Last week, the New York Times ran an interesting and important op-ed by Stuart Green, a law professor, who argues that although illegal downloading of songs or videos from the Internet may be wrong, it’s not really “theft” in the sense that the term has been understood historically in the law. Nor is it theft according to the moral intuitions of ordinary people (as Green’s own research with psychologist Matthew Kugler shows), who draw a sharp distinction between online file sharing and ordinary theft, even when the economic value of the property taken is the same.
That’s not to say that record companies and movie studios are not hurt by online piracy. But as Green points out, they’re really not hurt in the same way that victims of theft typically are. If a thief steals your car, he has it, and you don’t. But if someone illegally downloads your song, he has it — but so do you.
In economic terms, intellectual property is non-rival, whereas tangible property is rival. As a result, the “piracy” of intellectual property is simply not the same sort of zero-sum game that car theft — or theft of any tangible property — is. And that means that when Hollywood or the U.S. government says that music or movie downloaders are “pirates” or “thieves,” they are indulging in a bit of loose rhetoric. There are, in general, good moral reasons not to take what doesn’t belong to you. But as this video by filmmaker Nina Paley so beautifully illustrates, copying is not theft.