Copyright bills like SOPA and C-11, along with the interests behind them, are united in the assumption that piracy is theft. Like many before me, I argue that theft is the willful dispossesion of property on the part of the target. It is taking something from somebody such that they do not have it anymore. When a data object is copied, its originator still possesses it. That phenomenon is something else entirely. Antisocial in many cases, potentially even warranting elevation to the status of a crime, but it should not be conflated with stealing.

The argument from content producers and their financiers tends to be that pirates are intercepting their revenue, which is perfectly accurate. The fallacy lies in the assumption that if the pirates didn't exist, everybody who would have otherwise obtained material through them would have paid the full asking price for it. Such a claim is at best deluded and at worst mendacious.

One item that is consistently missing from such arguments is the cost of the audience's attention. The trope of exiting a movie theatre, remarking I would like that two hours of my life back captures this idea perfectly. But it isn't just the cost of attending to the work itself, there is also the cost of promulgating a work that merits it. A satisfied audience pays in the very least by directing others to the work in question. Discovering the existence of a work and the means to obtain it, whether one must ultimately pay money for it or not, also incur a non-zero cost. So in some ways, content producers exhibit the same sense of entitlement as those they accuse, that this kind of publicity and wayfinding support should be free.

This detail elicits a distinction between people who actually attend to cultural artifacts and those who simply see them as inventory. (And while the technical details of protocols like BitTorrent blur this distinction considerably, it is worth remarking that demand for content is exactly what makes that network function.) The Pirate Bay, for instance, doesn't care about your work, per se. It's only good to them if they can aggregate it among millions of other works in a searchable index against which they can sell ads. (Moreover, they don't even serve any content, they only direct people to it.) If people go to them to find your work instead of to you, the choice they're making is more nuanced than what is typically appreciated.

While typically free of pecuniary cost, the inconvenience factor of BitTorrent increases exponentially with more esoteric content. If your Internet service is metered, you might end up paying your ISP as much or more than you would to just buy the damn thing. And then you have to worry about what you're getting, both in terms of quality and security. iTunes, Netflix and Amazon Kindle collapse the inconvenience of both waiting for—and paying for—content to a single sign-up process. TV requires you to pay for cable, and then adhere to its schedule or buy additional hardware to get around it. Physical media is expensive and requires you to either physically go to a store to purchase it or wait to have it shipped to you. Theatres only show films a few times a day and your favourite band may play in your city once a year, if they play there at all. Given all these examples, we can appreciate that there is a gradient to the amount of effort a person has to go through to consume content and that money is only part of the equation.

How much trouble a person is willing to go through to get at your content, including how much money they pay for it, is heavily moderated by how much they care about you. As a content producer, getting people to care enough to pay you for your work is a big part of your job. It's only recently that you've had to make the appeal of paying you versus not, but there has always been the problem of why people should pay attention to you versus attending to somebody else.

So when Jonathan Coulton or Louis C.K. put their work up on their own sites, people pay for it. They do so because they want to give these guys their money. The talent behind the work, the ones that the aforementioned legislation is purported to protect, seem to have no trouble getting paid if they just ask for it. Sites like Kickstarter demonstrate that fans will even pay in advance. This is almost certainly due to the fact that fans are engaging with an actual human being. Individual artists and authors are both easily identifiable and memorable, as are bands, actors, even directors. But where to lavish the praise becomes unclear with the growth of the production apparatus: Tell me the last time any normal person has given a crap about the plight of a record exec or movie producer.

And then there is the issue of price. If you're selling a book, album or movie for a firm $19.99, you are ignoring what the market could be telling you. Your customers who you claim would be paying you $20, pay you zero, because with no pricing mechanism, they can't opt to pay you what they believe your content is worth. When bands like Radiohead and Nine Inch Nails implemented their pay-what-you-want experiments, they found that when people paid, the average price was in the order of $5, and the dispersion was enormous. Big surprise: different people value different content creators—and by induction, their work—differently.

There will always be piracy, because for arbitrary pairings of people and content, there will always be some for which the differential between finding it, getting it and consuming it, doesn't add up to paying for it. Crypto-crippling content and gelding hardware just makes it more expensive and more brittle for everybody, and outlawing the circumvention of such measures is immensely effective at eroding the very notion of personal property—that's actual physical stuff—not some infinitely-multipliable arrangement of bits. In my opinion it is not an acceptable trade-off for society to make, just so the entertainment industry can extract a few extra bucks at the margin.

If you are in the business of manufacturing cultural artifacts, I recommend the following change in perspective: consider that rather than mass-producing things that you sell off into the ether, you are mediating a shared social experience among actual people, including yourself. As a social relationship it may be asymmetric, but it's a relationship nonetheless. Make your fans understand that you appreciate their support and that your results are unattainable without them. Compete with pirates: Make sure you or your agents offer the most pleasant overall experience for obtaining your content. Make it possible to find a clearing price for your work, rather than an all-or-nothing choice. The one thing they can't offer is assurance of the genuine article. And understand that before anybody pays you money, they have to pay you attention.

And yes, by all means, intercede when somebody else is capitalizing on your work without negotiating a deal with you. Be vocal about it. Punish it. Because that is antisocial. It's parasitic; it's free riding. But it's different enough to be not quite the same thing as stealing.