Previously I have addressed the question of whether file sharing is ethical. And an individual’s decision whether to engage in file sharing should be guided by its ethical status. But, putting the ethical considerations aside, we can also question whether the laws prohibiting file sharing, and the associated punishments, are just. To some this might not seem like a different question, but as I understand them justice and ethics are distinct. Justice describes the social structures, usually laws, that create harmony in a society, while ethics governs what individuals should and should not do. Which means that sometimes laws allowing unethical actions, or prohibiting ethical ones (even more rarely), are just. And, more importantly, we can address the question of whether a law is just from a different angle; hopefully avoiding completely the need to consider whether file sharing is theft and whether theft is always wrong, as many people have strong intuitions about those matters which don’t seem open to rational discussion.
Before we tackle the question of whether laws prohibiting file sharing are just let us discuss a hypothetical case, in order to illustrate how to approach the question of whether a law is just or not in situation free from existing biases. Consider then a society in which wearing your hat backwards is considered taboo by the majority of the population, and in which laws have been passed against wearing hats in any way other than that in which they were intended. And let us suppose that there is a minority who does want to wear their hats backwards. Is the law against wearing your hat backwards unjust? Probably, if the people who want to wear their hats backwards feel oppressed by it, and are thus moved to disobey it. And of course by disobeying it they offend those who don’t want to see people wear their hats backwards, and this creates even more tension within the society. Because the law is causing the society to be unharmonious it is unjust. Of course there is no perfect solution; we can’t simply allow people to wear their hats however they please because this will make the people who don’t want to see backwards hats unhappy. The just law then is a compromise that reduces tension between these two groups as much as is possible, perhaps by allowing people to wear their hats backwards indoors or in specially designated areas. As this example illustrates justice is usually a compromise, with any deviations from the compromise solution usually requiring widely accepted ethical or economic justification, which obviously can’t be provided for something as arbitrary as how to wear a hat.
The situation with file sharing has some similarities to our hypothetical example. One group of people, the record companies and their allies, wants to forbid the free sharing of copyrighted material. And another group of people, the file sharers, want the sharing of copyrighted material to be completely legal. And there are no widely accepted reasons to prefer one side to the other. Of course each side has their reasons, and will be harmed if the other side gets their way, but no one has reasons for their position that everyone accepts. We should expect justice then to be a compromise. I don’t know what the best compromise would be, but given that there are more people sharing files than there are people who have a vested interest in them not doing so I would expect the compromise to favor the file sharers. Possibly they could be given some of what they want by making everything distributed over public airwaves (radio & network TV) legal to share. However, as things stand now, the laws are not a compromise position promoting harmony. Rather they favor one side over the other, creating an unnecessary tension within society.
Of course those who oppose file sharing will try to construct a reductio-ad-absurdum against this position. There is no need to wait for them to supply it themselves; since they always make basically the same case against file sharing I will provide it for them. They will say: but what if a minority of people favored theft of physical goods, surely you wouldn’t say that justice should be a compromise between the thieves and non-thieves? Now this falsely supposes that we can draw a suitable analogy between file sharing and theft, which I don’t think is possible. In the case of theft we couldn’t make society more harmonious by allowing it, even if some were in favor of stealing, because no one likes being stolen from. Obviously this is very different from file sharing. The file sharers both download files from others and allow others to download from them; it isn’t a one-way street. But let us suppose that the people who were in favor of theft didn’t mind having things stolen from them. Well, in that case it would be just to allow theft in certain limited circumstances. Specifically we could ask that people register as thieves or non-thieves and then allow the thieves to steal only from other thieves. Since the thieves want to steal, and don’t mind being stolen from everyone gets what they want, and thus everyone is happy. Obviously the solution here isn’t a solution we can extend to file sharing, but that is because the situations are fundamentally dissimilar. In real theft there are a fixed quantity of goods which are redistributed as a result of the theft; in the case of file sharing the number of goods is increased without a direct loss to anyone.
The only argument against ending the prohibition against file sharing that will stand up to this analysis is one that can provide reasons not to share files that will be accepted by the file sharers, not one that tries to draw an analogy between file sharing and something obviously unethical. If such reasons could be provided then the file sharers wouldn’t feel unduly put-upon by the laws that prohibit them from file sharing. But no such reasons are to be had. Even if it could be demonstrated that the entire music industry would go under as a result of legalized file sharing, which it probably wouldn’t, many file sharers would probably consider that an acceptable loss. Thus the only just law in this situation is a compromise, making the current prohibition of file sharing unjust.