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Will ‘Game of Thrones’ and HBO tolerate piracy?

The big news about “Game of Thrones” last weekend wasn’t the comparative blood-and-gore quotient for Sunday night’s Season 5 premiere, but that the first four episodes were leaked online, and have already been downloaded perhaps a million times. Although HBO has hinted that the episodes were uploaded by a reviewer, the leak could hardly have come as a surprise, given that Game of Thrones at times last year, “accounted for more than half of all TV shows pirated on file-sharing networks, and more than all music downloads combined.” In short, what happened over the weekend was just more of the same.

The controversy has invited the usual thoughtful musings on whether downloading should really count as stealing. As one who earns a part of my living from creating content, I obviously have a bias. Yet I wonder more and more whether Cory Doctorow, in his recent book Information Doesn’t Want to be Free, might not be on to something important.

Doctorow, an always interesting and provocative essayist, doesn’t think the walls against digital copying can hold. Consider his view of e-books: Our attachment to physical books, he writes, is sentimental: “We have a particular reverence for books in our society, one that borders on superstition. If you were making a movie and you wanted to demonstrate that our world had been reduced to barbarism, you could just show a gang of angry townsfolk burning some books.”

But an e-book strikes people differently, he says: “A digital lock on a book says that you’re not the book’s owner, merely its licensor, whose rights are set out in a long, incomprehensible ‘license agreement.’ … Most people understandably pretend that this doesn’t matter.”

In other words, most users take the view that the online world should accommodate rather than frustrate their desires. They should get what they want when they want it.

Doctorow isn’t suggesting that everything available online should be taken without being paid for. His point is that everything available online eventually will be taken without being paid for. The simple fact is that “copying will never, ever get harder.” Therefore if you want to make sure to get paid, you should “sell a physical copy of your art.”

Doctorow’s argument is teleological: The Internet’s essential function has always been social. It is fundamentally a place where people copy and share. Over time, he believes, unduly restricting that instinctive use will either fail or destroy the medium. This isn’t so much advocacy as prediction.

If he’s right, the reason must be a difference between behavior online and behavior in the physical world. I suspect that plenty of young people who wouldn’t hesitate to download Game of Thrones illegally wouldn’t consider for a moment swiping a book from a store. The distinction isn’t just a matter of weighing up the consequences; it touches instead on an instinctual sense of right and wrong.

What would account for the differences? Let’s go back a bit. In 1970, Stephen Breyer, then a professor at Harvard Law School, published his classic article “The Uneasy Case for Copyright.” Breyer expressed a measured skepticism that most people would prefer to own unauthorized rather than authorized copies of copyrighted works. The copies, he noted, might be of poor quality. And most people, he hypothesized, would retain a certain ethical queasiness over knowing that they possessed what they weren’t supposed to.

The article was brilliant, but it was also a product of its time. The quality issue was long ago put to rest. And the ethical queasiness, if it ever existed, seems to be fading. That users worry less about the source of the content they want than simply getting their hands on it may be an example of Doctorow’s Third Law: “Information doesn’t want to be free, people do.” Online, in Doctorow’s telling, users gravitate toward a simple libertarian principle under which they should enjoy maximum freedom of action. Breyer’s classic article began with a famous quote from Thomas Macaulay, describing copyright as “a tax on readers for the purpose of giving a bounty to writers.” In the online world, however, users increasingly rebel against paying the tax.

Doctorow is skeptical that a technological fix is possible: “In the 21st century, copying isn’t a problem. In the 21st century, copying is a fact. You can’t and won’t solve copying.” Whatever movie or song you want, Doctorow says, “it’s a safe bet that someone, somewhere, has already unlocked it and put it out there for you to download.” All you have to do is search.

In principle, it might be possible to sell computers “incapable of running a program that makes copies of files that shouldn’t be copied.” The trouble is, nobody would buy them: “As a rule, computer owners don’t want their computers to disobey their orders. From the owner’s perspective, a computer that won’t make copies when you want it to is broken.”

There’s a certain irony to Doctorow’s argument that the market for physical goods (computers) functions exactly as a market should, with sellers crafting their products to meet demand, given his belief that much online demand is for content carrying an implicit zero price. Given that supply curves slope upward, the future of serious content would seem bleak.

If you haven’t read Information Doesn’t Want to be Free, you should. It’s an excellent book. I say this even though, as a content producer, I’d like to believe that Doctorow the prophet is wrong. I’d even like to cast my lot with the Breyer of 45 years ago, and take the view that the ultimate security against unauthorized copying is the ethical instinct of the user. But such events as last weekend’s millions of downloads of the early episodes of Game of Thrones are chipping away at my confidence.

Stephen L. Carter is a Bloomberg View columnist and a law professor at Yale.