One of the blogs I most enjoy reading is Jayarava's Raves. Jayarava is one of the few Buddhist bloggers with genuine scholarly chops. His dissections of Buddhist source texts are always meticulous, extremely knowledgeable, often highly perceptive, and sometimes extremely relevant to the questions modern Buddhists are grappling with. For example, see his short post on the case of Bhadda. He has substance and originality, which is something that's in sorely short supply in the mostly commentarial blogosphere.
But this time he put his foot in it, and on a topic I consider to be of so much importance that it deserves to be addressed. In Taking the Not-given, his posting about Buddhist Torrents, a site containing links to copies of books about Buddhism, he argues that the Second Precept—"I undertake the training of not taking that which is not given"—unequivocally prohibits copying intellectual property:
Let me just be quite clear here. Copying is theft. All those pirated books, DVDs, and CDs are stolen. There is no grey area here.
In the remainder of his post and the subsequent comments, Jayarava appears to be blissfully unaware of the massive—and massively important—controversy about what, exactly, constitutes intellectual property: can it even be a "thing" that can be given or withheld? In fact, he is even mistaken about the relatively basic notion of fair use—contrary to his claim, fair use does most certainly apply to commercial use as well, not only not-for-profit use. Much criticism, commentary, parody, and scholarship is commercial.
To claim that copying is theft...no gray area is simply wrong. There is a tremendous gray area there, with a broad range of entirely defensible positions.
To take that which is not given presupposes a "that" which is held as property by someone. This is perfectly reasonable when applied to physical objects. If I have a loaf of bread and you take it, then you have a loaf of bread and I have none. When applied to the concept of intellectual property, it is less clear: if you have a sutra and I make a copy of it, then both of us have a sutra. Not the same outcome at all. To be sure, there may be other consequences, some of them positive, others negative, but the immediate outcomes are clearly different.
The concept of intellectual property is a relatively recent innovation. It is a child of the Industrial Revolution. It started to emerge some time during the 17th century, and was crystallized into copyright and patent laws some time in the 18th. For most of that time, information artifacts were still bound to physical objects. Only the information revolution, which made copying virtually cost-free, truly changed the nature of the problem.
Therefore, it is a bit of a stretch to take a precept that could only have applied to physical property, and apply it unthinkingly to the new and entirely invented notion of intellectual property.
We live in a world of symbolic property. There are concrete artifacts, such as this computer I'm typing on. Most of my property is symbolic in nature, however. It is represented by bits in a bank's computer, and a paper in the bank's vault—my bank account, my mortgage, and the deed to my apartment, which is itself a symbol: a share in the housing cooperative which owns the building in which I reside. Nevertheless, the relationship between these artifacts and physical objects I can or could own is relatively unambiguous. It's not very likely that someone will challenge my right to live in my apartment because it's derived from a chain of symbols based on a piece of paper.
Not so with intellectual property. It does not apply to any concrete artifact. It is a monopoly granted to an individual, giving the right to restrict the supply of a "work." What that "work" is, is also rather poorly defined. Almost nothing is entirely original; it all builds on something else. Yet a copyrightable work must meet a threshold of originality that, ultimately, is defined on a case-by-case basis: that thing meets it, this one doesn't. Like pornography, I suppose.
That is a concept that is pretty far removed from the notion of actual, physical property.
It is particularly problematic, I think, when applied to something like the Buddhadharma. I am no scholar of Buddhist history, but the impression I get is that spreading the Dharma has been considered a meritorious act. Monks copying, distributing, and translating sutras are spoken of very highly. The kings and emperors locking them away, not so much. Looked at this way, the one copyrighting a Dharma book, and thereby attempting to limit its readership, would be the one in the wrong. I would be very interested to hear what Jayarava could come up with, should he dive into his sources looking for case studies that did deal with what we would now call intellectual property.
So how does this apply to the precept of not taking that which is not given?
Suppose you came across a man who claimed that the glitter of the sun on the sea is his property, and attempted to charge you for looking at it, or chase you away if you refused to pay. Most people would consider him insane: the glitter of the sun on the sea is clearly not something to which anyone can claim ownership. Nor do I believe that the precepts provide an unambiguous answer about how to behave in this situation: perhaps sometimes it might be better to humor him, but at other times it might be kinder to try to get him to snap out of that particularly painful delusion. Buddhism can't be about never doing anything someone might object to. That would turn you into a doormat.
Now, if a Buddhist sincerely believes that intellectual property is no more a "thing" that can be given or withheld than the glitter of the sun on the sea, then from his point of view, the creator so jealously guarding his right to his creations is as barking mad as the guy charging for viewing the glitter of the sun on water.
Admittedly, intellectual property is rather murkier than sunlight on water. There are many at least somewhat defensible positions in the debate, ranging from complete abolition of the idea to rights inheritable in perpetuity.
Gray area, in other words.
I believe the notion of intellectual property as we currently have it is deeply wrong-headed. However, many of our social and legal structures operate under the assumption that it works the way it works. That means that many people who rely on royalties for their livelihood would be harmed if it was abolished all at once. I believe these structures must be reformed, and we must either go back to something like the idea of intellectual property as it was originally envisioned—or, even better, a whole new system where we get rid of it altogether, but nevertheless create incentives for innovators to innovate and creators to create.
In the meantime, anything we do is problematic. If we follow the rules of intellectual property scrupulously, we contribute to maintaining the poisonous system of copyrights and patents that stifles so much innovation today, and may deprive the world of some positive contribution we daren't make because it builds so much on someone else's work that it would fall into the morass of "derivative works." If we don't, we risk damaging a genuine innovator's livelihood.
I'm a software developer by vocation, and my employer does not release the code I write under open source licenses, despite my efforts to steer things in that direction. I'm also a writer and photographer in my spare time. This I do make available under the most permissive Creative Commons license available. And I do not pirate. I try to steer a course in these rocky waters somehow, but certainly don't have an unambiguous, one-size-fits all answer to suite all dilemmas.
Furthermore, I believe that the Buddhist precepts are pretty damn useless as guides to politics. If someone claims that the copyleft movement is un-Buddhist, I conclude that he has his head up his ass.
And to baldly claim that "copying is stealing, no gray area," for Buddhists or ordinary mortals, and that advocates of intellectual property reform "are not people who are creators," or "are already successful and therefore have nothing to lose," or "subvert the whole of Buddhist morality," or "try to wiggle out of keeping precepts by trotting out rationalisations," or "spout anti-capitalist ideology and allow it to cloud the issue," or are "not really Buddhists," or are "punters setting the value of my life's work at zero," or "people who's [sic] only talent is to use ctrl-c to acquire and accumulate files" ticks pretty much all the boxes in Jayarava's own comment policy: false, harsh, slanderous, and useless.
Not your brightest moment, Jayarava.