COHEN – Information Rights and Intellectual Freedom (Ethics and the Internet 11-32)

Cohen makes the point that technology is shifting the balance between intellectual property rights and intellectual freedom to favor the information owner/creator. As a result, our ability to act freely and autonomously, which requires access to information, is infringed.

Cohen agrees that intellectual freedom and autonomous action are measured in degrees and not absolutely. Therefore, I think the crux of the issue is where to find proper balance. Cohen covers, at least on first examination, most of the key issues relating to the impact of technology on intellectual freedom, and the arguments are well reasoned.

I don’t really find fault with any of the points made so much as disagree with the emphasis placed on some issues and lack of emphasis placed on others.

For example, Cohen acknowledges the free-market pressures on intellectual property rights holders to strike a balance between access and profit, but then argues that consumers are unorganized and not in a position of strength when it comes down to the negotiation (see consent-based arguments, pg 17-18). However consumer pressure has already driven vendors such as Amazon and even Apple iTunes to release substantial numbers of music releases without DRM, largely as a result of consumer pressure.

Furthermore, new business models have emerged that give consumers more access to copyrighted material than traditional systems. For example, some music services give virtually unlimited streaming access to large libraries of music for a nominal monthly fee. While it’s true that the consumer doesn’t ever actually acquire any of the music, many would find that as a practical matter, they listen to far more music for considerably less money under that business model.

Technology is young and we are going through a period of time now when we are still learning what is possible, and from that, what is desirable. The biggest problem with intellectual property has always been that the medium on which information is instantiated, and the cost of reproduction, is low compared with the cost of creating the information. Further, with digital text, one can give it away without losing one’s own access to it – unlike loaning a tool or book to a neighbor who may not return it.

Suppose, however, you could get a digital download whose DRM allowed anyone to play it, but that would also allow anyone so trusted with it to steal it – that is, permanently reallocate it to their own physical control and thereby deprive you of its use. This is analogous to lending your hammer to your neighbor, who then never returns it. You might think twice before loaning it to just anyone.

That’s the idea behind a new IEEE proposal for so-called digital personal property (I’m reminded of the Seinfeld episode where Kramer installs the door peephole backwards). The proposers say that they want to give consumers true ownership of content while still "preserving business models based on the sale of private goods where the number of items in circulation equals the number sold and the number of users of each item is naturally, reasonably, and unavoidably limited." A look at the comments accompanying this article point to some flaws in the concept, but the idea at least is evidence that we are a long ways away from stable and unchanging technologies and our commitment to fully adopt them .

To argue that because we can do something with technology, we will, is to argue technological determinism, a reductionist approach that among other things requires one to suspend belief in the autonomy of man (on which Cohen’s ethical arguments depend).

So I would argue that while we need to be mindful of the ramifications of technology (and that it does seem so far that early technologies favor the enforcement of the rights of creators and producers), that it may still be too early decide what technology’s overall impact on the balance between intellectual property rights and intellectual freedom will be. Cohen writes a good cautionary tale, but perhaps paints a worst-case scenario that is not necessarily a foregone conclusion.

Of greater concern to me, and a matter which Cohen does make some reference to, is the loss of privacy that accompanies an intellectual property holder’s exercise of rights over use. In essence, any kind of rights management now requires the purchaser of a content license to divulge some personal information in order to receive it. With traditional media, someone paying cash or checking an item out of the library (where library records are private) can exercise the right to access the content anonymously.

However, actively managed digital rights require an electronic tether between licensor and licensee that could potentially expose one’s information access to third parties, either accidentally or intentionally. If technological determinism is unacceptably reductionist, then so is social determinism. This problem won’t be fixed unless we make up our minds that it needs to be fixed.

Finally, Cohen seems to miss the many ways social and technological change have benefitted the consumer to the detriment of the rights holders. For example, on page 10, Cohen notes the lawsuits designed to inhibit automated acquisition of pricing information from web sites to aid consumer shopping. But this is a relatively new phenomenon. Prior to the web technologies, consumers didn’t really have access to automated pricing services. And in fact, at the wholesale and jobber level, pricing agreements are almost always treated as confidential. In this case, the balance has already shifted in favor of the consumer. Mass copying and file sharing has certainly also benefitted the consumer, albeit not in ways most intellectual property holders think is fair or ethical.

It’s fair to ask, in these cases and others, what the balance should be.

Van den HOVEN – Distributive Justice and the Value of Information

I think overall I don’t fully buy into the argument that either information or information access is a primary Rawlsian good. In spite of an attempt to tease apart differences among information, knowledge and access, these nevertheless are conflated in the argument to my way of thinking. The availability of access to the internet is discussed in the first couple of pages as an example of ICTs worsening the information divide. But increased access to the internet isn’t necessarily the answer because the problem isn’t access to the internet; the problem is lack of information and knowledge. The internet is only one way to get it, and not always the best way (as the authors confirm). So while the problem really is lack of information (and while acknowledging that ICTs are not the only way to access information), van den Hoven elects to defend access to information as what should be considered a primary good, under the theory that access to information necessarily resolves the underlying shortage. But if the means of accessing information is not important, then it’s information that is the underlying primary need.

If we accept that information access (and not information) is the primary Rawlsian good, then it meets at least the first of Rawls’ requirements, that it is rational to want it. But it is not always necessarily true that a person would want more rather than less access. A person rationally only wants what is necessary to get what is really needed – the information.

But if we accept that information (and not information access) is the primary Rawlsian good, then it too fails the second test, that more information is better than less information. Most people want the amount of information necessary to make a decision or to carry through with a rational plan. Too much information can impede the rational plan.

It seems to me far more logical to argue that both information and access to it are opportunities, distributed under the opportunity principle. Access to information, or lack thereof, is a social and economic inequality, because information has a cost of production and a cost of acquisition associated with it and both production and means of acquisition are limited commodities. Further, not everyone has the resources (again, social and economic capital), to make the best use of an unlimited amount of information.