We recently wrote about the NY Times' ethicist, Randy Cohen, and his perceptive claim that downloading an unauthorized digital copy of a book you already own is likely illegal, but not unethical. It resulted in quite a discussion in our comments, with people taking both sides. However, an anonymous reader points us to a blog post at Mediabistro, where it appears readers sent in a whole bunch of ridiculous strawman arguments to claim that downloading such a book was clearly unethical. According to Mediabistro, not a single reader agreed with Cohen. While some commenters on the post do take the "infringement is unethical, no question" type statements to task, the blog post doesn't bother to point out the serious confusion by the complainers. Take, for example, the following:

"So, if you own the hardcover you should get the paperback for free? Different platform, right? Maybe you can use the hardcover to get into the movie version as well. That's a different platform. Maybe the audiobook as well? It's really a deeply irresponsible post. Some ethics!"

But that's missing the entire point of what Cohen said. First of all, the situation he was discussing was one where the ebooks were not even available -- so it wasn't even a question of the author losing any money. And that's the key point that Cohen is making, which seems lost on the people attacking him. Morality only really comes into play when there's a question of who wins and who loses. When you need to make such a choice, that's a moral question. If there are no losers, there's no moral question to deal with. What Cohen is pointing out -- quite accurately and ethically -- is that in a scenario in which there is no loss, but only gain, then it cannot be seen as unethical. What the person above was stating is totally different. In each of those examples there is a real loss. Something scarce is taken, and that means others can't have it. But with the ebook of a book that hasn't been released in that format, that's not even a question.

It's really a question of whether or not you should be allowed to format change the works you've purchased, and there are many reasonable arguments in favor of that -- especially in situations where there is no loss in the system.

davebarnes points us to a recent response by the NYTimes' ethicist, Randy Cohen, to a reader question, over the ethics of downloading an unauthorized ebook of a book where he already owned the physical book. Cohen, in no uncertain terms, points out that while illegal, it should not be seen as unethical, and suggests that the law needs to catch up with technology:

An illegal download is -- to use an ugly word -- illegal. But in this case, it is not unethical. Author and publisher are entitled to be paid for their work, and by purchasing the hardcover, you did so. Your subsequent downloading is akin to buying a CD, then copying it to your iPod.

Buying a book or a piece of music should be regarded as a license to enjoy it on any platform. Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you've violated the publishing company's legal right to control the distribution of its intellectual property, but you've done no harm or so little as to meet my threshold of acceptability.

He goes on to quote a publishing exec who disagrees, insisting that any unauthorized download is "stealing" and warns Cohen: "to condone this is to condone theft." But, of course, that's ridiculous. It is not theft at all. Nothing is missing. No one has lost out on anything. The publisher already got its money from this guy. To have a publisher make a statement that is clearly false makes you wonder what sort of strategic direction that publisher is heading in. If they can't understand the difference between someone who already paid just downloading a digital copy, and someone "stealing" a book, they're never going to understand how to compete in a digital world.

Thankfully, Cohen makes this same point, in noting (in response to the publisher): "it is a curious sort of theft that involves actually paying for a book."

Just as we were seeing doctors who were embracing social media to do more for patients, it appears that some are trying to clamp down. As in the legal profession, it appears some old-timers are over-reacting to things like Facebook. mhh5 points us to the news that an article in the Journal of Medical Ethics is suggesting doctors avoid social networks altogether:

"I would discourage doctors from participating in any form of social networking, but if they do, I would encourage them to privatize their information."

The other big concern is that doctors are told not to look up info on patients on social networking sites or to friend patients. While there are obvious pitfalls there, my guess is that the younger generation of doctors will figure out a more balanced means of still using social networking sites without causing serious ethical problems.

We often see critics or industry folks make absolute statements like, "copyright infringement is stealing and it's bad." Of course, this is wrong for any number of reasons, but rather than jumping all the way to why such statements are obviously wrong and misleading, why not peel back that onion one layer at a time. Ross Pruden points us to an interesting blog post by Luci Temple, where she begins the process of questioning the assumptions around "piracy is bad." It starts out with that premise (it's bad!) and then starts asking questions:

Purchaser: This person has already paid for a legal copy of the film. Now, the Purchaser might want to do a number of things that are technically in breach of copyright:

a) Burn a copy of the dvd for personal use, so that their original copy won't get scratched.
b) Create a digital copy for use on a portable MP4 player, media gate, or computer.
c) Lend the burned dvd to a friend for their personal use (their friend being a Previewer).
d) Lend the digital copy to a friend for personal use (which actually involves making another digital copy).

All these things are technically acts of "piracy," however, are they all morally "wrong"? Is copyright law applicable to the mores of the digital age, or does it need to be updated?

She goes on to discuss "lending" to a friend, noting how it's fine to lend a physical copy, but why not a digital copy? The thing is, the more you play this game, the more you'll realize how many situations that are automatically lumped in with what's considered "bad," almost certainly aren't "bad" in anyway at all.

Well, this is interesting. Despite the various biased, one-sided, "education programs" designed by the entertainment industry for schools, it seems that plenty of students are smart enough to make ethical decisions in a more nuanced and understanding fashion. Michael Geist points us to the rather surprising news that the winner of a high school ethics essay contest wrote his essay explaining why file sharing may be illegal, but it's not ethically wrong.

She argues that there are a variety of reasons why kids still engage in unauthorized file trading, but one of them is that they just don't think copyright laws are morally justified. Instead, they see the benefit and the opportunities presented in easier sharing and distribution of works, allowing more people to hear and discover new artists, while opening up lots of new potential business models. All good stuff.

But what's most surprising is that this essay actually won the contest. While there are plenty of us who understand the views expressed in the paper, you would think that most folks who haven't thought too much about these issues will quickly resort to the "but.. but... infringement is bad!" arguments, and refuse to even consider an essay arguing that copyright infringement can be morally justified. So, kudos to the judges for at least having an open mind on this one.

There's been a lot of talk lately about claims that blogs are somehow posting stories without revealing if companies are paying for them, and even the FTC has announced plans to come out with guidelines to stop such behavior. But, of course, that assumes that it's only "blogs" that do this sort of thing, and not the mainstream press. And, to be honest, I can't think of a dumber thing for a blog to do, because if evidence of such a thing ever came out, it would destroy that blog's credibility. Yet, apparently, some in the newspaper business have no problems overtly and proudly advertising such things. A whole bunch of folks have submitted the story of a weekly newspaper in Key West Florida that alerted local political candidates that if they want coverage, they need to buy ads:

"As far as candidate forums and debates, we'll cover those when we can, but if candidates want their campaign covered, they have to pay to play.... I gotta pay the bills."

While a bit shocking in its honesty, it also should raise pretty serious questions about the credibility of the publication, which promises "fair reporting and fair representation." Though, given that it looks like the Conch Color website was designed in 1996 (yes, it has a clip art animated spinning globe -- and I'm almost surprised there's no animated "under construction" gifs), perhaps its credibility was already in question.

We've been hearing all of these stories about the importance of extending copyright further over news content and how mainstream publications can't handle other publications acting as "parasites" -- using their news without paying.... And at the same time, there seems to be a huge double standard. Apparently people are questioning the journalistic ethics of ESPN for offering to pay $500 for the Lebron James dunk video, which made some news recently when James supposedly tried to suppress it.

However, the bigger point here is: smaller publications are considered parasites for rewriting a story from a major publication leading people to put forth proposals that these sites pay the original publication. But... when it comes to a video from an independent entity, it's suddenly an ethics violation to pay the copyright holder? In the first case you have company A (the major publication) demanding money from company/person B (the indie publication) for "using" their work. In the second case you have people saying that it's unethical for company/person B to get money from company A for using their work.

Can someone please explain how that's not a double standard?

When the mainstream publication is reporting it's unethical to pay for copyrighted material? But when another publication writes a story (not copies it, even) based on reporting from a mainstream publication, it's suddenly a violation? By the mainstream publications' own reasoning, wouldn't accepting money from these "parasites" be just as unethical? After all, those smaller publications would now be paying for news, which apparently is incredibly unethical in the mainstream journalism book...

Plenty of folks have noted that the Justice Department has been the landing place for a number of RIAA lawyers. Some have suggested not to get too worked up about this, given that the Obama administration's ethics rules supposedly forbade those lawyers from being involved in issues related to their former work. However, it looks like the limit on these guys is actually quite narrow and for a very short period of time. We'd already noted that the highest ranking former RIAA lawyer, Thomas Perrelli, in his Senate confirmation hearings, said he hoped to use his position to increase intellectual property enforcement from within the Justice Department.

Now, Pro Publica, an online investigative reporting operation, has published the ethics agreements signed by Obama administration appointees, including Tom Perrelli's agreement, which appears to only preclude him from working on issues that impact his former clients for one year. Also, it seems pretty narrowly focused on the specific clients he worked for, but not other aspects of the same industry. In other words, in less than a year, he can certainly start helping the RIAA from within the Justice Department -- and his Senate testimony suggests he's interested in doing so. That's not quite the ethical separation we were led to believe would exist in the administration.

With respect to the Bernard Madoff scam, I'd been hearing plenty of people ask "where did the money go?" since there's none left. The answer has always been pretty straightforward: as a Ponzi scheme, much of the money went back out to the earlier investors who took some money out. The rest was probably invested in various investments whose value has gone down to almost nothing in the last few months. However, this is apparently creating something of a quandary for some of those early investors who took money out -- but still had some money (theoretically) still with Madoff. Should they apply for aid from the Securities Investor Protection Corp?

SIPC acts like an FDIC for these types of investments, helping to protect investors in cases of fraud. But some are realizing that if they took money out from Madoff over the years (and some did so profitably), if they go ask for money from the SIPC, it could alert regulators to the fact that they profited from Madoff's scam -- and they could suddenly owe the "profits" they had taken out in the past. The Feds can demand that those who profited from Madoff's scam return the money -- but that will involve actually being able to track them down. For some "victims," it may be better to just keep what they have, keep quiet, and forget what they thought they still had invested with Madoff. But there are concerns for others who have already admitted to cashing out (sometimes a long time ago), are they suddenly going to be forced to return the money they took out of their accounts?

We've covered the concept of SLAPP (Strategic Lawsuit Against Public Participation) suits plenty of times before. These are bogus lawsuits filed to try to bully a critic into shutting up. In one such case, involving an incredibly broad subpoena against a librarian blogger compiling information on the potential link between mercury and autism, a magistrate judge has seriously smacked down the lawyer who filed the subpoena. The blogger had merely published on her blog information about the fees the lawyer in question had received. In response, the lawyer subpoenaed a ridiculous amount of information from her: "all documents pertaining to the setup, financing, running, research, maintaining" of the blog, "including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any 'religious groups (Muslim or otherwise), or individuals with religious affiliations,' and any other 'concerned individuals.'"

The judge quashed the subpoena quickly, but has now hit back really hard on the lawyer, Clifford Shoemaker, for filing it in the first place:

Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....

I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia's Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.

The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker's conduct and so that those authorities may take whatever action they deem appropriate.

As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.

Now that's a smackdown.