The Free Speech Critique of Copyright Mistake

May 17, 2011 · · Comments Off

Did you hear that Florida just outlawed sex?

This was pointed out by Southern Fried Scientist, after reading of a Florida bill that prohibits “knowing sexual conduct or sexual contact with an animal.” Humans are, after all, animals, so by definition, Florida has just made normal sexual relations a crime.

Obviously, that’s not what happened. As Rick Hasen at Election Law Blog points out, “A court facing a question of interpreting the statute would almost certainly read the statute’s use of the term ‘animals’ as ‘non-human animals,’ both to avoid absurdity and to conform with (1) the intent of the drafters; (2) the purpose of the statute; and (3) a commonly used (if scientifically inaccurate) understanding of the term ‘animal’ to exclude humans.”

But it does provide a good example of language in the law. Law, in many respects, is semantics. It is based on words written down in constitutions, statutes, and court opinions, and shaped by how courts, lawyers, and the public interpret those words.

Underneath the veneer of the plain meaning of language in law is a mass of complex and sometimes inscrutable precepts. Hasen, above, advances three such precepts to explain why ‘animal’ doesn’t include humans in the Florida law. To a lawyer, understanding how language works in law is second nature, but to the layperson, much of it may seem like “the art of the puzzling and confounding.”

Law professor Frederick Schauer describes this better than I do:

There are times when law uses language of its own making, often in  Latin — replevin, assumpsit, quantum meruit, habeas corpus, res judicata — and sometimes even in English—bailment, demurrer, due process, joinder, interpleader, easement. Such terms have little if any meaning for the layperson, but they can still have plain meanings in law and for lawyers and judges. So as long as one believes in anything close to plain or literal meaning at all, such terms, when used inside the legal world, do not present special problems. Like the words of ordinary language, the meaning here is determined by the rules of use of the relevant linguistic community, but here that community is the community of legal actors rather than the men on the Clapham omnibus.

Things become somewhat more problematic, however, when terms have both ordinary and technical legal meanings. We know that ‘due  process’ in the Fifth and Fourteenth Amendments has a legal/constitutional meaning with no ordinary counterpart. The  women on the D train are no more likely ever to use the term than are the men on the Clapham omnibus. But the same does not hold true for ‘speech’ and ‘religion’ in the First Amendment or ‘arms’ in the Second or ‘searches’ in the Fourth. Here there are both ordinary and legal meanings, and the question is about the relation between them. So too outside of constitutional law, where words such as ‘trespass,’ ‘complaint,’ and even ‘contract’ have legal meanings that diverge from their nonlegal ones.1

When is content not content?

What does this have to do with copyright?

Well, some critics of the law base their objection on the premise that copyright protection infringes on the freedom of speech.2 A few — certainly not all — of these criticisms are based on the following line of thought: copyright law regulates content, content-based regulations presumptively violate the First Amendment, therefore much of copyright law is unconstitutional.

One recent example is from a paper by Andrew Sellars, who wrote, “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed.”3 (I don’t mean to single out Mr. Sellars, I only highlight this quote to provide an example of the argument.)

The Supreme Court, of course, rejected the classification of copyright as even a content-neutral regulation — which, in First Amendment parlance, still merits a higher standard of review than general laws.4 But, looking at the language being used, how can this be? How can copyright law restrict content yet not restrict content?

The answer lies in understanding how language is being used. Law professor Marc Greenberg explains:

The strength, and weakness, of this argument lies in the definition of the term ‘content’ in the Free Speech context, in the context of judicial interpretations of the First Amendment, and in the copyright context.  I submit that content in the free speech context refers both to the ideas a speaker presents, and the language or other expressive means used to present that idea.  For courts applying the term ‘content’ in a strict scrutiny context seeking to determine if a statute violates the First Amendment by banning certain works, the term ‘content’ is focused on the ideas expressed, and not on the means of expression used. Finally, copyright, in particular infringement cases, focuses purely on the means of expression used, since the statute expressly precludes protection for ideas. The Critics seek to use the free speech definition as a basis for challenging copyright—arguing under this definition that since copyright clearly ‘deals’ with content, it is a content-based law which requires strict scrutiny and a bias in favor of finding that it violates First Amendment protections.  The problem with this approach is that content, when subject to any copyright law analysis, only pertains to expression, and therefore the claim that for constitutional purposes it means more than that is erroneous. Professor Baker supports the Critics’ view by suggesting that under a strict scrutiny analysis, warranted because copyright deals with content, the market incentive concerns underlying copyright do not rise to the level of a compelling government concern, and proposes that perhaps those concerns can be addressed by less restrictive means. He writes: “If content must be examined to determine if a law is violated then the law is content based.” Does  this  mean that reporting a theft of art from your home, in which the police must have a description of the art, means that art theft is a content-based law?  Similarly, in a case of the theft of a rare book, a description of the book, the art on the cover, and its subject matter is required—does this make the theft law subject to a content-based strict scrutiny?  Additional examples from art and music illustrate the problems with this approach.  A copy of a musical piece focuses on the sequence of notes, not the underlying melody or musical concept embodied in the piece.  A derivative copy of a piece of artwork repeats elements of the composition, not the content, consisting of the concept of the piece.

The question that should be asked is whether the restriction on content found in copyright law really abridges someone’s freedom of expression and whether there is a fair policy in saying that anyone is free, for example, to paint a portrait.  However, they are not free to take someone else’s property, their painting of a portrait, and use that for their own benefit.  Interestingly enough, what this argument does is turn one of copyright’s attributes, the ability to reuse the work via copies without diminishing it, against the creator.  There is no question that if I wanted to paint a portrait, and saw a similar portrait you did on your wall,  that I cannot, in my expression of free speech, come into your house, take your painting, cut out the face in it, and put it in my painting.  But because art in the digital world can more easily be reproduced through mechanical means, suddenly it is a violation of your freedom of expression to take a copy of the work, which is sold with the express understanding that it may not be used by you, and use it for your own purposes, be they commercial or noncommercial.5

This point shouldn’t be dismissed as merely arguing semantics. It’s important to make the distinction between “content” in the ordinary sense of the word and “content” in the First Amendment sense of the word. And not because it lets copyright law escape constitutional protections.

How does copyright deal with content?

The First Amendment protects against government control over “content” in the ordinary sense.

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions “rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”

For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. (Citations removed).6

The Supreme Court has developed doctrines to test whether general laws violate the First Amendment. These doctrines aren’t applied to copyright law — not because it is immune from First Amendment scrutiny, but because copyright law’s own “built-in free speech safeguards” already account for First Amendment analysis. And these safeguards mirror the tests developed by the Court surprisingly well.

When you recognize “content” as the ideas conveyed by a speaker, and recognize that a government cannot generally suppress these ideas, you see that copyright law already accounts for this through the idea/expression distinction — the law only protects the specific expression of an idea, not the idea itself.

Traditional First Amendment jurisprudence recognizes that laws that don’t specifically target the “content” of speech may nevertheless violate free speech principles. Such laws are typically analyzed under the test set out and explained by the Supreme Court in US v. O’Brien:

We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O’Brien can be constitutionally convicted for violating it.7

Copyright’s analogue to the O’Brien test is found in the fair use doctrine. That is, when does copyright law allow the speech that is made with the normally prohibited conduct of copying another’s expression?

Like O’Brien, courts use a balancing test. The balancing test is the familiar four-part fair use analysis, which looks at: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”8

Implicit in the fair use factors are the same prerogatives of the O’Brien test. Along with the preamble, enumerating several purposes of fair use, the factors guide courts in considering whether a specific use promotes the progress of the useful arts. The qualitative and quantitative factors, along with the effect on the potential market, ensure that the restriction on using copyrighted expression is no greater than necessary to promote that progress.

I’ve talked a lot about the intersection of free speech and copyright on this site. The notion that the two areas of law are in conflict should be put to rest — I’ve even advanced the notion that copyright helps expand free speech rights. A careful analysis of the language we use, and how legal doctrines incorporate that language, show that the two are wholly consistent with the values that underlie our concept of what a free and just society should embody.

Footnotes

  1. A Critical Guide to Vehicles in the Park, 83 New York University Law Review 1109, 1123 (2008). [↩]
  2. See Copyright and Censorship, note 17, for an inexhaustive list of such criticisms. [↩]
  3. Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names (May 8, 2011). [↩]
  4. Eldred v. Ashcroft, 537 US 186, 218-19 (2003). [↩]
  5. Reason or Madness: A Defense of Copyright’s Growing Pains, 7 John Marshall Review of Intellectual Property Law 1, 15-16 (2007). [↩]
  6. Turner Broadcasting System v. FCC, 512 US 622, 641-42 (1994). [↩]
  7. United States v. O’Brien, 391 US 367, 376-77 (1968). [↩]
  8. 17 USC § 107. [↩]
Posted in: Copyright Criticism · Comments Off

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Lawyers and the Art of Puzzling and Confounding

October 27, 2010 · · 1 comment

Water is wet, fire is hot, and people hate lawyers.

None of these statements are noteworthy enough to even bear repeating. You probably couldn’t walk down the street without running into someone who is willing to share their distaste with the legal profession.

And this distaste is nothing new. You can find examples of it in historical sources stretching back thousands of years. In the 1930 book Law and the Modern Mind, Jerome Frank has this to say:

Diatribes against lawyers contain such words and phrases as “duplicity,” “equivocation,” “evasions,” “a vast system of deception,” “juggling,” “sleight of hand,” “craft and circumvention,” “the art of puzzling and confounding,” “darken by elucidation,” “the pettifogging, hypocritical, brigandage rampant under forms of law.” Kipling expresses the feeling of many in his fling at the “tribe who describes with a gibe the perversions of Justice.”1

Last week, over at Volokh Conspiracy, Orin Kerr — accurately and vividly — described non-lawyers’ perceptions with legal institutions as displaying “an almost pathological aversion to the common sense and the justice of the situation.”

I think the ideas expressed above raise issues that are worth discussing. Yes, this site is focused primarily on one specific area of law. Most of the time I talk about the issues that arise from the “copyright wars”: discussions about how instruments of culture, knowledge, and entertainment are created and disseminated. These discussions inherently deal with copyright law as the foundation of this creation and dissemination in today’s society, but they also draw in broader concepts of the law: the role of courts; the interpretation of constitutions, statutes, and case law; the nature of liability.

Understanding these issues in-depth requires some modicum of “legal literacy.” But I think it’s safe to say that there are plenty of issues outside the copyright realm that also require a bit of legal literacy to understand better; however, legal literacy remains an elusive goal. The problem is caused by misunderstandings of the law and various stumbling blocks that get in the way of understanding, two of which I want to highlight today.

I don’t think improving legal literacy requires going to law school, but I do think it is beneficial to society. In Adventures in Law & Justice: Exploring Big Legal Questions in Everyday Life, Australian legal researcher and commentator Bryan Horrigan explores the public’s understanding of the law and why it is important to improve that understanding. In the introduction, he underlines the key themes that he addresses in the book:

One is that law and justice matter for citizens and not just law-makers, and that law and justice concerns deeply touch both our everyday and community lives. Another is that much popular and professional understanding of law is critically flawed, and that these flaws are obstacles to better understanding, communication, and handling of ongoing law and justice challenges. A third theme is that law and society influence one another in more ways than many people realise […] A final theme is the need for better public legal literacy as a vital part of citizenship education, and to help hold all three arms of government accountable to the people.

Complexity and Technicalities

Many of the complaints against lawyers written above focus on the belief that the legal profession wrongly gets in the way of justice: “perverting it” or showing a “pathological aversion” to it. Are these complaints warranted? Jerome Frank offers some insights:

What lies back of this popular criticism? It appears to be founded on the belief that the lawyers complicate the law, and complicate it wantonly and unnecessarily, that, if the legal profession did not interpose its craftiness and guile, the law could be clear, exact and certain. The layman thinks that it would be possible so to revise the law books that they would become something like logarithm tables, that the lawyers could, if only they would, contrive some kind of legal slide-rule for finding exact legal answers.

The error of the layman, states Frank, is blaming the complexity of law on the lawyers. But the complexity is not a result of lawyers; rather, it is the result of the complexity of society itself. No one in history has been able to set down a complete set of rules that could anticipate every possible scenario in the future. Frank continues, “The law deals with human relations in their most complicated aspects. The whole confused, shifting helter-skelter of life parades before it — more confused than ever, in our kaleidoscopic age.”

He concludes, emphatically: “Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.”

The other common theme in complaints against the law is its apparent aversion to “common sense.” Sure, the layman may say, the law is complex, but so many of its results seem to defy logic. How much weight does this criticism hold? Preeminent jurist Oliver Wendell Holmes described the peculiar challenges of understanding the Law in his seminal work, The Common Law:

[O]ther tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic — it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

Related somewhat to the previously mentioned criticisms is this notion of “technicalities” in the legal world. The above-mentioned post by Orin Kerr attempts to explain why “lawyers seem so obsessed with technicalities” by examining the institutional roles within the legal system.

Kerr writes, “The law often breaks down power among different institutions, with each institution getting one part of a broader problem. That means that each institution only has limited power, and the question of how that institution is supposed to act is limited by the specific grant of power given to that particular institution.” He uses the example of a routine criminal case. The ultimate goal in criminal law is to determine guilt. But the process of reaching that goal is broken into discrete institutions, with each institution playing a very small and specific role — from the investigator, prosecutor, and grand jury to the defense attorney, trial judge, and trial jury. Not understanding how this system works is what causes the frustration among non-lawyers that the law seems to run counter to “common sense.”

Alice Speaks With Humpty-Dumpty2

A proper understanding of the complexity of the law and the role of legal institutions may go a long way in improving public legal literacy. But if we revisit those common complaints against lawyers, we can see another source of criticism: lawyers’ use (or misuse) of words and language. Many non-lawyers vent frustration at the seeming linguistic chicanery of those in the legal profession. While slick speakers run circles around “what the meaning of ‘is’ is,” common sense and justice escape out the back door. The idea seems to be that if “the law” is simply a collection of rules, then all this arguing over what these rules mean is just semantic sleight-of-hand designed to circumvent the clear meaning of the law. To understand a law, one can simply open a book, read what the law says and parse its meaning the same way one parses sentence in a Stephen King novel.

Bryan Horrigan calls this the ”rule-book metaphor” and identifies it as a stumbling block to popular understanding of the law. In his chapter on “Myths, Fictions, and Realities,” Horrigan says this stumbling block ”assumes that, whatever law’s real nature, finding and understanding any particular law is just like opening and reading a dictionary or catalogue.” But that assumption is incorrect. As Horrigan points out, “just like floating candles bobbing around in a bowl of  water, legal language sits immersed in a context which affects its meaning.  Words alone do not determine meaning.

Earlier this year, Kerr picks up on what I think is another source of this frustration among non-lawyers: the use of legal “terms of art”. Many times in the law, there are words or phrases used that mean one thing in the general sense but have quite a specific meaning within the law. Kerr uses the example of the phrase “reasonable expectation of privacy.” He explains:

The key idea is that the phrase “reasonable expectation of privacy” is a constitutional term of art, much like other constitutional terms of art like “due process,” “free speech,” “strict scrutiny,” or “fundamental rights.” You normally can’t answer if something violates “due process” just by asking if there was a “process” that seemed “due,” much like you can’t answer if a regulation satisfies “strict scrutiny” by scrutinizing the regulation while being “strict.” In all of these cases, the phrase captures a complicated body of caselaw; You can’t just repeat the name for the test and think that the name accurately captures the doctrine. Rather, you need to recognize the test as a term of art that reflects a large body of caselaw, and you need to get the answer from the caselaw.

[…]

[T]he key point is that a “reasonable expectation of privacy” is not just an empirical question into whether a reasonable person would expect privacy. You can’t just mull over the words “reasonable expectation of privacy” and derive an answer from those words any more than you can mull over words like “due process” and derive an answer from for what the due process clause forbids.

The frustration, I believe, derives from a sort of “sez who?” The non-lawyer might ask, “Why do lawyers (or judges) get to decide what these phrases mean? I can read, I have a dictionary.”

The short answer to this response is: that’s how the law works. The development of these legal terms of art and the tests that accompany them is a result of the processes of the common law system we live under that reflects the principle of the “rule of law“. The Legal Theory Lexicon provides a good introduction to the values of the rule of law:

What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot’s of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.

That’s not to say that all laws are perfect, or even good: quite the opposite. There will always be areas in the law where reform is necessary; indeed, it would be shocking if this weren’t the case. When you consider “the whole confused, shifting helter-skelter of life” parading in front of the law, it should be apparent that ideal laws are almost never attainable. This idea even has even been given a name by legal scholars: “second best” or “nonideal theory.” The idea of the “second best” in law echoes what Voltaire once said: “The perfect is the enemy of the good.”

Conclusion

There are plenty of other obstacles to understanding the law besides the few I highlighted above. I used examples of complaints about lawyers in this discussion not because I think lawyers are totally blameless in the deficiencies of the legal system but rather to point out where those criticisms are based on misunderstandings of other topics. The legal profession certainly has its share of “bad apples,” like any other profession. Then again, lawyers play an important role in a functioning society and can and should be held to high ethical standards. All that aside, improving legal literacy is a worthy goal and one I hope this site helps promote.

Footnotes

  1. Law and the Modern Mind, 1930, pg. 5 (Transaction Publishers, 2008). [↩]
  2. See Lewis Carroll, Through the Looking Glass, chap 6. [↩]
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Is Copyright Infringement Theft? Part 2

October 11, 2010 · · 11 comments

“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.”1 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.2

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!3 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:

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?4

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.5

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.6 Infringement was, at that time, “frequently equated with theft,” “shoplifting, letter-picking, purse-cutting, highway robbery, burgling a house, plundering a hospital. And piracy.”7

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.8

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.”9
  • 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.”10
  • 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.”11

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”;12 theft of services;13 and theft of satellite signals.14

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.15

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.16 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:17

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,18 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.”19 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.”

Footnotes

  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 Jacking, Beatjacking 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. [↩]
Posted in: Copyright Criticism · 11 comments

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Is Copyright Infringement Theft?

September 07, 2010 · · 15 comments

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). [↩]
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