by Vern Sheridan Poythress, Ph.D., Th.D.
September 29, 2005
When may one legitimately copy a page from a book or a photograph of a person or a recording of a song? What ethical principles come to bear on these questions? These questions have grown in importance, and will continue to grow in importance, because the amount of available information is growing, and the ease of copying is growing.
The answers may be surprising. I would ask you to bear with me as I try to think carefully about principles of right and wrong.
Whose standards do we use?
Many arguments from many different points of view can be presented. I want to explore only one type of argument. I am a Christian. I believe that God is the ultimate source of moral standards. Because God created human beings, they have a sense of moral right and wrong engraved on their hearts (Romans 1:18-32; 2:14-15). Whether or not you are a Christian, you have a sense of moral right and wrong. You can make moral judgments.
In our day moral relativists argue that all moral standards are nothing more than personal preferences or the preferences of human societies. But if a thief were to come and carry away all the valuables in your home, your heart would tell you that what he did was wrong. It is not merely “wrong for you,” when measured by your preferences. It is wrong, period. Even though the thief may try to excuse himself, his personal preferences do not make it “right for him.” The relativists are trying to deny the sense of absolute right and wrong that God has created within us.
But people’s sense of morality can be twisted because of our rebellion against God and the tendency toward self-justification and self-deceit that arises in all of us from that rebellion. Moreover, whole societies can go astray in a variety of ways, and push their citizens in distorted moral directions. (The Roman Empire practiced infanticide until Christians changed the thinking of the Empire.) Hence, I look to the Bible for pure instruction. The Bible was written at a time before the use of copy machines, computers, and digital recording. But its principles still have relevance, as I hope to show.
Obeying the government
We need to consider two different principles, which point in different directions. First, the Bible teaches that we should submit to the governing authorities:
Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. (Romans 13:1-2)
This principle is qualified by the fact that God is superior to all human authorities:
Whether it is right in the sight of God to listen to you rather than to God, you must judge, for we cannot but speak of what we have seen and heard. (Acts 4:19-20)
According to the Book of Acts, the apostles refused to obey the authority of the Jewish council, because God had commanded them to speak about Jesus. If the government tells us to do something that God himself forbids, we ought not to do it.
What does this principle imply concerning copying? The United States government and other governments around the world have made laws governing the copying of documents and artistic objects like pictures, images, and songs. As long as these laws are in place, we should obey them. An exception arises, parallel to the exception with the apostles, if the government tries to forbid the spread of the word of God.
Evaluating the laws
But now consider a second kind of question. Should the laws be changed? What should they be like? The principles in the Bible include the idea that governing authorities are responsible to God for their actions. Not all governmental actions are morally right. The government officials must work for justice, not for their own private gain or in order to favor some individuals or groups. God instructed ancient Israel as follows:
You shall appoint judges and officers in all your towns that the LORD your God is giving you, according to your tribes, and they shall judge the people with righteous judgment. You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous. Justice, and only justice, you shall follow, that you may live and inherit the land that the LORD your God is giving you. (Deuteronomy 16:18-20)
Thus we must ask whether the current laws are just. The principle of seeking justice is now also relevant to citizens who vote for public officials, as well as for the officials who actually make the laws.
In particular, what laws promote justice in the area of copying? What about copyrights and patents in particular? We hear of “intellectual property” and “intellectual property rights.” It is said that file sharers who duplicate and share copyrighted songs and movies are “violating intellectual property rights,” and this is a form of “theft” and “piracy.”
As I have already indicated above, I think it is wrong to engage in copying when it violates the existing laws. But we need to ask about whether the laws themselves are just. And when we do that, words like “property” and “theft” and “piracy” simply beg the question. (See Richard M. Stallman’s essay on the confusing character of these expressions.) Is information “property” in the required sense of the word, a sense that would makes its duplication a case of “theft” in a biblical sense?
Property in the Bible
The Bible does talk about theft. It is not theft to breathe air or drink water out of a stream, because no human being owns these things. But it is theft to take an ax or a sword or a sheep that belongs to someone else. When Joe secretly carries away an ax that Abe owns, Joe gains an advantage, while Abe suffers loss.
But suppose that Joe sees Abe’s ax, and makes another like it. Joe may make an ax that looks and feels and functions exactly like Abe’s. Or he may try to improve on Abe’s. In either case, Joe has not stolen anything. Abe has suffered no material loss. He may suffer a loss in prestige, if he is no longer the sole ax owner in his village! But that is irrelevant.
Copying is not theft. Why not? Because it does no damage to the original owner’s possession of his ax. Copying multiplies goods rather than depriving people of goods. The ability to copy is a wonderful blessing from God that benefits humanity.
In fact, copying imitates God. The Bible says that when God first created human beings, he made them as a “copy” of himself: “So God created man in his own image, in the image of God he created him; male and female he created them” (Genesis 1:27). Man was made in the image of God, or as a “copy” of God. Of course, man was not on the same level as God. God was Creator; man was a creature. But man was made like God, and he was made so that it is instinctive to him to imitate God. When a man and a woman have children, the children are likewise an “image” or “copy” of their parents: “When Adam had lived 130 years, he fathered a son in his own likeness, after his image, and named him Seth” (Genesis 5:3). Adam engaged in a copying process, and this process imitated on a human level the original creative activity of God. Adam was “copying” God.1
God as the Creator owns everything. When he copies, he has the right to do so, because he is the owner of what he copies. By contrast, man is not really the ultimate owner of anything. But God entrusts some of his property to human beings, so that they are like managers of someone else’s property. In order to fulfill their managerial responsibilities they are made in God’s image, and so they are authorized to be copiers. Thus their management includes a God-given right to copy what God has made, and even to copy God himself by imitating him. By copying, they display the presence of God and spread blessings to other human beings who enjoy the fruit of copying.
The same principles hold when copying information. Suppose Joe buys a manuscript from Abe. He may make one or ten copies of the manuscript, without paying anyone. He may give these away or sell them. And anyone who buys one may make further copies, or pay scribes for the labor of making copies. The human authors of biblical books quote freely from older books, and this alone should show that people had the freedom to copy either ideas or words.2 But that implies that ideas and words and sentences are not “property.” They are free as the air is free.
The only way to keep words or ideas nonfree is to keep them secret. And indeed, ancient people did sometimes do this. Craftsmen had secrets about how they made swords or copper pots. Those who hid treasure might make a secret map or write secret instructions about how to find the treasure. Likewise, in our time, Kentucky Fried Chicken has a secret recipe for making its chicken. But if the recipe were to get out into the open, Ma Flanagan could use it in her kitchen. If a competing craftsman can figure out how to make copper pots like his neighbor’s, he is free to do so.
Confirmation from modern practice
One aspect of modern practice actually confirms this principle that information is not permanently, exclusively owned property. Modern practice allows copyrights and patents to extend for a certain number of years. And then they expire. A patent typically lasts for only twenty years. After that period the patented procedure can be followed by anyone without paying any fee. Similarly, copyrights expire after a number of years.
Currently, in the United States any book published before 1923 can be freely copied. But ownership of tangible property such as axes does not expire. If my great-grandfather has willed an ax to me, I am the owner of that ax, no matter how old it may be. If my great-grandfather has willed to me the ownership in a patent or a copyright that he inherited from his grandfather, I own nothing.
But we feel that they deserve it
Some of us may nevertheless feel strongly that authors and artists and producers of information deserve something for their work. It does appear to many people that artists “own” in an exclusive sense the things that they produce; that is, they do not merely own the physical copy, but the right of copying.
So does the author or artist have a “right” to control copying of his work? We in our modern society tend to assume that he has such a right. We easily pick up that kind of thinking from those around us, because nearly everyone assumes that it is so. And the assumption is reinforced by the fact that current laws appear to recognize such “rights.”
But all this is just assumption. Here we must be careful not to become confused, and not to let ourselves be governed merely by the customs of the last two centuries in the Western World. What we think is “right” may be merely what we have become accustomed to, and what others in the same society assure us is right. That does not amount to an absolute standard. When we look at other societies in other times, we quickly see that such a “right” is not at all a universal principle among human beings. And, more important, such an alleged “right” is nowhere recognized in the Bible. In fact, by not forbidding copying, the Bible tacitly recognizes a right of another kind: the right of human beings freely to copy and use words and ideas. The argument is even stronger. Man is made so that he can imitate God and God’s copying. The right to copy is built into human nature, and it is a great blessing and privilege from God.3
Copying is also an implication of the commandment to love your neighbor as yourself (Matthew 22:39). I can help my neighbor and express love to him by giving him a copy of what I own, or allowing him to make a copy.
Artists may indeed deserve the gratitude and admiration of others. But there is more than one way in which this may take place. In some societies, people obtain prestige and admiration not by accumulating property but by giving it away for others’ benefit. The dispute must focus not on the broad issue of honoring artists, but the narrow issue of whether copying a document or using an idea is restricted. Will the government force people to pay a premium for doing this?
Arguing pragmatically
If then we admit that information is not “property” in a normal sense, there still remains one powerful argument in favor of treating it as if it were property and restricting copying and use. It is the argument from practicality or utility. It is said that copyrights and patents encourage authors, artists, and inventors. The restriction on copying gives them a greater reward for their work. And this in turn encourages more people to work as authors, artists, and inventors. A society that wants to have lots of authors, artists, and inventors would do well to encourage their production by rewarding it.
I think this argument deserves very serious consideration. But we must be clear about what sort of argument it is. It is an argument from practicality, not from principle. Gone now is the appeal to the principle of what the author “deserves.” Gone now is the idea that information is intrinsically a piece of property, a possession that is literally “owned” in the same way that an ax or a sheep is owned. Rather, we are concerned with what works best in practice.
There are at least five main problems with a proposal to restrict copying for pragmatic reasons.
Violation of human rights
First, it is a violation of human rights. We were created by God with the right to imitate him, and this includes the right to copy him and to copy things he has made, including things that other human beings have made under his sovereignty. I will say no more about this, since I have already defended this idea above.
Suppression of love
Second, restricting copying interferes with loving one’s neighbor. People who love others instinctively want to share what they own by copying. A law against copying fights against love, one of the most valuable motivations in human nature. Do we actually believe that a law prohibiting one kind of love is good for society?
Coercion
Third, it involves coercion. Through the threat of penalties the government forces people to refrain from some kinds of copying, even though there is nothing intrinsically wrong with copying. People are coerced into refraining from doing a morally innocent activity that they want to do. There are indeed times when government coercion is appropriate, as in a case where a thief is forced to give back an ax that he has stolen. But we should hesitate to use such a powerful weapon as coercion except in cases where it is authorized by God.
Sometimes people talk in a general way about what “we” as a society agree upon. If we as a society think that people should be encouraged to become authors, artists, and inventors, we may agree to tax ourselves by restricting our rights of copying, in order to produce encouragement. That might be all right if everyone in the society agreed. Or if half the people agreed, they could each voluntarily refrain from copying. But if even oneperson disagrees, and would like an alternative, legal restrictions on copying amount to coercion against this person. And coercion deprives that person of his freedom. That is not to be done lightly.
Subsidies
Fourth, the restrictions on copying produce an economic incentive quite like a subsidy. But are subsidies wise?
Subsidies in other areas of society are nothing new. For example, the government may subsidize farming. Or it may choose to subsidize one particular kind of farming, let us say sugar-beet farming. By offering to buy farm produce at a higher price, or by directly paying farmers for acreage in a particular crop, the government encourages more farming, or protects farmers who might otherwise leave that occupation. The government may encourage steel manufacturing, either by a subsidy on steel production or by a tariff on imported steel. These moves make it more advantageous for more people to engage in farming or steel manufacturing. Similarly, restrictions on copying, by producing a bigger total payoff for authors, artists, publishers, and distributors of information, may make it advantageous for more people to commit their time and energy to these areas of work.
All this may sound plausible and attractive until one asks whether there are offsetting disadvantages. Yes, there are. More people in farming means less people in steel manufacturing. More people busy as authors means fewer people busy as nurses. A subsidy in one area indirectly amounts to a favoritism toward that area in comparison with other unsubsidized areas. And now who is to say which areas deserve subsidy? The word “deserve” suggests a moral judgment. But, as we have seen, there is no absolute moral right that gives authors control of copying, any more than there is an absolute moral right giving farmers a certain price for their sugar beets. The government enters into a swamp of unknowns and merely subjective preferences when it tries to control this area. There may indeed be certain exceptional cases, such as when it is argued that a certain minimal capacity in steel manufacturing is important for national protection if the nation should ever get into a war. But such things will be exceptional.
In addition, a subsidy or a tariff or other preferential treatment of farming inevitably has effects on those who buy the product. A subsidy from the government may make the product cheaper, making it a gain for the consumer. But then the taxpayer foots the bill by paying for the subsidy. Again the concern with coercion arises. Do we really think that it is right and wise for the government to coerce its citizens into parting with their money in order to support a particular occupation for which they may have no concern? If the effect is gained by a tariff, the tariff increases the price of the goods, and the consumer loses. Or if the effect is gained by giving monopoly privileges to one person or one corporation, it raises the price of the goods, which again hurts the consumer. Is this right? The government by artificially pushing people into certain kinds of occupation and manufacturing, and artificially distorting the prices for certain products, enters into areas that are usually best left to private action.
Moreover, a subsidy for one particular kind of work favors this kind of work in comparison with others. It is favoritism toward some. The Bible forbids favoritism or partiality in the government because it is unjust: “You shall not pervert justice. You shall not show partiality, … Justice, and only justice, you shall follow, …” (Deuteronomy 16:19-20).
The only way to avoid favoritism and partiality would be to give a subsidy to everyone. Let us say that the government undertakes to give $100 per year to each farmer, to each steel worker, to each nurse, to each mother raising children, to each clerk–in fact, to each person in any occupation whatsoever. That would not favor anyone in particular. But where would the money come from? The government could tax everyone $100 to raise the money. Take $100 from each person and then give it back. But that is the same as doing nothing at all. In fact, it is worse than nothing at all, because there is always overhead involved in the collection and dispersion of funds. The government might have to have a tax of $120 per head in order to cover the expenses. So a universal subsidy solves nothing. And the other kinds of subsidies involve partiality.
In sum, restrictions on copying amount to a subsidy for certain kinds of intellectual work. That involves partiality, and is unjust. We ourselves might wish to encourage this kind of work. But others might not, and it is unwise–and I think unjust as well–to force them to support what they do not want. In addition, it is exceedingly unwise and unjust to suppress people’s desire to love their neighbors through copying.
What will happen without subsidies?
Fifth, it is often assumed that we need subsidies for intellectual work, or else the society would not receive its benefits. Maybe that is so, but maybe not. Modern societies have usually not really tried any alternatives. We do not actually know whether some alternatives might work. And even if no alternatives work well, we still need to ask seriously whether we need to get by with less subsidies, and less benefits in the area of information, in order to be just and impartial, in order to encourage people to love each other, and in order to be faithful to the principle of not coercing fellow citizens unless it is clearly justified.
I do not know what might happen if the restrictions on copying were loosened. I can only speculate. But I think it is worth while speculating, if only to show that we will not completely lose the whole area of information production.
One possible aid to intellectual work could come from foundations, charities, and private benefactors. In fact, in previous centuries composers and musicians were often encouraged and financed by patrons. Both patrons and musicians gained prestige from cooperation between the two. If private people and organizations see that intellectual work is no longer subsidized by the government, they may be more willing to pick up the slack than they are now. They have little inducement to offer incentives if the government is already doing the job for them.
If not enough organizations of this type exist, more can be created. For example, if the lovers of country music or lovers of heavy metal music do not think that enough of their type of music is being created, they can band together and support an organization that gives money and other incentives to people doing this kind of work.
Now let us consider some particular kinds of intellectual work, and their rewards.
Authors today, outside of those who write blockbuster best-sellers, usually do their writing on a part-time basis, and get only relatively small amounts of supplemental income from their work. Their motivation is usually not primarily monetary. They write to share their ideas, and some write in the hope of becoming famous. Wide and quick distribution of their work might actually be to their benefit–though it would not benefit publishers who are the traditional (subsidized) channel for distribution. As for the blockbuster best-sellers, do we really have a principle of justice that tells us how much people owe to the authors, and how valuable it is to society to subsidize blockbusters?
Artists who paint pictures or shape sculptures or blow glass can earn money by selling the paintings or sculptures or other products. A copy, even a very good copy, of a painting does not command the same price from collectors, because collectors value an original.
Musicians, again outside of a few who produce blockbuster bestsellers, get much of their sustenance from live concerts. The spread of their songs and music through unfettered distribution might actually help them to become well known and sell out their live concerts.
Movie makers may continue to distribute movies through theaters. The theaters might, through contracts with the movie studios, be required not to make further copies.4 The theaters, in turn, could require their customers not to make video recordings of the movies that they watch in the theater.5 Thus, a revenue stream is guaranteed to movie makers, without coercing the public into refraining from copying.
Of course, when the recording companies or movie companies offer a CD or DVD to the public, they would then lose control of the content. It could be copied. But I would suppose that many in the public would be ready to pay an extra dollar or two to obtain a CD or DVD that had the movie company’s endorsement. The purchaser would know that he obtained an authentic, high-quality copy, as opposed to a fly-by-night non-guaranteed copy. Of course the profits from selling a single CD or DVD would go down from their present extremely high margins. But they would not go down to nothing, because the distributors could still offer an efficient, high-quality channel for distribution.
Similar observations go for book publishers. I know for a fact that some copyrighted books are available on the web (including one for which I was a joint author). Their availability actually increases the publisher’s sales of hard copies. People may read a little on the internet. But then, if they like what they read, they want to have a bound copy rather than something that costs $5 in ink to print out on their home computer. Thus, even when access to information is free, there remains a demand–even sometimes an increased demand–for traditionally bound books.
What about patents? Patents are granted as an exclusive right to use an new idea for a limited period (typically twenty years). But a similar effect could be achieved without patents, if the inventor keeps his formula secret. (Or the inventor could share the secret with others who pay him for it, by means of a contract that bound them to secrecy in turn.) If a potential competitor is able to guess how the inventor did it, then the invention may not have been so novel that it deserved a patent. This guessability of an invention takes the burden off government rules and court rulings as to whether an invention is sufficiently novel or whether it is an obvious next step. Perhaps this system is not perfect. But neither is the present system, as becomes clear from continued discussions about the threat of patent suits that would stifle obvious innovations.6
The burden of arbitrary laws
One other advantage arises if the government were to loosen restrictions on copying. At present, no one except specialists knows well what is and is not legal in copying. The average person is enslaved to specialists and copyright lawyers and patent lawyers, because the law is too complicated to understand, and too counterintuitive. In the USA, may you make a VCR recording of a TV program being broadcast? Yes. But it was not clear until lawyers fought it out in court years ago. May you keep the VCR recording indefinitely and accumulate a library? I am told by a specialist that the answer is no. The recording is only supposed to be made for the convenience of watching a program at another time than when it originally aired. May you make a digital recording of a live broadcast onto a DVD-R? Yes. May you convert an old VCR recording to digital form? No. May you convert to digital form an audio tape that you bought? No. If you are a teacher, may you copy a chapter from a book to use one time in the classroom? Yes. May you use it every year? No. May you copy a syndicated cartoon to use in the classroom once? No. But you can use the cartoon if you use what is called an opaque projector, which, without making a physical copy of the printed cartoon, projects an image of it on a screen. And there is more, on and on. Did you know all these rules? I didn’t either, until I started asking specialists lots of questions. It is frustrating to anyone who works with information.
The rules are not only complex, but counterintuitive. One cannot obey the law just by having good will and trying to respect other people’s property. One must wade through masses and masses of regulations. Why?
I believe this is a symptom of a deeper problem. The laws are counterintuitive and complex because they have nothing to do with justice. Every human being has within him a sense of justice. Though he may try to make excuses, and though sometimes the society around him may make excuses for him, he knows that stealing is wrong. But he does not know instinctively that copying is wrong. And he could not know it, because it is not after all morally wrong. It has been made into a “wrong” by arbitrary laws.
Arbitrary laws tend to enslave people to the specialists, who alone know the laws. And people are tempted to disobey, because they feel the arbitrariness of the law. For the sake of honoring genuine morality, it is therefore better to keep to a minimum arbitrary laws. I believe that we can see these effects in the area of copying music and movies. Many, many people are doing illegal copying, not because they have no regard for law in general, nor because they have no morality, but, at least partly, because they sense the arbitrariness of the law. And some believe that the recording companies and the movie industry are getting an artificial (and thus unfair) subsidy when they can sell for $20 a DVD that costs less than $2 to produce.
The possibility of further restrictions in the future
Some people who read what I have written may be sympathetic, but cautious. They think, “Well, these arguments make some sense. But why worry? We have been doing O.K. with the present system, even it is not ideal, and even if it is unfair in some ways. Why rock the boat? Why take the risk of venturing into the unknown?”
I think there are several sides to the answer. One is the side of principle. It is worthwhile working for true justice, even if the present system, with its built-in injustices, is still more or less workable.
Second, not everyone sees the present situation as tolerable. Among computer programmers and teachers and musicians and others who work with information, some people are exceeding frustrated with the present laws, because of the burdens and restrictions that are repeatedly imposed at them.
Third, those who are cautious can advocate gradual change. People can urge lawmakers to proceed cautiously. I personally am in favor of totally eliminating copyright and patent laws,7 as the reader might have guessed. But those who are more cautious can take the route of gradually decreasing the number of years before copyrights and patents expire. This also allows those with heavy investments in information production to make a gradual adjustment.
Second, the world of information is not standing still. There are people in the information industry who realize that literally billions of dollars are at stake. Lobbyists paid by the Motion Picture Association of America and the Recording Industry Association of America, to name two, will put heavy pressure on legislatures not only to protect their existing subsidies, but to increase their ability monopolistically to control forever whatever information they produce. Laws will be changed. New laws will be passed. But what kind of laws?
We have the potential to change laws in directions that increase the freedom and flexibility with which ordinary people access, enjoy, and pass on information. Or we have the potential to change laws in directions that heavily restrict the legality of accessing and passing on information. And in that case we may become enslaved to specialist lawyers who alone know the increasingly complex and arbitrary laws. Worse, we may become enslaved to machines that refuse to copy or give access to information unless we pay a fee for every use. “Ten cents, please, for each time you listen to a pop song.” Or maybe 25 cents, or 50 cents–whatever the market will bear.
In the case that I envision, the fee for your use of information goes by electronic transfer from your credit card account or your bank account into the coffers of a monopolistic corporation.8 The corporation has been clever enough and unscrupulous enough to get lawmakers to make laws forcing manufacturers to make their machines in ways that restrict access and copying. Propaganda will say that all this is a good thing, because we are thereby respecting intellectual property “rights.” In my opinion, both the so-called “property” and the so-called “rights”9 have been created out of thin air to conceal the actual situation, namely that the government is using bad laws to subsidize monopolists.
Copyrighting this article
Alert readers will find that I have copyrighted this article. This might seem hypocritical. How can I use copyright after arguing against it? But I have tried to think it through. I believe that in an unfallen world, with morally perfect human beings, copying would not be restricted. We would be free to share. Ideas and words could all be classified as what we now call “public domain.” But we live in a fallen world. Some people are tempted to seize exclusive control, and to forbid what should be free. They use the present copyright laws to their advantage. Given this temptation, as long as copyright law exists it is wise to use it in order to enhance freedom rather than to surrender freedom to the would-be controllers.10 I use the GNU Free Documentation License, which has two sides. It gives people freedom to copy and at the same time addresses the danger of losing that freedom. Its gift of freedom aspires to restore the freedom of an unfallen world, and to work toward how things should be. Its restrictions correspond more to the fallen world, in which it is important to restrict those who would take away the freedoms of others.11
Further resources
Prof. John Frame has an earlier paper about copyright, which started my thinking in the direction of the reasoning above.
The Free Software Foundation and the Electronic Frontier Foundation are organizations very concerned to promote the free distribution of information. I am not endorsing everything on these sites, but only indicating that there are useful resources there.
For more on the theology of copying, see footnote 1.
Notes
1 For further discussion of imaging, see Vern S. Poythress, God-Centered Biblical Interpretation (Phillipsburg, NJ: Presbyterian and Reformed, 1999) 27-50; Meredith G. Kline, Images of the Spirit (Grand Rapids: Baker, 1980).
2 This point I owe to John Frame’s reflections on copyright.
3 The Declaration of Independence reads,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
It is not too much to say that it could have added, “and that Liberty includes the liberty of copying.”
4 A contract is different from a government law, because the person who enters into a contract freely consents to its terms. The person who is forced by the government not to make a copy does not consent. He is deprived of his freedom.
5 Though the theaters and movie producers might actually make more money by allowing home-video recordings. Distribution of a poor-quality copy can increase interest in the high-quality original. My point is that it is certainly within the right of a theater or a movie studio to conduct its business in either way. What is unfortunate is the use of law, and the coercive power of law, to restrict copying by private citizens on their own property.
Consider another case. The studios and movie distributors are within their rights to use any form of encryption to try to restrict the use of DVDs or other digital information. (Encryption is analogous to Kentucky Fried Chicken having a secret recipe.) But passing a law to forbid (coercively prevent) the cracking of encryption or the duplication of DVDs or the capturing of a information stream from a computer is, in my opinion, an unwarranted usurpation of control, and an interference with the rights of citizens to use and copy what they own. Producers of information may want to achieve monopolistic control over the information that they produce. But using the government to enforce their monopoly is unjust.
6 What about drug companies? Drug companies spend millions of dollars developing a new drug, for which they take out a patent. Apart from patents, how could they receive recompense for their work? And without sufficient recompense, how would they be motivated to do the research for new drugs? I do not have a perfect solution to this problem. But a patent is surely not the only solution. A patent takes away the private citizen’s right to put together a chemical laboratory in his basement in order to produce a particular chemical substance. A less draconian solution would be to use the regulatory agency for drugs. In the United States the Food and Drug Administration has procedures for approving or disapproving new drugs for sale. It might then authorize a pharmaceutical company to sell a new drug, while not authorizing other competing companies for selling a drug, unless they have gone through the same expensive preparations. The private citizen could make any chemical he wishes in his basement, but could not sell it as an approved drug.
In the end, I believe more major changes would be appropriate in the way in which we handle drug research. But this is not the place to explore more long-range questions.
7 I should say that a gradual phasing out of the present laws, rather than a sudden change, would be more considerate toward those who have heavily invested time or energy or money in the affected areas.
What about trademarks? Trademarks represent a different kind of challenge, requiring a different answer.
Suppose Doug organizes a new software company, produces some software programs on a CD, and then attaches to the CD the name “Microsoft” (a trademark name) or the Microsoft logo (a trademarked graphic design). That is illegal according to present-day trademark laws. But is it also morally wrong? I believe that it is, and that it would be wrong even if there were no trademark laws. Doug has deceived his customers into thinking that what they are buying is a product of Microsoft Corporation. They could rightly demand a refund plus damages because of fraud. Microsoft Corporation could rightly demand payment for damage to its reputation. Doug has broken the Eighth Commandment, “You shall not steal” (Exodus 20:15), by taking money from customers under false pretenses. And in deceiving people he has also broken the Ninth Commandment, “You shall not bear false witness against your neighbor” (Exodus 20:16). The trademark laws make it easier to establish in court that Doug has broken the law. But Doug would be doing wrong even if those laws did not exist.
But now consider another case. Cindy likes the artistic design in the Microsoft logo. She makes multiple copies of the logo, and puts them up all over the walls of her room. Has Cindy done wrong? No. She has deceived no one, defrauded no one, and stolen no tangible goods from anyone.
Thus the importance of trademarks has nothing to do with copying. Cindy ought to be free to copy a trademark to her heart’s content. But Doug is not free to use a trademark or any other symbolic vehicle to deceive buyers. The issue is deceit, not copying.
Technically, we do not need trademark laws, because the actions that we detest are already violations of the moral law, and laws about fraud already cover the territory. It may nevertheless be useful to make it clearer that Doug’s kind of deceit is prohibited. Trademark laws, rightly formulated, would be a useful clarification, but would not invent a new kind of wrongdoing.
8 In typical cases, authors and artists do not get much remuneration from their work. The lion’s share goes to corporations that buy their works. In a notorious case, in November 1999 the Recording Industry Association of America worked with a secret meeting of congressional staff, in order to add a “technical correction” amendment to a bill on satellites. The bill was then passed on the floor of Congress without any discussion of the amendment. The amendment made the work of recording artists “work for hire” and largely deprived them of previous rights. The RIAA was clearly filling its own pockets and cared nothing for recording artists. An association of composers, authors, and publishers is begging for the U.S. Congress to reverse the change. Nevertheless one may count on agencies like the RIAA to appeal to the public’s sympathy for artists when they try to justify laws in their favor.
9 On the “mirage” of so-called “intellectual property,” see Richard Stallman’s essay.
10 Similar principles hold with respect to publishers. A publisher may work for freer dissemination of information by carefully using existing copyright laws, rather than completely opening his books for copying and running the risk of being driven out of business by competing publishers who use copyright laws in exploitive ways.
11 Of course the people who framed the GNU Free Documentation License may have worked out of a variety of assumptions, worldviews, and religious commitments. I do not know. But as human beings working in God’s world, they wrestled with the realities of ethical issues. Whether they knew it or not, they came up with a formula that, however imperfectly, takes into account both hope for freedom and realism about sin.
Copyright (c) 2005 by Vern Sheridan Poythress.
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.2 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts, and no Back-Cover Texts. A copy of the license can be found at the Free Software Foundation website.