Ethics and Copyright, Part 3: The Categorical Imperative

Lyn Hawthorn:

For our last venture into the ethics of copyright and copyright infringement, we explored how the moral framework of utilitarianism might approach the issue. I expect I’ll return to that topic and post later, since my rustiness with philosophical argumentation is pretty evident there, but for now let’s move on to the ideas of Immanuel Kant.

Kant is among the best known of the deontological ethical thinkers. In contrast to consequentialism, which concerns itself with the effect or outcome of an action, deontology evaluates the moral right or wrong of an act based on whether or not it adheres to objective rules or duties–laws that do not change according to circumstance. To clearly contrast this idea with rule utilitarianism, rule utilitarianism would acknowledge that if, by some strange and catastrophic event, everybody found themselves reacting with joy to the discovery that someone had stolen things of theirs (“oh happy day! My life has been simplified without any effort on my part!”), the rule that we shouldn’t steal things from one another should be reevaluated and maybe softened or eliminated. A deontologist, however, would hold that shifting circumstances have no bearing on morality: it is always and simply wrong to take someone’s rightful property without prior consent, no matter whether it does them good in the end or not. I don’t see copyright defenders use this angle as often as I see consequentialist lines of argument, but it does come up: “I don’t care if peer-to-peer sharing broadens my audience or even gets me more sales in the end. I have a right to control how my intellectual property is used, and I don’t want it shared that way.”

Immanuel Kant attempted to boil down an entire deontological ethic to one reasoned-out law, from which you could derive all others. What he came up with is called the categorical imperative. It has several formulations, the first and best-known being thus: “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” It resembles rule utilitarianism or even our childhood Golden Rules in that it posits a sort of thought experiment: “what if everyone did what I’m doing now?” Unlike rule utilitarianism or the Golden Rule, however, it’s not concerned with whether the thought experiment shows a better- or worse-off society, or leads to personally undesirable situations. Instead, it supposes that if we look at our present action as a universal law, and it becomes logically impossible or rationally absurd, then what we’re doing is wrong. For the “stealing” example, if “I may take things from others without prior consent” were a universal law, the whole point of taking something in the first place would come apart: I could no longer count upon using it myself, since anybody else would be free to snatch it away from me in turn. It’s not that this would go badly, but that it leads to contradiction.

So how does this come out for copyright infringement? The tricky part lies in formulating what axiom an infringer is acting upon. We need to sum up the whole of their action without weaselly additions. The Devil-May-Care Infringer comes out in the wrong, at least! “People may download whatever digital content they like without sharing it in turn” leads to contradiction–without anyone seeding or hosting, there could be no downloading, so the axiom undoes itself. Less moustache-twirling Infringers are trickier, though. There doesn’t seem to be anything immediately contradictory about “People may freely download and share digital content,” for instance, an axiom the Casual or Compulsive Infringers might be said to follow. If you argue that such an axiom would mean no digital content would ever get created to be downloaded in the first place, that’s an economic conjecture, and gets us to my thesis: the moral question is contingent upon the resolution of the economic one.

Perhaps a later formulation of the Categorical Imperative might serve the copyright defender better, though. Kant eventually shaped the Imperative into “Act in such a way that you treat humanity, whether in your own person or in that of another, always at the same time as an end and never merely as a means.” That’s wordy and precise, but expresses the idea that we should never make people into tools, using them to further our own purposes without recognizing their own rights and worthiness of respect. We shouldn’t step on people on our way to the top, but cooperate with them and find ways to enrich their lives at the same time. This formulation serves the copyright defender pretty well! Whenever we flout the content creator’s desires in how their work should be distributed, we’re pretty clearly treating them as a means to an end (entertainment, or education, or whatever), in contrast to purchasing and copying according to their preferred model, which brings them into the transaction as an end. Somebody like the Huge Fan, who works very hard to treat the content creator as an end in themselves, fares better–but is still in the wrong at that moment of unauthorized downloading. The non-consequentialist nature of the Imperative forbids us from arguing economic boons and benefits to society in any Infringer’s favor.

Using late Kantian deontology, then, would be a good way for copyright defenders to argue the immorality of unauthorized downloading, without having to demonstrate the economic harm of it. However! What’s good for the goose, and all that: what happens when we apply the Imperative to the copyright holder’s side of the operation? Many features of today’s copyright monopoly run afoul of treating the general public, consumers, etc. as means rather than ends. “Creators should keep their work out of the public domain as long as possible.” “It is acceptable to price educational materials out of the reach of students in developing nations.” “Seek maximum statutory damages against infringers, regardless of the scope of their infraction or their ability to pay the debt.” All these axioms are horrifically awry with respect to Kantian ethics! It somewhat shifts the goalposts of the conversation to take this tack in this series of posts, but I leave it here as an avenue for further thought. Even when we find a moral framework that successfully condemns copyright infringers, it still leads to conclusions that we should reform and moderate our system of copyrights!

Ethics and Copyright, Part 2: Utilitarianism

Lyn Hawthorn:

For our first venture into the good and evil, right and wrong of copyright infringement, we’ll dive into utilitarianism. Utilitarianism is a poster child of the consequentialist model of ethics, which holds that we should look to the outcomes or effects of our actions to determine right and wrong. It’s not the act itself, or our motivations in doing it, or the way it reflects on our character, that matters. Rather, we look to see if the action helped or hurt, made the world a better or worse place, and judge accordingly. It has a definite common-sense feel to it: coming to someone’s defense with “leave him be, he’s not hurting anyone,” or appealing to modern Paganism’s “do what thou wilt, but harm none,” and so forth, take a consequentialist perspective. In discussions about copyright, proponents of copyright argue this angle with lines like “piracy hurts artists!”

Utilitarianism in particular is based on the Greatest Happiness Principle: we should act as to promote the most happiness (well-being, pleasure, fulfillment) for the most people we can, and similarly minimize suffering (pain, frustration, lost opportunity) caused by our actions. In its early form, called act utilitarianism, we do this sort of calculation on any individual act to determine if it’s morally praiseworthy or blameworthy: if I do this thing, how much boon and harm will come from it? If it comes out a net positive for happiness, it’s acceptable, and if negative, it’s to be avoided. A further developed theory called rule utilitarianism works more subtly with this ethical calculus; we’ll get to that in a bit.

Amusingly, act utilitarianism struggles to paint copyright infringement as wrongful, even in the egregious case of our Devil-May-Care Infringer. The Infringer gains some happiness by acquiring and consuming his music or movie; the author or artist loses out on some happiness by the fact that they didn’t get revenue from that consumption. Especially under traditional royalty models, the author’s benefit from a single sale is pretty negligible, so what does that come out to, on balance? About neutral? What’s more, the Infringer’s other expenditures continue to enrich haberdashers and moustache-waxers, so if we’re to say the world comes off worse for the Devil-May-Care’s action, we would need to mount a demonstration that haberdashers and moustache-waxers promote less happiness or common good than artists and filmmakers do. That might indeed be doable, but is a direction that a utilitarian should tread with caution: the more extreme a maximization of happiness we expect of people under our moral system, the less sensible or intuitive it will come out. (Imagine what a paralyzing horror a trip to the grocery store would be, if you were required to purchase only those items that utterly maximized charitable works, environmental safety, etc.)

The other Infringers come off even easier, since their tactics are less extreme. The discussion gets more interesting, however, when we introduce rule utilitarianism. Under this scheme, we look not at an individual act, but consider what rules or laws we should enact and follow to bring the greatest happiness in society. There might be some odd case, rule utilitarianism acknowledges, where someone robbing someone else comes out happiness-positive; but if we didn’t disallow robbery as a general rule, the resulting might-makes-right definition of property would greatly diminish our safety, human progress, etc. So instead of puzzling out who’s helped and harmed by one infringing act or the individual choice to download a movie and buy a hat with the savings, we ask: what would the world be like if everyone were free to download and share copyrighted material, unrestricted? Would that setup be a net boon or harm to us all?

Plainly, such a paradigm shift would force a reevaluation of business models across the creative industries, which lands us square on my thesis: in order to evaluate the moral question of copyright, we need to have out the conversation of what economics would be like without it. If it turns out that creative industries could thrive the same as or better than now, were they to adopt non-monopolistic practices with respect to copying their material, then it seems infringement might be acceptable under rule utilitarianism. At most we would have to ask, does infringement under the current regime help accelerate the coming about of a thriving post-copyright business environment, or does it hold it back? The answer there would give final blessing or sanction.

Other fruitful conversations we could have, in a discussion of copyright and utilitarianism:

  • Which is more conducive to the general good: the current “permission culture,” where any use of a creative work requires permission and possibly licensing from the copyright holder; or a “remix culture” where people can freely reuse, transform, and build upon prior art? The tremendous vibrancy of mashups, music videos, and the like on the Internet and beyond, versus the chilling effect of legal threats and DMCA takedowns, suggests utilitarianism would favor a looser arrangement than we have now.
  • The public library effect: our Compulsive Infringer and Hoarder (or, to put a different perspective on it, the Pirate Bay and its ilk themselves) are modern Libraries of Alexandria, storing up knowledge and cultural works against future disaster. Free copying by the general public would be strong insurance against the art itself being lost forever, should the originals ever go missing or be destroyed. Which is the greater good vis utilitarianism: nearly undefeatable historical preservation, or the ability of a copyright holder to profit from every copy made?
  • While we’re on the topic of knowledge, a common point of pain under the current copyright regime is educational material. In colleges and universities, students must often pay exorbitant sums for the textbooks needed in their classes; in developing countries trying to bring their educational systems up to speed, the cost of licensing educational resources can stop a course of study before it’s ever taught. Which is of greater utility: education for all, or only for those who can pay a premium?

On the whole, utiltarianism looks to favor less copyright rather than more, and might even condone individuals’ infringement! What do you think? What other arguments can we bring to bear in the context of utilitarianism, for or against copyright?

Ethics and Copyright, Part 1.5: Piratical Archetypes

Lyn Hawthorn:

As I embark upon this series of posts examining the ethics of copyright and the infringement thereof, it occurs to me that one more bit of preparation would be useful. For various thought experiments, and to look at infringement through the lens of different theories of morality, these are a few scenarios we can refer back to over the course of these posts. Keep these portraits of different sorts of unauthorized downloading in mind as we go on!

The Casual Infringer: This is the sort of person we’ve all likely met, and if we’re not talking about any other template, we can assume we’re on about this person. The causal infringer sometimes buys copyrighted materials according to the law, and sometimes gets them by unauthorized means, according to their needs and feelings of the moment. They might watch a pirate stream of a sporting event one week, then buy a deluxe Blu-Ray film the next. They don’t give the ethical considerations much thought.

The Devil-May-Care Infringer: Our extreme example of piratical attitudes, this is the “wants everything for free” media consumer that copyright proponents love to hate. He doesn’t pay for any entertainment if he can get away with it! Nor does he buy merch or do anything else that could be construed as generating revenue for the artists and authors whose work he soaks up. In fact, he’s selfish even by pirate standards, not even sharing out what he downloads–always a leecher, never a seeder, on the torrents. We can suppose he spends the money saved on entertainment to buy black hats and moustache wax. Surely if we can succeed in nailing anybody with moral blame for copyright infringement, this guy would be one!

The Compulsive Infringer: This odd duck doesn’t even use the stuff she downloads. She simply amasses as much of it as she can and shares it back out to whoever is in search of it. The ultimate torrent seeder, building as vast a catalog of copyrighted stuff as she can find, without much attention to what it is she’s getting or distributing. A variation where she downloads anything and everything but doesn’t share it back out might be called a Hoarder.

The Huge Fan: This person is a devoted follower of one or more media creators. They download and share things because it’s the fastest and most effective way to get ahold of new content, and they want others to have the chance to see, hear, or read their favorites too! They might not always buy copyrighted material according to their object of adoration’s wishes, but they’re conscientious about making up for it in concert tickets, T-shirts, direct donations, etc.

The Underserved Customer: A Casual Infringer with a coherent pattern to what they infringe on and what they don’t. This person has particular standards on price, convenience, format, quality, or the like. If some content hits what they feel is reasonable on those criteria, they buy; if it doesn’t, they pirate. People who live outside of regions where content is legally available, but acquire it anyway, fall into this category.

The Broke Infringer: Somebody who simply doesn’t have disposable income to pay for copyrighted material. For our purposes, we can say they have exactly enough money for basic needs and an Internet connection, but not a penny more. If they’re to partake of copyrighted media at all, they have to get it for free somehow–which they regularly do, typically by pirate download.

That should cover most of our bases! What reactions do you have to these portraits? Are there any other motivations for or patterns of infringing behavior that might be relevant to these discussions?

Ethics and Copyright, Part 1: Thief! Thief!

Lyn Hawthorn:

When discussing the topic of respecting copyrights vs. infringing upon them, proponents of copyright protection often make their case from a moral or ethical perspective. Say what you want about free speech or economics, the assertion goes, an illegal download is just wrong.

As somebody interested in both philosophy and copyright reform, I find this question a fascinating thing to explore! So in this series of posts, I’ll construct arguments and counterarguments about the idea that copyright infringement is a moral wrong, and see where it leads. From my brainstorming so far, my rough thesis is thus: ethical arguments about copyright infringement collapse into economic arguments about the viability of post-scarcity business models. If it can be shown that monopolizing the right to copy is the only sustainable way to promote the arts and technology, then to infringe on copyright is a moral failure. But if culture and business can thrive as well or better using some other way of making money from what’s termed “intellectual property,” then infringement is not morally blameworthy.

My philosophical skills are very rusty, by this point; I graduated with my Philosophy major more than eight years ago, now, and even then it was only a bachelor’s degree! So my argumentation and my understanding of different theories of morals will likely have terrible flaws. Let me know! I’m itching to reveal what of these ideas are defensible and what not, which can only happen in the fires of criticism.

By way of a warm-up exercise, here’s a light Socratic dialogue from a typical starting point: the accusation that infringers of copyright are “thieves”. Tani-ro will speak for the infringers, Kali-ra for defenders of copyright.

Tani-ro: When you say that an unauthorized download is “stealing” or that somebody who infringes is a “thief”, you’re obviously not making a legal argument. The law treats infringement very differently from burglary or robbery or bank fraud. If not a legal point, then, what’s the thrust of the accusation?

Kali-ra: It’s morally equivalent to stealing. You’re taking something that doesn’t belong to you, something you haven’t paid for as you ought.

Tani-ro: These things seem very different, though. In the sense of “taking” that applies to theft, one person loses an object to the thief. I had a fine vase; a burglar broke in and hauled it away in a sack; now I have no vase. But in the case of infringement, the perpetrator has only made a copy. The original still remains. In what sense “taking,” then?

Kali-ra: You’re depriving the creator or seller of the thing of rightful income. The copying’s supposed to take place after a transaction where money passes from you to the author. If you make the copy without the payment, the creator comes up short–in the end you take away their ability to buy other goods, maybe even pay rent!

Tani-ro: That can’t be the whole story, though. If “depriving of income” were theft, then any number of actions resulting in less money for the author would also count as theft. Writing a bad review of the work that dissuades other people from buying it would be theft. Choosing to buy a competitor’s product instead of yours would be theft. My having this conversation with you, when I could be out buying any of myriad copyrighted works, would be theft! I think you do not consider these things to be thievery; how then is infringement different?

Kali-ra: You glossed over the “rightful” part. By acquiring the work, you’ve incurred a debt to its creator. With the review, or the purchasing decision, or whatever, you aren’t in a situation where you owe the author anything. But as soon as you take the step of downloading, you have an obligation to pay back the creator according to the price they’ve set on the work. By infringing, you renege on that obligation. If you don’t think the word “thief” fits that, then take “cheat”, or “oathbreaker”, or “cad” instead–those work too!

…and here I think we have arrived at the copyright proponent’s strongest position. In future articles, I’ll try to explore just what sort of debt or duty is incurred in consuming media, and see if Kali-ra has the right of it here!


Kithia Verdon:

Every so often, an article comes out talking about how people’s use of the Internet is wrecking their brains, impairing their ability to focus, a sort of induced attention deficit disorder. Normally, I’d be skeptical of such hand-wringing. It has an old-fogey kids-these-days feel to it. But my own experience lately makes me feel it’s plausible.

Sometime over the last few years, I’ve become a compulsive skimmer. It’s become more and more difficult for me to really concentrate on what I’m reading. If I’m cruising the Internet, the urge to spin off another tab and jump to some other thing, be it Facebook or email or Twitter, keeps distracting me. If I’m reading a blog post, I quickly tire of working through the author’s thoughts and arguments, and skip to the end to see their conclusions or summary. Even reading something in print, my eyes constantly twitch to the paragraphs ahead, peeking at what’s next with a manic impatience.

That scares me some, because I wasn’t always that way. I majored in Philosophy, for crying out loud, and I didn’t cut corners on the reading, at least not often. I find it hard to imagine my today-self, who has to double back to a sentence sometimes three and four times before it sinks in, getting through one of those assignments and coming to class ready to discuss it the next day. I’m only 30! It’s not right for my mind to have decayed that far.

Maybe it’s not the Internet’s fault. It could be diet, or stress, or something in the water. But it makes sense, at least, that it could be my computer routine. Habit is a powerful thing, the pathways of the brain used for a particular behavior getting strengthened and comfortably worn until that behavior and its mindset become the path of least resistance among the synapses. And what I’m experiencing seems like optimized blog-cruising behavior. If you’re following several high-traffic blogs with hundreds of posts in the queue, each of them on a particular topic so there’s a degree of similarity among the posts within one, there’s simply not enough time in the day to open up every article and read it front to back. You have to skip around, skimming headlines, popping open the ones that seem interesting, and moving on if it doesn’t provoke your interest. Unfortunately, an ingrained habit like that can bleed out to places where it’s not as appropriate, like trying to enjoy a novel or familiarize oneself with the mechanics of a role-playing game.

More importantly for my purposes here, though, habits can be changed, with similar effort made to build up an alternative behavior and let the old one lapse. So I’m pondering what I might do to reverse the trend. I’ve got these three ideas so far. What else can you think of?

Luddite Saturdays. Based on Weekend Luddite, the idea is to regularly switch off all staring-at-a-screen type devices. No PC, no tablet, no Xbox or Playstation, no DS or PSP, not even any gaming on the cell phone. (I’ll permit myself DVDs/Netflix if the girlfriend wants to watch something together.) I’ve chosen Saturday, being a day when I have no computer-necessary obligations and which has the most idle time to waste. Having to find non-computery things to do with myself all day will help reintroduce me to the wonderful world outside the boxes, making it feel more natural to seek out entertainments requiring focus and motivation.

Bloggy Sunday. In something of the inverse of the above, I’m thinking I’ll do all my ADD-style Internetting on one day of the week. Catching up on blogs, forums, Facebook, Twitter, G+, and the like–anything carved up into lots of little pieces to jump around between–will take place on Sunday and only on Sunday. This will help establish a specific context where scatterbrain behavior is appropriate, keeping it contained.

Mindfulness meditation. The ancient practice of quieting the “monkey mind” and centering oneself in the present moment has been shown to alter brain activity for the better. If I can get a meditative mindset rolling, it’ll become easier to notice when I’m getting flaky and bring myself back to the task at hand. I’ve been wanting to do this for a while, actually, even before I noticed myself becoming computer-brained, so the trick will be finding a good time and quiet space to sit and meditate regularly. Maybe first thing in the morning on workdays?