The Amorality of Infringement- Christou, Rhodes, Sanders - June 2011

The Amorality of Infringement

Gil Sanders Andrew Rhodes Dimmitri Christou *

*We give much credit to Mohsen Manesh for the benefits his paper has given us in writing our own.
Introduction (Section I) In a 2000 study by the Pew Internet & American Life Project, it was found that 78% of individuals believed that downloading copyrighted music is not stealing [1]. Many additional studies have shown that the large majority of people find file sharing and downloading copyrighted material to be morally acceptable [2]. Interestingly, the amount of individuals who found stealing a physical CD to be immoral was much higher. Thus it seems that the moral intuition of most individuals drives them to make a distinction between theft (immoral) and infringement (amoral) [3]. In this paper we will explore (I) what may spawn this intuitive distinction with most individuals and (II) argue that there exists an objective, non-intuitive basis for trusting this distinction as tenable. Finally, we will (III) address a particular set of objections against our conclusion raised by Timothy Hsiao on the Ethika Politica blog [4]. Our thesis is that infringement, as it were, is an amoral action insofar as it is neither morally praiseworthy nor morally reprehensible.

The Amorality of Infringement- Christou, Rhodes, Sanders - June 2011

Property Ownership Throughout the Ages (Section II) We think its a non-contentious fact that most cultures and societies throughout the vastness of human history have condemned theft as an immoral action. In his aforementioned paper on infringement, Manesh details three factors of property ownership that we believe contributed to the establishment of property ownership throughout history: (i) a scarcity of resources, (ii) possession, as in control over and physical proximity to the property and (iii), the logically entailed physical, tangible nature of the property(as follows from (i) and (ii)). Factor (i) would be irrelevant if the number of resources were unlimited, entailing no need for exclusive (ii) possession of the object. Consequently, factor (iii) neednt logically follow from the first two. Essentially, a (i) scarcity of resources and (ii) lead to deprivation as a necessary factor of theft. Indeed, (iii) prescribes that at least (ii) even be at issue in the first place for theft to occur. Manesh implements these terms into the following example: A file-sharer, young Lester, walks into the music store. He sees a CD he likes. The disc is a physical object (physicality). Its location, in the store, and its proximity to the storekeeper, make its ownership unambiguous (possession). To steal the disc, Lester must touch the physical object and take it into his possession (physicality; possession). And when he removes it, he can see that its place on the shelf is empty; the storekeeper has one less disc (scarcity). Lester considers stealing the disc, but quickly decides that stealing is immoral.

Intrinsic Nature of Theft vs. Extrinsic Nature of Infringement (Section III)

Why did Lester conclude that it was immoral to steal the item? Because it would deprive the owner of what was rightfully his. Alas, deprivation is a necessary

The Amorality of Infringement- Christou, Rhodes, Sanders - June 2011

property of theft and explains why most dictionaries define the term in such way [5]. To be sure, the term theft has a larger magnitude to its tone than does infringement, and thus is why copyright holders equivocate the terms as if stealing a Honda Accord is at all similar to reproducing digital data that when interpreted by software plays out as Justin Biebers Baby or Lady Gagas Poker Face. Both American law and the Supreme Court, however, rightly recognize the difference [6]. We then find it curious as to why Hsiao and others oversimplify the pre-institutional notion of thefts immorality as just being taking whats not rightfully yours. Taken (Section IV)
The argument here is that since the artist/author still retains his own electronic copy of his work, illegally downloading it doesnt count as theft. This is sorely mistaken. Theft simply refers to the act of taking what is not rightfully yours; whether or not the owner still retains what was stolen is an incidental question. - Hsiao

Indeed, whats not rightfully mine is essentially denoted by what is rightfully someone elses. If this were not the case, taking the book After Virtue from a book store would be equally reprehensible as taking a leaf you found on the ground. Its then misleading to define the term in such a way, as theft could not occur unless there was another party involved that has possession (ii) of the item. Thus to argue that the owners retention of the item is incidental is equivalent to saying whether there is an owner at all or not is incidental (which is absurd as explained above). It would have been more intelligible, then, for Hsiao to define the term as taking what rightly belongs to someone else. Even so, the term taking implies an absence (which itself would be irrelevant without scarcity(i)) , insofar as there is an absence to be noted, else the word taking would have absolutely no significance in the non digital world (would you notice if I stole a television of which you had a virtually infinite quantity?[8]). Furthermore, (ii) isnt even

The Amorality of Infringement- Christou, Rhodes, Sanders - June 2011

necessary for one to take something, else we again would have absurdities like taking a leaf (not rightfully mine) off the ground is immoral. For nothing is rightfully ones before ownership occurs, regardless of what belongs to someone else (a book) or what belongs to no one else (a leaf on pre-owned land). Scarcity (Section V) Now we could accurately say that the two acts (theft and downloading) infringe on one's rights to own and distribute the physical or digital property. However, the essence of physical items is such that they are perishable (iii); scarce (i) and are composed of substances which are scarce and costly as well. That is not the essence of digital items. They are not scarce, not perishable, and are not composed of substances which are costly. The intrinsic loss, is clearly evident in the nature of physical property. That's not the case for digital items, which is a non-intrinsic loss because it retains its copy, is virtually unlimited (contra (i)), and is not made of any scarce substances that are lost once the thing has been taken. This is precisely why human moral intuition leads so many to say that it is not immoral.

Concerns (Section VI)

If someone breaks into my personal computer and copies my personal information but does not use it, his action still counts as theft even though there was no monetary gain nor did I lose my information. From this, we see that scarcity is not required for an act to count as theft. Similarly, if I illegally download a copy of After Virtue, my action is immoral because I took what was not rightfully mine. Due to the nature of digital content, the owner still retains his copy, but that is largely irrelevant to the morality of the act. Unlike physical things, such as cars or chairs, music and literature are abstract in nature, such that we steal them by obtaining a representative copy through immoral means. Henceforth, the only difference between physically stealing a book and illegally downloading the same book is the means

The Amorality of Infringement- Christou, Rhodes, Sanders - June 2011

through which the information is represented, a difference which is not morally relevant. Thus by analogy, if the former is wrong, then so is the latter.

While this may seem logical prima facie, the fact of the matter is that theft as an institutional moral principle is based on intentional deprivation from the owner (again, simply look at how dictionaries define the term). For theft to occur, property ownership must exist, and, as argued, there are three conditions under which property ownership arose ((i) scarcity,(ii) control over the object,(iii) tangibility). It is the deprivation of (ii) that leads to theft. While the exact nature of property ownership was expanded as ownership extended into a digital capacity, the nature of theft did not change. For since the very nature of the digital realm is such that (i) and (iii) are non-factors, (ii) is the only aspect that digital property ownership and physical property ownership have in common. As argued in section (IV), absence is a necessary result of taking, meaning that the rightful owner is deprived of (ii), Since downloading is reproduction of information, the information is retained and as such this deprivation does not occur. Consequently, neither does theft. Hsiao essentially violates his own definition. Observe the following sentence: from above If someone breaks into my personal computer and copies my personal
information

Now if, as Hsiao has said, taking whats not rightfully yours is the condition for theft, why does he use the word copies in the sentence above? Because copying and taking are two different things. If one were to break into your personal computer and copy your personal information would not be theft but an invasion of privacy. Now whether or not invasion of privacy is immoral extends beyond our aims here, but ultimately the analogy proves irrelevant. To take pictures of a celebrity without their permission

The Amorality of Infringement- Christou, Rhodes, Sanders - June 2011

would be to obtain physical representation of their characteristics without permission, not to take their physical representation. If one had a device capable of switching their appearance with that of another and used it on the same celebrity, theft would occur because the individual removes the physical properties belonging to that individual (an absence is there on the owners part!). So alas, to go into a store with a portable copying machine and copy After Virtue in its entirety would violate the owners exclusive right to reproduce the text (copyright), but it would not be taking the text. Again, to take something implies an absence; which thus implies that something must be capable of being scarce. Unless you delete the personal information off the owners computer, no taking has occurred because there is no absence. As noted, we fully accept the notion that re-distributing copyrighted digital items is unlawful. And while the legality of downloading(reproducing) said items is not conclusive at all [7], we disagree with those who would argue that either redistribution or downloading of copyrighted items is immoral on that basis. For this is to assume that what the government prescribes for us to do necessarily reflects an established moral principle, which isnt the argument being made (by Hsiao). To infringe on ones exclusive right to distribute an item (copyright) is not a moral violation, but a legal one. Conclusions Theft is a pre-institutional moral principle founded from the original parameters for property ownership (i), (ii), (iii). These parameters coincide to make intentional deprivation of property a necessary aspect of theft. As downloading in itself does not deprive the owner of the object, it is not theft. Infringement via copyright violation may well be a legal violation, but it is not an immoral one. Thus as downloading the material is neither morally praiseworthy nor morally reprehensible, it is an amoral action.

The Amorality of Infringement- Christou, Rhodes, Sanders - June 2011

Endnotes
[1] PEW INTERNET & AMERICAN LIFE PROJECT, DOWNLOADING FREE MUSHC: HNTERNET MUSHC LOVERS DONT TIHNK HTS STEALHNG 2 (2000), http://www.pewinternet.org/pdfs/PIP_Online_Music_Report2.pdf [2] See, e.g., Jon Healey & Jeff Leeds, Tone Deaf to a Moral Dilemma?: Millions Download Songs Hllegally but dont Feel Guilty, L.A. TIMES, Sept. 2, 2003, at A1 [3]Id, [4] Accessed June 9, 2011, Hsiao,Timothy The Ethics of Illegal Downloading http://www.cfmpl.org/blog/2011/06/06/the-ethics-of-illegal-downloading/ [5] Merriam Webster defines theft as : the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it [6] In the case of copyright infringement the province guaranteed to the copyright holder by copyright law is invaded, i.e. exclusive rights, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held. Dowling v. United States (1985), 473 U.S. 207, pp. 217218. [7] When is Downloading Music on the Internet Illegal? http://www.webopedia.com/DidYouKnow/Internet/2004/music_downloading.asp