Spend any amount of time reading or talking about copyright and you’re bound to have come across a debate over infringement and theft. Like many internet debates, it is very much a dead horse that has been beaten — I personally have written not one but two posts on the topic — yet the subject never dies.
Case in point: a couple weeks ago, Ben Jones at TorrentFreak resurrected the debate in an article called Copyright Infringement and Theft – The Difference. In it, Jones says, “A common recurring theme in the comments here on TorrentFreak is that P2P file-sharing is ‘stealing’. While such sentiments are often expressed by the industry lobby groups, it’s completely at odds with the law. It could also be the very LAST thing those bodies want.”
In the article, Jones makes the argument that since copyright infringement is enforced in courts through infringement claims rather than theft claims, it is wrong to ever use theft-type language to describe the harm caused by infringement. While this is not the only argument used by the “infringement is not theft” crowd, it is one of the more common ones.
It is also semantic nonsense.
At the risk of belaboring this point, here are five reasons why this argument fails.
#1. It’s based on an imaginary rule
According to the argument advanced in the TorrentFreak article, it’s wrong to call copyright infringement theft because it isn’t prosecuted under theft statutes.
This argument implies a rule: you’re only allowed to use words in their formal, legal manner. Throw away your Merriam-Webster’s, because the Blacks Law Dictionary is the only proper source for learning the meaning of a word.
Even the strictest language prescriptivist would cringe at the thought of such a rule. Many words have different meanings in different contexts — a certain definition in one context doesn’t preclude other definitions in other contexts.
#2. It assumes there’s only one legal definition for theft
If we accept this arbitrary, made-up rule, we still run into problems. Which legal definition of “theft” do we use? Every jurisdiction has its own specific definition; in the US, that means there is a different definition in each state.
Some states don’t call it “theft” at all. In West Virginia, for example, the criminal deprivation of personal property is prosecuted as either grand or petit larceny, depending on the value of the property.1 Cries of “Larceny isn’t theft!” would be the nonsensical result of this argument. Stealing is stealing no matter what a lawyer is required to call it for pleading purposes.
#3. The same argument doesn’t make sense with other words
Suppose, for the sake of argument, that we can get around the previous two objections: it’s a settled rule that we should only use words in their formal, legal sense, and we can agree on a legal definition for “theft.” We still run into absurd results under this argument.
“Theft” is commonly used to describe the criminal offense of depriving someone of personal property. But in most jurisdictions, someone can sue for a wrongful deprivation in civil court rather than pressing charges. Such a claim would be for conversion — the “unauthorized dominion over personal property in interference with a plaintiff’s legal title or superior right of possession”2. It’s entirely accurate, then, to say that “conversion isn’t theft”, but so what? The nature of the act itself doesn’t change depending on which court the claim is brought in.
#4. Stealing or theft?
The crux of the argument advanced in the TorrentFreak article is that infringement isn’t theft, but it kicks off with an example of a comment that “P2P file-sharing is ‘stealing'”. So which is it? Even if this particular argument was valid, does that mean it extends to the characterization of infringement as stealing? Stealing isn’t a legal term, after all — though it should be noted that, in the US, criminal copyright infringement is codified under the heading “Stolen Property“.
This little switch-a-roo just highlights the semantic shenanigans involved in the “infringement isn’t theft” argument.
#5. Some pretty smart people disagree
The argument that calling copyright infringement “theft” is “completely at odds with the law” takes on a patronizing air — i.e., “you’re only calling it theft because you don’t understand the law as well as we do.” This is no more than hubris, however; many people whose job it is to know the law know better.
In Metro-Goldwyn-Mayer v. Grokster, Justice Breyer, joined by Justices Stevens and O’Connor, said, “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.”3 The Supreme Court has been comfortable referring to copyright infringement as theft on other occasions.4 Lower courts and Congress have also used “theft” to describe copyright infringement on various occassions.5
Perhaps TorrentFreak and the rest of the “infringement isn’t theft” crowd knows more about the law than Supreme Court Justices, federal court judges, and Congress, but I’m willing to bet that that’s not the case.
Copyright infringement is theft
Language is incredibly malleable; we use words in a variety of ways. Many people over the centuries have described the deprivation of the exclusive rights in the fruits of their creative endeavors as “theft”, there’s no question about that.
But I think it is fair to ask why some bristle at any mention of theft in connection with infringement and piracy. I highly doubt their motives are solely to increase legal literacy by ensuring that words are used in their exact legal sense — mistakenly, in this case, as shown above. After all, one doesn’t have to look very far to see losing civil defendants being described as having been found “guilty”, or statutory damages for infringement being described as “fines” by these same critics — both terms that aren’t accurate in their strictly legal sense.
It’s my sense that this linguistic peeving is explained by the fact that “theft” has definite moral overtones to it, while “infringement” is still capable of euphemistically avoiding any moral concerns. Perhaps proponents of this argument hope that by straining semantics, they don’t have to confront the very real harm that infringement causes to creators and the public.
In other words, the “infringement isn’t theft” argument is often just cover for some other point.
- W.Va.Code § 61-3-13. [↩]
- LoPresti v. Terwilliger, 126 F.3d 34, 41 (2nd Cir. 1997). [↩]
- 545 US 913, 961 (2005) (concurrence). [↩]
- For example, Harper & Row Publishers v. Nation Enterprises, 471 US 539, 558 (1985) (citing Iowa State University Research Foundation v. American Broadcasting Cos., 621 F.2d 57, 61 (2nd Cir. 1980): “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” ; Teleprompter Corp. v. Columbia Broadcasting System, 415 US 394, 417 (1974) (J. Blackmun, dissent in part): “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”; Dun v. Lumberman’s Credit Assn, 209 US 20,22 (1908): “[a] number of instances are disclosed in the evidence which have strong tendency to establish the charge that defendants have used some of complainants’ copyright material in making their book … such indicia is held to indicate a substantial theft of copyright property.” [↩]
- See, for example, In re Verizon Internet Services, 240 F.Supp.2d 24, 35 (D. DC 2003): “There is little doubt that the largest opportunity for copyright theft is through peer-to-peer (“P2P”) software”; A&M Records v. Napster, 114 F.Supp.2d 896, 900 (ND Cali 2000): “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”; Protecting Intellectual Rights Against Theft and Expropriation Act, S.2863 (2004); Artists’ Rights and Theft Prevention Act, S.1932 (2003); Digital Theft Deterrence and Copyright Damages Improvement Act, PL 106-160 (1999); No Electronic Theft Act, PL 105-147 (1997). [↩]