A few weeks ago I wrote about an ethical dilemma
I had while gathering prep material online for law school midterms. Concern
took me to task for accepting the absurd statement one school's website placed above a set of links to study materials, which essentially said, "Here are a bunch of links, but we don't want anyone outside our school to use them." These were direct links, on an open site with no directory logins or other security.
I was looking at the issue not as a legal one, but as an ethical one. Lately I've been struggling to come up with a clear ethical framework from which to determine for myself whether a particular business action or law is right or wrong. There's an awful lot of binary thinking behind arguments about DRM, filesharing, and related issues. Every time legal action comes up, the usual discussions take place, with some people arguing that content creators should have no ability to limit what can be done with that content after sale, and others arguing that intellectual property is the foundation of a postmodern economy and therefore content owners should be allowed to place whatever restrictions on content they please.
I think that intellectual property and fair use are both more important than ever before. We need a radically shorter copyright term. We need to preserve fair use rights. We need a more transparent and discerning USPTO. Corporations will do just fine if we modify the IP regime to be more consumer-friendly. I think it will stimulate competition, in contrast to the current system, which rewards big corporate entities and submarine patent holders, at the expense of small/midsize businesses and everyday consumers.
In spite of all that, I don't buy the argument that it is ethically sound to download thousands of songs I never paid for from a P2P network. We're not talking about the mix tapes of my youth. The scale is orders of magnitude greater. The music industry has been screwing customers for decades, and is a bloated middleman. Still, I don't believe that the concept of fair use can logically be extended to incorporate the swapping of files from purchased CDs. If fair use was designed to give customers the ability to use purchased works in a reasonable fashion, the original Napster was designed so that Napster could profit while people traded purchased works in an unreasonable fashion.
Which brings me back to the post from a few weeks ago. Although legally the school's directive against use of its materials made no sense, I wondered if the intent of an actor should matter to me. Should I care that the professors at this school posted material on the Web but did not want people outside their school to use it?
Concern focused our discussion quite well with this bit:
There is an important detail emerging here, which is the "security accident." I would say there is an ethical distinction distinction between reading an accidental release of information, and a paper that is willfully published but with this ridiculous expectation.
In other words, in the case of the person who expects to be paid when people look at him: is he observed while walking down the street, or after you sneak into his private quarters for a free peek? As far as the internet goes, I would again draw a complaint with your analogy of "leaving the door unlocked." I'd say there is no door, and no walls. It's more a matter of, "I'd like to be naked, however, I feel the need to do this while driving down the highway, so I'm doing that, and I'm still upset you're staring at me, just because I forgot to buy tinted windows." Alright, now I'm just going metaphor crazy. Obviously it depends on the situation. I like to think it should be clear enough what someone expected would be a secret, if they are doing any reasonably job of trying to keep it. I also take a dim view of anyone who believes the government should or could somehow be expected to put your cat back in your bag, if it gets out.
I thought about that for a bit before I really could no longer ignore my midterm preparations. After exams were done, I talked with a few of my (non-law school) friends about it, to see what they thought. One of them made the point that the entire purpose of the Internet is to spread information. The school wanted to take advantage of this while arbitrarily imposing their own constraints, without resorting to the minimal effort of something like a password-protected directory.
Something still bothered me, though. The people who posted the study materials on their website explicitly asked that I not use the materials. Their request was obviously unreasonable. But would I be in any way worse off if I did not download the materials? While it takes only a click on a link to download the materials, it also only takes a click for me to go elsewhere.
I think the answer is that although I could easily just not download the material, information really does want to be free, in that humans need it. Without the sharing of information, we wouldn't be humans. If our primate predecessors had not shared information, we'd all be barely surviving without tools, fire, or any of the other spiffy things that followed. Protection of information is, as Concern was telling me, a human construct. I see it as a trade off. We constrain the flow of some information so that it can enrich people who combine information in new ways. I doubt that a commons-only approach could ever really work. But a world where all information is controlled by private actors is far more terrifying to contemplate.
Did I download those study materials? No. Will I download them next semester? Maybe. They're out there on the open Internet, in plain view, just like the man driving his car naked on the freeway.