If two joggers wearing portable CD players meet, and one gives the other their CD of Barry Manilow’s Greatest Hits, and the other reciprocates with their CD of Cher’s Greatest Hits, then each jogger still has just one CD each.
However, if two basket weavers meet at a market, and each, in admiring the craftsmanship of the others’ work, agrees to weave the other a replica of the one basket they each have left, then they both end up with two baskets each.
So, clearly, with material handicrafts, exchanges are more productive, whereas with intellectual works and digital technologies they are not.
Well, this is the counter-conclusion to the frequently quoted George Bernard Shaw aphorism: “If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”
The point about sharing or communicating ideas is that it involves copying. We do not yet have the technology to manufacture copies of apples as easily as we may manufacture copies of baskets.
- Exchanging intellectual works, or ‘communication’, is typically accomplished by copying rather than movement – because copying is usually cheap.
- Exchanging material works, or ‘barter’, is typically accomplished by movement rather than copying – because copying is usually expensive.
An exchange simply means that two parties each perform an action as part of what is usually agreed to be an equitable transaction, where each party receives something from the other. Whether copies are produced in the exchange is coincidental, and simply indicates that productive labour took place rather than only transfer of property.
The only peculiarity of ideas (as opposed to any externally fixed intellectual work) is that while they may be copied (given comprehendable explanations), they are almost impossible to remove from the possession of their owners, except perhaps by induced amnesia or hypnosis.
So, apart from the inaccessibility of human minds, there’s no magic in communication (copying) vs barter (moving).
Given the absence of magic in copying, we can instead wonder at the motivation for quoting Bernard Shaw’s aphorism.
The quote is typically used to suggest that intellectual property is an oxymoron or that (given copying is facially productive) there can be no such thing as theft of intellectual property. For example, if you steal my one basket, I have no baskets, whereas if you steal a copy of my CD, I still have it. This is to misunderstand the wrong in stealing. The rights violation is not simply to diminish someone’s property, but to violate their privacy (property derives from the right to privacy). The logical remedy is to undo the violation, i.e. to return the material or intellectual work removed (including any copies manufactured).
Thus if you had instead burgled my private workshop to make a basket with your own materials that copied my new, secret basket design, despite no material theft this would still be stealing, i.e. theft of my intellectual work in my private possession, theft of my intellectual property, violation of an inventor’s exclusive rights to their designs. It doesn’t matter that you are productive in your act of stealing a copy you’ve made.
Just as it is invalid to say that productive theft cannot be stealing, so it is also invalid to say that infringements of privileges are stealing. If you buy a CD recording of a concert you attended and make a copy of what is your own property, you have violated no-one’s privacy. There can be no theft – whether of material or intellectual property. You may be infringing someone’s privilege (of copyright), but that is not theft.
As for the violation of exclusive rights (as recognised of authors and inventors by the US Constitution), this requires removal, communication or copying to occur across the boundary of a private domain (without the owner’s permission), although this can be abetted by further distribution of the intellectual property so stolen.
We should conclude that communication can violate rights in only the following ways:
- It constrains another’s liberty (drowns out another’s speech)
- It impairs the truth (deceives or misrepresents)
- It commits or abets a privacy violation (distributes stolen IP)
- It jeopardises life (incites violence)
Communication is the copying of information. Human communication is speech, and moreover the liberty to communicate is a fundamental right not only necessary for the individual, but also for cultural exchange. It cannot be abrogated to create a transferable privilege for the commercial benefit of printers. That said, immortal coporations having no rights may be regulated and subject to such monopolies if a government can demonstrate this as being beneficial to its mortal citizens.
Therefore, as long as no rights are violated, any copyright infringement that occurs in an individual’s communication cannot render their act unethical. Moreover one could say that such copyright infringement is ethical.