Have you ever been cut off in traffic? Did you like it? Have you ever cut somebody off in traffic? Did you give it a second thought? There are lessons here that can help us understand the future of artists and creators in the digital age.

That most individuals have a sense of right and wrong is no major insight. But philosophers dating back to the pre-Socratic era have pondered where it comes from. Is it innate? Do we develop it in order to form a stable society, a la a social contract?

Well, other than anarchists and sociopaths, I think we all understand society needs certain rules and norms in order to function. But any parent knows a toddler has a strong understanding of right and wrong, which they’ll demonstrate loudly if another child takes a toy from them.

So yes, I’m going to talk here about what we perceive as right and wrong, and offer my own thoughts on some wrongs I see perpetuated on creators. Please understand I am not calling for moral rights for artists to be put into law (although I have sympathies with that argument) but rather for more reflection on our own behavior absent societal laws, such as copyright law.

In my morning commute today I was preparing to cross a bridge, a two-lane connector in which the traffic to the left continues straight off the bridge and the right lane merges onto a freeway. Far more people seek the freeway, I do not, so my lane (the left) tends to move quicker than the right. Just before entering the bridge, a BMW cut in front of me from the right lane. We flew by the slow-moving cars in the right lane. Sure enough, at the end of the bridge, he came to a stop, turned on his right turn signal, and waited for someone to let him back into the right lane.

He gained a minute of time in his commute. He took a minute from me, as I waited for him to complete his merge.

Was that single minute a great loss to me? No. But it still felt wrong, and I can wonder about what I could have done with the cumulative lost minutes I have suffered over the course of my commuting.

I am such a sucker, there is a tunnel similar to this layout where my exit is the slow lane, and I always stay in it, and some gamer always looks to cut in front of me just before the exit. In some ways, those gaming the system are smarter than me. Nash would say their behavior is entirely predictable under game theory. I am the one acting against my self-interest, by recognizing the importance of remaining in the right lane, knowing if everyone tried to cut forward there would be gridlock.

I note, however, that both on the bridge and in that tunnel, most cars stay in the right lane. Like me, they apparently prefer to have a clean conscience, even if it causes a slight delay. I find that hopeful.

About 20 years ago, when Arizona Governor Bruce Babbitt was running for president, he was considered boring, too squeaky-clean. So he did something politicians didn’t used to do; he went on Saturday Night Live, and appeared in a skit where he was caught trying to buy too many groceries in the express line.

I think of that skit often at the supermarket, and I find that even when I count generously — including six 2-liter bottles of soda as “one” item — many people game those lines too, usually not with a ton of goods, but just enough such that the register clerk tolerates it. I am, however, persnickety in the supermarket, as evidence of the fact that I count the goods in others’ carts. I stay silent, however. They save time. I lose time, and gain a gnawing sense of injustice in my gut.

I guess that’s kind of like speeding, which I have been guilty of much of my life. Of course, I always feel my level of speeding is acceptable, but a Nissan that flew by me today was clearly acting egregious, against appropriate societal norms. So no surprise, our perception of justice is not always absolute but sometimes relative.

I do speed; in fact, I got a ticket the other day for the first time in about six years. I accepted the ticket politely, I knew I was due. Understand that in writing about my frustrations with injustice above I am not claiming sainthood. But if I go 63 miles per hour instead of 55 miles per hour I don’t take something tangible from someone else, although I certainly reduce their safety. The loss of time is tangible, measurable. So I guess one measure of justice for me is if one man’s action clearly robs another man of something.

Some say taking a creative work online does not “take” anything from the creator, because digital works can be replicated easily and thus are not scarce. I download a song from you, you still have it, so I am not taking from you.

But I am taking something from the rightsholder, their right under the law over reproduction and distribution. Some, like the futurist I mention in my previous post, feel modern technology has negated the utility of those rights, has caused what a recent speaker I heard called “gridlock.”

That said, the copyright owners — the creator and often the distributor — have clearly under existing law lost some of their rights when someone infringes a work, and they have potentially lost a sale as well. If there is a legal download available and I choose a free, infringing one, it’s hard for me to argue that I was seeking to obtain something without payment.

Is every creative work available everywhere legally? Not yet. There are some geographic barriers that can be difficult to cross without lengthy rights negotiations (we don’t have UK’s Spotify yet, for example) and many works haven’t been digitized yet, at least not by the rightsowner. But we’re getting there. It is harder, though, when infringers defend their actions by saying they’re taking because there is no legal market, assuming a “right” to a work in a form the rightsholder has not made legally available. Massive infringement can act as a deterrent to entering a market, so that is an example of game theory where the infringers are harming themselves, if in fact they truly want access to legal works. (Do they?)

I met with a group of high school arts teachers yesterday. We were discussing the very real challenges of determining what uses are legal or illegal. One of the teachers then said, “Sometimes I ask myself, does this feel right, or does this feel wrong? Then I act accordingly.”

That approach may not always mesh with the law, but it is a good philosophy, and one that is more likely to be beneficial to the artists and creators they are educating than not.

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This entry was posted on Thursday, September 3rd, 2009 at 9:33 am by Patrick Ross and is filed under copyright law, copyright opponents, creators, culture, education, p2p, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.