Copying Is Not Theft

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.

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  1. Veritech says:

    AS AN AVID FILE SHARER..THANK YOU

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  2. radicaltruth says:

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    • DanSanto says:

      Yes, both are violations of laws – using something that does not belong to you. However, the entire point of the article, which you seem to have COMPLETELY missed, is that making a copy of something that belongs to someone else is very different than actually taking something.

      Try reading. They said it quite nicely in the article:
      “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.”

      Copying does not equal Taking.

      Legally, and even morally, both may be wrong but it is nonsense to claim that they are equal violations of morality/legality.

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      • Kevin says:

        Copying information *is* taking from the original content producer.

        By your logic, if Intel spends 2 years working on designing a new CPU, and AMD hacks their systems and copies their design, that’s fine because it was just information, and Intel still has their copy.

        What you fail to take into account is that the information itself is the value of the CPU. A CPU is less than $10 per-unit in materials and fabrication. The rest of the cost is the design. You’re caught up in the physical realm while ignoring the fact that it is the configuration of the elements (the design) that has value. The same for music. If you took all the samples of a Lady Gaga or U2 song and played them all at once, it would just be noise. Its the way that the noises are laid out that give the content value, not the bits. And the person who created that design should be paid.

        Another example: a Farmer grows corn. Its a physical asset. A programmer makes a program, which is information. You’re saying that the Farmer’s labor has value, but the programmer’s doesn’t because he created an information-good rather than a physical one. You are too caught up in the exchange of mollecules that you don’t realize that its often not about the “stuff”, but rather the way the stuff is arranged that has value. And that arrangement takes effort that, if people are expecting to receive payment for, should be paid-for.

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      • DanSanto says:

        All right. I don’t know if they will allow me to post all the links so I’ll put in just finding summary quotes and a basic references. You can look them up yourself. It’s called GOOGLE!!

        “Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates.”
        – UNC study, 2004, The Effect of File Sharing on Record Sales, An Empirical Analysis

        “The results suggest that internet piracy … can hardly account for the subsequent drop in 2002. ”
        – Univerisity of Mannheim, 2004, The Effect of Internet Piracy on CD Sales

        “the evidence suggests no discernible impact of download activity on legitimate sales.”
        – McKenzie, J. (2009), Illegal Music Downloading and Its Impact on Legitimate Sales: Australian Ampirical Evidence. Australian Economic Papers, 48: 296–307. doi: 10.1111/j.1467-8454.2009.00377.x

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      • DanSanto says:

        Whoops, that was to a comment down below. Hopefully they’ll move it.

        Kevin, congratulations on accusing people of saying things they didn’t and then bashing them for it. No, I didn’t say anything even remotely resembling what you claimed.

        No, it is not fine if AMD copies Intel’s designs. Nothing I said even remotely suggested that. Copying and using without rights can have costs and be crimes and all that other stuff.

        Information has value and copying it and using it without the right to do so can cause harm and it should be prosecuted according to that harm. Nothing I said suggest otherwise.

        However, copying and using the information is dramatically different than taking it from someone. Laws currently treat the copying and sharing of music/videos as identical to stealing physical objects – this is nonsensical.

        Laws against the illegal copy and use of music/video files should reflect the actual harm done by such actions. MANY studies have shown any such harm to be negligible, and in some situations actually beneficial.

        Setting up and knocking down straw men about AMD hacking into Intel is useless. Accusing others of supporting such straw men is ludicrous.

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      • kevin says:

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      • Peter Lange says:

        To Add my two cents…

        I can easily see the logic of the argument in terms of tangible property, and if we limit the definition of theft to tangible property, then yes, this argument is correct. What is being “taken” from the Intellectual Property owner is not a tangible asset, but a means of livelihood. By pirating Mozart’s 6th Symphony, we are depriving Mozart the ability to profit and make a living based on his own intellectual property.

        The problem isnt that a crime (morally or legally) isnt being committed, its that so many are hiding behind the terminology used to describe the act. When we speak of the theft of music via filesharing, what we are really referring to is the copying of protected intellectual property without license to do so. To pretend that is not what we are discussing and debate the merits of digital assets vs cows or corn or cars is to split hairs and avoid the true issue.

        In response to the questionable damage done to the owners of Intellectual Property due to copyright and patent infringement, many studies show that Lady Gaga and Metallica and Madonna will remain rich and ensconced within their mansions despite our downloading their latest track. No matter how often Transformers 3 is bootlegged, there will be a Transformers 4. This is absolutely true. The people who DEPEND on the income derived from their intellectual property are the small producers. They cannot afford the loss in margins that is due to infringement. If you want to live in a world where Lady Gaga and The Transformers are the best entertainment options available, then this is a great way to make that happen.

        Also, infringement removes the power of choice from the intellectual property holder. Again, not theft of tangible property, but still depriving the IP none the less. People usually argue that they wouldn’t have bought the music or the book or the movie anyway, so they aren’t really depriving the IP of anything. That is akin to saying you wouldn’t have tried to kiss my sister if she wasn’t passed out drunk on the couch so you are not really denying her the choice of who she kisses. The argument of infringement has little to do with your perceived value of the infringement but with the actual market value.

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      • Susan says:

        Its not about physical possession nor sharing a copy. This is about reducing earnings potential from a creative work. In my mind it is like copying a franchised McDonalds and not paying the fees to the franchiser. All you did was make a copy, right? Ha,

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      • Randomguy4815162342 says:

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    • Rene Hache says:

      The “spirit of the law” may be the same, but I think the key point is that economic value is not.

      This really insightful and funny Ted Talks video points this out very clearly: http://www.youtube.com/watch?v=GZadCj8O1-0&feature=youtu.be&a

      Essentially, the economic damage that the entertainment industry are parroting are borderline ridiculous.

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    • Mike B says:

      The whole premise of Intellectual Property is that ideas and works do not belong to anybody, they belong to human society as a whole. However to encourage their production creators are granted limited monopolies in various ways. When you download music etc you are not stealing, but infringing on someone’s monopoly. It’s more akin to running an unlicensed taxi service or selling your own food inside a stadium.

      By your definition the whole concept of the public domain is theft because it allow people to take things that doesn’t belong to them.

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  3. Jason Denenberg says:

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    • DanSanto says:

      That’s a very valid line of reasoning, one often put forward. However, as study after study has shown, the illegal downloading of music/movies is not necessarily a harm to companies.

      The facts are that quite a few studies that have shown either no net harm from illegal music downloads, or sometimes a net gain from illegal music downloads.

      Your reasoning is sound, but your facts are faulty. It may seem counter-intuitive that illegal downloading of songs can be a benefit to the copyright holder, but nonetheless, that seems to be the case many times.

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      • SGordon says:

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      • kevin says:

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      • DanSanto says:

        All right. I don’t know if they will allow me to post all the links so I’ll put in just finding summary quotes and a basic references. You can look them up yourself. There’s this marvelous little tool called Google you may have heard about.

        If someone is being harmed by the illegal copying and use of music, then there does need to be prosecution. However, there is almost zero harm in the copy/sharing of music, and what harm there is should not be prosecuted in the same way the theft of a bicycle is prosecuted.

        These are only four of scores of similar studies

        “Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates.”
        – UNC study, 2004, The Effect of File Sharing on Record Sales, An Empirical Analysis

        “The results suggest that internet piracy … can hardly account for the subsequent drop in 2002. ”
        – Univerisity of Mannheim, 2004, The Effect of Internet Piracy on CD Sales

        “the evidence suggests no discernible impact of download activity on legitimate sales.”
        – McKenzie, J. (2009), Illegal Music Downloading and Its Impact on Legitimate Sales: Australian Ampirical Evidence. Australian Economic Papers, 48: 296–307. doi: 10.1111/j.1467-8454.2009.00377.x

        “Two previous studies examined micro data of sales and downloads and found mixed results regarding the connection between file sharing and CD sales (Blackburn, 2004; Oberholzer and Strumpf, 2004). …. Based on micro data of CD sales and numbers of downloads, we found that there was very little evidence that file sharing reduces music CD sales in Japan”
        – Tatsuo Tanaka, Hitotsubashi Universty, 2004

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    • aepxc says:

      The argument was not that piracy has no costs or that it is not an unfair burden. The argument was that it has characteristics that make it qualitatively different from theft. The same way lying is not theft or murder is not theft.

      We SHOULD offer (and enforce) some protection to intellectual property. But we should not determine the level of that protection through false analogies to the theft of (rival) physical goods.

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  4. Brian says:

    This.

    While unauthorized copying is not morally pristine, it is very different than theft. Many try to make this a black and white issue by saying “copying = digital theft”, but they are really quite different things that should be dealt with differently.

    Every time someone says “torrenting is piracy” or “ripping DVDs is theft” I think they are either very ill informed or have an agenda.

    This will become more and more relevant as 3D printers make it possible in the next 20 years to make copies of physical items. So it will literally become possible to copy a bicycle.

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  5. Speed says:

    Music, videos and software is licensed, not sold. Re-distribution is a violation of the license agreement.

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    • assumo says:

      File sharing isn’t the only way people listen to music without paying. Cloud-based music servers, hosted audio/video (a la youtube), and internet radio are now ubiquitous. And there are some people who still pick up FM frequencies in their cars. And occasionally my neighbor plays really loud Reggae. You can’t stop people from listening to music without paying the lisence-holder. It’s our new reality.

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      • Peter Lange says:

        Both terrestrial and internet radio (as well as television and other forms of broadcast media) has to pay royalties for every song played. Its not free by any means. Occasionally, a hipper than average station will play a local band whose members are not a part of any union, but 99.99% every song you hear on the radio is earning a royalty for someone. To pay for this, the radio station charges advertisers for ad time on their station. You don’t pay anything directly for radio, but that is because the transaction is really between the radio station and the advertisers, you (or at least your attention and consumption habits) are the product.

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      • assumo says:

        I said that people listen to music without paying, not that “it is free”. You highlighted an important point: Capitol/Warner Bros./BMG don’t care who pays for music, as long as they get a cut somewhere. Technological advancements and the slow perfection of internet commoditization are going to make digital copyright infringement moot in a few years. Why download a song when I can stream almost anything, anytime I want. Everyone will benefit under that scenario, and it’s already here.

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  6. rationalrevolution says:

    Agreed, and I’ll go a step further.

    #1 When copying intellectual property for personal use it essentially the same as going into an art gallery and taking a photograph of a picture and taking it home and putting the photo of the picture on your wall.

    Are you stealing anything? No. And in virtually all cases, the person who does such a thing would NEVER have bought or obtained the original picture otherwise anyway, just as in the case of digital copying I’d say that most of what is copied for personal use is stuff that the individuals doing the the copying would never have paid for anyway, they would simply have done without.

    #2 If we are talking about copying for commercial purposes, i.e. illegally copying material and then selling it, that’s a whole different matter, and yeah, those folks do deserve to be treated like criminals.

    #3 MOST IMPORTANTLY, however, is the fact that yes, digital copying DOES have an impact on the profits of media companies and performers, BUT, its actually reasonable. The reality is that they were getting over paid in the first place due monopoly power created by technology in the first place.

    This is the real issue. The profits of media companies and performers has ALWAYS been LARGELY a product of RECORDING TECHNOLOGY, NOT of the work done by the performers or media companies.

    Prior to the invention of “moving pictures” actors were poorly paid. Even the best theater actors had relatively modest incomes and even the best theater companies and performers, had much lower rewards per the work they put in.

    The best gauge of this is probably “Buffalo Bill”, who was one of the largest and most successful acts that existed prior to and at the dawn of the motion picture era. Sure Buffalo Bill was successful and made a good living, but nothing compared to what would be had by later producers and movie stars.

    The fact is that the profits were always a product of technology and the law, and in many ways were always undeserved in the first place. If you could record and play back the work of an auto mechanic or a dentist or even a janitor the same way that you can record and play back singing and acting performances those jobs would become just as highly paid, if not more so.

    Think about it, if it were possible for a janitor to “record his/her work” one time, license it, and sell it such that anyone or any commercial entity could by a copy of it and have it clean their place, a single individual could easily become a multi-millionaire.

    What if it were possible for, say, a janitor to record his action cleaning a bathroom at McDonald’s and sell it too all McDonald’s franchises, etc. and license the replying of those actions, etc.

    That’s what we are really talking about, that’s how the media industry works. It;s recording work a single time (well however many takes it requires), then licenses the replaying of that work, which is now fully automated.

    It just so happens that entertainment is one of the easiest things to record, whereas other forms of work are much more difficult to record.

    So really, what makes the media industry so profitable is the fact that are selling the easiest form of work to record and play back due to the realities of technology.

    Their profits have always been a product of controlling the technology used for copying and playing the recordings. Computers took that control away, their control over the technology in the first place was always an inefficiency to begin with. Not to mention the fact that none of this control is “natural”, its all been a product of the legal system.

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    • Jack says:

      #1, It seems ludicrous, to me, to assume that ‘virtually all’ people would have never bought the item in question, anyway. It doesn’t take a lot of common sense to see that some people would have never bought it and some would.

      The industries numbers are probably inflated by assuming that every person would have bought it (and at full price, no doubt) so I think it’s fair to point out that some people would have never bought it. But it’s just as disingenuous to say that virtually no-one would have bought it. The truth lies in the middle, somewhere. But then, if you agree with that, we are no longer arguing whether the industry loses money, we are arguing how much.

      #2, I can see where that might make sense if you thought the industry lost no money. But if they lose any money, I don’t see how you can draw such a distinction between people who resell and people who don’t. They are both criminals, in my mind, because they both are breaking the law. If they want to have a different set of laws to cover these criminals, that’s fine but they are clearly both still criminals.

      #3, I am afraid it isn’t up to you to decide what is a reasonable amount of loss the industry should suffer, nor is it up to you to decide that actors are overpaid. They are paid what the market will bear so they are, by definition, not overpaid, they are paid exactly as much as we are willing to pay them. Except, of course, for those people who choose to steal from them, rather than pay them.

      Yes, I use the word steal because it is taking someones property (even if it is intellectual property) without their agreement. Should there be different laws for intellectual property theft, I don’t know. But intellectual property is still property. Capitalism is founded in the idea of property rights, which illegal downloading is clearly a violation of. Without going into the purpose of having property rights in the first place, illegal downloading is just as much a violation of those rights as any other, including theft.

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      • aepxc says:

        >>But intellectual property is still property.<<

        That is a bit like saying that spaceships are still ships. Whether an economic good is rival or non-rival is a very big and important distinction. As a result, the most fair and efficient treatment of IP is something that needs to be analysed from the ground up, and not by drawing false analogies to something that it is NOT ANALOGOUS TO.

        The design of the free-market, capitalist system and the importance of property rights to its success did not magically appear on golden tablets. It was figured out by reason and analysis and evolved through experimentation. Much of this development occurred when the economy consisted almost exclusively of rival goods. Now it does not. We must advance the state of the art to reflect this.

        Progress means abandoning previously successful systems when the situation changes and/or something better is thought up. It's why we don't have the Ancient Egyptian system of political economy in the US today…

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  7. Jon says:

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    • DanSanto says:

      Jon, let’s pull apart a particular part of your comment there:

      “but not … to minimize or dismiss outright the impact of massive copyright infringement.”

      Pray tell, what exactly do you think that impact is? Obviously you think it is extremely harmful, depriving the copyright holders of billions of dollars.

      In this little place we call reality, that is simply not true. Not even close. In reality the net effect of illegally downloading music and videos is usually a net zero. In fact, the opposite is true at times.

      As counter-intuitive as it may seem to you, in many situations the “impact of massive copyright infringement”, as you put it is a net positive to the copyright holders.

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      • Kevin says:

        You seem to have a very narrow focus of the issue, DanSanto. You’re saying that “because the producers aren’t losing as much money, its okay”. Well… first off, that’s bunk. There’s no data either way because you can’t release a song without piracy and then with piracy and compare the revenues. The fact is: you don’t know what the revenues would be without piracy.

        But… lets look at this from a different angle because there are other forms of copying than simply for personal consumption. What about a book. Music can make revenue off concerts, movies make revenue off theater, but books only make revenue from sales. I suppose you could do some book-signings, but basically you’re saying that authors don’t deserve to be paid.

        What if someone took the copyrighted characters in my book, and wrote their own story with those characters performing sexual acts on children. Or, what if I wrote a song, and a free online porno series decided to make it their theme song. Do content producers have no rights in your twisted worldview?

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      • Oleg S says:

        We should not make laws just on economic impact. And that’s not what the article was about. The article is very clear in terms of the need for protecting the work of content producers. And that need remains regardless of the economic impact.

        The point of the article was, which legal mechanisms would provide this protection best. Clearly, the current ones based on theft do not provide this protection well enough, exactly because we keep having heated debates like this one, bringing forth arguments that are at best tangential to the issue. In these debates, both sides are right: yes, it is wrong to copy without permission, and no, it is not theft, it is a different kind of wrong. If both sides of the argument can be right, it means that the concept being discussed is defined in a wrong way.

        And that’s exactly the point that the article made, very eloquently.

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  8. Ken says:

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    • EricT says:

      If I steal your car, you call the cops. If I could copy your car, you wouldn’t care. You might even help me do it, just to be neighborly, as file sharers do.

      So who gets hurt? The auto manufacturer who loses a sale? Not likely.

      If I can simply copy a car for free, I’m going to copy *any car I want*. Price becomes no object. I’m going to have a McLaren F1, not a Ford Fiesta. When McLaren cries foul and says I cost them a million dollars, they’re abusing the word “theft” the same way Hollywood is.

      I could never afford a McLaren. I’m not costing McLaren a penny when I copy their car. I’m costing my local used car lot a sale, or someone on Craigslist, or an auto manufacturer who makes cars in my price range.

      Similarly, when I copy Adobe Photoshop CS5 Extended, I don’t cost Adobe a penny. I’m not a professional artist, I don’t need $800 worth of image manipulation software. If I couldn’t copy Photoshop I’d make do with lower cost alternatives. It’s *those* vendors who get hurt. In fact, by choosing Photoshop I’m *helping* Adobe, by helping starve out their competitors and by perpetuating them as a de facto standard.

      So what would it mean if Adobe claims my piracy cost them $800? It’s utterly nonsensical. What does it mean when Hollywood says piracy damages the US economy as a whole, rather than just moving the money somewhere else? Just as nonsensical.

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      • Ken says:

        I made no point about morality or damages. I just said Professor Green mistakes what is stolen.

        One might describe ideas, songs or the design of my Honda Accord as “economically non-rival.” That’s simply not true of copyrights, patents, trademarks.

        I doubt you’d be such a helpful neighbor were I to copy the final draft of your unpublished novel, the digital master of your band’s unreleased album or plans for the super-efficient engine you just invented.

        If I did so without your permission, I think you’d probably call me a thief.

        The idea that copying is never theft is as ridiculous as that it always is.

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      • Tom says:

        My car is now worth zero. That’s what you did to my car. It has no value. One the cost to copy is zero and there is no need for any level of permission from the designers of that car, there is zero incentive to make new cars.

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