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Доброго времени, друзья!

Досточимый Дхамманандо подробно осветил этот вопрос:

So downloading the same stuff is legal in Switzerland and illegal in the USofA. So is the 2nd precept a matter of geography?

One factor in transgression of this precept is that the thing taken is adinna, a thing-not-given.

A thing counts as a given-thing if it comes into one's possession (possession being defined in the KhpA as "capability to use or dispose of it as one pleases") in such a manner as would neither incur the punishment of rulers (raajada.n.da) nor be "criticised by the wise" (vi~n~nuugarahita). If either of these stipulations is not fulfilled, then it's a thing-not-given.

The "punishment of rulers" clause means that the second precept is not separable from the geographical factor of local property laws. On the other hand, the "criticised by the wise" clause means that the precept is not wholly subservient to geography. It's a safeguard against the kind of geographical relativism that avers such and such to be okay if done in Switzerland but not if done in Swaziland.

I'm wondering how do you guys come to a conclusion?

With any contested moral issue, when things seem to be getting overly complicated, the ethic of reciprocity (aka Golden Rule) will usually suffice to cut through the sophistry and dictate a felicitous conclusion. In the present case I think we all know perfectly well that if our livelihood depended upon receipt of royalties for our creative work, then we would feel robbed if people were making use of our work in a way that bypassed paying us our due. How then can we treat others like that?

Laws making downloading illegal are commercial laws, not precepts.

True, but only trivially so. Secular laws in general are not sikkhāpadas.

These laws can be changed at any time.

Earnest observance of the second precept cannot be separated from considerations of secular law. Whether the law in question be longstanding or ephemeral is irrelevant. Why? Because one of the necessary factors of transgression with this precept is that what is taken must be the property of another. If all the other factors are fulfilled but it turns out that what was taken was ownerless, then the precept is not transgressed. But what determines what counts as "property of another"? The texts define it as "that which another may use or dispose of as he pleases without incurring either the punishment of Kings [i.e. secular rulers of any sort] or the blame of the wise."

My precepts are not determined by officials in government.

In the case of the second precept it is certainly determined in part by the secular powers, excepting only those cases where there is a conflict between what would be deemed punishable by Kings and what would be deemed blameworthy by the wise. In these cases obviously the judgment of the wise gets prioritised, in the same way that in the monastic Vinaya the requirement that bhikkhus "conform to the wishes of the King" is abrogated in cases where the King's wishes are unrighteous.

This is just a greed. I've been a musician for 10 years and had a band where we recorded an album. We payed a lot of money to make it. After release we sold CD's, of course, but many people just copied it and even uploaded to i-net so others could download and listen. And I tell you, we were alright with this, nobody had some kind of irritation or displeasure.

Your personal magnanimity and largesse towards copyright-violators has no bearing whatever on the moral question. It's like saying: "Pickpocketing is morally blameless because if any pickpocket wanted to pick my pocket I'd cheerfully hand over whatever he wanted. It's only greedy possessive people who don't want their pockets picked."

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is it possible to "steal" the Dhamma? Well according to BPS and those in favor of copyright it is somehow...

As Kim noted, you're overlooking a rather elementary distinction. It’s certainly possible to steal by making an unauthorised use of an original scholarly production in which a portion of the Dhamma happens to be preserved, but whose copyright has not yet expired. To take one example...

Back in 1993, that quaestuary syndicate of rogues that calls itself Wat Dhammakaya decided that the Dhamma could not be copyrighted. Since it couldn’t be copyrighted, they reasoned that they, being a Buddhist institution, were fully entitled to take all of the Pali Text Society’s English translations of Pali texts and put them onto a CD for free distribution. The PTS then threatened to sue for copyright breach and its then President sent the following e-mail to the members of an academic Indology LISTSERV:

Date: Mon, 25 Oct 1993 08:46:08 EDT
From: xxxxxxx@vax.oxford.ac.uk
Subject: Pali Tipitaka on CD-ROM


From: K.R. Norman, President of the Pali Text Society

BUDDHISM AND INDIAN STUDIES

IMPORTANT - PLEASE NOTE VERY CAREFULLY

You may have received a communication from Professor Witzel of Harvard informing you that the Dhammakaya Foundation has completed the input of the whole of the Pali Tipitaka on CD-ROM, and will be distributing it free.

Please take note that the material which the Foundation proposes to distribute in this way is the property of the Pali Text Society, of which I am President. The Foundation has no right to copy the material on CD-Rom and distribute it in that or any other way. We have been negotiating with the Foundation for some time with a view to possible copying and distribution, but the negotiations have not been completed, and any copying, distribution and use are therefore in breach of our rights.

Please also take note that we reserve the right to take legal action to enforce our rights in this important material against those who disregard them.

The Pali Text Society is a non-profit-making organisation established for many years and dedicated to the advancement of the study of Pali texts and the Pali language. The material which the Dhammakaya Foundation has put on CD-ROM represents many years of work and original research by this Society's scholars. Any legal proceedings which we institute will be necessary to enable us to carry out the purposes for which this organisation was founded. The pursuance of academic studies everywhere becomes impossible if the rights of others are abused as is happening in this case.


Though for a time the Dhammakaya rogues tried to take the moral high ground by bleating about how the Dhamma “couldn’t be copyrighted”, in the end their lawyers warned them that they could expect to get their arses badly kicked in the courtroom and so they backed down.

And it's not possible that PTS was in the wrong here?

Since the PTS had the law on its side, it could be in the wrong only if the law was unjust.

What do they mean that they can't continue to study pali and the pali texts without proceeds?

The PTS's funds for sponsoring Pali scholars come in large part from the proceeds of its book sales. So what Prof. Norman means is that if the Society's book sales decline because of copyright infringement, then it won't be able to accomplish as much.

How have they studied them the 2,000 years prior without copyright?

They haven't. The PTS was only founded in 1881.

I feel that if they were truly concerned with spreading the Dhamma as they say then they would have let it go.

You seem to have misconceived the nature of the PTS. It isn't a Buddhist missionary body. It's an academic scholarly society. As such, spreading the Dhamma is no part of its members' collective concern. Its leading scholars have run the full gamut from practising Buddhists, like Cousins and Gethin, to sympathetic non-Buddhists, like Horner and Collins, to scholars like K.R. Norman who are interested only in Indic philology and regard Buddhism as a load of rubbish.

I completely support what these monks did, secular law does not and cannot determine what is moral and otherwise.

In the present instance, what secular law can do is to furnish criteria as to when something does or doesn't count as "property". Without such criteria there will be no grounds for determining whether the second precept has been kept or broken. If the legislators should happen to be virtuous, non-frivolous, skilled in precedent, etc., then we can expect that their definitions will be good ones that ensure justice for all. If not, then their criteria must be disregarded and recourse be had instead to the judgment of the wise. But this wouldn't be a step to be taken lightly, given the difficulty of arriving at a consensus as to who counts as wise.[/list]

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two things: 1. The "creator" of the idea isn't losing mastery or control over their idea as is the point of the second precept, it is only being copied.

If people can with impunity use or enjoy his creation in a manner contrary to the terms on which he has made it available for use, and if the law provides no mechanism for him to assert his right as the owner, then it's as plain as a pikestaff that he has lost mastery or control over it. Luckily the laws of most civilised countries do provide means of redress for those abused in this manner.

2. YOU CAN"T STEAL IMMATERIAL THINGS.

The texts' definition of "the not-given" (e.g. Khp-a. 26) doesn't limit it to material things. Rather, it encompasses anything that's lawfully and blamelessly been taken possession of by another.

but I can see Bhante you are getting caught up in the "laws of the land" aspect rather the ethical dimensions.

Then you must have overlooked the fact that in my maiden post to this thread (in reply to Steve’s query about how our forum members decide what’s right for themselves) I took my stand upon the ethic of reciprocity — an unimpeachably ethical criterion and one of which the Buddha himself was clearly an advocate (e.g. in chapter 10 of the Dhammapada).

Furthermore, throughout my posts the fallibility of secular human law is something of which I’ve been fully cognizant, hence my drawing attention to the commentators’ prioritising of the judgment of the wise.

Laws of the land are a often a shallow representation of ethics and indeed can run contrary to sound ethical  positions. It’s a poor yardstick.

It is undoubtedly an imperfect yardstick but nonetheless a basically rational one. The second precept is broken only when what is taken is truly the property of another. To whom or what, then, should we turn for our definition of what qualifies something as being someone’s property? The laws of the state are prima facie the most obvious answer, given that the existence of a state (i.e. of a set of enforceable legal rights) is a precondition of property in any form.

but worldly law is not dhammic law.

I think you're oversimplifying. There are some Buddhist moral precepts that are wholly independent of what any worldly law might decree (e.g., the first, fourth and fifth); there are others that are not. The second precept is of the latter sort. Although it cannot be equated with worldly law, nor can it be wholly separated from it, for the key term "what is not-given" (adinnaṃ) is (in part) to be understood with reference to what the laws of the land decree as counting as property.

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it would be fitting then if i knew the origin of adinnaṃ like if it comes from a sutta, like did something happen for that to be lain down as a rule

Adinnādāna, "taking what is not given", is the standard Buddhist term for what we call stealing. It occurs 385 times in the Tipiṭaka, so you really don't need to look very hard. Maybe start with the Vinaya's account of the second defeating offence for bhikkhus:

What has not been given: what has not been given, what has not been let go of, what has not been relinquished; what is guarded, what is protected, what is regarded as “mine;” what belongs to someone else. This is called “what has not been given.”

https://suttacentral.net/en/pi-tv-bu-vb-pj2

If something is dinnaṃ, "given", it means either (1) nobody owns it or (2) Smith, the person who owns it, chooses to give it to Jones without any coercion or deception on Jones's part. If Smith doesn't choose to do so, then it's adinnaṃ, "not given", and therefore an improper thing for Jones to take.

Where secular law comes into play is with regard to defining what counts as "owned" and "ownerless". This will vary from one society to another and one age to another, but whatever it happens to be when and where one is living must be accepted. For example, in the Buddha's time it was the custom for rag-robe-wearing bhikkhus to go into charnel grounds, remove the winding sheets from corpses and sew them into robes for themselves. This was a permitted practice because the laws of that time regarded the cloth on a corpse as ownerless. But as far as I know this is not generally the case today, and so if a bhikkhu went into a modern city morgue or funeral parlour, unwrapped the cloths from some corpses and then carried them away to use as robe-material, he would be taking what is adinnaṃ because such cloth is nowadays deemed to have an owner.

Doesn't this give too much moral authority to the state over and above the Buddha's Dhamma?

Let's say that I lived in a totalitarian state whose laws made it clear that the state owns all intellectual property, including the words of the Buddha (not a far fetched premise, given several 20th century events). By this logic, even reciting or writing down from memory and distributing Dhamma without state permission would constitute as breaking the precept and one can easily see that the state would take this interpretation on board against monastics who sought to distribute Dhamma without state sanction.

In a scenario like this, Buddhaghosa's qualification of the obligation to conform to the wishes of kings would come into effect.

Vinaya

Now at that time King Seniya Bimbisāra of Magadha, desiring to postpone the rains, sent a messenger to the monks saying: “What if the masters could enter upon the rains at the next full-moon day?” They told this matter to the Lord. He said: “I allow you, monks, to obey kings.”

Buddhaghosa:

I allow you, monks, to obey kings – here it is permitted for a bhikkhu to obey [the king] because delayed entry into the rains retreat causes no decline for bhikkhus; therefore in regard to any other kind of righteous act (dhammika kamma) a bhikkhu should obey, but never in regard to an unrighteous one.

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