Hollywood Double Standards: Ethics of Copyright


Hollywood Double Standards: Ethics of Copyright

Russell Coker has a post on Roman Polanski and, incidentally some double standards of Hollywood.  While I don’t quite follow what he’s saying (sorry Russell) he does touch off a couple of things I’ve been thinking of for a while, and this was an opportunity to note some thoughts and sketch some arguments.  These are just sketches and are not concluded views so post corrections or criticisms in the comments.

The main observation is whether, if something is a crime, then one has an ethical obligation to not do it (not forming a lynch mob was Russell’s example).  I don’t think that is the right syllogism.   There is an ethical obligation to do what’s right/not do what’s wrong and that is independent of whether the thing is a crime or not.  So, for example, as I understand it, it was a legal obligation in the former East Germany to denounce people to the Stasi, but it would be wrong to betray your friends/family (well, thirty years ago people would think this, but liberal democracy ain’t what it used to be).  In this case, if the law is contrary to what is right, then the ethical obligation is to disobey the law.   This  is the response to what is called the Nuremburg defence.  At the Nuremberg war crimes tribunals defendants argued that, even though what they were doing was [objectively] heinous, they were following an order/complying with the law of the land at the time, and therefore were not guilty.    This would exclude from punishment any immoral behaviour if the law sanctioned or permitted (or obliged) it.  This principle (I suspect) is at the basis of civil disobedience, where people deliberately disobey a bad law

While (one would hope that) there is a large overlap between what is legal and what is ethical, the two don’t follow each other (ie something can be illegal and moral or immoral and legal).  In theory, this observation threatens to open something of a can of worms in that people might argue (eg) that all laws are bad or that morals are individual (subjectivism/relativism).   Surely, the argument goes, that will just result in a free-for-all as we all disregard the law and ultimately descend into anarchy!   As a matter of practice this seems to not be the case. Civil disobedience, even organised disobedience has not led to the end of society as we know it.

In regards to copyright infringement – copyright infringement is against the law, so, prima facie, you shouldn’t do it.  That said, a strict adherence to copyright law would make modern life impossible/intolerable (do you save or forward email? videotape your children while copyrighted material is playing the background?), so it is hard to believe that infringement of itself would be seen as morally wrong.  If that was the case the whole country would be immoral, and that is counterfactual.   I think this is different in kind to the de minimus nature of the infringement.  I can’t see anyone (maybe copyright ideologues might, but even then) arguing that saving or backing up an email without a licence is morally wrong, but I could envisage people arguing that ripping someone else’s piece of paper (ie criminal damage) would be morally wrong, -ie one “ought not” do it even if no sanction is justified in particular cases.

I think it is fair to say that the vast majority of people do not see copyright infringement as a moral or an ethical issue.  To them it is purely a legal one (like, perhaps the road rules, which individuals seem to consider themselves free to disobey from time to time).  Until such time as the general populace do, infringement will remain widespread.  While copyright ideologues have been arguing (and engaging in extensive propaganda campaigns) the morality of copyright for some time now, the public don’t seem to buy it.   Ideologues throughout history have found, that the law does not lead morality (- eg  apartheid laws, for example, did not lead morality in South Africa after their passage in 1948).   Rather, it is the other way around.  If a law is sufficiently out of touch with morality it will lead either to the law being ignored and unenforced (anti-abortion or blasphemy laws have gone this way in a lot of places before being repealed) or to being enforced to no good effect.  This, in turn leads to enforcement with increasing harshness -  still to no good effect.  This lack of effect creates a feedback loop towards harshness in enforcement until such time as the whole of society gets fed up with wasting the lives of those prosecuted and the public resources involved in that prosecution and gives up on the idea (eg: prohibition in the US -  Lessig has recently been using prohibition as an example in his public lectures), although they may replace the idea by something more in touch (eg minimum drinking ages).  As an aside, being out of touch is not the same as being contrary to what is right.

The evolution of copyright law will be an interesting one to watch.  Assuming that copyright law is, as a matter of fact, disconnected from people’s real morality it is different to the examples given.  The examples above are largely moral (abortion, blasphemy) or political issues (or both – apartheid), rather than commercial ones (although there are laws driven by commercial considerations which have not survived, such as trading concessions granted to the British East India Company etc) .   As such, the support for those laws was not driven by profit.  It also means that in general copyright laws are unlikely to be contrary to what is right (although particular aspects might).  The profit motive inherent in copyright law may be its saving grace.  Time will tell.

2 Responses to “Hollywood Double Standards: Ethics of Copyright”


  1. 1 Russell Coker 17 February 2010 at 8:59 pm

    Firstly, if I was to advocate lynching Roman (which I don’t) then I might be breaching the Australian laws regarding incitement to violence – as I haven’t planned to advocate such things I haven’t bothered getting advice as to the legality of it. There are also few cases of bloggers being prosecuted for such things (and none that I’ve heard of in Australia).

    I agree that you can’t make a general moral principle of obeying all laws. However the film industry is trying to push the “downloading movies is a crime and you are a bad person if you do it” line. My response is that raping children is a crime and you are a bad person if you support Roman Polanski.

    Nuremberg is not relevant to this discussion, stealing cars, downloading movies, and petitioning for the release of a prisoner don’t compare to the crimes of WW2.

    http://etbe.coker.com.au/2007/04/09/a-strange-interpretation-of-the-us-constitution-about-copyright/

    If the US constitution was to be interpreted in a reasonable way then IMHO there would be no restriction on filming someone while copyright music is playing in the background. Copyright was not supposed to be about protecting corporations, it was supposed to be about giving a reasonable incentive “To promote the progress of science and useful arts”.

  2. 2 brendanscott 17 February 2010 at 10:06 pm

    Sorry Russell

    I wasn’t meaning to comment on your article, other than noting it was a starting point for a train of thought. I was mentioning Nuremberg as an example of the fact that sometimes one is ethically required to act contrary to law (in this case contrary to the laws in Germany at the time).

    I am a bit gobsmacked by the attitude towards Roman Polanski. I don’t accept that film makers should be above (or below) the law.

    Following on from your article, I guess a corollary of the post above though is that people wouldn’t steal a car because stealing is wrong. However, having a law prohibiting infringement does not by itself make it “wrong” – at least not in the same sense.

    See the last couple of sections of:
    http://131.193.153.231/www/issues/issue6_9/scott/

    By emphasising a rhetoric of rights copyright holders are not serving their best interests in the long term. By analogy to laws relating to property, our system of property works not through vigilant compliance and self help programs, but through tacit acceptance by all players of the mutual benefits involved through respecting property rights. Property survives and prospers as a regulatory system because those who do not respect property are a miniscule minority. If everyone – or even only 10% of the population – woke up tomorrow morning and decided to disregard those rights, there is nothing anyone could do to stop them. No amount of enforcement action would be to any avail and, in the (not so) long term, all of society’s participants would suffer.


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