[Diskussion BMC1] - Kapitel 4, Entwendung, Verletzung des Copyrights

[Dhammañāṇa]

Aramika  

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Pāṭimokkha anhand von BMC1 betrachtet - Diskussion u. Kritik  

4. Kapitel , Entwendung, Verletzung des Vervielfältigungsschutzes (Copyright).

In der Einführung bezieht sich der Autor auf das Konzept des Copyrights der UNSECO und später auf das Konzept des Copyright der Vereinigten Staate, wo soetwas wie “Fair Use” besteht. Diese Konzepte scheinen nicht wirklich gute Ausgangspunkte zu sein, den im Gegensatz zu diesen besteht ein Konvention was Autorenrechte betrifft, und dieses weit anerkannte Recht, spricht dem Eigentümer (! Kein Beitzer) das inhärente und sogar vererbbare Recht des Eigentums und des Umgangs zu und befaßt sich entgegen der schwammigen Auslegungen des Copyrights mit Grundrechten, eine Ebene auf der sich auch die Vinaya bewegt. Ein Autor hart ein unabwendbares Recht auf sein Produkt, Erzeugnis und muß dieses in keiner Weise deklarieren oder anzeigen, so wie ein Besitzer eines anderen Gegenstandes, nicht seinen Namen darauf zeichnen muß um es als seines zu beanspruchen. So ist im Falle vom Autorenschutz die Wahrnehmung relativ einfach, denn alles was nicht ausdrücklich als “Eigentumlos” angegeben ist, trägt einen Eigentumer. Des weiteren Beharrt auch hier der Autor auf das Argument, das Ausgleich und Schuld wie in den zwei vorangehenden Diskussionen behandelt, nicht unter diese Regel fallen und auch hier ist klar auszusprechen, das alle Faktoren zum Tragen kommen. Richtig bemerkt ist, daß man hier kein physisches Ding entwendet, sondern gewissermaßen einen oder den ganzen Ertrag den ein Eigentümer aus dem Gegenstand erwirken tut oder kann. Man mag sich hier an die Aufarbeitung im Bezug auf Gerichtshandlung und Ausgleich erinnern, wo der Faktor Gegenstand nicht das Unmittelbare Objekt des “Streites” ist, sondern das Produkt aus dem Objekt, der idielle oder materielle Verlust bzw. Gewinn für den nehmenden. Wäre da kein Gewinn absehbar, gebe es keinen Grund etwas zu nehmen, was immer der Gewinn sein mag, oder der Verlust. Was die fehlende Anstrengung betrifft, so der Autor meint, ist diese in seinem Fall auf das Obejekt rückgeschlossen, aber hier findet im Akt des Kopierens eine Entwendung der Frucht dieses Produktes statt und es ist daher nicht möglich zu sagen, daß Gegenstand und Anstrengung nicht vorhanden sind. Letztlich ist es in gewissen Situationen, nicht gegeben oder mit Bedingungen (Treuhändisch).

In Wahrheit ist das Autorenrecht, wie auch Nutzungsrechte heute ein sehr ernsthaftes Thema und ein großer Anteil (wenn nicht schon der Überwiegende) von Besitz, Handel und Gewinn, und damit auch Verbrechen und Verlust, läuft heute über diese modernen Wege des Besitzes und es wäre nicht gut hier wie “Leute aus dem Dorf” zu handeln und sich in diesem Urwald gewissenlos zu bedienen und es von den Kardinalregeln auszuschließen. In Wahrheit ist das Thema so komplex, daß es einer Überarbeitung der gesamten Vinaya im Bezug auf dieses Thema bedarf und diese in die modernen Gesetzmäßigkeiten zu übersetzen. Sicherlich ist es für jemanden einfach, der die Faktoren auch in diese Welten abstrahieren kann, doch der Erfahrung entsprechend, sind dazu nur wenige in der Lage.
Um hier allgemein zu diesem Punkt im Buch vorzuschlagen, können die Faktoren inkl. Dem Wert, in gleicher Weise im Bezug auf den Verlust des Eigentumers angewandt werden. Wenn also jemand ein Werk zu einem Bestimmten nutzen vorsätzlich kopiert, besteht der Gegenstand (Kopie), die Absicht (es zu nehmen um es zu verwenden, Nutzen), die Wahrnehmung (das dieser Nutzen einen Eigentumer hat, es genutzt wird) und die Anstrengung (indem man es zum Nutzen kopiert). Was die Frage gegebenen Nutzens betrifft, so kann es durchaus sein, das ein Eigentümer diesen gibt, wobei dabei zu bedenken ist, an wenn und mit welchen Bedingungen. Viele Werke sind z.B. der Allgemeinheit zum Nutzen zugesprochen und haben die Allgemeinheit als Besitzer, wie etwas Bäume im Wald vielleicht einer Allgemeinheit zugesprochen sind. Ob es sich ziemt, von einem Allgemeinrecht Gebrauch zu machen, wenn man von dem lebt, was einem gegeben ist, wäre eine weitere Frage. Zu dem Umstand des Nehmens kommen noch Dinge wie “Grenzsteinverschiebung” durch Beanspruchung von Rechten, die nicht gegeben wurden, so wie etwas die Kopie eines Produktes und dessen Nutznießung durch Eigenbeanspruchung usw. Ein sehr weitläufiges Thema, welches sicherlich einiges an Aufarbeitung Anstelle von Unterschätzung bedarf. Vergesse man nicht, daß der Umstand des Vergehens eines Kardinalvergehens letztlich keine Frage eines Zuspruches ist, sondern das Resultat solch einer Handlung mit dem Ausführen seine Wirkung hat. Die Auswirkungen daraus, wenn man dieses Thema erst zu einem späteren Zeitpunkt erkennt können sehr gravierend für viel, ja sogar für einen Großteil sein.

Zu sagen, daß der Nutzen keinen Gegenstand im Sinne der Faktoren darstellt, wäre als würde man sagen, daß die Früchte eines Baumes, einer Plantage, eines Feldes ebenso keine Gegenstände sind, entfernt man ja weder Baum, Plantage oder Feld und das vielleicht eingezaunt oder für jedermann zugänglich ist.

Aus irgend einem Grund ist die Beleuchtung des Themas unter dem Titel “Kopieren von Computersoftware für den Autor offensichtlich greifbarer, geht es hier doch um die selben Rahmenbedingungen.

[Dhammañāṇa]

Pāṭimokkha anhand von BMC1 betrachtet - Diskussion u. Kritik

4. Kapitel , Entwendung, Kopieren von Computersoftware.

Zwar sieht hier der Autor, entgegen dem Thema “Verletzung des Vervielfältigungsschutzes ” einen Bezug zu dem Thema in der Regel, doch übernimmt die, wie oben angeführte Auffassung, das “Betrug ” und “Entwenden” zwei verschiedene Dinge sind, was, wie im Abschnitt oben dazu angeführt, nicht der Fall ist. Siehe hierzu auch die Ausführung unter “Schwindeln”. Des weiteren meint der Autor, daß die Person, die eine entwendete Software entgegen nimmt, kein Vergehen begeht. Auch diesem kann ich nicht zustimmen, vergleicht man es mit den Diskussionen zu “Mittäterschaft” und “Entgegennehmen von entwendetem Gut” oben. In diesem Fall ist es sogar so, daß der Entgegennehmende eine “Wahrung” vor dem letztlichen Nehmen (des Gebrauches, Nutzen) bekommt und dann klar wissentlich oder ignorierend handelt.

[Dhammañāṇa]

Gefunden auf den Seiten des bekannten Copyright-Ignorierers und damit Spenden-Erbitters:

Copyright Infringement and Vinaya
by Bhante Varado

 

Introduction

Up until now, no attempt has been made by the Sangha to grade copyright infringement in terms of a vinaya offence. The result has been that sometimes monks, having copied printed works, software or audio material, have later worried whether they might have committed a light or a heavy offence; they are unable to correctly distinguish the two. This muddling of offenses was criticized by the Buddha, and so some attempt to clarify the situation should be made.

Is copying a form of theft?

In Vinaya, theft is considered 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.

- That the object belongs to somebody else can be known and investigated, and since there is less maintaining and left over without an owner still keeping it alive, there can be seldom assumed, that it is thrown way.
 - It could be that such is not known, of course (her it becomes maybe a matter of compensation)
 -  It would be more than hypocritical to say that is something appears after taking at ones own property and disposal, that such is not taken. If it has not been moved from its place, like as if one would break up the download, it would not be taken.

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 is not theft at all.

I am really not sure, as where the argument "it can be returned" comes from and what its purpose is. Nearly everything can be given back, even in the case of a million thief.

Ownership and designs

Unlike physical objects, information is not something that can be personally owned. A car can be owned, but not the design of a car. If someone makes a copy of a car, there are then two cars, but not two designs. If someone steals one of the cars, or both of them, they haven’t stolen the design. Thus the car can be stolen, but not the design. Similarly, books and CDs can be owned, but not the information on them. Thus, the concept of ‘stealing information’ is simply an illusion.

Not sure if the author understands physical even on a conventional level, not to speak about it in terms of Dhamma, if he likes to argue on it, but a software, a file, a writing, is a physical appearance. Try to take it without of physical means, to make a prove. As for the try generally, even if one would accept, that there is a different, the author may be informed, that speaking of Sangha generally, some national laws have even an execution (for example in cases of espinonage) as penalty. So talking is such cool ways of simply illusion, might be tested in the case of being killed for such. Yes, after all that is also "simply illusion. As for finding a common place of what is illusion and what is not, one could take the paramattha dhammas as reverence, so that one is not totally out of frame and here one would find out that mind, matter and mindstates are no illusion on the conventional level of abhidamma, means touching those has effects. Some which only matters for the Sangha, and some which induces the world with its habitats.

Tantamount to theft.

Copyright infringement is commonly considered to be tantamount to theft. But in Vinaya, although serious acts of theft are parajika offences, acts that are merely tantamount to theft are not. For instance, there are two ways a monk can illegitimately obtain goods: through theft and through deceit.

Theft through deceit is called fraud. Fraud is illustrated in the illustrative stories (Cases 41-45) where monks, when food was being distributed to the Sangha, claimed food for non-existent monks, or nuns deceitfully obtained food and ate it themselves (Cases 145 and 146). The Buddha said this was an offence of pacittiya for lying, not parajika for theft. Given that copyright infringement, too, is merely tantamount to theft, one cannot therefore assume it is a parajika offence. What offence under vinaya it could be needs to be investigated.

Although that the sample and the outcome is misunderstood - in this case it is "just" a light offense, because in the case of sharing something what the particular monk already has a part of ownership, since it did not belong to a particular person but to all Sangha members as to be shared, it is a matter that induces the Sangha at least and says nothing about, stealing by deceit is not a stealing - copy something, making it its own, does not require deceit in all instances, while somebody who would for instance, crack a password to gain access for example, would maybe fall into this similar cases.

Copyright infringement: which vinaya offence?

Acts of copyright infringement can be loosely listed in order of increasing severity:

    1.Copying small quantities for one’s own benefit (i.e. ‘fair dealing’, the amount of copying that is automatically sanctioned by law).
    2.Copying large quantities for one’s own benefit.
    3.Copying small quantities for non-profit distribution
    4.Copying large quantities for non-profit distribution
    5.Copying an article for profit.

Dhamma as well as Vinaya does not know such discriminations, wrong stays wrong, even if done, stolen, taken without being given, for the Buddha.

Let us consider the most serious of these, category 5. In copying an article for profit, an infringer makes copies of articles and sells them. He is thus receiving money that should have legitimately gone to the copyright holder. And this is the main grievance of the copyright holder, this diversion of funds.

If such would be an argument, nothing would be stealing. Take land for example. Its still there, but somebody else gets the benefit from it.

This phenomenon of diversion is adequately dealt with under Nissaggiya Pacittiya 30 (NP30). If you reformulate the wording of this rule to cover the situation where an individual – rather than a Sangha or a shrine – is the recipient of the diverted assets, this rule would read thus: “Should any bhikkhu cause to be given gains to himself that he knew were to be given to an individual, it is an offence of dukkata”. Apart from this dukkata, the monk would, of course, be guilty of an offence under NP19 for dealing in money, and would also, of course, be culpable under civil or criminal law.

The case that such is "just" a dukkata, is obiviously, because the factor effort "to take it" is missing, although the total formulation lacks of any consistence.

Infringements under categories 1-4 can be considered lesser offenses than category 5 because in law there is a division between criminal offences "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 criminal offenses are infringing acts which are carried out for commercial or trading purposes" (de Freitas, UK copyright consultant, private communication, 1993). Therefore, category 5 is the most serious category.

Watch out that 1. this is a matter of place and national law and 2. that the author will later argue, as well as at the beginning, that worldly measures do not matter in Vinaya cases (which is actually wrong - remembering the original formulation of this heavy offense of stealing). So the argumentation is a jumping around without frames but seeking justification for unrightousness and does not really seriously bring those things at one point.

We should also note that producing large quantities of infringing products for non-profit purposes (i.e. category 4) to such an extent as to prejudicially affect the owner of the copyright in many countries is also a criminal offense and could therefore result in heavy fines and imprisonment (e.g. see Australian Copyright Council 2006, Information sheet G63). In fact, this is the criminal offence that monks are most likely to fall into. So, I take it for granted that neither civil law nor vinaya would treat categories 1 to 4 more seriously than category 5 – though category 4 may also be a criminal offence. So, under vinaya, because category 5 is a dukkata offence, categories 1-4 would seem to be dukkata offences or less.

This take it for granted rings even after a pc 4... Holly molly...

Showing of videos

Showing hired videos to a paying audience is also an infringement of copyright, similar to category 5, infringement done for commercial purposes. According to Vinaya it would therefore be a dukkata offence, but only if the monk knew that at least one member of that audience would otherwise have attended a legitimate fee-paying performance, because this would then be diversion of funds away from the copyright owner. If the audience was non-paying, it would be no offence under NP30.

Aside of - if this is the case - every Dhamma sharing monk, who shares Dhamma, which is owned by any publishing house, would make an offence, people would need to have the power of foreseeing. It is really doubt able if the author made some deeper investigations.

As for the law, however, if the showing is for a non-paying audience who are not one's intimate friends and family, the copyright holder could claim that a public showing of his work had taken place. ('It may be a [civil or criminal] offence to cause the public performance of copyright material at 'a place of public entertainment' – Australian Copyright Council 2006).

Conclusion

The structure and logic of Vinaya cannot be compared to worldly law. Offences considered minor under vinaya may be serious under law. For example, although physical assault is merely a pacittiya offence, under law it is imprisonable. So, for monks, vinaya is not a replacement for law, but an addition to it.

Good to hear that people can now have trust in there worldly laws while they have surely lost any trust of security in regard of monks, if such things like written here would be all the Sangha is able to give for others people security of being afraid of them: righteously. Its not needed to repeat, that the whole argumentation here is made based on worldly law, where it lightens the case and rejected, when, like in the original formation, it would become a matter of the world.

As for Copyright Law, monks should make a reasonable effort to acquaint themselves with it, and where necessary, should seek permission from copyright holders before using their material if such use is not automatically sanctioned by law. Not only is this a legal requirement, it is polite. And experience has shown that such requests have resulted in new friendships for the Sangha.

Actually, a request can be easy an offense for a Bhikkhu, if asking for permission, maybe its better to ask how declarations are meant. It could be that I am not aware of cases, where requesting a giving, would be possible in this case.

Yes, of cause, it would give a lot of new friendships, if Bhikkhus do not argue in a way, even a thief would not be able to argue his thief.

The Sangha should understand copyright offences correctly, and not exaggerate the problem, because the Buddha has said confusing light and heavy offences is blameworthy:

Very urgent indeed, although its better to lean out to what the Buddha taught in this regard, rather to seek advice form people who obliviously have lesser shame and fear of wrong doing as normal people without the heritage of the Buddha in their bag.

“Monks who explain that a light offence is heavy, or a heavy offence is light, their practice is to the loss and misery of the manyfolk, the loss, injury and misery of deities and men. Moreover, they beget much demerit and cause the disappearance of true Dhamma. But those who explain that a light offense is light, and a heavy offence is heavy, their practice is to the profit and happiness of the manyfolk, the good, profit and happiness of deities and men. Moreover, they gain much merit and establish true Dhamma” (A.1.20).

After all, the author does not mention, that most cases are a matter of "taking in trust", which makes many things easier and more clear.

Intention. There is no offense if a bhikkhu takes an object (1) on trust or (2) temporarily.

To rightly take an object on trust, Mv.VIII.19.1 states that five conditions must be met:

    a. The owner is an acquaintance.
    b. He/she is an intimate.
    c. He/she has spoken of the matter. (According to the Commentary, this means that he/she has said, "You may take any of my property you want.")
    d. He/she is still alive.
    e. One knows that he/she will be pleased at one's taking it.

I would lie if I would not express to feel ashamed, if I would regard my self as being a part of a group which holds such views that is: the loss and misery of the manyfolk, the loss, injury and misery of deities and men, yet one needs to have a lot of compassion, to make them aware, again and again, since they: beget much demerit and cause the disappearance of true Dhamma

Namo tassa bhagavato arahato sammā-sambuddhassa

Should any bhikkhu, in what is reckoned a theft (obiviously by the "world", the law or the executive), take what is not given (not stealing is standing here as a unstabile definition of a deed) from an inhabited area or from the wilderness — just as when, in the taking of what is not given, kings (to say that its not a matter of worldy messure is totally against what the Buddha formulated in this case, since especially the Pc are matters of the world, which have destructible effects for the Sangha) arresting the criminal would flog, imprison, or banish him, saying, "You are a robber, you are a fool, you are benighted, you are a thief" — a bhikkhu in the same way taking what is not given also is defeated and no longer in affiliation.

Quote from: http://zugangzureinsicht.org/html/lib/authors/thanissaro/bmc1/bmc1.ch04_en.html#Pr2

After all, it should be again mentioned for Bhikkhus engaged if causing people to lose their right after a decision made by the highest curt, like such activities:
http://www.dhammatalks.net/copy_right_issues.htm
Sujatos https://sujato.wordpress.com/2015/05/20/copy-this/ and equal undertaking, which endanger property holder the loss of their property at large, that if such would happen, to their later benefits, a pc.2 would be fulfilled.

The fact, that such is a downfall in any case, whether the doer understands or not, is what still keeps up a possible trust in the Buddhas legacy and care for the world, and being that the case, one would not need to be ashamed, as one is not affiliated with such.

After all, it would be more then needed, that such as a real serious and objective (not in line with the common behavior of "villagers") work that makes things more clear, would come into being, by knowledge able Theras consummate in virtue and discernment. It would be sad, if the Sangha puts it self on the level of judging customers rather as being judged even higher as a person vested with legal capacity (meaning accepting and being aware of once own acts, without seeking secure in pity or others outside the three jewels)

[Dhammañāṇa]

Please watch out, especially the marked part, where the author obviously need to cheat at least his heart and let constrictions be the judge, to be able to produce such Vinaya explanations:

Articles
 
Copyright Infringement and Vinaya
VENERABLE VARADO shares his thoughts on a contentious issue. Although meant for monks, it is just as relevant for the laity. Read his views and send us your thoughts on the same.

INTRODUCTION
Up until now, no official attempt has been made by the Sangha to grade copyright infringement in terms of a vinaya offence. The result has been that sometimes monks, having copied printed works, software or audio material, have later worried whether they might have committed a light or a heavy offence; they are unable to correctly distinguish between the two. This muddling of offences was criticised by the Buddha, and so some attempt to clarify the situation should be made.

IS COPYING A FORM OF THEFT?
Vinaya has defined theft as taking place when four conditions are met:

    (i) The object belongs to another person.
    (ii) It is known to do so.
    (iii) An effort to steal the object is made.
    (iv) 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 is not theft at all.

TANTAMOUNT TO THEFT
Copyright infringement is commonly considered to be tantamount to theft. But in vinaya, although serious acts of theft are parajika offences, acts that are merely tantamount to theft are not. For instance, there are two ways a monk can illegitimately obtain goods: through theft and through deceit. Theft through deceit is called fraud. Fraud is illustrated in the vinitavatthu (Vin 3.59) where monks, when food was being distributed, claimed food for non-existent monks. The Buddha declared this to be an offence of pacittiya for lying, not parajika for theft. Given that copyright infringement, too, is merely tanta¬mount to theft, it is probably not a parajika offence. But it is not a pacittiya offence for lying, either. So we need to consider what offence it could be, under vinaya.

COPYRIGHT INFRINGEMENT: WHICH VINAYA OFFENCE?
Acts of copyright infringement can be loosely categorised in order of increasing severity:

    (1) Copying small quantities for one’s own benefit (i.e. “fair dealing”, the amount of copying that is automatically sanctioned by law).
    (2) Copying large quantities for one’s own benefit.
    (3) Copying small quantities for non-profit distribution.
    (4) Copying large quantities for non-profit distribution.
    (5) Copying an article for profit.

Let us consider the most serious of these, category (5). In copying an article for profit, a pirate makes copies of articles and sells them. He is thus receiving money that should legitimately have gone to the copyright holder. And this is the main grievance of the copyright holder—this diversion of funds. This phenomenon of diversion is adequately dealt with under Nissaggiya Pacittiya 30 . If you reformulate the wording of this rule to cover the situation where an individual—rather than a Sangha or a shrine— is the recipient of the diverted assets, the rule would read: “Should any bhikkhu cause to be given gains to himself that he knew were to be given to another individual, it is an offence of dukkata”. Apart from this dukkata the monk would, of course, be guilty of an offence under Nissaggiya Pacittiya 19 for dealing in money and would also, of course, be culpable under civil or criminal law.

Infringements under categories (1) to (4) can be considered, in comparison to (5), as lesser offences because, in law there is a division between criminal offences “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 criminal offences are acts of infringement which are carried out for commercial or trading purposes” (de Freitas, private communication, 1993). Therefore, category (5) is the most serious category. We should also note that producing large quantities of such products for non-profit purposes, i.e. category (4) to such an extent as to prejudicially affect the owner of the copyright in many countries is also a criminal offence and could therefore result in heavy fines and imprisonment (e.g. see Australian Copyright Council 2006, Information sheet G63). In fact, this is the criminal offence that monks are most likely to commit. So, I take it for granted that neither civil law nor vinaya would treat (1) to (4) more seriously than (5)—though (4) may also be a criminal offence. So, under vinaya, because (5) is a dukkata offence, (1) to (4) would be dukkata offences or less.

SHOWING OF VIDEOS
Showing hired videos to a paying audience is also an infringement of copyright, similar to category (5) above. It would therefore also be dukkata, but only if the monk knew that at least one member of that audience would otherwise have attended a legitimate fee-paying performance, because this would then be diversion of funds away from the copyright owner. If the audience was non-paying, it would be no offence under Nissaggiya Pacittiya 30.

As for the law, however, if the showing is for a non-paying audience who is not one’s intimate friends and family, the copyright holder could claim that a public showing of his work had taken place. (“It may be a [civil or criminal] offence to cause the public per¬formance of copy¬right material at ‘a place of public entertainment’.”–Australian Copyright Council 2006.)

CONCLUSION
The structure and logic of vinaya cannot be compared to worldly law. Offences considered minor under vinaya may be serious under law. For example, although physical assault is merely a pacittiya offence, under law it is imprisonable. So, for monks, vinaya is not a replacement for law, but an addition to it, a fact established in vinaya, where the Buddha, referring to the legislative system of the day, said, “I allow you, monks, to obey kings” (Vin 1.138).

In this article I have suggested that copyright infringement is a minor vinaya offence. As for copyright law, I feel monks should make a reasonable effort to acquaint themselves with it, and, where necessary, seek permission from copyright holders before using their material if such use is not automatically sanctioned by law. Not only is this a legal requirement, it is polite; and, as experience has shown, such requests have resulted in new friendships for the Sangha.
____________________
BHIKKHU VARADO graduated in Medicine in 1984. He was ordained as a bhik¬khu by Ajahn Sume¬dho in 1988. Most of his monastic life has been spent at Amaravati Monastery where he has periodically taught vinaya. He is currently writing a vinaya instructors’ manual in which he discusses the puzzles of vinaya. He was the editor of the Forest Sangha Newsletter 2003 - 6. His sutta translations are available at www.translations.awardspace.co.uk .

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Dialogue on Copyright Infringement and Vinaya
After receiving Ven Varado’s article “Copyright Infringement and Vinaya”, Ven Kumara, Ven Aggacitta and Sasanarakkha’s editor took the opportunity to discuss the matter with the author. Here is the outcome of their email correspondence, which has been edited to make it more intelligible and conversational.

Ven Kumara: When discussing this matter, I’m reminded of the case in the vinitavatthu of Parajika 2, where a monk, for a fee, smuggled a taxable jewel across the border. So, here too nothing physical was stolen, but it was accordingly judged by the Buddha as parajika. What do you think of this?

Ven Varado: Tax is money that is owned by the government. It is not a fee that is owed to it. Likewise, when goods are imported, the government automatically has a part share in them. In paying import tax, importers are buying back the government’s share of the goods. Smuggling is therefore a form of theft: taking the government’s portion without paying for it.

VK: How does this apply to using software? Licence owners do not sell software, but charge customers to use it. I wonder if using software without paying for the licence is like importing goods without paying customs tax?

VV: No. It is using a service without paying for it. Emotionally it may feel like theft, but how can it be theft when nothing gets stolen? Unlike physical objects, infor¬mation is not something that can be personally owned. A car can be owned, but not the design of a car. If someone copies a design of a car, there are then two cars; but there are not then two designs. The car can be stolen, but not the design. Similarly, books and CDs can be owned, but not the information on them. The concept of ‘stealing information’ is simply an illusion. Thus infringing copyright should not be seen as theft. Neither should plagiarism, which, unlike copyright infringement, is a form of lying. (see insert p14)

VK: I suppose it feels like theft mainly because we’ve been bombarded with media reports saying that it is theft. What about sneaking in to watch a movie in a cinema? Would that be equivalent to watching a movie that has been pirated onto a DVD? What about stealthily using a pay-toilet without paying? Would that be stealing the fee that one should have paid?

VV: Using a service without paying for it is sometimes theft, sometimes not.
Sometimes, using a service without paying for it can be compared to taking others’ possessions temporarily. The Buddha said, “There is no offence in taking for the time being” (Vin 1.65). What would the vinaya offence be for a monk who illegally borrows a chainsaw from a hire shop? It would be no offence, though under law it is obviously illegal.

Sometimes using a service without paying for it, where it involves wastage of others’ property, can be compared to arson, which is a dukkata offence (Vin 2.138; Vin 3.65), e.g. setting off fire extinguishers for fun, flushing all the public toilets, or turning on all the taps.

Sometimes using a service without paying for it is theft, even just taking someone else’s water (Vin 3.65). Taking paper towels from a public toilet without permission seems similar. Using a telephone without permission is theft because it is equivalent to taking money from the owner’s pocket and giving it to the telephone company. But remember, the Word Analysis to Parajika 2 says that taking counts as theft only if it involves theyyacitta, a thieving attitude.
Downloading an electronic file is not theft; it is copying of information. Unlike physical objects, information is not something that can be personally owned. Watching a movie without paying fits into this category: consuming infor¬mation. Nothing is really stolen.

I appreciate your questions very much. You must keep asking until you are sure.

VK: Thank you for your answers. It has certainly helped me to understand the matter better.

Ven Aggacitta raised three points which Ven Varado replied to.

Ven Aggacitta: You said, “Fraud is illustrated in the vinitavatthu (Vin 3.59) where monks, when food was being distributed, claimed food for non-existent monks. The Buddha declared this to be an offence of pacittiya for lying, not parajika for theft.” However, in that case the food was meant for the Sangha; and the fraudulent monk, being a member of the Sangha, claimed food for a non-existent member. Can this principle (that obtaining goods by fraud is not parajika) be aptly applied to the case of copyright infringement where the beneficiaries are totally unrelated?

VV: I used the example of fraudulently claiming food to demonstrate that conduct ‘tantamount to theft’ is not necessarily theft. The example does not mean that because bhikkhus are part of the Sangha, they may steal from the Sangha. It simply shows that stealing by means of fraudulence is an offence of lying, not stealing.

VA: You said, “So, for monks vinaya is not a replacement for law but an addition to it, a fact established in vinaya where the Buddha, referring to the legislative system of the day, said, ‘I allow you, monks, to obey kings (Vin 1.138)’ ”. How¬ever, this allowance for obeying kings was given in the context of a request for a postponement of vassa by King Bimbisara who sent a messenger to ask the bhikkhus if they could enter the vassa the next full moon day; the matter was reported to the Buddha, who then allowed the monks to comply with the king’s request: “anujanami bhikkhave rajunam anuvattitum.”

The infinitive anuvattitum can have different shades of meaning, such as “to obey”, “to follow”, “to conform”, “to comply”. I think that in this particular context the implied meaning is “to comply with the king’s request”. I also feel that it would be too sweeping to claim that the Buddha was “referring to the legislative system of the day” when he made this allowance.

VV: Yes, one should not wildly extrapolate from a single phrase. However, there are many examples where the Buddha used his diplomatic skills in regard to kings. When King Bimbisara, out of faith, proclaimed that bhikkhus should not be prosecuted for crimes (Vin 1.75), even then, the Buddha did not take advantage of the situation; in fact, he prohibited jail breakers and wanted criminals from receiving upasampada (bhikkhu ordination). He established several Patimokkha rules specifically to support friendly relations with kings (e.g. Pacittiyas 83 and 57) and he prohibited those in the king’s service from joining the Sangha (Vin 1.74). Thus, the phrase “I allow you, monks, to obey kings”, can probably be taken as representing the Buddha’s general attitude to legal authority.

VA: You said, “Emotionally it may feel like theft, but how can it be theft when nothing gets stolen?” But in the story to Parajika 4 , the Buddha describes five kinds of thieves who also steal, but without taking anything material. Perhaps you should make it clear that you are not talking about theft in that sense.

VV: Yes, those five cases of “theft without taking anything material” all involve stealing reputation by deceit-either a good reputation for oneself, or stealing a good reputation from another monk by maligning him. Hopefully people will see that our discussion is in the context of Parajika 2, where theft is defined as stealing a physical object.

VA: I’d like to further the discussion because I think we can draw some important clues from it. In that story the Buddha said that there are five great thieves:

    1. A monk who tours around with a large assembly of monks, craving honour and support from laypeople.
    2. A monk who claims that the Buddha’s teaching is his own. [This is plagiarism, which is quite distinct from copyright infringement. (see insert on next page)]
    3. A monk who falsely accuses a chaste practitioner of the Holy Life of unchastity.
    4. A monk who makes use of ‘heavy’ property belonging to the Sangha to bribe laypeople and court their support.
    5. A monk who falsely claims superhuman spiritual achievements; he is the foremost of them all because he has eaten the people’s alms food through thievery.


It is interesting to note that these forms of theft were not discussed under Parajika 2 but under Parajika 4, which deals with lying and fraudulence; and that although they were all condemned by the Buddha, only the last form entails parajika-which is committed not when he receives or eats the people’s alms food (i.e., stealing something physical), but when someone understands his claim.

Sasanarakkha’s editor jumps on the bandwagon to pose a question from a lay person’s point of view:

Editor: Bhante says that acts of copyright infringement of categories (1) - (4) (copying for one’s own benefit) is dukkata for monks; for the lay person they are not criminal offences but may subject the ‘offender’ to a civil suit against him. My question is: How does Bhante see these acts in the light of the second precept of not stealing, for the lay person?

VV: In the five categories I mentioned, both categories (4) and (5) are in fact criminal offences. Category (1) is allowed by law. Categories (2) and (3) are, broadly speaking, wrong, and should not be done; but they are not criminal offences according to de Freitas, the copyright expert I quoted above.

Laypeople should be as scrupulous about observing copyright restrictions as any of the precepts. Doing this leads to beautiful self respect and self-esteem, a sense of inner purity. This is precious. Obtaining something by shameful means is not precious.

My attitude to copyright can be illustrated like this: if I find a booklet in the library which I would like a copy of, though I might feel tempted to photocopy it, I would not do it; if I did, I would have infringed copyright, I would possibly have committed a dukkata offence, and I would never enjoy reading the photocopy.

Alternatively, I could ask the author for permission to photocopy it; but I would feel uncomfortable doing this without prior invitation. So, my choices are either having a lay supporter buying me a copy (which is the aim of copyright law) or doing without.

The main point of my article, however, is that if craving gets the better of me, as it might, and I illegally photocopy the booklet, I am not guilty of a parajika offence. I feel it is important for the Sangha to understand this, because confusing light and heavy offences is blameworthy:

Monks who explain that a light offence is heavy... a heavy offence is light are practising for the loss and misery of the manyfolk, the loss, injury and misery of gods and men. Moreover, they beget much demerit and cause the disappearance of true Dhamma. (AN 1:152,153; combined)

Monks who explain that a light offence is light... a heavy offence is heavy are practising for the profit and happiness of the manyfolk, the good, profit and happiness of gods and men. Moreover, they gain much merit and establish true Dhamma. (AN 1:162,163; combined)

Editor: Thank you for your lucid clarification on my question. You’ve made it very clear that infringement of copyright is morally wrong and should not be condoned.


Plagiarism and Copyright Infringement: what’s the difference?
Extracted from http://www.sckans.edu/library/plagiarism.htm*

What is plagiarism, anyway?
Plagiarism is the use of someone else’s work without giving that person credit, passing off their work as your own.

Forms of plagiarism:—Directly copying someone else’s paper, such as a classmate’s, a paper purchased online, or a paper copied from the internet.
—Quoting from another source without marking the material as a quotation.
—Paraphrasing from another source without marking the material as a paraphrase.

What’s the difference between plagiarism and copyright infringement?
Both plagiarism and copyright infringement are instances of inappropriate use of another’s intellectual work, but copyright infringement is the unauthorized reproduction of materials such as essays, sections of books, or music. Lots of different kinds of materials can be copyrighted: lectures, song lyrics, musical scores, artwork, cartoons, cookbooks, etc. The person who owns the copyright has the right to say who can copy the material; hence the term ‘copyright.’

Owning a copyright is like owning water rights. The material itself (e.g. the words in the song lyrics, the drops of water in the river) isn’t actually owned. Instead, the person who owns the rights to the material determines who has access to the material and under what conditions.

In general, any person who produces intellectual work owns the copyright to the work, whether the person marks it with a copyright symbol or not. Adding the symbol,© , helps to remind people that unauthorized reproduction is copyright infringement. Copyright infringement is illegal, and can result in both prosecution and civil lawsuits.
© Dr. Beth Sheppard and Dr. Delilah R. Caldwell, 2005. This material can be used and reproduced freely, but we expect to be properly cited.

Labels: copyright, vinaya

So actually his attitude seems to be quite ok, but as it looks, he fears to make a thief unconsciously, what, as we know would be no offense at least. So the problem of such outputs seems to be elsewhere, but not by the actually facts. It could be, that his intentions is simply to lighten the conflicts in mind for his fellows and not so much for his own, but such can not be made by changing the intentional roots of Vinaya, but only for one own possessions.

* sidestory:  Atma just remembered on the Ven. Abbot here, who, knowing and keeping the Vinaya in this regard well, would on each end any occasion tell: "When ever you like to take something (that goes in direction of ! all his possessions), when you need something, please feel invited to take and no need to ask". He would make such minimal once a day and even if somebody is on taking on this account or even looks in direction of his possession, he would express it. On one hand, to make sure that nobody has any bad feelings and on the other, to prevent eventually missdeeds and at least, he increases the awareness of people who are up to take, so that they can learn and be reminded, and all of this as a compassionate act leading people to Vinaya and Dhamma at the same time. 

Its quite often observed, that people think that they can be judged for something not done, by the Vinaya and that seems to be a motivation, something which is a general motivation today, to de-criminalize in big amount rather to make people learn about being aware and simple about their acts.

And how things work, we have also a living sample by doing...  not easy this realms dangers and needs for care:

Subject:    copy of one of your article
Date:    Fri, 16 Oct 2015 16:19:17 +0700
From:    Samana Johann <johann.brucker@sangham.net>
To:    webmaster@sasanarakkha.org, office@sasanarakkha.org


Valued web site team,

Atma (my person) just used one article of yours, in regard of copyright, posted here:Antw:[Diskussion BMC1] - Kapitel 4, Entwendung, Verletzung des Copyrights

becoming just aware, that the sentence "© Dr. Beth Sheppard and Dr. Delilah R. Caldwell, 2005. This material can be used and reproduced freely, but we expect to be properly cited." could be limited only to a certain part of the article previous thought it would be in regard of the whole article, and looking even at this part, it seems to be not directly given but copied from a third page. Atma would like to apologies if the re-quote of the article was not welcome and since he could not find more information, he likes to ask, how you would like to have it be handled, finding "all rights reserved" on your pages.

Please let me know, so that it would be possible to change things according your wishes.

metta & mudita
Samana Johann

And once again a accidentally occasion, My person is more than interested, to know the answer, seeing that Ven. Kumar, is a board member, remembering that he has the "Dhamma should be free given even to be sold" attitude. Not easy this big confusions, walking on the path of claiming and claiming rights and claiming rights to be removed, as if right view would not have been taught.