Daily Archives: May 17, 2010

On the ethics, theology, and economics of copyright

Copyright has been one of the leading issues of the 21st century and yet surprisingly little has been written on it from a uniquely Christian perspective. The most one reads about it, for example, is that violation of copyright is akin to stealing and the treatment of copyright pretty much ends there. However I don’t think such a simplistic answer does the complexity of the issue very much justice.

Being a programmer I deal with copyright and intellectual property issues quite a bit. In fact, most of Americans today deal in some form of knowledge working or another1. Many (like myself) derive their entire living from their production of intellectual capital2.

So when we speak of copyright, we must first understand that it effects everyone. Even if you are not involved in the production end of intellectual capital, you are very likely to be on the receiving end of the purchase of a product based primarily on intellectual capital3. In fact, the US Chamber of Commerce has this to say about the intellectual property produced by the United States:

The intellectual property (IP) generated by U.S. companies is critical to America’s prosperity and leadership in the global economy. America’s IP-intensive industries employ nearly 18 million workers, account for more than 50% of all U.S. exports, and represent 40% of the country’s growth (Department of Commerce).

With this much riding on it, you would think that we had solved all the philosophical and legal questions surrounding intellectual property. However we haven’t. On the contrary, the merits and applications of copyright law are constantly being contested in court while, at the same time, the cultural understanding of intellectual property is constantly being fought in the court of public opinion.

In all of this, however, the Christian church has remained surprisingly silent.

But before we begin to delve into the philosophical and theological aspects of copyright and intellectual property, it would be helpful if we took a step back and examined how we got here.

History of copyright in America

Etymologically, the term “copyright” didn’t even exist until the 19th century. And then, it’s primary meaning centered around physical written works.

The United States was one of the first countries to ever address the issue of copyright. The copyright clause in the US Constitution (article 1, section 8, clause 8) in the section enumerating the explicit powers of the US Congress states:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

We’ll come back to this in a minute when dealing with the philosophical and economic implications of copyright but before we do I want to point out that, at the time of the penning of the US Constitution, America was a major purchaser of books.

In Niel Postman’s book “Amusing Ourselves to Death” we are told that authors such as Charles Dickens were hailed as celebrities when they visited America and that they only realized a fraction of the proceeds from the sales (which were largely unauthorized) of their works.

Legal intentions

The initial legal intentions (at least from a US copyright law standpoint) of copyright are clearly stated in the copyright clause above. Those intentions were essentially to encourage the production of intellectual capital (creative works) by granting a limited monopoly on original intellectual property. After the limited time period, which was originally roughly 20-30 years, the capital was to be made public domain and freely available to all.

Unfortunately, successive extensions to US copyright law have increased copyright protections into the hundreds of years. And since corporations can now claim the status of individuals in many legal aspects, there is a real concern that copyright protections for some content has been effectively rendered indefinite.

Here is a helpful graph to illustrate how copyright terms have lengthened over time:

Theological treatment of copyright

Exodus 20:15 states “Thou shalt not steal.”

For many people, this is where the discussion of copyright ends. However I believe a closer comparison of the Biblical understanding of stealing, and particularly the restitution required if the command is broken, will quickly expose why, in my opinion, violation of copyright cannot be easily dismissed or characterized as stealing.

To begin with, the overarching theme of justice found in Scripture is that of restitution. In fact, the notion of “an eye for an eye”4 were quite unique to the Hebrew community at a time when most governments provided disproportionate and unequal punishments for varying crimes. In the middle-east today, for example, it is not uncommon to hear of a man loosing a hand for stealing a loaf of bread.

Leviticus 6:1-7 tells us

The LORD said to Moses: “If anyone sins and is unfaithful to the LORD by deceiving his neighbor about something entrusted to him or left in his care or stolen, or if he cheats him, or if he finds lost property and lies about it, or if he swears falsely, or if he commits any such sin that people may do- when he thus sins and becomes guilty, he must return what he has stolen or taken by extortion, or what was entrusted to him, or the lost property he found, or whatever it was he swore falsely about. He must make restitution in full, add a fifth of the value to it and give it all to the owner on the day he presents his guilt offering. And as a penalty he must bring to the priest, that is, to the LORD, his guilt offering, a ram from the flock, one without defect and of the proper value. In this way the priest will make atonement for him before the LORD, and he will be forgiven for any of these things he did that made him guilty.”

With physical objects such as clothing, food, cattle, etc. the application of this command is easily seen. If I steal a physical object such as a car, I have deprived the original owner of the use of the car. The object is now in my possession and not in the possession of the rightful owner. Thus it makes sense, with physical objects, “to look for them”5, to “preserve them”6, to “transfer them”7.

Comparatively, intellectual property is, by it’s very nature metaphysical like numbers and formulas in mathematics, ethical principals, laws of nature, etc.

Like information8, intellectual property cannot be created9, quantified, contained, or destroyed.

One could argue that loss of information due to memory or storage failures effectively destroys information. However I would simply point out that the information itself is not what was destroyed, merely the means of easily recalling that information. Mathematical principals such as long and complex quadratic equations would still exist even if the whole of the human race collectively forgot them. This is one of the reasons that scientists are credited with making “discoveries”. No one thinks that Isaac Newton created the laws of gravity, he merely discovered them.

Stifling effects of copyright overindulgence

There are very clear negative effects if a nation or culture does not limit the scope and application of copyright laws.

The first casualty of an overindulgence in copyright is the shrinking of the number of works freely available in the public domain. This not only means a famine by way of works that should have long ago made their way into the public domain for further development and innovation. But it also means that works that are no longer actively supported by their original copyright holder are left in a sort of limbo where they are not in the public domain but their licenses are not clear and so no one will risk doing anything with the work. This is a terrible waste and something that leads inexorably into the second causality caused by our current copyright laws.

The second, and arguably greater, casualty of an overindulgence in obtrusive copyright laws is a hindrance to innovation. The very thing copyright laws were designed to encourage in the first place!

Conclusion

In light of this, I am forced to conclude that violating copyright laws cannot be equated with stealing in the Biblical. Intellectual property is essentially a misnomer since metaphysical information cannot be quantified, contained, destroyed or created.

However, lest we fall into the trap of thinking that willful violations of copyright are Biblically sanctioned I want to hasten to point out that we are called in Romans 13 to be obedient to the laws of the land (no matter how absurd) and that in whatever we do we are to live above reproach10.

What this means from a practical point of view is that if you choose to violate another person or company’s copyright you are incurring the risk of that person or company taking you to court.

Additionally, if you decide to profit from your endeavors (the threshold for criminal prosecution is $250,000) you also run the risk of being prosecuted by the state.

Besides, why would you want to contribute to the problem?

Yes, even so-called piracy manages to perpetuate the copyright dilemma by signaling copyright holders of a demand for their content. The only thing copyright holders are likely to do in such an event is to find better ways of protecting their intellectual property, either via Digital Restriction Management, encryption11, or direct legal action12.

A much better approach is to deliberately choose to use free and open source software, specifically software licensed under the copyleft license where the creator has voluntarily relinquished any future claim on how their software may be used.

I would like to say that consuming content created under a creative commons license has made much of a difference but sadly it hasn’t. The biggest driver of positive change in terms of copyright law in America has been through rampant copyright infringement which has helped to dramatically change the business models of otherwise ardent copyright protagonists such as the MPAA and RIAA.

And contrary to the claims of pro-copyright proponents, there is good evidence that copyright infringement actually leads to higher sales.

  1. See this presentation for some fun statistics. []
  2. Here is an interesting article on how knowledge workers are changing the demographics of our cities. []
  3. Like music, movies, television, software, video games, etc. []
  4. Exodus 21:24, Lev. 24:20, Deut. 19:21 []
  5. Luke 15:8 []
  6. Deuteronomy 8:4 []
  7. 1 Kings 21:2-3 []
  8. Which is what I would argue is all that intellectual property amounts to. []
  9. At least not in the sense that one creates new objects where none had previously existed. []
  10. Matthew 5:16, John 15:8, 1 Peter 2:12, 2 Corinthians 9:13, etc. []
  11. which brings a whole host of other legal concerns thanks to the Digital Millennium Copyright Act or DMCA []
  12. Copyright infractions that do not involve the perpetrator profiting by $250,000 or more are considered civil offences. This generally means that if legal action is taken, the resulting court case becomes a contest of who has deeper pockets. And as the recent RIAA cases, not very many people are willing to go through the expense of proving themselves innocent. []
Share/Bookmark