Computer Ethics, Fall 2012

Corboy Law 423; Thursdays, 4:15-6:45
Week 2


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

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 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 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 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.

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

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

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 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 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 bad thing.

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 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.

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 most other situations studied, the commons are doomed.

Bottom line: time will tell on this one.

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, gnutella, ....

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:

Copying music 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 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?

Who is copyright for?

Here are the two primary justifications for copyright:
  1. The music people have a right to profit from their work
  2. If file-sharing takes over, the music industry goes away, and we'll have less to listen to
The two approaches 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:
  1. 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.
  2. 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.
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.

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 violations apt?

Finally, when we see someone's creative work being ripped off, which do we think?
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.


There are two major schools of thought on legal interpretation of copyright:
  1. 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.

  2. 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? http://xkcd.com/827.

What ideas, if any, do we have to pay for?

Should Mark Zuckerberg, founder of Facebook, really have to pay Cameron and Tyler Winklevoss for the "idea" of Facebook?

This is important: is copyright an example of the broad right we have to our own ideas, or is it a special case? And if the latter, why is it a special case?

Copyright applies to anything "creative" that we produce: 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, though that is also often done under trademark law rather than copyright.

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 file-sharing

Copyright is an expression of a fundamental obligation we have to artists (deontological)
 Copyright exists solely to encourage artists to create new works (utilitarian)              
Issues
What exactly is the obligation here?
Why does the obligation often seem related to return on investment?
Does this obligation apply to the use of ideas?
Does this obligation extend to record-industry executives?
 Issues
If copyright is purely Utilitarian, why do we often feel that some
fundamental duty is at stake?
File sharing is taking something from the artists
 File sharing might be taking from all of us, collectively

Harm again

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 difficulties.

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.

Ethical Paradoxes

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 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 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 (Utilitarian) 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?

Variants of consequentialism

zero-sum consequentialism: The idea is that, notionally, we score everyone's benefit or damage numerically, and add them all up. The foremost problem with this approach is that it accepts solutions in which one person suffers greatly, but which produces a modest rise in the fortunes of everyone else. Ursula LeGuin wrote a short science-fiction story on this theme: "the ones who walk away from Omelas." This is also a theme of William James in his essay The Moral Philosopher and the Moral Life.  Look up "omelas" on Wikipedia to find James' quote and a link to the full essay; the quote itself follows.
   
Or if the hypothesis were offered us of a world in which Messrs. Fourier's and Bellamy's and Morris's utopias should all be outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain? - William James

min/max consequentialism: goal is to choose actions that minimize the harm to those affected most (to minimize the worst case, ie to minimize the maximum). Example: taxes; everyone pays a share and social progress is thereby funded.
 
disinterested-person consequentialism:  To decide for or against a rule using consequentialist reasoning, you must be a disinterested party: you must NOT stand to gain personally in any significant way. How does this shift our perspective in the copyright debate?

act consequentialism: consider consequences of each individual act separately. Some lies may thus be permissible while others may not be. The same would apply to music downloading: music from some bands might be fair game. But how do you decide?

rule consequentialism: use consequences of hypothetical actions to formulate broad rules. For example, we ask if we are better off tolerating lying or not; we might then arrive at the broad conclusion that lying is not helpful to society, and we would apply it in every case. Rule consequentialism generally fares better under critical analysis than act consequentialism, but there is a difficulty with how broadly the rules should be interpreted. Is your rule that "lying is always wrong"? Or is it that "lying when someone will be hurt is wrong"? Or "lying is wrong even if no one is hurt, if by lying I gain something I would not otherwise receive"??

"The ends justify the means" This position is based on the consequentialist argument that sometimes it's ok to lie (the means), because in those special cases (eg not hurting people's feelings, protecting the innocent) the ends are clearly an overall good. However, in general consequentialism requires us to take into consideration the full consequences of the means (as well as the ends), in which case harsh or inappropriate means might be discarded as unacceptable.

Famous examples


Compare justifications of lying
    Utilitarian: may be ok in some cases
        Act Utilitarianism: very case-by-case:
            Lying to Joe during the job interview: WRONG
            Lying to Bob about our having borrowed his car: maybe
            Lying to Mary about where we were last Saturday: sure!
        Rule Utilitarianism: by category
            "Lying to friends" may be a category that is always wrong.
            Or should the category be "Lying to Anyone"?
        
    Deontological theories: Lying Is Wrong. Always. Even to save refugees from the Nazis.
    Kant: no moral issue should EVER be decided on a case-by-case basis
    
Compare approaches to criminal punishment
    Utilitarian: pragmatic; jail is for rehabilitation
    Deontological: jail is for punishment

Which approach do we take in current societal discourse?


"Natural right to property" is mostly a deontological notion: Locke's idea that people had a natural right to the product of their work did not have societal economic benefits as its justification. However, it is rather easy to defend property rights with a utilitarian argument.

Constitutional language re copyright is clearly focused on overall benefit to society (utilitarian)

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 deontological sense.



Some alternatives and special cases

Sweat or have not

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

Aretaic Ethics

From greek "Arete", virtue or excellence

Important thing is not duties or consequences but one's character. If you have the right character, you will be led to ethical action naturally. [Not mentioned in Baase; not currently in vogue]

Rights Theory

We all have certain inalienable rights, and the goal of ethics should be to preserve these. Note that this is different from duties. Locke's "natural rights" comes from this perspective. Rights-theory ethics says, basically, that ethics is about respecting other peoples rights. Do other people have a right not to be misled?


Liberties and claim rights: (Baase)
Liberties (sometimes called negative rights) are rights "to act without interference"; others SHOULD NOT interfere with these. Examples:
Claim rights (positive rights): rest of us have to take measures to ENABLE your right.
Sometimes these are in conflict. Claim rights put an obligation on the rest of us to GIVE UP something, likely something to which we have a liberty-right.

Rights-theory ethics is probably more commonly about liberties than claim rights, but both are involved. Note that with liberties, our ethical obligations are to preserve the liberty-rights of others.


Basis for Property rights

John Locke [Baase, p 33]: Is copyright a PROPERTY right?
    
"Natural" rights: special case of liberties (negative rights), like life & liberty. These are fundamental obligations we have to one another.
    
"Utilitarian" rights: rights that we grant each other for improved social function; NOT necessarily the same as claim rights
    
The Constitution places IP in the latter category.



Religion

How does religion figure into ethics?
Are moral laws simply commandments from God, or does God give us reasons for understanding moral quandaries?

10 commandments: very deontological. They are fundamental duties, and they are expressed as universals.

613 Mitzvot of the Torah: some of these are less universal (though that is clearly not their point).

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

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

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


Some people call the golden rule "reciprocity ethics". However, arguably the rule's real meaning is as a way of understanding how to treat others, even if they do not reciprocate.

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

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

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

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

This formulation is sometimes referred to as the Silver Rule.

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

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 latter was clearly expressed by the time of ancient Athens (~500 BC).

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

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

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

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


Professional ethics

Law: lawyers have a legal AND ethical responsibility to take their client's side!
This can mean some behavior that would be pretty dicey in other circumstances.

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

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


Wrong v Harm


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

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

Not everything that is wrong is harmful:

Hackers used to argue that it was ok to break into a computer system as long as  you did no harm. While there are some differences of opinion on this, most people who were broken into felt differently.


Law v Ethics (p 37)

Laws:
    implement moral imperatives
    implement, enforce, and fund rights
    fund services
    establish conventions (eg Uniform Commercial Code)
    special interests
    

How do we decide what rules OTHERS should follow?
(Quite unrelated to how we decide what rules we ourselves follow.)

Ethical Relativism: it's up to the individual [or culture]. "Moral values are relative to a particular culture and cannot be judged outside of that culture" [LM Hinman, Ethics, Harcourt Brace 1994]. Hinman is speaking of "cultural ethical relativism"; a related form is "individual ethical relativism", sometimes called ethical subjectivism. That is, it's all up to you personally.

Does ethical relativism help at all with deciding questions facing you?

See Baase, p 32, under Natural Rights:
One approach we might follow is to let people (or cultures) make their own decisions. This approach has less meaning in the context of deciding how we should act personally. It is very attractive because (at first glance, at least), it is nonjudgmental, seems to promote tolerance, and seems to recognize that each of us arrive at our ethical positions via our own path.
    
Relativism has, however, some serious problems.

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

Second, we often don't really believe in moral relativism. Example:  murder/genocide; do we really mean that this is would be ok in Darfur if the Sudanese culture accepts it? The Nazi culture (at least the culture of higher party members) accepted genocide; do we really want to stick with relativism here?

Finally, the central claim of relativism is that it is wrong to criticize the ethical principles of others. This in itself is an absolute (non-relative) statement, and as such is self-contradictory! The utilitarians and Kantians seem to suggest that part of an ethical theory is how it affects everyone; that is, it's not just up to you.

Intellectual Property revisited

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

p 199:
When we buy a movie on digital video disk (DVD), we are buying one copy with the right to watch it but not to play it in a public venue or charge a fee. [license/copyright strings attached]
    
p 200: five copyright rights [would these ever apply to physical property?]
  1. make copies
  2. produce derivative works (except parodies); includes translations
  3. distribution of copies
  4. performance in public
  5. display to the public
    
p 201 [is the future of the laws on physical property in doubt?]
    Nicholas Negroponte: "Copyright law will disintegrate"
        founder, MIT Media Lab
        founder, One Laptop Per Child; goal: $100 laptop
        
    Pamela Samuelson: "[no they won't]... balanced solutions will be found"
        Cornell Law prof
        writes Legally Speaking column in Comm. ACM


Suppose we do agree that songs are a form of property. Does that automatically mean we agree on what theft is? A bit of thought makes it clear that the answer is no: traditionally, the point of theft is that it denies the owner the use of the item. Traditional notions of theft just don't make sense here.

What about "unauthorized use"? That's a reasonable first approximation, BUT it opens up a huge can of worms as to what constitutes "authorization" and what constitutes "use". (To be fair, neither of those questions applies seriously to the case of unauthorized file-sharing.)

Application of deontological/utilitarian analysis to music file-sharing

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

"signed" musicians
 lose
"indie" musicians
 gain
recording industry
 lose big
stores & distributors
 ??
current fans
 gain
future fans
 lose

Utilitarian perspective:

probably uses tradeoffs as summarized in the table above. (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.)

Deontological perspective probably would NOT consider these tradeoffs.


signed v indie musicians and copyright

Utilitarian: which scheme is better for which type?
Deontological:


A deontological perspective on copyright

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

Also, 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 is very hard to discern fundamental duties that are substantial enough to imply our financial obligation ("respect the creative works of others" doesn't necessarily do that).

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

Another approach: "we simply do not have ownership rights to information" (Stallman, later)
After all, we cannot own slaves either (in the US since 1865)

Kant, the Categorical Imperative, & file sharing: do I really want file sharing to be ALWAYS ok? If not, I should agree that we have an obligation not to download at all. But "categoricity" is not the central point: duty to others is.

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

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

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

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

A problem with strict ownership of [musical] rights: social progress really stalls. We'll see this later with patents, but entertainment is also based on incremental development, and one artist's response to others.



Here are some other ethical responses to copyright infringement:

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

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

Alfino is arguing here that our modern legal understanding of the utilitarian nature of copyright should influence our ethical understanding of copying.

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

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

Does copyright violation have anything to do with plagiarism?

For more cluelessness about file sharing v plagiarism, see http://www.guidetoonlineschools.com/tips-and-tools/textbook-piracy#2.

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

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

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

For-profit infringement (or textbook piracy)

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. Look at http://www.textbooktorrents.com. Is this about book-file-sharing? Or book-file profit? (Actually, they're sort of our of business, at least in terms of distributing torrents.)

Legally, when the copies are 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 books. Then, the site's bank account can be frozen or seized. Still, all this has the textbook world very worried. Free textbook filesharing is on the rise.

While many of the large central-server-model filesharing sites were still engaging in "free" filesharing, many also offered "premium service" subscriptions for sale, thus directly profiting off of infringement.

Here are a few of the 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.