinction between consumers doing the work of space-shifting themselves (i.e. putting a CD into the computer to rip; running a book through a scanner, OCR’ing, and proofing it) and letting someone else do it for them (downloading the music or e-book from peer-to-peer).
What Cohen was addressing was whether there should be an ETHICAL distinction between the two acts as well.
I think that publishers have gotten used to there being an “analog barrier” between printed books and e-books—they get to sell the same book twice, in paper and electronically, because the time it would take to scan and OCR is worth more to the consumer than the money that the e-book costs.
But as scanning and OCRing technology improves, there may come a time when that is no longer true, and the publishing industry may find itself in the same place the music industry did after space-shifting legalized CD ripping.
Of course, out of that court decision came the iPod and the entire digital music economy…
Richard,
I’ve done this myself from time to time, downloaded files when I already owned the print edition — but NOT when a legit ebook of the title was available. Many moons ago, I photocopied a novel I liked a lot that was now out of print (well before the internet made it quick and easy to find such books). The author later reissued it himself as a print-on-demand paperback, and I bought the legit copy and discarded the xerox. Some of the files I’ve downloaded included titles that have since been epublished legitimately; I’ve discarded the bootlegs and bought the legit editions.
What I’d like to see is something like EBooks in Print and Forthcoming EBooks in Print so that people would know what’s legitimately available and what was scheduled to be issued, when, and in what formats. It would also help if publishers would start regarding the ebook as a standard part of the publishing ecology like the hardcover, mass-market, and trade paperback. If I could know that any book I wanted would be legitimately available as an ebook (and that the backlist titles were coming too), even if it wasn’t the same day as the hardbound, I for one would never download a non-authorized file again. And I doubt that I’m unique.
Best wishes.
As an ebook author, speaking for myself of course, how dare you! My living comes from the royalties for my ebooks. By condoning someone to go ahead and go to a pirate site you are taking money out of my pocket. I worked hard on my novel, I did the edits with my editor and I worked closely with my cover artist. You are undermining us who are primarily ebook authors with ebook publisher and if you can’t see that, then shame on you!
I agree with you on Cohen, but what’s with the disparaging reference to the Talmud?
@Ira. How do you understand the reference to Talmud to be disparaging? I asked where in the Talmud this so-called ethicist might find support for his argument. As a reader of Talmud I doubt if Cohen could cite anything.
RC
The Australian copyright act says format shifting your own texts is perfectly legal.
You calling the Australian Attorney General an ethical pygmy then?
Pretty sure this is legal in other places too.
Plus, of course, lots said publishers are too challenged to even sell lots of these books to Australians to start with.
Speaking of desperation, deliberately shrinking your market like that would seem to be a little odd.
Ashley, did you even read the source material? We’re talking about downloading e-books when the print book has already been bought and paid for. If you don’t publish in print at all, the discussion doesn’t even apply to you.
It’s a lot easier to just sit down and read a paper book page by page, than to scan it page by page and then go through it page by page again on an e-reader. I just don’t believe that many people would want to read a book in e-form so very much that they will scan a paper book they paid for, without also transferring that scan to other people. Pirates often do so for praise by their social groups, by the way.
It is also a false assumption that every book will be released as an e-book, or should be released as an e-book. Therefore, it is false to comfortably soothe your morals and other people’s by _claiming_ you’ll buy the e-book “when it comes out” and that you are merely “time-shifting.” Books sell in different quantities in different formats–hardcover, trade paperback, mass-market paperback, e-book, audio book. The publisher needs to produce the format(s) and quantity(ies) suitable for that particular book’s contents, and that will make back the costs and overhead, and that will pay the author, and that will generate enough profit to keep the business going. There are many books that simply cannot work as mass-market paperbacks, and there are also many books that simply cannot work as e-books. Furthermore, the publisher often does not even decide/plan whether to issue a book in a given format until another format has been on the market for awhile.
Most cheap e-book advocates conveniently assert that writers work for fun, not money. Not true. Writing at a professional level is very hard, very time-consuming, often money-consuming work. Even if it’s enjoyable much of the time, so are most other professions for the people who pursue them. Writers need and deserve to make a living just like members of other professions.
Publishing is very expensive. Everything-ought-to-be-an-e-book advocates conveniently sweep away the costs of editing, proofreading, indexing, photography, illustration, graphic design, page layout, cover design, publicity, marketing, accounting, legal services, computer equipment, office overhead, travel, and other expenses. It’s not all the print run by a long shot.
E-book advocates also pass around this meme that publishers have “always opposed” the borrowing of books, or the sale of used books, or something. Actually, I’ve never seen any data to back this up. In any case, what we are talking about is now, not what somebody might have said when Andrew Carnegie was opening his first library. The issue is one of quantity/degree. Publishers do lose sales when books are lent and they do lose sales of new books when used ones are sold. And they do lose sales of books when readers photocopy library copies.
The fact that many publishers and authors have financially survived the reading of such books does not mean they can survive e-book piracy _in addition_. Amateur piracy does count. If everyone makes just one copy for one friend, that’s 50% of the book sales lost. It’s all an issue of quantity/unit sales; so it’s false to assert that everyone survived photocopy piracy so they can now survive e-book piracy.
Part 2
I do believe in effective DRM, but none is available yet for e-book readers. Yes, anyone can copy a book with a ream of paper and a pencil, but the easier it is to pirate, the more people do it–and the more acceptible they think it is, because the publisher did not try to prevent it. Even more, however, I believe in not publishing e-books at all in the current climate of piracy.
Pirates often assert that publishers “insult their customers,” by using DRM and by court prosecution of piracy. However, someone who steals or passes on stolen goods is not a customer. Furthermore, I can tell you from experience that it is not “fun” for a writer to have readers assert that books–even though they’re worth reading and copying page by page–are not worth paying for. Or to see them issue threats on Internet groups that if they don’t like the price or format they’ll just steal the book by one means or another. It’s not fun to hear them assert that publishing is just a “failed business model,” and that writers and publishers should just go do something else, who cares what.
It’s not fun to hear people who know nothing about the business assert that it unnecessary to print books and that that is the only cost. It’s not fun to hear them assert that “publishers can always sell ads.” Supporting publications with advertising is now a failed business model. Look how badly most newspapers and magazines are doing, because people are not buying enough ads to support publication–even on the publications’ websites.
To me, as a writer and publisher, readers who denigrate the very books they simultaneously demand as some kind of right, and who either assert the right to steal them or who make all kinds of thin, roundabout excuses for stealing, are not customers I want. They are not readers I want. People who really value books cherish them and pay for them. They do not insult them and steal them.
First of all, this conversation has drifted very far from the specifics of the original case. The ethicist didn’t say “authors don’t deserve to be paid and should give everything away for free.” He was addressing a situation in which no legitimate digital copy could be purchased, and the person in question had already paid full-price for a hardback book.
Second, people seem to be under the impression that digital copies are a significant problem for the book publishing industry. I am not nearly so optimistic. If piracy stopped 100% today, there are still tremendous economic pressures pushing the price of any digital asset down towards zero. For one quick comparison, look at the newspaper industry. That industry as a whole is really suffering not from piracy, but because of low-cost digital competition. Newspapers and books now have to compete with millions of people who are happy to give their stuff away. After all, aren’t you sitting here reading this blog instead of paying the NY Times to read stuff behind their paywall?
You are missing the point if you argue that authors “deserve” to be paid because they work hard or that it cost them a lot of money to make a book. Other people are producing engaging material for free. If you can’t compete with that, then you are going to be out of work, no matter how much you feel you “deserve” to be paid. If your industry can’t compete with that, then its days are numbered. You might as well say that you are going to open a vaudeville theater in your backyard and claim everyone in your town owes you ticket money because you spent so much and worked hard and you really deserve it.
Jim,
My objection is that Randy Cohen purports to be an “Ethicist” and to offer ethical opinions.
His position appears to be that it is ethical to disregard copyright law under some circumstances.
Possibly you miss the point that this is the thin end of the wedge. Anarchy cannot be condoned. Laws have to be obeyed, or changed.
Rowena,
Well, this thread is dying down, but I do have a response.
I agree that this is something of a wedge issue. But the stance of the ethicist (which I agree with) is that he is not being asked a legal question, but one of ethics. You seem to be suggesting that the only ethical stance is to obey all current laws or ro work to change them. I think that if you can demonstrate no one is harmed in any way by your action you are ethically in the clear. It’s the equivalent of jumping over a fence marked “No Tresspassing!” to get a ball that went over. Legally you are in violation, but the violation is so minor as to be insignificant.
To quote from his column directly, “Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you’ve violated the publishing company’s legal right to control the distribution of its intellectual property, but you’ve done no harm or so little as to meet my threshold of acceptability.”
So I don’t think anyone is condoning anarchy. We are making a distinction between what the current law states, and what really is harmful.
My first thought is, if this is an ethicist speaking, then the blind truly are leading the blind.
Situational ethics. It’s OK to do something wrong in certain situations. So, it’s OK to speed way over the posted limit if… what? If you are late for an appointment? If you are fleeing from a raving lunatic? If you have to catch a plane? Breaking the law, breaking the established rules, just because it makes life more convenient for you is unethical. As someone else noted, just because I have purchased a ticket to see a movie does not make it legal or ethical for me to secretly videotape the movie while I am in the theater.
As to the comment that “you’ve done no harm or so little as to meet my threshold of acceptability,” what malarkey. Then again, perhaps not. Perhaps the level of acceptability of “the Ethicist” is so low that just about anything meets it, as long as apparent and immediate harm are not seen. It’s not unethical, then, to throw a single candy wrapper out the window. And if everyone who eats a Snickers bar thinks that way, the landscape will be plastered with wrappers. It is an insidious way of thinking, that “it does no apparent harm, or so little harm, so if it is convenient for me it must be OK even if it is illegal.”
It’s OK to steal a little bit. It’s OK to tell just one racist or homophobic joke, every once in a while. It’s OK to view child pornography in the privacy of your own home because, hey, you didn’t pay for it… just managed to find it on a file-sharing network and after all, it’s not YOU who coerced that child into doing those things, and even if you hadn’t downloaded it, the child would already have been molested anyway, right?
Yes, I’m being extreme. I’m being extreme because it’s too easy to accept unethical behavior when you candy-coat it. Call it what it is: dishonest, immoral, illegal, and UNETHICAL. That anyone intelligent is able to rationalize it into something else is somewhat frightening, because it is so easy to move from this sort of “harmless” theft to something worse, and every time you succeed in convincing yourself that you are OK, that you are in the right, it just makes it that much easier to do something more heinous. And that someone in such a position, writing for the NYT where so many thousands of people can use his words to justify their own unethical behaviors… it is reprehensible.
Just to add my thoughts. Piracy is BAD. Reading books not paid for by the person reading it? Depends on the situation.
If a book has been uploaded to a site by a *person* who may or may not have purchased the book (there are ways they could get it without paying for it) and that person then sells it or gives it away for any kind of profit that, to me is piracy. But if the pirate paid for it, are they just lending it to…strangers?
But then we have to ask the question: What about libraries? Many libraries check out eBooks now. Is it wrong for people to download eBooks from libraries? They do it for profit?
I do NOT condone or appreciate piracy, I just think that there is too much grey area where this is involved to have level-headed conversations about it. Most of the responses anywhere on this topic stem from emotions…and not pretty ones. I totally get that.
I want to ensure that my authors get paid for every book sold! When it gets sold to a library it gets paid for once and read hundreds of times. Nothing I can do about that, I consider it the price of promoting/marketing. Even BN.com has lending program now on their eBooks. Is this piracy?
If the pirates want to make money, why don’t they just open an actual store and sell the copies legally after they purchase them from the author/publisher/distributor? Has anyone thought to mention this to any of the pirates out there?
Don’t just complain about the problem offer a solution.
Tony’s comment cuts to the heart of the matter. As an ethicist, no doubt Cohen has heard of Emmanuel Kant, and his principle of universalizability. Well, Tony’s example of the candy wrapper is it.
Kant said we can decide on an ethical dilemma if we design two worlds. Is murder OK? Have one world where everyone kills if they think they can get away with it, vs. one in which no one kills. Which is better to live in?
You can complicate this to as fine a set of distinctions as you like. Is killing OK in self-defense, but in no other way? Is mercy killing OK? And so on.
In this instance, if it’s OK to buy stolen goods, or to get them for free in one instance, what kind of world would we live in if it was OK in all instances?
It may be convenient for me to buy a diamond ring at quarter price. I didn’t steal it, just bought it off some guy who didn’t steal it, but is a fence for the thief. Is it OK?
If not, then pirating books is not OK.
Karen,
The thing here was that the book in question was not even legally available as an ebook yet. The individual downloaded an ebook version that was an illegally-produced version of a hardcopy book. To me, that makes it doubly wrong: one person stole the intellectual property of another by making an illegal copy and distributing it, and another person stole the intellectual property by downloading that illegal copy.
I understand your forceful and proactive style, but in this specific case your suggestion simply is not applicable.
My wife and I are both e-published. Like many authors we’re work-a-day people who hope to make an income from writing, something we enjoy immensely. Any piracy of our books hurts! A novel my wife wrote was published in e-format two years ago. After very good initial sales, the figures plunged – all down to e-piracy.
I’m frankly appalled that anyone should condone the practise of piracy, let alone one such as Mr. Cohen, whose column is presumably read by many. What kind of example is that, to say blatant theft isn’t so bad? Thank you, Mr. Burton, for your response.
The copyright act allows the owner of any literary work to make a backup copy, assuming that the owner hasn’t copied the content of his book before (creating two copies which would be illegal) downloading a copy and hence creating a backup by electronic means would be perfectly legal.
Far from being illegal it has been expressly protected as a right of ownership in law to avoid lawsuits against people who make a copy for personal use.
The person who uploaded it may be breaking the law, if it could be shown he made it available to download from his computer with the intent that someone who didn’t own the book would copy his backup copy (if he owned the book it could be a personal backup supplied to ease the process of others backing up the data in their copies).
However all the downloader did was make a copy of the potentially pirated copy so he hasn’t committed a crime at all as far as he knows it could well be a legitimate copy.
As is typical with many discussions of this nature, everybody seems to be assuming that this enforced government-granted monopoly we give to certain producers of non-rival goods (look up that term in Wikipedia if you don’t already know precisely what that means) that we call “copyright” is some sort of natural moral order of things.
It’s not. Copyright is something we developed as a society in order to encourage and support certain kinds of creation by some people, at the expense of other people. It’s all about striking a balance; too much protection of creative ideas is just as bad as too little. The world would not be a better place if Shakespeare were still under copyright.
There’s not space here to get into all the details and subtleties of this, but William Patry’s Moral Panics and the Copyright Wars is an excellent introduction to the topic and the problems.