Legal and Moral Rights in IP

Europe emphasizes the moral rights of the author, but the US downplays them. The US is more inclined to separate law and morality when possible, perhaps in an effort to make sense of one of our greatest shames: if law and morality are separate, we can make sense of the claim “Slavery is universally and always was wrong, but it was legal at one point though it is illegal now.” Whatever the cause, we seem to like the idea of law and morality as distinct (it might also help us be more comfortable with issues in abortion, death penalty, gay rights, etc. etc. where people have strong views about the morality of an issue but need to reconcile those feelings with constitutionally recognized procedural and substantive rights). In my area, this means that intellectual property is not more special or important than any other chunk of property one might own.

My generation has struggled, at least since the days of Napster, to really accept that “Downloading media [without paying] is just like stealing it off the shelf.” Many of us would never consider shoplifting, but felt completely morally comfortable making a lot of use of a lot of P2P sharing. How can we explain the phenomenon of a generation that would never steal the physical, but cannot comprehend the notion of stealing the intangible?

Part of the answer has to do with how we understand the digital world. Perhaps, for many of us, Cyberspace is the frontier of the 21st century. Like the discoverers of new lands throughout history, as soon as we get to a new place we start claiming whatever is there. Ownership only resonates with us if someone is apparently going to enforce their ownership. We don’t wander into others’ houses and use their stuff because they’ll get mad at us (and take some kind of action, legal or otherwise, against us)! But we don’t feel nearly so bad wandering into abandoned places (except for safety concerns of dilapidated buildings) and breaking things, because although someone may own the facility, no one will enforce their ownership against us.

What does this have to do with moral rights of owners? Moral rights do not need enforcement to be wrong. If it is immoral to kill someone, it is immoral whether or not a killer is caught or punished. Some hold the view that “Laws are threats backed by force,” that is, that laws are largely dependent on [potential] enforcement. Perhaps a contributing factor for why my generation continually rejects the feeling that digital piracy is equivalent to physical theft is the feeling of unenforceability, which undermines its legal force in a society in which law and morality are distanced.

However, this entire view might face a fatal problem in admitting that Europe has substantial amounts of piracy despite the legal recognition of the moral rights of artists and authors. Perhaps the European view of morality is substantially different in ways that make my thoughts here irrelevant.

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