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  • Why it’s wrong to call copyright infringement “theft”

    By now, most of us have grown pretty used to hearing the word “theft” used to describe what happens when someone downloads a movie or a song that isn’t theirs, and certainly media and entertainment lobby groups make heavy use of such terms — as do people like News Corp. founder Rupert Murdoch when talking about what Google News does with his newspaper content. But as Rutgers law professor Stuart Green describes in a New York Times opinion piece, this terminology is fundamentally flawed, since copyright infringement is a very different thing from theft of physical property.


    Why does this matter? Because seeing it as theft makes it easier to accept ridiculous court decisions and/or unreasonable government legislation that vastly over-reaches what copyright is supposed to cover.
    Green notes that the Justice Department is busy prosecuting a massive legal case against MegaUpload, the file-hosting and sharing site run by the colorful German hacker Kim Dotcom. But while the documents filed by the FBI and others for the indictment includedenormous estimates of the amount of digital property allegedly “stolen” by the company — just as the record industry has in cases against Napster and other sites — it isn’t clear that MegaUpload has done anything different from what YouTube and others do. And whatever other things the company might be guilty of, theft isn’t among them.

    Intellectual property is unlike any other kind of property

    As with the Napster and Grokster and other similar cases, the argument made by the movie and music and software industries is that all of the files that are shared on such sites represent a theft of their property — their “intellectual property,” to use another term that is filled with contradictions and actually muddies the debate even further. Obviously, all of the people who downloaded movies and software from MegaUpload did so instead of buying a physical copy, and therefore it represents theft — just like walking into a movie store and taking a DVD. Except that it doesn’t represent anything of the kind, as Green notes:


    If Cyber Bob illegally downloads Digital Joe’s song from the Internet, it’s crucial to recognize that, in most cases, Joe hasn’t lost anything. Yes, one might try to argue that people who use intellectual property without paying for it steal the money they would have owed had they bought it lawfully.

    But there are two basic problems with this contention. First, we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property. Second, the argument assumes the conclusion that is being argued for — that it is theft.
    As Green and others too numerous to mention have pointed out, downloading or copying something doesn’t represent the loss of anything tangible at all, which is what makes “intellectual property” such a misnomer. If I take your car or your coat, you no longer have them — that represents real theft. And even the argument that the content industries fall back on, which is that downloading or copying represents the loss of a potential sale, doesn’t hold water. As Tim O’Reilly of O’Reilly Media has noted, many of those who copy his books likely would never have paid money for them in the first place.

    This is about more than just legal terminology or semantics

    But this is all just semantics, right? Not really. For one thing, seeing it as theft makes it easier to steamroll right over issues like “fair use,” which is an incredibly important principle and one that is unique to copyright law (there are distinctions around public use of land in property law, but that’s a topic for another day). In a nutshell, the principle of fair use allows both individuals and corporations to take copyright content and use it in various ways without being guilty of infringement — it’s like a get-out-of-jail-free card, and it was included in copyright law to make creative use of content legally defensible.
    One of the problems with fair use, however, is that it is incredibly complicated and filled with grey areas: as I described in a recent GigaOM Pro report on Pinterest (sub. req.) it is a four-factor test in which judges try to assess the original intention of the work, the nature of the infringing use, the amount of the original that is used, and the effect on the market for the original. In some cases the courts have decided that Google should be allowed to use images in search, because thumbnails are seen as a “transformative use.” Exceptions are also often made for journalistic or educational purposes.
    But seeing any form of copying or unauthorized use as theft makes it virtually impossible to justify any of these actions, and makes it easier to see them as a crime.


    And so we have the Authors’ Guild fighting for years to prevent Google from copying booksso that they can be easily found, because the group argues that the simple act of copying them — even if only small portions of those books ever see the light of day — amounts to theft. And YouTube gets a takedown notice when a user’s video happens to have a song playing faintly on a radio in the background while her son dances. And laws like SOPA and PIPA and too many others to mention are drafted to prevent the widespread “theft” that is allegedly stealing billions from intellectual property holders.
    And all the while, content industries deliberately ignore the fact that the intended purpose of copyright law is to promote innovation and creativity, not to smother it. Are there real issues around how creators get compensated for their work, and how we can accomplish that most effectively in an era of unlimited copying? Sure there are. But using terms like “theft” and “piracy” doesn’t get us any closer to solving those very real issues in any meaningful sense — it pushes us further away.
    Comments 8 Comments
    1. megabyteme's Avatar
      megabyteme -
      Good article, once again brings up the value of offering/requiring a direct link to its source as this is one worth referencing to others.
    1. TrakeM's Avatar
      TrakeM -
      This is what happens when your rule of law becomes less about public interest and more about who has the most money to pump into the political system to manipulate the rule of law.
    1. Funkin''s Avatar
      Funkin' -
      Entirely too long for me to read. I'll take the articles word on it though...
    1. IdolEyes787's Avatar
      IdolEyes787 -
      Gobbledygook to justify one sides stance is ironic if you accuse the other side of the same.
      I see this as being like religion or hunting,all arguments are basically moot , simply either you believe in it or you don't.
    1. TrakeM's Avatar
      TrakeM -
      Quote Originally Posted by IdolEyes787 View Post
      Gobbledygook to justify one sides stance is ironic if you accuse the other side of the same.
      I see this as being like religion or hunting,all arguments are basically moot , simply either you believe in it or you don't.
      Here's the thing that about it that gets me angry: whether or not you agree with it doesn't make much difference on out come unless you have the kind of money it takes to manipulate the political system and gain control over the rule of law through lobbying, campaign finance committees and other ways of bribery and putting money into politics.
    1. Funkin''s Avatar
      Funkin' -
      Quote Originally Posted by TrakeM View Post
      Here's the thing that about it that gets me angry: whether or not you agree with it doesn't make much difference on out come unless you have the kind of money it takes to manipulate the political system and gain control over the rule of law through lobbying, campaign finance committees and other ways of bribery and putting money into politics.
      I have sex with your mom on a pretty regular basis...
    1. megabyteme's Avatar
      megabyteme -
      Quote Originally Posted by Funkin' View Post
      I have sex with your mom on a pretty regular basis...
      From what I know about you, your sex is anything but regular.
    1. EricPost's Avatar
      EricPost -
      Of course it's theft. If I walk into a gym and lift weights, they aren't out anything. But I still used their equipment. It's called "theft of service."

      If I do someone's taxes and they don't pay me, they've stolen my time and service. Sure they might have done their taxes on their own.

      It's still theft. If you download files, fine, just admit it, don't try to justify it.