## What is the Moral Highground of Copyright?

A very brief summary of the "moral highground" of copyright is as follows:

- Copyright is a natural right of authors. Therefore any infringement of copyright and any attempt to reduce copyright in any way deprives authors of their natural rights.
- A beneficial side-effect of copyright is that it enables authors to receive payment. Therefore any infringement of copyright or any reduction of copyright deprives authors of payments that they would receive for their work.
- A beneficial side-effect of payment to authors is that it enables and encourages authors to produce works which the public can enjoy. Therefore any infringement of copyright or any reduction of copyright reduces the availability of enjoyable works.

## Arguing For The Moral Highground

When you inhabit a "moral highground", just being on that highground gives you an advantage over everyone else.

Anyone who argues against your moral proposition is immoral, just because they are arguing against it.

Anyone who argues against any measure that you advocate in support of defending your moral proposition is also immoral, because in doing so they are implicitly supporting those who would immorally ignore the moral proposition that defines your moral highground.

When you argue for a moral proposition from the moral highground, you don't need to explain the moral proposition in terms of any other moral proposition, you merely need to assume the proposition that you are attempting to prove.

If you did this with a mathematical argument, your circularity would be immediately exposed, and your arguments would be ineffective. But morality is not quite the same as mathematics. If people already believe in a certain moral proposition, then that moral proposition is true, simply because people believe in it.

And so it is, in the world today, with copyright.

(Caveat: I know that I may be using the term "moral highground" somewhat incorrectly, as it is usually used in the sense of "I advocate moral proposition X, and furthermore, I personally always act in accordance with moral proposition X, even when that requires some sacrifice on my part", which is similar to, but not the quite the same as what I am trying to talk about.)

## Copyright Skepticism That Fails to Confront the Moral Highground

Traditionally people have accepted the moral justification of copyright, perhaps because it didn't cost them much to do so.

But in the Internet/Computer age, some of us have become aware that copyright is not without cost, and especially that the enforcement of copyright has costs, some of which may be unacceptably high if taken to extremes.

This gives rise to a substantial movement of people either against copyright, or at least skeptical about copyright, and generally against some of the measures that are seen as necessary to enforce copyright.

However, many of the arguments given by those skeptical of copyright fail to directly confront the moral assumptions underlying copyright.

Here are some examples:

- Copyright-based industries need to find better business models.
- Some authors succeed in making money without agressively enforcing their "rights" as copyright holders.
- Copyright laws sometimes fail to take into account the needs of disabled people (for example e-book DRM that prevents content being provided in forms useful to blind or partly blind readers).
- Once a record company sued a little lady for piracy, and she hadn't actually done anything.
- Once a record company sued a cute 5 year old for doing a cover of some famous band's top-ten hit and posting a video of it on-line.
- DRM prevents even "fair use" of excerpts of copyrighted works.
- Some DRM interferes with the normal operation of personal computers of the consumers who buy "protected" content.
- Record companies often rip off performers. (So copyright doesn't benefit those performers very much.)
- People in poor countries can't afford to buy legal licensed content at the full price.

All of these arguments fail to directly confront the moral highground, and therefore they leave the moral highground intact.

In as much as these arguments present their own moral issues, they lead to the infamous notion of "balance" between opposing moral considerations. (As opposed to what really matters, which is the balance between the costs and benefits of copyright and copyright enforcement, also see below where I discuss RMS's earlier article on that subject.)

Those arguing in favour of unlimited copyright enforcement can simply ignore these arguments, and re-iterate the original moral proposition, i.e. that copyright is a natural and beneficial right of authors, which must be "protected" against piracy.

## How to Argue Against the Moral Highground

To argue against a moral highground, you have to risk being perceived as immoral, because you have to argue for things which are immoral, as judged by the existing moral proposition which everyone believes in.

For example, here are some "immoral" suggestions about how we could change copyright:

- It is possible to imagine a world in which if you are the author of a "work" and you publish your work, you do not have the right to prevent other people from sharing files with each other, where those files might be copies of your work.
- It is possible to imagine a world in which authors of "works" do not have a "right" to receive income for their efforts, even though society recognises that those authors have made an effort, and society does benefit from their efforts, and the authors would therefore "deserve" to receive some income.
- It is possible to imagine a world in which authors receive income, but the method for determining the income they receive does not depend on the ability to prevent file-sharing.
- Copyright should depend on public benefit, and not the other way round. If we reduce copyright in some way, perhaps because copyright works well in some circumstances and not so well in other circumstances, then we can choose to do so.
- Maybe, in the past, the benefits of copyright exceeded the costs of copyright, but now that we have the possibilities of unlimited information sharing and re-use due to personal computers and the internet, perhaps the costs exceed the benefits, and we should seriously look at reducing or eliminating some aspects of copyright.

You will notice a number of "imaginings" in that list of examples. In this article I'm not even trying to say exactly how copyright should be reduced, altered or replaced with something else. I'm just trying to emphasize that we need to consider the possibilities.

## Prior Art: Richard M Stallman

The earliest and clearest explanation of how copyright should be driven by public benefit and not the other way round, that I am aware of, is Richard Stallman's article Misinterpreting Copyright – A Series of Errors, originally published in 2002, in which, among other things, Stallman refutes the notion of "balance".

Nine years later, people are still talking about "balance", and I'm guessing that most politicians in most Western countries (or any other country for that matter), are not even aware of the idea that the notion of "balance" between the "rights" of authors and the "rights" of consumers is a completely fallacious notion.

Which would suggest that hardly anyone has read Stallman's essay, or, they did read it, but they didn't really understand what it was saying.

## The Long-Term Fragility of A Moral Highground

The circular nature of the moral highground of copyright as a natural right means it is self-sustaining.

It also means it is somewhat fragile. As more and more people come to realise that they accept the moral proposition of copyright only because apparently everyone else accepts the moral proposition of copyright, there may come a tipping point, where suddenly everyone says to everyone else: "actually we don't care so much about copyright, and it is hurting us in some ways, so why do we even bother to have it?"

I don't know how soon that day will come, but I think that the more people publicly talk about the possibility that copyright as it exists now may not be in the public interest, and that it is not necessarily an a priori "natural right" of authors, then the sooner that day will come, and the less pain and suffering there will be from the desperate efforts of a copyright industry to preserve a legal system that no longer works to benefit society as a whole.

## Call to Action

If you have read down this far, I'm guessing that you are probably concerned about some of the negative effects that copyright and copyright enforcement have on our digital freedoms, whether that be computing freedom, freedom of communication or the freedom to present and distribute user-generated content. (Or you might be one of those people strongly in favour of copyright, but you have sufficient intellectual discipline to carefully consider any point of view which most strong challenges your own views, in which case, thanks for reading this far.)

My call to action is: if you are concerned about the damage that unlimited copyright enforcement can do, don't just consider the side-issues. Also, don't waste too much time on "protest" actions, like sending emails to your political representative, or camping in the street, or whatever.

In the long run, more is achieved by honest, considered and well-written analysis of the issues. (I try to be all three, but I will not claim to be totally successful in any of them.)

As someone once said: "The pen is mightier than the sword". (Wikipedia tells me that the character who said that was a semi-fictional representation of a real historical person in a play, and I'm guessing that the semi-fictional person in question was not talking about using the "pen" to sign petitions.)

Express your thoughts about the validity of copyright as a moral proposition, and post those thoughts on-line. If you don't think copyright is a valid moral proposition in itself, state what you think an alternative moral proposition should be, and how that might result in reform or even total replacement of existing copyright laws. Ask all questions that need to be asked. Don't just attack your opponents as "enemies" who only do bad things. Sympathise with those who will lose out if the enforcement of copyright gradually reduces to the point of non-existence, but if necessary, highlight the necessity of giving priority to the public interest (particularly in cases where a proposed reduction in copyright means that some people will lose out).