Ethics Week 2
Read: Chapter 4, sections 1-3
4.1: intro
4.2: law, major cases
4.3: DRM, DMCA, arguments about copying
normative ethics v descriptive ethics
deontology v consequentialism
relativism
Application of this to music and movie file sharing.
Copyright law
Michael Eisner's June 2000 statement to Congress (edited, from Halbert & Ingulli 2004). See also below.
descriptive ethics: what do people actually do
compare sociology, etc
normative ethics, or PREscriptive ethics: what SHOULD we do?
-- "if seven million people are stealing, they aren't stealing"
-- is it ok to download music?
The literature on ethics is filled with what are sometimes called "ethical paradoxes":
The Trolley Problem (http://en.wikipedia.org/wiki/Trolley_problem)
A
trolley
is running out of control down a track. In its path are 5 people who
have been tied to the track. Fortunately, you can flip a switch, which
will lead the trolley down a different track to safety. Unfortunately,
there is a single person tied to that track. Should you flip the switch?
The Cave Problem
A large person is stuck in the mouth of
a cave. His five smaller companions are behind him, inside the cave.
The tide is coming in, and will shortly drown them all. The stuck
person could be removed if he were killed.
Some more (many superficial) examples can be found at http://www.quose.com.
The Trolley and Cave problems seem remote from ordinary experience.
File-sharing, however, is not, hence makes a more everyday example.
Ethical theory (often inseparable from Political & Justice theories)
Deontological ethics: (deon = duty)
Based on the enumeration of fundamental, universal principles.
Immanuel Kant [1724-1804]
Kant's categorical imperative:
all our principles should be Universal;
that is, if it's ok for us, personally, then it must be ok for
everyone. Also, whatever it is must be ok in all contexts, not just
selecively (that is, rules apply universally to people and universally
to acts). We are to choose ethical principles based on this idea of
universality.
This is
close to, but not the same as, the Golden Rule: "do unto others as you would have them do unto you [Matthew 7:12]"
[NB: is the Bible in the public domain?]; outcome might be the same,
but the Golden Rule doesn't have the explicit notion of universality.
Kant also said that people should not be treated as means to other
goals; they should be the "endpoints" of moral action. Kant also
famously claimed the two principles (universal and non-means) were THE
SAME.
Kant is often regarded as a Moral Absolutist, a stronger position than deontology necessarily requires.
WD Ross [1877-1971]:
more modern deontologist
consequentialism is wrong; identified "seven duties" we have to each other:
- fidelity [not lying, keeping promises]
- reparation [making up for accidental wrongs to others]
- gratitude;
- non-injury [do not harm others; includes harming their happiness]
- justice [or prevention of harm??];
- beneficence [do good to others. How much good?]
- self-improvement [perhaps "taking care of oneself"]
Biggest problem for deontologists: what do we do when rules conflict?
Abortion: duty to mother v duty to fetus
This would be the issue facing someone trying to use
ethics to decide whether to support or oppose a law banning abortion.
Copyright: duty to copyright-holder v duty to society
What about ones personal duty, when faced with the choice of downloading music?
Jeremy Bentham 1749-1832 & John Stuart Mill [1806-1873]:
Consequentialism
(Utilitarianism): the good is that which brings
benefit to the people (greatest good for greatest number). This is also
sometimes referred to as the "greatest-happiness principle". Another
way to look at it is that it calls us to weigh benefits against harms.
Bentham's original formulation called for maximizing "pleasure" and
minimizing "pain", for society as a whole.
[Bentham apparently believed it was not ok to HARM a minority to benefit the majority, though this has always been an issue
with Consequentialism. One approach to this problem is to weigh HARM
much more heavily than BENEFIT, but what if the HARM is just to one
person? More on that below.]
Bentham developed an entire legal code based on his theories.
Bentham's version had a problem with justice: is it ok to take the
factory from the owner? (That scenario remains a central obstacle for
consequentialism.)
Mill wrote a book, Utilitarianism.
He was much less flat-consequentialist than Bentham. Bentham thought
all forms of pleasure were comparable; Mill felt some were "better"
than others. Mill also recast the idea as maximizing happiness rather than "pleasure".
Social Contract; Locke, Jean-Jacques Rousseau
We make rules to move from the State of Nature to Civilization. That
is, we agree to social/ethical rules due to their CONSEQUENCES, because
we WANT those consequences.
Law and the Social Contract
Ethics and the Social Contract: Ethics are in our LONG-TERM BEST INTEREST? (Under the social contract)
Problem: this theory works better for some scenarios than others.
John Rawls [1921-2002]: In
negotiating the Social Contract, everyone must be placed behind the
VEIL OF IGNORANCE, not knowing whether they would be strong or weak,
rich or poor, healthy or sick. (This is often interpreted as "decide on
society before you were born") They would then choose what world they
wanted to live in. What ethical & legal rules do you want in place?
[Usually thought of as a theory of justice, not ethics, but these are
actually pretty closely related.]
How do you think Rawls would vote on health-care reform?
More on consequentialism:
zero-sum consequentialism: The
idea is that, notionally, we score everyone's benefit or damage
numerically, and add them all up. The foremost problem with this
approach is that it accepts solutions in which one person suffers
greatly, but which produces a modest rise in the fortunes of everyone
else. Ursula LeGuin wrote a short science-fiction story on this theme:
"the ones who walk away from Omelas." This is also a theme of William
James in his essay The Moral Philosopher and the Moral Life. Look up "omelas" on Wikipedia to find James' quote and a link to the full essay; the quote itself follows.
Or if the hypothesis were offered us of
a world in which Messrs. Fourier's and Bellamy's and Morris's utopias
should all be outdone, and millions kept permanently happy on the one
simple condition that a certain lost soul on the far-off edge of things
should lead a life of lonely torture, what except a specifical and
independent sort of emotion can it be which would make us immediately
feel, even though an impulse arose within us to clutch at the happiness
so offered, how hideous a thing would be its enjoyment when
deliberately accepted as the fruit of such a bargain? - William James
min/max consequentialism: goal is to choose actions that minimize the harm to those affected most
(to minimize the worst case, ie to minimize the maximum). Example:
taxes; everyone pays a share and social progress is thereby funded.
disinterested-person consequentialism:
To decide for or against a rule using consequentialist reasoning, you
must be a disinterested party: you must NOT stand to gain personally in
any significant way. How does this shift our perspective in the
copyright debate?
act consequentialism:
consider consequences of each individual act separately. Some lies may thus be
permissible while others may not be. The same would apply to music
downloading: music from some bands might be fair game. But how do you
decide?
rule consequentialism: use
consequences of hypothetical actions to formulate broad rules. For
example, we ask if we are better off tolerating lying or not; we might
then arrive at the broad conclusion that lying is not helpful to
society, and we would apply it in every case. Rule consequentialism
generally fares better under critical analysis than act
consequentialism, but there is a difficulty with how broadly the rules
should be interpreted. Is your rule that "lying is always wrong"? Or is
it that "lying when someone will be hurt is wrong"? Or "lying is wrong
even if no one is hurt, if by lying I gain something I would not
otherwise receive"??
"the ends justify the means"
This position is based on the consequentialist argument that sometimes
it's ok to lie (the means), because in those special cases (eg not
hurting people's feelings, protecting the innocent) the ends are
clearly an overall good. However, in general consequentialism requires
us to take into consideration the full consequences of the means, in which case harsh or inappropriate means might be discarded as unacceptable.
Famous examples:
Compare justifications of lying
Utilitarian: may be ok in some cases
Act Utilitarianism: very case-by-case:
Lying to joe about the job interview: WRONG
Lying to bob about his car: maybe
Lying to mary about last saturday: sure!
Rule Utilitarianism: "Lying to
friends" may be always wrong. Or should it be "Lying to Anyone"?
Deontological: Lying Is Wrong. Always. Even to save refugees from the Nazis.
Kant: no moral issue is EVER decided on a case-by-case basis
Compare approaches to criminal punishment
Utilitarian: pragmatic; jail is for rehabilitation
Deontological: jail is for punishment
Which approach do we take in current societal discourse?
"Natural right to property" is mostly a deontological notion: Locke's
idea that people had a natural right to the product of their work did
not have societal economic benefits as its justification. However, it is rather easy to defend property rights with a consequentialist argument.
Constitutional language re copyright is CLEARLY focused on overall benefit to society (utilitarian)
Most laws are largely utilitarian. Note, though, that some aspects
of free speech / freedom of religion make these out to be "fundamental
rights" in a deontological sense.
Some alternatives and special cases
Aretaic Ethics: from greek "Arete", virtue or excellence
Important thing is not duties or consequences but ones CHARACTER. If
you have the right CHARACTER, you will be led to ethical action
naturally. [Not mentioned in Baase]
Rights Theory
We all have certain inalienable rights, and the
goal of ethics should
be to preserve these. Note that this is different from duties. Locke's
"natural rights" comes from this perspective. Rights-theory ethics
says, basically, that ethics is about respecting other peoples rights.
Do other people have a right not to be misled?
Liberties and claim rights: (Baase)
Liberties
(sometimes called negative rights) are rights "to act without
interference"; others SHOULD NOT interfere with these. Examples:
- right to life
- right to (physical) property
- freedom of speech
- right to hire your own attorney
- right to play the music we buy???
Claim rights (positive rights): rest of us have to take measures to ENABLE your right.
- right to be provided with an attorney (compare liberty version of this)
- right to an education
- right to have our copyrighted content protected by the government
Sometimes these are in conflict. Claim rights put an obligation on
the rest of us to GIVE UP something, likely something to which we have
a liberty-right.
Rights-theory ethics is probably more commonly about liberties than
claim rights, but both are involved. Note that with liberties, our ethical obligations are to preserve the liberty-rights of others.
Basis for Property rights
John Locke [Baase, p 33]: Is copyright a PROPERTY right?
"Natural"
rights: special case of liberties (negative rights), like life &
liberty. These are fundamental obligations we have to one another.
"Utilitarian" rights: rights that we grant each other for improved social function; NOT necessarily the same as claim rights
The Constitution places IP in the latter category.
Religion
How does religion figure into ethics?
There has been a surprising amount of theological debate about whether even God is subject to moral law.
Another theological issue is whether having religious rules takes away our "right" or obligation to make moral decisions.
10 commandments: very deontological. They are fundamental duties, and they are expressed as universals.
613 Mitzvot of the Torah: some of these are less universal (though that is clearly not their point).
Golden Rule: "do unto others as you would have them do unto you" [Matt 7:12]
Closer to consequentialist than to deontological, but still different.
See also "though shalt love thy neighbor as thyself" [Leviticus 19:18]
Some people call the golden rule "reciprocity ethics". However,
arguably the rule's real meaning is as a way of understanding how to
treat others, even if they do not reciprocate.
Professional ethics
Law: lawyers have legal AND ethical responsibility to take their client's side!
This can mean some behavior that would be pretty dicey in other circumstances.
Corporations: have legal AND ethical responsibility to look after shareholders' financial interests.
Wrong v Harm
Not everything that is harmful is wrong.
Example: business competition
Not everything that is wrong is harmful:
Hackers used to argue
that it was ok to break into a computer system as long as you did
no harm. While there are some differences of opinion on this, most
people who were broken into felt differently.
Law v Ethics (p 37)
Laws:
implement moral imperatives
implement, enforce, and fund rights
fund services
establish conventions (eg Uniform Commercial Code)
special interests
How do we decide what rules OTHERS should follow?
(Quite unrelated to how we decide what rules we ourselves follow.)
Ethical Relativism: it's up to
the individual [or culture]. "Moral values are relative to a particular
culture and cannot be judged outside of that culture" [LM Hinman, Ethics, Harcourt Brace 1994]. Hinman is speaking of "cultural ethical
relativism"; a related form is "individual ethical relativism",
sometimes called ethical subjectivism. That is, it's all up to you
personally.
Does ethical relativism help at all with deciding questions facing you?
See Baase, p 32, under Natural Rights:
One approach we might
follow is to let people (or cultures) make their own decisions. This
approach has less meaning in the context of deciding how we should act
personally. It is very attractive because (at first glance, at least), it is nonjudgmental, seems to promote tolerance, and seems to recognize that each of us arrive at our ethical positions via our own path.
Relativism has, however, some serious problems.
First, we often don't really believe this. Example:
murder/genocide; do we really mean that this is would be ok in Darfur
if the Sudanese culture accepts it? The Nazi culture (at least the
culture of higher party members) accepted genocide; do we really want
to stick with relativism here?
Second, the central claim of relativism is that it is wrong to criticize the ethical principles of others. This in itself is an absolute (non-relative) statement, and as such is self-contradictory!
The utilitarians and Kantians seem to suggest that part of an ethical theory is how it affects everyone; that is, it's not just up to you.
Some references in
Baase illustrating that "Intellectual Property" is indeed a special
case and not just an instance of physical property:
p 199:
When we buy a movie on digital video disk (DVD), we are
buying one copy with the right to watch it but not to play it in a
public venue or charge a fee.
p 200: five copyright rights:
1. make copies
2. produce derivative works (except parodies)
includes translations
3. distribution of copies
4. performance in public
5. display to the public
p 201:
Nicholas Negroponte: "Copyright law will disintegrate"
founder, MIT Media Lab
founder, One Laptop Per Child; goal: $100 laptop
Pamela Samuelson: "[no they won't]... balanced solutions will be found"
Cornell Law prof
writes Legally Speaking column in Comm. ACM
Suppose we DO agree that songs are a form of property. Does that
automatically mean we agree on what THEFT is? A bit of thought makes it
clear that the answer is NO: traditionally, the point of theft is that
it denies the owner the use of the item. Traditional notions of theft
just don't make sense here.
What about "unauthorized use"? That's a reasonable first approximation,
BUT it opens up a huge can of worms as to what constitutes
"authorization" and what constitutes "use".
Music stakeholders (list from before (simplified))
"signed" musicians
record companies
record stores
independent musicians
current fans
future fans
Apply deontological/utilitarian analysis to music file-sharing
Stakeholders:
"signed" musicians
|
lose
|
"indie musicians
|
gain
|
recording industry
|
lose big
|
stores & distributors
|
??
|
current fans
|
gain
|
future fans
|
lose?
|
Utilitarian perspective:
probably uses tradeoffs as summarized in the table above.
(might or might not weight recording industry $$$ losses higher than others.)
Deontological perspective probably would NOT consider these tradeoffs.
Deontologican perspective:
universal principles: respect for others, fairness, honesty
One approach: downloading is a form of theft.
Another approach: "we simply do not have ownership rights to information" (Stallman, later)
After all, we cannot own slaves either (in the US since 1865)
Kant, the Categorical Imperative, & file sharing:
do I really want file sharing to be ALWAYS ok?
Is free downloading a form of "using" other people? (Kant was against that)
Problem with strict ownership: social progress REALLY stalls. We'll
see this later with patents, but entertainment is also based on
incremental development, and one artist's response to others.
signed v indie musicians & all this
utilitarian: which scheme is better for which type?
deontological:
do we owe signed musicians the right to decide distribution?
do we owe indie musicians the right to an opportunity?
Could we have both??
Why would people buy CDs? Some answers from ~2002:
- consistent quality
- "an official, completed object. It's satisfying"
- concrete
- album notes, photos
- light & portable
Is there ANY way nowadays in which a CD is better than the download?
What happens to the notion that there was some ethical equilibrium
reached based on CD's still having an advantage? Did Eisner start this
by agreeing that, as free music became more prevalent, it was
appropriate to cut prices on for-sale music?
John Rawls & justice / ethics
Imagine that you have NOT YET
BEEN BORN, and you do not yet know to what station in life you will be
born. How does this affect your ideas about music pricing?
Your perspective might be very different if you knew you were going to be a songwriter, versus (just) an ordinary listener.
Per-track pricing at iTunes: how does THIS change the model
Fundamental conflict: evolution of technology v rights of creators
Is going back to the old way an option?
Napster
Napster was started June 1999. Content owners promptly sued, and Napster lost in federal district court in 2000. The Ninth
Circuit appeals court then agreed to hear the case. They granted an injunction allowing
Napster to continue operating until the case was decided, because they took
seriously Napster's arguments that Napster might have "substantial
non-infringing uses" and that Napster was only a kind of search engine while
the real copyright violators were the users. The Ninth Circuit eventually found that Napster
did indeed have Substantial Non-Infringing Uses, but they ruled against
Napster in the end. Napster was ordered to remove infringing content,
which they technologically simply could not do.
Bottom line: Betamax videotaping precedent was rejected because,
although SNIUs existed for Napsster, Napster had actual knowledge of
specific infringing material and failed to act to block or remove it.
Also, Napster did profit from it.
However,
the court refused to issue an injunction for quite a while; it was
clear that the Betamax precedent was being taken very seriously.
Legality in Napster era: napster.com was a clearinghouse for who was
online, and what songs they held. Actual copying was between peers.
Did that make it ok?
Napster figured the RIAA would never bother with individual lawsuits against users.
Were they right?
Are such suits justified?
What evidence is needed for subpoena?
Note that signed and indie musicians fare VERY differently under the napster model!
Also note the long-term implications for "future fans"
IS napster like radio?
Napsterized business model for musicians:
make money giving live concerts, not selling CDs.
IS THIS REALISTIC? IS THIS FAIR? IS THIS JUST LIFE?
Is this a case of "harm" being unequal to "wrong"?
Question: is it ethical to cause harm?
What about economic harm?
RIAA Lawsuits
File-sharing software works by sharing your files too; advertising
your music folder(s) online when you join the service. Investigators
look for these, by participating in online file-sharing networks. They
record your IP address and the listed songs; they also generally
download a few of the songs.
Different software works different
ways. Kazaa shows a "share" folder. bittorrent shows your connection to
a torrent "tracker" site, but there's no notion of "shared files".
Step 1: The RIAA files a "John Doe" lawsuit against your ISP. They
issue a subpoena to your ISP, asking for your name, and, if relevant,
the MAC address of your computer. These subpoenas are almost always in
a group, asking for multiple customer names.
One legal criticism of RIAA lawsuits has been over joining together
of multiple individuals in one ISP lawsuit. Normally you can't do that
unless you believe the cases are related.
Prior to December 19, 2003, the RIAA didn't need to sue ISPs: it could subpoena ISP records without
a lawsuit, under a provision of the DMCA. But then a court ruled that
this DMCA provision did not apply to RIAA-type cases. [RIAA v Verizon]
The ISP usually complies, usually without contacting you. However, it
is possible for either the ISP or you (if the ISP contacts you) to file
in court to "quash" the subpoena. You do need a reason for that,
however. It *is* possible to file to quash without giving up your
identity, but you have to hire a lawyer.
Step 2: the RIAA now sends you a settlement letter, offering you a
chance to settle before the lawsuit is filed. The settlement offer is
usually something like $500-1000 per track. The RIAA may or may not
distinguish between tracks that showed up in your directory, and/or
tracks that they actually downloaded.
You can refuse to settle. However, in that case the RIAA will almost certainly go to Step 3.
Once the possibility of a lawsuit is raised, destroying evidence becomes both a civil and criminal offense.
Step 3: The RIAA files a lawsuit. They will ask for a forensic copy of
your hard drives (they may ask for the hard drives themselves, but
you're under no obligation to give them up). An independent forensic
examiner will copy the drive, and determine whether or not the songs
are there. (The MAC addrss from Step 1 plays a role here in determining
whether they've got the right computer; so does other identifying
information about KaZaa,etc.)
The cost of settlement goes up a little at this point.
Some defenses that have NOT helped:
- the ISP is your school, and releasing school records is illegal.
(releasing names is not illegal)
- you didn't know it was against the law.
Yes you did. Come on. But it doesn't matter.
- you already owned the tracks on CD.
See the Gonzalez case; www.eff.org/wp/riaa-v-people-years-later. Copyright
law allows you to make a backup copy of what you bought; there is no
provision for receiving your backup copy from someone else.
Some possibly valid defenses in court:
The problem with all these is that you don't want to be going to court,
and the RIAA does not have to consider these when settling.
It wasn't your computer.
Typically this is due to the ISP's
misidentification of you. Sometimes it's because someone jacked your
wi-fi. In this case the forensic examination of your computer will probably help.
Your roommate used your computer
Your problem here is proving that this is the case.
Your kids used your computer
There is a very limited legal doctrine of parental responsibility.
Originally, the RIAA did sue parents, or made them settlement offers.
More recently, after several losses, the RIAA has been suing the minors
themselves. This is a little tricky; the court must appoint an
attorney, often at the RIAA's expense. Also, in Capitol_v_Foster,
Deborah Foster eventually won $68,000 in legal fees from the RIAA.
Foster's daughter did the downloading.
You didn't actually download any songs
What the RIAA has, as
evidence, isn't evidence of downloading. All they
have is evidence that you "offered" songs for downloading. At this
point it might matter a great deal whether the RIAA actually tried
downloading anything from your computer. Jammie Thomas had her case go
to trial (the first RIAA case to reach a jury trial; Tenenbaum's July
2009 trial was the second) and she lost and was ordered to pay
$220,000. But Judge Michael Davis later rethought this issue, rejected
the "offered for distribution" theory, and ordered a new trial. Alas,
the new trial reached a judgement against Thomas of $1.9 million.
Some defenses where the "jury" is still out (not that a real jury will ever hear these):
The settlement offer is disproportionately high, and thus not tied to actual damages
See current cases (eg SONY BMG Music v. Tenenbaum) for more.
It's really hard to generate much sympathy for the RIAA methods.
Consider, though, the theory that file sharing is a violation of their
copyrights, and that such individual lawsuits are the ONLYway to
proceed.
What's unfair about this process? What is fixable, within the constraints of the US legal system?
Some things to think about:
- statuary damages for infringement
- rules for defendants who cannot afford an attorney
- rules of evidence
RIAA-2
The RIAA has officially given up on filing lawsuits against infringers,
at least for now; they announced this policy in December 2008, just
after the Tenenbaum case (lawsuits still in the pipeline will
continue). The new policy is to work with ISPs to
- notify users of infringement for the first offense
- cut off their internet access (perhaps slowing it for a while, first)
See http://www.wired.com/epicenter/2008/12/riaa-says-it-pl.
Why would ISPs want to go along with this plan? Here are a few reasons:
- file-sharers are also huge bandwidth hogs. (Linux users are too,
but there aren't enough of us to matter. (How many times a day do you
rebuild your kernel?)) The
broadband business model basically gives every customer the ability to
download several dozen gigabytes a day, but the hope is that most
customers will actually download somewhere in the range of dozens of
megabytes a day. File-sharers who download movies pretty solidly put
themselves in the heavy-downloaders camp, tying up resources for
everyone.
- The ISP might get sued. The RIAA probably wouldn't win, but it would be an expensive hassle.
- It's the Right Thing To Do. Knowingly cooperating with copyright infringement is wrong.
- Eventually, the RIAA is likely to press for laws requiring ISPs to cooperate. Better get started now.