The arguments about the overreach of copyright law in the US are many. But it seems to me that just because copyright is overreaching, it doesn’t meant that piracy is always acceptable. Here are my guidelines for when it may be ethical to pirate. Note, it isn’t legal to pirate, that is in the definition of the word. Like all civil disobedience it is not a defense in court, it is not a shield against criticism, and you should engage in ethical piracy if you choose to with your eyes open and aware of the consequences. Note also that this isn't really a discussion of Fair Use and transformative works. I am narrowly discussing the copying and distribution of media verbatim. Not making remixes, anime music videos or building fake trailers from assorted clips. By no means do I advocate that you engage in any illegal activity, ethical or not, and the following ideas are not an admission of piracy on my part.
It seems ethical to me to pirate copies of media that are out of print and unlikely to come back into print. This also covers items that are not licensed for a region and are unlikely to be. The rationalization is that if you cannot pay for media to the creators or rights holders, no harm is done by obtaining a copy elsewhere. Note: This doesn’t mean “Well I can’t buy the summer blockbuster because it’s not on BluRay yet, it’s ethical to pirate it!” A copy will be available in a reasonable amount of time. Cool your jets and pre-order. Also, to be most ethical one should buy a copy when it is available for sale. For example, if you pirated SimCity 2000 because it wasn’t for sale, but now it’s on GOG.com you should purchase it. Spend the money and get a legitimate copy. This creates market forces to make out-of-print games, movies etc available again.
As the arts become more and more digital, it becomes harder to preserve copies of art for future generations. Video games especially become difficult as hardware to run the game becomes non-existent and the keys to unlock the anti-piracy protections disappear. Worse still are computer games that require a remote server login to operate and multiplayer online games that require servers to connect players. Piracy and the cracking of digital locks to enable these works of art to be studied and enjoyed by future generations is not just ethical, but noble. There is no harm in taking obsolete software and making it accessible. I feel that the primary purpose of creating art is communication, not profit. What artists want to do is make something to share with others. The profit motive is a social construct, not one inherent to art. Artists should profit from their art if they choose. But if art can no longer be experienced in a way that rewards the artist or rights holder, but is still held captive by Byzantine laws of ownership then it is ethical to distribute that art. Distributing out-of-print or inaccessible art freely should not be a crime as they are spreading the art to new audiences. If the profit margin was acceptable, the rights holder or artist would put the work back into print. Demand creates market space, but our understanding of demand is hard. Especially if the demanding group is marginalized and under-represented in the market. Piracy has shown rights holders that there is money left on the table for unobtainable art. Firefly, Family Guy and other TV and movies profited from piracy as it clearly showed the rights holders of this abandoned art that there was money to be made.
If you have purchased a media item, say a VHS cassette of Gremlins and you want to watch it on your computer. Transferring your owned media to a new format should not be a crime. This wouldn’t cover changing type of media. If you’ve bought Fight Club the book, pirating the movie would not be ethical. Ownership of a copy of the Ang Lee Hulk movie wouldn’t make it ethical to pirate the later Edward Norton movie. But scanning or downloading a digital copy of a book that you own the paper version of shouldn’t be a crime. Copyright is there to protect the artistic expression of ideas. If you have already paid for the expression in question, obtaining another copy without incurring costs onto the publisher, retailers or artists does not diminish the artistic expression. To put it another way, don't steal physical media. However, if you can buy another copy, you probably should.
This one requires a little research. If the media was published 52 years ago and copyright was 50 years at the time of publication, the author and rights holders had no reasonable expectation that Disney et al, would have lobbied for copyright to be extended to such a length of time. They made that art with the expectation that it would be protected by law for the period specified by the law at that time. The artists and rights holders would have assumed that they would no longer be making money from their art after the period expired.
For example, the Wizard of Oz 1939 film was made when the copyright term was 28 years. Thus it should be in the public domain.
If a work is censored or banned in a location, it is ethical in my opinion to pirate it to learn from it and to distribute it to others who need to know about it. The ban might not even be explicit. Media with representations of LGBT+ people is hard to come by in the Bible Belt of the US. No laws say you can’t make or sell art about LGBT+ people and experiences, but you won’t find it in the library, local bookstore, Walmart or other outlet. In situations like that piracy is ethical to me.
Luckily the internet is making this barrier easier to overcome. You can read books discreetly on your phone, and watch movies on demand. Much like the out of print example, when you can buy them, you should. But it seems to me that no harm is done by downloading and distributing forbidden books, movies and other media in an oppressive environment.
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