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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Viewing People as Isolated in the Age of Interconnection

One of the prevailing views of ownership is “not a contract between myself and my property, but between myself and the world ABOUT my property.” The point of owning something is for everyone else to respect my relationship with a thing- be it a pen, a house, or trademark. Why, then, do we frequently fail to accept that piracy is a wanton and willful disrespect of an artist’s relationship with her property?

Perhaps we misunderstand property and ownership at the outset. As I have said before, a common rejection of copyright is that “copying is not theft, because it does not deprive the owner of their thing.” This apparently rests on the notion that to own something has weight insofar as it means I can have it. The competing view is that ownership has weight insofar as no one else can have what I have. This is the difference between understanding property as a contract with a widget vs. understanding property as a contract with the world about my widget.

Fundamentally, I trace this misunderstanding to a generation that internalized all too well the elementary school maxim to mind one’s own business. I think it likely that we became too adept at seeing the world in terms of single individuals, isolated and independent, alone in the world. Seeing the world like this, it makes more sense that an act cannot be wrong if it does not directly disturb others, or does not directly interact with them. I spoke to the broad implications of this kind of view in my post “A Head in the Sand is not an Ideal Source of Rights.” Applied here, attempting to see property claims as irrelevant to anyone neither an owner nor a piece of property can cause confusion over why copying might infringe on someone’s ownership. I think our views of piracy and copyright would be rather different if our relationship (or our view of our relationship) with the artist were closer (or felt closer). I wonder: are devoted fans of a band, game studio, actor, etc. less likely to pirate the works of their idols? If so, perhaps a good way to enforce copyright is to build a strong sense of community so that consumers feel that they are helping themselves and each other by abiding copyright, rather than taking free rides through piracy.