Ethical Principles Behind My Anti-DRM Statements

    As a philosopher and as Catholic, I have to oppose DRM on ethical and solidarity grounds.

    One of the things that every society should learn is to share what that society has and enrich itself with what others have to offer.  Culture development does not contradict the aspirations to business.  However, business should not be placed over ethical considerations nor should it hinder people from acting ethically.  Sharing is an ethical way of behaving, and as Catholic and as philosopher I consider it an ethical principlethat should be encouraged.

Ethics and Solidarity

    Ethical acts are by definition disinterested ways of acting whose aim is what is objectively good itself, at actions done for their own sake.¹  Ethical acts were best defined by Kant through his categorical imperative formulas:  act only according to such a maxim that you may want it to be turned into a universal law (for every rational being);²  and act in such a way that you use humanity, that is in your person and others, always as end-in-itself and not only as means.³  Ethics differs from morals in that ethical acts concern to that which is objectively good, while morals have to do with uses and customs, i.e. culture.⁴  To use a more Kantian picture, in the ethical realm, the more you act from duty (that is solely for ethics' sake in a completely disinterested way) the more your actions have ethical value.⁵

    Different from the ethical realm, we find another one where interested actions reign:  the economy.  The reason for this is that the economy deals with what in principle are scarce resources.  Wealth itself is limited, hence social norms (legal and economic structures) are created regarding the way the exchange of resources should be carried out in the most effective manner.  Here "utilitarianism" (in the best sense of the word) rules:  society designs strategies and norms that will try its best to guarantee everyone's happiness.  Ethics does not rule here.  In the best case, if the economy complies with ethical norms, it will not occur because, to use a Kantian approach, it acts from duty, but in conformity with duty.⁶  These interested acts where goods are exchanged so a community, a country, or the human species can benefit best of the wealth that the Earth provides are solidarity acts, not ethical acts.⁷  In ethics, a person can only act from duty, not expecting anything in return.  In solidarity, a person acts and gives expecting something in return.  In the latter case, we must design certain strategies on the exchange of goods that will guarantee the happiness of everyone (or at least the most people possible).

    There is a particular fact regarding the creation of any solidarity institution, like an economic system, is that it is amoral, that is, the economy is not concerned with morality or ethics:  it is not concerned on whether the way it acts is good or not, or if it is complying with ethical norms or not.  The realm of the economy is more efficiency ruled than ethically ruled.  Therefore, moral beings like us must decide what is best for society, i.e. what works best, in an imperfect society.  Too often, the extreme political right wants the capitalist economy to be as free of government as possible, almost a "perfectly free" economy, which is impossible given the global world market. Usually, inequality to high degree, corporate oppression, and the excesses of externalities, end up making the majority of living beings in the planet. In the far left, we find either a government assuming every aspect of the economy (like Marxist-Leninist tendencies wanted), or an anarcho-syndicalist (or anarcho-communism) society, free of government.  In both cases, they fail.  Marxism fails because the socialism that Marx struggled for was not what came to be:  when government (in the state's name) socializes all of the means of production and private property in general, it ends up being a totalitarian state that would represent no transition to what Marx thought communism was going to be. Besides, as many communist countries found out over the years, the government is highly inefficient if it assumes and owns all enterprises.  Even in the Soviet Union and Cuba, they had to recognize at least a minimum of private property. On the other hand, some forms of anarchist organizations have been created and established, which more often than not, have ended up failing, mostly due to the fact that they usually fragment due to internal differences or struggles, or they end up destroyed by more powerful external forces.⁸  I remind the left and the right that there is no such thing as a "compassionate economy".  The economy does not love or hate you.   The "perfect" economy does not exist, and if it existed, it would not be functional.  To some extent, imperfection is what makes the economy work.⁹  What most people miss the point is that the government and the economy should interact in a way that works for that particular social reality within a specific moment in history, or at least we should device other means for a more efficient distribution of wealth throughout the world.

    The ethical and solidary dimensions are present in our species when we decide to act on principle respecting people's dignity, or acting according to what is best for most people (or for everyone) regarding wealth or well-being.  Not taking something like this into consideration as part of human nature would lead to failures in both ethics and the economy, hence harming culture.

    This is the reason why there is a concept of "property" in the economy.  Contrary to what some people in the political left believes, the concept of "property" is embedded in human nature, and has been historically present in almost all cultures, for the simple reason that the survival of humanity depends greatly on goods and lands that are limited and scarce.  The particular modalities and characteristics of what they conceive as "property" differs from culture to culture.  What I do agree with the political left, though, is that usually the political-right glorifies the concept of property to the point of thinking of it only in terms of private property, without thinking about common property (the "commons" so-to-speak).  The notion of "property" comes up in our nature for a simple reason: natural selection.  If you have an apple, and I take it from you, you no longer have the apple I took from you.  Hence, every culture has a very basic difference between "trade" and "stealing".  From a solidary point of view: trade is honest (solidarity), stealing is dishonest, giving away is generous (ethics).¹⁰  What you own is your property precisely because either you worked hard for it, or because it is the result of trade you made with someone else.

    Finally, from a social ethics point of view, the economy is a means to an end, not an end-in-itself.  As Kant stated in one of his categorical imperative formulas:  humanity should not be just a mere means but also its own end.  Hans Küng, a Christian theologian, based on this formula, has pointed out that the economy should serve humanity and not serve itself.  In a globalized world, where corporatist capitalism dominates, much has been forgotten about this role of the economy in the order of things, where corporations have so much power that they serve themselves at the expense of the environment, living beings, and most of all, humanity.¹¹  The economy and politics of the world must interact to guarantee  what Karl Popper called "open society" or a democratic free society.

Expressions, Ideas, and the "Intellectual Property" Nonsense

    Ideas and expressions are different from physical objects, hence their economy is and should be different.  Ideas and expressions are not themselves scarce resources.  They can be copied and reproduced in minds, paper, or even a computer screens.  Unlike the need to protect physical goods, ideas and expressions flourish out of the creativity of minds when they are shared socially, either for artistic purposes or to share knowledge.

Some centuries ago, St. Augustine pointed that out in a sermon:


Thomas Jefferson made the same point perfectly when he said in a letter to Isaac McPherson (August 13, 1814):


This is the reason why I think the term "intellectual property" is a contradiction.  It is a term that seems to imply that an expression or an idea can indeed be a property as private property.  Cory Doctorow points to the problem with this reasoning:


I agree with Stallman when he says that we should get rid of the term "intellectual property", a similar remark made by Siva Vaidhyanathan.¹⁴   It is a term that confuses a lot of people because it creates the illusion that you can actually own and expression or an idea as you own your car.  It is also a catch all for a variety of legal concepts which have almost nothing to do with each other, whose history, laws, norms and impacts on society are completely different: copyright, patents, trademarks and trade secrets.  By naming these notions "intellectual property" it creates the impression that these concepts are almost similar, when more often than not, what is true of one is not true of the other.

Copyright:  What is It and Why was It Created?

    A copyright on a work does not mean that the work itself is a property, it does not matter how much publishers and the music industry make us think it is.  Copyright originally (as stated in the U.S. Constitution and in England's Anne's Statute) was a temporal monopoly granted over expressions (not ideas) which can be placed in something tangible such as paper, (today CDs, DVDs, tape, websites, blogs qualify).  Why was copyright created?  Because at that time, the public enjoyed written works, publishers enjoyed all the money they profited by publishing and selling the works, yet authors were not paid.   During the eighteenth century, the Statute of Anne created the first copyright in the current sense of the word.  The statute was titled this way:  An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.  In other words, in England the value of creating works was seen as a legitimate way to develop culture.  Culture is, ethically speaking, an end-in-itself, because humans are cultural animals and they greatly benefit from it.  Copyright is just a means to those ends.  It was not an end-in-itself, nor was it created for the sake of authors.  Its intent was to provide an incentive for authors to write: copyright would make authors write more works, the publishers would publish them and pay the authors royalties, and the public would benefit in the end.¹⁵  Just as Doctorow says:


    The drafters of the U.S. Constitution followed the same reasoning.  Copyright was not considered at the time the right of authors, but, instead, a way Congress could stimulate culture (arts and sciences).¹⁷  If you don't believe me, notice that copyright is not in the Bill of Rights, but it is one of the faculties of Congress:


The intent of the fathers of the U.S. Constitution as in the case of the Statute of Anne is that Copyright (as well as patents) would be an incentive for more creative works, to promote authors to write more, for musicians to do more music, and so on.

    Notice that copyright was never intended to make the work "an intellectual property", like a car or a house are properties (which is the analogy most lawyers use to mislead people into adopting copyright as intellectual property).  If I take your car, you no longer have it, and probably you would be forced to go to work on foot.  If I read a book and I lend it to a friend, I still have that expression itself in my mind, and the information has been shared to my friend.  I do not really lose the information, nor is there any need to "protect" it.  This is because unlike food, or houses, or cars, expressions are meant to be shared!  Cars do not enter into a certain public domain.  Copyrighted works do.  Copyright was not an end-in-itself, but it was created in such a way that:  first, it would serve as an incentive for authors; second, works eventually go to the public domain, so that other people can use them for their works and enrich culture.  All of this is beneficial to society, hence its end is an ethical end.  The moment copyright law becomes a hindrance to these aims, then it should be changed or abolished.

    Also we must keep in mind that Copyright in its original legal concept is a "bargain".  People have the natural right to make copies of works and ideas.  Once the printing press was invented, then the question was how does copyright work in such a scenario?  With copyright, not only we achieve a balance between the benefits of the author, the publishers and the public, but we also trade away our natural right to make copies, and as a result we are provided with better works.  At the time the printing press was invented, this natural right could not be exerted by the people at large, but only by stationers and publishers.  So, if you give away a natural right you cannot exercise in any way, you are gaining, and as a result you enjoy books and other cultural objects or activities.¹⁸

What is the Problem with Copyright, DRM and Technology Today?

    What happens when technology provides the people with the means to copy?  Naturally, the public will not give away completely their natural rights, but will keep some of them.¹⁹  That is why people photocopy today, or burn CDs, or download stuff  from the Internet.  It is the public claiming back parts of their natural right to make copies.  As Lessig would say, we are going from a "Read-Only" culture to a "Read+Write" culture.

    Unfortunately, the phrase "intellectual property" creates in people, especially authors, the idea that "this is their property" and that as such they have to "protect it" from others.  Of course, expressions themselves and ideas need no protection.  If works like the Iliad or the Bible still exist today, it is because of the incessant copying by scribes throughout history.

    The majority of publishers, music and software industries believe otherwise.  They have perverted copyright's original purpose.  The ideology of "intellectual property" has convinced many that copying a work and sharing it with others is unethical.  They use also the word "pirate" in this manner.  Originally "pirates" were those who used copyrighted works commercially and did not pay the authors royalties.  Today, the term "pirate" includes those who copy works for non-commercial use, especially to just enjoy them at home, for educational purposes, or to share them with friends.  Like Stallman says, this would mean that sharing with a friend is the ethical equivalent of attacking a ship.  This is a fallacy.  DRMs monopolize the information, and keep readers, listeners and users of digital material from fully exercising their rights over lawfully bought material.  Let us keep in mind that gradually, DRMed e-books, music or videos are seen more and more as being materials that companies license you to enjoy rather than you having bought the materials per-se.  This can lead to treacherous computing and legal spyware, software oriented to control users over which material they are reading or listening in their computers.  By making copyright so rigid, making it last such an amazingly long time (life of the author + 50 years), and devise means to steal copyrighted works from some authors and artists, among other strategies, big corporations practically have reverted society to the conditions which existed before copyright was created:  companies are the only ones profiting from published works.  In fact, in terms of civil rights, especially regarding freedom of expression, much of these policies seem very similar to the Soviet Union's over copying material, a policy then called Samizdat, today Digital Millenium Copyright Act (DMCA) and similar laws throughout the world.²⁰  At least before these copyright laws, the public enjoyed some rights over published works.  Right now, and especially with DRM, corporations want to control the public, even in cases of perfectly legitimate use or copy.  So the original benefits copyright was intended to give are no longer there.   Artists and authors generally get cheated or are not paid fairly because of the schemes made by certain music labels and some publishers:  e.g. making the company own the copyrights of songs while paying artists as "work-for-hire", paying authors only a very small amount for royalties, among others.  See what Courney Love and Steve Albini have to say about such schemes.  This is not only unethical, it is insane in a society which should be open and free.

    My purpose in writing a book or an essay, even when I ask for money for commercial use, is not money.  A writer does not write serious abstract and rigorous philosophy expecting lots of money.  No serious philosopher has ever made money just from the sale of their books.  Most of the serious philosophy out there, unfortunately, is not in bookstores.  Often they are published for special academic purposes, sometimes costing over $100, and most serious philosophical essays are published in journals most people simply do not read, and most issues dealt in philosophy do not reach the public.  So, to write a book on any serious subject whatsoever, which includes very abstract notions of logic and mathematics, means that the author writes for the love of it, not for money.

    I do respect, on the other hand, people who do write books for profit.  I respect Cory Doctorow, who has written Sci-Fi novels for money.  And he uses the free distribution of PDF versions of his works as an incentive for people to buy more books, and him have more money.  However, he is also moved for ethical considerations and the way the novelist should treat his readers.   I admire his work.  I read his Someone Comes to Town, Someone Leaves Town, which has been declared a Sci-Fi Essential Book, and was in the Locus Recommended Reading List in 2005.  He won the John W. Campbell Award for Best New Writer at the 2000  Hugo Awards; his Down and Out the Magic Kingdom was finalist for the Nebula Award for Best Novel, and Jeff Bezos (the CEO of Amazon.com) recommended it;  his book A Place so Foreign and Eight More was nominated for the 2003 Nebula Award for Best Novelette, and won the 2005 Nebula Awards Showcase, it also won the Sunburst Award, his book Eastern Standard Tribe was finalist in the Locus Awards.

    But he was also the Director of European Affairs in the Electronic Frontier Foundation (EFF), which advocates technological freedom.  He also looks at a less restrictive use of copyright as a key to make money, while he does not violent his readers' rights. With each passing day he gives up more and more devices that lock him out of his music, videos and audio tracks.  In the PDF version of his novel Someone Comes to Town, Someone Leaves Town, Doctorow describes DRM as "the worst technology idea since the electrified nipple-clamp", and states very clearly that it does not work, basically because every form of DRM key to open the DRM lock is available on the Internet, because there is no demand from the public to limit their ability to use their movies and music, and because it prevents legitimate copies and uses of works.²¹  Is there anything more he has to say?

Endnotes

¹Kant, 1999, AK 4:389-390, 396. [Return to Text]
²Kant, 1999, AK 4:421. [Return to Text]
³Kant, 1999, AK 4:429. [Return to Text]
⁴I wish to clarify that even when I use Compte-Sponville's philosophy regarding this issue, I am not using the terms "ethical" and "moral" in the same way that he does.  For him, the ethical realm has to do with love as the subjective motive to act what I would call in an "ethical" manner, however, morals for him is equivalent to what I call "ethical". [Return to Text]
⁵Kant, 1999, AK 4:398-399. [Return to Text]
⁶Kant, 1999, AK 4:398-399. [Return to Text]
⁷Comte, 2004, pp. 136-147. [Return to Text]
⁸Pinker, 2002, pp. 245-247. [Return to Text]
⁹Catalá, 2007, pp. 9-87. [Return to Text]
¹⁰Comte, 2004, pp. 136-147. [Return to Text]
¹¹Küng, 2003, pp. 49-50. [Return to Text]
¹²Wills, 1999, p. 145. [Return to Text]
¹³Doctorow, 2008b. [Return to Text]
¹⁴Stallman, 2006; Vaidyanathan, 2004, pp. 87-89. [Return to Text]
¹⁵Patterson & Lindberg, 1991, pp. 19-36. [Return to Text]
¹⁶Doctorow, 2008a, pp. 20-21. [Return to Text]
¹⁷Patterson & Lindberg, 1991, pp. 47-55. [Return to Text]
¹⁸Stallman, 2002, pp. 138-139. [Return to Text]
¹⁹Stallman, 2002, p. 139. [Return to Text]
²⁰Stallman, 2002, pp. 140-141. [Return to Text]
²¹Doctorow, 2005, p. 2. [Return to Text]

---

Albini, S. (1993).  The problem with music.  The Baffler.  Chicago:  Thomas Frank.  Retrieved from:  http://www.negativland.com/albini.html

Catalá, F.  (2007).  Elogio de la imperfección.  San Juan, P.R.: Ediciones Callejón.

Comte-Sponville, A. (2004).  El capitalismo, ¿es moral?  Barcelona: Paidós.

Doctorow, C. (2005, June).  Someone comes to town, someone leaves town.  PDF Version. Retrieved from:  http://craphound.com/someone/Cory_Doctorow_-_Someone_Comes_to_Town_Someone_Leaves_TownLetter.pdf

Doctorow, C.  (2008a).  Content:  selected essays on technology, creativity, copyright, and the future of the future.  San Francisco:  Tachyon Publications.

Doctorow, C.  (2008b, February 21).  "Intellectual property" is a silly euphemism.  Guardian.co.uk.  Retrieved from:  http://www.guardian.co.uk/technology/2008/feb/21/intellectual.property.

Ellerman, D.  (2001).  Scan globally, reinvent locally:  knowledge infraestructure and the localization of knowledge.  In H. J. Chang (Ed.)  Joseph Stiglitz and the World Bank:  The Rebel Within.  (pp. 194-219).  London:  Anthem.

Kant, I. (1999).  Groundwork of the Metaphysics of Morals.  In M. J. Gregor (Trans.), P. Guyer & A. W. Wood. (Eds.)  The Cambridge Edition of the Works of Immanuel Kant:  Practical Philosophy.  (pp. 41-108) . Cambridge, UK:  Cambridge University Press. (Original work published in 1785).

Küng, H.  (2003).  Proyecto de una ética mundial.  Spain:  Editorial Trotta.

Lessig, L.  (2004).  Free culture:  how big media uses technology and the law to lock down culture and control creativity.  NY:  Penguin Press.

Love, C. (2000, June 14).  Courtney Love does the math.  Salon.com.  Retrieved from:  http://dir.salon.com/tech/feature/2000/06/14/love/index.html.

Patterson, L. R., & Lindberg, S. W.  (1991).  The nature of copyright:  a law of users' rights.  Athens & London:  The University of Georgia Press.

Pinker, S.  (2002).  The blank slate:  the modern denial of human nature.  US:  Penguin Books.

Stallman, R.  (2002). In J. Gay (Ed.) Free software, free society:  selected essays of Richard M. Stallman.  MA:  GNU Press.

Stallman, R. (2006).  Did you say "intellectual property"?  It is a seductive mirage.  GNU Operating System.  Retrieved from:  http://www.gnu.org/philosophy/not-ipr.xhtml

Vaidhyanathan, S.  (2001).   Copyrights and copywrongs.  NY:  New York University Press.

Vaidhyanathan, S.  (2004).  The anarchist in the library.  NY:  Basic Books.

Wills, G. (1999).  Saint Augustine.  NY:  Viking.