Here is a collection of moderately brief ethical arguments against ‘Intellectual Property’.
1: The Liberty/Commons argument (Koepsell) – IP conflicts with fundamental personal liberty – Mill's idea that we have unrestricted liberty except to the extent that it injures someone else, is well accepted. But IP conflicts with that, yet IP is not fundamental, not grounded in physical fact.
2: The Harm argument (Wilson) – IP cannot be justified on the basis of harm – One could justify rights by showing that lack of them causes harm to those denied. But IP, in itself, represents no physical relation by which any harm could be rendered.
3: The Universalisation argument (hxa) – IP does not make complete sense as a generalised rule – The idea that a moral rule is generalisable, as a critical feature, is fundamental. But if everyone ‘owned’ IP equally much it would be disadvantageous for all.
4: The Communication argument (hxa) – IP restricts something pre-eminently important: communication, and it does so unnecessarily.
4500 words (30 minutes), in 4 parts:
This section is condensed from a lecture by David Koepsell: ‘The ethical case against IP’ from 2009-10-22.
We have fundamental rights to autonomy of our minds and bodies (standard liberalism, from Mill). (Axiom 1)
We have fundamental rights to freedom of expression (consistent with Mill's ‘liberty principle’). (Axiom 2)
These can be taken as uncontroversial: they are fairly standard liberalism from Mill. According to Mill we have unrestricted liberty except to the extent that it injures someone else. This is the idea of the liberty principle – a basic, fundamental notion of liberal democracies.
All artificial objects intentionally produced are ‘expressions’ and these are the only subjects of IP laws. (Premise 1)
The digital world presents a problem: software is granted both copyrights and patents, yet ordinarily the subjects of patent law and copyright law are mutually exclusive. Either the digital world is a special hybrid thing, or the categories of patent and copyright have been incorrectly drawn.
Software reveals the faulty ontology underlying intellectual property law. The only thing distinguishing it from Jacquard looms, steam engines, the telegraph, and smoke signals, is perceptibility of mechanism. It is not a new kind of object, it just works at a different level of sophistication.
We can use a single common term to describe the subjects of copyright and patent: they are expressions. Any idea made manifest in the world is the expression of that idea.
These expressions can have different purposes – a description of a water-pump is aesthetic, whereas an actual water-pump is utilitarian – but all are really the same sort of thing ontologically speaking. There is a spectrum of, on the one side, things that are primarily utilitarian, and on the other, things that are primarily aesthetic. And all of the objects of intellectual property law can be placed somewhere on that spectrum.
Rights of ownership stem from brute facts of possession, and laws are ‘just’ when grounded in brute facts. (Premise 2)
There is a world of brute facts that is the pre-institutional world. You can think of the world without any of the legal or social conventions that we now use to understand the world, and understand that, before all of those institutions, there is a world of brute facts.
In a world without institutional facts we still have objects and actions. We still occupy space, and have possessions, but we don't have the institutional terms like ownership. In such a pre-institutional world, if someone is holding a book, they are not owning it, but they are possessing it, and excluding others with that act. From these brute facts arise those more formally defined structures.
The justice of laws that enable us to exert our rights over land and moveables are grounded in brute facts. Actual possession and indicia of possession give rise to just claims of legal ownership. Exclusivity and the necessity of force or violence for dispossession make claims of legal ownership ‘grounded’.
There are parts of the world that cannot be justly owned. (Premise 3)
There is no way to exclusively possess an expression type (– the abstract ‘pattern’, as opposed to token – the concrete instance), nor does reproduction/copying of an expression type once expressed require force or violence. Nor does it impinge upon individual autonomy to do so. If someone comes up to you and rips a picture from your hand, that's a very different act from if someone copies the picture. Unlike land and moveables, IP laws are not ‘grounded’ in any brute facts of possession.
IP law is solely pragmatic: it is to support a particular commercial arrangement proposed as practically beneficial overall.
Just laws are grounded in brute facts. The positive law may be unjust if it conflicts with ‘grounded’ laws. For example, if laws were passed to make private property unlawful, those laws would be unjust. IP is not a ‘natural right’ nor is it ‘grounded’, so a critical inquiry is: are there parts of the world for which the granting of IP rights conflicts with other, grounded, rights? – and hence where it is unjust.
There are two types of commons: ‘commons by choice’ and ‘commons by necessity’. Commons by choice involve parts of the world that could be possessed, but for which we make conscious decisions to keep them in the public domain (for example, national parks, international waters). Commons by necessity are parts of the world that cannot be possessed or enclosed in any meaningful sense. Examples include: all of the oxygen in the atmosphere, bands of the radio spectrum, laws of nature.
The human genome, for example, is a constantly evolving object that involves every member of the species, and is a commons by necessity, like outer space, the atmosphere, sunlight, laws of nature, and radio spectra. We have rights in common to these objects. These common rights supersede conscious decisions about how to use them.
And this isn't a pragmatic argument: it is distinct from the idea of ‘anti-commons’. It is an ontological argument: about the nature of the things themselves.
IP rights are exclusionary rights that prevent the unauthorized expression of protected idea types. (Premise 4)
While an author or inventor ‘owns’ their IP, they can exclude others from making unauthorised reproductions of their expressions. They can receive royalties for any reproduction made. They can enjoin the expression of others of their protected idea types.
The law allows some types of restrictions on expression, typically to prevent physical harms or incitement of physical harms – consistent with Mill's liberty principle. But IP laws are government restrictions on expression having nothing to do with physical harms or incitement.
Expressed ideas belong to the category ‘commons by necessity’, but IP as a category of law presumes to enclose this. This is an ethical wrong. To ‘own’ such commons is to demand exclusion of people from these commons by necessity – to prevent the free use of these ideas. This is immoral because our shared rights to commons by necessity are grounded in the brute facts of their unenclosability. And to attempt such enclosure is to interfere with and curtail our mental and physical autonomy and our freedom of expression – in contradiction to the initial axioms above.
Expressed ideas are non-exclusive and unenclosable. Attempts to enclose them are as morally wrong as attempts to enclose genes, sunlight, oxygen, or any other commons by necessity.
This section is condensed from an article by James Wilson: ‘Could There Be A Right To Own Intellectual Property’ from 2008.
We can distinguish between intrinsic and instrumental moral rights. Intrinsic moral rights are those which are justified by features of the intrinsic moral right holder which are morally important to protect, or serve, when considered on their own. Instrumental rights are those which are justified by something other than such features.
On a weak reading of instrumental moral rights, rights are simply tools to promote morally valuable goals. Then, we need only commit ourselves to the following claim: given various plausible assumptions, we will tend to bring about a morally better world if we recognise the existence of at least some moral rights. Even Jefferson might count as believing in such a moral right to own intellectual property, given that he thought that it would make the world go better if authors were incentivised to create more new works, “as an encouragement to men to pursue ideas which may produce utility”.
Intrinsic moral rights are much harder to come by, as they require us not just to make judgements about what sorts of protections will tend to make the world go better, but also axiological judgements about which interests or features (if any) of human beings are of sufficient moral importance to hold other moral agents to owe moral duties to the right holder in virtue of these interests or features.
It is plausible to think that the right to be free from torture, and the right to freedom of conscience might be intrinsic moral rights: for in both cases we can point to something of intrinsic moral importance (the vulnerable human body, whose integrity must remain substantially unviolated for the human person to be able to live a minimally decent life; the importance of being able to live one's life ‘from the inside’, and to make one's own way in important decisions), which explains why it is appropriate to protect agents' choices or interests in a certain way.
Physical goods are rival: if two people sit on the same chair at the same time, it gets rather cosy, and clearly, the more people who want a slice of my cake, the less there is to go around. But intellectual property goods are nonrival: as many people as want can have a copy of a poem, or a computer program, and there is no difficulty in everyone singing the same song at the same time.
This nonrivalrousness of intellectual property goods has important consequences for how we should view the justification of moral rights to own them. For when we think of the justification of private physical property, two features are usually foremost: first, the kinds of things that we want to own are potentially scarce (that is, it is possible that there will not be a sufficient supply of them to meet the desires of everyone who might want them), and second they are rival (and so they can only derive their full usefulness for their owner if the owner is able to exclude others from them). But each intellectual property good is nonrival, and so by its is nature abundant: there is no physical reason why each person should not make use of a particular idea. Insofar as there is a scarcity in the supply of a given song or computer program, this is due to us creating an artificial scarcity – turning what would otherwise not be a scarce good into one, by the establishment of enforcement mechanisms which make it possible to exclude people from access to the ideas in question.
Creating an artificial scarcity in this way has seemed morally suspect to writers since at least Grotius: “If any person should prevent any other person from taking fire from his fire or a light from his torch, I would accuse him of violating the law of human society, because that is the essence of its very nature . . . Why then, when it can be done without any prejudice to his own interests, will not one person share with another things which are useful to the recipient and no loss to the giver?” (‘On the freedom of the seas’, p45; Grotius; 1609.)
Recognising intrinsic moral rights involves imposing moral duties on other agents, and imposition of duties on others requires justification.
Rights have their basis in the protection of individuals, and also involve impositions on the freedoms of other agents. So it seems reasonable to suppose that to justify the claim that P has a right to V, we must (as a first approximation) be able to point to some way in which P would be either harmed or otherwise wronged if the putative right to V were violated.
When we are trying to establish an intrinsic moral right, the harm in question would have to be established relative to a normative baseline, and not just to a, for instance, historical baseline.
Slave owners were made worse off by losing the legal right to own slaves, and were thus harmed relative to a historical baseline by the legislative changes. But this does not seem a cogent argument for an intrinsic moral right to own slaves. In general, when someone has no entitlement to a particular advantage, they cannot use the loss of that advantage as an argument in favour of them having an intrinsic moral right to that advantage.
Where A's behaviour harms B by falling below the relevant normative standard, we can call it a ‘wrongful harm’.
So a second approximation of the principle we seek – the (Intrinsic) Rights Justification Principle – would be: ‘Any justification of an intrinsic moral right must show that violating the right would typically result in either a wrongful harm or other significant wrong to the holder of the right.’.
We must justify intrinsic moral rights with reference to wrongful harms (or other wrongs) that are independent from the moral right we are trying to justify – otherwise we fall into vicious circularity.
All genuine intrinsic moral rights do pass this test: we can point to something other than the moral right (or the possible wrongful harms or other wrongs which are consequent upon the supposition that the right exists) to explain why there ought to be such a right.
So: to refine the Rights Justification Principle into its final form:
‘Any justification of an intrinsic moral right must show that violating the right would typically result in either a wrongful harm or other significant wrong to the holder of the right, which is independent of the existence of the moral right we are trying to justify.’
This section aims to put the claim about nonrivalrousness together with the Rights Justification Principle to show that there cannot be an intrinsic moral right to own intellectual property which would cover economic rights, and thus correspond to Waldron's R2, namely a right to “exclude others from its use, occupancy and possession”.
There are only three plausible ways to be wronged:
But they do not apply:
1. Usage of a nonrival good cannot deplete it or stop anyone else from using it. And so a fortiori unauthorised use of a nonrival good cannot prevent the author from using it. Therefore, breaching the author's economic rights cannot prevent her from using the work, and thus cannot be the basis for a claim that the author's intrinsic moral rights have been violated.
2. Being prevented from making money by excluding others from access to one's work does not constitute a wrongful harm or other significant wrong which is independent of the (putative) intrinsic moral right to exclude others from access to one's work.
A (seemingly) possible objection is that the author cannot use her creation as a way of making money in the same way that she would previously have been able to had there been intellectual property protection, and this constitutes a wrongful harm to her. However while it is true that this would constitute a harm given current baseline assumptions about what authors can expect, the case has not been made that it should count as a wrongful harm, unless we presuppose the moral right to own intellectual property.
3. Assuming there are no pre-existing agreements, benefiting from another's effort is unfair only where so benefiting imposes a cost on the person providing the benefit. Breaching economic rights cannot impose a cost on the person providing the good, and so is not unfair.
There are no other plausible wrongful harms or other wrongs caused merely by breaching economic rights which are independent of the existence of the (putative) intrinsic moral right to exclude others from copying and use of one's creations. Therefore the economic right to make money by excluding others from access to one's work cannot be an intrinsic moral right.
The only thing that ties the type and token or two tokens is abstract. A harm cannot rendered through an abstract relation. Harm related to trademark, deception, reputation, etc. all need some other relation as well. In which case any moral question is about that relation, not copying.
Universalisation is perhaps the single most important principle of morality. Almost every normative theory of ethics, across history and culture, is centered on some form of it. IP ought to be examined in this respect.
If an abstract object is good, then copying it duplicates and spreads that good. And the incidental cost of copying is practically nothing. We can certainly wish this were a universal law: if everyone copied freely and widely, we would all benefit – we would all receive very much more good, and at negligible cost. Therefore it is our moral duty to copy abstract goods.
This evaluates copying morality in a Kantian way. The fundamental criterion is: act only if the maxim of your action can be willed as a universal law. That is, we ask: would we want an action to be generally encouraged or mandated? Copying seems clearly to pass this test.
Since copying is moral, restriction of copying – as with IP – per se, must be immoral.
Not all abstract objects are ‘good’, of course. But IP, and hence arguments about it, assume that they are good. Things that are not can be handled by other rules.
It is critical to universalise the right proposition: the whole must be tested, not part as if it were the whole, or leaving other assumptions active but not considered.
IP presents copying as tied to compensation, and hence support, for production. But this relation is what IP creates: it does not otherwise exist. There is no necessary dependence of production on copies – the relation runs in the opposite direction: for copies to exist, there must be creation first.
IP proposes that its instituting such a dependence is needed or helpful in actuality. But that is not properly an argument of morality: it is not a claim of what we should do, but of what seems effective to do. That must be proved with evidence, and even with evidence it would be only provisional. Since there is no necessary dependence of compensation on copy-restriction, IP must always seem a contingent constraint – imposed upon us merely by our lack of ingenuity to arrange something better.
So consideration of compensation does not touch copying's essential claim to morality.
Though creation of an item is not dependent on copies of it, creation of other items is. To be useful and even recognisable or comprehensible at all, any new creation must be partly related to old things – it must in some degree and in some sense copy them. In a system of many creations, restriction of copies to support production must also hinder production. It must be to some degree self-defeating, or contradictory.
Restricting copying does not necessarily do the good that IP proposes, but it does necessarily do harm. There is no a priori negative connection of copying and compensation, but there is a positive connection of copying and creating. So as far as there might be a different, enlarged, universalisation, it strengthens copying's status as moral.
Restriction of copies to pay for production can seem to universalise, but it only does so incompletely.
If it were a general law, as well as someone being paid for all their copies, they are also paying everyone else for all their copies. As well as restricting others copying them, they are also being restricted from copying by others. Everyone is charging for and/or stopping everyone else from copying.
This is equal for all, but it is equal in disadvantage. It is a restriction of something good that need not be imposed at all. It fails Kant's second consideration: though it is not contradictory, it is not what we would wish.
Since there is no necessary dependence of production on copy-restriction that means two possible kinds of arrangement:
The latter is the moral choice.
With IP, if everyone is a creator, there is no general gain and instead a net loss – all payments for copies cancel out, leaving only an extra bureaucratic cost. It is a worse choice than a free-sharing system, and it would be senseless for any to choose it.
Alternatively, if only some are creators, their extra gain depends on the others' extra payment/loss – it is not a consistent co-operative system, i.e. not moral according to universalisation, and it would be senseless for all to choose it.
The latter, however, may be the reason for support for IP as a proposed moral rule. The supporters unconsciously assume they are on the winners side – that they gain more as a particular individual than they lose as a member of the community. They will a rule for all, but make an exception of themselves. There can be differences in creative achievement in a free-sharing system too, but any willing of an IP system wills a comparative loss for all. So one could only will it if it also brought a personal gain larger than the general loss.
The only way the IP proposition can make sense is as an immoral intention.
(This overlaps with the Liberty/Commons argument and the Universalisation argument.)
‘Freedom of speech’ or ‘freedom of expression’ is widely recognised throughout history as deserving high value and regard. It is effectively synonymous (often explicitly so) with freedom of communication, and closely related to freedom of thought (as what to express). Communication can be viewed as just the global perspective on expression.
We value it highly because it is pre-eminent in our biological, evolutionary identity.
At the core of being human is language – that is: expression and communication. The whole of human progress and civilisation rests on the facility with which we communicate. It is the cornerstone of co-operation: each individual can gain the experience and knowledge of all – an immense multiplication of intelligence.
The bedrock of culture, organisation, and progress is communication, and the essence of communication is its richness and free flow.
‘Freedom of expression’ is commonly defined very broadly: it is not limited to particular subjects, or media, or to marginal opinions, or to a person's own new ideas. Digital objects and the internet are just a new means or medium – now, anything that can be digitised can be communicated.
Does entertainment count? and simple copying? – is sharing a music file subject to this consideration? We cannot cleanly separate entertainment from knowledge or information or anything else. Each most likely has at least a piece of others. It is obviously communication in the simple sense: a transfer of mental state/experience, and so in a larger sense it takes part in our overall mental life.
Ultimately, it is not the type of abstract that matters: if we deem the item good, then we must deem its communication even better. We want communication because of its general form: it amplifies good – however we define it.
Copyright is a practical commercial arrangement that binds copies to their original creation in a special way. It makes the creation dependent (speculatively) on the copies: the copies are intended to pay for the creation.
But there is no necessity for this dependency in these elements. In fact, the opposite is true: the copies are dependent on the creation. It is perfectly possible to have a practical arrangement where creations are made with no regard to copies (and such do indeed exist). Creators can be paid by other ways than copy monopoly.
Also, it is worth noting, in a population of many creations and copies, the two notions are not entirely distinct: creations are partly copies, and copies are partly creations. This means they are both positively related: any system that helps or hinders one will help or hinder the other.
Copyright sets rules on who is allowed to copy what. For each communicable item, only the ‘owner’ has or can give authority to copy it freely.
So people are no longer free to communicate; they must do so only within set restrictions, and according to the control of someone else. The limits imposed are very substantial, and only in small ways are items permitted to be copied, adapted, or reused – in general: communicated – freely.
By copyright, something natural and pre-eminently important is very substantially constrained by rules that are not necessary. Since copyright impedes something considered moral, it must be to that extent immoral.
Such immorality is not merely academic; it translates to impracticality. There will be many people who, despite whatever ‘justification’ authority promulgates, will simply follow their natural inclination to communicate. And with the internet, this has negligible cost and significant benefit.
When we have an improved way to do something beneficial, we should arrange commerce to suit that, not the other way around.
(This is not fully explored, but might be worth further consideration.)
Some might propose that IP is not merely a pragmatic rule, but represents an intrinsically well-founded form of property. But at the very root of such an ‘absolutist’ IP position there appears to be a problem.
When claiming ‘ownership’ such proponents claim the pure abstract alone. They say the content, the pattern, the idea, is theirs – and this claim must necessarily separate itself from the material instance. But then, when talking about other people's copies, they want to claim ownership and control over the instances of the abstract. They say you cannot have that copy.
First they are saying their ownership has nothing to do with material instance, then they are saying it does. This single claim of ‘ownership’ is actually for two mutually exclusive things.
The whole matter hinges on the single point at which the claim of ‘ownership’ is made, and what is claimed. The concepts of abstract and concrete are mutually exclusive, so when claiming ownership of one can you at the same time be claiming the other?
If you want to claim an abstract based on being its creator, then the claim can have no connection to any concrete instances. If you want to claim any control over the instances, it must be a separate claim. But then it cannot derive justification from anything to do with the abstract and its creator. If you want some kind of combination or interaction of the two, you need two separate justifications – being the creator, alone, is insufficient. Otherwise, there must be a contradiction.
The absolutist concept of IP is clearly not about ownership or property in any normal sense. It is some strange concoction that must conflict with normal ownership and property. There is some kind of conceptual mismatch. The normal idea of property and ownership for physical objects has been forced upon abstract objects, and does not fit.
DC:` title:`Intellectual Property Ethics: Arguments Against` creator:`Harrison Ainsworth` contributor:`David Koepsell` contributor:`James Wilson` date:`2010-09-11` date:`2011-08-28` description:`Ethical arguments against IP, based on: groundedness of laws and personal liberty, lack of harm being prevented, universalisation and co-operative benefit, and freedom of communication.` subject:`IP, copyright, anti-IP, anti-copyright, ethics, morality` language:`en-GB` type:`article` relation:`http://www.hxa.name/` identifier:`http://www.hxa.name/articles/content/copyright-ethics-against_hxa7241_2010.html` rights:`Creative Commons BY-SA 3.0 License` `