Intellectual Property Rights, indo-european Linguistics, moral intutions.

Working on the origin of the Symbol as having something to do with the history of trade before the establishment of the State in ancient Greek times I’ve come across something which might be more than a little bit important for modern ethical thinking.

The question of virtue (right action), or ethics (a code of action which has pratical applicability) is something best ignored only by experts. And besides, there does seem to be some internal desire for a moral code, based on moral sentiments. The issue, however, of how these sentiments are codified in moral and legal concepts is perhaps left to languor, and the solutions are constantly supposed to be some organization of already accepted concepts.

However, it logically could certainly be the case that some concepts which are prominent in ethico-political and legal thinking today might simply fail to grasp the moral sentiments they intend to. Why this would happen – the interests of power structures, the desire for a moral code not based on sentiment but universally guaranteed by absolute knowledge, is less important than whether it has happened, where, and what can we do about it.

This is a long preamble to the topic I want to discuss: Theft. Or rather, the legal-ethical concept of theft which today is equivalent with many different practices, which while are admitted into language as different, are admitted into law only (to my knowledge), under 2 designations: theft or fraud

Now, as a disclaimer, in order to recognize the differences between these crimes it is neccesary to attempt not to immediately grasp “what is wrong” about them in terms of pre formed catagories downloaded from the legal discourse. Rather, try to access your moral sentiments, simply feel that they are wrong, and not know why. Because, there is in fact no “why” anything is wrong, all “whys” are subordinate to the more originary “that” – elsewise, wherefrom Law?

Forcible entry into a house for the sake of its valuable contents, downloading music and films from internet torrents, photographing art in galleries and then selling prints at a profit without permission or royalties – these are not the same thing. They are all different actions, all of which require subsuming under a concept (or many) to claim similitude.

There are also different sorts of Fraud, such as insurance Fraud, selling stock based on false information about its potential (Boiler room), or selling information about future changes in government economic policy to those for whom such information could be wildly valuable.

If we believe moral sentiments are innate (or at least internal, perhaps biological predisposition could account) we must at least admit that the way they are brought into voice is made possible only by a particular history of thought. Thus it seems very interesting to me that the Greeks drew a designation between Fraud and robbery a bit different than our own, (I believe).

Theft is stealthy appropriation. Associated with trickery, magic. It happens out of sight, or through devious distraction. It is perpetrated by individuals or small groups in confined spaces (or at night).

Robbery is forcible appropriation. Associated with War (original sanskrit word for war means literally “desire for more cows”. It is practiced in the open – public space by armies, kings.

The distinction between theft and robbery was crucial in Greek law, it was an antithesis. Before the state the only relations clans could bear to one another was trade or war, and this antithesis embodies that very distinction.

Theft and trickery were not distinguished until the rise of the state.

Today, many things Greeks would identify as Fraud are called robbery, for we do not identify theft and fraud but rather oppose them, and identify theft with robbery. Whether the appropriation is stealthy or not, whether it happens in the open, it is robbery – the same charge, the same time. Although, I suppose robbery often requires weapons and there are specific charges associated with robbery with a deadly weapon – but that aside, they are considered much the same.

Fraud, likewise has been “robbed” of theft, while it remains stealthy appropriation but not of another individuals goods, rather of some goods held in common (insurance settlements, the wealth of the market). (Please correct me if I’m wrong here, i’d check on wikipedia but I’m writing this away from an internet connection.) Fraud remains stealthy but cannot be the stealthy appropriation of an individuals goods, and thus can not be associated in any way with “trade” as it was in the early Greek period.

The distinction I’m interested in is theft/trickery (stealthy appropriation/stealthy deception). Internet piracy is theft in the sense of stealthy appropriation, and yet people overwhelmingly have the sense that it is not the same as stealing a woman’s handbag (as commercials suggest). Not to say people don’t feel that it is wrong, it is unsurprinsing people feel it is wrong – it is a distinction clarified by legal codes since classical (not ancient) Greece – it has a longstanding place in our ethical discourse.

And yet, there remains this sense that stealthy appropriation, while we generally agree it’s wrong (I don’t), is not the same as robbery (forcible appropriation).

There are other issues – we are probably only able to feel it’s perhaps not so wrong because it doesn’t physically deprive another of a good unless it is an alternative to a legal purchase of the product – this teleological argument doesn’t stand up in court but it holds a lot of sway in conscience, which is arguably much more influential on human action than the barrels of unloaded guns.

Still, I can’t help but thinking that this distinction, or rather original lack of a distinction, between theft and trickery, between stealth and stealthy appropriation, gives us some better way to interpret our moral sentiments as concerns intellectual property rights, and thereby DRM.


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