…and I ain’t talkin’ about the Sade song which changed me life back in ’81. What I’m talkin’ ’bout is an article by ‘ethicist’ Randy Cohen of the New York Times.

http://www.nytimes.com/2010/04/04/magazine/04FOB-ethicist-t.html

I have problems with this article.

First, his conclusion is that it is somehow ethical to download an illegal copy of any software (aka ‘intellectual property’) if you already own a legal copy. That’s rubbish to me. To me, the problem with all such arguments is that they don’t pass JC’s Hardware v. Software Ethical Smell Test (JCHVSEST®) which, as you already know, says the following:

If it smells fishy for hardware, it’s probably just as ethically cod-like for softwares

Look. You buy a great looking pair of jeans that really make your butt look great. You go on holiday to some totally bitchin’ place. On the first night out you reach for those go-to trousers only to find (to your horror) that you forgot to pack them. Do you…
a) Go to the local shop and purchase another
b) Go to a local black marketeer and find another pair that recently ‘fell off a truck.’

In Randy’s example it’s the same deal! The person went on holiday and forgot the hardcover book she purchased. So, dis-chuffed at having to pay for the thing in the first place, she felt entitled to download a freebie. And Randy agreed because, hey, the publisher already got paid, right?

Randy makes the same mistake as the person in my example who chooses ‘b’ above. ‘Ethical’ doesn’t just depend on whether or not you already paid once. It depends on whether or not you agreed to the terms of the seller. If Stephen King’s publisher had previously agreed that when you bought the hardcover book you were entitled to a free download whenever you like? Groovy. But they didn’t. They sold you a book. Not the ‘soft content’ of the book; they sold you a book. A container with some words inside it. If you forgot to bring the container? You’re not entitled to get the stuff inside ad hoc. Similarly, if I forgot my fave jeans on the aforementioned trip, I ain’t entitled to another pair just because I was forgetful.

But, you angrily reply, ‘the jeans should be paid for because you can take them back with you!’ Well, you can take your illegal download home with you too. There’s no difference.

If the culture decides that licencing software should be more ‘cloud like’, then it should pressure record companies to go in that direction and they should be paid accordingly. But adding rights and entitlements to a contract after the fact just because there is a technology that permits it? In this case? It’s a crime.

Next time? I’m gonna tell ya about a similar situation that ain’t a crime. It’s my post-lenten confessional. 😀