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.
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