In this section of notes we will explore ethical theories
in the context of file-sharing, and vice-versa.
0: Is file-sharing theft?
0.5: ATM machines
1. Self-driving cars
3: E-commerce and free online
4: ISP privacy
Who is copyright for?
The Copyright Clause
IP and the Free Market
The Music Industry
Two justifications of copyright
To sweat or have not
Deontological approaches to copyright
Some ethical responses
Ethical arguments about copying
Baase 1.4.2: ethical theories
There are two great (classes of) ethical theories:
rules-based; we have fundamental duties we owe others (deon = duty)
consequences-based; we establish moral rules for their social utility
superficially appealing, but ultimately unsatisfactory
Copyright: Once upon a time, ordinary people had
virtually no opportunity to violate copyright laws. Now this is
ubiquitous. What happened?
Privacy: What have computers done here? Whose fault is
Cellphones: First of all, should this be filed under
"communications"? Under "computing"? Under "photography"? Or under
"privacy"? How have cellphones changed the way we live?
Criminal Law: We'll get to this again in Case Study 0
below, but hacking can be a felony. Even if it is not malicious. Even, in
theory, if all that was involved is a violation of a site's terms
of service. Because accessing a site contrary to the site's ToS is unauthorized,
and unauthorized computer access is hacking, right?
Speech: How are the rights of the "press" different from
the rights of ordinary individuals to post content? What about posting
data or source code that might have adverse societal
consequences? Like the code for VLC player, or a 3D printer file for a
What is Facebook doing censoring us? How have social networks affected us
generally? Can the current polarization in US politics be blamed in part
on social networking?
What are your rights if Facebook blocks your account? Do you have any?
Case Study 0: Is file-sharing theft?
In January 2013, Internet activist Aaron Swartz committed
suicide. Two years earlier he was arrested for downloading about four
million scientific articles from the JSTOR database, which he had probably
intended to make public in the interests of providing universal access to
scientific research. Normally JSTOR charges for downloads of these papers
(one of my papers is there for $10), but Swartz was entitled to a free JSTOR
account at MIT. He did, however, take significant steps to bypass the limits
JSTOR set on the number of free downloads.
Swartz started by using a wi-fi connection to download, but JSTOR limited
the number of downloads to a single IP address. Swartz kept changing his
hardware MAC address, so as to get a new and different IP address. Later he
discovered there was no limit for computers directly connected to MIT's
wired network; he set up a laptop in an unlocked wiring closet and
left it running (and downloading) for weeks.
The JSTOR Terms of Service apparently did state that users could not use
software to automate the process of making multiple downloads. More
concretely, the ToS disallowed downloading any one "entire journal". Some
specific points disallowed:
(c) incorporate Content into an unrestricted
database or website, except as provided in 2.1(e) above;
(f) download or print, or attempt to download
or print an entire issue of a journal...
Swartz also had a long history of depression, although the prosecution
threat may have pushed him over the edge.
Swartz was charged with the following:
- Wire fraud, for obtaining "property" under false pretenses
- Computer fraud, part of the same statute (more or less) as wire fraud
- Unauthorized access to a computer system
- Computer damage (it is not clear any actual damage occurred)
Aaron was facing trial in a few weeks; apparently there was a plea-bargain
offer on the table which called for six months of prison time, but
prosecutors indicated they would ask for thirty years of prison if the case
went to trial.
None of the charges above are actually for "theft", or even for criminal
copyright infringement. Still, it is fair to ask: did this case involve
theft? Or was this, despite the fact that articles were "taken", really a
The law under which Swartz was charged is the same law that makes it a
felony to create multiple Facebook accounts, or for anyone under age 18 to
have used google for searching prior to March 1, 2012.
Case Study 0.1: Do we just not respect intellectual property?
Maybe another way to look at this is that ordinary people simply don't
connect to "intellectual" property rules. Swartz thought it was fair to
publish copyrighted papers. Many people don't have a problem with
downloading copyrighted music or video.
Why is this? Is it wrong? Or is there something else going on?
Many people who don't respect copyright would never dream of stealing a
Case study 0.5:
In the 3rd edition of Baase, there was a case study on the introduction of
ATM banking machines and cell phones. Here were some potential consequences
of ATMs that people were once worried about:
Walter Wriston was CEO of CitiBank in the 1970's when ATMs were then widely
deployed in New York City. Wriston was at one point credited with the
realization that many if not most New Yorkers actually preferred
ATMs to using human tellers; they did not particularly like that form of
human contact. [source: newspaper article I read long ago, although Wriston
certainly invested heavily in ATMs and, for a Wired
interview, said " 'Old people won't use automatic teller machines,' they
said, 'and young people won't use them, because they prefer going to tellers
with pearly white teeth.' But it turned out that people would rather get
their money in front of the Hard Rock Cafe at 11 o'clock at night than get
smiled at by a teller."]
- bank-teller unemployment
- alienation (no human contact at the bank)
- electronic trail
- crime (robberies at ATMs)
- errors -- what if the wrong amount is dispensed?
Furthermore, ATMs are available when it's convenient for you;
many banks still have very limited late hours.
As for unemployment, Baase had data that tell a different story:
1993 301,000 (this drop was due in part to ATMs)
2006 600,000 Wow!
As for the electronic trail, that exists equally for teller transactions. If
you live in a small town, the ATM is likely to offer greater
One proposal for addressing ATM crime is to give patrons a "duress PIN", eg
their regular PIN backwards. The main reason this has never been implemented
is that there appears to be little demand for it.
Case study 1: Self-Driving Vehicles
See Baase 5e §1.2.1. What changes when most cars drive themselves?
- Will people still want to own cars?
- How will the disabled be affected?
- How will cities evolve? Will sprawl increase or decrease?
- How will traffic evolve?
- Will we need new roads?
- Will human drivers be banned from Interstates?
Case study 2:
Regarding cellphones, here is a list of issues from Baase 4e §1.2.1 / 5e
What do you think of Baase's quote that "more folks have access to a
cellphone than to a toilet"? [Diamandis & Kotler]
- more outdoor risk-taking
- talking while driving
- texting while driving
- courtesy & rudeness (see the "I've got pressure" sidebar on 4e p
13 / 5e p 14)
- cameras, lack of awareness of them, and privacy (again, see the "I've
got pressure" sidebar)
- organizing flash mobs
- location tracking
- general app-based loss of privacy
What about the issues above? Which of them can be addressed (I didn't say
"fixed") through technology? Through other means?
Case study 3:
E-commerce and Free Stuff (Baase 5e §1.2.3)
Shopping online saves gas. So does visiting friends online. But what are
Amazon can be a good deal today. But what happens when Amazon is the only
place you can order from?
What is the actual business of Facebook? What information do they sell about
you? How much tracking is a fair trade-off for being able to use a free
Case study 4:
privacy from your provider
How do you feel about Apple or Google going into your phone and rifling
about, deleting stuff? How about Amazon going into your kindle? Microsoft
going into your laptop?
For that matter, how do you feel about Verizon or Sprint recording your
Microsoft deleted older versions of the Tor anonymizing software from
millions of Windows machines in August 2013, without the owners' permission:
Does it matter if the removal was related to a security vulnerability?
Why study computer ethics?
1. An opportunity to look at old problems in new setting.
Do old analogies apply? Classic case: copyright. Note that in some sense
computing provides a testbed for classical ethics: computing supplies many
examples of classical ethical dilemmas in a new context.
2. New rules are required as we adapt to new technology. Examples:
3. Varied sources of solutions to new problems. Example: cell phone case
study, Section 1.2.
- facebook stalking
- Privacy rules and online information collected by others
- Privacy rules and what we can be required to give up in order to use
- responsibility for libel (should ISPs be accountable?)
- protecting children from inappropriate material
4. Global scope of the Internet: good and bad
- jurisdictional chaos: if you buy online, where do you file the
- it is harder to be isolated (this was meant as a "good" at the time I
wrote it; now I'm less sure)
- ironically, it is also easier
to be isolated, in the sense that all your world information may come
from fellow wingnuts.
- very wide, low-cost distribution of knowledge
On May 13, 2014 the European Court of Justice found a "right to be
forgotten" and ordered Google to remove some links that some individuals
found embarrassing. Just who is in charge of deciding what has to be
removed? Should Donald Sterling be able to have all links to his infamous
remarks removed from Google?
between privacy and convenience. True of computers, true
of door locks.
6. Perfection is not one of the options.
We have to compare new technological risks to corresponding old-fashioned
risks, not to doing nothing at all. As an example, autonomous vehicles
should be compared to vehicles with human drivers, not to staying home.
7. Differences between ethical choices and the law
Computers are a form of technology.
Why do we talk about "computer ethics" but not "automobile ethics" or
"aircraft ethics"? (Note that we do
talk about medical ethics and biotechnology ethics.)
Some people like to distinguish between ethics and morals by saying morals
are what we do; ethics is the study of morality, or how we reason
about what we do.
- personal actions
- business actions
- imposing constraints on others, through laws & mores
Descriptive ethics: what do people
compare sociology, etc
Normative ethics, or PREscriptive
ethics: what SHOULD we do?
Are we going to figure out right and wrong here? No. But we will
figure out how to:
Another issue with normative ethics is the distinction between what we
should do and what other people
- analyze problems
- identify stakeholders
- understand both sides of the issue
- identify ethical reasoning & principles involved: deontological
theories ("deon" = duty) versus Utilitarianism
What are laws for?
For the last one, note that the goal is to encourage investment.
Possibly at the expense of justice! (Think about that one; is that a bad
- civil order
- enforcement of societal norms
- results of (usually corporate) lobbying
- consistent basis for economic activity
Laws establishing a cap on damages for pain and suffering, or that cap
liability in any form, are sometimes put in this category.
(Some people have argued that software
patent law fails to provide a "consistent basis for economic
activity", in that patent lawsuits are unpredictable to an unusual degree.
Other people disagree.)
Sometimes lobbying isn't driven by money. Consider the controversial
Illinois anti-eavesdropping law, which according to a Chicago Reader article
may have been intended to ban the recording of police:
And thanks to a 1994 amendment that makes it
nearly unique in the nation, [the eavedropping law] doesn't distinguish
between public and private conversations....
Part of a 1994 omnibus crime bill sponsored by former Chicago police
detective Wally Dudycz, then a northwest side state senator, the amendment
was a pointed response to a 1986 case (People
v. Beardsley) in which the Illinois
Supreme Court ruled that what a cop says during a traffic stop isn't
private and therefore can be recorded for use as evidence.
The Seventh Circuit has ruled (May 9, 2012) that the law "likely violates"
the First Amendment, and has ordered Cook County to stop enforcing it. See
here. Judge Richard Posner of the Seventh Circuit, who has spoken in
defense of the law, issued a dissenting opinion; Posner focused his
attention on the privacy rights of citizens willing to talk to the police
but who might not want third parties to record the conversation.
In March 2014 the state Supreme Court overturned the law as "overbroad".
Governor Quinn signed a replacement law on December 30, 2014 that supposedly
does allow citizens to record the police.
CRIMINAL v CIVIL law
What the rules are:
- torts (non-contractual obligations)
- criminal law
What is "illegal"? Are copyright violations "illegal"? Usually, something is
"illegal" if it involves a violation of criminal
law. Defamation (libel/slander), for example, is seldom referred to as
"illegal", despite the potential legal consequences. ("illegal" = expressly
against the law, "unlawful" = not authorized by law, but implicitly not in
Actually, as we discuss copyrights, it is worth noting that essentially all
infringement is a civil matter,
not a crime against the state (ie it is not "illegal").
Some ways to think about law:
Sometimes the last one above can seem to be at some remove from how the law
was actually written.
- Legal safeguards for you or your organization
- Economic consequences of established rules
- The social consequences of the "rule of law"
- How the law is actually being interpreted
The Foreign Intelligence Surveillance Act of 1978 created the so-called FISA
courts that are charged with issuing warrants for eavesdropping
on foreign nationals. The powers of the FISA courts were slightly enlarged
by the USA PATRIOT (or USAP AT RIOT) act of 2001.
The FISA court often seems to be a rubber stamp -- out of one to two
thousand requests per year, only a couple are denied. However, FISA Judge
Reggie Walton has argued that a much larger fraction of requests are modified
at the Court's request.
FISA-court decisions are classified. Unfortunately, this means that they
often cannot be appealed. Note that classified decisions are very
problematic for a democracy, even if you accept that foreign surveillance
requires a certain degree of secrecy, as decisions have the effect of
creating "case law". Secret decisions cannot be appealed, or even referred
If an organization such as Facebook or Google receives a FISA-ordered
warrant, it is not clear if the warrant can be appealed to a District Court,
even if the warrant is for information about a US citizen who has never left
the US. FISA-court rulings can be appealed to the Foreign
Intelligence Court of Appeals, FICA.
The NSA's PRISM program consisted, in part, of collecting all phone records
of calls originating in the US. The US Supreme Court ruled in 1978 that
collection of phone records did not require a warrant. However, in that case
the records were being collected on an individual basis, not en mass.
The NSA has convinced the FISA courts to authorize the collection of these
phone records even when no direct communication with "foreign agents" was
involved (eg even when both parties were US nationals). The NSA is supposed
to collect these records only for the purpose of archiving them, and is
supposed to get additional permission if it actually needs to use
Note the New York State "Supreme" courts are
the ones to hear parking infractions.
Judges write opinions, which carry
significant weight with other judges (unless they are classified!)
One of the themes of this course is watching how judges and legislators
grapple with complex social changes wrought via technology. Sometimes it
seems that the courts, at least, are getting better at this, decade by
decade. However, note the following:
Wednesday, January 18, 2012: Wikipedia shut
down entirely, and Google made their logo go dark, in protest of the
proposed SOPA/PIPA laws. These laws have since gone nowhere.
SOPA and PIPA represent an astonishing degree of technological cluelessness.
We will revisit these proposed laws later.
First, a clarification: by "file-sharing" I mean the free exchange of music
and video files on the internet. Often this is completely peer-to-peer,
following the bittorrent model, but there is also a considerable amount of
server-based filesharing where one user uploads and other users download.
(How do such servers manage not to get sued out of existence?) Either way,
the person uploading the file does not receive compensation, either directly
or through advertising, although some server-based sharing sites provided
some subtle incentives for people to upload (such as making your own
downloads faster). Some file-sharing software
is advertising-supported, but that's a separate issue.
The Internet has enabled widespread zero-cost file-sharing. The
content-creation industry is all riled up by this.
Music was the original file-sharing example, but books and films are now
subject to file-sharing as well.
To combat file-sharing, the content industries backed the SOPA/PIPA laws
back in 2012.
Wednesday, January 18, 2012: SOPA/PIPA protest shutdown, by Google and
others (including Wikipedia)
Thursday, January 19, 2012: the FBI shut down megaupload.com,
a massive file-sharing site; see http://www.foxnews.com/scitech/2012/01/19/feds-shut-down-file-sharing-website.
is still here.
What do you think of these sites? Should they be allowed to exist? Does the
law make it unnecessarily hard to shut them down?
As for SOPA and PIPA, here are a few
highlights (mostly from SOPA):
Google settled sometime in 2011 with the US Dept of Justice for allowing
"Canadian pharmacies" to advertise
through Google. These sites sold
legitimate prescription drugs to Americans at reduced rates, but this turns
out to be illegal in the US. However, Google may still list such sites in
their search results.
- If a site hosts copyrighted material without permission, court orders
could be obtained ordering all US ISPs to block
access to the site. In SOPA, blocking access to the site's IP
address is required; PIPA would only seize the site's domain name. From
A service provider shall take
technically feasible and reasonable measures designed to prevent
access by its subscribers located within the United States to the
foreign infringing site (or portion thereof) that is subject to the
order...Such actions shall be taken as expeditiously as possible,
but in any case within five days after being served with a copy of
the order, or within such time as the court may order.
- Any advertisers or payment processors used by the site would also have
- It is not clear whether a hearing would be required. In any event, if
you run a small-scale site in Illinois and the complaint is in
California, your only realistic option may be to remove the material and
settle. If you're even allowed to do that.
- An entire site could be blocked based on one copyright complaint (eg a
student at Loyola posts a copyrighted photo on his or her web page)
- The user-provided-content protection would go
away; sites like Youtube and Myspace would be liable for any
content uploaded by a user. This is still a very muddled area; there is
clearly interest in Congress in continuing to allow sites that make a
"good-faith" effort to discourage infringement. Unfortunately, in the
real world either you have a clear-cut immunity here or else you really
cannot afford to take the risk that one of your users could get you in
- Maybe Google and Facebook could continue accepting user-posted
content, because they have deep pockets, but it would be extremely hard
for startups to do so. Just who does that benefit?
- Search engines could be ordered not to list offending sites. (Note
that Google already does not provide search results for most .torrent
- Anonymizing or redirection sites (eg the Tor project) might be banned
as tools for circumvention of blocking.
- Your ISP is likely to block offending sites by IP address, meaning
they also block all other sites that share that IP address. See courses.cs.luc.edu
- Sites like Wikileaks would likely be blocked, as some of the materials
Wikileaks has released have been copyrighted.
What do you think of laws like PIPA/SOPA? They clearly have the potential to
have drastic affects on our ability to upload material or to blog.
If seven million people are stealing, they're not stealing.
Post (Temple Univ Law School) [Sometime around 2000?]
What did Dr Post mean by that?
While we're on the subject, we must not forget
Property is Theft!
Proudhon did also say Property is Freedom.
Questions about what you download (from better to
worse?), related to music
Most people would probably be ok with all but #6 here. Note that #2 might be
construed as illegal if the party were in any way not a "private home
affair". One court did rule against #5, in a lawsuit against mp3.com, but
one may suspect the court did not really believe mp3.com was properly
checking if patrons already owned the CD.
- Is it ok to listen to the radio?
- Is it ok to play the radio at a party?
- Is it ok to record off the radio? What about TV?
- What about downloading lyrics?
- What if I already own the CD? (either lyrics or entire tracks)
- Is it ok to download music files off the internet?
Some of the first early popular sites on the internet were song-lyric
repositories. Sometime in the late 90's most of the originals apparently got
cease-and-desist letters; one industry-supported site would display
the lyrics but wouldn't let you copy or save them, and the display would
vanish after ~20 seconds. (Had the developers not been aware of
Why wasn't the illegal copying of books through photocopying a major issue?
Why wasn't the illegal production of audio cassette tapes (from LPs, radio
broadcasts, and live concerts) a major issue?
Now let's expand the previous list to focus on music-file sharing.
Many people have at least some concerns with #3, though it somewhat depends
on who you mean by "friend" (cf #6).
- Is it ok to borrow a friend's physical CD?
- Is it ok to borrow a non-DRM digital track from a friend?
- Is it ok to give a digital copy of a track to a friend?
- If one track is ok, what about 20 tracks (a traditional CD's worth)?
What about 100 tracks?
- Is it ok to let your friend pay you something for the privilege?
- Is it ok if you just met your friend 30 seconds ago, for the sole
purpose of buying 100 MB of music?
How is online file-sharing different here? Numbers 5 and 6 don't really
apply, though what would you say if an online file-sharing service required
you to pay the uploading
contributors? What if the cloudsharing service charged extra for accounts
that got usable bandwidth (so free filesharing was possible, but
impractical)? How different would the profit
motive make things?
One classic slippery-slope argument
is the Bart & Fat Tony
d'Amico scene in Simpsons 8F03, written by John Swartzwelder.
At work, Fat Tony gives Bart a present, in gratitude for his help with
the distribution of smuggled cigarettes.
Bart: Uh, say, are you guys crooks?
Tony: Bart, um, is it wrong to steal a loaf of bread to feed your starving
Tony: Well, suppose you got a large starving family. Is it wrong to
steal a truckload of bread to feed them?
Bart: Uh uh.
Tony: And, what if your family don't like bread? They like...
Bart: I guess that's okay.
Tony: Now, what if instead of giving them away, you sold them at a price
that was practically giving them away. Would that be a crime, Bart?
Bart: Hell, no!
Tony: Enjoy your gift.
(Is it legal for me to play this in class?)
One way to look at these slippery slopes is to be very wary of "incremental"
arguments in ethics. On the other hand, another view (which we'll come to)
is that the real issue with copyright is preserving the musician's ability
to earn money, and (perhaps) therefore anything that doesn't actually
interfere with that is ok. Which of the items on the list might interfere
with the musician's income?
Is downloading the same as theft?
- if music downloads are seen as being like radio,
they might be ok. (What if they're seen as being like YouTube?)
- if they're seen as in-lieu-of-purchase,
they're more like theft.
Software-copying model: people who illegally copy software often would never
buy it; they're just "collecting". No sale is lost in these cases.
- Yes: artists don't get the money they would otherwise get
- No: nobody loses anything they had before
Lost sales: if you build a better mousetrap, my mousetrap business may lose
sales. Lost sales -- or other harm -- is NOT necessarily wrong!!
Keep this "harm is not wrong" idea in mind.
Here's a related issue: how much should netflix and hulu charge a month for
- even less than before: it's like DVD rental, without the physical
- a whole lot more: it's becoming an alternative to paying for cable.
How does shifting from music filesharing (arguably a
legitimate fan response, and musicians may make even more money from concerts) to movie
filesharing change things?
How the music and movie industries sees it
Make no mistake; many musicians and essentially everyone in the music
industry above the level of musicians sees music as a business,
and virtually everyone in the movie industry sees it that way. Many people
go into music with the express hope of becoming wealthy. While hard data is
difficult to come by, I suspect that a majority of those in the music
industry believe they have a "natural right" to the music-related content
Bear in mind that there are many people who have had some idea and feel some
"ownership rights" to their idea. Many people, for example, feel that they
are "entitled" to profit from a business idea they had, or at least are
entitled not to have someone else profit off their idea by copying it.
Example: the Winklevoss twins and Facebook. Many of these people are simply
engaging in wishful thinking.
[Why am I using quotation marks here?]
Can you own an idea?
What is the LEGAL basis for music protection? Copyright.
Copyright is sometimes referred to as a form of "Intellectual Property"
(along with patent rights and some trademark and trade-secret rights). Is
there such a thing as "Intellectual Property"?
Intellectual property is the work-product of the
human mind. [Halbert & Ingulli, CyberEthics,
IDEAS are the work-product of the
Can ideas (including music) be property?
What is property? (Legal and
Three classes of property:
Note that "intellectual property" can certainly meet Bentham's standard of
"expectation... of being able to draw .. an advantage".
- "Real" property (land & buildings; ie Real Estate)
- Personal property, also known as "chattels"
- Intellectual property
Traditionally, "real property" is considered much more tangible.
Nobody can walk off with it, for example. However, easements are a form of
intangible real property right.
Intellectual property is a form of abstract
property. Here are some other forms of abstract property:
Natural law notion of property: you
have a right to things you have created with your own labor (eg things you
have made). You have a natural right
to things you have earned. (Proudhon, above, was not a big believer in this
- mineral rights (especially unexercised)
- options to buy a thing at a future date for a set price (options)
- 200 bushels of corn delivered next November (futures)
- utility easement
- construction "air" rights
- right to fly over certain areas
- software license (accepted at face value!)
Classic proponent: John
Locke 1632-1704 (mentioned in Baase p 33)
The natural right to real property (land & buildings) is slightly hazier
in theory, but much more solid in practice. The frontier version of the
theory was that you have the right to the land you have settled, developed,
and farmed; the practice is that you have the right to use your land as you
see fit (subject to zoning, water, and environmental laws).
The big question: Do we have natural
rights to IDEAS?
Tradition goes both ways. Ideas meet the Lockian test of things created with
your own effort, BUT many ideas have also traditionally been regarded as in
the "public domain".
One alternative to natural rights is sometimes referred to as "legal rights"
or "social rights": rights are assigned by law for a social goal.
Another alternative is the idea of intellectual
commons: that ideas are held in common for the benefit of everyone,
and that no one has an individual right to an idea. Here is a quote from
Jean-Jacques Rousseau on that:
The first man who, having enclosed a piece
of ground, bethought himself of saying "This is mine," and found people
simple enough to believe him, was the real founder of civil society. From
how many crimes, wars, and murders, from how many horrors and misfortunes
might not any one have saved mankind, by pulling up the stakes, or filling
up the ditch, and crying to his fellows: "Beware of listening to this
impostor; you are undone if you once forget that the fruits of the
earth belong to us all, and the earth itself to nobody." [emphasis
added - pld]
But Rousseau clearly did believe in civil society.
Who is copyright for?
What is the purpose of copyright? Who is to benefit from it? There are two
- Copyright exists to guarantee the natural-law property rights of
content creators. They are the intended beneficiaries.
- Copyright exists to encourage content creation by establishing an
incentive. The creators benefit from their works, but they are secondary
beneficiaries. We, the public, are the primary
beneficiaries, because more content is then created for us to enjoy.
United States Constitution
US Constitution states (the "copyright clause") (italics
added by me)
Section 8 - Powers of Congress
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and
To constitute Tribunals inferior to the supreme Court;
What is "limited"?
More deeply, what does this say about the nature of our "right" to our works
and inventions? It seems clear here that the writers of the constitution did
NOT see this as a natural right.
The justification for the right is because it promotes a societal goal, the
Progress of Science and useful Arts.
How can something be property, if it goes away? People ask this about
copyright in the other direction, quite seriously, as if it should be
obvious that copyright should be
The word "property" carries all sorts of implications to the non-lawyer. But
how can a music track be property if you can download the song and I still
have everything I had before?
Under the law, the notion of "intellectual property" makes perfect sense;
there are lots of limited and/or intangible forms of property. But mostly
nobody but lawyers is familiar with these. To most people, the word
"property" suggests something that is MINE, like the $5 bill in my wallet
(which, alas, I spent).
Property suggests certain rights:
- right to determine all forms of use
- right to legal enforcement
- right to decide how to dispose of property: sell, buy, lease,
What about this "limited-time" property?
The property-rights view suggests that the limited-time model is a huge
By comparison, the intellectual-commons view suggests that
any rights to the creator
are a concession.
Using the term "intellectual property" to describe ideas introduces BIASES.
What about "FAIR USE"? This is the notion that some copying is legitimate without any obligation to the creator.
The original notion was to allow excerpting for quotes and reviews. The use
should be relatively noncommercial (educational was best), and should not
diminish the market for the original. We'll go into details later; the
important case to be familiar with is the SCOTUS Sony v Universal Studios,
the "Betamax" case, in which the court ruled 5-4 that VCR recording for the
purpose of time-shifting did
constitute fair use.
- Intellectual Property is a legitimate concept.
- It is well accepted by lawyers.
- However, lawyers also automatically understand that it is different
from real or personal property.
-- "if seven million people are stealing, they
-- is it ok to download Game of Thrones episodes? (The
median cost per episode is somewhere around $10 million.)
Another take on this might be to ask whether music as "intellectual
property" can survive, given that out in the real world huge numbers of
people see nothing wrong with file sharing, or at least with file sharing so
long as other people are doing it too.
Intellectual Property and the Free Market
In a completely free market, I would sell my goods (chickens, say) for
whatever I could get, and buy other things. Could shareable music/movie
files exist in such a market? Once I sold one, the buyer could resell for
next to nothing (or literally nothing). The supply, in classical terms,
would be infinite, leading to a price of zero. Exactly as is happening in
the real world.
This point is related to Stewart Brand's famous aphorism, "information
to be free". The point isn't that information should
be free, it's that, in the high-tech world, it ineluctably will
be free, absent a strong regulatory system.
Nor is the point that newspapers and magazines should place their content
online without charging for access; here is Brand's full quotation (from the
On the one hand information wants
to be expensive
, because it's so valuable. The right
information in the right place just changes your life. On the other hand,
information wants to be free
, because the cost of getting
it out is getting lower and lower all the time. So you have these two
fighting against each other.
The first part means that information is expensive to obtain and produce.
But, like it or not, the information-free side seems inexorably to be
Here are some concepts for discussion; the italicized
claims are meant as points for debate.
1. Any free market requires some sort of
legal system to keep people from stealing my chickens rather than paying.
Copyright is no different.
Is this true? If the legal system ensured only that all transactions
were voluntary (the classic-free-market position), we would still
have a music/movie price of zero. There is a big difference between
transactions (that is, physical theft), and regulating voluntary
ones. More generally, we could enforce any buyer or seller terms on the immediate exchange of every
transaction, and still have a music/movie price of zero. If the seller
demanded that a buyer agree to a long-term license
restriction, that would be beyond the scope of the immediate
[Note, while we are on the topic, that this is a good example of the
importance of the legal ground-rules on economic activity.]
Bottom line: debate point 1 is problematic. Copyright is
2. This argument shows that intellectual
property can exist only in a regulated economy; that is,
intellectual property only exists once the market rules are defined. Another
example is patent terms: the value of a patent only exists once the length
of time the patent lasts is established.
The argument, in other words, is that IP can exist only to the extent our
markets have been regulated. For true Chicago-school economists, all
regulation is suspect, but note that many conservatives appear to feel that
IP "property rights" run deeper than simple market regulation. And aren't
all real markets subject to some degree of regulation? And aren't
contemporary markets subject to a considerable
degree of regulation?
Bottom line: debate point 2 is probably correct, but it's not necessarily a
3. Real markets are regulated in all
kinds of ways, so this is not a meaningful distinction (compare
Intellectual Property can only exist once the market is created; physical
property exists beforehand and Locke argued that physical property rights
exist beforehand. But why should that be a meaningful distinction? Do
natural rights matter? (It is certainly true that real markets are subject
to many regulations, but the question is whether that is relevant to the
alleged distinction between Intellectual and Lockean property.)
Bottom line: debate point 3 is reasonable, but most of us have some
belief in "natural rights".
A variant might be regulation in support
of IP is a hallmark of an advanced society.
4. The Tragedy of the Commons dooms IP.
The idea of the Tragedy
of the Commons is that there is some shared resource -- a common
pasture, the atmosphere, or the Internet -- and it is in society's best
interest if everyone abides by a set of rules: no overgrazing, no excess CO2
emissions, no free exchange of copyrighted information. Alas, it is in
everyone's individual interest to violate those same rules. So,
acting rationally, everyone does.
That is, copyright is in our mutual long-term interest. But meaningful
enforcement is difficult, and so we have to each agree to abide by
copyright law. At first we might each abide by our agreement, in the
interests of maintaining the music economy. But it is always in our short-term
best interest to ignore our promise and download privately. This makes the
music and movie industries like a "commons": each is supported by individual
contributions (the agreement not to share files) but it is in each
individual's best interest to "cheat".
Bottom line: time will tell on this one.
Even lower line: after thinking about free markets this way, do you still
believe that "conservatives" favor free markets, while "liberals" favor
Intellectual property requires market regulation, as we just argued above.
How much regulation is too much? How onerous is regulation to support
intellectual property to the rest of us? Some examples:
- Rules on playing music at public events (including nonprofit events)
- DRM on some devices
- Difficulty transferring your movie from one player to
- Rules against photocopying
- The MPAA (and formerly the RIAA) filing lawsuits
- Restrictions on creative freedom and music sampling
- Restrictions on websites' accepting user contributions
- Loss of privacy through logging of our web browsing by ISPs (this is
hypothetical, at this point)
- Loss of Internet connectivity (eg "three strikes" laws)
- Difficulty obtaining scientific papers
- DVD country codes
Most of the above are civil restrictions, not actually criminal.
However, 8 and 9 may become codified into criminal law at some point.
The Napster Defense and the Napster Model
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?
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?
Napster eventually lost their case, but not quickly; they were then replaced
by multiple different music-sharing services: kazaa, morpheus, limewire,
The Music Industry
Let's start with a couple quotes from the sheet-music industry. Here's the
copyright notice on sheet music from Unity Music Press:
without permission of the publisher is wrong.
It hurts the composer, 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 think of the "public acceptance" of copyright law as far as
filesharing is concerned?
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
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:
- No one loses anything they had before
- Music is part of our common culture that we all share
- The social costs of cracking down on file-sharing are dire
Which of these is the more important? Is it all about our obligations
to musicians, or about our own
- The music people have a right to the opportunity to profit
from their work
- If file-sharing takes over, the music industry goes away, and we'll
have less to listen to
In other words, who is copyright for?
The two approaches above have very different bases: the first is about
"natural rights" and our fundamental duty to respect them; the second is
about pragmatism and our own long-term self-interest.
Here's another take on this idea:
Despite the apparently clear distinction between fundamental duty and
pragmatism here, it can be hard to tell.
- Musicians have a fundamental right to profit from their work and
creativity, and copyrights enable this right. Music copyrights are about
protecting a basic form of ownership to which musicians are entitled.
- Music copyrights are there simply as a pragmatic gesture to encourage
musicians, so there will continue to be music for all of us to enjoy.
Music copyrights are about our future self-interest.
It might help to think of how we would feel if some relatively minor
component of music copyright -- sheet-music sales for private use, 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.
Along the same lines, if filesharing is stealing, who is being stolen from?
The conventional answer is that the theft is from the creator. What other
answers are possible? Do you believe them?
Suppose someone counterfeits a $20 bill. Who
is being robbed? This is complex; is the analogy to copyright
Finally, when we see someone's creative work being ripped off, which do we
In parts of Europe, creators have moral
rights to their works. These are copyright-like rights that cannot
be sold or taken away. They don't cover royalties, but they do cover
someone's alteration of the original work.
- that's wrong; that original musician deserved to be compensated. It's
- that's wrong; that will undermine the market for creative works in the
When thinking about moral rights in the music world, bear in mind the
following "quote", widely found on the Internet and attributed not quite
accurately to Hunter S. Thompson:
The music business is a cruel and shallow
money trench, a long plastic hallway where thieves and pimps run free, and
good men die like dogs.
There's also a negative side.
(Thompson was actually talking about "the
TV business", and he did not include the second line. But still.)
A common argument is that it is wrong to engage in filesharing "because you
haven't paid for the content" (below)
What kinds of content can you get for free?
Are these proof that you don't always have to pay for content, or are they
just special cases, involving either restrictions or hidden payment?
- radio and TV
- free versions of Spotify, etc
- going to the library
- downloading song lyrics (is this legal? Is this wrong?)
- content for which the copyright has expired: Shakespeare,
Jane Austen, etc
- content obtained under the rules of Fair Use
- open source and Creative Commons releases
Above we have considered two basic
justifications of copyright:
1. It exists to protect the fundamental
rights of creators
2. It exists to benefit society; copyright law protects us.
There are two major corresponding schools of thought on legal
interpretation of copyright:
- Copyright exists to define property rights for authors and other
creators. Exceptions to copyright (Fair Use, limited time) are to be
construed narrowly. In cases of conflict, the rights of creators are
assumed to dominate. For example, while in the music industry copyright
is primarily focused on recordings themselves, it applies just as
strongly to, say, lyrics.
- The public has a major interest in copyrighted content. Copyright law
serves to create several public rights. In cases of conflict, the claims
by the public are to be taken very seriously. To close a form of public
access, content creators need to prove not that they would lose money
but that they would lose so much that the incentive to create new works
would be diminished. For example, while allowing the recording of TV
shows off the air might violate the letter of copyright law, it does
serve the public interest and may not violate the spirit
of the law.
Are we owed money when someone takes our idea?
What ideas, if any, do we have to pay for? What forms of "intellectual
property" are really property?
Should Mark Zuckerberg, founder of Facebook, really have to pay Cameron and
Tyler Winklevoss for the "idea" of Facebook?
- Business plans
- The plot to a novel
- Attributes of a character in a novel, eg small, peaceable and hardy,
with great reserves of inner strength sufficient to withstand, at least
for a time, the temptations of the One Ring.
- The name of a character in a novel, eg Frodo
- A small section of melody, used in another composition
- The design of a college course
- The design of an online college course
- The order of music tracks in playlists (the band Ministry of
Sound sued Spotify for exactly this; they settled in February 2014)
- Examples from a book or technical paper
Is copyright an example of the broad right we have to our own ideas, or is
it a special case that applies only to "creative" works? And if the latter,
why is it a special case?
Copyright applies to a broad range of creative works: written works, music
and movies, of course, but also photographs, paintings, characters in
written works (eg Harry Potter), architectural plans, and (with certain
limitations) designs of household items, clothing patterns, and craft
projects. Sometimes even a musical style
can be protected.
Business ideas seldom fit this "creative" model, though we will late in the
semester address business-method patents.
Here are yet again the two contrasting approaches to copyright and
|Copyright is an
expression of a fundamental obligation we have to artists (deontological)
solely to create an incentive for artists to produce new works (utilitarian)
- What exactly is the obligation here?
- Why does the obligation often seem related to return on
- Does this obligation apply to the use of ideas?
- Does this obligation extend to content-industry executives?
- If copyright is purely Utilitarian, why do we often feel that
some fundamental duty is at stake?
- Why do we often feel that filesharing involves taking from musicians,
rather than from society at large? (This is less clear for film
|File sharing is taking something from
|File sharing might be taking from all
of us, collectively
In the ethical theories below, a common principle is that we should not harm
others. How can we reconcile this with the idea that it may be entirely fair
for a business to, through competition, cause someone else's business to
falter or even fail? It is also difficult to find fault with a consumer's
decision to stop renting movies from Blockbuster in favor of online viewing
via Netflix, even though this has led to Blockbuster's current financial
One approach here is to say that marketplace harm is usually unintended,
or, at the very least, is impersonal. Even this, though, is sometimes
unclear. As we will see in the I4I v Microsoft patent case, Microsoft took
actions to improve MS Office with the specific intent
of converting some of I4I's customers to Office: "We saw [i4i's
products] some time ago and met its creators. Word 11 will make it
obsolete..." [reference in the I4I materials, later]
Another idea is that we're all doing our best to succeed in the world, but
the ups and downs of individual markets are ineluctable, unavoidable. We
cannot predict them or understand them, and so they are best understood as
driven by external forces. Still, this sidesteps the fact that, for many
people in the business world, they are deliberately attempting to capture
some of their competitors' market share.
Yet another approach is to say that if we out-compete someone, we haven't
really harmed them. Most laid-off workers would probably disagree, but that
does not mean they are right.
The literature on ethics is filled with what are sometimes called "ethical
The Trolley Problem (http://en.wikipedia.org/wiki/Trolley_problem)
A trolley is running out of control down a
track. In its path are five 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?
See here for one
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.
Is file-sharing actually a paradox? That is, does it represent an
ethical issue for which we do not have a settled, universally accepted
answer? If not, why not?
Here's a version of the Trolley Problem for those tired of it:
A trolley is running out of control down a
track. In its path is Immanuel Kant. Fortunately, you can flip a switch,
which will lead the trolley down a different track where it will strike
Jeremy Bentham. What would Kant say is the ethical thing to do?
Kant is best known for his deontological approach, under which flipping
the switch would generally be considered wrong. Bentham is the founder of
utilitarianism (then consequentialism), in which flipping the switch is ok
if the result is of overall benefit to society.
(often inseparable from Political & Justice theories)
The root deon means "duty".
Deontological approaches are based on the enumeration of fundamental,
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 selectively (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
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
Utilitarianism is wrong; Ross identified "seven duties"
we have to each other:
Is this list complete?
- fidelity [not lying, keeping promises]
- reparation [making up for accidental
harm to others]
- non-injury [do no intentional
harm others; includes harming their happiness]
- justice [or prevention of harm by others?];
- beneficence [do good to others. How much good?]
- self-improvement [perhaps "taking care of oneself"]
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 the mother v duty to the 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, to a
significant degree, not in
What about one's personal duty,
when faced with the choice of downloading music?
Utilitarian (Consequentialist) ethics
Jeremy Bentham 1749-1832 & John Stuart Mill [1806-1873]:
Bentham named his theory Consequentialism: the good is that which has the
best consequences, in that it 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
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.) (One approach to this problem is to look to the future:
in the long run, if we seize the factory, no one will build another, so
seizing the factory harms everyone. But this doesn't always resolve the
Mill wrote a book, Utilitarianism,
tuning some of Bentham's ideas. We will mostly use Mill's name for the
theory. He was much less focused on simple consequences than Bentham.
Bentham thought all forms of pleasure were comparable; Mill felt some were
"better" than others (hence the focus on "utility"). Mill also recast the
idea as maximizing happiness
rather than "pleasure". Describing the social benefit as utility
has subtle implications versus Bentham's focus on "consequences".
For one particular take on Consequentialism vs Utilitarianism, see No
son of mine is going to be a Benthamite Utilitarian!
For a somewhat peculiar take on the differences between a deontological
approach and a utilitarian one, see https://www.vox.com/future-perfect/2019/8/27/20829758/altruism-morality-molly-crockett-study-dating-do-gooders.
But the real issue here is the extent of someone's concern for
others, that is, charity. Both deontologists and utilitarians believe in
Social Contract; Locke, Jean-Jacques
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 (though see Rousseau's
rather odd quote above).
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. (Note that this
approach pretty much demolishes the argument that ethics are not important
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
How do you think Rawls would vote on health-care reform?
How do you think Rawls would choose between capitalism and
Variants of Utilitarianism
zero-sum Utilitarianism: The idea is
that, notionally, we score everyone's benefit or damage numerically, and add
them all up. The option with the best total score wins. (This is an abuse of
the term "zero-sum game", in which all total scores are equal and so any
advantage for one participant must entail a concomitant reduction for
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
Of course, there is also
needs of the many outweigh the needs of the few
Star Trek II: The Wrath of Khan
Finally, some times we may just add up the current scores, and
other times take into account future scores.
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.
decide for or against a rule using Utilitarian reasoning, you must be a
disinterested party: you must NOT stand to gain personally in any
significant way. Rawls' approach is an example of this. How does this shift
our perspective in the copyright debate?
For that matter, who is a "disinterested person" in the copyright debate?
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
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 Utilitarianism generally fares better
under critical analysis than Act Utilitarianism, 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 Utilitarian 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 Utilitarianism 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.
Compare justifications of lying
Utilitarian: lying may be ok in some cases
Act Utilitarianism: very
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
Compare approaches to criminal punishment
- Utilitarian: pragmatic; jail is for rehabilitation and for creating
an incentive for good behavior (or at least a disincentive for bad
- 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.
The US Constitution language of the copyright clause is clearly focused on
overall benefit to society; that is, it explicitly takes a Utilitarian
Many laws -- at least the regulatory sort -- are largely utilitarian
(criminal laws can be very deontological, but even there it is seldom as
clear as what the politicians say). Note, though, that some aspects of free
speech / freedom of religion make these out to be "fundamental rights" in a
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
(where an instance of petty theft is discovered):
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
Getting something for nothing is a warning: you may be doing something wrong
(or foolish). But it is not an absolute sign of error.
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; not
currently in vogue]
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
- right to life
- right to (physical) property
- freedom of speech
- right to hire your own attorney
- right to play the music we buy???
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
- right to be provided with an attorney (compare liberty version of
- right to an education
- right to have our copyrighted content protected by the government
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, 4e p 33 / 5e p 37]: Is copyright a PROPERTY right?
"Natural" rights: special case of liberties (negative rights), like life and
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.
Into what category would you replace the right to bear arms?
How does religion figure into ethics? Are moral laws simply commandments
from God, or does God give us the ability for understanding
The Ten Commandments are very deontological. They are fundamental duties,
and they are expressed as universals.
In the Torah (Leviticus and Deuteronomy) there are some 613 Mitzvot
, or rules; for example, Leviticus
11:26 on the eating of pork:
All animals that divide the hoof but it is
not completely split in two and do not chew the cud are unclean to you;
anyone who touches them becomes unclean
Some of these, such as the one above, are not very universal. One
interpretation is that they are not supposed to be; rather, they are
"symbolic", creating constant reminders in daily life of ones duty to God.
The Golden Rule [Matthew
7:12] is central to Christian ethics:
In everything, treat others as you would
want them to treat you
However, this is closely related to the early Old Testament "you must love
your neighbor as yourself" [Leviticus 19:18]
The Golden Rule is more utilitarian than the Ten Commandments, but
utilitarianism is nonetheless not the whole story. To a utilitarian, you
would treat others well because that is of overall benefit to society;
many who adopt the Golden Rule for religious reasons believe that they
have a duty (to God) to treat others well. The Golden Rule does identify
such a duty, but any actual details of how we are to carry out this duty
are grounded in utilitarian pragmatism: how we
would feel if our action were to be applied to us.
The Golden Rule is sometimes formulated as
Do unto others as you would have them do unto
An alternative approach is the Silver Rule:
Do not do unto others what
you would not have them do unto you
The Jewish scholar Hillel the Elder, supposedly born 110 BC but also
supposedly overlapping with Jesus, gave the following version of the
Silver Rule as the core teaching of the Torah:
That which is hateful to you, do not do to your
Hillel probably said this sometime between 30 BC and 10 AD; a similar
formulation appears in the noncanonical biblical books Tobit and
The prophet Muhammad also gave a version of the Silver Rule: Hurt
no one so that no one may hurt you. [The
Farewell Sermon, 632 CE].
Some people call the Golden and Silver Rules reciprocity ethics.
However, a common alternative interpretation is as a way of understanding
how to treat others, even if they do not reciprocate. You should
treat other people as if they reciprocated, and you should treat
them that way even if they do not. This approach is particularly strong in
the explanation of the Golden Rule in Luke 6:31:
in the same way that you would want them to treat you. If
you love those who love
that to you? For
love those who love
them. And if you do good to those
who do good to you,
is that to you?
do the same. And
if you lend
to those from whom
you hope to be repaid,
is that to you?
lend to sinners,
so that they may be repaid
in full. But love your enemies, and do
good, and lend, expecting nothing back.
This is a fairly explicit rejection of reciprocity.
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 [except
of course by competing fairly with them in business]. The Silver
Rule doesn't add that we also have to be good to them. This
non-harm idea was clearly expressed by the time of ancient Athens (~500
Note that the Silver Rule does in fact really come down to"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, though this analogy isn't quite as
The Golden Rule is sometimes seen as requiring us to give actively to
others, beyond merely not harming them. In this, it can be seen as being a
combination of the Silver Rule with a duty of something like service
The underlying "reciprocity principle" of ethics has come up many times. It
is closely tied to the Social Contract theory of ethics.
Here are a couple well-known criticisms of the Golden Rule. First, it does
not provide much of a way to find out whether others in fact want
to be treated the same way you want to be treated. If you are fond of roast
beef, and offer it to others, what if they reject it because they are
vegetarian? However, if the rule is applied primarily to the "big picture"
issues of fairness and consideration, perhaps this is less relevant. Second,
the Golden Rule (and the Silver Rule) would seem to preclude punishment of
wrongdoers: how can a judge, who feels being denied freedom is a form of
harm, ever send a miscreant to jail?
Law: lawyers have a legal AND ethical responsibility to take their client's
This can mean some behavior that would be pretty dicey in other
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 that such hacking was still
Law v Ethics
Baase 4e p 38 / 5e p 41
implement moral imperatives
implement, enforce, and fund rights
establish conventions (eg Uniform Commercial Code)
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
Does ethical relativism help at all with deciding questions facing you?
See Baase, 4e p 32 / 5e p 34, 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. As an example, do
we really mean that murder and genocide 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
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 deontologists seem to suggest that part of an ethical
theory is how it affects everyone;
that is, it is not just up to you.
Intellectual Property revisited
Here are a few references to 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.
4e p 181 / 5e p 195:
When we buy a movie on disk or via streaming video, we are buying the right
to watch it, but not the right to play it in a public venue or charge a fee.
[license/copyright strings attached]
4e p 181/ 5e p 195: five copyright rights [would these ever apply to
- make copies
- produce derivative works (except parodies); includes translations
- distribution of copies
- performance in public
- display to the public
4e p 182 / 5e p 196 [is the future of the laws on physical property in
Nicholas Negroponte, founder, MIT Media Lab; founder, One Laptop Per Child;
goal: $100 laptop
Copyright law will disintegrate
Pamela Samuelson, Cornell Law professor, writes Legally Speaking column in
New technologies have been disrupting
existing equilibria for centuries, yet balanced solutions have been found
But what if the "balanced solution" is the Napster model?
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". (To be fair, neither of those questions applies
seriously to the case of unauthorized file-sharing.)
Application of deontological/utilitarian analysis
Music stakeholders (list from before (simplified)), with an indication as to
how they might fare under file-sharing.
|stores & distributors
What would this table look like for the movie industry? (There are
essentially no "unsigned" filmmakers.)
A utilitarian would probably use tradeoffs as summarized in the table above.
(A utilitarian might or might not weight recording industry $$$ losses
higher than others.) Note that the justification given in the US
constitution for the copyright clause puts most weight on future fans; while
that is an important consideration, other utilitarian analyses might put a
different weight on the future.
Someone with a deontological perspective probably would NOT consider these
tradeoffs, if they identified not copying music as a fundamental duty.
signed v unsigned musicians
Utilitarian: which scheme is better for which type?
- Do we owe signed musicians the right to decide distribution?
- Do we owe unsigned musicians the right to an opportunity?
- Could we have both??
A deontological perspective on plagiarism
This one is easy. It is wrong to present someone else's work as your own,
period. Even a Utilitarian analysis here is hard-put to find legitimate
A deontological perspective on
This is trickier to argue than it might seem at first; it is particularly
hard to justify Fair Use. Here are three 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? What if someone else's song inspires you to create your own
musical piece, only distantly related to the first? For the second,
"profit", option, do we allow artists to declare retroactive
restrictions? Should every new use require new permission (probably with new
- Before using anyone else's idea (or creative work), we must have their
- We must respect the artist's right to attempt to profit from
- Using someone's copyrighted work is using their property
- We must respect others, and be fair and honest when dealing with them
The third option (championed by Adam Mossoff, who spoke at Loyola in Spring
2014) is relatively straightforward, but do we really believe our copy of a
book or film is really the property of its creators? If we do not, the real
issue is an implicit restriction on usage. Where, then, does this
leave Fair Use and copyright expiration? Also, under what circumstances is
it ok to make use of someone else's idea? This is not a minor issue; social
progress depends on building on the works of others.
The fourth one sounds good, but doesn't really address copyright.
There is sometimes a fine line between using someone else's "creative work"
and using someone else's idea.
Here are a few classes of ideas we probably don't want to restrict:
Bottom line: copyright is fundamentally about compromise between artists and
society, and it can be hard to discern fundamental duties that are
substantial enough to imply our financial obligation.
- general commentary on society (eg the underlying "theme" of a song or
- business ideas
- general scientific principles
- general practical knowledge
- the right to use copyrighted material after the copyright has expired
- the Fair Use right to copyrighted material
One approach is to consider downloading to be a form of theft. This seems to
be where Michael Eisner was coming from in his June
2000 statement to Congress [ edited, from Halbert & Ingulli 2004].
He writes, "theft is theft, whether it is enabled by a handgun or a computer
keyboard". Does this really work for copyright?
But here's another, contrary, 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
In section 4.1.5 (4e and 5e), Baase states
[Copyright infringers] benefit from the
creativity and effort of others without paying for it, which, to most
people, seems wrong.
But that's the "to sweat or have not" argument. And she then adds:
On the other hand, there may be situations
where copying does not seem wrong.
The first is as good a statement as 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 essence of the free market.
What do you think of the "on the other hand" followup statement?
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.
As an example of the enforcement of strict rights, the estate of Marvin
Gaye sued Robin Thicke and Pharrell Williams for the song "Blurred Lines".
The problem is that Thicke and Williams didn't copy Gaye's melody, or
chord progressions, or lyrics. What was copied was (in the defense team's
words) the "feel of an era". Can you really copyright the 70's? Or is
there something more specific at stake?
The Ninth Circuit upheld the trial-court verdict in favor of the Gaye
estate. As for copyrighting a "feel", the court wrote:
"[m]usic . . . is not capable of ready
classification into only five or six constituent elements," but is instead
"comprised of a large array of elements, some combination of which is
protectable by copyright".
Generally speaking, the court seemed to think that more had been copied
than simply the "feel of an era". That said, the case represents a
significant advance in copyright-owner rights, as no specific use of any
one musical component, and no specific finding of overall similarity, is
Here are some other ethical responses to copyright
good essay distinguishing copyright from property (see ¶ 2). Also see:
The legal principle at stake in the 
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.
Alfino is arguing here that our modern legal understanding of the
utilitarian nature of copyright should influence our ethical
understanding of copying. And, in particular, that if copyright ownership is
defined by law, then that same law can establish limitations on copyright.
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?
For more cluelessness about file sharing v plagiarism, see http://www.guidetoonlineschools.com/tips-and-tools/textbook-piracy#2.
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
Does it matter? Don't students have a right to surpass their teachers? Or
compete with their teachers? Or use the
techniques their teacher taught them?
Is copyright just a matter of "obeying the law"? Or do we have some deeper
obligation to musicians and authors?
Let's search for the database textbook I have used, Elmasri & Navathe,
on google. In early 2011, most of the first hits were for places selling
.pdf copies. These originate either with a leaked .pdf copy, a cracked
e-book copy, or (still most often) someone's buying a book and feeding it
page by page into a scanner.
Before that, some oversees publishers would republish "international
editions" of expensive textbooks, typically in paperback/newsprint form, and
typically entirely without the permission of the original publisher.
There is also some free textbook file-sharing out there. Once upon a time http://www.textbooktorrents.com
was such a site, though it has been "commercialized" since. Was this about
book-file-sharing? Or book-file profit?
All this has the textbook world very worried. Free textbook filesharing is
also on the rise.
For-profit infringement has been creeping into music and film, too.
Initially these were traded for free, but now there are large filesharing
services with a business model something like the following:
All this means that in practice the site is directly profiting from
infringement. But to close the site down, goes the argument, the above
actions may not be enough!
- Anyone can upload for free, and download for free
- Downloaders get very poor bandwidth
- But downloaders can pay to upgrade to a reasonable
bandwidth, and reasonable site-searching tools
- Consistent uploaders get upgraded for free! As a courtesy.
- The site is not responsible for any infringement that happens
to occur. After all, it's not like they encouraged it.
Legally, when the copies are definitely being sold,
there are more legal tools. You can follow the money. First of all, there is money. Typically, even if the
website is offshore, legal pressure can be brought against
visa/mastercard/paypal to refuse to process payments for new content. Then,
the site's bank account can be frozen or seized.
Here are a few central-server sites. Some of them actually pay cash to users
who upload material that lots of others download (thus encouraging the
uploading of infringing material). At the other extreme, some liken
themselves to being "the cloud", a place out there where individual users
can store their data safely.
Why would people buy music, eg from iTunes, instead of downloading it?
Are there any other ways in which iTunes downloads are better than
- consistent quality
- some protections against loss and damage
- freedom from fear of RIAA persecution
What happens to the notion that there was some equilibrium reached between
file-sharing and iTunes sales based on the latter's still having an
advantage? Next week we will talk about the Michael Eisner statement (at the
top of this page); did Eisner suggest 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
Once upon a time, the music industry was against the idea of ripping tracks
from your CDs. That might still
violate the "license" terms that come with your CD, though nobody cares.
In 1998 the RIAA sued Diamond Multimedia over their Rio MP3 player.
The RIAA lost, mostly on the basis of the Sony v Universal Supreme Court
If respect for musicians is an issue, why are we so comfortable taking the
sound files off CDs? After all, there is
still the possibility that the music industry can sell us the digital tracks
This is an easy one to dismiss: if we buy a CD and have ripped the tracks,
we've still paid for the music. Still, it's not difficult to imagine a world
in which Diamond Multimedia lost their lawsuit about the legitimacy of their
Rio MP3 player. Then where would we stand on this?
How does iTunes' per-track pricing change a musician's market model?
- "filler tracks" are irrelevant. It no longer works to have one or two
good songs, and pad out the rest of your CD with these.
- more people may buy your best tracks; the commitment in buying one
track is minor compared to one CD
Fundamental conflict: evolution of technology v rights of creators
How do you feel about the idea that technological evolution might make some
of our rights irrelevant? It is hard to give personal examples that apply to
Is going back to the old way an option?
Ethical arguments about copying
Baase section 4/5e:4.1.5:
What do you think of these?
- I can't afford to pay for the content
- It's ok to take from large, wealthy corporations. (Baase dismisses
this. Is there any underlying justification?)
- Because I can't afford content, Big Content loses nothing when I
- I'm only doing this for a friend, out of generosity
- personal file-sharing is so small as to be inconsequential.
- Everyone does it.
- I'd be happy to get permission to use zzzz, but don't know where.
(This is the Eyes on the Prize
- I'm posting as a public service, or to address some important social
goal, not for sharing per se.
(Legally, this is called transformative
- I'm only downloading isolated tracks, not entire CDs
- This is Fair Use.
- I would not be buying it, regardless (variant of #1)
Ethics of copyright: is it all about respecting the creator's right to sell
their product, that is, is it dependent on the creator's business model??
Isn't this extremely utilitarian?
Bottom line: if we want the old rules to continue, we need to find ways to
ensure return on investment for creators of music, movies, and books.
And such ways to ensure ROI (Return On Investment, a standard B-school
acronym) can be legal, technical (eg DRM), or social.
Again, how did we get into a situation where our ethical decision making
involved analysis of ROI?