Please smile, Brisbane, Australia, 2010
Since Jayarava appears to have banned me from commenting on his blog, and also indicated that he will be ending the discussion on intellectual property and the Second Precept, I'll post my thoughts here instead. A few interesting points were raised, and as stated, I think this is a topic that's important and tricky enough that it needs discussion.
First, I think Johannes made a very valuable contribution to the discussion by bringing up the parallel of taking a drink of water from a stream. He did it to point out that there is also "taking" that does not deprive anyone (noticeably) of anything, as a counterpoint to the argument that copying should not be regarded as taking because copying does not deprive the person being copied from of the artifact being copied. In this sense, copying is very much like taking a drink from a stream.
Thing is, I think you'd be very hard-pressed to find anyone who would consider taking a drink from a stream as ethically problematic in any way. I'm pretty sure the Buddha—or whoever came up with the precepts—didn't have in mind a monk who stops to drink at a stream without asking permission of the stream's owner.
On the other hand, wars are being fought over water rights. These arise when someone upstream removes so much water from the stream that people downstream are impacted. Clearly, the ethically charged action is here: depriving the people downstream of the water they would need.
This really is very similar to copying intellectual property. In fact, it's kind of striking that the metaphor of the river pops up pretty often, at least in Zen.
For forty years I've been selling waterCopying is not stealing, because the one being copied from is not deprived of the object being copied. Therefore, the second precept cannot automatically apply. Some other precepts might, naturally. For example, Jayarava described someone copying his entire mantra website and presenting it as his own work. That is clearly unacceptable, because the person is lying about where he got it. There's a precept that specifically prohibits that already.
By the bank of a river,
My labors have been wholly without merit.
—Harada Daiun Sogaku
Jayarava's main contention in the comments appears to be that the discussion of ownership is a red herring and irrelevant to the discussion of the precept against taking that which is not given. I find this a pretty illogical position to take. Taking automatically implies a taker, an object, and a possessor. It is simply not possible to discuss it without considering these other three concepts. If there is disagreement about these definitions, there is bound to be disagreement about the applicability of a rule of conduct governing taking. Rather ironically, Jayarava is hectoring his readers about demanding that others abide by their views of what constitutes 'ownership,' while simultaneously ruling out any discussion of the concepts—thereby imposing his personal views of the definitions on them.
Jayarava also appears to entirely misunderstand what is being said about these definitions. He goes on about "this awful post-modern denial of ownership" or "Marxist critique of ownership." This is a pretty big misrepresentation of the position I—and, I think, most of the others criticizing his equating of copying with stealing—are arguing. We are not critiquing the notion of ownership per se. What we are critiquing is the notion of intellectual property: the conceit that an idea can even be an object of ownership. There is nothing recognizably Marxist about this critique; libertarian would probably be closer to the mark, since many libertarians consider intellectual property to be a government-imposed artificial monopoly and restriction on the natural rights of people. I don't see it quite that way, but still.
Finally, there is one concept that is entirely central to Buddhist ethics completely missing from the discussion: namely, intent. Jayarava only alludes to it tangentially, by assuming that the motivation of anyone copying something is acquisitiveness. Yet Buddhist ethics is entirely intentionalist. This remains, in fact, one of the central disagreements between Buddhists and Jains, and has been since the early days of Buddhism.
We don't live in a vacuum. Things are connected. Copying something always involves more people than the copier and the person being copied from, which brings in complex motivations and chains of cause and effect. Nor is the claim of the person being copied from to the artifact being copied always equally strong. If I were to grab Shakespeare's Collected Works from Gutenberg.org, went through them very carefully to remove any typos, missing characters and poor formatting, added top-notch tables of content and what have you, what would result would still be Shakespeare's work, not mine. I might still demand that nobody makes a copy of it, but my right to make that demand would be highly dubious.
That's why intention is so crucial to the ethical reasoning. That of the copier, and the copy-ee. Why is someone making a copy from, say Dharma Torrents? Is acquisitiveness the only possible motive? I don't think so.
This is a gray area. Life is full of them. Ethical exegesis that leads to universal black-and-white prescriptions for all situations is highly suspect to start with. Each of us has to work out how to deal with these gray areas. It can be useful to listen to how others have worked them out in their lives, but to demand that everyone else follows the same prescription in all circumstances is presumptious in the extreme. As Jayarava himself puts it: "The precepts are training principles that you take on in order to modify your own character, not to beat up other people. ... What I don't think is admirable, on principle, is that you would expect other people to live by your standards and rules."
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