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!