Property—Real and Imaginary

For the undergraduate Christian Ethics: Sources class last week, I had the opportunity to lead a class debate on the resolution, “This house believes that the downloading of music and media without copyright permission should not be considered an issue of conscience”—a fun topic for me, given my ongoing interest in the issue of property, and the many discussions/debates I have had with friends about this issue.  

I was curious to see what students would make of it—given how many students nowadays violate media copyright with no compunction whatsoever, I expected a vigorous case to be made in favor of this resolution, but was surprised to find, on the contrary, a very vigorous and thoughtful opposition, and a very half-hearted defense of illegal downloading, ready to concede before the debate was even quite over.  Students seemed to find little merit in the Pro arguments, and to find the Contra arguments unanswerable.  While this might demonstrate a laudatory law-abiding spirit, it also confirmed what I had long suspected was the case—few people nowadays have any grasp of the contingency of property relations.  Consider the following arguments that I supplied to the students:

Pro:

  1. According to the Christian ethical tradition, the principle of common use has priority over private property rights—property exists for the benefit of the whole community, not merely for the owner.  Current intellectual property law is unjust, perpetuating monopolies and stifling art and culture.  We have a duty to protest this wicked system.
  2. Intellectual property is not real property; it cannot be stolen the way physical property can, since it is infinitely replicatable.  For this reason, it is wrong to apply moral and legal paradigms of ownership and stealing to intellectual property.
  3. Property rights are simply a matter of social convention; they have no natural basis.  Nowadays, almost everyone considers media downloading to be fine, so conventions have clearly changed, and existing law is outdated.
  4. Such downloading may be illegal, but law is only valid insofar as it is enforced and enforceable.  By the nature of intellectual property, and especially given the proliferation and rapid advance of digital technology, restrictions on illegal downloading are in fact impossible to enforce.  So the law is a dead letter and shouldn’t trouble our consciences.
  5. Producers of media are still fabulously wealthy, and indeed, still have access to many sources of income (such as live concerts) even with the existence of widespread illegal downloading.  So the downloading isn’t harming anyone. 
  6. It might not be good if everyone violated copyright, but it’s not fair that access to media should be restricted to those who can pay for it, so people who really can’t afford it shouldn’t feel any qualms as long as they observe reasonable limits.

 

Contra

  1. Natural law and Christian ethics enshrine the sacred principle of property rights—“Thou shalt not steal.”  The music someone produces is rightfully theirs, and to take it without their permission is stealing.
  2. Downloading media without paying violates the Golden Rule: “Do unto others as you would have them do unto you.” 
  3. The producer of the media has a moral right to a just reward for their labor.  Their right to receive the profits from the sale of their production is the means, in our economy, whereby they receive this just reward.  Therefore, illegal downloading wrongfully depriving them of this reward and exploiting their labour.
  4. Even if there were not a moral case for such legal restraints, the law has an objective authority that the Christian should respect, and failure to do so will undermine our Christian witness in the world.
  5. Failure to protect the income stream of media producers will result in a collapse of the media industries; they will be unable to continue to produce media, and not only consumers, but jobholders and society as a whole will suffer as a result.
  6. The fact that many people have a sense of discomfort about downloading media in violation of copyright is a sign that conscience is testifying to us about it.  We should not ignore this testimony.

To my mind, arguments 1-3 were easily the strongest Pro arguments, but remarkably, the debate team showed little interest in them.  Of them, the only one they tried to use was argument 1, and they misunderstood its intent entirely, taking it to be an idealistic argument for a sort of Acts 2 communal property; needless to say, they didn’t put up much of a fight when the opposition argued that it was unrealistic to insist on Acts 2 as a paradigm for modern intellectual property arrangements.  Correspondingly, I thought that argument 1 for the Contra was the weakest—indeed, I put it in there primarily to see how quickly the Pro side would tear it down—but the Contra debate team wielded it like a sharp two-edged sword, and the Pros did not make a very vigorous attempt to rebut it.  

In other words, students made the remarkable, and remarkably common, mistake of assuming that the definitions of current property law correspond straightforwardly to an underlying, univocal, natural right of property.  The referent of “Thou shalt not steal” is taken to be perfectly obvious, and that referent, it is assumed, can be mapped directly onto current property law.  To determine what property is, we assume, and therefore what stealing is, all we need to do is look at current law.  No one seemed to recognize that the very definition of property, or what constitutes a just title to ownership and a just title to exclusive use, not only can be, but is, very much up for debate.  Indeed, the mere fact that modern intellectual property law is so recent an invention, and that even today, intellectual property law differs radically in different countries, shows that there is not one, obvious, natural way of defining and regulating it. 

The key Contra argument, in my view, is argument 3—we must ensure that artists get a just reward for their labor.  But we must avoid hastily concluding that there is only one way to do that, which is to treat artistic and intellectual creations in the exact same legal terms as physical objects.  Doing so is likely to in fact prove quite unnatural, and lead to quite problematic results.  Indeed, no sooner did I start wondering whether it was a bit over-the-top to assert “Current intellectual property law is unjust, perpetuating monopolies and stifling art and culture.  We have a duty to protest this wicked system,” than I stumbled upon this story, in which the Saul Zaentz Company has asserted its “exclusive worldwide rights to motion picture, merchandising, stage and other rights in certain literary works of JRR Tolkien including The Lord of the Rings and The Hobbit” as a basis for forcing a twenty-year-old Southampton pub called The Hobbit to change its name (thankfully, intervention by no less than Sir Ian McKellen has forced the the SZC to back down.  

In short, whatever you think about the ethics of online media downloading, it is high time that we gave some serious thought to the subject of what property actually is and how it should be regulated, and if music piracy acts as a catalyst for that thought, then for that at least we can be thankful.

3 thoughts on “Property—Real and Imaginary

  1. Donny

    I'm interested in your thoughts on this subject. It's a huge topic in the software world, and I honestly have no idea what to do with it.

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  2. Brad Littlejohn

    Thanks Matt. Fun links. Clearly proof that something's rotten with the current system. Donny—Well, Brad Belschner is the guy to ask about this. He's given the matter a good deal more thought than I have. I was hoping he would jump in to this discussion himself, but if not, I'll nag him to. But here's my thoughts, such as they are, in barest outline form.1. Intellectual property can't be stolen in the same sense that real property can. If you have a great computer, and I want to use it, and take it from you, you no longer have it. If you have a great idea (say, for instance, "Trans-Ockhamite Pseudo-Nominalist Conceptualism" 😉 ), then I can use it, and you can use it, and we both have it. 2. Obviously, what's actually threatened in the case of intellectual property is not the use of the idea, but the profit that may accrue from the idea.3. The reason why this is a concern is because the laborer is worthy of his hire—someone is entitled to a just reward for creating an idea. But a just reward is not an infinite reward. The private use of all property is subject to the constraint of serving common use, and this would seem to be even more the case for something like an idea, which by its very nature can be and should be shared.4. Therefore, copyright law should exist not to secure creators an exclusive right to all profits generated by their idea, but in order to ensure they can get a reasonable return on their labor, while balancing this against the need to make sure that society as a whole can benefit maximally from their creation. (Obviously, these two are not necessarily at odds with one another; if the artist gets no reward for their labor, and consequently doesn't create, nobody benefits.) 5. Current copyright law is unjust in that it has gone beyond this limited objective to secure extraordinarily outsized private rights at the expense of public goods.6. Moreover, current copyright law is unsuited to new technology, which allows for the almost limitless proliferation of intellectual property. The only way for current law to maintain itself is by draconian policing measures which further undermine the public good, and further advances in technology will likely render these policing measures ineffective as well.7. Being thus unjust and unenforceable, current law ought to change. How? Hard to say. Would differ depending on what exactly we're talking about—inventions, music, movies, books whatever. Perhaps many forms of art and intellectual creation should be back on a patron system, which gave us, after all, most of Western Europe's finest artistic creations, which clearly didn't need copyright to come into being. But how to get there is a difficult question.There is of course the further question of whether, admitting the problems with the law, we as individuals are thus free to disregard it. If the law is sufficiently unjust, it ceases to be a binding law; but are we there yet? If the law is so unenforceable and unenforced that no one takes it seriously anymore, including those who are supposed to enforce it, then it ceases to be a binding law. But are we there yet? I'm not sure.

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