Wednesday, September 07, 2005

On the Ethics of Replication of Music, Books, Movies, Software, Etc., Part II

By Dave Armstrong (9-7-05)

Tim Johnson's words are in green. Others are in various colors.

* * * * * 

With the same argumentation, one could say that it is not wrong to travel without a train ticket provided that you wouldn't travel at all if there were ticket inspectors in every train.

No, because that was not the crux of my argument or ultimate justification for these practices; only a secondary consideration, based on the counter-observation that I was depriving someone of what he would otherwise have. The heart of my argument is the various analogies and the reductio ad absurdum. There is only one way to ride a train: you pay for the ticket and get on and ride (or you do the Woody Guthrie / hobo thing and hop a freight train). I can't buy a " used train ride" at some store. Someone can't pass a train ride that they had on to me. I can't take out a train ride at a library. But someone can give me a ticket as a gift (which is closer to my other arguments).

None of this (except the last thing) is true with books and music, because of libraries, radio, TV, VCR's, etc. They are able to be replicated for personal use. If you think that is stealing, are you prepared to say that all libraries and used places, etc., should be illegal?

I think you are way off base on the software and music thing. It is totally different than the book example. With the book being bought, sold, bought, etc. there is only 1 copy of that book in the format put out there by the publisher. You are buying the physical copy of the book, not the contents. With the software you are also buying the physical copy to be used by one person/PC generally. While multiple people CAN read a book or listen to music at the same time, the book cannot occupy TWO LOCATIONS at the same time. Nor can the same CD be played in TWO LOCATIONS at the same time. To do this, you have to MAKE A COPY. You would have to install the software twice (thereby creating a second usable copy), copy the CD or photocopy the book. It is pretty well recognized that copying an entire book at Kinkos is forbidden, though I am not sure what the exact laws are. Not a lawyer.

This is a distinction without a difference, and already dealt with in my paper. There is no difference; in each case, something is being used without the producer getting compensated for it. There could be 100 copies of my books being sold used on That's 100 times I will get no royalties. Likewise, I can use various software at the library or Kinkos, or as part of an old computer someone gave me, and good ol' Microsoft doesn't get more income from it. Thus, the results are the same in each case. But it's very difficult to conclude that this is stealing, because of all my analogies, leading to a reductio ad absurdum. No one wants to outlaw used sales. Yet no one can show me how they differ fundamentally in principle from what they regard as "stealing" or "theft."

So should I be able to make a photocopy (at work or otherwise) of Biblical Defense that I borrow from a friend because I wouldn't buy it otherwise?

I think it stinks, but I can't make a compelling case against it. That's why this is an interesting discussion. We all loan books to people. Libraries loan books. Every time that happens, some author misses some royalties. Your friend could loan you the paperback book to read, or you could photocopy it and read it. I don't see any ultimate distinction, because in both cases the book is read without you putting up the whole price. So it's a bit of a paradox. If it's stealing, then libraries are the biggest houses of theft around. Since no one that I know thinks libraries and used bookstores are immoral and in massive violation of one of the Ten Commandments, then we must conclude that these other things are likewise not stealing, because they don't differ in principle from all this stuff that society has long accepted as perfectly moral and legal.

Should I be able to photocopy it only if I can't afford it otherwise?

Libraries have photocopy machines to be used for some purpose, don't they? I think it is a dilemma that I can't totally figure out myself.

Should I be able to sell my copy when I am done reading it?

I think we can all agree that the principles outlined in my post would forbid selling anything and making a profit. I refer only to personal use. Once you start making a profit, then you are stealing the recompense due to the creator (or publisher, printer etc.). You're not the creator. On the other hand, music stores with used CDs and used bookstores do exactly that: they profit from re-selling something. So it's a paradox again. This is the point at which my friend could no longer answer. He saw the force of my reductio.

I would hope the answer would be "NO!" from you on all three. I would be benefiting from your work by reading it and then selling the copy that I likely didn't pay for myself.

But you can benefit from a library copy. That's the whole point.

So why should Microsoft and musicians have their work copied and passed along to people that use it, benefit from it, enjoy it and possibly even resell the copies they made? It seems like no one would have a right to their own intellectual property this way.

Why is there TV and radio and Internet MP3s, and CD burning and tape recorders and iPods, and DVD recorders, which can replicate all these things? Why are they legal and why are they not illegal, if all copying is immoral? What do you expect people to do with a DVD recorder? Stick to movies of kids playing in the pool only?

That said… I, like almost everyone at one time or another, have not always lived up to the ideals I speak for here. Doesn't mean I don't know I've done things wrong. But I am not trying to justify it anymore. I used to make the same arguments you make about not buying it anyways. I justified it by saying the same thing only with the caveat that I would buy legit copies of stuff I used to make money.

As with Phil, you have not gotten to the heart of my argument, which I have briefly restated in this reply. It remains true, however, that I am not depriving anyone of their profit or royalty if I would never buy the product new in the first place. If I don't buy it new: no profit for the producer. If I get a copy of that which I wouldn't have bought: no profit for the producer. I just think it is one consideration among many. If I take a book off the shelf at Borders, however, and walk off with it, this is stealing, because that particular book (like thr train ride in his example) would have been sold, and the profit made by the store, the publisher, and author. When I obtain a used copy, those people got their recompense from the original purchase, but now someone else is reading it, and they don't get the profit for the second person. Same thing with a library.

The key point was that the government has the right to say what is illegal. It may not make sense to you but they have that authority. You can tell the government they are being logically inconsistent by not making used book stores and libraries illegal. They have the right to pass logically inconsistent laws. Still there is the question of are we morally obligated to obey the law? Are you saying Catholics have no such obligation? It certainly isn't their highest obligation but it is there.

When did I say that anyone should break a law? I argued positively for the law in my post, by saying that Napster has won in court. That was an argument in my favor, not against me. Software is no different, as far as I can see. Someone can give me a copy as a gift. Or they can let me use it on their computer. Or they can give me an old computer with the program on it. Or I can go to Kinkos or a library and use a computer with a program. If I'm the only one who used the gift, then it is no different from the gift purchaser using it. There is a one-to-one correspondence. But in the other four instances, more than one person is using the same program, which is logically and ethically indistinguishable from replication, in my opinion. In all four cases, and with "non-profit" replication, one program is being used by more than one person, and Microsoft is not receiving recompense for any user beyond the first.

I think that it is reasonable to say that public authorities have a right - even a duty - to make culture and education (records and books) available to the entirety of the population, even to the poorest ones.

Of course it should. I agree wholeheartedly. But this is indistinguishable from replication, in result and effect. By acknowledging this, you grant the heart of my argument. The task of someone disagreeing with me is to show how replication is essentially or fundamentally different from libraries and used stuff. You have even brought up the topic of some people being too poor to afford things; therefore, they ought to be able to obtain it at lesser or no cost. Exactly!

So the principle behind libraries and rummages is to allow the less-fortunate to be able to obtain what more fortunate folks can easily buy new. This is only one aspect of my argument (a relatively minor and secondary one), but I'm trying to show how it only helps my case to point this out. This might get into Chestertonian Distributivist territory . . .

One could of course argue that then the authorities should pay the authors, which actually is what they do in many countries.

They ought to do it here, too, then, in some fashion. I lose out when used copies of my books are sold. How about used bookstores giving the creator a cut? I'm all for that. :-) As it is, they make a profit on my book simply because it is used. Why should they make money by obtaining a used book, whereas I, the writer, receive none? This guys with a used bookstore will make even more than I made with the initial royalty (I only get about $1.70 for my new book, which is list price $19.95).

It's paradoxical, which is why this discussion is so fascinating and fun. But you don't see me moaning and groaning (apart from this passing reference) about how I'm getting screwed by amazon or whatever, whereas the rich rock stars and music publishers are going nuts because they might make 10 million instead of 11 million (and even that is disputable, according to some things I've read). I'm at least willing to accept reality: people will buy my book used. I wish they would all buy it new, but it ain't gonna happen.

Actually, I make more money selling 11 books for $25 than I do when one of my paperbacks is sold. That's pure profit for me, and I make the money that I would make when 15 paperbacks of mine are sold. The consumer also gets each book for $2.27, so that is a clear case of the Internet bypassing the "middle men." It's creator right to consumer . . .

I don't, however, say they are "stealing" when they buy my book used. Contrariwise, those who say that Napster is stealing need to show how it is any different from a used book or CD. I see no difference. In fact, Napster would be more ethical according to these critics' own reasoning, because they do pay the artists something, and they have tracks that need to be purchased also.


My argument has been that borrowing is indistinguishable in effect from having or owning a copy. I can borrow a CD and play it 14 times in 10 days. Or I can buy it and play it 13 times in 10 days. What's the difference? I "possessed it" in a large sense more so when I borrowed it than if I had bought it and played it less, because all that is relevant in owning a CD is how much it is played. It's a classic distinction without a difference. So if this is how copyright law works, it is thoroughly confused, in my opinion.


Couple of things… 1. I am not trying to refute your arguments. I am not debating you. 2. I am offering what I see as problems with your reasoning and how things work in the real world.

Another distinction without a difference. :-) How is that NOT debate or critique? :-) I don't bite. This is a fun discussion. I WANT folks to disagree with me and try to overthrow my argument. That's what is the challenge and the learning experience. I haven't totally figured this thing out, either. I'm just trying to look at things clearly, objectively, logically, and ethically.

I don't want to start a back and forth on this because I don't have a lot of time to read and respond.

For all that, you're doing darn good! LOL I'm trying to get back in my pool and I keep getting all these great posts to reply to. :-)

So these will be quick. 3. I am not saying that all copying is immoral. What I am saying is that copying that creates NEW copies without consent of the producer (when the law or the producer says you can't) of the item is wrong.

Okay, show me how it is different from the other cases. This, no one has yet done.

without the permission of the original producer, that would be wrong.

Only if you made it somehow "yours" insofar as the outsider viewed it (say, the logo of your blog or something).

If I take music I have paid for and make a mix CD for my own use or download to my MP3 player, that is not. It's pretty well accepted that this is an OK practice since I am using something I have already paid for.

Private use, sure.

Same with recording TV shows for personal use. These are things broadcast freely over the airwaves or that I pay for via cable.

Yeah, but a lot of these shows (esp. on public TV) have ads at the end where you can buy the thing for $19.95. You have in some sense deprived them of that profit by taping it.

If I record to watch and rewatch, that is generally accepted. Even giving away these generally is seen as OK because of the source. I haven't really thought much about whether giving someone a copy of the latest episode of Stargate: SG1 is immoral. I would say that since society and the law seems to make no bones about it because of its format and transmission (free through the TV) it would be OK.

One of my main points . . . this kind of thing is totally acceptable and is implied by the very existence of recording equipment.

Because books have always been seen as both a physical product and an intellectual one, they kind of fall in the middle I think. You buy the physical product and can do with it as you will. But the law pretty much makes it clear that copying an entire book, article, etc. is not legal. Copying more than a certain amount for specific reasons will get you into trouble because you are creating a new physical (virtual with the internet) product. Passing a book from person to person is an age-old custom. There's no copying. There is no creation of new physical product.

It doesn't matter (not philosophically; whatever the laws — which might be good or bad themselves — might say). The result is the same: the book is read by those who receive it in such a manner without them having to purchase it and without the author receiving what seems to be their just due. If one copy of my book was passed around to 3000 people, I would lose 2,999 royalty payments, or approximately $5098, by the rates for my newest book. This would all be perfectly acceptable, so you say (if it can be passed to five people, it can be passed theoretically to 5000), because it is "an age-old custom." Yet when folks pass around MP3's, it is stealing and immoral? Or if I use Microsoft Word 2000 at a library or Kinkos, I have stolen from Microsoft? See how the analogies are so deadly to this "case"?

When the library loans that book out, ownership has not changed and no new product is created.

That's irrelevant, as shown.

Same with video rentals and even the software rental places that were around about 15 years ago. When you return the book, video or the software, it is presumed you did not copy it.

Yes, but you watched something you might optherwise have paid more money for at a movie theatre or a place which sells new DVD movies. And again, the producer or whomever makes the profit received none from you. Blockbuster did, though, didn't they?

In the case of the software, it was pretty explicitly stated that you did not copy it and that you uninstalled it from your computer. Same is true when you sell software or give it away.

What I'm saying is that such a law makes no sense, seeing that the same software is available at libraries, Kinkos, and in used computers given away.

If I understand your argument clearly, you are equating use (or transfer of ownership) of something with ownership/new purchase of something.

In terms of the relationship of the user to the product, yes. But the relationship of the user to the creator is different, because the latter receives no further profit.

In other words the use of something requires the producer to be compensated for each use or transfer of ownership of that item.

That would be "ideal," as my friend in the initial discussion agreed. But then that "ideal" was a loophole in his argument big enough for a truck to drive through. I think that is when he himself saw that he couldn't refute my objections. He conceded the whole store . . .

In the case of software for instance, license agreements generally state that you can install it on a desktop and a laptop providing that only one copy is in use at a time. It usually says nothing about how many people can use it.

Again, the same ultimately meaningless distinction . . .

Neither does a book, video or CD. That's part of the agreement when you buy. Courts seem to have upheld the license agreement pretty consistently.

This discussion is not merely a legal one, but a philosophical / ethical one, which transcends laws.

Not sure if anyone was ever prosecuted for violating the multiple use at one time thing. I doubt it, so that would likely never have been challenged in particular. Nor is it likely that the particular point of making a single copy of a program for personal use has been prosecuted or challenged. That said, I think it would be wise to assume the entire license is valid and legal.

Yes it is. That doesn't mean that the reasoning behind it might not be inconsistent or nonsensical, given other realities regarding replication and use.

If you make copies of something for personal use of something you already own. I see no issue there. Even if you copy an entire book.


Not sure why you would except to have one you could mark up, but hey.

I have fun making new CDs of existing CDs, like the Beatles and Beach Boys: like "singles with B-sides, in mono," or something like that.

It seems to me that making a copy of something for your personal use that is currently considered illegal would be immoral. It shouldn't matter that you would not have paid for it in the first place. It shouldn't matter that you could rent or borrow it for little or nothing. The point is that you have created something you had no right to. Just because you can do something, doesn't mean you have the right or that you should just because you want to.

Of course. But you have to defeat my analogies. No one has yet.

There are CD and DVD burners and recordable audio and video cassette players because you can have legitimate uses of them. I can transfer music I make to tapes and give them away. I can make copies of my home movies and give them away.

That's your own product, which you own in the first place, so there is no difficulty or ambiguity there.

The existence of the technology doesn't justify the usage in ways that you shouldn't.

The nature of the "shouldn't" is precisely what we are discussing . . . we all agree on the general principle. It is how it is sensibly applied, which is the issue.

I would think this would be plainly obvious that you don't take what is not yours.

Exactly. But general proverbs and truisms do not solve our problem. Rigorous examination of the issues is required.

Using a PC at Kinkos or the library is perfectly within the bounds of the license agreement.

Back to the legal thing again . . . it's okay if that is the only way you want to analyze it, but my discussion goes deeper than law, to the ethics and principles ostensibly behind law. What is legal is not always what is right (clearly so).

And borrowing a book is understood to be perfectly normal and has been for hundreds of years.

Which is why my argument is so compelling . . . :-)

Perhaps at one time, someone might not have thought of prosecuting someone for handcopying a book they wanted, because who would have the time? Technology has created the possibility of crimes that didn't exist at one time.

Also, it has made sloppy thinking more prevalent . . .

I am curious why you think making a copy of Biblical Defense from a friend's copy stinks?

Because I don't get any recompense for it.

Under your reasoning, it should be a morally neutral action if I wouldn't have otherwise bought it.

I have stated that this discussion is eminently paradoxical. Instinctively, I believe that I should get a "cut" for every time my book is read. That seems very clear and just. Yet I can't defeat my own analogies that show me that there will be times when it is morally read without me getting paid. Within the framework of my reductio ad absurdum, it is morally neutral . . . until my reductio is defeated, that will be my opinion, but that doesn't mean that I don't feel conflicted about it, or uneasy with that state of affairs. I'm affected by this, as an author. At the same time, I download from Napster, which is perfectly legal, and, I think, perfectly moral. But what I'm trying to do is reason through the ethics, not just lash out with knee-jerk reactions, like many in the music business are doing.

It would seem you would not be harmed by this action.

I am because I make roughly one-third my living off of book royalties. It's not like I am wealthy by other means and have a book on the side. It's what I do. It's my vocation. Every time I am deprived of one of these royalties, I am harmed in a very real, practical way. I gotta pay my bills. I work hard writing and doing apologetics, and am trying to receive halfway decent, just wages for that service I am providing for others. So buy some books, guys! LOL

So why does it stink?

See the above.

I did buy all your books by the way when you ran that $25 special a while back. Great bargain.

Thank you very much. So you are making it possible for me to do what I do, and I will be eternally grateful for that, to you and all others who buy books or make a donation. I can use many more, believe me. I don't beg and plead. I simply make the need known, and hope that people who have already said that they thought my work was valuable, to help make it possible to keep doing it.

OK. So it wasn't really short. :)

But it was FUN. See? No one should be wary of "debating" me. I'm just a big teddy bear . . . :-)


Here's an interesting paper: "Ethics in a Peer-to-Peer World".


I assume once you get your cut from the used book store, you will promptly send part of the money to the distributor of your original book. The distributor will then send some to the publisher who will then send some to his paper and ink suppliers. The paper supplier will then forward a payment to the trucking company that hauled the pulp to make the paper. The trucking company will than send some money to the people who cut the wood for the pulp. The forestry workers will then send some money to the people who own the wood lot. The owner of the wood lot will send some to the government. The govenrment will then share the proceeds with all the citizens since society as a whole made it possible for you to write the book in the first place. All these people helped to make your book possible so why should somebody be able to buy your book as a used item without their being compensated for their work?

Perhaps royalties are set based on an estimate of the number of books that will be resold, copied or loaned. If this is the case and people hang on to your book you actually come out ahead.

The following is from your original post

No to all, in my opinion. I think the ethics depends (largely, but not solely) on whether someone was going to buy a product in the first place.
This can be taken two ways.

1) I have no intention of buying this product so I can copy it for free.
2) No one will ever buy this product so I can copy it for free.

Concerning number 1: I have no intention of buying a lottery ticket. Does it then follow that I can shoplift the ticket from the drugstore counter?

Concerning number 2: It is 5 minutes to closing time. Five of my buddies who along with me have no intention of buying lottery tickets are behind me in the lineup at the counter. Twenty lottery tickets remain to be sold. Obviously the tickets will not be sold before their expiry time. Do I then have the right to shoplift as many tickets as I can?

Good stuff. Your first reductio is fun; however (commonly and legally), it is the author who receives royalties for further copies sold. The publisher, of course, gets an even bigger cut, but has far more expenses. The middle man gets his cut too. So I don't see how your chain (though great fun) can really be applicable to the issue of royalties and compensation for publisher and profit for bookseller.

As for your second part, #2 does not apply to my argument. #1 does, but has to be clarified and modified somewhat. I should modify the relative importance of this factor (my language above in that regard is excessive). This particular line of thought is in response to the specific sub-charge that sales of an item are harmed by copying in various ways, but it's not really central to my argument, as I have developed it and clarified through the challenges presently received.

I made the point that to copy something when you wouldn't have bought the item new, does not deprive the creator of any profit because if you don't buy it new in any event, they don't profit, and if you copy it, they don't profit. Copying has been shown, I think, to be both legal and moral in most cases, by the reductios I have offered, and also by law (for the most part), and by accepted uses, such as tape recorders and VCRs. No one has shown me that libraries don't deprive creators of royalties, just like various forms of replication do. I continue to see no ethical difference in all these examples.

In the paper I linked to above, one interesting fact they showed was that the more someone burned CD's, the more new CD's they bought. Obviously, then, any slump in sales in the music industry can't be blamed on CD burning and MP3's. The cause will have to be sought elsewhere. And one can probably make the case that available MP3s actually create more interest in music and thus more sales. In this case, the effect on music sales (from this sector) would be the exact opposite of what the contention of the opponents of Napster et al is.

Outright theft, shoplifting or stealing off the shelf is not condoned by anyone, of course. This is itself a reductio for a position contrary to my own. The difference is that replication, by definition, copies something already purchased or "put out" for public consumption (such as a TV show or songs on the radio). If it is understood that there are a wide variety of instances where things already purchased can be copied or used by another (in effect — in many respects — the same as copying), then this is essentially different from theft. No one will argue that you can simply take a product off a shelf. But if your brother or friend buys it and then you utilize it in some way, by listening, reading, using, etc. or replicating it (you could, e.g., be in the next room or in the car when he plays his new CD), then that gets us back to my reductios, where it becomes very difficult to want to outlaw libraries and all used sales and "secondary" uses, etc.

There is also the ethical distinction between:

1) not buying, and
2) taking and not paying for

Everyone recognizes that there is nothing wrong with deciding not to purchase some item on the store shelf. But you can't take something without buying it. Once someone buys it, it may be replicated (excluding profitable uses), but someone did buy the item under consideration. It was sold and thus provided as much profit as it individually could. Or if, say it is a movie, it may have been shown on TV, which allows people to tape it. That's clearly not theft because the creator somewhere along the line allowed it to be broadcast.

So it comes down to the nature of sharing "intellectual property." I continue to find this subject a fascinating instance of a profound paradox. I think any position one takes entails conundrums and intuitive "problems."

Dave, first of all, this is very good food for thought. Definitely a perspective I'd never considered before, and it makes a lot of sense.

My one "ethical concern" with the Internet is that it basically multiplies the possibilities of copying music, movies, books, etc. by a magnitude far greater than ever before. How so?

With libraries and video rental stores, they at least (1) have to have bought all of the copies that they loan out, and (2) can only rent each out to one person at a time. Of course, as individuals may make copies of the copies they are renting/borrowing, then the possibilities can increase here as well.

But with the Internet, the possibilities are almost unlimited in comparison. Basically, there seems to be much less control (if any at all) with the Internet and newer technology. I can't say with certainty that this necessarily makes it wrong, but I think this at least explains why many people (including myself) are much more hesitant to support all of the copying and free downloading taking place in this arena.

Going along with this, the concern is also that when such a new and universal easy way of copying/free downloading is available, won't people be more and more inclined to think that they never "really" need or want to buy something, not because they don't want it or can't afford it, but precisely because the free access to it is so widely available?

(Note: I apologize if this has already been said, but I didn't have the time to read everything.)

I think these are serious concerns. I, like you, don't have it all worked out. My main purpose in my post was to rebel against the cavalierly-expressed notion (Dennis Prager's remarks of this sort on his radio show initially motivated me) that almost all replication is stealing, as if it is a simple, non-ambiguous matter. It's not, as I think we all have shown, from all the viewpoints expressed.

It's precisely the intersection of the factor of "increasing possibilities for replication" and the seeming lack of any change of overall ethical principle involved in same that is paradoxical. In other words, at what quantitative point can we say that replication of something becomes wrong? For if it was right in Instance #1, how could it switch over to being wrong in Instance #4,032? Intuitively, it seems different, but at what point did the ethical principle change, and how and why?

The ethical principle (whatever it is), it seems to me, has to be present in the first instance. Thus, abortion is (from the Christian, biblical perspective) wrong whenever it occurs, not just because it occurs 1.5 million times a year in the US. If it's wrong once, it's wrong 1.5 million times (and the numbers increase the monstrous evil, because each instance is wrong, and these are multiplied by the millions; God help us). And if it is essentially right and justifiable, then numbers are irrelevant.

If replication of this sort is wrong, it is (or should be) the first time, and that includes a simple photocopy at a library or a copy made on a VCR or audio replication equipment. But then that seems to take it too far. And on and on the paradox goes . . .

The "mindset" factor that you discussed at the end might possibly be one pathway to resolve this, but thus far, I don't think it's been shown that widespread replication is hurting the music industry. As one study showed, purchases of CD's are positively related to how many CD's one burns, not inversely proportionate. No one in their right mind would say that Microsoft is hurting, as far as that goes . . .

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