Universal's moral problem

Most morally oriented discussions of intellectual property have focused on the responsibilities of the potential infringer. They address the question, "To what extent does one have a responsibility to refrain from using others' ideas (or expressions of ideas) without permission?" and chastise those who seem to flout this responsibility. This case, however, brings up a different question in addition to this one: "To what extent does one have a moral responsibility to not interfere with others' legitimate use of one's ideas?" In other words, how careful should a copyright holder be about not unfairly using copyright law?

Several moral perspectives may be invoked to answer this question. Let us begin with the utilitarian perspective. A copyright holder's suppression of fair use has negative social consequences in the form of society not receiving the benefits of the creativity that was fairly using the copyrighted work. To justify suppressing it, the copyright holder must provide some social benefit. In the case of Lenz v. Universal, there does not seem to be any, neglecting the far-fetched argument that Universal's sales are threatened (this would disqualify the video as "fair use"). The only utilitarian justification that might be relevant is the benefit of copyright holders not having to take the time to evaluate cases for fair use. However, this is a very questionable argument for the clear-cut cases like Lenz's, so utilitarianism seems to favor Lenz's argument.

An argument based on Kant's categorical imperative--i.e. the "What if everyone did it?" argument--also heavily favors restraint by copyright holders in cases of fair use. If all copyright holders tried to suppress fair uses, the chilling effect as well as the bureaucratic mess would be enormous. Prince's desire to send takedown notices for fair-use-covered videos to YouTube is of limited effect, but if all artists did this, YouTube and other online media would suffer in quality as innocuous videos with minor fair uses of copyrighted material (e.g. background music) were removed; the courts would be tied up too.

Another well established method in moral issues is to look to ancient wisdom. In this case, the comparisons are likely to be somewhat indirect: fair use did not exist as a concept until after copyright, an Enlightenment invention, arose. Ancient and medieval thinkers would consider Universal's conduct utterly absurd and could not see how a sensible moral question could even be posed about it. However, this question could be related to older concepts. For example, it might be taken as the civil (as opposed to criminal) equivalent to a false accusation in criminal cases, albeit without the element of perjury. The Bible states that false accusers should receive the punishment the falsely accused would have received (Deuteronomy 19:19). Is it not just that Prince and Universal, who wanted Lenz to cease and desist with her fair use, should cease and desist their own faulty takedown notices that falsely allege infringement?

So it seems that a great deal of moral perspectives favor Lenz's point, at least in such clear-cut cases as these, placing a moral burden on Universal to avoid such specious takedown notices.