The Copyright Czar Is Coming

There have been many posts on this blog concerning intellectual property and copyright (see Is Stealing Music Wrong and Is Paying for Music Wrong for the the philosophical arguments). As many of you know, before leaving office George W. Bush signed the Enforcement of Intellectual Property Rights Act creating a cabinet-level copyright czar charged with implementing a nationwide plan to combat piracy. This position will function in a similar fashion as our current drug czar (the current director of the Office of National Drug Control Policy) who is charged with implementing a nationwide plan to combat illegal distribution and consumption of drugs. The Obama administration will be the first to select a copyright czar (strangely appropriate since Biden is known for coining the term "drug czar" back in 1982 in reference to the director of the ONDCP).

A glance at our past discussions on this topic revealed a divided stance on the topic of whether or not copyright infringement, specifically dealing with digital media, constitutes theft. However, at a recent MPAA dinner Joe Biden was quoted as saying, ""It's pure theft, stolen from the artists and quite frankly from the American people as consequence of loss of jobs and as a consequence of loss of income." He continued to say that copyright infringement "strangles creative juices."

Since the copyright czar will obviously influence the shape of copyright enforcement in the United States, both sides of the copyright argument have sent letters to President Obama encouraging him to choose wisely. The content industry, including the Recording Industry Association of America and the Motion Picture Association of America are pushing for someone from their own ranks (an RIAA lawyer, for example) that will be sympathetic to their cause. The Copyright Alliance, along with 40 other groups representing intellectual-property holders, recently sent a letter to Obama that intellectual-property protection stimulates creativity and creates jobs.

As we often delineate in philosophy club, there is an important difference between legality and ethics. However, in our culture, politics and law are where the philosophical rubber hits the road (to quote Todd Furman). Biden has made it abundantly clear that copyright infringement is theft and that it stifles creativity. Our laws may soon reflect this view. Ethically, however, the debate continues.

~guybrarian

Is Paying For Music Wrong?

This is a response to the last post entitled “Is Stealing Music Wrong?”

Merely by posing the question in that form, the author has already conceded to his opponents the bulk what they themselves have to proof; namely, that "file-sharing" is stealing. By making this concession, the burden now falls upon the author to make a moral justification for "theft."

Not that this burden is insurmountable. Even within traditional approaches to ethics there are weighty moral arguments for "theft" of specific objects from specific persons under specific conditions. Those arguments invariably rest upon conditions of the material or social value of the pilfered item, the proportionate distribution of property between the thief and the victim of theft, the frequency of theft or immediacy of need, and (most importantly) the issue of life or health (e.g., the peasant stealing a sack of wheat from a wealthy nobleman to feed his starving family). This example should illustrate the problem a defender of file-sharing would face availing herself to this exception, given that it would strain the imagination to conceive of a case where downloading music, movies, games, etc. would serve immediate vital needs. To make a moral case for the "stealing" of copyrighted media, the file-sharing advocate really has no recourse to the limit cases of traditional ethics.

Let's be clear that the question “Is stealing music wrong?” is a moral and not a legal (in the sense of "positive law") one. Any group of bureaucrats can, with the fiat of the courts, define what constitutes "stealing." What we are aiming at is the essence of what it means "to steal."

Let's look at "stealing." Granting that there is a synonymous relationship between the verb "to steal" and the noun form "theft" such that we can substitute (mutatis mutandis) one concept for the other, we can avail ourselves to to Merriam-Webster, which defines "theft" as “the act of stealing; specifically: the felonious taking and removing of personal property with intent to deprive the rightful owner of it.” Let's examine what is covered in the "specifically" clause by way of an example:

Jack and Jill live on opposite sides of a hill. Jill has a bucket which she built using scrap materials found on her side of the hill. Jack doesn't have a bucket, or any kind of water-fetching device, lacking the material with which to fashion such a device. Upon learning that Jill has a water-fetching device, Jack goes to Jill's side of the hill, takes her bucket, and leaves.

Turning to the particular wording of our clause, we will set aside the adjective "felonious," since it only establishes the juridical status the “taking and removing”, which we're not really interested in (for the moment, anyway). “Taking and removing” is the act Jack performs in relation to "personal" (belonging to Jill) "property" (the bucket). This act is "intentional," since Jack is purposefully went over the hill to take and remove the bucket, thus "depriving" the "rightful owner" (Jill) of the use of the bucket. The aspect of this scenario which we recognize as wrong is that Jill obviously had a claim on the television set, and Jack unjustly deprived her of ability to make use of that claim.

Now, let's draw our attention to the two words: "removing" and "deprive." Take a second example:

Jill has a free and unlimited supply of fresh running water on her side of the hill. Jack does not, having only a limited supply which, while adequate for his basic needs, requires that he closely monitor his use. Upon learning that Jill, on the other hand, has an unlimited supply of fresh water, Jack takes a bucket (not the one he stole from Jill), goes over the hill, fills his bucket with water, and leaves.

In this second example, Jack “takes and removes” water from Jill's side of the hill, but what makes this scenario different is that there is no "depriving" her of the use of that possession. Jill still has free and unlimited access to water. The portion that Jack takes in no way effects her ability to have access to free and unlimited water.

It is unfortunate that such circumstances seldom obtain in nature. Because of the limitations of material objects, most things can only be used by one or a few persons at a given time, exist in limited quantities, or for a limited duration. Those things that have been perceived to be free and of an unlimited supply have been recognized by almost all pre-industrial cultures as available to everyone in the community to use as they see fit, providing their use neither diminishes the same ability for others or in some way imposes limits upon the supply available for the community. This is what has traditionally been referred to in English, "the Commons." The notion of the commons was always applied to material things whose very existence could be jeopardized through its use.

Wouldn't it be great if there were some aspect of reality that did not suffer from these material limitations? That we could somehow have at our disposal, that we could in some way take possession of without depriving others of the same possession? Or that we could reproduce an infinite number of times without diminishing resources upon which it is made?

If Jack approaches Jill and asks for her bucket, Jill has two choices: she can either give him the bucket or not. "To give" means to relinquish your possession of a thing. If Jack & Jill come to an agreement where Jack can use the bucket for a designated period of time, and then he returns it to Jill for a period of time, and back and forth, we usually call this "sharing." But it is only "sharing" in an analogous sense, since at any given time only one of them have possession of the bucket, and the other one doesn't. With physical things, we often use the term "sharing" in this restricted sense: “I am sharing a bench” or “I am sharing my ice cream.” But in both cases what you are doing is relinquishing (giving) a portion of your possession to another.

What makes so-called "intellectual property" different from real property is that it does not suffer from the limitations of materiality described above. What the "intellectual" designates is that it is based on ideas rather than physical matter. Ideas need only a base set of experiences to be duplicated. If Jill shows Jack how to make a bucket, Jack "possesses" the knowledge of making a bucket to the same degree as Jill, without depriving Jill of her own knowledge of bucket-making. Jack might still need some tin to make a bucket, but by being taught by Jill how to make a bucket, he now has the knowledge of bucket-building. The means by which ideas are duplicated is by experience. Anyone who sees, hears, tastes, etc. can potentially duplicate the idea. Ideas can be "given" is such a way that the giver doesn't relinquish possession of what is given. If you have an idea, as soon as you share that idea with others, they have full possession of the idea as well. This is "sharing" in the fullest sense. Additionally, when an idea is shared with others, that idea becomes the building block for new ideas and new applications of that idea.

In an altruistic society (that is to say, a healthy society) the question of ownership would only arise in those circumstances where the materiality of property prevents the equal access by two or more parties. The notion that "theft" would apply to something which two or more parties can have equal access to is not only an absurity, but the questionable party in such a disagreement would be the one who seeks to make a claim of ownership to what could easily be accessible to all.

If, instead of making buckets, Jill composed a song, by hearing & remembering to a sufficient degree to recite the song, Jack now also possesses the knowledge of this song. Jill has a legitimate claim to being the composer of the song, but only way Jill can prevent Jack from reciting the song (if she can't convince him not to) is under the treat of violence. It is only by instituing a system of violence that anyone can effectively convince others of their society to pay for something that is naturally accessible to all.

Is Stealing Music Wrong?

This post is largely in response to Hanno's request that I address whether stealing music is wrong. Specifically, stealing music digitally (p2p or peer-2-peer networks such as Limewire or Kazaa). However, a simple yes or no will not suffice. Stealing a physical cd from the record store is different than ripping a song off of a p2p site. In the store you are stealing physical property, on the internet you are stealing intellectual property. One of the major differences is copyright law. When you download a song, you are violating copyright law.

My answer to this question is largely shaped by one man: Lawrence Lessig. As he states, The original term of copyright set by the First Congress in 1790 was 14 years, renewable once. Now it is closer to two hundred. Thomas Jefferson considered protecting the public against overly long monopolies on creative works an essential government role. Who is copyright protecting? Consumers? Artists? Distributors?

Instead of providng a full defense here, I wish to simply begin the conversation by quoting from chapter 11 of Lessig's book, Free Culture:

The more I work to understand the current struggle over copyright and culture, which I’ve sometimes called unfairly, and sometimes not unfairly enough, “the copyright wars,” the more I think we’re dealing with a chimera. For example, in the battle over the question “What is p2p file sharing?” both sides have it right, and both sides have it wrong. One side says, “File sharing is just like two kids taping each others’ records—the sort of thing we’ve been doing for the last thirty years without any question at all.” That’s true, at least in part. When I tell my best friend to try out a new CD that I’ve bought, but rather than just send the CD, I point him to my p2p server, that is, in all relevant respects, just like what every executive in every recording company no doubt did as a kid: sharing music.

But the description is also false in part. For when my p2p server is on a p2p network through which anyone can get access to my music, then sure, my friends can get access, but it stretches the meaning of “friends” beyond recognition to say “my ten thousand best friends” can get access. Whether or not sharing my music with my best friend is what “we have always been allowed to do,” we have not always been allowed to share music with “our ten thousand best friends.”

Likewise, when the other side says, “File sharing is just like walking into a Tower Records and taking a CD off the shelf and walking out with it,” that’s true, at least in part. If, after Lyle Lovett (finally) releases a new album, rather than buying it, I go to Kazaa and find a free copy to take, that is very much like stealing a copy from Tower.

But it is not quite stealing from Tower. After all, when I take a CD from Tower Records, Tower has one less CD to sell. And when I take a CD from Tower Records, I get a bit of plastic and a cover, and something to show on my shelves. (And, while we’re at it, we could also note that when I take a CD from Tower Records, the maximum fine that might be imposed on me, under California law, at least, is $1,000. According to the RIAA, by contrast, if I download a ten-song CD, I’m liable for $1,500,000 in damages.)

The point is not that it is as neither side describes. The point is that it is both—both as the RIAA describes it and as Kazaa describes it. It is a chimera. And rather than simply denying what the other side asserts, we need to begin to think about how we should respond to this chimera. What rules should govern it?

This is a great topic to discuss at the philosophy club. My answer can't really be said any better than by Larry himself.