Copyhype

Is copyright infringement theft?

This question pops up often in online discussions, and nearly always sparks heated debate. You can see a recent example in the comments section of Obama administration: ‘Piracy is flat, unadulterated theft’ on Ars Technica. Many, many other examples abound online.

But I’m not going to answer that question today.

The biggest problem with this question is that – and this is going to sound very much like lawyerspeak – the answer depends on what the meaning of the word “theft” is. ¹Cue obligatory Clinton jokes. Don’t dismiss such an answer right away. When I was in law school, I took a course taught by a judge in the nearby county court. He had been sitting for decades – well-qualified to teach about how the law worked in the real world. On more than one case, this judge would be in the middle of pointing out some minor point on correct use of terminology when he would pause and say, “I know this sounds like semantics. But the law is semantics – that’s what lawyers do: argue over words.”

The classic example of the relationship between the law and language is a hypothetical problem: “No Vehicles in the Park.” The hypo begins with a seemingly simple sign that reads “No vehicles in the park” and then asks what situations are prohibited by the rule and why. Bicycles? Park maintenance trucks? Ambulances on the way to the hospital? Wheelchairs? A war memorial consisting of a parked tank? It’s not enough to figure out what you think the result of each situation should be. In a democratic society, lawmakers and judges must ensure that laws are consistently applied, understandable, and fair. ²For a more in-depth look at law and language, check out Stanford Encyclopedia of Philosophy: Law and Language.

The argument over applying terms like “theft” to copyright infringement is not, however, about whether the comparison is legally appropriate, but about the similarities between the two in the colloquial sense of the word. This is where the opponents of the word begin to falter – attempting to prove their point by using the legal definition of the word to trump the colloquial definition. In other words, the argument goes, since the legal meaning of theft differs from the legal meaning of copyright infringement, any comparison between the two is invalid. By itself, this argument is barely worth refuting, but it has unfortunately been bolstered by the misuse of language from an otherwise inconsequential Supreme Court decision. This type of quote-mining from case law is prevalent in many debates – sort of a cross between an appeal to authority and contextomy – a practice that merits further discussion. If we want to learn what the law means, it sometimes help to understand common errors in understanding the law.

You’re in a Helicopter

I suspect a large part of the intensity over the use of “theft” to describe copyright infringement is based simply on linguistic peevery. The use of the word rubs some people the wrong way, and they have developed a strong objection to its use. Like language police, they immediately jump on anyone who dares to draw a comparison between the two concepts. Once the word is spoken, it won’t be long until you hear the legal argument. “Theft has a specific legal meaning, copyright infringement has a different legal meaning, thus copyright infringement is not theft.” This argument reminds of this old joke:

A helicopter was flying around above Seattle when an electrical malfunction disabled all of the aircraft’s electronic navigation and communications equipment. Due to the clouds and haze, the pilot could not determine the helicopter’s position and course to fly to the airport. The pilot saw a tall building, flew toward it, circled, drew a handwritten sign, and held it in the helicopter’s window. The pilot’s sign said “WHERE AM I?” in large letters. People in the tall building quickly responded to the aircraft, drew a large sign and held it in a building window. Their sign read: “YOU ARE IN A HELICOPTER.” The pilot smiled, waved, looked at her map, determined the course to steer to SEATAC airport, and landed safely. After they were on the ground, the co-pilot asked the pilot how the “YOU ARE IN A HELICOPTER” sign helped determine their position. The pilot responded “I knew that had to be the Microsoft building because, like their technical support, online help and product documentation, the response they gave me was technically correct, but completely useless.”

It’s technically correct that “copyright infringement” and “theft” have distinct legal meanings, but so what? The idea that the legal distinction between the two terms forecloses any colloquial comparison is invalid. “Theft” in the legal sense has always meant something far narrower than “theft” in the everyday sense. In early English common law, for example, the crime of theft only included the taking of another’s property by force or by stealth. It didn’t include the taking of property by deception or trick, and it also didn’t include the taking of property by someone in whom the property was entrusted. While today we would have no problem saying a delivery truck driver engaged in “theft” if he kept a package instead of delivering it, earlier courts had to jump through several hoops before reaching the same conclusion. ³See A History of the Criminal Law of England, Sir James Fitzjames Stephen, Volume 3 [Google incorrectly titles the book “Volume 2”](1883).

Dowling v. United States: Misusing Case Law

Despite the obvious shortcomings of this line of reasoning, it was given extra legs after the 1985 Supreme Court case Dowling v. United States. Paul Dowling ran a lucrative, interstate business selling bootleg recordings of Elvis Presley. Once caught, the federal government prosecuted him under the National Stolen Property Act, which made it a federal crime to transport stolen merchandise across state lines. The Supreme Court reversed his conviction on the grounds that the Act did not extend to items which infringed copyright.

This holding was like manna from heaven to the “copyright infringement is not theft” crowd. In particular, they point to the following language from the syllabus of the opinion: ⁴It’s worth pointing out that the syllabus of a legal opinion is not legal authority. For an interesting behind-the-scene’s look at the Supreme Court reporter of decisions who prepare the syllabuses, check out The Supreme Court’s Man of Many Words.

The phonorecords in question were not “stolen, converted or taken by fraud” for purposes of [section] 2314. The section’s language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

If you make it into the actual opinion, however, you’ll find that the Court is careful to note the distinction between the legal and colloquial meanings of words:

While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. As a result, it fits but awkwardly with the language Congress chose — “stolen, converted or taken by fraud” — to describe the sorts of goods whose interstate shipment § 2314 makes criminal. ⁵473 US 217-218

I mentioned earlier that mischaracterizing language from case law to bolster an argument is common. Our common law system is partially to blame for this pitfall, since cases create binding precedent that shape the law. However, it’s important to remember that the only thing binding from a court opinion is the holding. The reasoning a court uses is helpful in seeing how it arrived at the holding, and much of the dicta may be persuasive and useful to shaping one’s argument.  The danger is taking this language – anything besides the specific, narrow holding – as a binding conclusion to any argument. ⁶Other cases have similarly been distorted to “prove” certain arguments: Flora v. United States, 362 US 145 (Income tax is voluntary); Church of the Holy Trinity v. United States, 143 US 457 (US is a Christian nation); Interstate Commerce Commission v. Brimson, 154 US 447 (Census is unconstitutional). It’s not like the Dowling court made a broad pronouncement that “Henceforth, no one may describe copyright infringement as ‘theft.'” Or as one forum commenter said, “The comments are to long and it’s becoming a chore. I’ll just quote Dowling v. United States, a 1985 case regarding copyright infringement.”

The holding of Dowling was indeed narrow:

By virtue of the explicit constitutional grant, Congress has the unquestioned authority to penalize directly the distribution of goods that infringe copyright, whether or not those goods affect interstate commerce. Given that power, it is implausible to suppose that Congress intended to combat the problem of copyright infringement by the circuitous route hypothesized by the Government. ⁷473 US 220-221.

In other words, the federal government cannot prosecute an alleged copyright infringer under the National Stolen Property Act. ⁸The dissent in the case argues that the federal government can. It points out that the majority cites differences between the rights of copyright owners and other property owners as well as the differences between interference in those rights but fails to explain why those differences are relevant to the statute. It notes that other courts have interepreted “stolen, converted or taken by fraud” broadly enough to encompass intangible property. Finally, and most persuasively, it notes that Congress explicitly provided that penalties under the statue “shall be in addition to any other provisions” of the Copyright Act.  Curiously, those who point to the language of Dowling as incontrovertible proof that copyright infringement shouldn’t be called theft manage to miss a later Supreme Court case that says the opposite. Justice Breyer states in his concurrence to MGM v. Grokster:

No one disputes that “reward to the author or artist serves to induce release to the public of the products of his creative genius.” United States v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948). And deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft. ⁹545 US 913, 961 (2005) (Breyer concurring).

The lesson, if any, is to pay attention when someone quotes case law. It’s easy to find language that appears to support just about any proposition; the challenge is recognizing the common fallacies that arise from the use of such language.

Does it even matter? Yes, it does. Or does it?

Hopefully, this reliance on Dowling in the debate over copyright infringement and theft can be put to a rest. That still leaves the question of whether or not the comparison is appropriate in the colloquial sense. I doubt that debate will ever be resolved.

Quibbling over the use of words like “theft” stems from the larger debate about whether “intellectual property” should be considered “property.” People have been arguing over that point since – at the least – the first copyright law was written down in 1709. To some, the issue has great consequences. In Moral Panics and the Copyright Wars, noted copyright scholar William Patry writes:

No side in the Copyright Wars can claim semantic purity or sole virtue … One way we got where we are is through the misuse of language, specifically metaphors that characterize the nature of copyright as property and that characterize those who use copyright works without permission as thieves or parasites. When a court or legislature is faced with a copyright dispute, there is more than one way to frame that dispute. There is, after all, no Platonic copyright against which we can match the ideal form of copyright. Instead, the outcome is determined by reference to the contesting legal, economic, and social forces. Those forces in turn are defined and understood in terms of the conceptual frameworks employed. ¹⁰Pp. 14-15, Oxford University Press (2009).

Patry sees the use of metaphors like “theft” as an effort by content industries to push for self-serving copyright laws to “preserve their old business model of controlling consumers.” ¹¹Pg. 22.

But there are others who see this argument as largely academic. Law professor Stuart P. Green notes:

Whether something will be regarded as “property” is nothing more, and nothing less, than a conclusion of law. As Stephen Carter has put it, “the term does not refer to any object or to any necessary set of legal rights that always inheres in a property relationship. Instead, the term refers to a bundle of rights that define, singly or collectively, the relationship of an individual to a resource.” Hence, simply because some resource is considered “property” for purposes of, say, mail fraud, copyright, or constitutional law, does not necessarily mean that it will be regarded as property for purposes of theft law, and vice versa. ¹²Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 Hastings Law Journal 168, 208-209 (2002).

Finally, there are those who think even the academic debate over terminology is pointless. In an online debate with Patry, noted copyright attorney Ben Sheffner had this to say:

I just have a hard time getting too worked up about what label we attach to copyright. And I suspect most non-philosophers agree. Consider this thought experiment: Go to a studio head and say, “I’ve got a deal for you. I’ll give you your copyright wish list: repeal first sale, make Justice Ginsburg’s concurrence in Grokster the controlling opinion, delete Cablevision, Perfect 10 v. Amazon (and a few other Perfect 10 cases while we’re at it) from the law books, and codify a “making available” right. But here’s the catch: From now on, you are forever forbidden from referring to copyright as ‘property,’ and must instead call it a ‘set of social relationships.'” Or go to a copyright skeptic, and say, “I’ve got a deal for you. I’ll give you your copyright wish list: reduce the term of copyright back to 14 years, expand fair use, eliminate the derivative works right, and repeal the anti-circumvention provisions of the DMCA. But there’s the catch: From now on, you must refer to copyright as property; no more of this ‘set of social relationships’ mumbo-jumbo.” I’m confident both the studio head and the copyright skeptic would take those deals in a heartbeat. Ultimately, it’s the substance, not the label, that matters.

I tend to agree with Sheffner. The debate over the labels we give to copyright is interesting in an academic sense but largely meaningless in the real world. Creators often use words like “theft” to reflect how they feel about acts of infringement. Shifting the focus from the colloquial meaning of the word to the legal meaning accomplishes little more than arguing for the sake of argument, while misusing language from case law only forecloses a fuller understanding of the law.