Kant and piracy, continued.

Aveek digs into my brief post on Kant and the ethics of digital piracy, comparing the Kantian approach with the consequentialist line on this issue.

He characterises Kant as follows:

Kant’s FUL states that we are to “act only in accordance with that maxim through which you can at the same time will that it become a universal law”. In other words, morally permissible acts must be universalisable – we would not mind if everybody acted in this way. The intuition captured by this principle is reflected by the familiar admonition ‘What if everybody did that?’ The central point is that morality requires us to live up to the same standards we expect of others. If we act in a way that we would not be happy for everyone else to emulate, then we are acting as if we are special and superior to others, and this is immoral.

The use of the phrase ‘not minding’ worries me. It does too much to create the impression that this is a casual, sentimental, perhaps even optional process. It’s supposed to be much more formal than this. The point is that there are certain maxims that all humans, regardless of their particular idiosyncrasies and preferences, simply cannot will to be laws of action for everyone as a matter of logical possibility.

So, for instance, noone – not even a sadistic rapist – could will as a maxim for everyone: ‘have sex with who you want regardless of consent’. And the reason such a rule would destroy itself is that in embracing it, one gives the consent that the rule presupposes to be withheld. Once one agrees to being ‘raped’, it’s no longer rape. The same goes for murder, which if consented to becomes euthanasia, and so on. And the point about piracy, I think, is that with a little work it could be fleshed out in such a way that it involves acting against the will of another – the content’s producer – in an analogously non-universalisable way.

Even if you streamed football illegally, then, but did so ‘not minding’ the prospect of all streams being destroyed if everyone followed suit – you’d happily just stop watching – that won’t excuse you, in Kantian terms. Embedded in your maxim will be a general principle that cannot be universalised. Just as the rapist puts himself above the laws of sexual consent, the pirate sees it fit to exempt himself from the laws of market exchange.

Which goes some way to explaining why this common objection won’t work:

The consequentialist objects that it might be terrible if everybody left for work at 7.30 – there would be awful traffic jams, and almost everybody would start work late and grumpy – but this doesn’t mean that leaving for work at that time is morally impermissible. The act of leaving for work at 7.30 might not be universalisable, but this is irrelevant, because excessive numbers of people are unlikely to perform this act together.

Only if the looser interpretation of universalisation as ‘not minding’ is taken, would this be relevant. But a principle about driving to work will never give rise to a logically inconceivable universal maxim because it’s never going to involve coercing or deceiving persons, and hence it will never involve treating people in a way they could not possibly consent to.

He goes on to accept that consequentialism is committed to arguing it would be terribly wrong, for instance, for Justin Bieber to engage in digital piracy and tweet about it to his millions of loyal followers, since this is highly likely to directly cause the collapse of a collective good. Meanwhile, my performance of the very same act is unlikely to have any substantial effects, and thus would be less wrong. Indeed, if I happened to really enjoy the game I streamed illegally, it might be the case that I was right to pirate. It’s an open question.

But Aveek denies that this means consequentialism violates moral equality:

Does making this claim violate moral equality and assert my superiority, as rejection of the universalisation principle would seem to suggest? There is no double standard because piracy is not immoral for anybody. At the very least, it is not immoral for anybody in a position similar to mine. (It is possible that those who are particularly influential might have more significant actions and ought not to participate in piracy. But even so, there is still no double standard: if I were in their positions it would be as wrong for me to pirate as it is for them).

Well, yes, there is that sense of equality. But a stronger conception of that term – and a seemingly plausible one – would feel very awkward about condemning Justin Bieber for engaging in piracy and tweeting about it, whilst not caring about my performance of precisely the same action. And it’s only Kant, in locating the immorality within the maxim rather than the consequences, that can condemn myself and Bieber equally.

One thought on “Kant and piracy, continued.

  1. Thanks for this response. You make the excellent observation that the strength of the supposed categorical imperative against piracy is that it appears to involve a logical contradiction – universalisation would be literally impossible. I’m not sure that the rapist’s maxim does involve a logical contradiction, but piracy is similar to Kant’s example of the lying promise. I couldn’t will for all promises to be false, because that would undermine the very institution of promising. Piracy is similarly self-effacing: if everybody did it, there would be no money to make films, music etc, and so nothing to pirate.

    Your point about Justin Bieber being condemned for performing ‘precisely the same action’, rather begs the question. What the consequentialist will deny is that Bieber’s act is *precisely* the same, because of the different background conditions against which he acts. To make an analogy, two people going out and getting drunk on a Friday night ostensibly perform the same act. But if one is down the pub with their friends, while the other is at their child’s birthday party, they no longer look like the same thing. This uncertainty about the level of detail you need to specify to get the ‘maxim’ of your act to universalise leads to the old problem of ‘maxim rigging’, the suspicion that Kantians just decide what counts as a maxim ad hoc to reach conclusions they have decided in advance.

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