As a kid I used to download a lot of softwares and movies using torrents. Even if something illegal is done, it doesn't necessarily mean that it violates a precept. But can this be considered as stealing in Buddhism? How can this be explained according to the Buddhist view?
No, it does not. In order to steal, something has to be misappropriated from the original owner.
Copying is not theft, even according to modern jurisprudence; copyright is an artificial "right" granted to the "owner" of a specific intellectual activity to prevent the "copying" of the product of said intellectual activity. "Intellectual property" is likewise an artificial construct.
The presumption that someone has a right to restrict the copying of their ideas is suspect at best, but it should not be confused with the right to restrict the use or appropriation of one's physical property, since the latter involves singular, rather than identical, entities. You don't call it stealing if someone breaks into your house, copies down the way you set your table and goes and does it the same in their own home.
It is important to understand as well that the question of whether copyright infringement is unethical hinges not on whether the owner doesn't want you to copy, but on whether they have a right to forbid you to copy. It is not unethical doing something just because you know someone else doesn't want you to do it; otherwise I shouldn't have become a Buddhist.
The misunderstanding comes from our acceptance of copyright as a tool for monetary gain. We have come to accept that because certain people want to be able to market their ideas, they therefore have a right to do so, whereas it was previously understood that only one's potential at coming up with good ideas (i.e. their value as a person) was marketable. It is not the case that just because someone wants to be able to make money through a certain means therefore they have a right to society's protection in so doing; otherwise, pushing rocks up a hill would have to be paid proportionately.
The main reason we tend to think that copyright is an actual right stems from the massive propaganda machine of the entertainment industry (and mara, I assume) that has managed to equate people who copy the ideas of others with bloodthirsty sea-faring mercenaries (a.k.a. pirates).
Furthermore, though it's now outside of the realm of your question, a person's insistence on controlling copyright may be arguably considered unethical from a Buddhist standpoint; it can be seen as selfish (since it costs nothing to allow others to copy one's ideas), invasive (since it is not really any of your business), and hypocritical (since everyone copies just about everything they come in contact with throughout their lives from the time that they're born). Again, just because we want to be able to make a living in a certain way, doesn't mean we should be protected in it. Theft, on the other hand, does cost the owner, is the owner's business, and expecting protection against it isn't necessarily hypocritical.
tl;dr: copying without permission and theft are two different concepts; whether copying without permission can be considered immoral is suspect at best, but at any rate is not directly related to the second precept.
Doesn't the second precept deal with more than just misappropriation?
No, like all the precepts, it really only means what it says. Anyway, if it was interpreted more broadly, where would you draw the line? Copying someone's words without their permission is stealing, but distributing pictures of them without their permission isn't? Or distributing pictures of them is, but looking at them isn't? There is no clear definition available, except the clearly bogus one of "not doing what other people don't want you to do".
Isn't intellectual property the same as real property?
First, let's get one thing straight; copyright infringement isn't theft; the law doesn't look at it as theft, the RIAA doesn't look at it as theft, no one considers it to be theft except the public who have been misinformed as a part of ongoing propaganda that it is a kind of theft (or piracy, which is really silly). It is actually more like a kind of breach of contract. To explain: the law doesn't concern itself with the physical entity that houses the information; it concerns itself with the fact that something has been copied against the wishes of the copyright holder. The issue isn't that a new copy exists, it is that a copy has been made. It is the act of copying that is illegal.
But the question remains, whether the person who has put all the work into creating a piece of intellectual property doesn't have the same rights as a person who puts work into a physical creation. The thing is, intellectual property isn't like other property in that it can't be given, sold, bought, etc. It can only ever be copied. When you tell someone a secret, you have created a copy of the information. When you publish a book, you are not selling the book, you are selling the right to a copy of the information it contains. So when a person makes money off of intellectual property, what they are actually selling (and this is how the industry really understands it, afaics) is a license; you can't actually sell information. So when concerning ourselves with the poor victims of intellectual property theft, what we should ask is "what gives someone the right to license their ideas?"
The difference is driven home when you consider that a person who creates a physical item of value is able to sell it once. They are only able to sell it because someone else wants to own it; if there are cheaper versions elsewhere (patent and copyright laws notwithstanding), their customers are free to go elsewhere.
A person who holds a copyright over information, on the other hand, holds their creation hostage, pimping it out repeatedly and ever retaining sole ownership over it. They do no extra work for each payment obtained and can, in cases where demand for the information is high, expect to receive payment massively disproportionate to the original work performed to obtain the information (which, incidentally, most likely involved copying information from others).
In short, the real question should be, "what exactly do real property and intellectually property have in common?" The answer is: "not much."
Isn't copyright infringement breach of promise?
In cases where you promise a sentient being of something and then break that promise, yes. Clicking on an EULA isn't a promise because you are communicating with a machine. When you buy a book, if you clearly communicate that you promise to use it in a certain way, then yes, you would be breaking your word if you used it in a different way. If you download software from the Internet, you make no such promise at any point.
Isn't it a cause for mental defilement to go against the wishes of the copyright holder?
Potentially; the situation is that you are being requested not to do something that is otherwise within your rights to do by the owner of the copyrighted work.
You have to weigh whether that request holds merit or not. If your friend asks you not to performing some action, you have to ask yourself whether performing said action is important enough to upset your friend, keeping in mind there is nothing unethical about performing said action. There is nothing unethical about copying other people's work without their permission (assuming, of course, that you properly attribute the works to the correct author and don't try to take credit for other people's work); there is something potentially problematic about upsetting people, especially friends. By the Buddha's words, we can see that upsetting others should be done carefully, but is not necessarily outside of what is wholesome.
As to whether wanton downloading of entertainment is a cause for mental defilement, I don't really think that has anything to do with the argument at hand, since it has nothing to do intrinsically with the matter of permission to do so.
Doesn't copyright infringement hurt a valid industry/artist?
Anyone who thinks this should really brush up on their history of "intellectual property". Specifically, I recommend reading anything by Cory Doctorow, Lawrence Lessig, or Richard Stallman. At the very least this would give a look at the other side of the propaganda war waged by the entertainment industry. Honestly, a lot of what these guys say sounds more Buddhist than some of the opinions of the card-carrying.
As I've said above more than once, though, those people dependent on copyright to make a living (really this is only the entertainment industry bigwigs; the majority of content creators could do better if they adopted a more crowd-friendly approach like Cory Doctorow) are suffering from the same problem scribes had when the printing press was created; they were expecting to be rewarded by a system that was no longer necessary to society. Thoreau put it best when he said:
It's okay to make baskets, but to force people to buy them when other means present themselves is silly. If your reason for doing something is to make money, then the onus is on you, first and foremost, to ensure that your product is valuable; copyright is just an artificial means of placing a monetary value on something (information) one cannot otherwise.
But the question remains, whether we would lose valuable content if there were no copyright laws. The answer depends on what you understand as "valuable". If, by valuable, you mean "marketable", then of course the answer is yes, we would lose a lot of marketable content. We would also lose a lot of addictive content, since the logical outcome of encouraging and protecting monetary gain through copyright ownership is content that is primarily designed to encourage demand (i.e. addictive). The entertainment industry would stop stooping to the lowest common denominators of sex, violence, and absurdity in bringing pleasure to others. I for one could live without that.
If information were free, as it really should be, there would be no powerful incentive to encourage addiction to intellectual property; there would be a reversion to the days when, at worst, one propagated information as a means of promoting one's own value as an individual. Maybe people would stop writing books and making movies on film, but really, haven't we shown already with YouTube and the Internet that these are outdated mediums? It doesn't really cost millions of dollars to create any more.
From Mahayana perspective, illegally downloading e.g. a movie is definitely a breach of precepts, for three reasons:
Firstly, what counts most in Mahayana is your state of mind. After all, the five precepts are training rules. They are about taming your mind by suppressing impulses that originate from Obsessive Desire, Aversion, and Confusion.
What is my state of mind when I illegally download a movie? I want to please or entertain myself, to experience pleasant sensations (in this case emotional and mental, rather than physical, but because of non-duality all sensations are ultimately of the same nature). From Mahayana perspective, acting out of desire to experience pleasant sensations is a downfall. Instead, we should be acting for the long term benefit of ourselves and others. And the best benefit to strive for, is attaining complete enlightenment for the sake of all sentient beings. This noble aspiration is known as Bodhicitta, or the motive of the Buddha.
Second, we must consider the owner's state of mind. (Whether owner is truly an owner or only believes to be such, is of no relevance in this context, because all ownership is ultimately a fiction anyway. It is the state of mind that matters). Would owner be glad if he knew I downloaded a copy of the product of his effort? Would the Three Poisons subside in the owner's mind as a result of my act, or would they increase? Clearly, the minds of the owners of the movie will not be exalted, if they went as far as to put a restrictive license on their content. They did not want us to take it, they told us they did not want us to take it, and they are upset now that we have taken it. How is this not "taking what is not given"?
Third, at the core of the act of illegally downloading a movie, is a perverted attitude of getting something without doing anything! This is the same attitude as is behind fraud, gambling etc. "I don't want to make an effort to entertain myself through doing something creative. Instead, I want to receive positive emotions for free, by taking advantage of someone else's effort." -- This is an attitude of a parasite. Even the begging monks back in Buddha's times were paying back their alms (food) by giving Dharma lectures to the lay people! This spirit of making effort towards positive states of mind is at the core of Buddha's teaching.
To summarize, from Mahayana perspective unauthorized download of copyrighted content is a breach of precepts because it is an activity based on (and therefore sustaining!) wrong motivation, lack of compassion, and perverted attitude -- resulting in a negative long-term effect.
We should not take what has not been given, how does it apply to downloads?
If you have the TV channel in your house (when you download a tv show) or if you have the CD (when you download a song from that CD), you are not creating a problem for the industry, the songwritters, the actors etc... it is ok to download it, because you paid for the CD or you can watch the show for free in the television.
Problems arise when you start to download things you haven't paid for or has not be given to you for free, for example: A movie that is on theatres or a pirate ebook copy. In these cases you are taking the work of other people and not paying for it, you are somehow taking what has not been given, so this is where we should draw the line. In fact, you may be contributing to destroy an industry you like!
Think like this: Would you like someone to steal your hard work? Imagine you spent months or years writting a book and you need to make a living, would you like people to take it for free? So, think about it.
Unless someone is giving away their work then to take it without paying for it does break the precepts. It doesn't matter whether the goods you are acquiring is tangible or intangible.
I would also say that the legality of copyright in your particular country is immaterial. If the person wants to be paid for their work then you should pay even if the country you are in at the time doesn't recognise their right to be paid. The person wants to be paid, you are capable of paying so pay. Or don't take their goods.
But this is my interpretation of the precepts. I would say the important thing to do is not follow the precepts slavishly but work out what they mean and why they mean it. They are training principles and your relationship will change with them over time as you practice. If you have doubts about an action then I would say that you probably know already that it is an unskillful action. Stop doing it and see if you feel better about yourself.
For stealing to take place we can look at the definitions of pārājika 2 on stealing. The original edition of the BMC 1 declared copy theft as stealing. However this has changed in later editions. Because of this, it is controversial and should be avoided especially if one is a monk. The pārājika rule is below: (Ven. Thanissaro) "Should any bhikkhu, in what is reckoned a theft, take what is not given from an inhabited area or from the wilderness — just as when, in the taking of what is not given, kings 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."
Another quote below: "The Vibhaṅga defines the act of stealing in terms of four factors. 1) Object: anything belonging to another human being or a group of human beings. 2) Perception: One perceives the object as belonging to another human being or a group of human beings. 3) Intention: One decides to steal it. 4) Effort: One takes it. Stealing under any circumstances is always an offense. However, the severity of the offense depends on another factor, which is — 5) The value of the object. ". (BMC 1 pg48)
All four factors must be present for there to be theft. The 5th factor defines strong stealing specific for monks and automatic expulsion. #1 and #2 are the debatable items for copy theft, and they come together in most cases and that is where the controversy comes. The issue is on misappropriation and the laws. Most know it belongs to others, but refuse to recognize this as an object of theft. There are cases where not paying customs taxes is considered stealing. While Ajahn Thanissaro argues against using court cases to decide if something is stealing, it is in the pāli rule itself. It is important because a court of law can cover perception and define it according to the king's law. Copy theft is defined by law and enforced in the courts.
Some, monks and communities have considered copyright infringement to be a pārājika (defeat) offense for monks and therefore is stealing since that is what the rule is. There are two criteria for a pārājika defeat offence. One is money value, the other is whether a king would fine, imprison, or banish you. These criteria make a "stealing" a serious "stealing.". Money value only makes it a serious stealing, but it is still stealing and wrong if it is a small value.
Misappropriation is similar to tax evasion and Visa Fee invasion. Sneaking into a theatre and crossing a bridge illegally comes to mind. Some of these cases are mentioned under P2. I have copied misappropriation subheading from "Copyright law of the United States" under "infringement" subheading, wikipedia 2012 kiwix. Zim file.
Misappropriation (from Wikipedia ) A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must first demonstrate that what the defendant appropriated from the copyrighted work was protectible. Second, a plaintiff must show that the intended audience will recognize substantial similarities between the two works. The intended audience may be the general public, or a specialized field. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague." Two methods are used to determine if unlawful appropriation has occurred: the subtractive method and the totality method. The subtractive method, also known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not. The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains. For instance, if the copyright holder for West Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain. The totality method, also known as the "total concept and feel" approach takes the work as a whole with all elements included when determining if a substantial similarity exists. The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material. Modern courts may sometimes use both methods in its analysis of misappropriation. In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation.[51
Is it lying to a machine when the license agreement shows up? It is a "lock" set up by the owner. You are granted entry if you agree. If you do not agree, it does not let you use the program. A quote from BMC I (page 45) "Copying computer software. The agreement made when installing software on a computer, by which one agrees not to give the software to anyone else, comes under contract law. As such, a breach of that contract would be treated under the category of "deceit," described above, which means that a bhikkhu who gives software to a friend in defiance of this contract would incur the penalty for a broken promise. As for the friend — assuming that he is a bhikkhu — the act of receiving the software and putting it on his computer would be treated under the precedent, mentioned above, of the bhikkhus receiving fruit from an orchard groundkeeper not authorized to give it away: He would incur no offense. However, as he must agree to the contract before installing the software on his computer, he would incur a penalty for a broken promise if he then gave the software to someone else in defiance of the contract. "
1. I have heard of people getting "busted" from sting operations that trace IP addresses. The victims of the sting who steal by downloading need to get a real lawyer and pay real fines. (a monastic friend from Germany had a friend who was fined several thousand Euros. He was able to reduce it to hundreds with a lawyer).
2. The original Napster and other sites get banished from the internet and it was a key case in copyright laws and enforcement. Notice the keyword, "Banished"
3. BMC 1 (original edition) declared copyright theft a pārājika. That has been changed, but it should stand as controversial and warned against.
About the BMC: While I have heard of monks stating that copyright does not count as pārājika (defeat), it is usually classed under "wrong use" and clearly says it is wrong. It should also be known that the pārājika rule calls for "in the village or forest" where forest is a place where there are no laws. It was because of this that Pa-auk follows copyright laws.
Wikipedia lists this under "Fair Use". Subheading "Common misunderstandings" Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In LA Times v Free Republic, the court found that the noncommercial use of LA Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.
My own opinion is that it is difficult to judge copy theft as stealing or
not stealing but to present the information that is out there and to
promote abstinence when coming to copy theft.
We should follow the King's law and put it as sīla as a factor in addition to the law. The law comes first. Whether the king is righteous or not, we need to follow his ways and make it a habit. A king can make one's life very difficult and destroy a calm mind for most people. He can torture people all the way up to the death moment. From there it is likely that a hell realm will be next even though the king was wrong for doing it. Life is not fair and neither is rebirth. So it is best to follow the King's law as the top level rule.. Unless of course he has rules that would cause one to kill, etc. like requiring one to participate in the armed forces. Usually one can get around that legally by doing other services. Habitual Kamma followed today will also help to be a habit of the future. This is common sense in the Law of Kamma and cause and effect. Samsara should always be an issue in doing anything. This is the proper way of looking at things. It is the Buddhist way of looking at things. This is important for habitual kamma and for one's well being in the future.
Therefore if it is seen as wrong by others one should not do it. ***The Dasadhamma sutta says: Kacci nu kho me attā sīlato na upavadatī?” ti “Can I myself find no fault with my virtue?”
pabbajitena abhiṇhaṁ paccavekkhitabbaṁ.  one who has gone forth should frequently reflect on this.
“Kacci nu kho maṁ anuvicca viññū sabrahmacārī, “Will my wise companions in the spiritual life, after testing me, sīlato na upavadantī?” ti find no fault with my virtue?”,
pabbajitena abhiṇhaṁ paccavekkhitabbaṁ.  one who has gone forth should frequently reflect on this.
The last line for the reflection on food can set a precedent for all craving objects. yātrā ca me bhavissati, anavajjatā ca phāsuvihāro ca.  and I will carry on, being blameless, and living comfortably. Greed is the main factor. Copy theft is a form of action related to greed. It also disturbs others who own the intellectual property. This can cause kamma in the future.
Samsara is so dangerous. Therefore one should not take chances in acting in greed. One can do without or settle for open source or creative commons media. To protest these laws by making freely available media and software is the best solution. When that happens, other companies will need to compete in a different way. Ven Yuttadhammo has created some free software and books as a proper way of protesting. Ven. Thanissaro has done the same with his books. Someone recently gave a donation so PTS would release a creative commons noncommercial licenses to their entire Mula English Translated Texts. Ven. Anandajoti arranged donors to help buy back his rights from BPS so he could publish and give away his book for free. The last one is not so fair, but he complied with the laws and perceived ownership.
It is certainly controversial among monasteries and individual monks. I have never heard of it being completely free from wrong up until reading an answer here on stack exchange. I bring up the "change in opinion" of the BMC to show how serious it is. It can be changed back and then many monks would worry. However, Ajahn Thanissaro is only a single monk and not a sangha council. There are things in the BMC or elsewhere that many would not agree with:
1. Co-signing checks, accepting checks,
2. Eating of dark chocolate or cheese, smoking cigarettes and drinking tea as medicines to cure a disease.
Patents: Patents help a company get exclusive manufacturing rights so they can recoup their investment in R & D. Some mention "medicine.". This is based on patent laws which is different, but also under "intellectual property.". I am not sure, but I think most countries allow for personal use of patented stuff. Commercial manufactures are another story. I think the U.S. has a clause against personal use..certainly for software patents. That would make VLC and "usable" Linux, like the standard Linux Mint illegal in the U.S. even though it is not copied. Most other countries allow this but a few others do not like this. Mint has a special download for US citizens. Basically, one would need to tolerate such inconveniences and pay Fluendo the patent fees or do without.
Monks should not teach people to do things that would "upset" another. This is in the Metta Sutta. Na paro paraṁ nikubbetha, nātimaññetha katthaci na’ kañci, No one should cheat another, nor should he despise anyone wherever he is,
byārosanā paṭighasaññā nāññam-aññassa dukkham-iccheyya.  ° he should not long for suffering for another because of anger or resentment.
One should not cause mental or physical suffering especially if society accepts the laws. Early in 2001, when Pa-Auk was learning about this world view, it obtained a donation of an education version of PageMaker which was a grey area for a monastery with 600 "students" at that time. They were prepared to pay the difference under P2 exceptions ( bhaṇḍadeyya ) while I wrote Adobe. I wrote Adobe and asked them if an education license was considered stealing for a large monastery that "educates.". I also asked what we should do if it was not OK. They said it was "stealing" referred me to their piracy web page which said so and also said "they do mind" but gave permission to continue using it. Pa-Auk took a very strong policy after that letter was received.
Conclusion: One must have a "stealing mind" in order to steal. One must have all four factors listed at the top of this answer for stealing to occur. Perception is key, but it seems as though acceptance of the copyright rule is more of the issue. Acceptance and perception are different and should not be confused. A person who believes the speed limit should be higher and drives fast anyway may feel he is not "speeding" and justified. However, he knows what the law is by perception. Lastly, it is considered wrong whether it is seen as "stealing" or not and the copyright owners usually do mind. One should ask them to be sure. One should always take the safe side of controversy.
Loving-kindness and respect for the king's laws will always be your friend.
Notes: *Notes: * Although many suttas are referenced in the context of what bhikkhus should do, one who is not a monk would apply this advice just as well for their own practice, benefit and protection.
All pali translations are by Ven. Anandajoti. All non-vinaya pāli is simply from a daily chanting book. All vinaya quotes are from the BMC. Original BMC is not available for quoting.
In Buddhism we are told to take oneself as the example, so if you put effort, hire others to create a movie or software, and then someone copies it without compensating you, would you like that? If the answer is no, then don't do it.
When many people copy SW and movies, it is a disincentive for people to produce newer and better SW/Movies. It also discourages others as well. For example in countries where people could download SW/movies with impunity, their own SW/movie industries never progressed. Also it creates a culture where people are creative leeches instead of being creative. That is why countries that value and protect IP (NA, Europe) are also the most creative in SW, Pharmaceuticals, movies, literature, etc. Open Source SW and free visual entertainment on YouTube are alternates, also initiated and promoted by people in countries that value and protect IP.
I am rather surprised to read some answers above rationalizing the illegal downloading of SW/movies. On those terms industrial espionage is also justified, where its ok to spy on one's competitors and steal their intellectual property instead of developing your own. So according to those answers industries that depend on patents, IP, copyrights like knowledge industries (e.g. lynda.com, udemy), pharmaceuticals, entertainment, publishing, etc are open for exploitation from Buddhists. I think not.
Remember that the factors that constitute theft is given in the commentaries, and back then IP, patents and copyright were not defined as well. In the Viskhauposatha Sutta we read the Buddha's definition of the 2nd precept:
So yes, by downloading SW and movies you have "taken" the creative efforts of others without such items being properly "given" to you. You have "taken" something, which was not "given". As Buddhists we must respect the property rights of others, including their creative efforts. By illegally downloading SW/Movies, the chances are you acted out of greed, desire (loba), ego. Now it is one thing to do something wrong and know its wrong, but its another to do something wrong and think its right.
No, it does not break the second precept. It's similar to you getting a cheap chinese replica of an iPhone. You didn't steal anything. You just got it from a shop.
In any case, whether it breaks the precepts or not, keeping to the law of a country is something that Buddhism encourages as long as it's not immoral. In case of the use of pirated software, the consequences are obvious, if it's illegal in your country.
protected by Community♦ Aug 25 '14 at 11:38
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