Buddhism and piracy: ethics for post-scarcity copyright infringement
In his latest book, The Guru Drinks Bourbon, the great and utterly lucid Dzongsar Jamyang Khyentse Rinpoche said the following:
“If I were the khenpo of a big monastery, I would probably have to declare all the monks to be vow breakers. Some people think the only way a monk can be disrobed is by inserting his thing into one of the three holes, but it’s just as much a violation of his vows to download pirated films or software. There is a rule: do not take anything that is not offered. If something taken is worth more than the cost of a meal, it is considered stolen. A movie download costs a few dollars, so in my view, all those monks who watch pirated movies have broken their samaya vow. And just think of all the pirated versions of Microsoft Office in India—that’s a few hundred dollars each.”Even though I am no monk, I strive to keep the basic morality expected from a dharma person. That includes not stealing, and even being careful in “not taking what is not given”. But Rinpoche’s warning (which was, I must clarify, much more directed to the fixation on sexual morality and the probable diminishing standards of monastic communities beyond sexual misconduct) caught me red handed. I was reading these very words on a pirated copy of his book!
The first consideration I have about the situation is that I truly believe dharma is not a product—even though it should not be expected for free, without any effort. That is, we should always make offerings in order to receive teachings, even though teachings shouldn’t be merchandised as products.
So, in order to mend things towards my own future happiness, I must remember everyone—Rinpoche included, if he ever reads this-–, that I aspire my repeated symbolic offerings to the Three Jewels to be ever fulfilled as concretely as possible. And in fact, if Rinpoche (or anyone he appoints) wants anything that I have in this world, I expect to be able to give it without second thought.1I am actually making this offering here—all the while carefully stating it in form of aspiration because I don’t know if I am ready to, like Aryadeva, give an eye, or like Yeshe Tsogyal, to be able to give my kneecaps. I hope yes, but at least normal usual concrete things I am relatively sure that I could. I live in Brazil, hand to mouth, translating academic research papers and the like.
Alas, Rinpoche’s book was unavailable for purchase in electronic form in Brazil, where I live, so it goes. Even so, I would never price Rinpoche’s teachings like a “12 dollar whore”. His advice is as invaluable as the roots of virtue of all appearances. These few dollars are really nothing in comparison, although I do deeply resent paying around 30% to an evil corporation such as amazon.com. I have bought some of his books, even though I have given them away and kept electronic copies.
Also, as an offering, here is my reasoning on the matter of copyright. I offer this to anyone who is able to get the URL, pretentious as it may sound, even considering I am most certainly just embarrassing myself with my poor English skills and confused ideas. I really mean no disrespect to Rinpoche, omniscience forbid—and I am sorry if I express my own confusion and doubt in the form of confusion and doubt about a sublime being’s recommendation—if it seems that way.
My reasoning starts with the wording, but doesn’t stop there.
The thing about stealing in the vinaya, in relation to copyright, is not so much the “without being given” part, but the verb “to take”. To take, you must subtract. There is no “to take” in the act of copying. You end up with some representation of it (if digital, a perfect one, actually), but you don’t mess with the actual thing, and you don’t take a single thing from anywhere. You don't really end up "having" anything but a mere representation of a state of things.
Of course, the main reason copyright law was invented was to protect the creator. So, according to law, the creator should have a say to what he may charge for the content he creates. I am not invoking supposed emptiness about “creation being fake in itself” in this argument. The work was done and it should be paid for. That is relative, and true, relatively. But, in that sense, when Rinpoche says that a movie cost at least a few dollars, it seems that the monk pirating it would be taking a few dollars from the creators, just as if it was money made to disappear from their desk.
And it is not really that way. Maybe it was hyperbole for the other reasoning he was making about sexual misconduct, I wonder.
Even though there is a point to the argument that some damage is actually occurring to the creators (and thus karma for the copiers)—the value of the thing, and the fact that a value was never really anywhere beyond some expectations or dreams made in some accounting offices, is not really part of the act. This is evident because not only the few dollars paid for a movie would be so much more valuable in places such as India, but actually many times the content itself is unavailable if not pirated. It might just not be that interesting for some movie producer in São Paulo to put his movie in Botswana theaters, or make it available in streaming to the whole Africa. If it ever gets there, it might be difficult to find, or it may require a mode of payment not commonly available in that country. But you go to The Pirate Bay or other common website and you can find it.
It is not at all certain that, having the money, and the availability to buy, a particular content would be bought. It might just be overpriced, or not interesting for any amount of money more than zero. In fact, most of my downloads I never even watch—it is way too expensive just to pay attention to some things in this age of "information abundance"—that to think then of opening the wallet.
Also, maybe some years have passed, and the production has already paid for itself—twice or three times over, and everyone got their share. Or not, the production was a failure and the financiers claimed Chapter 11. In any case it is not a few buyers, paying a lot to many middle men, who are going to save or increment the creator’s finances years after the production.
In the same way copyright comes from an ideology that supposedly tries to help the creator get paid for his work, and that may benefit more the middle men, the actual distortions that happen in its context are enormous. It helps some to accumulate much more money than expected, or needed, for their proper work—while others are left deprived of culture due to the moralism that creates artificial scarcity. And we may well say in dharma that those Elvises and Madonnas that got loads of money from their phonograph bubbles had the good karma for prosperity, but at the same time we are not really that neutral towards the mechanisms that create such exaggerations—such as copyright law and the technical advances of a particular time (that now have changed wind and are exploding such bubbles). If we recognize such developments are not natural, but come through ideology, we may develop some sense of civil disobedience towards the whole commercialization of culture. And that is true especially of countries in which knowledge is very expensive and barely available.
It may sound lefty, but as Stephen Colbert says, “Reality has a well-known liberal bias”.
To have the thing entertain you for no money, even though people charged for it and you somehow manage not to pay, beyond the law and its metaphoric descriptions, is just really not fulfilling someone’s expectations of profit. There’s nothing taken from anyone. It is not as if it costs any cent more for the producers to have the bit representations of that content be played somewhere else. And it is not just as if some work has a final resting amount, over which it is considered paid for. No, the logic of financiers gets entangled in the production, and in the moralist sense of the non-copier. If the production values are not payed because many people pirated, this are just miscalculations and unfulfilled expectations. Those people who copied it are not stealing that money from the creator, they are "getting" what costs nothing for its due price. The creator shouldn’t have depended on copies for his financial sustenance in the first place, perhaps.
Otherwise, I demand to see the bank statements of all involved in order to really assess if my twelve bucks are in need, or are the right amount, or will only be surplus on some financiers money-game.
Notwithstanding, if you can withdraw the content until someone pays, it is one thing. You are in fact creating true scarcity. The thing doesn’t cost a dime more to be duplicated, but you hold the content close to you, like a poker player, and only allow it to be parsed by someone’s consciousness for a price. That’s one thing. But to say that you own every representation of that content is just copyright ideology and fabricated law, it is not material or natural ethics.
If you can withhold, then withhold. Don’t expect us to believe copies cost something.
Otherwise, it is very unnatural for anyone to buy a book and not be able to lend it to a friend. And what about public libraries? This is a very elitist and unequal way to deal with knowledge—and, as already said, truly artificial and ideological.
We are talking here about movies, which are quite expensive to produce, and all other content that can be easily duplicated by digital means.
In fact, we have always dealt with content this way. The holder of the copy, not the creator, is the one who have always authorized the copy. What copyright law has tried to impose is some ideological, perhaps well intentioned, way to deal with the revolution of movable type and easy copying. The authorization is from a legislative construct called ‘copyright owner’. But these movable type times became digital. To ascribe the same constraints to any form of culture, in any situation, is as if Patrul Rinpoche would be forced to pay some monastery in order to copy a text.
So, there is not anything taken, and no one is doing work for you—the actors are not acting, the writer is not writing. The work has been done long ago, in a galaxy far away, and people have been paid. If someone did it expecting to pay for it by selling copies, maybe things will not work this way. Copies really cost nothing, they don’t add any cost to the production. In fact it is so cheap to copy that while I don’t use my internet connection, I am actually paying for not copying.
And if you think “well, this way financiers will run away from such risk projects, and the cultural industry will be finished”. Maybe it should. It is ideological to think money needs to be behind all human endeavors. Perhaps simpler production with more human values, less celebrity culture, less bubbles of any sort, are better. Perhaps not, but any way you think about it, it is ideological—and the simple true is that copies cost zero, and we live in a post-scarcity world—at least when it comes to raw information.
And this leads us to the second ethical bearing on Buddhists. Since copying costs nothing, to sell a copy of a work is the same as asking for donations. And perhaps Buddhists shouldn’t charge for copies of other people’s work—that would be perhaps more unethical than charging for copies of your own work. But these are considerations we could have around copies and the notion of donation, not theft. Otherwise if someone charges a second or third time for a work they've done for you, and that they have alrealdy been paid for, if you not pay whenever they ask, it would configure theft on your part. That's the setup of such things as "cultural industry" and copyright law nowdays: you need to pay for the VHS, the DVD, then again for the Blu-ray, and the streaming service.
As far I understand, Buddhists should behave “according to the laws of the King”, unless these laws disagree with Buddhist precepts. There is no Buddhist precept that you should copy things for others. So it is good to abide by current laws, particularly if you have some standing on the sangha—since your behavior could be extrapolated and stereotyped for Buddhists in general, and make some kind of bad image of Buddhists (as “pirates”, in this case). This is something to consider.
But people who live in Brazil or China have other views on copyright law. Even though it is there on the civil code, no one abides by them. This is becoming true of every country in which knowledge is scarce, and where hegemonic culture costs a lot.
I wonder why.
On the other hand, a conscious objector to artificial scarcity in a strict copyright abiding country such as Japan or the UK could very much ethically defend the generous nature of making things available to others. This could be connected with civil disobedience towards a less unequal and less financially determined culture. Ideological, but at least explicitly ideological.
In any way, for a monk, to copy is only natural. It has always been natural to him, if not at all that easy. The monk doesn’t need to obey some other beings expectations. He is not taking anything from anyone, these switches, turned on and off, represent a state of things, not a tangible object, or even some bill that someone has to pay. Particularly if he wouldn’t watch/read it if he had to pay for it in the first place. Consider this situation—someone is just holding knowledge/culture/entertainment ransom. If he would pay for it, and then doesn’t pay, then we have a case for miserliness, but even so, not theft.
1. ^ I am actually making this offering here—all the while carefully stating it in form of aspiration because I don’t know if I am ready to, like Aryadeva, give an eye, or like Yeshe Tsogyal, to be able to give my kneecaps. I hope yes, but at least normal usual concrete things I am relatively sure that I could. I live in Brazil, hand to mouth, translating academic research papers and the like.