Filesharing: the debate part 1

I have been trying to decide whether to post Jack Marshall's responses in piecemeal, responding to each section, or in one large block with my responses after it. I think I have hit upon a compromise: I will post a link to his article so that it can be read in its entirety first, which I suggest you all do, and then I will break it up and respond to it here. That way, we avoid the confusion of having everything quoted twice and making the post much longer than necessary.

Jack's article appears here.

Here is my response, section by section:

Open Letter to a File Sharer
(12/15/2005)

A correspondent on the Ethics Scoreboard Forum who described himself as an ethicist referred the Scoreboard to his blogged arguments that file-sharing...acquiring copyrighted music over the internet without paying for it...was ethical. After reviewing the longer of two articles he referenced, the Scoreboard offers the following response:

Dear File-Sharer:

When I first read your post on the Forum, my written response was that I had yet to see an ethical analysis that supported file-sharing, and that I was eager to read your essay on the topic. Now that I have read your piece, I am absolutely convinced: I still haven't seen an ethical analysis that supported file-sharing. What you have provided is a self-serving and breath-takingly flawed argument that is not grounded in ethics, logic, research, facts, common sense, or even accurate observations.

[Before I expand on all this, I have to inject a comment. You referred to yourself in your message as "an ethicist." That's a bit of a stretch, don't you think? You are 20 years old, according to your blog, and presumably a student. There is no evidence that you teach ethics, have been published on the topic (other than your own blog), lecture on ethics or have ever been paid a penny to render an ethical analysis of anything. This doesn't affect the validity of your analysis...it is what it is...but honestly, referring to yourself as "an ethicist," which is a profession, is a bit like saying you're "a dog breeder" because your Golden Retriever had puppies. Misrepresenting yourself is never a good beginning to an ethics discussion.]

I won't spend long on this, since as you say it doesn't affect the validity of my analysis, but I think it is important to clarify for the sake of our mutual respect that I wasn't trying to misrepresent myself. I use the term 'ethicist' in the same sense as most dictionaries, i.e.

Source: The American Heritage® Dictionary of the English Language, Fourth Edition
Copyright © 2000 by Houghton Mifflin Company.
Published by Houghton Mifflin Company. All rights reserved.


Main Entry: eth·i·cist
Pronunciation: 'eth-&-s&st
Function: noun
: one who specializes in or is very concerned about ethics


Source: Merriam-Webster's Medical Dictionary, © 2002 Merriam-Webster, Inc.


ethicist

n : a philosopher who specializes in ethics [syn: ethician]

I use the term in the same sense I would use 'philosopher' to refer to people who have never been paid to lecture, speak, etc. I did not intend to refer to the profession, with regards to which I would say that the small number of ethicists who are able to sustain themselves financially on the sole basis of their ethics are very fortunate and to be applauded, in the same fashion that I would appreciate an artist who was able to sustain him or herself financially on the sole basis of his or her art. For those interested, although I am also and always a student, I am currently employed as the Winnipeg representative of a wine marketing company. See more about that at www.finewinesmanitoba.com

Your essay is entitled "The Ethics of File-Sharing," though a more accurate title would be, "The Excuses of a File-Sharer." You state at the beginning that that is indeed what you are, and frankly, it explains a lot. The essay is not a dispassionate and open-minded examination by someone inquiring into the ethical implications of a new behavioral phenomenon. It is a retroactive attempt at justification by someone who has been doing something wrong and fully intends to keep doing so without wanting to invest in the inconvenience of a squawking conscience. In other words, you begin with a personal bias and an interest in the outcome. It shows.

Again, I must respond not because I think it has any bearing on the topic at hand, but because I think it would better promote a good rational exchange if we can both maintain our respect for the other party. For the record, I am a recent file-sharer and formed my position on the ethics of the matter prior to engaging in the practice, which I also did not do before the Canadian courts had clarified the legality of the matter. The reason I have posted these ideas here is not because they are newly formed, but because I think many other people would benefit from the discussion of this very relevant topic. As I mentioned at the beginning of my first post, the reason I posted was because I found the position "I know it's wrong but I still do it" to be far too common and totally unacceptable.

I am certain that these first two points of yours were genuine mistakes given the limited information available to you, Jack, but in the future I think it would better behoove both of us to focus on the topic at hand instead of on the 'topicee' and hopefully we can thereby avoid having our rational discussion descend to an exchange of ad hominem attacks which are entirely irrelevant to the topic at hand. I think we can both agree that a true statement is true even if pronounced by the devil himself, and a false one false even if spoken by the wisest sage ever to walk the earth. Furthermore, I think we will be best capable of obtaining a synthesis of our positions into a stronger whole (either by me accepting yours, or by you accepting mine, or some combination of the above) if we can maintain a proper respect for each other both in our postings and in our own personal opinions because this will allow us to view the actual discussion at hand instead of colouring it with our own misconceptions of the other person. I have seen far too many discussions between rational, intelligent people collapse into name-calling and wild accusations which are not the least bit relevant or helpful to the discussion.

Your essay is divided into ten arguments for the ethical nature of file sharing, four "myths" and six "realities." I must admit that if I had not agreed to review your article, the first section, "Myth #1: File-sharing is stealing," would have provoked me to stop reading after the first paragraph.

File-sharing is obviously stealing, and the only way you "prove" that it isn't is by using a definition of stealing that has no moorings to reality:

"Before the digital age, stealing was cut and dried. If you took something from someone else that you had no right or legitimate reason to take, you were stealing. How could you verify if someone had stolen something from someone else? If the accused had the item and the owner of it did not, then it had been stolen. It was that simple. So when the digital world came around, what changed? The answer is nothing. This is still the way we can tell if something has been stolen. If the owner of the thing still has it, then it obviously hasn't been stolen.

This description has a teeth-jarring logical pot-hole: it ends up using "the way we tell if something has been stolen" as an element of the act itself. But this is not so. There are many, many situations in which something is stolen but the owner would not necessarily be able to tell that he had been robbed. The owner of well or a stream may never discover that someone is stealing his water: there is still water for his use, and the finite amount of the property is not known. A movie-goer who sneaks into a theater without paying for a ticket has stolen his viewing of the film, yet the film is still available to others and the theater owner may never be aware of the theft. Certainly the film's investors, the actors and the studio that made it won't, and they may have lost a portion of the unpaid ticket price...

If you persist in the position that "File-sharing is obviously stealing" then it will be difficult to have a rational debate since you have essentially defined filesharing to be unethical without considering what it actually is. Stealing as we typically observe it is a simple and obvious act where one person has property and another person takes it, thereby depriving them of it. By contrast, filesharing is copying of property, an act which functions in a totally different way. It is essential for you to even understand my position that we differentiate the idea of the 'stealingness'(in the sense that most people use it, the taking of physical property) of filesharing from the 'ethicalness' of filesharing(which may be an entirely different issue, and on which you still may have a good argument). This is the real issue, so let's not get hung up on terminology.

That said, I don't consider any of your examples to effectively support your position. If someone owns a well or a stream, assuming that they own the water in the well or stream, and someone takes that water, then they have stolen the water, and it is no longer there. They have not stolen the usage of the well or the usage of the stream. One might ask to clarify, is it theft if a person lowers a bucket into someone else's empty well and comes up with nothing, or if a person dips their bucket into someone else's stream and muddies the water but pulls their bucket out without taking any water? Clearly not. The person who lowers their bucket into an empty well may be trespassing, and the person who muddies their neighbour's stream may be vandalising, but if neither comes away with property that the owner now doesn't have, it isn't stealing as we would typically define it.

In the case of the unpaying movie-goer, by entering an establishment not his own without following the terms of that establishment, he is trespassing, not stealing. One might also argue that the theatre provided him a service by displaying the film, and was not paid for services rendered, which is the breaking of a service contract or agreement for services to be rendered. If the unpaying movie-goer had a fake ticket, then he was guilty of fraud. If he claimed he already had a ticket he was guilty of lying. All this things are unethical, but none of them is stealing.

We must also be careful not to become sidetracked on the issue of whether the owner is aware of the act or not. If I have a car out back and someone takes it but I don't notice, it has clearly already been stolen. This is not something I dispute. My claim is not with regards to our awareness of whether the stolen property is still present, but with regards to whether it is present at all. In this case, the car is definitely gone, and thus theft has occurred.

...In the case of file sharing, as it happens, there is a valid argument that the owner doesn't still have what was stolen, which was his right to dictate the terms under which the particular user (the file-sharer) could benefit from his creation. But whether it is the creation that is being stolen or the right to use it, it is still stealing.

This is also not a standard usage of the term 'stolen.' The typical legal and common term for someone's legal rights not being respected is 'infringement.' If the right to dictate these terms had been stolen, then future 'infringements' on the terms would not be considered illegal since there was no longer a right to dictate them(this right had been stolen). In reality, however, this is not the case. In the United States, for example, where filesharing is illegal, one individual can be prosecuted multiple times for downloading the same file on different computers, and can also be charged with downloading the same file again even if already charged previously for the same act.

One might ask, what if the owner is not given the right to dictate such terms by the laws of his particular jurisdiction? In that case, what exactly has occurred? You will note, of course, that my own position is that there is no inherent right to dictate terms on intellectual 'property' or ideas, although it may or may not be economically useful to provide such an opportunity to the residents of a jurisdiction.

Did you consider consulting a dictionary before putting into print your strange definition of stealing? Here's one legal dictionary's definition of "theft," which is the technical term for stealing:

theft n.: the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker's use (including potential sale).

I see nothing in this definition that says the owner must notice the property stolen is missing or not still have use of it himself.

Again, the noticing or not noticing is a red herring. As far as having use of the property goes, that would centre around what one means by 'convert.' If, for example, a Muslim converts to Atheism, they cannot still be a Muslim, or if ice is converted to water, it cannot still be ice. Typically one would thus interpret the above definition to mean that the owner has lost use of the property.

This definition accurately describes file-sharing. So does this one, from Merriam Webster:

theft n.: an unlawful taking of property

Is it stealing if you take my picture off the internet and use it in ads for file-sharing software without paying me or getting my permission? Absolutely, but I still have my boyish good looks. My image is my property no matter how many times it is duplicated and used this way, and taking it is theft. So much, therefore, for this argument of yours:

"...If the owner of the thing still has it, then it obviously hasn't been stolen. But what if someone else has it that didn't have it before? The answer is simple: they didn't steal it, they copied it. It's a completely different act. It may be unethical for other reasons we shall later discuss, but it is a different act from stealing."

Since of course 'unlawful' is included in Webster's definition this is a measure of legality rather than ethics, and by that definition filesharing would not be 'theft' in jurisdictions where it is legal. Which is entirely, of course, my point.

As far as your picture goes, I would of course reply that your picture has definitely not been stolen. The law would support me on this, as a person who did this would not be charged with stealing, but rather with a form of copyright infringement, depending on how the picture was used. Your picture is in fact an excellent example, since it is copied to every computer which views your website, although none of them 'steal' it from you. Your issue is not that it is copied, but the particular way in which it is. Clearly, when something is stolen we do not nitpick about how it was stolen in determining whether an unethical act has occurred. There is no right way to steal something, even if by some loophole the person cannot be prosecuted under the law.

In order to support your argument, you have simply devised a narrow definition of property that isn't used in this society...and that's how we define theft, by what we define as property. What you define as property is factually incorrect...

This is, again, my entire point. We define what property is, and as far as consistency goes, it would be inconsistent to define ideas and purely digital representations as property. We should more accurately define these things as services, which is what they really are since they take things that are already ours (our minds, our computers, etc.) and modify them in their configurations rather than adding anything to them. This is a service, just like getting your car modified from a less useful to a more useful state, like a mechanic does, or getting a pile of raw materials modified from a less useful to a more useful state, like a builder does. If a mechanic works for you for free, do you steal something from the person who taught him to fix cars? This makes no sense whatsoever.

...Continuing on from the last paragraph...

...This is clear from the way we view things other than file-sharing in society. For example, in architecture the vast majority of design elements are copied from other locations in history and in the present. Everything from the silverware you eat with to the furniture you sit in to the light bulbs you light your home with has been copied from somewhere. This is the mechanism by which good ideas are spread throughout society. And what about non-physical items, like ideas or methods? Every time you quote a famous person, or teach someone else something that was taught to you, or tell a story that was told to you, you are copying an idea. Again, this is the mechanism by which good ideas are spread, and it's an act totally unlike stealing...

Ah...so much misinformation, so little time! One can indeed ethically copy from great works of architecture because they are centuries old and the architects are long dead, but use the original design of a living architect and you will find yourself in court, because it's stealing. If you copy an original Valentino dress for your own use, it's also stealing: just try wearing it on "the red carpet." If an artist friend copies an abstract Bruce Gray painting for you to hang in your house, you've robbed artist Gray of the proceeds he would receive from a licensed copy or the original; you've robbed him. If you are choreographing a professional production of "Grease" and use Patricia Birch's choreography without her permission, you have stolen it, and she will get a court judgement against you for its value.

None of these are examples of stealing. These are all examples of copyright infringement, which is totally different. If our ideas were our property in the same sense that physical objects are, why does their ownership expire, and in many cases, do so before their author has done so? When you have owned a car for a given number of years can it suddenly cease to be your property? Not unless it was a rental, in which case it was never yours to begin with. The reason our governments typically define a brief period in which one person has the exclusive control over a particular idea is merely economic incentive. These economic incentives are not declarations of property. They are declarations of an exclusive right to provide certain services, which is my entire point. Clearly copyright infringement protection, as an economic incentive, is not an issue of ethics, but rather of legality. With regards to law, I am much more interested in our decision as to whether or not we should keep such economic incentives in place or remove them. With regards to ethics, however, the mere fact that our government has chosen to espouse something does not mean alternatives would be unethical if our governments chose to espouse them. This is in fact what I advocate: that our governments select an alternative method than these economic incentives to encourage innovation. All of this has everything to do with economics and nothing to do with ethics.

As for your light bulb example, you appear to be blissfully unaware of the concept of a patent, which legally establishes a property right in an original idea, an invention. For as long as a patent lasts, nobody can copy an originator's invention without permission or paying for the privilege, though people try. It's called stealing a patent...patent infringement. Similarly, your charming belief that intangible ideas are not property would be quite a surprise to the thousands of people who hold intellectual property rights, the drafters of the laws that protect their ideas, and the lawyers in the billion dollar intellectual property protection industry.

Patent infringement--correct. Stealing--incorrect. Different act. Patents are also economic incentives rather than reflections of ethical realities, and essentially establish an exclusive right to provide a service rather than a declaration of the ownership of property. Again, if patents reflected the existence of property, why would that exclusive right be able to expire when the holder of the patent has not? The answer is that patents are not proof of property, they are even more proof that we should consider digital representations and ideas as services rather than property. Again, however, these are economic rather than ethical questions. I might add that I myself am a possessor of significant intellectual 'property' and do not mind the economic incentives offered by my government which allows me exclusivity on performance of certain services. I just don't think I have any inherent right to those incentives, and think that our laws would be in better shape if they were more clear about the differences between services and property, with transfer of intangible ideas being clearly defined as a service rather than a transfer of property.

Now, you may say, as some have, that this shouldn't be, that ideas should not be property. And that is a perfectly respectable idea, except that the concept of property is defined by our society, not individuals. The native American tribes didn't believe that land was property. Some of the Hippies in the Sixties didn't believe anything (except maybe drugs) should be property: ever hear of Abby Hoffman's Steal This Book? You are certainly free to start a society in which ideas and music and art aren't property, or where turnips or LEGOS or cats aren't property, for that matter. In that society, these things can't be stolen. Go ahead, establish it, call it "File-sharinglandia;" see if anyone wants to live in it. Good luck to you. But while you're in this society, you are not free to live by definitions of property that are counter to practice, tradition, and law. File-sharing is stealing, and stealing is wrong. Your definition of stealing, in which file-sharing is something else, exists only in your mind.

If ethics are defined by our society's practice, than filesharing is clearly de facto ethical because of the large number of people who do it. Clearly a significant segment of our society does not agree that filesharing shouldn't be practiced, and as far as a land where filesharing is allowed, I don't call it "File-sharinglandia," I call it "Canada." Tradition is fairly useless to any rational person, since traditions can be very, very wrong. All that leaves is law, which is my main concern. I am concerned that our laws are not currently set up in a consistent, rigid fashion which reflects the opinions of people in society, which is free from self-contradiction, and which will be able to continue effectively in a changing world, namely, a largely digital one. What I advocate legally is to redefine the transfer of intangible ideas as services, and then implement our copyright and patent laws as economic incentive programs, which I believe is legally stronger and will prevent such possible pitfalls as a man being prosecuted for rotating his tires in the same fashion as his neighbour, or for having a doorknob which turns the same way. Clearly, this fundamental difference is already reflected in the legal prevention of the patenting/copyrighting of 'obvious' things, although this is a terribly hard to nail down definition and is thus a potential problem with our current legal system which would be solved by my modification of its structure. Thus my definition of stealing is reflected in the reality of both the real world and current law.

I can clearly skip Myth #2, which you agree with.

The reason I bring up Myth #3 is because many people will accept actions which are equivalent to filesharing as ethical if they are made more difficult. This is not a straw man. This is an observed reality. It does not appear to be your position, and thus I won't labour the point here.

Take "Myth #4: copyRight, copyWrong" (cute title!), for example. Right off the bat, you make an assertion that is just plain ethically wrong:

...But more importantly, simply because something is illegal does not make it inherently unethical. What we have to look at is why something is illegal in the first place.

Fascinating. Since conduct is made illegal because a society decides that it is in some way damaging to individuals in the society or society itself, what legally prohibited acts are ethical? I suppose there are a few, such as some victimless crimes, but as discussed above, stealing property, as in file-sharing, isn't victimless. And you miss one very basic point: breaking the law is itself unethical. It is a violation of a promise, through your social contract with your country, province, and town, to abide and respect rules of conduct, or pay the penalty of breaking them.

You appear to have missed the word "inherently." Laws are whatever we make them, and thus we could easily redefine the laws on digital information transfer, as Canada has done. My point was that laws are not necessarily reflections of inherent realities. They reflect the decisions lawmakers have made. If this were not the case, it would always be unethical to change the laws on something, which we do all the time in both Canada and the United States. This is why there must be a clear differentiation between inherent ethics and legality.

As far as the entire section on Canadian law, I have this to say:

Canadian law is not the sum of whatever law firms choose to put on their websites. It is the sum of our statutes and the rulings of our judges. My clarification on current law is pulled from the very ruling that you noticed and wrote about which started our exchange. If you disagree with this position, you can take it up with the judge who ruled thus, but because of his ruling this is the way Canadian law currently is. It is a little ironic that you included the photocopier example since the ruling specifically went the way it did so that photocopiers being placed in libraries would not have to be made illegal.

The rest of your essay, the so-called "realities," descend into typical rationalizations and occasionally non-sequiturs...

The second portion of my essay does not consist of rationalisations. The shift from 'myths' to 'realities' represents the shift from my argument on the ethics of filesharing to my expression of the logical consequences of my argument, so of course if you do not accept my argument you would not accept this portion of my essay, which is to be expected. If you perceived this second half as part of my argument, you would of course then consider it insufficient argumentation, since it is not intended to be argumentation at all.

There may yet be an ethical argument for file-sharing to be made. You're articulate and thoughtful; maybe you'll be the one to make it. But in order to do that, you'll have to do the work of acquiring real facts, learning about real laws, and applying disciplined analysis. For now, your argument for file-sharing is no more or less than "It's free, it's convenient, and I want to do it."

It isn't ethical, but it's the best you have.

Sincerely,

Jack Marshall, President, ProEthics, Ltd.

I think you can now see that I would be the last person to make the argument that "It's free, it's convenient, and I want to do it" and that my position is in fact more thoroughly grounded in ethics than you thought.

Thank you for your interest, Jack, and I hope you will respond to my clarifications if you have the time.

sincerely,
Jeffery Coleman