11

IIII

Is Copyright Infringement

Wrong?

Is Copyright Infringement

Wrong?

22

Diefenbach’s Central Argument

Donald L. Diefenbach: “The Constitutional and Moral Justifications for Copyright”

“Copyright is morally justified as a protection against piracy, to serve the promotion of ideas, and although it rarely conflicts directly with the First Amendment, when it does so (short of allowing piracy) it should yield.” (234)

33

Copyright and the Constitution

The Intellectual Property Clause“Congress shall have power 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.” (Article I, §8, cl.8)

The First Amendment“Congress shall make no law […] abridging the freedom of speech, or of the press.”

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Copyright and the Constitution (cont’d)Are these two constitutional points in direct conflict?

• If congress exercises its power to grant exclusive rights to an author, it abridges an item of speech from free expression—an act it is not permitted to do.

• Note, however, that the Constitution does not state that Congress must grant authors this exclusive right—just that it can.

So the Constitution is not self-contradictory. But Congress seemingly cannot exercise its power without

running aground on the First Amendment.

55

Copyright and the Constitution (cont’d)Should law-makers follow the letter of the Constitution, or the spirit of the Constitution?

• The basis for the First Amendment is as a provision against government censorship of ideas, and to expand the marketplace of ideas.

• But the First Amendment comes with constraints.• Constraints against the First Amendment are constraints

against the letter of the Constitution, not against the spirit of the Constitution.

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Copyright and the Constitution (cont’d)Thought Experiment: I’ve just spent a year of my life writing a book, giving up other opportunities for employment in the meantime.

• If there were no copyright protection over my work, a pirate could simply purchase a copy of my book for $14.95, duplicate it, and sell it for pennies over his duplication costs.

• Thus, the pirate could price me out of the market. I couldn’t sell any more books.

• Indeed, without copyright protection, this is the likely scenario—I would not even bother writing the book; I would have no incentive. My ideas would never reach the market, and so society

would be denied these ideas.

• Therefore, copyright and the First Amendment serve the same basis: the expansion of the marketplace of ideas.

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Some Finer Points of Copyright Law

Zapruder Film: Frame 313

The Zapruder Film Interesting interpretation: “Thus when the idea/expression

dichotomy can not be divorced to grant an author rights of his expression, the courts favor the mission of the First Amendment in matters of compelling interest.” (227)

Intellectual property is not like other property (a house, a car, an iPod…), copyright runs on the assumption “that intellectual property can be claimed as an “object” of private property.” (227) [or analogously to private property, anyway.]

• Copyright does not protect one’s ideas; only the expression of those ideas.

• The Merger Principle

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Copyright as a Property Right

As no one else has property in his person, he alone has the right to his own person.

As he has the right to his own person, he has the right to the labor of his own person.

Each person has the rights to the fruits of his labor, and ownership is achieved by mixing one’s labor with natural resources (which no one owns).

• Locke’s idea is that one has property, first, in his own person.John Locke’s Natural Rights Argument

99

Copyright as a Property Right (cont’d)• A Lockean right to the products of one’s labor is a kind of

desert (recall John Arthur on famine relief (Class 16)).

• Because it is a right based onwhat one is, it is called a “natural”right (specifically a “status-based”natural right).

• International News Service v.Associated Press (1918)

1010

Copyright as a Property Right (cont’d)• Ayn Rand: “Patents and copyrights are the legal

implementation of the base of all property rights: a man’s right to the product of his mind.” (228)

• Thomas Jefferson: “Inventions cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to produce ideas which may produce utility, but this may or may not be done according tot the will and convenience of the society…” (228)

• Rand, again: “The government does not ‘grant’ a patent or copyright, in the sense of a gift, privilege, or favor; the government merely secures it.” (228)

1111

Copyright as a Property Right (cont’d)• Feist Publications, Inc. v. Rural Telephone (1991)

“[O]riginality is a constitutionally mandated prerequisite for copyright protection. […C]opyright rewards originality, not effort.” (228-9)

• Michel Foucault: “[A]s our society changes […] the author function will disappear. […] What difference does it make who is speaking?” (229)

• David Lange argues Foucault has it exactly backwards—that the author function will remain, but the constraints on authorship will disappear. Lange argues that copyright is an effect of the printing

press, and that as technology advances and the printing press loses its stranglehold on publishing, copyright should likewise disappear.

Copyright, Lange contends, constrains the author.

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Piracy: The unauthorized reproduction of a copyrighted work which is then sold for profit.

Piracy and Fair Use

• “While the letter of the law considers both acts to be illegal, the internal dissonance, and external reality of prosecution, is far greater in the latter scenario.” (230)

• Piracy for profit strikes people, generally and despite cultural differences, as morally impermissible. Recall Bringsjord, who stops short of arguing for the moral

permissibility of out-and-out piracy. Bringsjord thus is not arguing for a justification for piracy,

but for a liberalization of “fair use”.

?Producing

thousands of videosfrom a rented movie and

selling them. ?Copying a rentedmovie for a friend to

view.

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Whether or not the use (including copying) of a copyrighted work is “fair” is based on four factors:

Piracy and Fair Use (cont’d)

i. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or educational purposes;

ii. the nature of the copyrighted work;iii. the amount and substantiality of the portion used in relation to

the copyrighted work as a whole; andiv. the effect of the use upon the potential market for or the value

of the copyrighted work.

• Bringsjord questions factor (iii), arguing that it is morally permissible to copy the whole of a copyrighted work.

• Arguments in favor of expanding fair use of copyrighted material also favor the First Amendment and the social benefit of free information.

1414

Piracy and Fair Use (cont’d)• Functionally, such a position is already in place—individuals

are generally not sued or prosecuted for making a copy of a few chapters in a book, or of a film for personal use. Lack of enforcement does not prove the law is bogus, but it

indicates possible evidence of social acceptance of conclusions like Bringsjord’s.

Of course, fair use doctrine is already very liberal in the promotion of research, education, and critical analysis.

“Whatever the will of an evolving fair use policy shall dictate, it must shop short of allowing piracy, for the protection of the author and to foster an atmosphere worth of investing new ideas.” (233)

Could Bringsjord’s argument be extended to contend the moral permissibility of piracy?

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Weight Against Piracy1) There is general, wide-spread intuition against the moral

permissibility of piracy. Even those critical of existing copyright law tend to stop

short of condoning piracy. “If there is any trace of natural rights in the justification of

intellectual property, it is rooted in the collective intuition behind this fact.” (233)

2) Recall Rand’s contention: “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”

3) Thought Experiment: Someone you know has written an article, bringing together previously unrelated ideas and introducing original propositions. Further, the article is laced with anecdotes and narrative gems that make the article a pleasure to read.

1616

Weight Against Piracy (cont’d) One day, she gives you a copy of the article. You now own

the paper and the ink soaked into it. But do you own what is written on the paper in the same

way she does? Do you have the same right to send the article to a journal,

or to mass-produce it and sell it on the street corner? [Do you have the right to put it on the Internet—for free?]

• “There are laws which do not reflect moral values and moral values which are not formalized into law. In the case of protecting a writer from piracy afforded by copyright, we have an instance of a law which reflects deep-rooted values of property rights.” (234)

• “Copyright is morally justified as a protection against piracy, to serve the promotion of ideas, and although it rarely conflicts directly with the First Amendment, when it does so (short of allowing piracy) it should yield.” (234)

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Problems?• The constitutional basis for copyright is a consequentialist one

—specifically a utilitarian one. But unlike Singer’s form of utilitarianism, what we’re

concerned with isn’t maximizing happiness, but the number of original works.

What sorts of problems does a utilitarian view face?

• Diefenbach does not make a stand on what the basis of copyright is—what kind of a right copyright is.

Consider how, in the topics we have discussed, various ethical factors tend to come into play and complicate a situation.

Problems with copyright as a Lockean “desert”. Other options?