This essay is a summary of my presentation at the workshop Inlaws and Outlaws, held on August 19-20, 2010 in Split, Croatia. The workshop brought together advocates of piracy with participants in the free culture and free software movements.

In Why Software Should Not Have Owners, Richard Stallman explains that, if a friend asks you for a piece of software and the license of the software bars you from sharing, you will have to choose between being a bad friend or violating the license of the software. Stallman suggests that users will have to choose between the lesser of two evils and will choose to violate the license. He emphasizes that it’s unfair to ask a user to make such a choice.

Over the past few years, pirate parties have grown across much of the developed world. Of course, piracy remains the primary means of distributing media across most of the rest. Advocates of access to information have gathered and organized under the "pirate" banner, representing the choice of sharing with friends over compliance with license terms.

The free/libre and open source software (FLOSS) and free culture movements seem to have a confused and conflicted reaction to all this. On one hand, major proponents of several pirate parties are FLOSS and free culture stalwarts and several pirate parties have made FLOSS advocacy a component of their political platforms. Pirate Parties’ clear opposition to software patents and DRM resonates with both FLOSS and free culture communities. On the other hand, FLOSS leaders, including Stallman, have warned us about "pirate" anti-copyright policies. Free culture leaders, like Lawrence Lessig, have repeatedly and vociferously denounced piracy, treated even the intimation of an association with piracy as an affront, and systematically distanced themselves and their work from piracy.

Should FLOSS and free culture advocates embrace pirates as comrades in arms or condemn them? Must we choose between being either with the pirates or against them? Our communities seem to have no clearly and consistently articulated consensus.

I believe that, unintuitively, if you take a strong principled position in favor of information freedom and distinguish between principles and tactics, a more nuanced "middle ground" response to piracy is possible. In light of a principled belief that users should be able to share information, we can conclude there is nothing ethically wrong with piracy. Licenses have the power of the law but they are protected by unjust "intellectual property" laws. That said, principles are not the only reason activists choose to do things. Many political stunts are bad ideas not because they are wrong, but because they won’t work and have negative side effects. Tactics matter too. Even though there might not be anything ethically wrong with piracy from the perspective of free software or free culture, it might still be a bad idea. There are at least three such tactical reasons that might motivate free software and culture to not support piracy or participate in pro-piracy movements and politics.

First, a systematic disrespect for copyright undermines respect for all licenses which have been of a huge tactical benefit to free software and a increasingly important factor in the success of free culture. Copyleft licenses like the GPL or CC BY-SA have power only because copyright does. As Stallman has suggested, anti-copyright actions are anti-copyleft. That needn’t be an argument against attempts to limit copyright. Indeed, I think we must limit and reduce copyright. But we must tread carefully. In the current copyright climate, I believe that copyleft offers a net advantage. Why should others respect our licenses if we don’t respect theirs? Looking at the long term, we must weigh the benefits of promoting the systematic violation of proprietary licenses with the benefits of adherence to free software and free culture.

Second, piracy is fundamentally reactionary. Part of its resonance as a political symbol comes from the fact that the piracy represents a way that consumers of media can fight back against a set of companies which have attacked them — with lawsuits, DRM systems, and demonization in propaganda — for sharing in ways that most consumers think are natural and socially positive. But piracy focuses on reaction rather the fundamental importance of sharing that drives it. As a result, most pirates do not support, or are even familiar with, a principled approach to access to information. As a result, many piracy advocates who speak out against DRM on DVDs will be as happy to use NetFlix to stream DRMed movies for $5 a month as they were to download for free. The best rallying cries do not always translate into be the most robust movements.

Third, through its focus on a reaction, a dialog about piracy avoids engagement with the tough questions of what we will replace the current broken copyright system with. A principled position suggests that it is our ethical prerogative to create alternative models. The free software movement has succeeded because it created such a prerogative and then, slowly over time, provided examples of workable alternatives. A principled position on free software did not require that one provide working new systems immediately, but it makes the development of creative, sustainable approaches a priority. Attacking the system without even trying to speak about alternative modes of production is unsustainable. Free software and free culture call for a revolution. Piracy only calls for a riot.

Piracy, in these three senses, can be seen as tactically unwise, without necessarily being unethical. By taking a principled position, one can go build on, and go beyond, RMS’s comment. On free culture and free software’s terms, we can suggest that piracy is not ethically wrong, but that it is an unwise way to try to promote sharing. Without being hypocritical, we can say: "I don’t think piracy is unethical. But I also do not support it."