Ah, another Sunday, another chapter in the crusade of Randy Cohen, a.k.a “The Ethicist,” to redefine the definition of “ethical.” I used to read “The Ethicist” column in The New York Times magazine out of professional curiosity, later, bemusement, and now I read it as a diagnostic exercise. Where did Randy acquire his bizarre fondness for certain forms of dishonesty? For the record, Cohen’s batting average of actually giving ethical, rather than unethical, advice appears to be holding steady at .750, which means that he advocates unethical means one out of every four inquiries. I’d say Charley Rangel would do better, and nobody’s likely to call him “The Ethicist” any time soon.
This Sunday, Randy is endorsing web piracy…really. An inquirer who was eager to get Stephen King’s latest 20 lb. horror tome on his Kindle found that the book hadn’t yet been offered for sale in electronic format. So he bought the hard-cover version, and then downloaded a bootleg, pirated version of the book to his e-reader to take on a business trip. “I generally disapprove of illegal downloads, but wasn’t this O.K?” he asked “The Ethicist.”
Now why would he think this is “OK”? The legal owners of the publication, as well as the author, have not authorized the creation of an electronic version of the novel, which is a tangible product that only they have the right to create and distribute. Does he think it’s OK because he paid for a different product with the same content? That’s a rationalization: what he wants is the e-version of the book, and he has no right to have it until the owners choose to let him. His purchase of the hard copy version give him leave to lug it and all 1,074 pages on his travels, and that’s all it allows him to do.
When the e-version of the King novel becomes legitimately available, will the inquirer buy it? Of course he won’t, which means that the rightful owners will have been robbed of their fair compensation because he took advantage of web piracy earlier. If a friend ask to download the novel, will he refuse unless they also buy the hardcover volume? I doubt it. Actually, his friend won’t need to do that: thanks to the collaboration of the web piracy consumer and “The Ethicist,” anyone who reads the New York Times now knows that they can get a free, illegal version online.
Illegal, yes, but not unethical, writes Cohen:
“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.”
No, Randy, it’s not. Turning a song on a CD into an iPod selection is easy, and is also anticipated and approved by a song’s owners. You can’t plug a book into a e-reader: someone has to create the electronic file and put it online. The author and publishers own electronic rights, and those have value that a distributer will compensate them for in a formal sale. You are endorsing robbing them of that value, right, and profit opportunity.
Randy “Arg!” Cohen continues his pro-cyber-Blackbeard manifesto:
“Buying a book or a piece of music should be regarded as a license to enjoy it on any platform.”
Ah! So “The Ethicist’s” theory of the law is that as citizens we are only ethically obligated to obey laws as we think they should be, not as they are. Interesting! This opens up all sorts of possibilities. Maybe I think I shouldn’t have to pay taxes when the Federal government uses it to save the jobs of millionaire bankers. Maybe the principal of the school across the street thinks that he shouldn’t have to hire otherwise qualified teachers who happen to be gay. Maybe my neighbor thinks the law should allow him to cold-cock his wife now and then, when she really asks for it. Sorry, Randy: even ethicists don’t get to ignore a society’s judgments about what is right and wrong as articulated by its laws. Violating laws for personal convenience undermines societal values of right and wrong in a surreptitious and underhanded manner. If you think a law is misguided, you have to work to get it changed the old-fashioned way. Anything else is—surprise!—unethical.
Cohen–“Aye, matey!”—goes on to say:
“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.” [Emphasis mine]
Yes, it’s true; Cohen believes his “threshold of acceptability” of harm trumps that of those who actually suffer the harm! What astounding arrogance and disrespect. This is a useful clue, however, to understanding “The Ethicist’s” ethical blind spots. He consistently slides into consequentialism, the invalid ethical theory that weighs the ethics of an act according to its eventual results. Lies, theft…Randy will wink at them, as long as nobody is harmed within his “threshold of acceptability.” Thus we can assume that Randy sees nothing wrong with a patron sneaking into a movie theater to see a film she already paid to see once. After all, nobody is hurt, since she wouldn’t pay to see it again anyway, and there were seats unsold. Cohen also, presumably, sees nothing wrong with an organization’s treasurer using its funds to pay his personal bills, as long as he replenishes the money supply so there’s no harm to the organization’s finances. “No harm, no foul”—the consequentialist’s creed.
Cohen concludes his travesty of a response by admitting that the illicit download could be construed as encouraging piracy, but “only in the abstract: no potential pirate will actually realize you’ve done it.” First of all, this isutter nonsense, a statement of the most fatuous of all rationalizations, the “I’m only one person, so it doesn’t really make a difference” argument. “What difference does it make to the environment is I don’t recycle? None…I’m just one person!” “Why should I vote? The result will be the same whether I do or not.” Fact: if nobody access illegal downloads, then web piracy ceases. Every individual who takes advantage of web piracy is contributing to, aiding and encouraging an illegal and unethical practice.
Even more ludicrous is this: Cohen’s own column is announcing to the world that the inquirer downloaded the pirated copy! Of course the pirates will know that he did it!
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Arrgh indeed.
-Does this include discontinued items? Anecdotal example: There was an old Nintendo game that required a battery in the cartridge to function. Said cartridges are no longer made, and no one repairs them. If the batteries all died years ago, is it unethical to find a copy of the ROM software online to run it through other means?
*technical note*
ROM software, for readers unfamiliar with cartridges, is data encoded on a read-only cartridge. This encompasses the software and all resources required to run it.
Nope, sorry. You have no right because the creators have not authorized it. Enjoy!
Don’t be sorry…you’re agreeing with me!
I guess I’d like to know more about what a solution to the old nintendo games would be? Presumably, their value continues to go up because they’ve gone “out of print” and the original authors don’t see a large enough money stream to re-publish. The appearance they give the public is, “nothing we can do” and when pirates put their antiquated games online for nostalgic purposes, they make no effort to protect or enforce their copyright. Some have even endorsed their creation receiving a second life. I guess in reality, it’s just frustrating, and life is frustrating, and you just have to put up with it.
Nintendo hasn’t let go of much of it, however.
With Virtual Console on the Wii, they have retained a commercial interest in many games.
Somebody is trying to do something about this problem. See
http://www.copyright.gov/orphan/
An enthusiastic reader with more time than I have today might see if there are any more recent developments.
Setting aside the odd notion pervading the post that law defines ethics, what are the ethical implications of providing legal advice when one clearly doesn’t actually know the law in question? You have confused copyright and trademark, and given flawed legal advice. There is no such thing as “abandoning” a copyright. One can release a copyrighted work into the public domain, but mere failure to enforce a copyright does NOT constitute releasing it.
Moreover, turning a song on a CD into an mp3 for an iPod is not necessarily non-infringing (contrary to your claim above), although one suspects the courts would deem it “fair use.” But, then, there’s no discussion in your evaluation of Cohen’s advice of the concept of fair use.
Now, I recognize you aren’t an IP lawyer. But, then, shouldn’t you be a little more wary about purporting to provide IP advice?
Not providing legal advice….I was responding from my own notes and my own counsel, who so adviced me on a copyright issue. Obviously I need a better IP lawyer. I’ll delete that reply: thanks. And yes, I should be more wary, lest I be misunderstood. This is not, you know, a legal blog.
Why you think law doesn’t define ethics, I don’t know. The duty of citizenship, an ethical obligation, includes abiding by the law.
Jack,
Not that I disagree on any one point that you’ve made but, on the whole, this post has left me shaking my head. Of all the ethical issues facing our society, semantics regarding what constitutes “theft” in an intellectual property sense just doesn’t make the cut. We have a divorce rate that’s beyond embarassing, violations of public trust at all levels of government, and an increasingly apathetic public; by comparison, piracy (at least on this level) is pretty small potatoes. None of this suggests that it shouldn’t be of concern, but as Christ once said:
“Why do you look at the speck of sawdust in your brother’s eye and pay no attention to the plank in your own eye? How can you say to your brother, ‘Let me take the speck out of your eye,’ when all the time there is a plank in your own? You hypocrite, first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother’s eye.”
He was making a slightly different ethical point, I realize, however, we should be far more concerned about planks than sawdust.
-Neil
But Neil…put enough sawdust together and you get a plank. Cohen essentially said breaking the law doesn’t matter if you have a good reason. What do you think is the rationalization used by, say, Charlie Rangel? Surely you can’t be endorsing the hoary old, “There are worse things” dodge? Yeah, in the grand scheme of thing, this is small potatoes. But if you don’t watch the small potatoes, the big ones sneak in with them.
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