Intellectual property is a form of legally protected property. All the controversial issues surrounding intellectual property from the perspective of criminal justice ethics stem from its conceptualization as a form of property. The items in the world that are identified as intellectual property are the products of creativity and inventiveness. Intellectual property as a legal regime is designed to regulate the ownership, acquisition, and transfer of these items, just as the legal regimes to do with everyday chattel property (e.g., one’s books, automobile, furniture) and with real property (land and buildings) are designed to regulate the ownership, acquisition, and transfer of these items. The products of creativity and inventiveness are in fundamental ways not like everyday objects and land/buildings, yet because they are conceptualized as property everyday objects and land/buildings form the paradigms for the design of legal regulation. To the extent that the products of creativity and inventiveness are different and yet the modes of regulation assume they are similar, ethical tensions will result.
The regulation of the ownership, acquisition, and transfer of property is in the first instance the domain of private or civil law, not criminal law. Property law regulates how an individual purchases a laptop computer, for example; what obligations the manufacturer may have to repair its defects; how legal ownership of the laptop is to pass to someone else; what obligations to pay damages accrue to someone who negligently harms it; and so forth. The criminal law should get involved—through laws against theft, against criminal damage, against fraud, and so forth— only when the criminalized act constitutes a public wrong, a wrong not to a laptop owner personally but to the community as a whole; that is, only for such wrongs is the wrongdoer answerable to the community, with the state pursuing the wrongdoer in the name of the community. Now, in the case of everyday objects and land/buildings it is not hard to construct an abstract argument to justify a regulatory scheme for such property that meets this condition for being enforceable by the state. In a world of finite resources, it is to the benefit of all that there be rules in place that regulate the fair allocation of such resources. In order to preserve a fair allocation society adopts some burden of self-restraint in the acquisition of resources. When someone refuses that burden and breaks the rules, they obtain an unfair advantage. Society is then justified in setting up agencies to monitor for rule-breaking and to enforce penalties for breaking the rules. Such a system is in the interest of all.
Problems come with respect to intellectual property because in many ways it is hard to make it fit the paradigm that underpins the above argument. There are no limits to the products of creativity and inventiveness; there is no scarcity to justify enforcement of an allocative scheme. In the 21st century, much intellectual property exists in a digitizable form, and yet conventional property norms assume a physical object as the paradigm of property. So, for example, if A steals B’s laptop, B no longer has the laptop; A has it. But if C downloads D’s song or software in breach of copyright, D still has the song or the software. As sketched above, property offenses presume a kind of formal equality of owners. As far as concerns the status of the owner, anyone who owns according to the rules has the same rights as anyone else who owns according to the rules. (There may be vast inequalities in the practical matter of an ability to access the civil justice system in order to enforce ownership, but that is a different issue.) Intellectual property does not fit this paradigm. Intellectual property is concentrated largely in the hands of corporations. Some of the largest corporations in the world are primarily possessors of intellectual property—software corporations, media corporations, plant-breeding corporations. It is easy to see that a physical property owner has an interest in a legal scheme that protects ownership of a house or automobile. It is not so easy to see what interest an intellectual property owner has in the legal protection of the interests and the wealth of a giant multinational corporation.
U.S. federal law presents a typical pattern of criminalization in the case of intellectual property. Trademark law creates no criminal offenses: breaches of the law are a matter for civil liability. Patent law creates no offenses, although the Patent Office is authorized if it suspects fraud to pass information to the authorities for possible criminal investigation under fraud statutes. Trade secrets are again left largely as a matter of civil law; as far as pursuing those who misuse trade secrets under criminal laws, the matter is unclear at the present time since the Aleynikov case. Only in the case of copyright does one find the breaching of copyright laws turned into a criminal offense. The Digital Millennium Copyright Act criminalizes various activities having to do with breaking through rights management technology, obtaining and distributing copyrighted material without the permission of the copyright holder, and so forth. The Canadian Copyright Act of 2012 has similar provisions.
The problem posed for criminal justice ethics, however, is that familiarly the laws creating these offenses are widely ignored and broken. Numerous Web sites offer music, videos, software, literary, and other texts, photographs, and so forth without the express permission of the copyright holder, and very often at no charge. Estimates of the percentage of college students who download illegally range from 20 percent to 95 percent, with the higher figures generally coming from music industry sources.
It is widely acknowledged that students are well aware they are breaking the law. Almost none of them thinks they are free to take their neighbor’s car or lawn mower any time they want. But they do think they can appropriate copyrighted material any time they want.
Many arguments are offered: “I would not be buying it anyway, so I am not harming the copyright holder”; “record and software corporations gouge their customers anyway, so they have forfeited the right to complain”; “the practice actually promotes the goals of copyright, since it ensures more circulation for the copyrighted material”; “as long as I only use what I download myself and don’t exploit the material commercially, I am doing no wrong.”
The latter two arguments are the most interesting ethically. Research by Jared Hansen and Erik Walden suggests that downloaders and filesharers of copyrighted material that do not have permission to download or share nonetheless justify their activities by appealing to some notion of fair use or fair dealing, concepts which are as a matter of fact central to the operation of all legislation creating copyright. Acquisition and possession of one copy of copyrighted material without permission but for educational purposes is regarded as “fair use,” for example, as is used for purposes of creating a new transformative work such as a parody or a work of appropriation art. Commonly, students draw a clear line between illegal acquisition for commercial purposes or financial gain, and illegal acquisition for personal and private enjoyment. The former they acknowledge as a form of property theft; the latter they consider fair use. As an argument, vital steps are still missing: presumably, pleasure from a joyride in a neighbor’s car, or from swimming in a neighbor’s pool, does not mean that an individual is entitled to take her neighbor’s car without permission or to trespass in his neighbor’s backyard.
There is a serious question whether the existing copyright regime meets the conditions outlined earlier for when the creation of criminal offenses in relation to property is justified. In a sense all people can be creators, as all can be possessors of chattel property or real property. If creativity means, however, what it is supposed to mean— a special kind of talent that it is in society’s best interest to encourage—then a regime is needed under which creators can profit from their creativity. It is a matter of active debate whether it is in the best interest of society to bear the burden of a state apparatus to enforce such a regime through the criminal law.
- Duff, R. A. Answering for Crime: Responsibility and Liability in the Criminal Law. Oxford: Hart, 2007.
- Hansen, Jared M. and Eric A. Walden. “It’s Not Stealing, It’s Just Borrowing: Understanding Consumer’s Perceptions of the Legal and Ethical Implications of Sharing Intellectual Property.” http://ssrn.com/abstract=1311988 (Accessed August 2013).
- Hick, Darren Hudson. “Appropriation and Transformation.” Fordham Intellectual Property, Media and Entertainment Law Journal, v.23 (2013). http://ssrn.com/abstract=2266171 (Accessed August 2013).
- Johnson, Deborah. Computer Ethics. 4th ed. Upper Saddle River, NJ: Prenctice-Hall, 2009.
- Merges, Robert P. Justifying Intellectual Property. Cambridge, MA: Harvard University Press, 2010.
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