Computer Ethics, Summer 2010

Week 1, Day 2
Corboy Law Room 323

Property
US Constitution
IP and the free market
Music industry arguments: for musicians / for us
Ethical theory: deontological / utilitarian

  
Michael Eisner's June 2000 statement to Congress (edited, from Halbert & Ingulli 2004). See also below.

"Intellectual Property"

[Why am I using quotation marks here?]

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, 2004]
        
How about
        
        IDEAS are the work-product of the human mind
        
Can ideas (including music) be PROPERTY?

What is property? (Legal and social definitions)

"the right of use, control, and disposition" (topics.law.cornell.edu/wex/real_property)
the "expectation ... of being able to draw such or such an advantage from the thing" in question [Jeremy Bentham, quoted in en.wikipedia.org/wiki/Property_law]

Three classes of property:      
Note that "intellectual property" can certainly meet Bentham's standard of "expectation... of being able to draw .. an advantage".
       
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 right to things you have earned.

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.


United States Constitution

US Constitution states (the "copyright clause") (italics added by me)

Article I, 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 Discoveries;

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 constituton 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 perpetual.

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:

What about this "limited-time" property?

The property-rights view suggests that the limited-time model is a huge concession.

By comparison, the intellectual-commons view suggests that any rights to the creator are a consession.
   
Using the term "intellecual 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.

Summary: Intellectual Property is a legitimate concept.
It is well accepted by lawyers.
However, lawyers also automatically understand that it's different from real or personal property.

  
descriptive ethics: what do people actually do
    compare sociology, etc

normative ethics, or PREscriptive ethics: what SHOULD we do?

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

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 mp3 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 wants 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; the second part of Brand's aphorism is "information also wants to be expensive"; that is, it is expensive to obtain and produce.

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, we would still have a music price of zero. There is a big difference between forbidding involuntary 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 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 exchange.

[Note, while we are on the topic, that this is a good example of the importance of the legal groundrules on economic activity.]

Bottom line: debate point 1 is problematic. Copyright is different.

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 "socialized" (ok, that is inflammatory) or at least "regulated" (for true Chicago-school economists, there is no difference). However, 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 don't read too much into it.
3. Real markets are regulated in all kinds of ways, so this is not a meaningful distinction (compare with #2)

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 don't underestimate the difference here.

4. The Tragedy of the Commons dooms IP.

That is, copyright is in our mutual long-term interest. But as meaningful enforcement is difficult, 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 industry like a "commons": supported by individual contributions (the agreement not to share files) but in each individual's best interest to "cheat". In all other situations studied, the commons are doomed.

Bottom line: time will tell on this one.

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"??