Thursday, December 1, 2011

More on Copying, Stealing, and the Precepts

Please smile
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 water
By the bank of a river,
Ho, ho!
My labors have been wholly without merit.
—Harada Daiun Sogaku
Copying 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.

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, 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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  1. Look, I tried to point out that there are many gray areas, such as when the object copied, or taken is not a physical object. I also made thing even greyer by point out that a number of things are only barely 'owned' -- i.e. many people can come to the same insight about a topic in a way that is completely independent of one another. That's why in science there is a race to publish first, because everyone knows you ain't the only smart kid in the playground and you ain't got the exclusive ability to come out with the right answers.

    All the above was basically ignored or changed to 'how would I feel if I used somebody's ideas without asking'.

    I also stated that, for 'things' where taking or copying does not decrease the 'owner's' use of the damn thing (and any revenue) the issue is very much open, but I was ignored.

    I think the old man just got stuck on two things: (1) money, in the sense of loss of earning from illegal breach of copyright -- which is not a grey zone but it is only a small subset of the issue, and (2) the author's rights, which sometimes apply, and sometimes do not: one commenter is likely a lecturer in a college, and was whining about being asked to put up her lecture notes up for everyone to use. I work for a college and I know that any lecture note I might produce is the IP of the college and not mine, and so by the contract that binds the college and me. If the college does not want to acknowledge my work and lets everyone copy the notes and run with them, too bad. As I get paid I do not have a leg to stand on.

  2. The one aspect of copyright that I find gray is when someone is willing to pay a reasonable price for the work, but the work isn't available. Foreign TV shows, movies, out-of-print books etc. come to mind, as does DVD region coding.
    Of course, some intellectual right holders plan exactly on artificial scarcity to inflate prices. And then there's the length of the copyright or patent, and their constant extensions.
    Also, if a company, especially in another country, uses one of my photos without permission, I have virtually no recourse. On the other hand, large companies can go after individuals copying their property, because they have the means and the contacts. The penalty amounts levied against media companies misappropriating individual contributors works are fairly small, whereas media companies threaten individuals with huge penalties. Overall, the system's riddled with moral issues.
    Finally, there's the question of whether some information is so important, such a public good, that it should not enjoy copyright protection.

  3. @Federico -- Yeah, well, that discussion did go south fast. Not a whole lot of room for dissent there. That's a problem with blogs, actually; when you're commenting on someone's blog there's a massive power asymmetry—you're clearly in "someone else's" territory, and that someone else holds all the power. It's very tempting to just bin a dissenting comment instead of addressing it. It's even trickier when there are genuine trolls and spammers, if you have a policy of not tolerating them. One guy's troll is another guy's dissenter. I'm sure some of my binning decisions have been less than clear-cut too.

    And no, I don't think Jayarava handled that discussion very constructively. Pity, that.

  4. Glad you liked the parallel. No matter how different views you and Jayarava might have, it's a pity your last comments were binned - not only would it have been interesting to read them, controlling discussion like that is always a pity.

    By the way, all this discussion made me remember the excellent comic you had linked in your first blog entry, which I as a result actually re-read. Throughout the years there have been a few times that I've been in some heating debates on the net and it's true that they seldomly change anyone's mind. Last debate I had was possibly the first one at that actually - and I wasn't the one to change my mind. ;) Nevertheless, ending up in debates like that luckily happens very seldomly.

  5. On a sidenote, related to the right to use natural waters, here's an interesting piece of news:

  6. Petteri, I did notice you did make a number of good points in a bad way. The most clear is your the example of making copies of the sutras to save them form an order of destruction form the emperor. Was taking the not given? or is it that, once the author is dead, the sutras are for everyone to take? and what if they were for everyone to take from the get go, by design of the author? I think you could have shown that the idea

    copying == taking the not given

    is actually much more nuanced. By annoying the old dude the conversation stopped.

    Your homework is to study the concept of Ajki: to reach harmony with people so they do what you want.

    read this:

    It has much more real life insight, and far less bullshit that anyone who reads the books and preaches.

  7. What, and deprive him of the opportunity to practice sila? What kind of a monster do you take me for?

  8. Petteri, do not start with fancy buddhist terminology, I ain't buddhist and I don't care about it, I read your blog for the other stuff. The only sila I know is a bunch of mountains down south in the old country, with wolves and stuff.

    If the moster bit refers to the use of aiki (as opposed to wilfully depriving the old man of an opportunity to practice silat, or kuntao, or whatever) to get people to do what you want, well the issue is a big grey area...

  9. I was referring to the third paragraph of this.

    Yes, aiki is no less problematic than manipulation in general. I just got aiki'ed into a shoeshine I didn't want the other day and it wasn't very nice.

  10. I agree that copyright is very artificial law and not the same as stealing physical property.

    However copyright is issue when you consider:

    1. The moral responsibility to follow laws in general. Should we only follow laws that we think are reasonable or does the participation to social contract bind us. If copying is OK, not paying taxes might be as well.

    2. Does the intent of the creator matter? If somebody creates work in the intent of getting income from it, can we ignore that intent. Good analogy might be a very sturdy bridge. Somebody builds it in the intention of taking toll and making the living. If the bridge is not consumed by the use, we are not taking anything away from the builder, but we are going against his intention. Or actions are also changing the future actions of bridge builders and general behavior of the society.

    I propose a test that reveals your real moral stance:

    If the creator of the work would stay next to you when you are copying/pirating it and he/she could not intervene but could observe you doing it, would you do it? We can rationalize things away, but actual social contact might make all the difference.

  11. Interesting points.

    Point (1) is pretty clear IMO. As far as I'm concerned, there is no ethical imperative to follow unjust laws. Under some circumstances, there is even an ethical imperative to actively disobey them. This is known as civil disobedience, and there's a pretty broad consensus about that, I think, all across the political spectrum, even if there's disagreement about the specific circumstances in which it applies. One bunch thinks the Boston Tea Party was A-OK, another bunch swears by Rosa Parks.

    Point (2) is also pretty clear. Of course intent matters. However, it's not the only thing that matters. What if you're a doctor rushing to a heart attack patient on the other side of the bridge, and are all out of change?

    As to the thought experiment, that again is rather reductionist of the circumstances. As stated elsewhere, I don't pirate, so I wouldn't pirate in your hypothetical situation either. But circumstances might differ. If I believed the only effective way to oppose copyright was to pirate in full view of the chairman of the RIAA, then I might consider it.

    Also: what if the guy watching wasn't the creator, but merely the copyright holder? What if the copyright holder had acquired the copyright by inheriting it from someone who got it from the creator in a drunken game of poker?

    Gray area.

  12. In my view, examples like the heart attack patient aren't that relevant to the topic really. Someone's life is in jeopardy, so of course paying a toll is of secondary importance. But this has very little to do with intellectual property per se: even if you had to steal medicine from someone to help the heart attack patient, it would under most circumstances still be the right thing to do.

  13. Perhaps. I think the main problem is equating physical property with intellectual property. The bridge is physical property, and assuming it really is a private bridge, I don't think it's a very good analogy.