Saturday, December 15, 2007

The Morality of Unauthorized Copying

To say that copyright does not protect any natural right is not to say that it lacks any moral justification. We naturally frown on unauthorized and misattributed copying. A singer who claims authorship of a song written by another commits a sort of fraud on his listeners. Most of the time, that sort of fraud does not rise to the level of materiality, and thus does not justify litigation. We typically do not rely to any substantial detriment on the accuracy of an expressive work's description, after all. If we like a work, we like it, regardless of its source. Misdescriptions of authorship can trick us into buying the wrong expressions, however. You might, for instance, buy tickets to a Djelimady Tounkara concert only to find another, lesser guitarist on stage. That would naturally rouse your indignation.

We don't need copyrights to vindicate that sort of wrong, however; common law and various state and federal statutes already afford many remedies for it. Consumers of misleadingly labeled goods or services can plead fraud under tort law and breach or promissory estoppel under contract law. The licensee of a materially misdescribed work would enjoy a strong contract law defense, one voiding any agreement alleged by the licensor publisher. An author who sees her work sold under another's name would, as a wronged competitor, have standing to sue for unfair competition under state or federal law. The publisher of such an author might likewise enjoy legal and equitable remedies for passing off. The Federal Trade Commission and its many state counterparts can protect consumers and competitors of falsely labeled expressive works, while various federal and state executive officers can fight such wrongs with the criminal sanctions levied against the many guises of fraud.

Those legal tools give us ample ways to discourage materially harmful misdescriptions of expressive works. We don't need copyright to satisfy our moral intuitions on that front, and most people's condemnations against unauthorized copying don't go much beyond harmful lying. If you make an unauthorized copy of a CD and give it as a gift to your friend, for instance, do you feel guilty of committing a moral wrong? Probably not—even though you would probably thereby have committed copyright infringement. You can admit to breaking the law in such a case without admitting to violating a natural right. Thus does a good driver on an empty road speed with a clear conscience. We recognize copying limits, like speed limits, as legislation designed to maximize social utility, created by statute for presumptively good reasons and thus, unless manifestly inefficient or inequitable, enjoying some claim to our obedience. We follow such laws out of habit, conformism, or fear—not because they protect natural rights.

So go the moral intuitions of most folks. Authors, admittedly, sometimes express profound outrage that unauthorized copying, even when it gives credit where due, equates to theft. Their understandable pique does not, however, establish a natural copyright right. The non-rivalrousness of expressive works means that copying does not hinder the use or enjoyment of anyone's copy. A painter fully owns his canvas even if another photographs it without his permission, for instance. What authors care about in such instances is not the use and enjoyment of their works, but rather their lost copyright revenues.

Copyright can provide authors with revenue, a benefit that infringement threatens to reduce. Authors thus naturally feel disappointment and anger when their works suffer unauthorized use. But that hardly shows that copyright infringement violates a natural right. It only shows that authors, like almost everyone else, prefer more money to less. There can be no copyright infringement absent copyright protection. Only by circular reasoning, then, can the complaint that infringement reduces authors' revenues justify copyright.

[NB: The above text comes from chapter 1.5, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Please note that I will soon renumber it "Chapter 2," and adjust all subsequent chapters accordingly. You can find a PDF of the entire chapter, including footnotes, here. As always, I welcome your comments.]

[Crossposted to Intellectual Privilege and The Technology Liberation Front.]


Anonymous said...

Ah, dead on. I plan on purchasing the book. It looks spectacular so far.

Ran said...

I'd like to quibble a bit over your line of argument; you're showing a double standard when you argue that {copyright violation is O.K. because copyright violators are O.K. with doing it} but then reject {copyright violation is wrong because copyright holders are bothered by it} as a financially motivated argument. After all, copyright violators have their own reasons for deciding that their actions are O.K., and copyright holders are as capable of moral reasoning as the rest of us.

(Granted, this isn't a fatal flaw in your argument; but I think it's something to think about.)

Tom W. Bell said...

Shaun: Thanks for the encouraging words! I hope I get the darned thing finished and find a publisher, so you can follow through on your plans.

Ran: If I understand you, you are pointing out that infringers as well as copyright holders act self-interestedly. If infringers get a pass, then, so should copyright holders. So far as it goes, that's a fair point. But please recall that I am not here arguing that infringers act rightly. Rather, I'm observing that common moral intuitions about copying do not support the claim that copyrights equate to moral rights. I'm quite willing to concede that most folks think there is *something* wrong with infringement--especially those who suffer infringement. It's just doesn't rise to the level of a violation of a natural right. About *that* sort of wrong, we don't generally see widespread variation of opinion based on crass self-interest; almost everyone agrees about the rightness of respecting persons, (tangible) property, and promises.

Glen Whitman said...

I find appeals to moral intuition most persuasive when you can find some underlying rationale to the intuition (while admitting that most people won't have thought it through carefully). In this case, you might say that people naturally understand, on some level, that exclusive ownership makes most sense in the context of rivalrous consumption. As a result, their moral aversion to "theft" is weaker in situations where consumption is non-rivalrous. You could then test this hypothesis by asking whether moral aversion is similarly weak in other cases involving non-rivalrous consumption, such as uncrowded bridges and roads or below-capacity auditoriums.

SF said...

I must say my moral intuitions do not agree at all with your supposed "moral intuitions of most folks." Perhaps it's just because I know too many small-time professional musicians, and know how important CD sales are to their livelihood. The thought of costing them sales by copying their CDs horrifies me.

That is how my moral intuition works -- I will gladly copy stuff that is no longer available for sale, or copy a few tracks for someone who I think might be inspired to buy the full album. But I try to do nothing which will take money out of their pocket.

Anonymous said...

I make one copy for myself of a movie I rent and like (and isn't copy protected). It's not easily morally justifiable though. A rich person should never do it; she can afford to buy it. A poor person like me who never planned to buy the movie in any case can. So, in this case the poor person gets away with something. Finally!

Anonymous said...

"I plan on purchasing the book."

Purchase? Where can I download it for free? (Then I'll make some copies for my friends for Christmas.) You'll be famous if not so rich.

Tom W. Bell said...

Glen: If we can rely on thought-experiments (as do philosophers), I think your examples would tend to confirm my reading of the consensus view of the morality of unauthorized copying.

sf: I see your point and in fact act as you do. Yeah, believe it or not, I try to be very scrupulous about copyright infringement! So I'm starting to think that my analogy with breaking traffic laws is not quite fair to copyright. Better, I now think, would be an analogy with tax evasion. If you under-pay taxes, you reduce the amount of wealth available for lawmakers to redistribute to (at least in small part) the poor. So you could argue that tax evasion harms the poor. That is not to say it violates their natural rights, of course. But that effect on third parties makes tax evasion look more like copyright infringement than speeding does.

Rudolf: You can download the draft version, or at least those parts of it I've completed, at Enjoy!