Jacob Williamson observes that a strong argument against digital piracy evokes the Kantian claim that it is wrong to act in a way that you wouldn’t want to be universalised. At the same time, Peter Singer offers a consequentialist account of the ethics of piracy, suggesting that individual acts of piracy are not morally culpable, but create a collective action problem that ought to be resolved through measures like a public lending right for the internet. This seems to be an excellent illustration of one of the major fault lines between consequentialism and Kantianism, and that our views on that dispute may be highly salient to the moral evaluation of piracy.
A couple of caveats. First, this is far from the only frame through which to view the question of digital piracy. Other plausible arguments may draw on ideas of fair recognition of desert, or the importance of respecting property rights (as in a libertarian theory). Second, the version of Kantianism discussed here is only one possible interpretation, and not necessarily the most defensible. While Kant’s ‘formula of the universal law’ (FUL) is most relevant here, it has been suggested that this principle is less significant and helpful to understanding his ethical theory than other principles.
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 logic of the FUL is most persuasive in cases like internet piracy, where it is quite clear that everybody adopting a certain course of action would be disastrous, even if individuals can do it without few ill effects. If nobody bought books, CDs, TV licenses and subscriptions, then there would be no reward for those producing these goods, and they would disappear. Thus the pirates are free riding on the contributions of those paying, violating moral equality. They are acting as if they are special and above the rules.
The consequentialist accepts that collective action problems can occur, and condemns individual acts insofar as they contribute to collective action problems. However, they will insist that universalisation is only appropriate where it is likely that many people will follow my lead. 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.
This line of response only works when piracy is relatively small scale, and does minimal damage to the media industry. Yet when many people are performing the same act, which we would not want universalised, the consequentialist has to take a different tack.
For the consequentialist, all that matters is the direct causal responsibility that each individual bears for the emergence of the collective action problem. The pertinent question is what would happen if I chose not to commit piracy. As Singer observes, the consequences are often minimal. (Though for an interesting discussion of additive harms and consequentialism, see Shelly Kagan)
From a consequentialist perspective, digital piracy is only bad because it undermines the media industry, but each individual act of piracy makes little impact on the media industry. It would be very good for me to have access to the pirated material, but in many cases it would do nobody else any good for me to forgo it – piracy will continue or not whatever I do – so there is no sense in choosing not to pirate.
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).
The Kantian position seems to require us to take a stand in the full knowledge it will have no effect, while the consequentialist position seems to suggest what it is individually moral is collectively immoral. And indeed, this exposes Kantianism’s fetishism – its blind obedience to the rules, no matter what. It also demonstrates consequentialism’s essential individualism, its difficulty with dealing with collective challenges.
 Notice that I have slipped from talking about ‘maxims’ to talking about ‘acts’. I do this to avoid the tricky question of what constitutes a maxim.