“They make me madder than a yak in heat.” – Marge Simpson

A little over a month ago, I wrote a post titled Is Copyright Infringement Theft? The post sparked several other thoughtful articles and many comments – most notably a response by Mike Masnick at the popular TechDirt blog, Why It’s Important Not to Call Copyright Infringement Theft.

This is one of those ongoing debates, along the lines of “Mac vs. PC” and “Kirk vs. Picard.” 1The truly geek would answer “Linux” and “Jack O’Neill.” Not surprisingly, many comments responded as if I had actually said “copyright infringement is theft.”  But the title of the post was merely a question, and in the body I explicitly said “I’m not going to answer that question today.”

I want to continue the discussion today. I think the debate serves as a launching point for many different discussions involving copyright law and the law in general. I obviously can’t cover all of those different discussions in one post, but hopefully I can highlight a few that I find interesting.

At the end of the day, I still think arguing over “theft” or “not theft” is a semantic sticking-point, but unlike Masnick, I think the foreclosure happens on both ends. He thinks “if you are seeking to understand what is happening and how to respond to it, calling it ‘theft’ immediately shuts the door on a variety of important points.” I think the same is true from the perspective of the creators and businesses in the creative industries: if you’re seeking to understand what is happening to them as we continue to move to a digital environment and how to respond to it, decrying anything but complete acceptance to widespread piracy – down to the very language they choose to use to describe it – shuts the door on a variety of important points.

Metaphor

Copyright infringement as theft is a metaphor. According to Masnick, calling copyright infringement “theft is wrong.” Why? “Because it’s wrong at an absolute level.”

When is a metaphor wrong? It’s a curious question. Over at the Legal Profession Blog, Jeff Lipshaw succinctly describes the role of metaphor in meaning using the example of subatomic particles. He says, “What thinking about electrons as billiard balls does is to give them a meaning by analogy to other things, and we base our view of the coherence of the explanation (not its rightness or wrongness) on how it compares to other explanations we already view as coherent.”

I included the Simpsons quote above to illustrate the difficulties in answering the question of the correctness of a metaphor. A yak in heat may very well exhibit aggressive behavior, making the comparison apt. But the comparison is at the very least a clumsy one; many of us are presumably unfamiliar with yak behavior, so the metaphor is more a non sequitur than a useful explanation.

“Love is like an onion, and you peel away layer after layer until you’re just … weeping over the sink.” – Pete Hornberger

The use of metaphor in language is very flexible. Its success in contributing to understanding is context-dependent. Saying you are “madder than X” aids the listener only if they have some knowledge of X. The metaphor itself does not depend on a literal comparison – computing the relative anger-level of you and X. Indeed, we tend to laugh at anyone who rebuffs a metaphor on literal grounds – imagine correcting Hamlet because troubles clearly don’t exist in liquid form. 2From Hamlet, Act 3, Scene 1, “Whether ’tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles And, by opposing, end them.”

And yet that is one of the arguments used by those against the idea of copyright infringement as theft: the comparison is wrong in a descriptive sense. I addressed the fallacy in this argument in my first post. Based on the response to that post, I wanted to explore it further today. The idea that the comparison is wrong in any sort of descriptive sense has no basis in logic, language, or history.

The other argument against equating infringement with theft has to do with metaphor in framing – comparing the two in a prescriptive, or normative sense. The idea is that the language one uses reflects the result one wants to achieve. This argument, by far, is the more salient of the two. I touched on this argument briefly in my first post. Some of the responses to that post have explored this argument, so I’d like to flesh it out a little bit more today.

Comparing Apples to Oranges

Masnick concludes his article by calling to mind the idea that comparing copyright infringement to theft is like comparing “apples to oranges”. Even here you can see the challenges with talking about the rightness and wrongness of metaphors – even our metaphor for describing incomparable concepts is flawed! 3Check out “apples and oranges” on Wikipedia for an introduction into this curious cliche. One is a round, tasty fruit that grows on trees, while the other is – wait…

The argument against a descriptive comparison between infringement and theft fails logically, historically, and legally.

Logical

Perhaps the best illustration of the logical argument against equating copyright infringement to theft can be found in the following YouTube video:

[youtube]IeTybKL1pM4[/youtube]

Cute. But it misses the point on several levels. If you steal a bike and your friend has to ride the bus, you’re certainly a thief. But if your friend sneaks on the bus without anyone noticing and gets a free ride, what do we call that? 4A millennia old problem is what we call it.

Our concept of “property” is not based on inherent characteristics of physical objects – you can’t look at a bicycle under a microscope and deduce who owns it. It’s better to think of “property” as a set of relationships between people and tangible or intangible things. Property in this sense requires a recognition by law and/or society of the rights, duties, privileges, etc. that connect any given individual with any given thing. 5The genesis of this line of thought is often attributed to Wesley Hohfeld in Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law Journal 16 (1913).

The reasoning displayed in the video above is that (1) theft requires deprivation of possession, (2) reproducing a copyrighted work does not result in deprivation of possession, (3) thus, infringement is not theft. This argument begs the question, however, that the definition of theft is limited to deprivation of possession. The argument only works if you insist on restricting the definition of “theft” to that of common law larceny. This is an overly prescriptive restriction on the term. The idea is that the comparison is wrong not just on a literal level, but an arbitrarily narrow application of the literal meaning of “theft.”

It’s easy to reconcile infringement with theft using the broader view of property rights as a set of legal relationships between individuals and things. “Possession” is only one of the relationships recognized by law and society. “Theft” in its colloquial sense – the definition commonly used over time – involves some deprivation of a recognized right. “Theft” of a physical object typically means the deprivation of the exclusive right of possession. Copyright, by statute, secures the exclusive right to copy, among other rights. Copying without permission thus deprives the author of that exclusive right.

Historical

The above video is an example of “linguistic peeving.” In one sense, it is a latching onto a specific usage one believes is right, while proclaiming all other usages to be wrong. But when it comes to the use of language, we can compare claims of “peevery” against actual usage throughout history. “Lingustics is descriptive, not prescriptive.”

The debate over the words used in discussing copyright is nothing new. William St. Clair notes that “the language of stealing” became the main metaphor for copyright infringement at the end of the seventeenth century. 6William St. Clair, Metaphors of Intellectual Property, Privilege and Property: Essays on the History of Copyright (Open Book Publishers). Infringement was, at that time, “frequently equated with theft,” “shoplifting, letter-picking, purse-cutting, highway robbery, burgling a house, plundering a hospital. And piracy.” 7Privilege and Property, pg 388.

New terms continue to be termed to describe the relationship between infringement and theft. Among hip-hop artists, the term “beat-jacking” – a derivation of carjacking – is used to describe the deliberate use without permission, or a false claim of authorship, of another writer’s instrumental. 8See, e.g., M.O.P. Denies Beat JackingBeatjacking or Fair Game?

This language usage is not hard to find among people within the creative fields. One of the responses to my initial post comes from friend and PlagiarismToday blogger Jonathan Bailey, who notes that while he limits the use of the term “theft” in connection with copyright infringement, he has no issue with its casual use in this context for three reasons: (1) It’s a common term, (2) It’s not meant to be literal, and (3) It’s not the only misnomer. Bailey’s site is aimed at content creators of all stripes, both large and small, and the terminology reflects to some extent the feelings these creators express when they see others copy their work.

Legal

In my first post, I specifically pointed out the fallacy in relying on the Supreme Court’s opinion in Dowling for “not theft” proponents, and included a quote from the Court in MGM v. Grokster equating unlawful copying to “garden-variety theft.” The first example illustrated the problems with misapplying judicial language to prove a point; the second, to show the comfort that the highest court in the land has in using the language at issue in a colloquial sense. This colloquial use of “theft” in the copyright context was not, however, an isolated incidence.

  • In the 1974 Supreme Court case Teleprompter Corp. v. Columbia Broadcasting System, Justice Douglas and Chief Justice Burger wrote in their dissent, “A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft.” 9415 US 394, 417.
  • Judge Patel began his opinion in the District Court ruling in A & M Recordings v. Napster, “The matter before the court concerns the boundary between sharing and theft, personal use and the unauthorized world-wide distribution of copyrighted music and sound recordings.” 10114 F. Supp. 2d 896, 900.
  • In 1980, the Second Circuit wrote in Iowa State University v. American Broadcasting, “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.” 11621 F. 2d 57, 61.

One could find examples of this language from branches of government outside the judiciary. Among other usages of describing copyright infringement as theft, I can point to:

Perhaps most strikingly, the case can be made that copyright preemption shows a similarity between infringement and theft. In the comments of his response, Masnick says the point of refraining from using “theft” language in the copyright context is that the two are not “analogous.”

The Copyright Act explicitly preempts “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” (emphasis added). In other words, you can’t bring a cause of action in a state or local court if the rights at issue fall within the scope of copyright law. Among the causes of action which have been found by courts to be preempted by copyright law: conversion – the “wrongful exercise of dominion and control over tangible, physical objects”; 12Patry on Copyright 18:34 theft of services; 13See, eg, Orth-O-Vision v. HBO, 474 F. Supp. 672. and theft of satellite signals. 14Patry on Copyright 18:52

According to Wiktionary, “analogous” means “Having analogy; corresponding to something else; bearing some resemblance or proportion.” “Equivalent” means “similar or identical in value, meaning or effect; virtually equal.” If causes of action like conversion and theft of services – species of theft – are “equivalent” under the doctrine of preemption, than the argument that they are not analogous – that they don’t bear some resemblance or proportion – fails.

It’s simply disingenuous to say that a metaphor which has been commonly used for centuries by individuals of all stripes, courts, legislators, and governments is “wrong.” Legally and logically, the metaphor holds up. To say that copyright infringement is not theft on a descriptive level only demonstrates ignorance.

Ought Copyright Infringement be Considered Theft

I mentioned earlier that the more salient argument in the “theft” debate has to do with “framing.” The self-ascribed camps of ‘pro-life’ and ‘pro-choice’ in the abortion debates illustrate precisely the power of framing in shaping the character of the debate. Within highly contentious debates, the question matters as much as the answer.

The heart of the issue about equating copyright infringement to theft is not whether it is theft, but whether it ought to be considered theft. That is, it is not important whether we can look to the past and see the metaphor as an accepted linguistic usage, but it is important to consider the effects that using the metaphor has on lawmakers, judges, and policy makers as they craft responses to future problems. 15I want to point out Interpretation and Coherence in Legal Reasoning at the Stanford Encyclopedia of Philosophy for further insights into this area.

One quick note about plagiarism. Nandita Saikia springboarded off my post to consider whether plagiarism should be equated to theft. The issue of plagiarism is distinct from, but overlaps with, copyright infringement. Nevertheless, it warrants mentioning here. Jonathan Bailey points to recent research involving children and plagiarism. And generally, there has been an increase in the prevalence of plagiarism in the past several years. 16See, eg, Danielle Kanclerz, Internet to Blame for Increase in Plagiarism Cases. I think the issue of plagiarism is unequivocally a moral issue, but one that can be addressed outside the confines of copyright law. At the same time, discussions of plagiarism do inform some discussions of copyright law.

Back to copyright infringement in general, and also from India, Amlan Mohanty briefly discusses my piece in the larger context of Indian copyright law. Mohanty gets at the heart of the issue about framing, saying “The term ‘theft’ carries with it significant ethical connotations, is regarded as moral turpitude, and involves considerable value-judgement.”

In this sense, the question over whether infringement should be equated to theft comes down to whether infringement should carry the same moral considerations as theft is said to carry. The debate is over whether this metaphor – this use of language – accurately describes society’s and the law’s response to copyright infringement.

Fortuitously, John Locke, the philosophical godfather of American legal theory, actually used the term “stealing” as an example of how language aids in our understanding of the ideas behind laws: 17John Locke, An Essay Concerning Human Understanding, Book II, Chap. XXVIII (1690). Google Books link

16. The denominations of actions often mislead us. But because very frequently the positive idea of the action, and its moral relation, are comprehended together under one name, and the game word made use of to express both the mode or action, and its moral rectitude or obliquity: therefore the relation itself is less taken notice of; and there is often no distinction made between the positive idea of the action, and the reference it has to a rule. By which confusion of these two distinct considerations under one term, those who yield too easily to the impressions of sounds, and are forward to take names for things, are often misled in their judgment of actions. Thus, the taking from another what is his, without his knowledge or allowance, is properly called stealing: but that name, being commonly understood to signify also the moral pravity of the action, and to denote its contrariety to the law, men are apt to condemn whatever they hear called stealing, as an ill action, disagreeing with the rule of right. And yet the private taking away his sword from a madman, to prevent his doing mischief, though it be properly denominated stealing, as the name of such a mixed mode; yet when compared to the law of God, and considered in its relation to that supreme rule, it is no sin or transgression, though the name stealing ordinarily carries such an intimation with it.

One may note that both theft and copyright infringement are against the law. If the problem with equating the two is that theft is immoral because it is contrary to the law, than the discussion is moot. Either one will subject you to civil liability; either one may subject you to criminal penalties. We “know” at an early age that garden-variety theft is illegal, and anyone who has seen an FBI warning on a movie or paid attention to the recent record label’s litigation campaign “knows” that copyright infringement is illegal.

In fairness, the pushback against equating the two is based on relative morality – copyright infringement is not as bad as theft – sussing out dichotomous forms of copyright infringement, 18See my post on Creative vs Consumptive Infringement for an introduction on this subject. and the importance of countervailing goals in copyright law beyond securing exclusive rights to authors.

These are not tiny bases. One could devote entire books to them – something William Patry has done as I noted in my first post.

William St. Clair describes the use of “theft” language in the copyright context as “literary knockabout.” 19Privilege and Property, pg 391. The historical effects have largely remained within the rhetorical arena. This metaphor is neither recent, nor solely attributed to the largest stakeholders – individual, amateur, and small-time creators typically make use of it. We can talk about whether or not the language has influenced the copyright debates in the wrong direction, but foreclosing the term “theft” in the copyright arena hinders the debate as much as using it puts up “a wall to understanding.”

References   [ + ]

1. The truly geek would answer “Linux” and “Jack O’Neill.”
2. From Hamlet, Act 3, Scene 1, “Whether ’tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles And, by opposing, end them.”
3. Check out “apples and oranges” on Wikipedia for an introduction into this curious cliche.
4. A millennia old problem is what we call it.
5. The genesis of this line of thought is often attributed to Wesley Hohfeld in Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law Journal 16 (1913).
6. William St. Clair, Metaphors of Intellectual Property, Privilege and Property: Essays on the History of Copyright (Open Book Publishers).
7. Privilege and Property, pg 388.
8. See, e.g., M.O.P. Denies Beat JackingBeatjacking or Fair Game?
9. 415 US 394, 417.
10. 114 F. Supp. 2d 896, 900.
11. 621 F. 2d 57, 61.
12. Patry on Copyright 18:34
13. See, eg, Orth-O-Vision v. HBO, 474 F. Supp. 672.
14. Patry on Copyright 18:52
15. I want to point out Interpretation and Coherence in Legal Reasoning at the Stanford Encyclopedia of Philosophy for further insights into this area.
16. See, eg, Danielle Kanclerz, Internet to Blame for Increase in Plagiarism Cases.
17. John Locke, An Essay Concerning Human Understanding, Book II, Chap. XXVIII (1690). Google Books link
18. See my post on Creative vs Consumptive Infringement for an introduction on this subject.
19. Privilege and Property, pg 391.

11 Comments

  1. Pingback: Tweets that mention Is Copyright Infringement Theft? Part 2 | Copyhype -- Topsy.com

  2. ” if you’re seeking to understand what is happening to them as we continue to move to a digital environment and how to respond to it, decrying anything but complete acceptance to widespread piracy – down to the very language they choose to use to describe it – shuts the door on a variety of important points.”

    Funny thing happened when I watched The Social Network with a friend. She was utterly convinced that Mark Zuckerberg “stole” the idea of making and creating Facebook. Since someone gave him the idea, and he utilized it without helping the others at all, it was this very process that lead to him being successful.

    Granted, Social Network is only a drama movie and it was spiced up to make a fictional story on the creation of one of the most popular sites in current US history. The point stands that this is a sticking point and it’s hard to convince people otherwise when their view is firmly entrenched on a matter. There was no way I was convincing her that the others could have come up with their Harvard idea themselves. There was no way to convince her that the twins deserved (based on the movie) the 650 million received when Zuckerberg and co wrote the code themselves. No, the conversation was mainly about the fact that he “stole” this idea and the conversation could not move forward.

    Somehow, I don’t think Masnick’s viewpoint is the “full on” support of copyright infringement. After reading a few articles for some time, it seems to me that those in support of copyright laws fail to understand the economics behind them. If we’re talking about just music, this is probably our most egregious example so far. The RIAA and co, make it difficult to do anything on the internet without having a strong sense of entitlement. Grooveshark was sued before becoming legal. The RIAA arrested another person for having the audacity of making downloading easier.

    The thing is, there is a tax on innovation. Napster disrupted the old ways of doing business. The price of songs went down considerably. Napster offered to make a subscription service and the RIAA destroyed it. In its wake are other ways of doing business, similar to Napster so if someone wants something for free, they can do so.

    The point is, the litigation won’t affect the millions of people that want something for free if need be. What happens is that, at least in the music world, there needs to be new models for doing business. That’s slowly coming up and changing. Since people can’t charge as much for songs through CDs, labels are requiring more 360 deals, which mean they get profit from all that an artist does. Now, they don’t care as much about songs, they’re pushing to promote the artist, which is a far better deal than what was happening before with their old model was destroyed.

    So should we equate piracy, theft, plagiarism all into one equal equation? I think each has its own connotations. With the piracy, we have a belief that people are getting a product for nothing. Usually some digital copy that works just the same as the original in all contexts and has yet to be accounted for in sales.

    With theft, we have a tangible property being taken away and depriving someone of a source (which I believe Nina Paley’s video alludes to) With plagiarism, we have someone taking someone else’s words as their own.

    But in the first case, the punishment does not fit the crime. Again I use music as an example. If I download 3 songs, who is to say that the money spent isn’t going elsewhere? What has been noticed by others is that music continues to promote the artist where digital sales have grown as well as concert ticket prices have sky rocketed. So to any economist, the two are complementary goods. Furthermore, the Big Four continue to have record profits in the last few years regardless of the illegal downloading. And if we look at their watchdog (RIAA), if the president is making 2 million this year then it is obvious that the decry that the sky is falling is only being listened to by one with deaf ears. So in a sense, we can’t equate piracy to theft on this reason. I may download a song, but I doubt highly it’s depriving the artist of recognition, profit, or a fanbase. If anything, it’s increasing those very things.

    Regarding plagiarism and theft, I feel that the thief in both instances gets retribution. Plagiarism is even easier when you can run a google search and find them out, leading to embarassment and shame. Thieves used to get their hands cut off, but since that’s inhumane nowadays, there are assuredly other measures to take care of them such as jailtime.

  3. I agree with everything the author says – except the conclusions!

    This kind of subtle, thoughtful analysis may be appropriate in an academic context, but in the context of public policy debate it is more likely to be counterproductive. People who don’t see anything wrong in copyright infringement will just keep repeating their mantra that ‘sharing isn’t theft’ and think they have scored a great propaganda victory.

    I think it is more useful to point out that there are many forms of dishonesty and cheating that do not amount to theft, but are equally immoral and deserving of punishment. Let’s consider some examples.

    1. Insider dealing. Someone with confidential inside information about a company’s business buys or sells shares and makes a profit. Most people can see that this is dishonest, and in most jurisdictions it is a crime, but it even on a broad definition it is not theft.

    2. Bribery. A city official accepts a bribe to give someone a building permit. Let’s assume that the building is safe and does nobody any physical harm, but most people will still think that bribery (on both sides) is dishonest and should be punished.

    3. Bilking. Suppose someone has his car repaired, but then drives away without paying for the service. There has been no ‘theft’ (assuming that no physical parts are replaced) but a wrong has been done.

    4. Deception. Someone falsely tells an old lady that her roof is dangerous and persuades her to hire him to repair it. Probably not ‘theft’, but clearly dishonest.

    5. Unauthorised ‘borrowing’. Someone goes into a DVD rental store just before it closes for the night, slips a DVD into their pocket, takes it home, watches it, then takes it back first thing the next morning and puts it in the ‘drop box’. The store has not been deprived of its property, it may not even have suffered financial loss (if the ‘borrower’ would not have paid for the DVD anyway), but presumably most people would agree that it is punishable dishonesty.

    6. Forgery. Suppose someone forges film or concert tickets and obtains access without paying. Unless they are preventing someone else from getting a seat, they are not directly depriving anyone of anything, and they may not even be causing anyone a financial loss (because they may not have been willing or able to pay for a ticket), but it is still obviously dishonest.

    7. Assisting evasion of payment. As a variant of the previous example, suppose someone buys a ticket for a film or concert, then enters the venue, goes to an unguarded side entrance, and holds it open for people to enter without paying. In this case the person who actually holds the door open is obtaining no personal advantage, but all concerned are behaving dishonestly. The analogy with ‘file-sharing’ here is obvious and intentional.

    None of these examples is a clearcut case of theft, but they all involve dishonesty, and I think most people would intuitively feel that they should be prevented and punished, even where it is not clear that anyone has suffered any identifiable harm. One reason for this is that dishonesty strikes at the foundations of social and economic well-being. But a more potent reason is that most people, most of the time, are honest, and they resent dishonesty by others, because they feel the others are obtaining an unfair advantage over themselves. For example, in cases 6 and 7, the people who enter without paying are not directly harming other people who have paid, but they cannot expect to be popular.

    Cases 6 and 7 are also pertinent to the debate about ‘piracy’ in another way. Defenders of illegal file-sharing, etc, invariably argue that it does not damage artists because they can make a good living from live performance. Apart from being in many cases untrue, the argument relies on the assumption that ‘free entry’ can be prevented. But if the defenders of piracy were consistent in their own principles it is difficult to see what objection they would have to forgery or evasion of payment for live performance. After all, it is not ‘theft’, so it is all right, isn’t it?

    • “Cases 6 and 7 are also pertinent to the debate about ‘piracy’ in another way. Defenders of illegal file-sharing, etc, invariably argue that it does not damage artists because they can make a good living from live performance. Apart from being in many cases untrue, the argument relies on the assumption that ‘free entry’ can be prevented. But if the defenders of piracy were consistent in their own principles it is difficult to see what objection they would have to forgery or evasion of payment for live performance. After all, it is not ‘theft’, so it is all right, isn’t it?”

      Very subtle shift in thought but what you’re saying here is basically pirates are thieves.

      6) The time invested in forging a ticket does not equate to the time in renting a seat in a movie theater. If someone were to do this, that means the price may be too high for them.

      Regardless, the movie industry makes money so I believe this is a bad example. But if you must use this example, you might as well discuss the recording of movies of a camcorder, logical conclusion being that if you put it on the internet, you’re supposedly depriving producers of a sale.

      7) What you’re alluding to is copyright infringement. Funny thing is, Woodstock of 99 had this exact thing happen after the first two days were great music. It was still a financial success even though the last night was a fiasco.

      “Defenders of illegal file-sharing, etc, invariably argue that it does not damage artists because they can make a good living from live performance. Apart from being in many cases untrue, the argument relies on the assumption that ‘free entry’ can be prevented.”

      No one’s really defending filesharing. Most people just recognize that it’s going to occur regardless of what any one industry does to try to stop it. So you get music for free, or find a movie that you like without Hulu’s advertisements. Is it really killing any industry? ’09 was a great year for the movie industry when they were making over 10 billion dollars. It’s also funny that you say “free entry”. The most freeing thing to occur for the thousands of indies out there is that they don’t have to suffer through having to go to a record label to be heard.

      “But if the defenders of piracy were consistent in their own principles it is difficult to see what objection they would have to forgery or evasion of payment for live performance.”

      You’ve set up an effective strawman in your last few paragraphs, which I’ve taken the time to explain. You also have little to no proof as evidenced from your last few posts to hold it up. What your entire paragraph does is constantly prop up filesharing as some dishonest thievery when it’s not necessarily the case. If I want to destroy number 7 even further, I can look at the used sales market to assist even more in that. No matter the industry, this supposed “evasion of payment” doesn’t hold up if the price of a good isn’t consistent with the value to the consumer.

      Let’s explain that further so that I don’t hear the “so you believe that music should be free? PIRATE!” argument. A video game is priced at $60. I don’t want to pay $60 for a game that I might not like. I rent the game from Gamefly for $2 a day. I beat it in 3 days. That’s $6.

      So was the game worth those $6? The variables in the scenario go on and on. While people continue to decry that filesharing is killing the industry for the past 10 years, every last one of them has missed all of the opportunities that continue to go on around them. I think that’s sadder than the wasted effort of stopping piracy.

      • I am not ‘propping up filesharing as some kind of dishonest thievery when it’s not necessarily the case’. The whole point of my comment was to argue that the field of ‘dishonesty’ is much wider than that of ‘thievery’. But certainly filesharing involves dishonesty, and I am surprised that anyone should dispute it. Music (and DVDs, and ebooks, and software programs, and games, etc, etc – let’s not forget that the area of IP is much wider than music) are sold to the public on the clear condition that they are not to be copied without permission. Those who buy such products, without disclaiming that condition at the point of sale, tacitly accept the condition. If they then break that condition by an act of copying they are acting dishonestly, and anyone who knowingly receives the fruits of that dishonesty is a party to it, just as anyone who knowingly receives stolen goods is an accomplice to theft (or whatever the precise legal definition may be).

        • “But certainly filesharing involves dishonesty, and I am surprised that anyone should dispute it. Music (and DVDs, and ebooks, and software programs, and games, etc, etc – let’s not forget that the area of IP is much wider than music) are sold to the public on the clear condition that they are not to be copied without permission.”

          I would like to remind you that filesharing is a tool, usually recognizing a problem in other sectors of a business.

          Again, I’ve commented on the music business doing quite well despite the proliferation of music on filesharing networks.

          Movies, as said in my first post, made 10 billion dollars last year, so they really aren’t hurting.

          Ebooks has their books priced too high (higher than novels in some cases), causing piracy to increase.

          Software – Photoshop anyone? As I believe has been noted, Photoshop gets quite a lot of money through business use. Individual piracy has little effect on that. Also, there might be other benefits. The same can be said of even Microsoft.

          It’s pretty telling when their best piece of advice (in yesteryear) is this gem:

          “We understand that in the long run the fundamental asset is the installed base of people who are using our products,” Raikes said. “What you hope to do over time is convert them to licensing the software.”

          ” If they then break that condition by an act of copying they are acting dishonestly, and anyone who knowingly receives the fruits of that dishonesty is a party to it, just as anyone who knowingly receives stolen goods is an accomplice to theft”

          If I tell someone about a book and the parts I found interesting about it, am I breaking some supposed covenant?

          If I tell no one about a great movie I saw, that’s not available on the local market (just one example, Disney’s Cinderella is on moratorium), how are you supposed to keep this away from someone else? Because of a business decision, that’s supposed to keep me and my family from enjoying movies of different generations?

          If just the mere concept of copying is so bad…

          Why has it proliferated for so long in various forms?

  4. It is important for those who decry the general equating of “infringment” and “theft” to press their position in order to shift the discussion from the appearance of having committed an act illegal under law to one of merely “sharing” cultural heritage. Thus, they will not broach any use of the term “theft” in even a colloquial manner. “Theft” sounds as if they are doing something wrong. “Infringement” sounds less so, and “sharing” sounds downright noble.

    As you aptly note, they rail against the term “theft” because they choose to deliberately equate it solely with tangible goods, denying any possibility that the appellation “property” can ever be legitimately applied to intangibles. Of course, this fundamentally misapprehends the role played by law in defining “property” and the reasons therefor.

    With “property” straight jacketed in this manner it is a simple task for them to then move the discussion from one of law to one of economics, and once having so moved the discussion to then parse Article 1, Section 8, Clause 8 such that “promoting progress” is solely an economic construct, i.e., if “promoting progress” is solely an economic construct, then all copyright law must fail as nothing more than a government granted “monopoly” that is inimicable to free and open competition. Of course, this lays waste to the meaning of the term “progress” as was understood at the time the US Constitution was crafted and later enacted.

    Make no mistake. Mr. Masnick is vehemently opposed to the mere existence of patent and copyright law. In his world view these laws hinder “innovation” by placing limitations on the right and freedom of persons to freely use the pre-existing works of rights holders to compete with such rights holders.

    • I always appreciate MLS’s smack-downs of Masnick and techdirt. Great job getting right to the heart of it.

      And great job to Terry Hart for another excellent piece.

      I put the score at: copyhype 3, techdirt 0

      • It is not my intent to “smack down” persons who adhere to views such as those held by the principals at sites such as techdirt.

        My interest is solely to note that no matter what economic theory may suggest, the law reflects and embraces varying, and many times conflicting, societal concerns.

        • “Make no mistake. Mr. Masnick is vehemently opposed to the mere existence of patent and copyright law. In his world view these laws hinder “innovation” by placing limitations on the right and freedom of persons to freely use the pre-existing works of rights holders to compete with such rights holders.”

          I don’t think he’s opposed to patent and copyright law if it were shortened to human life spans instead of the “life +50 years” that’s been induced.

          It just seems that the evidence does collude that patent and copyright laws don’t help in spreading information or “progressing the arts and sciences” in any way.

        • “It is not my intent to “smack down” persons who adhere to views such as those held by the principals at sites such as techdirt.

          My interest is solely to note that no matter what economic theory may suggest, the law reflects and embraces varying, and many times conflicting, societal concerns.”

          Fair enough. I always enjoy your insight.

  5. The non-theft position is grounded in physical fact. The theft position is not. That is the substantial difference.

    IP institutes restrictions on valuable things where there is none in physical fact. That is the underlying point of the non-theft position: that these restrictions have not been justified. Surely anyone should ask why we should have laws that restrict access to goods otherwise infinitely available.

    Arguing why the situation is similar in some way to property or theft doesn’t answer why there should be these restrictions. It is a more fundamental question. If the theft is deprivation of exclusive rights, where do the rights come from? From the IP laws. Then what are they based on? One cannot answer that they exist to protect people being from deprived of their rights — that is circular. So Why? . . . In ordinary theft there is real physical deprivation, but in IP there is not.

    And it is no use questioning the validity of the fact here: the very mechanism of IP depends on it. It is because of the restriction of competing supply that the returns to the ‘owner’ are elevated.

    Merely imagine for a moment as if it were *not* a matter of property and *not* a matter of theft. Ask what is going on underneath, prior to any legal or conventional construction — that is, on the basis on which you would evaluate or justify any laws at all. Ultimately, that will be physical reality — how a law affects *that* is why people care about it.

    Unless that justification for restriction is adequately supplied, expatiating on the meaning of ‘theft’ seems, at best, quibbling while there are larger matters at hand.