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?


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