I had a short conversation with a friend on Facebook where I noted that, for the past several years, I've adopted a zero-tolerance policy when it comes to 'piracy'. I've never been the kind of person who downloads music, movies, or games for free, but I certainly shared tunes during the Napster craze in college. I'd also delved pretty deeply into classic system 'emulation' before my 20s. I have mixed and somewhat complex feelings about the causes and effects of piracy in modern media, but by not partaking in it myself I can put my money where my mouth is and support those creators whose stuff I feel is is worth keeping afloat.
Then I had a brief exchange with a man working at a used record store last weekend during which he brought up an interesting philosophical point: What about media that is no longer in print, but isn't old enough to have fallen into the public domain? Is it ok to download PDF versions of such books, or ripped copies of such movies or video games?
The law is fairly clear on this: So long as someone holds the copyright on a work, you're not allowed to reproduce it, even if it's out of print. The only real recourse that you have to obtain it for yourself is to attempt to find it used1. I only said 'fairly clear' because actually finding out whether someone holds the copyright to a work can be pretty tricky. Apparently, when a company goes out of business without finding a buyer for its assets, it's fairly popular for them to 'write off' intelectual property as a loss for tax and bankruptcy purposes. While there's no clear legal standing to such material - apparently 'scholars' are unclear on whether such material automatically becomes 'public domain' - it has spawned the software concept of 'abandonware', or software whose copyright holders have relinquised their legal hold on the material. If someone still owns this stuff, they're not complaining. See Abandonia or XTCAbandonware for examples of sites that openly distribute such software.
But let's put Abandonware aside. Rather, consider only media whose publishers are still in business, but who no longer actually publish or support said work. I have to admit that I can't morally justify its piracy to myself: There's always the possibility that the publisher will re-release the work at a future time. I've already experienced this with a recent book: it had been out of print for almost a decade, but was re-released last year as a Kindle e-book.
Despite my inability to justify such piracy to myself, even I can admit that there are some titles that are highly unlikely to see re-release. For instance, some games were programmed during in an era when it wasn't common to create extensive backups or were designed for systems with architecture so unique that it's almost impossible to 'port' them to modern computers in any form2. Similarly, certain TV shows and movies incorporated licensed music or themes whose contracts have expired, and any attempt at re-releasing them would require extensive renegotiation of royalties.
The one somewhat legitimate argument (and I use legitimate here in the literal sense of 'justifiable') that was made by the gentleman in the store is that of 'cultural preservation'. We would balk at the idea that Shakespeare's or Jane Austen's work could be lost to the ether of time because of legal disputes over who owns the rights. We're lucky that because they're written down on fairly durable material, which survived the expiration of its copyright, it's unlikely that every single copy of Hamlet or Sense and Sensibility could be somehow lost. However, because it's impossible to buy legal copies of the Star Wars Holiday Special, were it not for all the nerds uploading it to sharing sites, it could become a tragedy of time3. Disks and magnetic tape don't last for ever, unfortunately.
I'm pretty cynical, and I'm willing to bet that 95% of people who claim that they're involved in 'preservation' of media are actually just rationalizing what amounts to theft. There are organizations dedicated to keeping a record of the history of classic works - Project Guttenberg for books, or The Lost Levels for unreleased videogames - and you can usually tell if they're legit by whether or not they have 'skin in the game' (are they investing time, effort, and cash in 'preservation' or just hosting pirated works on an anonymous, free service?). But then again, if someone is honest with themselves and admits that the only recourse they have if they want to experience a particular piece of media is to pirate it, it's difficult to condemn them... Which, I suppose, is just one more argument for why making one's catalog available digitally at a market-reasonable price is a great start to curbing piracy.
1This is creating a massive headache for people looking towards the future of media. If you read the End User License Agreements of digital goods (and who does?), you'll often find that there are provisions indicating that the provider has no obligation to provide access to the good indefinitely. Some services, such as Amazon's Kindle e-book reader or MP3 store basically give you a copy of the files, so you can be responsible and back them up yourself. Other services - especially as relates to movies and software - require authorization keys locking the media to a particular piece of hardware, and/or access to internet servers to authenticate the product everytime it's used. When those servers go down, what happens?
2For anyone interested, it's really fascinating to look up the details of the failed videogame console known as the Sega Saturn. The Saturn was such a unique and custom piece of hardware that software designed on it was almost impossible to run on other systems. Just for starters, it was a 3D system that rendered quadrilateral polygons rather than the triangular polygons used by every other system up to present, meaning that it was incompatible with the design software used by everyone else. To this day, it remains one of the most difficult if not nigh impossible systems to emulate, and almost no big originally Saturn-specific titles have ever been released on retro-gaming services, legal or otherwise.
3Yes, I did intentionally, implicitly compare the Star Wars Holiday Special to Hamlet.