Disclaimer: This essay represents my attempt to think through what seems like a complex question [1]. Since I benefit from the ideas of others, I am likely to write a followup essay in which I revise my thoughts based on the comments I receive [4].

A few months ago, I suggested to middle son that he might want to borrow Discworld novels from the library, rather than buying them on Kindle. (And yes, he can borrow them through the library on Kindle.)

I know that there’s a legal difference between downloading and borrowing / buying used, but is there an ethical difference? If free downloading is wrong because the author and publisher receive no compensation, why is it okay to borrow from the library or buy a used copy? I’d rather the author [8] get some compensation for the work.

I found the question a bit challenging. I haven’t had time to think about it, so it’s sat on my list of things to muse about until now. But my muse tells me that today’s the day to think about the question.

The sale and resale of books and records and CDs fall under at least two basic legal principles in the United States: Copyright and First Sale. From what I know, there are different approaches to copyright in different countries. In the US, the underlying approach to copyright should be guided by part of Article I, Section 8 of the Constitution.

The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]

So, the goal of copyright is progress and art. Note that the goal is not to support business interests, as some current members of Congress seem to think. At the same time, it does not seem to have a significant ethical underpinning; the clause does not say that authors and inventors deserve these rights, simply that Congress may grant them.

What about First Sale? First Sale is a kind of consumer protection that serves as a limit on copyright. In essence, it says that if you own something, you have the right to do what you want with it: Resell it, discard it, whatever. As I understand it, First Sale is an attempt to codify the relationship of normally understood property rights to materials subject to copyright. If you own a chair or a house or a hammer, you are free to do what you want with it. Logically, the same should apply to copyrighted works. However, copyright appears to grant exclusive rights, and so it was necessary to have some loopholes. Fair use is another such loophole.

Do we have enough context to address the question? We may, even though we have focused primarily on legal, rather than moral and ethical issues. First, we will note that in some sense, both copyright and first sale are focusing on economic issues. Copyright provides financial incentive for creators. First sale suggests that the consumers also have economic rights. In the physical world, we assume that there’s an appropriate balance of the two.

In particular, it is likely that pricing has traditionally reflected economic models. For example, Publishers (or record labels, or whatever) assume that K% of books (or records, or CDs) are bought and kept; U% will be bought and resold, perhaps an average of R times [9]; L% will be purchased by libraries and loaned to an average of P patrons [10]. There’s a balance of paid uses and unpaid uses.

Downloading, or more precisely, illegal downloading, changes that balance. In particular, it likely increases the number of unpaid uses at the cost of paid uses. What about libraries loaning ebooks? I think there’s likely a similar effect, although I don’t know if ebooks get loaned more or less than physical books. Certainly, physical books eventually wear out or get lost. The Internet has also made the resale of used copies much easier, which changes the number of times books are resold, and therefore how many are purchased..

In any case, these changes would suggest that publishers need to change their pricing models. But it’s a difficult issue, since changes in price also affect the number of copies purchased, or resold, or borrowed.

For textbooks, a form of book with which I am too familiar as a faculty member and as a parent of two College students, publishers have been working actively to change their model and the system in a variety of ways. It seems like prices are going up [12]. Publishers also create new editions more frequently to dampen the used market. From one perspective, these are sensible reactions to changing economic models. At the same time, they seem immoral; is a textbook really worth what they charge, particularly if it’s been out for awhile [14]? Of course, the prices feel immoral because they are based on economic models, and most economics is immoral, or perhaps just amoral, since morality does not normally get incorporated into economic models.

But let’s assume that it’s immoral to charge to much for textbooks. Does that make it moral to obtain those texbooks in less moral ways? No. Two wrongs do not make a right. Nonetheless, while I criticize all students who seem to have illegally downloaded copies of their texts, I am much more critical of students who do so with texts that I consider reasonably priced, such as CLRS [15], which is only $80 for a 1300+ page hardcover, or Engineering Software as a Service, which is$10 for a Kindle edition with free updates or $40 for a print edition. I do think we have a responsibility to support authors and publishers who try to play fair. It may make a difference that I know Cormen and Stein of CLRS, and watched how hard Cormen worked on that book [16]. I also know that Armando Fox isn’t trying to make any money from Engineering Software as a Service; he’s just trying to meet costs. Then there’s the more complex issue of what happens when a work goes out of print, or is not otherwise readily available. While copyright owners legally have the right to make their work unavailable, it’s not clear to me how that provides a benefit to society. The Oatmeal has an interesting strip on this issue, which is one I’ll consider in more depth in a separate essay. Now, where were we? Oh, that’s right. Why is okay to buy used copies of a book, or take them out from the library, when authors and publishers receive no direct compensation for those purchases or loans? And why is that ethically any different than illegal downloads? I guess that one response is that there is an intersection of rights, at least for used books: Authors have a right to be compensated for their work; owners of an object have a right to be able to resell that object without additional restrictions. Libraries help address multiple issues of availability: They ensure that materials are available even after authors decide not to distribute them, and they ensure that those who cannot afford to purchase such materials have access to them, both of which seem like ethically sound rationales. I am incredibly fortunate that I can afford to buy books. I don’t need to use libraries, and my use of libraries benefits no one but me. Poeple selling used books may have a right to sell them, but they don’t have a right to purchasers. I think my son may be right, in some ways. I still think it is more ethical to borrow a book or buy a used book than to download it illegally (and I wouldn’t do the latter). Nonetheless, if a new copy is readily available at a reasonable price, it may make economic, but not ethical, sense for me to borrow or buy used. Damn. But even if I buy new, very little of the money goes to the primary creator; there are way too many middlemen - the store, the book warehouse, the publisher, and more. For musicians I really like, I try to buy from their Websites or shows (or, in some cases, from their really small labels), since I think they get a higher percentage. For authors with small presses, I try to buy directly from the presses. I could also consider buying used and finding ways to send money directly to the creators. I suppose I could say that it’s ethical for me to donate all of what I would spend on buying books to the library, and just borrow books from the library. That approach would provide similar compensation to authors and publishers, would give me access to the same books (I hope), and would also make more books available to more people. It would also make Michelle happy, since fewer books would appear in our house. Perhaps I’ll try setting aside some funds each time I borrow a book from the library, and strive to borrow rather than to buy. After three months, I’ll see where that leaves me. I wonder if I can convince middle son to do the same. [1] I wrote the disclaimer first [2]. I could be wrong; it could be that this is a simple topic. However, I think not [3]. [2] Yes, I do go back and edit my texts. But it felt like this disclaimer should stay, no matter what. [3] Now that I’ve finished writing the essay, I find it even more complex. [4] That assumes, of course, that I actually receive comments [5]. [5] Is that intended to encourage people to comment? Perhaps. I really do want to hear what others think about this issue [6,7]. [6] If I were a more responsible thinker, I’d probably do some more research on what others say about this issue, rather than just relying on my friends. So, maybe I’ll write a followup whether or not I receive comments. I’d rather do some less-informed thinking before I go on to seeing what appears in the literature on this issue. [7] This question would be one that I would have really enjoyed talking to Richard Fyffe about. I really miss him, and not just for that reason. [8] Or the author’s estate, in this case. [9] More likely, there’s a distribution of how many times a book gets resold. [10] Or, once again, there’s a probability distribution of how many times it will get loaned [11]. [11] Actually, neither distribution may matter. It may be that all we need for the model is how many books get sold. I’ll leave the full details to the economists. [12] There are too many textbooks at the$200 or $300 level. [14] I did say that publishers come up with new editions. However, there are also a reasonably large number of textbooks that have not changed in a decade and still command prices of over$100. For example, the textbook they use for PChem was last updated in 1997 and still lists for $130. Surprisingly, the market for that book is such that used copies also cost close to that much. [15] Cormen, Leiserson, Rivest, and Stein, Algorithms, 3rd edition. It’s 1300+ pages of dense and carefully written text, and only about$80 on Amazon.

[16] Yes, I know that Cliff worked hard, too. But I remember Tom’s huge effort to create an excellent index, among other things.

Version 1.0 of 2017-01-27.