Wednesday, May 02, 2018

Specious Speciesism in the Monkey Selfie Case

by Michael Dorf

In my Verdict column this week, I discuss the recent Ninth Circuit ruling in Naruto v. Slater, which affirms the district court's dismissal of a copyright lawsuit brought by PETA on behalf of a macaque (Naruto) who snapped a selfie that the defendants then used in a book. I explain what the court held and offer some criticisms of PETA's decision to bring the lawsuit in the first place. Given all of the horrific things that humans do to nonhuman animals, copyright infringement seems like it ought to have relatively low priority. I end on a cautiously optimistic note, pointing out that lawsuits that fail in court can nonetheless bring beneficial publicity to a cause. While the cause of monkey copyrights is silly, perhaps the lawsuit will bring some attention to habitat loss.

Meanwhile, my column mostly just reports on rather than evaluates the reasoning of the majority and concurring opinions in Naruto. Here I'll critique them a bit by pointing out the judges' speciesism.

I begin with a definition. As I (and many others in the animal rights movement) use the term, "speciesism" refers to an unwarranted belief in the superiority of one's own, i.e., the human, species over other species, where the belief in such superiority is typically used to justify morally unjustifiable acts towards members of other species. As the "ism" suggests, speciesism is like other systems of prejudice, such as racism and sexism.

Speciesism is not like those other kinds of prejudice, however, in at least one crucial respect: Racists and sexists typically hold false beliefs about supposed differences in the intellectual, physical, and other capacities based on race and sex. Even then, not all such beliefs are false. For example, it is true that the best male athletes can run faster and jump higher than the best female athletes. Nonetheless, many of the beliefs are false or the racist or sexist generalizes from on-average statistical truths to unwarranted universal or near-universal claims.

Speciesists hold some false beliefs. For example, they will say that humans are the only species on Earth that make and use tools, which is false. As a whole genre of YouTube videos attests, there are countless examples of nonhuman animals engaging in behaviors that demonstrate capacities that speciesists believe are uniquely human.

Nonetheless, it would be foolish to deny that there are capacities that most humans possess that most or all nonhuman animals either lack entirely or generally possess in a lesser degree. Even a dog who learns to read will likely be incapable of learning to read novels.

Where racists and sexists typically greatly exaggerate or invent racial and sexual differences in capacities, speciesists typically draw unwarranted moral inferences from differences in various capacities. They will point to human intelligence as the sine qua non of eligibility for moral consideration, for instance, even when the question is not whether a horse should be hired as a math teacher but whether a cow should be forcibly impregnated, have her babies separated from her, and then slaughtered for meat when her dairy production slows.

One sees this move on display in the Naruto case. For example, both the majority opinion of Judge Bea and the concurring opinion of Judge Smith ask whether the assignment to nonhuman animals of rights must impose on such nonhuman animals corresponding duties that, presumably, are beyond their capacities. Yet this is not an especially difficult question. We commonly distinguish between moral agents, who have both moral rights and moral duties, and moral patients, who have only moral rights. Human infants, very young children, and human adults with various severe disabilities are common examples of moral patients. They cannot be held accountable for failing to abide by the terms of a contract, but that hardly renders it permissible to kill them for food.

Judge Smith does appear to be aware of the challenge that human moral patients pose for his dismissal of the possibility that nonhuman animals can have rights. But he deals with it inadequately. In order to argue against so-called "next-friend" standing for PETA on Naruto's behalf, Judge Smith wants to show that PETA's human agents aren't qualified to know what a monkey wants. He writes:
Do animals want to own property, such as copyrights? Are animals willing to assume the duties associated with the rights PETA seems to be advancing on their behalf? Animal-next-friend standing is materially different from a competent person representing an incompetent person. We have millennia of experience understanding the interests and desire of humankind. This is not necessarily true for animals.
There are at least three specious moves in that short paragraph.

First is the assumption that we can't know what a nonhuman animal wants. Anyone who has lived with a dog knows this is silly. My dogs (who are not any more and probably less intellectually gifted than a typical macaque) constantly make their wishes known. They sit by the door when they want to go outside. They paw at the food storage bin when they want to eat. They even manifest desire to possess a kind of property. Admittedly, they do not associate all of the sticks in the bundle of rights that humans call property, but they definitely have a notion of possession. My dog Chewy will not object if my dog Blue picks up a chew toy from a pile, but if Chewy is currently holding said chew toy, he will growl when Blue approaches to try to take it.

Second, even if we humans couldn''t know whether a monkey wants to own property, it hardly follows that the monkey  has no interest in owning property. The PETA lawsuit did not ask that Naruto be given his copyright royalties in cash so that he could purchase sneakers or an espresso. PETA proposed that the proceeds be used by a trustee to protect habitat for Naruto and other Indonesian macaques. Such arrangements are common for human patients who inherit or otherwise acquire property but cannot competently use it.

That brings us to the third specious and speciesist maneuver in Judge Smith's paragraph. Somehow our "millennia of experience understanding the interests and desire of humankind" qualifies us to be able to represent the those interests and desires in a way that differs qualitatively from the supposedly inherently unknowable interests and desires of nonhumans. Anyone familiar with what actually happened during those millennia will find this claim laughable.

Consider the "treatments" we designed for people with severe mental illnesses, which were (and some would argue too often remain) chiefly aimed at getting them out of the way of the rest of us rather than actually serving their interests or desires. Or the millennia-old tradition of leaving weak or disabled newborn babies exposed to the elements to die. (Exactly how prevalent this tradition was is open to debate, but there is no doubt that it is an important part of our "millennia of experience.") And in any event, even if it were true that we have learned from experience how to promote the interests and desires of humans who cannot directly communicate those interests or desires but lacked such knowledge about nonhuman animals, wouldn't that count as a reason for beginning to improve our understanding of the interests and desires of nonhumans? Yet the approach of Judge Smith and the other judges in Naruto would be to leave those interests and desires entirely unrepresented and, as I read them, unrepresentable absent a constitutional amendment.

In focusing on one paragraph in Judge Smith's opinion, I don't mean to pick on him. More like the opposite is true. The moves he makes in the paragraph quoted above are extremely familiar to me in encountering resistance to animal rights. Yet they are so transparently bad that one wonders how otherwise thoughtful people can make them. The answer is that Judge Smith and other speciesists--which is to say the vast majority of humans--are engaged in motivated reasoning to arrive at a predetermined result.

In my column, I criticize PETA for litigating a monkey's copyright when humans perpetrate far worse crimes against nonhuman animals. But the converse is also in play. The judges who decided Naruto must have realized that recognizing that a monkey can own a copyright would have far-reaching implications for practices in which they themselves participate. If it wrongs a monkey to fail to pay him for his photography, then a fortiori it wrongs pigs, cows, chickens, and fishes to hold them captive, exploit them for their bodily secretions, and slaughter them to consume their flesh. And that's something the judges don't want to stop, so they must find a way to say that nonhuman animals have no cognizable legal rights. Whether what they say makes any sense is beside the point.


Joe said...

I think some sort of constitutional standing for animals particularly to fulfill the maxim that rights (and animals in some fashion do have them legally) should have remedies is quite possible but a copyright case is a fairly poor grounds for it and open the some easy ridicule.

An animal very well can have some property interest but not sure how much of a copyright interest they would have. It is on some level fair for an animal to have compensation for use of their work product, such as a painting a primate drew, but that is not the sort of property they probably would care a lot about. OTOH, damage to their habitat or compensation for a taking would be a more suitable case where standing would be taken more seriously.

As explained, the standing would likely come from Congress statutorily granting it and human interests will help make this less likely. A more "out there" argument might be that animals (at least some of them) are "persons" worthy of standing even without statutory grant.

Patrick S. O'Donnell said...

I like to refer (most of the time) to human beings as "human animals" by way of implicitly reminding one that there are "non-human animals" (rather than 'animals' simpliciter) as well. This should bring to mind what both classes have in common: their (so to speak) "animality." It should also serve as a reminder that there are attributes and capacities that distinguish us from our non-human brothers and sisters or cousins (or those with strong family resemblance), as does much of the best philosophical literature on human nature (yes, I know, some believe this to be a rather quaint if not useless concept, but I think they're deeply mistaken) and personal identity. Sometimes those who care passionately about nonhuman animals and thus such things as animal ethics and legal standing and rights for these creatures (at least some of them) tend to blur and even efface the distinctions between "us" and nonhuman animals, and that does not help the cause. The case on behalf of monkey copyrights is indeed silly, and while Professor Dorf understandably hopes that "perhaps the lawsuit will bring some attention to habitat loss," I suspect bringing cases like this to the court and the mass media and public attention that invariably follow does far more harm than good (i.e., the direct effects will trump any by-product or spillover effects).

In short, and while it seems exceedingly difficult these days, one should be able to keep in mind the important differences that distinguish human animals (as persons possessed of normative agency, etc.) from nonhuman animals, while at the same time, appreciating the many features and traits we share with nonhuman animals (here is where, for example, the emphasis on 'sentience' in Asian philosophies and traditions is important, as its definition is far broader if not more plausible than one typically finds in Western philosophy). In other words, as Professor Dorf exemplifies in citing the distinction between moral agents and moral patients, our thinking and feelings on these matters needs to be far more sophisticated or (self-)critical. Instead of relying on existing notions of property, for instance, and in the above case, intellectual property, we might resort to notions of "trusteeship," which exhibit more potential for thinking about our relations to nonhuman animals, indeed, to all of the natural world.

Finally, for readers who may be provoked to further explore these topics, I have at least two bibliographies on my Academia page that are useful for examining the relevant literature: one on animal ethics, rights, and law, the other (and far shorter compilation) on human nature and personal identity (from the vantage point of philosophy).

Shag from Brookline said...

Posts such as this are reminders to me of Mark Twain's views, commented upon here:

Non-human animals lack constitutional protections. Rather, the Constitution protects humans' property rights in non-human animals, including non-consenting-non-human animals that are the victims of individual 2nd A rights exercises in hunting. Perhaps the human(s) with property rights in Naruto would have standing because of such rights. But maybe no humans had property rights in Naruto. Perhaps a Second Constitutional Convention should be held on an Ark (if you Noah what I mean). But I doubt that the twain will ever meet.

In any event, re-reading Mark Twain is humbling and good for my personal constitution.

Michael C. Dorf said...

Thanks for these thoughtful comments, with which I agree entirely. Indeed, I think the distinction Patrick draws is especially important for animal advocates, because failure to draw it invites a certain sort of spurious objection that one sees in the opinions in the Naruto case. Because it would be obviously foolish to give macaques, e.g., a right to vote in presidential (or even congressional!) elections, opponents argue that nonhuman animas cannot have any rights. And lest there be any doubt, my betting instinct is that the Naruto lawsuit was a bad idea. In the column I simply tried to end on a mildly optimistic note.

Shag from Brookline said...

The temperature may reach 90 degrees here in Brookline today. I plan a little walking in my neighborhood today and will probably cross paths with some of my wild turkey neighbors out for strolls and some dining (but not wild parties). They cross some heavily traveled streets in the process and most motorists respect them. On a few occasions I stopped traffic just to make sure. Boston has long been famous for "Make Way For Ducklings" just as we respect our own children. Once I observed my neighbors leading several of their progeny on strolls.

And across the Charles River on the Cambridge side we have the plight of the Charles River White Geese. For those interested there is a website by that name. Humans can enjoy and have empathy for what nature has provided. As a child, I often sang a song about being kind to ducks:

So when institutions are unkind to the Charles River White Geese, it is important that people speak up.

Perhaps libertarians can imagine a world with only human animals.

Joe said...

I appreciate Dorf's optimism.

The Dorf/Colb book comes to mind. My last point as to the "personhood" of non-human animals in a constitutional sense overlaps with that. One option there is to rely on sentience and in that respect it's possible to consider (surely if we move past some forms of originalism) non-human animals as "persons" with certain types of rights. That is, rights that are sensibly put forth such as a basic right to be free from physical abuse.

If an incompetent in a state run institution can have such substantive due process rights, perhaps a monkey or yes even a dog (the dog who can read video was striking btw; thanks for that). In Tinker, the armband case that was recently covered on CSPAN's Landmark Cases program, Justice Black wondered in dissent that if we protect the right of schoolchildren to wear armbands, what is next? Do they get to vote?

Such arguments of alleged absurdities suggest a certain lack of careful thought but it's best not to instigate them with questionable claims. The selfie case has that feel.

Asher Steinberg said...

About human moral patients, do you not see a difference between a small child who kills a person and a dog who does? I agree that you can't hold a very small child accountable for killing a person, but I don't know that it follows that the small child has no duty not to kill people or that he hasn't acted wrongly if he does, and I certainly don't know that I would say that small children who kill people haven't acted wrongly. But it seems very implausible to say that dogs commit a moral wrong when they kill people. I wonder if that difference, if it's real, justifies some differential treatment between humans and dogs (or monkeys).

Shag from Brookline said...

I've been mulling over this from Mike's 9:19 AM comment:

"Because it would be obviously foolish to give macaques, e.g., a right to vote in presidential (or even congressional!) elections, opponents argue that nonhuman animas cannot have any rights."

keeping in mind how "obviously foolish" the 2016 presidential election turned out.

Joe said...
This comment has been removed by the author.
Unknown said...

thanks your post!
vex 3