Computer Ethics, Fall 2010

Corboy Law Room 523
4:15-6:45 Mondays

paper 1
Ethical theory: deontological v consequentialist/utilitarian
Rights (positive and negative!)
Religion
Ethical relativism
Applications to file sharing
Fair Use
Sony v Universal

Here's the copyright notice on sheet music from Unity Music Press:

Copying music without permission of the publisher is wrong.
It hurts the compuser, the publisher, and ultimately YOU. The money earned from the sale of this publication is used to make new music available. If you photocopy this music, YOU are making it more difficult for composers and publishers to produce new music for you to use and enjoy.
Don't photocopy this music without permission of the publisher.

Note the "utilitarian" perspective here: if we don't adhere to copyright rules, we'll only be hurting ourselves in the future.

Lorenz Publishing includes the following line:

If it were not for this [copyright] law and public respect and acceptance thereof, the publication of material such as this would be financially impossible.

What do you htink of the "public acceptance" of copyright law as far as filesharing is concerned?


The Napster Defense

Napster was the original music-sharing website. Their legal defense was that they did no actual copying; they merely connected a user who wanted a song with a user who had it in their online library. In that sense, they were "only a search engine".

What do you think of that?

Napster eventually lost their case, but not quickly; they were then replaced by multiple different music-sharing services: kazaa, morpheus, limewire, gnutella, ....

The Music Industry

What do we owe the music industry? For many people, it matters whether we're talking about individual musicians, or about recording-company executives. Ignore that for now; assume if necessary that most of the money goes to musicians.

Some arguments in favor of file-sharing:
What are some arguments in favor of music-industry rights? Ultimately, they usually are in one of two categories:
Which of these is the more important? Is it all about our obligations to musicians, or about our own future self-interest?

What would happen to music if all file-sharing were free? One idea is that the "Napster model" would emerge: musicians would get paid for performances, but recordings would all be free.

Could this model support enough musicians that there would still be new music to listen to?

Who is copyright for?

Here's another take on the two options above:
Despite the apparently clear distinction between fundamental duty and pragmatism here, it can be hard to tell.

It might help to think of how we would feel if some relatively minor component of music copyright -- sheet-music sales, for example, or the playing of prerecorded music at non-profit events -- were to be deleted from copyright coverage. Such an action would surely not endanger the music industry as a whole, so if we object, it is more likely that we feel musicians are entitled to the fruits of their labor.


DEscriptive ethics: what do people actually do
    compare sociology, etc
Normative ethics, or PREscriptive ethics: what should we do? (sometimes the phrase PROscriptive ethics is used to describe what we should not do).

    -- "if seven million people are stealing, they aren't stealing"
    -- is it ok to download music?

There is also the issue of what we should hold wrong in others. At the severest level, this leads to some actions being illegal. At a more moderate level, there are many actions that we find unacceptable in others, but our response is limited to publicizing the action or ostracism.


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 grimly 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; Ross identified "seven duties" we have to each other:
  1. fidelity [not lying, keeping promises]
  2. reparation [making up for accidental harm to others]
  3. gratitude
  4. non-injury [do no intentional harm others; includes harming their happiness]
  5. justice [or prevention of harm by others?];
  6. beneficence [do good to others. How much good?]
  7. self-improvement [perhaps "taking care of oneself"]
Is this list complete?

But perhaps the biggest problem for deontologists is what do we do when rules conflict? Ross had a theory for handling this, though it is not clear how effective it was.

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
But the rights of the copyright holder and the rights of society are largely not in conflict!
   
What about one's personal duty, when faced with the choice of downloading music?

Consequentialist ethics

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 self-interest? (Under the social contract)

The idea is that if we lie, or cheat or steal, then eventually our reputation will precede us, and we will end up losing.

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?

How do you think Rawls would choose between capitalism and socialism?


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 (as well as the ends), 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 during the job interview: WRONG
            Lying to Bob about our having borrowed his car: maybe
            Lying to Mary about where we were last saturday: sure!
        Rule Utilitarianism: by category
            "Lying to friends" may be a category that is always wrong.
            Or should the category be "Lying to Anyone"?
        
    Deontological theories: Lying Is Wrong. Always. Even to save refugees from the Nazis.
    Kant: no moral issue should EVER be 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 utilitarian 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

Sweat or have not

A common notion among casual observers of the file-sharing issue is that you're not entitled to anything if you didn't pay for it. Faulkner says this well (if floridly) in The Hamlet:

He saw in this second flagrant abrogation of the ancient biblical edict (on which he had established existence, integrity, all), that man must sweat or have not, the same embattled moral point which he had fought singly and collectively with his five children....

This is probably a reference to Genesis 3:19: by the sweat of your brow you will eat food..., that is, food and things like it will not come freely, but will require labor.

If I eat your food, you go hungry. If I listen to your music, however, you still have it.

The more serious point is that many would argue that at least some ideas are indeed part of our common heritage, and some would include music in this category. Another perspective is that copyright is simply not physical property, but rather a government-issued grant made solely to encourage new production, and so biblical views on property are not intended to apply.

Aretaic Ethics

From greek "Arete", virtue or excellence

Important thing is not duties or consequences but one's 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:
Claim rights (positive rights): rest of us have to take measures to ENABLE your right.
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?
Are moral laws simply commandments from God, or does God give us reasons for understanding moral quandries?

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 [Matthew 7:12]:
     "do unto others as you would have them do unto you"

See also "though shalt love thy neighbor as thyself" [Leviticus 19:18]

This is closer to consequentialist than to deontological, but still different. It does identify a duty in how we treat others, but any actual details of how we are to carry out this duty are grounded in pragmatism: how we would feel if our action were to be applied to us.


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.

The Golden Rule is closely associated with Jesus, but the Jewish scholar Hillel the Elder, supposedly born 110 BC but also supposedly overlapping with Jesus, gave the following as the core teaching of the Torah:

    That which is hateful to you, do not do to your fellow.

Hillel probably said this sometime between 30 BC and 10 AD; a similar formulation appears in the noncanonical biblical books Tobit and Sirach.  This is similar to the Golden Rule; however, note that Hillel's formulation is more like

    "do not do unto others what you would not have them do unto you"

This formulation is sometimes referred to as the Silver Rule.

The prophet Muhammad also said something similar: Hurt no one so that no one may hurt you. [The Farewell Sermon, 632 AD].

Some ethicists have felt that the Silver Rule is a clearer statement of our moral obligation to one another, rooted in the underlying principle that we should not harm others. The latter was clearly expressed by the time of ancient Athens (~500 BC).

Note that the Silver Rule really states "do no harm"; the part about "what you would not have them do unto you" is really about defining what harm is (that is, it's harmful if you think it would be harmful to you). Similarly, the Golden Rule might be shortened to "do good", where good is defined as what you would want done, but this analogy isn't quite as exact.

The Golden Rule might be seen as requiring us to give actively to others, beyond merely not harming them. It is not always interpreted this way, though.

The underlying "reciprocity principle" of ethics has come up many times. It is closely tied to the Social Contract theory of ethics.

The Golden Rule has been widely criticized as not providing much of a way to find out whether others in fact want to be treated the same way you want to be treated. However, if it is applied primarily to the "big picture" issues of fairness and consideration, these objections have less strength.


Professional ethics

Law: lawyers have a 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 a legal AND ethical responsibility to look after shareholders' financial interests.

This is not to say that a lawyer or a corporation might not have other ethical obligations as well.


Wrong v Harm


Not everything that is harmful is wrong.
Example: business competition.

If someone builds a better mousetrap, and you copy their invention, undersell them, and drive them out of business, many would say that was wrong. However, if you invent your own mousetrap, even better than theirs, and still drive them out of business, few would say that was wrong (and those few would probably own lots of cats).

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, it doesn't actually provide much help in making decisions about moral issues; it is more of a commandment not to criticize others.

Second, we often don't really believe in moral relativism. 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?

Finally, 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.

Intellectual Property revisited

Some references in Baase illustrating that "Intellectual Property" is indeed a special case and not just an instance of physical property. For physical property, once we buy it there are no further strings.

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. [license/copyright strings attached]
    
p 200: five copyright rights [would these ever apply to physical property?]
  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 [is the future of the laws on physical property in doubt?]
    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".

Application of deontological/utilitarian analysis to music file-sharing

Music stakeholders (list from before (simplified)), with an indication as to how they might fare under file-sharing.

"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.


signed v indie musicians and copyright

    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??
        


A deontological perspective on copyright

This is surprisingly hard to argue. Some options:
But these raise even more questions. For the first option, what if the artist wants to put peculiar limitations on the use of their work, such as no ripping tracks or no playing tracks in random order or no fast-forwarding? For the second, "profit", option, do we allow artists to declare retroactive restrictions? Should every new use require new permission (probably with new fees)?

Bottom line: copyright is fundamentally about compromise between artists and society, and it is very hard to discern fundamental duties that are substantial enough to imply our financial obligation ("respect the creative works of others" doesn't necessarily do that).

Deontological perspective:
        universal principles: respect for others, fairness, honesty
        
One approach: downloading is a form of theft. This seems to be where Eisner was coming from. Does this really work for copyright?

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? If not, I should agree that we have an obligation not to download at all. But "categoricity" is not the central point: duty to others is.

Also, is free downloading a form of "using" other people? (Kant was against that)

On page 227, in the first paragraph in 4.3.5, Baase states

[Copyright infringers] benefit from the creativity and effort of others without paying for it. To most people, that seems wrong.

This is as good a statement of any of the idea that the holder of a copyright is entitled to try to profit from their work. Note, however, that copyrights do not extend to several areas where creativity and effort may be expended to come up with a profit-making strategy: business ideas are not copyrightable and the general legal opinion is that it is fair for someone to take someone else's business strategy and run with it. That is the essense of the free market.

A problem with strict ownership of [musical] rights: 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.


Here are some other ethical responses to copyright infringement:

http://www.crews.org/curriculum/ex/compsci/articles/ethics.htm:

We are taught from a young age that plagiarism (copying other's work) is wrong.  One might say, it is like cheating on a test when you burn a CD copy of someone else's music or game.  However, most people don't associate copying of songs, games, videos, etc. as being wrong.  Just because it is easy and hard to get caught does not make it right.  The rights of the creator must be protected if we are going to be a society that is creative and inventive.

Does copyright violation have anything to do with plagiarism?

http://guweb2.gonzaga.edu/faculty/alfino/dossier/Papers/COPYRIGH.htm: good essay distinguishing copyright from property (see ¶ 2). Also see:

The legal principle at stake in the [1774] Donaldson case [establishing that copyright is term-limited] has significant ethical implications. If copyright is a form of limited monopoly granted through statute, based on policy considerations, and not an absolute common law right, the ethical burden of proof shifts to copyright holders to show that their property interests are more important than the public good of having access to information. The ethical issue takes a metaphysical turn when we ask, as we shall in section II, just what it is that constitutes the intellectual property protected by copyright. Again, if the "substance" of intellectual property is constituted by statutory fiat, then the limitations of the right are not analogous to limitations of natural rights.

http://beadwork.about.com/od/rsourcesforprofessionals/a/EthicsCopyright.htm: you might not think home craftwork would be fraught with such copyright issues. But there are. However, is the issue described in the following (spliced) paragraph really one of copyright?

[Copyright] does not cover ideas, techniques, or facts. There are some ethical considerations to take into account though. Is this an original technique developed by your teacher that hasn't been published yet? Are you taking potential customers away from your teacher?

Does it matter? Don't students have a right to surpass their teachers? Or compete with their teachers?

Is copyright just a matter of "obeying the law"? Or do we have some deeper obligation to musicians and authors?


Why would people buy CDs? Some answers from ~2002:
    
Is there ANY way nowadays in which a CD is better than the download? (Of course, now you can buy from iTunes instead.)

What happens to the notion that there was some equilibrium reached between file-sharing and CD sales 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. However, you might also argue that (a) you like music, and therefore (b) you want musicians to be able to earn a living, because otherwise there won't be much music.



Per-track pricing at iTunes: how does THIS change the market model?


Fundamental conflict: evolution of technology v rights of creators

Is going back to the old way an option?