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.1 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.2

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.3

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:4

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.5

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. ((Other 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.6

In other words, the federal government cannot prosecute an alleged copyright infringer under the National Stolen Property Act.7  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.8

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.9

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.”10

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.11

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.

Footnotes

  1. Cue obligatory Clinton jokes. []
  2. For a more in-depth look at law and language, check out Stanford Encyclopedia of Philosophy: Law and Language. []
  3. See A History of the Criminal Law of England, Sir James Fitzjames Stephen, Volume 3 [Google incorrectly titles the book "Volume 2"](1883). []
  4. It’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. []
  5. 473 US 217-218 []
  6. 473 US 220-221. []
  7. The 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. []
  8. 545 US 913, 961 (2005) (Breyer concurring). []
  9. Pp. 14-15, Oxford University Press (2009). []
  10. Pg. 22. []
  11. Plagiarism, 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). []

15 Comments

  1. Even we philosophers tire of purely semantic quibbles. But here there is more than just a semantic issue; the dispute over whether to call infringement a kind of “theft”, I think, arises from a real puzzle over how to think of this stuff that is copyrighted. (I think I’m with Sheffner here.) Surely there is something different between my stealing your record collection, on the one hand, and my sneaking into your house and copying your record collection, on the other. One obvious way of explaining what’s wrong with stealing of the first kind is to point to the bad effects that my actions create—you can no longer enjoy your records. (I leave aside entirely all mention of the “wrongness” of depriving you of this stuff you call “property” whatever that is, and whatever might be “wrong” with depriving you of it.) Nothing of the sort can be said of my copying your record collection; indeed, on a naive utilitarianism, I’ve done something laudatory since by my reproducing your records, I can also enjoy listening to them, thereby increasing overall utility. So, call an action of the first kind “theft” and an action of the second kind “schmeft”. Most non-Kantian ethicists will have a hard time giving you any good reason for treating them the same; different consequences, different intentions, etc. Why then should the law treat them the same? After all, in a case of schmeft, I have not deprived you of anything!

    • Devil's Advocate

      Your illustration is thought provoking, the Sef, but incomplete. While I own the physical LPs in my collection, the copyrights in the songs/recordings are owned by someone else (usually the artist/record company). You’re right that I am no worse off directly for you having copied my collection, but the artist/record company may be worse off because you have avoided buying the records for yourself from which the artist/record company would have profited. In the aggregate, such lost revenue might cause the artist to give up on music and get a day job, depriving me of the music she would have created had she been able to make a living. Now, if you wouldn’t have bought the records for yourself even had you not copied them from me, then I would agree that you have not deprived anyone of anything (except whatever cachet I might get from being the only kid on the block to listen to certain LPs).

      • I don’t even buy the argument that “if you wouldn’t have bought the records for yourself even had you not copied them from me, then I would agree that you have not deprived anyone of anything” because of course, if you can get records for free (or for nine cents, or whatever) then you are definitely NOT going to plan on buying them – why should you if they are free?

        Eventually this miserable, free, not-hurting-anyone system will hurt (and has already hurt) the whole music industry. It’s a theft, and just because you can get away with it doesn’t mean it is right.

      • Bear in mind, I come at this issue from the perspective of a philosopher, not a lawyer or law student. For me, whether something is against the law (or permitted by it) is irrelevant to the question of how we can permissibly behave with regard to it (except to the extent that one thinks obedience to the law is in itself a moral imperative, in which case, I have a different bone to pick with you, Immanuel).

        Devil’s Advocate claims that in copying a record collection, I have harmed the artist/record company insofar as I have “avoided buying records for myself from which the artist/record company would have profited.” Two responses are relevant here.

        (1) This is false of a huge number of cases. I have myself illegally downloaded a number of songs that I would certainly not have paid any money for otherwise. I only downloaded them because I could do so at no expense; I would not have paid to download them and I would certainly not have paid to buy a CD with them on it. (Of course I won’t tell you which ones this is true of.) But if it’s false that the artist/record company would have otherwise profited, then this justification cannot be used to argue that I’ve harmed them in downloading the material, on the (reasonable) assumption that there is no other plausible kind of harm in question.

        (2) More importantly, the legitimacy of such claims to “intellectual property” that copyrights “protect” is, to my mind, exactly what is in question. So one cannot *stipulate* that the artist/record company has a (legitimate, morally binding) right to profit from the reproduction of a piece of artistic work without begging the question. Nor can one point to the laws against copyright infringement as a reason why it’s wrong to copy something. What is needed here is a positive argument for giving people quasi-property rights over non-physical “works”—why should you be able to sue someone for claiming a tune that you wrote was in fact theirs? Note, the answer to this question cannot be of the form, “Because there’s a law against it!” since any (justifiable) law against it would have to presuppose an answer to this question.

        To LAne’s point: being able to get away with it certainly does not make it right. But neither does there being a law against it make it wrong. (See separate-but-equal, anti-miscegenation laws, the PATRIOT Act, etc., etc., etc.)

        • The Sef…

          Does that mean if I steal a VW Rabbit it is okay because I would never under any circumstances BUY a VW Rabbit!

          The “I only steal the stuff when I don’t like it” argument is quite lame.

  2. I am a law student and an author and musician. This blog is amazing. Thank you so much Mr. Hart!

    The problems with semantics is that it allows for endless theories and viewpoints. When norms are to be applied such relativism does nothing but undermine the predictability of the Law. In the case of copyright infringement there is no question that people are aware that it is unlawful, and this includes those who justify doing it based on Bentham or what ever philosophy happens to be in vogue. So this is an academic dispute that ponders the following question – “how illegal?”: Ruin-your-credit-and-make-you-pay-(if-possible)-illegal or put-you-in-jail-illegal? Seeing as Bankruptcy Law allows debtors of millions or even billions to go free (though with a record of insolvency), I find it unlikely copying a Led Zeppelin album’s worthy of the penitentiary. If there is no jail for debt then there should be no jail for infringement.

    However, there is a moral right to attribution, and to infringe that, in my view, is most certainly theft. That is to claim that what others created is your own creation. But that is not the case of infringement. Downloaders never claim to have recorded, or to be the authors of “Enter Sandman”; they just want to hear it and share it for free.

    I am convinced that recordings are no longer sellable commodities, much like TV Shows, but instead they serve the purpose of advertising the service of live shows by the musicians who created them or the sponsor who footed the production bill.
    Anyways, prosecuting has yielded no gain for the industry. Give it up! It’s over. Time to forget about albums that cost 100k to produce and 250k to promote. Get an MBOX and a laptop, record it for practically nothing and share it on the net ‘gratis’.

    Michael Jackson is dead.

  3. Interestingly, in Dowling vs. US, the statement “the infringer of a copyright…does not wholly deprive owner of its use” is a phrase that contains another few words which should be re-considered in the light of both semantics and fairness. The words “wholly deprive owner of its use ” are, to me, somewhat significant, because one meaning they might obtain is in regard to the idea that an owner (a copyright owner) still can play their own music even when someone infringes (which is the meaning the court has used there). However, the other, perfectly reasonable, meaning that OUGHT to be obtained from this phrase is the idea that since the use of copyright pertains not merely to the creative work/IP itself, but the right to make copies and profit from their copying and sale, the owner IS “wholly deprived” of “its use” (the useful purpose of their copyright) when it is infringed upon, and I’m surprised that some thoughtful lawyer has not already used this defense. I certainly don’t care to have my copyrights violated, whether for my music, books, or visual art, and I most certainly am deprived of the right of copying and sale when my IP work is infringed upon, and I definitely do consider it theft — in both the moral and legal sense.
    Leigh Harrison
    http://www.leighharrison.com

  4. Pingback: Why It’s Important Not To Call Copyright Infringement Theft | PHP Hosts

  5. “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.”

    The problem isn’t that any comparison is invalid. The problem is that once you define infringement as theft, people assume that all comparisons are necessarily valid. The word “theft” comes with a whole host of assumptions and preconceived notions, and all of those get attached to the action of infringement when you define it as theft. Your argument is essentially that those who support a more nuanced view of copyright infringement are using a semantic argument to obscure discussion of the real issues. I’d say that those who insist copyright is and should be labeled as theft are using a semantic shortcut which precludes discussion of the real issues.

  6. I agree the legal definition is mostly irrelevant. But, the substantive argument here is about the colloquial definition, not the legal one, and it is relevant because the discussion is largely a political one, not a legal one.

    In a perfect world, yes Patry’s point that framing infringement as theft might be academic, but political battles, like legal ones, are battles over words. Given a thought experiment about exchanging semantic accuracy for substance, of course substance wins. But, in the real world, semantics can determine substance, and so, whether or not infringement is called theft matters.

    As someone above pointed out, there is a colloquial difference because even the colloquial definition of theft implies loss, which is never present in infringement. I do agree there is an *analogy* between theft and certain types of infringement (downloading), but that analogy quickly breaks down when discussing infringement more broadly. There is no valid analogy between theft and remixing, for example.

    Lastly, while there may be losses caused by infringement, they are not direct enough to be losses by theft legally, colloquially, or otherwise. It is never correct to say that a downloader stole the record labels’ ability to sell music or their livelihood. Both of these are losses, but they are only indirectly related to infringing acts, if at all.

  7. The pushback against the word theft is mostly political / social, not legal.

    There is a massive, well-funded propaganda machine that exists solely to conflate “infringement” and “theft”. This machine was a massive donor to the Obama administration. It’s hard to shake the feeling that their language reflects that.

    This battle is obviously taking place in the court of public opinion. Hence, the urge to conflate “theft” and “infringement” by people who are being infringed. “theft” has vastly more moral weight than “infringement”.

    The law part is interesting and important, but let’s be realistic here: most of the time when you find people who say “infringement isn’t theft”, they are not talking about law. They are talking about this battle in the court of public opinion. They are saying, the infringed should not have the full moral weight of theft on their (emotional) side. This is a battle much closer to “pro-life” vs “pro-choice” than anything legal.

    You can also find the same people who say infringement is theft saying that used sales are also, essentially, theft… because, obviously, the creators aren’t compensated. Clearly they can’t mean that in a legal sense, right? Doctorine of First Sale and so on… but that’s missing the point. This, too, is a battle for hearts and minds.

  8. I’m not exactly sure on what grounds that you think that the advocates of the idea that copyright violation is not theft hinge their arguments on the difference in the legal definitions of both. That’s not an argument, that’s a fact not in dispute by either side. This also says nothing about what either side thinks the law should be.

    As an active copyright violator myself, I have no problem with allowing people to talk about the theft of ideas, the theft of an arrangement, or the theft of attribution, as long as we don’t leap to the conclusion that because we use the same word to describe those as to describe the theft of your wallet or your shoes that they are identical in every aspect, or even that they should be legally enforceable, as the actuality of physical theft has a clear deprivation of use of the item from the victim. Not legally enforceable under current law, mind you, which they clearly are, but legally enforceable under the law that we would ideally wish to have and should work toward.

    That is a question that involves making a decision about the goals of law and justice with respect to creative work, and a judgement about the best means to reach those goals.

    Is it our intention to punish the deprivation of the future use of a possession by its rightful owner when we punish physical theft? Is the deprivation of the exclusivity of the future use of an item identical to the deprivation of a portion of the future use of an item because exclusive use has a present economic value through the benefit of a lack of competition? Do we want to support monopoly? Do we want to support creativity? If we’re going to make a compromise somewhere in between, where do we make it? Does it matter that we are depriving people of the current use of their possessions in order to support creativity? Does the fact that ideas are built on top of other ideas, and we are preventing the public from doing this to some extent by creating monopolies work against our original aim of supporting creativity? Is copyright an earned reward that we give to the creative, or a tool of society to maintain the best possible creative ecosystem? Are any of these questions absolutes, or are they continuous? If they are continuous, where do we draw the lines – do we grant copyrights to performances of songs, transcriptions of songs, and/or the lyrics of songs? How much similarity do we allow? Absolute identity? Clusters of notes? Identifiable portions? Feel? Mood? Lyrics in completely different contexts? Lyrics in conversation? Lyrics in commercial contexts? Lyrics when they are sung, but not when they are not? Lyrics about similar subjects? Similar rhymes?

    Any problem that I have with intellectual property infringement being referred to as theft in most contexts is because it’s a shorthand for not asking any questions about the actual thing being debated, and a demand to pretend that there is as little ambiguity to it as there is to pickpocketing a stranger. Copyright infringement is copyright infringement.

  9. So, we use “theft” because it feels like “theft”, but it’s not important to understand that the law treats infringement and theft very, very differently?

    After all, stealing a few CDs from a store is mere shoplifting, with a comparatively minor penalty. A fine and maybe probation or something.

    Infringing upon a few CDs worth of material will cost you tens of thousands (or potentially millions, depending on how the judge treats it) of dollars in a civil judgment.

    So maybe the real question is what we have more trouble understanding? The feelings of people who feel that their property has been stolen, or the law, which treats the two very, very differently?

  10. Pingback: A Quick Word on the Word Theft | PlagiarismToday

  11. In my (limited) experience it is counterproductive to try to persuade the defenders of copyright infringement that it is theft. It may be more effective to point out that theft is only one of many forms of ‘dishonest acquisition’, some of which are closer to copyright infringement, and which most people would intuitively see as wrongful. For example, receiving stolen goods, knowing that they are stolen, or with reckless disregard to their provenance, is not itself theft, but it is illegal in most societies, and (presumably) most people would condemn it. Another example, maybe closer to the copyright case, is the following. Suppose someone buys a ticket to a film, a play, or a concert, then they go to a side door and hold it open for twenty of their friends to come in free of charge. No theft has been committed, but it is dishonest conduct, and again (presumably) most people would condemn it. It certainly involves dishonesty by the person who opens the door, since this violates their (express or implied) contract with the venue operators. Moreover (and this is what brings it closer to cases like filesharing) the people who come in for free are knowingly benefiting from the dishonesty of the door-opener, and equally if not more culpable, even though they have no direct contract with the venue operator. But I suspect (and it will be interesting to see if I am right) that the defenders of piracy are so morally insensitive that they will try to defend this too!

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  13. Pingback: Is Copyright Infringement Theft? Part 2 | Copyhype

  14. It’s very well possible that many of those who disagree with calling copyright infringement “theft” do it on the grounds of legalese and semantics. However there are those who admit that theft could be understood as broadly as depriving someone of his rights, but still don’t call c. infringement theft. They understand that copyright is not a “right” and it does not protect property. It is itself theft, because real property rights of other people are violated by applying it.

    If copyright infringement could be called theft, then also hiding members of certain minorities in nazi occupied territories and saving them from death could be called theft too. It would be a “theft” of the “right” of the nazis to kill them. A “right” gained solely by force rather than ethics – the same way copyrights are granted – by the power of the state and contrary to ethics.

  15. Pingback: Medieval Copy Protection: I Put A Curse On You | Techdirt | Cybercrime Laws