Self Help for Copyright Owners & the Global State of Nature
Courtesy of the ever-interesting Chris Bertram of Junius, I was intrigued by Michael LaBossiere’s discussion of the Berman bill, authorizing self-help by copyright owners against those who distribute pirated electronic copies of copyrighted works. Here is an excerpt:
- Locke notes that “the lack of a judge with authority puts all men in the state of nature.” In this state of nature people are permitted to judge their own cases and seek retribution against those who have done them wrong. This is, of course, because they have no higher authority to which they can appeal. Locke does not, of course, endorse uncontrolled vengeance: he holds that retribution must be proportional to damage suffered and within the limits of reason and conscience.
Given that computer networks span the globe and the obvious lack of a world government (or even a truly effective international legal system), it seems evident that copyright holders and those who violate those copyrights will often be in the state of nature. As an example, US copyright holders might have their copyrights violated by people living in countries that do not recognise American legal authority or even by people who live in areas of the world that lack a centralised authority. In such cases, it would be all but impossible to bring about effective legal action against the offenders. However, being connected to the internet, the offenders are accessible to hacking. Such attacks would be practical and, more important from the philosopher’s standpoint, ethical as well, provided that the attack was limited to rendering the stolen property useless. After all, the damage would be proportional to the harm and it is a well established moral principle that a thief is not wronged when the rightful owner reclaims her property.
My my my. One hardly knows where to begin. First, but perhaps dullest, the lack of a world government hardly puts us in a state of nature. There is a highly effective international treaty regime for the protection of intellectual property, which combined with other remedies, such as doctrine of recognition of judgments (or comity), creates a variety of legal remedies against electronic pirates. Second, and more interesting, is the question whether it really is possible to make out a Lockean case for intellectual property. Third, and even more interesting, is the question whether digital piracy in cyberspace is analogous to piracy on the high seas–creating a case for universal jurisdiction–that is, for the legal authority of any nation to authorize action against cyberpirates. I hope this topic gets some traction in the blogosphere. I’d love to see what others think! Perhaps, I’ll have more to say on this soon.