Law in the Internet Society

The “Miracle” of Zero Marginal Cost Sharing: Was Jesus a Bread and Fish Pirate?

-- By AdamLawson - Jan 16, 2022


So they sat down in groups of hundreds, and of fifties. Taking the five loaves and the two fish, he looked up to heaven, and blessed and broke the loaves, and gave them to his disciples to set before the people; and he divided the two fish among them all. And all ate and were filled; and they took up twelve baskets full of broken pieces and of the fish. Those who had eaten the loaves numbered five thousand men. - Mark 6:40-44 (NRSV)

In Jesus’ well-known miracle of feeding the multitudes, he effectively duplicated bread and fish at zero marginal cost (i.e. producing more bread and more fish without additional cost per unit) in order to, in this example, feed 5,000 men. But in this astonishing feat, he surely deprived entrepreneurial fisherman, fishmongers, and bakers of potential sales to the multitude. Will no one think of their stolen profit margins?

Piracy and its Harm

It is frequently stated that digital piracy (i.e. the act of unauthorized copying, reproduction, use, or manufacture of a software product) is a form of theft. But it is not - in the usual case instead involving making an unauthorized copy without depriving the copyright holder of the original. Courts have in a similar vein made a clear distinction between infringement and theft, with the United States Supreme Court specifically noting in Dowling v. United States, 473 U.S. 207 (1985) that "interference with copyright does not easily equate with theft, conversion, or fraud".

Interference with copyright and digital piracy is of course illegal (with some exceptions which could perhaps be re-articulated as collective user rights) as a violation of digital rights management (DRM) and copyright. The duplication of fish and bread would not presently be such a violation, on the rationale that they have stronger property rights and copyright does not attach to them (notwithstanding perhaps the possibility of bread duplication infringing on Monsanto’s seed patents).

The ostensible purpose of copyright protection is to stimulate creativity by ensuring that creators derive economic and moral benefits from their works, and receive protection from violation of those creations. Accordingly, the illegality (and harm) of digital piracy is typically premised on the rationale of the loss of potential sales.

But the reduction of human creativity to economic incentives is dubious, as is the belief piracy is lost revenue. As discussed below, empirical studies do not consistently bear this out. (Note: some studies are regrettably paywalled - Sci-Hub may assist.)

Piracy of intellectual works is not a new problem, with Thomas Mosher in the Victorian Era distributing many pirated works of English authors in America (with legal if not moral right) including Charles Dickens and Oscar Wilde, the latter of whom was none too happy about it. This physical piracy was in part a problem of access: there was simply no available way for the mass public to access the work.

Studies in the movie context support the notion that piracy in the absence of access harms creators and (a) suggest while prerelease piracy is harmful to revenue (without access to the legitimate product), postrelease piracy is associated with increased word of mouth and revenue; and (b) suggest that piracy may lead to increased revenue by helping spread information about product characteristics across consumers with different valuations for the product.

Older studies suggesting that piracy harms sales typically use data from the Napster era, and may have overestimated the impact of digital piracy, due, for example, to the use of Internet access as a proxy for piracy. It is more likely that “the internet killed the CD/record market” in the same way that “video killed the radio star”).

Piracy is also not just a question of price elasticity combined with near zero marginal cost on duplication leading to people valuing the product at zero. As Gabe Newell (the billionaire co-founder and president of Valve, which operates ‘Steam’, the largest digital distribution platform for PC gaming) has noted regarding piracy: “One thing that we have learned is that piracy is not a pricing issue. It’s a service issue. The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates.”

Indeed, Spotify and Netflix are the prime examples of this ‘service beats piracy’ model; at least until the recent proliferation of streaming networks effectively recreated the experience of cumbersome and expensive cable packages.

The Miracle of Piracy and the Urge to Share

In the digital age, traditional concepts of property conflict with the intrinsic value of free knowledge. As legal scholar Eben Moglen noted in his DotCommunist Manifesto, “when everyone can possess every intellectual work of beauty and utility--reaping all the human value of every increase of knowledge--at the same cost that any one person can possess them, it is no longer moral to exclude”, suggesting that ownership and coercive payment will be replaced with association and voluntariness.

Correspondingly, there are predictions that increased competition in the Internet of Things combined with 3D printing and prosumer (producing rather than consuming) conduct will lead to a “Near Zero Marginal Cost Society”, the eclipse of capitalism, and the rise of a global Collaborative Commons with increased sharing and a greater back and forth 'remix culture'.

Such a future may not come to pass barring revolution. But even without, the urge to share information, whether encrypted or not, whether legal or not, cannot and will not be dampened so long as such sharing is possible, regardless of legal permissibility.

Digital piracy allows for a modern-day miracle: the ability to learn what you want wherever you are without regard to the ability to pay (though not totally free of the whims of government) and, often, the ability to share that knowledge with others at close to zero marginal cost. Let all who would eat be filled.


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r4 - 16 Jan 2022 - 23:53:29 - AdamLawson
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