"If you make unauthorized copies of copyrighted music recordings, you're stealing."

Agree?

If so, I think you'll find you'll be surprised what this is currently supposed to mean:

In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

In other words, if you copy music you have legally purchased onto your own computer, you are a criminal; you are breaking the law.

I've been meaning to write a post here about my own stance on copyright: many of you who know me in real life will be surprised to learn my views on the matter, given my general insistence on paying for the music I listen to, and the (non-free) software I use.

Although Christians are enjoined to obey law when it doesn't create danger or a greater evil, we don't generally believe that "good" and "bad" are the same thing as "legal" and "illegal". Sometimes, this means we have to think a bit about what we're doing, and why.

For example, consider speeding. Is it morally wrong, per se, to drive 80 miles per hour? If you put someone else's life (or even your own) in danger, certainly that's a moral wrong. And what if someone's life was at stake? Then it might be immoral not to drive fast. But what about, say, on a clear day in Montana, with miles of visibility before and behind and not a car in sight? In that case, the main issue is simply not creating a conflict with the state, even if there is no other more compelling moral reason. Thus, generally, just as Jesus paid the temple tax simply not to offend the authorities, so also we should do most of what we're asked for the same reason. If it isn't hurting someone, try not to break the law.

But I don't believe, aside from the general injunction to obey the law when not onerous, that copyright has any true moral validity, other than custom.

The Moral Basis of US "Intellectual Property" Law

To explain, we have to go back to the Constitution. The rights granted therein are "natural" or "negative" rights -- not (for example) the "right" to have food, clothing, shelter or medicine provided to you (in which case, someone must be forced to provide these to you), but rather the right to speak freely, to do what one wishes with one's property, to pursue happiness, etc. To freely exercise the power that "Nature and Nature's God" has given us, and to limit Federal interference therein.

My readings lead me to believe that the Founding Fathers recognized that intellectual property, and a patent system, was an infringement on one's right to do what one wished with one's property. But, on the whole, they also felt it was a worthwhile trade-off. If I purchased a book, and a pen and paper, why shouldn't I be allowed to copy those words from the book to the paper, and sell it to whomever I wished for a price we'd both agree upon? Why shouldn't I be able to arrange various wires and screws into a machine someone else invented before me? (Particularly if I wasn't even aware I was replicating a pre-existing invention?)

It wasn't really that the Founders thought people "owned" ideas, and had a philosophical or moral right to stop or control their transmission, but simply that this trade-off (several years of protection, followed by the invention or work becoming a permanent part of the public domain) would create the incentive to create more freely-available material and discoveries.

And, so that you'll understand that I'm not simply making this up...

Jefferson, a strong proponent of equality among all people, was not sure if it was fair or even constitutional to grant what was essentially a monopoly to an inventor, who would then be able to grant the use of his idea only to those who could afford it. His feeling that all should have total access to new technology was one of the reasons he never took out a patent on his own inventions. This is consistent in his belief in the natural right of all mankind to share useful improvements without restraints. He felt that inventions can not, in nature, be a subject of property and that the promiscuous granting of patents was not only against the theory of popular government, but would be pernicious in its consequences. (Curtis, 1901) In fact he referred to patents as "embarrassments to the public" (McLaughlin, 1989).

"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society..."

Notice again that the main point of patents and other exclusive grants is to benefit society, and the alleged "rights" (we call everything "rights" these days) of the inventors took a distant backseat. And Jefferson was not wrong or unusual in so saying -- look closely at the text of the US Constitution itself:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...

Notice that the entire purpose of the Patent and Copyright system, in the Constitution, is only to "promote the progress of science and useful arts" -- by securing, for limited times, protection to authors and inventors. The times were to be limited, and the purpose was strictly utilitarian -- nothing about the inherent right of authors to control their "intellectual property". And it's only an option (a "power"), not an obligation to do so.

This can be seen even more clearly in the negative. If copying a book or song were really "theft" to these Founders, in the same sense as taking a man's horse or house, then they never would have extended the protection "for limited times". After all, is it suddenly already to steal a man's horse after seven years? And also consider that there is a longstanding right to "fair use", by which small snippets of copyright works can be freely distributed, even against the author's wishes -- meaning an author really does not have an absolute right to control their own ideas or words, in the same sense a property owner generally controls his or her own property.

Today

So I'm compelled to obey "intellectual property" laws in the same sense I'm compelled to obey other laws -- because I feel we should do our best to obey all laws which are not onerous and which do not conflict with a higher moral law.

But I'm not certainly not compelled to agree with the current arrangement, and I do not. To review, the Founders felt that the purpose of exclusive rights to inventions and works was to increase the public good, and Congress was charged with granting such rights only as a means to that end. If a kind of protection harmed or diminished public good, one has every reason to suggest it is at least unconstitutional, if not downright immoral.

Today, a person who has copied music they legally purchased to their own computer is being charged as a criminal, and being asked to pay $9,250 per legally-purchased song. Today, as I work my job, it is arguable that I may be inadvertently violating patent after patent as I construct software -- and we'll have to go court before I can be proved innocent or found guilty. (And I'm liable for the court fees even if I'm utterly innocent!) Today, as technology changes faster than ever -- and products become obsolete faster than ever (meaning that old software has no public domain value at all) -- exclusive rights have been extended even to mathematical algorithms! -- and can last far longer than the software author's life. Even something as stupid as swinging side-to-side on a swing can be patented (and has), turning many children into unwitting lawbreakers.

Besides being clearly against the best interest of the public, these practices are also deeply immoral -- much like the numerous and impossible laws of the Pharisees, they convert even would-be law-abiding citizens into criminals if they wish to earn a living. (And, in a similar way, they make sure that nobody can go about their business without paying lots of "protection money" to the lawyers.)

In closing, other than as a legal fiction, there is no such thing as "intellectual property". I agree that a few measures might still make sense, such as the granting of patents (for provably new machines and drugs -- not business processes) and a limited kind of software protection, for a much shorter lifespan than copyrights traditionally cover, and limited protection for books and songs.

But, again, the only moral litmus test involved regards how such practices improve or harm society. And clearly, looking at the current more complete set of practices and law, the harm outweighs good. Yet even good and well-meaning people have bought into the idea that people should have complete control over their "intellectual property", and that copying a book (or even a paragraph!) is the moral equivalent equivalent of theft.

There is no such thing, it is not, and that entire mindset needs to be rejected, as it is currently leading, as Jefferson predicted, to far more harm than good. I'm not advocating breaking the law -- I'm advocating ditching most or all of it, as it's frequently harmful and immoral.

I'm hoping you'll agree.