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March 30, 2011, 2:30 p.m.

So, then…if you jump The New York Times’ paywall, are you stealing?

James Poniewozik has a great column this week asking a question we’ve been talking about here at the Lab: Given all the ways to avoid paying for a New York Times digital subscription — ways that the Times has purposely built into the pores of its paywall, and ways that clever techies have figured out — is it immoral to jump the wall? To what extent, essentially, is gaming the Times also stealing from it?

As Poniewozik said: “Calling the Ethicist!” And, totally. But — we checked — current Ethicist Ariel Kaminer is also currently employed by the Times, and so is indisposed on meta-ethical grounds…and Randy Cohen politely declined my request for a comment. So, for a bit of amateur Ethicism — buckle your seatbelts, everyone! — here are a few points to add to Poniewozik’s.

A Times kind of person

Here’s how Martin Nisenholtz explained wall-jumping to Peter Kafka:

I think the majority of people are honest and care about great journalism and the New York Times. When you look at the research that we’ve done, tons of people actually say, “Jeez, we’ve felt sort of guilty getting this for free all these years. We actually want to step up and pay, because we know we’re supporting a valuable institution.” At the same time we want to make sure that we’re not being gamed, to the extent that we can be.

This “honest people” attitude — the presumption being that if you bypass the wall, you are not one of those people — is echoed by Nisenholtz’s colleagues. At a Paley Center breakfast last week, Arthur Sulzberger acknowledged that wall-jumping, by Times mandate and otherwise, would happen. But: “Is it going to be done by the kind of people who buy the quality news and opinion of the New York Times? We don’t think so.” (And also: “It’ll be mostly high school kids and people out of work.” And also! “Just as if you run down Sixth Avenue right now and you pass a newsstand and grab the paper and keep running you can actually get the Times free.”)

It’s familiar logic — the same kind of analog-economics-for-digital-content thinking that fuels all those “People! Don’t you realize that X months of The New York Times is just X Starbucks lattes?” comments. What it overlooks, though, is the very real possibility that, not just physically but economically, atoms have different properties than bits. Whether bits-based products involve different ethical considerations than their atoms-based counterparts is an open question — and, in fact, the question. But it’s one the Times is begging — and possibly forcing — with the ethiconomical (to coin a horrible, sorry, but possibly useful term) logic of its wall. The paper’s public establishment of a certain “kind of people” — a class who not only read the Times, but pay for it — is interesting for several reasons, one of them being its suggestion that there is also a “kind of people” (potentially adolescent, probably unemployed, and possibly morally bankrupt) who wouldn’t pay but would still consume Times content beyond the newspaper’s stated bounds.

But how fair, really, is that suggestion? Is deleting cookies or URL characters from a web browser directly akin to stealing a physical product from a newsstand? (And, then, is ad-blocking software immoral? Is reading Times content, for free, on someone else’s computer?)

Don’t steal steaks

In the physical world, property and the ethics surrounding it are straightforward things: Basically, do not take something for which you are being asked to pay money. There is a necessary lack of nuance in this: Even if that something is free somewhere — anywhere, everywhere — else, and even if the price being asked for it is ridiculous, if the something’s owner asks for money in exchange for it, your choice as a consumer is pretty much either to pay up or shut up. As CJR’s Lauren Kirchner put it, discussing Stewart Brand’s intersection with paid content, “No one would say ‘groceries want to be free’ and use that as an excuse to steal steaks. Or I guess some people might, but those people would be jerks, and also criminals.”

Definitely. But, then, the obvious obviousness of Don’t Steal Steaks is also contingent and contextual; it’s based on the fact that steaks are things. The ethical boundaries we take for granted in the physical world of commerce are generally based on actual boundaries: spacial distinctions that define ownership, separating permission from perfidy. So you can cart that steak all around Safeway if you want — but you won’t get arrested unless you take the steak outside without paying for it. As a matter of cultural consensus, in the context of the grocery store — and in the context of the grocery store’s analogs — it is the space itself, the “in” versus the “out,” that defines the acceptable against the un-. And it is the universality of that definition — the fact that it applies to and is known by pretty much everyone, pretty much implicitly — that makes “don’t steal steaks” so obvious. In it, the ethical and cultural and legal coalesce into one easy mandate.

But online, where space is as infinite as the human capacity to create it — and where your consumption of a Times article doesn’t mean someone else doesn’t get to read it — the conveniently clear line between moral acceptability and moral depravity no longer holds. There’s no obvious “inside”; there’s no obvious “outside.” And the web’s broad wall-lessness, ironically, enforces a barrier between “obtaining” something and “owning” it. In a digital environment where so much is accessible and so little is own-able, what exactly — ethically, legally, pragmatically — is yours? And what, exactly, is mine?

Owning atoms, owning bits

These are legal issues that are being wrestled with every day — and by, you know, actual experts. But, for our purposes, it’s worth noting the broad cultural context in which the Times wall has been erected. The Internet, after all, is still young (in terms of widespread adoption, it’s just a tad older than one of Sulzberger’s high school kids), and so are the communal values that help us navigate it. The web’s “wild west” element — its newness, its rawness, its up-from-nothing-ness — also suggests its lawlessness. Legally and culturally. We simply haven’t had time yet, in this bizarre new environment we find ourselves in, to reach consensus about what’s stealing and what’s not, about what’s owned and what’s not. We’re figuring it out, sure, day by day. But the offline ethical assumptions whose convenience and communality we take for granted are also, it’s worth remembering, the products of centuries’ worth of friction. Consensus takes time.

The Times is part of a long continuum in attempting to graft the ethical assumptions of the physical world onto the economy of the digital. The iTunes Store, for example — the platform whose essential genius was that made it easier for people to pay for digital content than to pirate it — framed its introduction in vaguely ethical terms, as well. (As Steve Jobs said at the time: “Consumers don’t want to be treated like criminals and artists don’t want their valuable work stolen. The iTunes Music Store offers a groundbreaking solution for both.”)

But what makes the Times’ paywall pitch so interesting is that it’s less about the interplay between ethics, economics, and convenience, and more about the interplay between ethics, economics, and the communal good. Essentially, the paper is trying to define the communal good as an economic good that is — boldness! — implicit in its product. (This is the logic that merges Times journalists being kidnapped in Libya with “the Times should be paid for.” Which is implying something, actually, fairly revolutionary: that the practice of journalism is, economically, part of the product of journalism.) That’s not simply a matter of the NPRization of the NYT (although that’s one element of it); more interestingly, I think, it’s a matter of the commodity of news collapsing into the creation of news. You’re not paying for the thing, the Times is saying; you’re paying for the process that creates the thing.

Image by like oh so zen used under a Creative Commons license.

POSTED     March 30, 2011, 2:30 p.m.
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