The Ethics of Dhamma Distribution

[Individual]

Hello. I thought I would try to clarify some misconceptions about copyrights. Copyright laws do not protect raw information or data per se, but the physical arrangement and embodiment of that data, eg literary expression, art works, translations etc etc. Subject to certain qualifiers, copyright laws will endow the holder of the copyright (typically the writer/artist or his usual assignee the publisher) with a fixed term monopoly to exclude the rest of the world from exploiting the copyright work. European copyright laws may tag on additional non-economic copyrights that survive even after all copyrights are assigned by the author.

Copyright doesn't just protect ownership over a particular physical arrangement and embodiment of information (ex: a chocolate cake), but instead protects ownership over any particular arrangement with the same information (ex: any chocolate cake made with the same recipe). So, it is basically granting monopoly control over who can use the information.

Most copyright systems do not give the copyright owner an absolute monopoly over his/her/its work. "Infringement" of a copyright is typically founded on a legal test of "reproduction of a substantial part of the work" (at least in the English-influenced systems). Unless someone is thinking of Xeroxing an entire copy of the MLD published by Wisdom, how often will a Dhamma-practitioner actually face a kusala/akusala dilemma when copying portions of a Dhamma text?

Fair Use is a pretty narrow usage, if that's what you're getting at. They have a monopoly in the sense that they have exclusive control over such information, with few exceptions. Nobody else can use the same information for commercial purposes, unless they heavily modify it in some way that is considered beneficial to the arts & sciences.

I am not sure if I agree with the formulation of the 1st issue above, ie do copyright infringers have a right to own copies, based on the test of whether copyright infringement is theft. If you read "theft" very restrictively to the sense of the feudal tort of "conversion", then the answer must probably be no. My question is - why elect to limit the discourse to the purloining of "physical" articles?

I am not "electing" to make it sound that way. That's what it says: Adinnādānā veramaṇī sikkhāpadaṃ samādiyāmi. I undertake the training rule to abstain from taking what is not given.

The notion of "taking" and "giving" only applies to material objects; you can't take or give information in the same way. Information is free, non-localized, precedes the mind that cognizes it, and infinitely proliferates throughout all minds; it cannot be "used up". And although copyrights and patents can encourage ingenuity, generally speaking, the proliferation of information benefits the world more than the profit of the creator, hence the reason copyrights are limited in the first place -- limited to less than a lifetime when they were first established, but now lasting far more than a lifetime in America and Europe, because large businesses have lobbied governments to make it that way.

If the 2nd Precept is to be construed so restrictively as to mean a training against misappropriation of physical items, that leaves open a huge loop-hole for Buddhists to merrily commit all kinds of fraud without ever touching the medium of exchange, eg I could then embark on a cheating spree based on derivatives and other exotic financial products, far removed from the underlying commodity.

Any form of fraud would still necessarily involve appropriation of physical goods from one party to another, which must be returned. Whether it's a pyramid scheme, or whatever else, the fraudster is attempting to gain money or other items from a potential victim. With violation of copyright, a person thousands of miles away can simply publish a story with a character called "Mickey Mouse" in it -- using their own materials, paid for by themselves, no materials belonging to Disney, and putting in a considerable amount of work (possibly comparable to the work of the original creator), and yet, despite this, it is strangely regarded as a form of theft.

Furthermore, as I said, although the second precept doesn't apply to intellectual property, that doesn't necessarily imply the violation of copyright is necessarily skillful. The piracy of music, movies, software, pornography, etc., is certainly motivated by greed.

But the five precepts, by the way, do not cover all morality: how could they possibly delineate every conceivable skillful and unskillful behavior there is? Any act done with craving or sensual desire is unskilllful, regardless of whether it's a precept or not... which includes things that aren't in the precepts, like gambling or laziness. The belief that because something is not a precept means it's okay is a terrible misinterpretation of what the precepts are for.

[Individual]

Vinaya-samukkamsa: The Innate Principles of the Vinaya
by
Thanissaro Bhikkhu
© 1996–2009

Now at that time uncertainty arose in the monks with regard to this and that item: "Now what is allowed by the Blessed One? What is not allowed?" They told this matter to the Blessed One, (who said):

"Bhikkhus, whatever I have not objected to, saying, 'This is not allowable,' if it fits in with what is not allowable, if it goes against what is allowable, this is not allowable for you.

"Whatever I have not objected to, saying, 'This is not allowable,' if it fits in with what is allowable, if it goes against what is not allowable, this is allowable for you.

"And whatever I have not permitted, saying, 'This is allowable,' if it fits in with what is not allowable, if it goes against what is allowable, this is not allowable for you.

"And whatever I have not permitted, saying, 'This is allowable,' if it fits in with what is allowable, if it goes against what is not allowable, this is allowable for you."


--> Indeed, in the discussion about stealing copyright different monks have taken sides: It depends whether one follows the principle that stealing is removing something from its righftul owner (e.g. someone who already wanted to buy the book is told to download it for free instead), or whether we must follow worldly law (which differs from country to country, e.g. in Thailand there are few copyright restrictions).

The Buddha said that kamma is intent, so I think it's good to examine the intent involved in a particular action. For instance, the intent in downloading illegal pornography is clearly not of the same character as the intent to distribute sutta translations. What do you think, Ven. Gavesako?

[Individual]

Thank you, Bhante. I am surprised to hear that Thailand has few copyright restrictions, given its modern legal system being modelled on the Civil Law of Europe. My hazy recollection of European copyright laws is that it is certainly more "developed" than the Anglo-American systems. I wonder if Thailand is just a lax enforcer of its letters?

Throughout Asia, period, there are few intellectual property restrictions, because "property rights" is a western notion... They understand property in a reverse way: Rather than, "We shouldn't steal, because people have a right to property," it's understood as, "We shouldn't steal, because we have a responsibility not to, it harms society, and brings shame upon one's family." For the same reason, Asian governments are less capitalist and more authoritarian. Our society and culture owe their roots largely to John Locke and Classical Liberals, while they owe their root largely to figures like Confucius and Laozi.

Times have changed: Now, instead of having to chant the Tipitaka and write it on palm leaves, we have computers.

It is now much easier, not more difficult, to produce and publish translations.

I look forward to the day when the whole Tipitaka can be downloaded in one single PDF. Imagine how great that will be -- you could do a word such for anything, for example, upasaka or householder and then the search will show you every sutta, every line where "householder" shows up and what they were talking about.

It would cause the Buddha's real words to proliferate more widely and common misquotations, like from the Kalama Sutta, would be more easily dismissed.

[jcsuperstar]

there are many people like me who will buy the suttas in paper form rather than reading them online.
even if offered freely i still choose to pay for the hardcopy. i dont mind and i find no problem with paying for it. i would however have a problem with someone stealing my hardcopy, or someone copyrighting the dhamma and not making it freely available to those who dont choose to buy the hardcopy. bodhi's translations are his work, and how that work is distrubited is basically up to him, the only real buddhist ethics involved are about monks working, owning a copyright, getting paid etc. even if his translations are not freely available the dhamma still is. there are other monks putting in the work and we could all just go learn pali and translate it for ourselves and others if we wanted to.

[gavesako]

Yes, Intention (cetana) is the essence of Kamma. But Vinaya also covers worldly conventions, which may not be directly related to wholesome-unwholesome Kamma. I jokingly referred to "bodhicitta aspiration" because in the Mahayana systems, even breaking the precepts is sometimes considered OK if it helps others realize enlightenment.

[Sylvester]

Copyright doesn't just protect ownership over a particular physical arrangement and embodiment of information (ex: a chocolate cake), but instead protects ownership over any particular arrangement with the same information (ex: any chocolate cake made with the same recipe). So, it is basically granting monopoly control over who can use the information.

Fair Use is a pretty narrow usage, if that's what you're getting at. They have a monopoly in the sense that they have exclusive control over such information, with few exceptions. Nobody else can use the same information for commercial purposes, unless they heavily modify it in some way that is considered beneficial to the arts & sciences.

I am not "electing" to make it sound that way. That's what it says: Adinnādānā veramaṇī sikkhāpadaṃ samādiyāmi. I undertake the training rule to abstain from taking what is not given.

The notion of "taking" and "giving" only applies to material objects; you can't take or give information in the same way. Information is free, non-localized, precedes the mind that cognizes it, and infinitely proliferates throughout all minds; it cannot be "used up". And although copyrights and patents can encourage ingenuity, generally speaking, the proliferation of information benefits the world more than the profit of the creator, hence the reason copyrights are limited in the first place -- limited to less than a lifetime when they were first established, but now lasting far more than a lifetime in America and Europe, because large businesses have lobbied governments to make it that way.

Any form of fraud would still necessarily involve appropriation of physical goods from one party to another, which must be returned. Whether it's a pyramid scheme, or whatever else, the fraudster is attempting to gain money or other items from a potential victim. With violation of copyright, a person thousands of miles away can simply publish a story with a character called "Mickey Mouse" in it -- using their own materials, paid for by themselves, no materials belonging to Disney, and putting in a considerable amount of work (possibly comparable to the work of the original creator), and yet, despite this, it is strangely regarded as a form of theft.

Furthermore, as I said, although the second precept doesn't apply to intellectual property, that doesn't necessarily imply the violation of copyright is necessarily skillful. The piracy of music, movies, software, pornography, etc., is certainly motivated by greed.

But the five precepts, by the way, do not cover all morality: how could they possibly delineate every conceivable skillful and unskillful behavior there is? Any act done with craving or sensual desire is unskilllful, regardless of whether it's a precept or not... which includes things that aren't in the precepts, like gambling or laziness. The belief that because something is not a precept means it's okay is a terrible misinterpretation of what the precepts are for.

Thanks Individual.

Just a note of clarification. Copyrights do not protect recipes. The physical embodiment I was referring to was to the literary expression of a recipe, ie being fixed in writing or published on the Net. The recipe, as long as it remains part of the oral tradition is not within the domain of copyrights. What is being enclosed in a monopoly is not information per se, but the EXPRESSION of the information that is recorded on a storage medium.

Not every recipe that is reduced to writing earns copyright protection. The law demands another qualification, ie originality. So, if someone were to re-issue a 19th century edition of a PTS translation today (well after the demise of the PTS copyright) without any changes (eg he makes a PDF copy available online), the re-issue is incapable of attracting any copyright protection. If he were to tweak with the formatting a bit, the only copyright that would subsist is in the actual PDF look and feel. Other than that, the entirety of the word content of the re-issue would be in the public domain.

Mickey Mouse, if one purloins the name alone without any visuals, would be protected by trade mark laws, not copyrights.

Well, I have to disagree that any fraud "would still necessarily involve appropriation of physical goods". I gave the hypothetical of derivatives, which are exactly alike to copyrights. A barrel of oil, could give rise to a universe of secondary and tertiary rights called Contracts for Differences, none of which entail dealing with the physical product. These are all pure legal rights like copyrights, founded on the basis of protecting some expectation of profit. Can a Buddhist keep the 2nd Precept whilst defrauding Wall Street of its derivatives?

You insist that "taking" and "giving" only applies to material objects. What about "abhayadana" or "dhammadana"?

[Individual]

Thanks Individual.

Just a note of clarification. Copyrights do not protect recipes. The physical embodiment I was referring to was to the literary expression of a recipe, ie being fixed in writing or published on the Net. The recipe, as long as it remains part of the oral tradition is not within the domain of copyrights. What is being enclosed in a monopoly is not information per se, but the EXPRESSION of the information that is recorded on a storage medium.

Not every recipe that is reduced to writing earns copyright protection. The law demands another qualification, ie originality. So, if someone were to re-issue a 19th century edition of a PTS translation today (well after the demise of the PTS copyright) without any changes (eg he makes a PDF copy available online), the re-issue is incapable of attracting any copyright protection. If he were to tweak with the formatting a bit, the only copyright that would subsist is in the actual PDF look and feel. Other than that, the entirety of the word content of the re-issue would be in the public domain.

Mickey Mouse, if one purloins the name alone without any visuals, would be protected by trade mark laws, not copyrights.

Food recipes was perhaps a poor example, but it demonstrates the sheer arbitrariness of the law.

From this article:

Cooking is not considered inventing; rather, it evolves.

...so, music and technology are created by the "person"? They don't simply evolve no differently than with cooking? And that's another thing: the notion of property, period, contradicts anatta. In the absence of a person, there is no "property owner," and nobody to whom "rights" are attributed to.

As for Mickey Mouse -- being a trademark, it falls under intellectual property law, which is what I was getting at...

Well, I have to disagree that any fraud "would still necessarily involve appropriation of physical goods". I gave the hypothetical of derivatives, which are exactly alike to copyrights. A barrel of oil, could give rise to a universe of secondary and tertiary rights called Contracts for Differences, none of which entail dealing with the physical product. These are all pure legal rights like copyrights, founded on the basis of protecting some expectation of profit. Can a Buddhist keep the 2nd Precept whilst defrauding Wall Street of its derivatives?

Even with the defrauding of derivatives, there is a contract made between two parties that is violated and a fixed amount that should've been paid but wasn't. The fact that a derivative's value comes from something else doesn't make the derivative itself of any less value than money itself, which has a derived value too. But with copyright violations, no contract has been violated and the sum of damages is ambiguous, because nothing was "taken" even though it may have possibly hurt the business's profit.

You insist that "taking" and "giving" only applies to material objects. What about "abhayadana" or "dhammadana"?

...Both metaphors and therefore not analogical. Otherwise, please come up with a scenario by which the second precept can be violated involving either truth or life.

[cooran]

Hello all,

This may be of interest - though it was published in 2000:
How Copyright Law Relates to Vinaya by Phra William Varado
INTRODUCTION
The issue of copyright, although of great importance to monks, is not described in vinaya texts; and so it has remained ill-defined, and so for monks a source of concern or even worry. The issue has sometimes been clouded by commercial interests; and this has added to the anxiety of monks who are involved in publication work. In this article I would like to show how copyright relates to a variety of vinaya regulations, and more importantly, suggest a proper grading of copyright offenses according to vinaya standards of "heavy offenses" and "light offenses". Up till now, no attempt to grade copyright offenses has been made; and the result has been that monks committing seemingly light offenses have felt great remorse as if they had committed heavy offenses. The muddling of heavy offenses and light offenses has been often criticized by the Buddha; and so some attempt to clarify the situation should be made.

The disadvantage of grading offenses is that it may support the view that although heavy offenses should be avoided, light offenses need not be. This however I am not suggesting. Contrarily, I suggest that we treat all existing copyright laws with respect. And I suggest we deal with copyright holders with courtesy. The small act of asking permission to copy copyrighted material has in the past led to heart-warming acts of generosity. And this puts the Sangha in a good light. This alone makes strict observance of copyright law worthwhile. This is the training in punctiliousness so often praised by the Buddha.

However, punctiliousness has a "near enemy" called kukkucca, fretting. And there are commercial interests working in the world of publication that seem on occasion to press beyond reasonable limits their claims of ownership; and this leads not to punctiliousness but to fretting. And so some monks, unable to judge copyright issues with confidence, are led to believe that one small slip and you're out. Parajika! This I feel is unfair. It would be better that the issue as it relates to vinaya is made clear, and that the Sangha could reach a common agreement on this, and so withstand the ugliness and confusion that seems endemic to worldly law.

COPYRIGHT AND CRIMINAL LAW
With regard to copyright law, most people have assumed that copyright offenses are a kind of theft. However the Buddha has defined theft as taking place when four conditions are met:

The object belongs to another person
It is known to do so
An effort to steal the object is made
The effort is successful
In copying computer programs or book publications no removal of property takes place. Both the computer disc and book can be returned to their owner. So copying seems not to be theft at all. And yet one of the vinaya definitions of "parajika" — under Parajika 2 — is "acts worthy of capital punishment." Thus following the logic of Parajika 2 it would seems sensible too suppose that acts against laws of copyright that are worthy of capital punishment should also be considered parajika offenses. And so we need a definition of Copyright Parajika. What could this be?

In a letter of 15 November 1993, a consultant in intellectual property wrote to a monk in UK answering some questions regarding taping of radio broadcasts and of rented videos. His reply begins:

My first comment is to explain that there is a clear and important distinction between acts which constitute criminal offenses for which a guilty person may be punished by way of a fine or imprisonment or both, and acts which are infringements of copyright in respect of which the owner of the copyright may bring civil proceedings seeking various remedies such as injunction, damages and costs. Generally speaking, acts which constitute offenses are infringing acts which are carried out for commercial or trading purposes. None of the acts described in the letter are criminal offenses. Whether or not they constitute infringements is dealt with in detail in the following paragraphs.

And so, using the wording of this letter together with the regulations of Parajika 2, we can formulate a definition of Copyright Parajika:

Significant criminal offenses against Copyright Law are parajika. "Criminal offenses" are infringing acts of copyright carried out for commercial or trading purposes. They are "significant" where profit from the infringement amounts to one pada or more than one pada.
Criminal offenses where the profit is less than one pada would then be either thullacaya (if it is one to four masakas) or dukkata.
COPYRIGHT AND CIVIL LAW
As for "infringements" (i.e. civil offenses), these would in most cases be copying without permission, for non-profit purposes. For these offenses a copyright holder may claim his income has been prejudiced, and he may take a monk to court over it, and the monk may be asked to pay damages. But apart from the punishment due to him under worldly law, the monk must clear any offense committed against vinaya. The rest of this article is to review what options there are in allocating apatti in such a situation.

INFRINGEMENT AND THEFT
Where a monk has copied material without permission for non-profit purposes, as I have explained, no actual theft has taken place; and as there are no profits, no criminal act has been committed either. So the regulations of Parajika 2 do not apply in this situation. However there are other regulations which may apply, that would assist in allocating apatti.

INFRINGEMENT AND MISAPPROPRIATION
If intellectual property could be considered to be a real existent thing, is to be given to someone, and it gets waylaid, then it could be considered an infringement against Nissaggiya Pacittiya 30 or the related Pacittiya 82.

Nissaggiya Pacittiya 30 reads: "Whatever monk should knowingly appropriate to himself an apportioned benefit belonging to the Sangha, there is an offense of Nissaggiya Pacittiya." "Apportioned means it has been expressly said 'We will give', 'We will make.'"

A copyright holder makes a product for vendor. If a monk copies the product, it might be thought than he had misappropriated the product to himself.

However, as I have suggested, copying material is not misappropriation any more than it is stealing. The original product is returnable. So it has not been misappropriated at all! So let us look at other vinaya regulations that may help to allocate the correct apatti.

INFRINGEMENT AND DAMAGE OF PROPERTY
In infringing copyright one might say that one has somehow done some damage. In particular one has damaged potential profits. This is damage without theft. What apatti is committed in damaging property? Several examples in Vinaya indicate that damage is either dukkata or no offense at all:

Monks set fire to grass belonging to the Sangha (PTS Vin III p65): dukkata

The Buddha ordered Dhaniya's hut to be destroyed (PTS Vin III p42): presumably no offense.

Monks set fire to forest (a story under Parajika 3): no offense

In the story preceding Bhikkhuni Pacittiya 52, Ven. Kappitaka, Ven. Upali's preceptor, destroyed a tomb made by some nuns: presumably no offense.

INFRINGEMENT AND DISOBEYING THE LAW
Copyright law is the rule of the land and the Buddha has said. "I allow you monks to obey kings "(Vin I: 138). Copyright infringement being disobedience of the law could be regarded as "disobeying the king". The offense is not stated, but is presumably a dukkata.

CONCLUSION
I have demonstrated that criminal acts of copyright are parajika, thullacaya or dukkata. Non-criminal acts of copyright infringement should be considered as dukkata at most.

It should also be remembered that there are large allowances by Copyright Law for which there is no offense. This allowance varies from country to country and from year to year. Given the fluctuations and complexities in the law it would be a great relief to monks to know that they are only likely to be dukkata at most for copying material. However it is worth stressing that copying even what is allowed is best done in a friendly way, and according to legal stipulations. So, asking for permission whenever possible, and even when there is no legal requirement to do so, is to be highly recommended.

If some general agreement on the issue of copyright could be reached by the vinayadharas in the world it would be for the long lasting happiness and benefit of the Sangha. So I would appreciate your helpful comments and suggestions.

Phra William Varado
5 January 2000
http://www.geocities.com/venkumara/evin ... right.html" onclick="window.open(this.href);return false;

metta
Chris

[Sylvester]

Food recipes was perhaps a poor example, but it demonstrates the sheer arbitrariness of the law.

From this article:

Cooking is not considered inventing; rather, it evolves.

...so, music and technology are created by the "person"? They don't simply evolve no differently than with cooking? And that's another thing: the notion of property, period, contradicts anatta. In the absence of a person, there is no "property owner," and nobody to whom "rights" are attributed to.

As for Mickey Mouse -- being a trademark, it falls under intellectual property law, which is what I was getting at...


Even with the defrauding of derivatives, there is a contract made between two parties that is violated and a fixed amount that should've been paid but wasn't. The fact that a derivative's value comes from something else doesn't make the derivative itself of any less value than money itself, which has a derived value too. But with copyright violations, no contract has been violated and the sum of damages is ambiguous, because nothing was "taken" even though it may have possibly hurt the business's profit.

...Both metaphors and therefore not analogical. Otherwise, please come up with a scenario by which the second precept can be violated involving either truth or life.

Thanks again Individual. We should try to be specific with Mickey Mouse. Copyrights and trade marks rest on very different bases, even if the reparations they offer protect the same thing, ie expectation losses. These losses are not ambiguous and the courts put the claimants to strict proof.

I'm not too sure why you lifted that quote about cooking not being inventing.

Which makes me wonder why you insist now that a "contract" is a requirement to somehow make copyrights legitimate for inclusion in the 2nd Precept. Most charlatans cheat in the absence of a pre-existing contractual relationship. Thieves steal, whether or not they enjoy a contract with me. Why is the contractual nexus so important in the Dhamma for what constitutes adinnadana?

Of course all is Anatta ultimately. But isn't this thread about whether copyright infringement is kusala or akusala kamma? Just as we have to resort to conventional speech to relate to "person", "property" and "ownership", we always keep at the back of our minds that such conventional speech in relation to the 2nd Precept is intended for the avoidance of bad kamma. If in the ultimate analysis, "property" and "ownership" are invalid ontological categories in the Dhamma, why are such invalid categories somehow more privileged than another equally invalid ontological category populated by copyrights? Does akusala kamma distinguish between 2 equally invalid ontological categories?