Ethics of copying for personal use

Randy Cohen writes a weekly column for the New York Times, The Ethicist. It’s usually a good read: Mr Cohen keeps an entertaining sense of humour as he gives his opinion on ethical points of everyday life. He occasionally arrives where ethics meet technology, as in a recent column that considered whether it’s OK to download an unofficial copy of something you’ve already bought a legitimate copy of.

Randy’s opinion? It’s illegal, unfortunately, but ethical:

An illegal download is — to use an ugly word — illegal. But in this case, it is not unethical. Author and publisher are entitled to be paid for their work, and by purchasing the hardcover, you did so. Your subsequent downloading is akin to buying a CD, then copying it to your iPod.

Buying a book or a piece of music should be regarded as a license to enjoy it on any platform. Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you’ve violated the publishing company’s legal right to control the distribution of its intellectual property, but you’ve done no harm or so little as to meet my threshold of acceptability.

I fully agree with his evaluation. In fact, I usually take a strong stance against illegal copying. Arguments that content providers are money-hungry megaliths that deserve no accommodation hold no water. Observations that they are actually well served by “sampling”, because it ultimately leads to more sales (of other, related material) are useful, but not relevant. Reminders that there are artists who are happy to have people spreading their work around on the Internet are beside the point.

Because the point is that artists and content providers get to choose, and it’s right that they do. Wise ones will understand the benefits of liberal policies in this regard, and will embrace the technology. I’d be happy to see the rest go out of business. And, yet, it remains their choice, not ours. If they choose an antiquated business model, I’ll cheerfully wave goodbye and give my money to the more enlightened.

But then there’s the question brought up at least in the 1970s, if not earlier, when it became easy to make audio-cassette copies of recorded music. The arguments have been repeated many times since, with video-taping of movies shown on television, copying of rented videotapes, “ripping” and copying of CDs and then DVDs, time-shifting of television programs with DVRs, and so on. In fact, an entire technology — remember Digital Audio Tape (DAT)? — was derailed in the consumer market because of copy-protection issues.

The question of copying digital books is merely the most recent battle in a 40-year war between consumers and copyright holders.

The law is insufficiently clear, and has gone forward and back on the matter, but decisions generally fall in favour of the copyright holders: You generally can’t legally copy a copyrighted work, even for personal use, without permission.

But morally, ethically, when you buy — not rent, not borrow, not use over a common carrier, not view in a public screening, but buy — a copyrighted work, you expect certain rights to what you’ve bought, including at least:

1. the right to read/hear/view (henceforth, “use”) it whenever and wherever you like;
2. the right to lend it to a friend, who can use it and give it back when she’s done;
3. the right to give it away — or even sell it — when you no longer want it, transferring all rights of use to the new owner;
4. the right to keep using it indefinitely, essentially forever.

We can certainly do all of those with paper books. If you can’t sleep, you turn on the light, pick up your book, and read for a while. When you travel, you bring your book with you on the plane or to the beach. You can clearly lend the book out, give it away, trade it, or sell it. And it will always work: you can read it over and over, as long as you want, until the pages fall out.

But different media technologies allow increasing restrictions. Music files that you buy on the Internet may only be playable on the computer you bought them on, and might not be transferrable to another. You might be able to play things on an iPod, but not another brand of music player. You can’t always lend or give things to your friends, and there might be time limits on your own use.

These restrictions have no ethical validity. They’re mostly trying to protect the copyright holders from things they have reasonable rights to want to prevent — copying the material in a way that allows multiple people to use a single purchase simultaneously. But those protection mechanisms cause collateral problems with ethically legitimate uses — even if not strictly legally legitimate, because, as Randy says, the laws lag the technology.

What makes is worse, though, is when it is not accidental: when copyright holders intentionally take advantage of that lag to assert rights that they should not have, to limit use in unethical ways, simply because they can, and because they see an opportunity there.

An opportunity to sell multiple copies of a book to the same consumer, by releasing the digital version later than the paper one. An opportunity to use DVD region coding to prevent discs purchased in Europe from being used in North America. An opportunity to make fans replace their music libraries over time because of how the digital-rights-management software works.

An opportunity to mistreat their customers.

The best we can do when we see that happening is take our business elsewhere. As I said above, wave goodbye and give our money to the more enlightened.