So why should file swapping be legal? Let’s examine the reasons one by one.
The primary reason why file swapping should be legal is because it’s not a crime, at least not an ethical one. Sites or services that point to where to download the content are just referencing the presence of the information. Referencing or linking is never a crime. It’s like instructions on actions like how to prepare bombs, where to find illegal drugs, how to cheat various systems, or where to find stolen goods. By itself this information is not a crime to know, because it’s protected speech. So does pointing to a copyrighted resource.
So now we’re left with the question whether sharing a copyrighted work (or downloading it) is an objectively criminal action. The answer is again “no”. It’s not a crime since the originator of a copyrighted work that was made public cannot prevent non-commercial copies from being made and distributed. As of today, many countries passed such laws, but these laws are unethical. Sharing of copyrighted work is common-place, and many of the people who do it (including many children) do not feel they’re doing something wrong, or feel guilty about it. So it is ethical, and moral and should be legal.
Note that selling copies commercially (as in stores of pirated media), can be prohibited by the copyright holder. But non-commercial copying (from friend to friend, or via Peer-to-Peer services) cannot.
Several respondents to early versions of this article, claimed that I should prove that copying or receiving a copy of an artwork that was released to the public is ethical and moral. Well, I’d like to ask those critics “Why it is not moral?”. And they’ll probably have no answer.
According to the definition of Ethics and Morality that I accept (presented there as “Constitutionality and Beneficiality”), then file sharing is ethical, because it does not involve an initiatory force, threat of force or fraud against one’s property, which as I demonstrated here does not include the so-called “intellectual property”. Moreover, it is also moral or at least not immoral, because it does not harm or prevent the filling of human biological needs.
Copyrights are not an absolute “nature-given” right like the rights for life and freedom. Instead, they are a state-enacted monopoly that is meant to protect the originators of artworks from abuse by commercial distributors. However, due to the computers and Internet revolutions, it makes no sense to try and prevent non-commercial digital distribution of them.