It was with some eagerness that I recently examined an opinions piece in the Record entitled “Ethics 101” by Noah Susskind ’07. Susskind is planning to major in Philosophy, which would hopefully make his commentary on ethics especially appropriate. My interest, of course, was that his piece dealt with file-sharing on campus.

He begins by stating the facts and offering a solution:

The average Williams student downloads songs without paying for them. Peer-to-peer file-sharing and downloading copyrighted works (without the permission of the copyright holders) is illegal (MGM et al. v. Grokster et al.) But students do it anyway. More alarming, perhaps, is that they don’t stop to consider the ethics of what they are doing.

Clearly, he’s alarmed by the lack of thought that most Ephs display through their usage of copyrighted materials. So where is his solution again?

You can go and read the entire article or you can just skip to the end, where Susskind summarizes:

If stealing music is Generation Y’s attempt to revolutionize the way that music is distributed within a capitalist economy, it doesn’t seem like we’ve put much thought into it.

Abbie Hoffman encouraged our parents’ generation to respond to capitalism with theft – he even wrote a book about it called Steal This Book – but at least he thought about the ethics of his practice. When he led demonstrators to throw fistfuls of fake dollar bills onto the floor of the New York Stock Exchange and laugh at the traders scrambling to pick them up, it required a lot more thought than a button-click does.

The power of the Internet comes, in part, from its ease of use, and with this comes a disquieting tendency to use it unthinkingly. Whatever you do, don’t do it unthinkingly.

Yes, ahem, I think we can all agree not thinking is bad. But that’s hardly a solution. Much like certain philosophers, Susskind seems more interested in asking questions than in answering them. Unfortunately for his readers, his questions betry a troubling misunderstanding of the issues and imply an equally dangerous conclusion.

I think most Ephs would be well served to pick up a copy (or, gasp, download) Larry Lessig’s, Free Culture. It does a great job at summarizing the principal problem of our current age: the increasingly non-free culture we consume.

Susskind, as many have done before him, chooses to focus on the easy, but wrong, argument: that stealing is bad. Liberals from Locke onward have focused on the right of private property. Until recently, however, the concept that “an idea” was private property was never even contemplated. If, in the eighteenth century, I saw a particular chair in my friend’s house that was elegant, I could go home, get some lumber, work for several days, and build a similar chair of my own. Or I could just go to his house and steal his chair, saving me several days of labor.

It is this secondary concept that most conceive of when we think of stealing: taking an item of which there are a finite number, causing someone harm in the process. Obviously, to most people, working for several days to produce a similar chair isn’t stealing. And yet this is the crux of the argument Susskind misses: what today’s chairmakers are trying to do is to tell us that the former use is stealing!

The legal aspects are completely neglected by Susskind, for the United States Constitution clearly states in the eighth section of the first article, that authors and inventors have a limited time to enjoy an exclusive right to their works. If a song is released today, then, it is “copyrighted” for several years, after which it would enter the public domain. Or, at least, that’s how the founder’s clearly intended it.

This is where Susskind ultimately lets his readers down: at the intersection between the law and ethics. For in his mind, they are one and the same. When congress first setup copyright laws, they set a time limit of 14 years. 14 years. Think about that: a limit of 14 years would mean that all songs recorded before 1991 would now be in the public domain. Led Zeppelin. The Beatles. The Rolling Stones. Blues, rock, jazz and the synthesized melodies of the 80’s would all be free for everyone.

The law made sense then: most books weren’t printed after a few years, and hardly anyone bothered to renew their copyrights for the additional 14 years provided by law. (After 28 years, works would automatically enter the public domain, the first 14 could, if desired, be easily renewed by a simple request and fee.) Since those days, the technology needed to produce books, movies and music has been completely rebuilt. Popular movies now move to dvd format within months instead of a year. Best-sellers occupy prime real estate for mere weeks before being shipped to discount stores for rock-bottom prices. In short, as technology has improved, the natural purchasing time limit has shrunk dramatically. And yet, perversely, during that same period, Congress has repeatedly extended the length of the law from 14 years to near-perpetuity. Today, most works published during the 30’s are still under their first copyright period! Few, if any, are even alive to renew the copyrights for most works during that period, and yet because of Congress, the law dictates that no one else must use them.

Ethically, the situation is egregious. There are many simple solutions, however, from shortening the length of copyright periods, to encouraging more users today to take advantage of new systems of copyright like the excellent creative commons, to a greater reliance on music formats like ogg vorbis. None of these methods involve breaking the law or encouraging the theft of private property. Instead, by simplistically portraying the issue as one of students versus artists, Susskind inherently implies that the only rational solution is to crack down on file-sharing. Such a move would be bad for all parties.

The ethics of file-sharing is a great discussion topic to tackle, but tossing out the categorical imperative and telling students “whatever you do, don’t do it unthinkingly” isn’t what most Ephs need. They need concrete solutions so that they can listen to the latest hit songs on their computer without being accused of being theives. Giving them the straight facts on copyright law and the public domain is a better way to start the process.

UPDATE: Susskind responds here.

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