the amorality of infringement

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.

http://stlr.stanford.edu/pdf/Manesh-immorality.pdf

http://www.cfmpl.org/


Property Ownership Throughout the Ages (Section II)

We think it’s 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) needn’t 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


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 Bieber’s Baby or Lady Gaga’s 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 theft’s immorality as just being „taking what’s 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 doesn’t 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, what’s „not rightfully mine’ is essentially denoted by what is rightfully

someone else’s. 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. It’s

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 owner’s 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) isn’t even


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 one’s 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


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 what’s 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


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 owner’s 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 owner’s 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 re-

distribution 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 isn’t the argument being made (by Hsiao). To

infringe on one’s 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.


Endnotes [1] PEW INTERNET & AMERICAN LIFE PROJECT, DOWNLOADING FREE MUSHC: HNTERNET MUSHC LOVERS DON’T TIHNK

HT’S 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 don’t 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. 217–218.

[7] “When is Downloading Music on the Internet Illegal?” http://www.webopedia.com/DidYouKnow/Internet/2004/music_downloading.asp

http://www.cfmpl.org/blog/2011/06/06/the-ethics-of-illegal-downloading/

http://www.merriam-webster.com/dictionary/theft

the amorality of infringement

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