I think I might need to address the issue of why we have private property at all. In order to produce any commodity a person must consume resources. Even those little Buddhist monk fellows who produce feelings of serenity or religious piety in hippies and buddhists need to eat, assertions by the monks to the contrary notwithstanding. We need to be able to criticise the distribution of property between different ends and that's why we have the institution of private property. If a person can't persuade other people to give him enough resources to make a particular product by argument that constitutes a criticism of that product or of his salesmanship, i.e. - his ability to distribute knowledge of the product. (The product is useless if people don't buy it because of crappy salesmanship.) This applies just as much to computer games and programmes as it does to apples or books or whatever. It is perfectly possible to distribute a book against copyright law by photocopying it and putting the photocopies on the Internet for people to download illegally. However, when people do this they deprive the author of money that he might have used to make more books either directly or simply by paying for food or whatever. So contractual exchange of property is one of the essential institutions of criticism of any free society.

Nick objects to prosecuting illegal downloads on the spurious grounds that ticking a box saying "I agree not to filch this software by giving it to other people," is not a contract. The person signing it might not read it or might agree to forfeit the software company's support if the product goes a bit wrong or whatever or might sign it wihtout any intention of sticking to it. People can and do sign loan agreements and other kinds of contract without reading them, should all such contracts be void? If people are too stupid to read contracts or if they just can't be bothered to pay for something does that get them an out of jail free card? I should also note that traditionally when a person signs a contract that he does not intend to fulfil people look on such behaviour as a bad act on the part of the person signing the contract, not on the part of the person who drew it up. Furthermore, I don't recall signing any contract saying that I wouldn't beat the shit out of the next person I see on the street, or that I wouldn't go the nearest shop, put a brick through the window and start stealing stuff. I respect these rules despite not having signed a contract to do so because these rules are objectively right and no free society could exist in which people systematically refused to respect them. I think that intellectual property in software tends to fall in that category. It costs money to develop software. If that software is distributed for free in violation of a contract saying that the buyer would not distribute it the software company often loses money that it might otherwise have received. This does harm the company.

Now let's go back to the case of the little girl:

It may be that the parents are decent people and so is the little girl, and she wants to play Britney's Dance Studio, but doesn't think it is worth $60 of her parent's money. Rather than lie to them by telling them that she thinks it's worth more than it is, or ask them to knowingly spend more money on something than it is worth, she instead downloads a copy for free (whilst retaining the option of asking them to purchase it should it unexpectedly turn out to have hidden depths).

If this reasoning were applied to shoplifting then it would obviously be wrong to steal something because you don't think it's worth the price tag, but since nobody loses out either way when she downloads it (versus not playing it), I fail to see any moral dilemma.

Let's suppose that this is true. She doesn't think the game is worth nothing or she wouldn't want it at all. There are lots of ways she can enjoy the computer game without paying sixty dollars. She can rent it from Blockbuster. She can buy it in a year or so as a budget release for a much lower price. She can try to find second hand copies and so on. In all of these cases, her buying or renting the computer game at the very least does not make it more probable that people will buy games of the same sort in the future because they will be able to sell the game when they're bored with it or rent the game to other people. She ought to want to find a legal solution and she ought to be able to get help from her parents to do so. I do see a moral dilemma.

David points out that some contracts are wrong and ought not to be enforced:

Thus, for instance, contracts 'in restraint of trade' are invalid under existing law. So are contracts intended to fulfil an illegal or an immoral purpose. In the past, the latter have included contracts for the purpose of prostitution, an exception which would obviously be illiberal.

Some contracts are invalid under existing law and it is rightly a matter for debate what sort of contracts ought to be enforced when somebody chooses to try to get the authorities to enforce them.

But, for instance, what about contract terms which benefit no one but do harm people who themselves have done no harm? Surely those terms are nothing but harmful. Why should society jump up and intervene by force?

Well, if none of the parties to a contract want it enforced then I don't see that there is much of a problem. If one of the parties does want the contract enforced then there is a disagreement about the harm done or benefit gained by enforcing or not enforcing the contract. The person who wants it enforced thinks that it would be harmful for the contract not to be enforced, other people might disagree. It might be the case that some cases of illegal downloading are like this as I implied in my original post. I might be prepared to concede in some such cases that the downloader ought not to be prosecuted. But that's a long way from saying that such acts are not theft. If a starving orphan child steals a loaf of bread that is theft, but the government ought not to prosecute the orphan. Perhaps software companies ought to make provisions for some people to buy their software under different terms, e.g. - poor students, I see no need to scrap intellectual property in software.

A related issue is this: if no harm has been done, surely the plaintiff should not be allowed to sue for damages: there were none.

An "if" that is not indiscriminately applicable to illegal downloading even if it might be applicable in some individual cases.

It seems to me that there is more than a touch of utopianism about this post. The World didn't take the time to weigh up the actual damage done by illegal dowloading and whether people have other alternatives. Nor did it take the time to look at whether there might be solutions that would involve making suggestions for better software selling policies. No, instead it just threw the whole edifice of intellectual property in software out the window.