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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COMMENTS: 104


  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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  9. Aaron says:

    Nice post. Even though piracy prevents an artist from profiting from what would have been that transaction, (downloading a song instead of buying it) they benefit from the exposure which could lead to future song purchases or ticket and merchandise sales. There is an interesting study in there somewhere.

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  10. kevin says:

    I am disappointed in this blog. For people who I normally consider fairly clever, you totally dropped the ball on this one.

    There are two types of property – there is physical property and there is intellectual property. Neither property is typically inherently useful to the producer except in its value for trade. For example, a farmer spends his time and effort growing vegetables, which produces a good that can be sold to sustain himself. An ENGINEER spends his time and effort designing a new CPU. In his case, the time and effort involved has produced a purely information-based product: a design.

    Your argument is that because the FARMER produced corn, stealing that is a crime. But stealing what the ENGINEER produced (the CPU design) is just fine because its only information, and he still retains a copy of the information for himself. But you’re ignoring the fundamental fact that the reason why he produced the design was to sustain himself. By making his design publicly available for free, you deny that to him. Why? Because most of the cost of a processor is in the design. The actual cost to produce an Intel CPU is under $10. Why does it cost you $200? Are they just scalping us? No! Because the real value of the CPU is in the design, not the materials used to create it. You have to pay for hundreds of thousands of man-hours of highly-skilled labor to create that design.

    You also dissuade further progress along such lines, and thereby stifle technological progress. The reason why civilization has gotten so productive is that we’ve intensely specialized our workforce. This is because individuals working on very specific problems become better at solving those types of problems. (its a depth versus breadth issue). By making something like CPU design unprofitable, you’re leaving it up to hobbyists who have day-jobs.

    Now you’re probably going to argue that there’s a difference between intellectual property like a design, and music or movies. But there isn’t a difference. Its still theft. Perhaps not theft of the physical movie or music itself, but theft of the resources owed to the artist or designer that they are owed to sustain themselves. That is, it *IS* a zero-sum game. While “copying” allows more than one thing to exist (1+1=2) , the consumer keeps his money and the designer isn’t paid (1 -1 = 0). You are blind to the reason why the producer produced the content. Much like the farmer who grew more corn than his family can consume, in order to sell it, he __does not care__ about the corn. He can’t use it. His family can only eat so much. The reason why stealing it is bad is because he produced it, and intended to sell it and make money from it.

    The same goes for intellectual property.

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    • Travis says:

      For someone who appraises themselves as clever, you do a poor job of differentiating between Copyright (the issue presented in the article) and patents (the issue with the “engineer” you talk about).

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    • m.m. says:

      Right on, Kevin.

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  11. Don says:

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  12. Matt says:

    IP is mercantilism. It is the creation of an artificial monopoly. Philosophically, it is not the same as real property and should not be treated as such. A true right to property does not expire. Its transfer is supposed to only occur with voluntary exchange. If IP is legit, why does it expire? Because no one should be able to exclusively own and heir a monopoly over the wheel or any other ‘idea’ for that matter.

    Without IP, it is not as if artists would not make any money, the business model would simply be different. There would be perhaps more focus on live performances rather than album sales, where allowing music to be downloaded for free acts as advertisement for those live performances. Perhaps there would be added incentive to create better protective technology if an artist chose to go the route of ‘selling’ albums rather than live performances.

    You can’t compare a world without IP to one that was created under it. The question should be dealt with at the philosophical level first to determine if this claim is legitimate. I find the argument for its legitimacy to be lacking.

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  13. m.m. says:

    Can’t we just call it a crime?

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    • Travis says:

      But it’s not a crime. At best, the closest analog is a property tort. “Crime” implies that there is a victim, which implies that there is some significant personal or economic harm.

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      • m.m. says:

        What are you talking about? It’s enumerated in the CONSTITUTION. For US law, it doesn’t get any more bona fide than that. Congress was explicitly empowered to protect IP rights, and congress went ahead and did that with the current laws we have. The founders clearly didn’t want to just protect PHYSICAL BOOKS from improper use/taking (as they would, say, horseshoes or fine wooden chairs), they explicitly wanted to protect IP RIGHTS from improper use/taking.

        If you don’t like it, tough, but the fact is that IP rights have nearly as much standing as the rights to speech, assembly, bearing of arms, etc. Power granted to congress, power exercised by congress, violation a crime.

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  14. rationalrevolution says:

    Also, note that the media companies never made these arguments about “licensing” when things worked to their advantage.

    For example, when records were replaced by 8 track tapes, then replaced by cassette tapes, then replaced by CDs, the studios never said that owners of records were able to get copies of the same content on new media as reduced prices.

    It’s not like, if you bought a Jimi Hendrix album on vinyl, then wanted a 8 track, that your purchasing of the content on vinyl was considered licensing rights that were already paid for, and thus you were able to get the 8 track for half price or anything.

    So, it’s just another case of selective inconsistency. In the past, when physical ownership of media benefited them, they didn’t talk about licensing, they talked about ownership of the physical media. If you wanted a new copy, you had to pay full price for a new copy on physical media, the notion that you had already acquired the “licensing rights” upon the first copy of the media was never considered.

    Now that the shoe is on the other foot they decide to raise a stink. They would have a much better case if they hadn’t taken advantage of the situation previously….

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  15. Richard Weisberger says:

    Hidden due to low comment rating. Click here to see.

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    • Travis says:

      Theft, as defined as larceny in many states, requires the intent to deprive the owner of possession permanently. So, if you use someone’s car at night and return it in the morning, no, you have not committed the crime of larceny (theft).

      You may have committed some tort, trespass to chattels, probably. But not the crime of theft.

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  16. jonathan says:

    I always hope a law professor does more than advocate. The op-ed is, unfortunately, just that: a one-sided argument that intentionally lays out a case while making it seem there is no other argument possible. That’s appropriate for a courtroom but not for public debate.

    Another truth is that all laws regarding ownership and payment for literary and other artistic creations descend from the mass piracy of the past. It was common for thieves to print their versions of texts and for that to devolve into legal warfare. Many of these pirates pretended to be the real version, even stealing marks of authenticity. These pirates operated for their own gain. That is the point: if you share music and get something for it, then you are a thief in the old sense of the word. File sharing services reward sharers with points and direct payments, meaning they pay for you to put up stuff that others download. Megaupload, for example, paid people whose accounts downloaded a certain amount. This is common.

    That is not the same as criminalizing the downloader. That’s not the same argument at all. That argument is like restricting alcohol: you can only buy from a government store or can’t buy at all but you circumvent those rules when you can. If you live in MA, you illegally bring liquor in from NH without paying sales tax and so on. Those laws aren’t about theft at all. They are about the choices of a society to impose whatever moral restrictions it chooses to impose and then its ability to enforce these.

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  17. Nick says:

    I think this video misses some of the nuances of this issue.

    As a software developer, I have the choice of distributing software for free or charging for it. There are cases when one of these options makes more sense than the other. I benefit from free software from the recognition that I may achieve. I benefit from commercial software through my paycheck. Copying my commercial software, if it precludes a future sale to you, is theft (you have robbed me of the option to sell you software). Theft of an option is still theft (the option value may be much lower than the value of the thing that was copied). This applies more directly to software, I think, than to music.

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  18. Toothy says:

    Of course it is theft!

    What you are stealing is the money that they could have made by selling the product that you are “sharing”.

    Now there is no question that the industry grossly exaggerates their losses and the rules and regulations that they try to impose are far more damaging.

    But then to go out there and try to claim with straight face that is not theft is not helping any cause. It only helps to radicalize the inustry.

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    • Travis says:

      So, if I protest a company and stand in front of their storefront and turn away their customers, is that “theft” too?

      Economic losses are not something traditional recoverable, particularly when they are purely speculative. The “loss” from piracy is always a speculative economic loss.

      There is no way statutory copyright infringement can even be analogized to theft, as is thought of deriving from hundreds of years of common law larceny. Theft has several elements, most of which can not be met when it comes to copyrightable property. Primarily among them is the requirement of asportation, and the intent to deprive the owner of possession permanently.

      Call it what you want. But by calling it “theft” is intellectually and morally dishonest. It’s a statutory infringement that has a grossly over-stated penalty. That’s all it is.

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  19. SGordon says:

    ….

    First bit of irrelevance:

    Semantics, shmeshmantics.

    You can look at it two ways:

    1. No, it’s not technically “theft” is the traditional sense of the word. So what, so use another word. An artist is still being denied their right.

    2. Language is ever-morphing, and words take on new meanings over time. After all, “file-sharing” is not an appropriate use of “share” either – when you share something, you have to give up some of what is yours to another. It involves altruism. Copying isn’t even remotely sharing. But words take on new meanings. So to say it’s not “theft” is a bit like calling someone a “gay queer” and then insisting that all you said was that they were happy and kind of strange, because gee, that’s all that those words mean.

    All sematic issues aside, though, the larger point – the only thing that really matters – is that the artist is still losing. Who gives a crap what it’s called? To debate language is a distraction.

    —-

    Second bit of irrelevance:

    All the arguments of the past – those that were brought up when cassette tapes were introduced, for example – are irrelevant as well. Just as the meanings of “theft” and “share” are different in 2012 than they were in 1972, so is technology. We now have the ability to make lossless (or near-lossless, for the technophiles who will debate that nothing is truly lossless) copies of something. Even the first generation of a record-to-tape or tape-to-tape or VHS-to-VHS copy produced significant degradation, to the point where an average consumer could easily tell the difference. There is no comparison between a copied VHS and a digitally copied DVD. The former were siblings, the latter are clones. The former is a wavelength on a physical medium affected by the elements and time. The latter is a series of ones and zeroes. Copy them in sequence, and you have an exact lossless replica. But most importantly, the former was not a product a significant number of consumers found to be an acceptable substitute for the original. The latter is.

    —-

    Third bit of irrelevance:

    Whether the copier makes a profit (selling bootlegs) or is simply “sharing” online. Irrelevant, from the perspective of the artist. Either way, they’re being denied their rights and royalties.

    —-

    Fourth bit of irrelevance:

    You may not think that “intellectual property” truly exists, but guess what? It does. It’s a thing. That thing may be an abstract concept, but it’s an abstract concept with value to many, many people, be they inventors or songwriters.

    The only people who think intellectual property is valueless are, honestly, people who’ve never created anything of value – even if only value to themselves – in their life. Frankly, I feel sorry for them. It must suck to go through life feeling the products of your own mind are – quite literally – worthless.

    —-

    Fifth bit of irrelevance:

    To all of those who bring up the tired old arguments about how they saw this study somewhere that showed it could be GOOD for artists or whatnot…. you’re also missing the point.

    It COULD be good for me to make my music available for free online. Maybe. I don’t personally think so in most cases, but maybe it would be. Maybe you’re right.

    But plain and simple – you don’t have any right to make that decision for me. Just because you bought a copy of my album or a DVD of my film doesn’t grant you squat but the right to enjoy watching or listening to it. You can’t use a story I wrote as the basis of your student film just because you bought the book. You can’t use a song I wrote in your Buick commercial just because you bought the CD, and you can’t make copies of it, either – be it one copy on a mix CD for some girl you’re trying to impress with your awesome musical knowledge or a million copies for a million anonymous internet users. No one has the right to decide what should be done with my creative output but me, or any potential investors who aided me in bringing it to fruition / market. No one else. Is that concept so mind-bogglingly hard to understand?

    IT DOESN’T MATTER if I’d make more money doing it another way. If I’d make up the loss in concert tickets or merchandise sales, or whatever. It’s my right, as the creator of something, to do what I damn well will with it – to my own profit or detriment. I could, like Jerry Lewis, make a movie and then shelve it simply because I didn’t want anyone to see it, for any price. Or I could, like Larry Clark, make a movie and then make it available for free download online so that everyone can see it free.

    But YOU…. you didn’t create anything. You get NO rightful input into the matter. None.

    —-

    Hot debate. What do you think? Thumb up 11 Thumb down 10
  20. Ahn says:

    “Copying is not theft” does not mean whether it is crime or not. Self defense is not murder. Also, manslaughter is not murder. Does “A is not murder” implies A is less serious than murder? Yes. Does it tells whether A is crime? No.

    But, like this post points out, copying is (if it is theft) very strange type of theft. Copying a music to a thousand people never hurt music company much like stealing a truck of CDs (and selling at lower price, of course). So, let’s agree to ‘different’ part, and then talk about its criminality.

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  21. Scott says:

    Please also apply said logic to drugs/pharmaceuticals and genes!! Allow generics, and not sue ppl who happen to get monsanto seed blown onto their property.

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  22. Kate says:

    Yeah, it’s not a huge problem that hurts the originator now that it’s illegal, but make it legal and things will change. You will find that now there will be confusion on who really created the work, whether art or cpu design and that will hugely hurt the owner – look at the inventors that didn’t get credit for their major works.

    And sometimes stealing a tangible object helps the prior owner, such as stealing his horse relieves him of having to feed it. So what?

    It’s intellectual property that’s being stolen and that has different properties. I’m not sure why different properties means that the total use of it (such as clear public knowledge of who was created it) is hard to comprehend and hard to honor.

    You can steal something that someone wasn’t using too, perhaps like semen and that doesn’t mean there’s a different morality to taking it.

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  23. Travis says:

    How do so many people in the comments not understand the difference between copyrights and patents?

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    • phil says:

      It’s actually a really difficult subject muddied by the industries with an interest in protecting profits obtained by said muddying. Most people simply view IP as one big puddle.

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    • m.m. says:

      Because it’s all Intellectual Property. Perfectly intangible assets that can be duplicated without diminishing the original. From the functional argument of “theft”, there is zero difference between unlawfully copying a music file or movie, unlawfully copying a drug patent or machine design, or unlawfully copying a trademarked image or phrase. Doing so does not deny the originator of said idea of the use of said idea.

      That said, improper duplication/use of ANY of them is still illegal. Your concern about the distinction between them is irrelevant.

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  24. assumo says:

    I think a good topic of discussion for freakonomics would be the actual economic impact of file sharing, both legal and not. I think the presence of digital files containing music is going to impact CD sales no matter what, but to look at that statistic exclusively misses some important nuances. If I were doing research on the topic, I would posit that digital sharing actually increases a person’s propensity to support a band or label through other means, such as purchasing concert tickets or merchandise, or even buying a CD for the artwork or sound quality. Furthermore, the ability to take large libraries of files anywhere has led to incredible exposure to music over the last decade. Peer to peer file sharing isn’t even the most prevalent way to access these files anymore. Cloud-based servers, Pandora, Youtube, and countless other sites are far more common. Some of these instances of access to music are legal, some are not, but the effect is the same: music is being shared, collectively judged, and enjoyed. Artists are still creating, the masses still are listening (maybe now more than ever), and the major conglomerate labels are still finding a way to fleece everyone.

    P.S. There is another medium with which people can listen to music without paying for it, which actually helped turn music into a viable industry at its inception. It’s called the radio. I’m sure people were wary of giving music away for free back then too, but it was soon realized that playing the songs is a form of advertisement for the musicians, and since people like music, it led to other advertising opportunities for the stations (see: internet radio).

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  25. Labi Siffre says:

    Hidden due to low comment rating. Click here to see.

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    • phil says:

      Actually no, you can’t make two of me to share at the same time. You can only share a percentage of me at the same time. Not the same thing. However I could copy your statement over and over using cut and paste and the original one would still be there.

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  26. Imad Qureshi says:

    So, Mr Stuart Green became a law professor and he probably doesn’t know the difference between public and private goods.

    I am sure he wouldn’t mind if the University records his lectures and starts an online course where his lectures will be played but any questions by students will be answered by a cheap TA, probably not even his own TA.

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  27. phil says:

    Hidden due to low comment rating. Click here to see.

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  28. Gabe says:

    “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. ”

    If someone illegally downloads your song without paying for it, he still has his $10 (that would have been used to purchase it legally), and you don’t.

    I’d like to see someone make a cogent argument that digital piracy is really any different than shoplifting.

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  29. sao says:

    It seems to me that illegal file sharing have many more parallels than only to theft. I live overseas and belong to a English language book club. Books can be hard to obtain. Some people buy e-books from Amazon and read on their Kindles. Some people buy the physical book and lug it home in their luggage. Others, particularly the locals who don’t have Amazon accounts or frequent trips to places where English is the main language, borrow the physical book (perfectly legal), borrow a Kindle and read the book on the borrowed Kindle (perfectly legal) and some illegally download a copy (theft) or don’t read the book.

    Note that there is no economic difference to the author/creator for these different options. But two are perfectly legal and the last is both illegal and, we are often told, a heinous moral crime. That idea is a hard sell, particularly in parts of the world where internet access is good, but access to legal purchase options or the cash to pay US prices are readily available.

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  30. Jeff Yablon says:

    Difference without a distinction, boys.

    Sticking to a very specific legal definition, you have a valid point. But whether you call it “theft” or something else, if you deliberately lay your hands on (even intellectual) property knowing that you were supposed to pay for it, you’ve robbed someone of revenue.

    Is it the copyright holder or creator? Not necessarily, and if they have representation not even likely. But c’mon; your argument is specious, and intentionally so.

    Neil Yound recently and wisely stated that “Piracy is The New Radio”(http://answerguy.com/2012/02/03/neil-young-elvis-costello-pirate-music-business-chang/), and if you’re an artist it makes way more sense to adapt than fight. But you guys … this nonsense belongs on a law blog—not at Freakonomics.

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  31. Shelley says:

    i don’t know if any of you saw a picture that was running around on Facebook about a murder getting 20years in prison and the owner of one of these file sharing sites getting close to 50 years in prison is just stupid

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    • SGordon says:

      You’re absolutely right – the murderer should have gotten a longer sentence. But that’s a matter for a different thread.

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  32. Max says:

    The traditional sense or definition of stealing was formulated and ingrained in the human psyche long before the ability to record an artisic performance was ever thought of. Let alone the ability to effortlessly copy that recording and distribute it. The creator of copyrighted material has an investment to recoop, and hopes to make a profit (aka a living) from that material thereafter.

    While copying and distributing (yes, giving is distributing) a copied recording may not be stealing a tangible thing, it is theft of the copyright owner’s right, opportunity, and ability to sell the intelectual property.

    Yes, I know this is an old argument, but it needs to be drummed into the heads of those who think the pirating of intellectual and artistic property is not theft.

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  33. Rick says:

    Well. . . let me take a try at this. When someone illegally downloads a movie, song or software, that person gets the item for free.

    What is being stolen from the creator is profits, which are the engine for innovation. The person downloading the item for free stealing profits from the creator. When less profits come in, in theory, the person creating the item is less likely/able to create new products.

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  34. Rob Dean says:

    This article is correct, to the extent that it is not theft in the traditional sense (zero-sum theft of tangible items).

    The key issue is the ‘opportunity lost’. That is, if you copy/download INSTEAD of buying, then it IS theft. If you would NOT have purchased the item otherwise, then it is NOT theft.

    Secondary issue: With songs, you may actually benefit the IP owner by playing the songs and introducing new listeners to the music, who then purchase the content. This could take place with movies, but is much less likely.

    So, it may or may not be theft depending on the lost opportunity for sale and it may be free advertising.

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    • Oudeicrat Annachrista says:

      Your argument proves too much. By your logic ANY competition would amount to theft, because if you compete with somebody, their “opportunities for sale” get decreased in comparison with a situation where they would be a monopoly. As a direct result of your action they’ll make less money. But this is not theft because you don’t own your “opportunities for sale” nor your “potential profits”, they don’t even exist, they are not real, they are just a metaphor, a figure of speech – the same as ideal objects, arrangements or patterns.

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      • SGordon says:

        Hogwash. To suggest that others are suggesting that ANY competition is theft is either ludicrous or disingenuous. Of course we’re not suggesting that. There’s fair competition, and unfair competition. It’s not rocket science.

        We have hundreds of laws to prevent unfair competition – we have antitrust laws, laws against misappropriation, trademark infringement, libel, predatory pricing… and, in this case, copyright infringement. Now, you may not LIKE those laws or think it should be like the Wild West out there, but they ARE the laws.

        The law DOES grant a kind of “limited monopoly” on certain products – not an entire genre of products, mind you, but specifically unique ones for a period of time. Any company can sell fans, but Dyson is the only company that can sell the Dyson bladeless fans, until the patent runs out or they choose to sell or license it. If someone copies their design and makes millions of Dyson fans and gives them away for free, Dyson didn’t “lose” their existing fans sitting in a warehouse, but they did lose the ability to sell them, into which they invested millions. It would discourage Dyson from continuing to innovate, because there’d be no purpose investing millions into R&D on a enw product when someone could come along and give it away for free.

        To bring it back to copyright… Bruce Springsteen is the only person who can sell Bruce Springsteen Music, unless he grants a license to a label to distribute it, or to a band to record a cover of one of his songs, or whatever. If someone gave away “Greetings From Asbury Park” for free, and The Boss didn’t make a dime on it, he’d be working in a bowling alley today talkin’ about what could have been and never would have gotten around to writing or recording “Born To Run” or “Nebraska” or whatever. Yes, copyright and patent are somewhat different animals, but the general purpose behind the laws is the same: to protect creators. To grant them time-limited monopolies during which they can profit off the products of their intellect and creativity so that they might continue to create / innovate.

        It’s perfectly fair to create your own competing product, as long as it doesn’t infringe on anyone’s IP or copyright or trademark or any of the other things our government has chosen to protect, and then sell it for a lower price or give it away. Making a competing product is not the same as making an identical copy of something.

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      • Oudeicrat Annachrista says:

        A reply to SGordon’s “To suggest that others are suggesting that ANY competition is theft is either ludicrous or disingenuous. Of course we’re not suggesting that.” (April 4, 2012 at 12:06 pm):

        It’s a logical conclusion of an argument that claims that copying is stealing (or wrong) because it’s lowering the “opportunities for sale” or “potential profits”. If an action that results in reducing the opportunities for sale is theft, then also any competition would be considered theft by this argument. Yes, it’s ludicrous, but that’s because the premise is ludicrous.

        The rest of your post is a circular argument.

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  35. Jason Love says:

    Great article. Wish it was longer. Are you going to do more on this topic?

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  36. Byte says:

    Where it says above “does not belong to you”, this should read “does not belong to you right now”. Because all that which is published, eventually belongs to all of us, which happens when the copyright expires and the work enters the public domain. In the long run, every “illegal” copy becomes a “legal” copy, it’s just a matter of time.

    Even in this day and age, physical goods stolen e.g. during World War II, in the 1800s from colonies, are being returned to their rightful owners.

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  37. Oudeicrat Annachrista says:

    “good moral reasons not to take what doesn’t belong to you” – when you copy you don’t take anything, nothing gets moved or transfered, no new property title is created and you don’t suddenly have one more “belonging”. When you copy you only rearrange your own property.

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    • Dave Andrews says:

      When you copy without righfully paying, you are, in fact, taking something away from ALL of those who DID pay for the item. You’re getting something you didn’t earn and was not gifted to you from those who put So much time, effort and money into creating it. Society can’t work that way. When you take something you didn’t earn (such as a license to view copyrighted material you don’t have the right to), you damage ALL of society.

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      • Oudeicrat Annachrista says:

        This “thing” you allege I’m “getting” does not in fact exist. Where is it? What is it? It’s just a metaphor, a figure of speech, it’s not a real existing thing that can be really “owned”, “taken” or “created”.

        Second, society did and still does work that way. In fact, society can’t work WITHOUT copying, imitating and learning.

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  38. Malcolm Hume says:

    There is a difference. Copying is morally worse than stealing. Stealing means something is valuable. Copying makes the original worthless, and makes the work of others a joke.

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  39. Dave Andrews says:

    Cute video and technically it’s correct. Copying is not the same as stealing because the original owner still has 100% of what they started with.

    HOWEVER, that does not make it right. Millions of millions of dollars go into the productions that people copy. If everyone copied this content without paying for it, it would mean that the company had no money to ever make another production. The only reason they survive is by people paying for their copy.

    It’s not right for honest people to pay for someone else to go take something they didn’t pay for. The honest people pay for the content provider to stay in business while the “digital pirate” takes, making honest people have to pay more than their fair share. That pirate is hurting all honest people as much as he’s hurting the company he’s unfairly taken from.

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  40. Kumar says:

    it’s not the same as stealing material property from someone, but it is like stealing hard cash. It is cash that would have been in someone else’s pocket, and not yours, but is instead in your pocket instead of theirs, by way of the action of downloading music.

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  41. Skip Montanaro says:

    Peter Lange wrote:

    “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.”

    You made the tacit assumption that while digital copying of Lady Gaga’s, Metallica’s or Madonna’s music would have no effect on them (positive or negative). That may be true. After all, what’s one or two bazillion bucks between (rich) friends? More importantly, you assumed that digital copying of the intellectual property of a so-call “small producer” will harm that producer. That may or may not be true. You don’t know. Neither do I.

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  42. WinslowWong says:

    I am so glad the statute of limitations has passed so that if I HAD recorded all those albums and songs free from the radio to that POS casset recorder I’d be able to sit back today and thumb my nose at the RIAA.

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  43. JGD says:

    If the thief steals your car, you still have fond memories of Sunday drives in the car, plus, you will stay at home more in the future, lowering the risk of being killed by a drunk driver who crosses the median. Bottom line: if the thief steals your car, he’s prolonged your life.

    If someone copies your song, it makes you think the song is more popular and encourages you to play it over and over again until you drive your roommate to throw you and your iPhone out the window. Bottom line: someone copying your song has shortened your life.

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    • Dave says:

      If you think copying is not stealing, you have at least in my mind never created anything that could be copied and therefore “stolen” from you or you would appreciate the concept more. If you create something it should be your choice as to whether to give it away or sell it. If I take it without paying for it, then I have stolen that choice from you. Yes, whatever it is (song, digital photograph, movie, any other digital media) you still have a copy, and in that the “cute” (and I mean that with full sarcasm) video is correct in that I have not harmed you in that way.

      Me copying a song that you have downloaded doesn’t hurt you, and doesn’t hurt me. I have a copy, and you have a copy. That’s where the video stops. But the problem is the situation does not end there. By taking a copy of the song from you I have not stolen anything tangible from you, but I have robbed the original creator of that content of the choice as to how their creativity should be distributed.

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      • LC says:

        You don’t HAVE a right to prevent dissemination of information. You put that content into the public sphere by selling it TO THE PUBLIC.

        This is not a private sex tape, but something you’re selling publicly.

        Take a law course.

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  44. John Grady says:

    Illegal downloads are not “theft”; they are “plagiarism”.

    I wonder how much of a non-zero-sum game it would be if I stood in front of a bookstore distributing bootleg copies of Freakonomics at cost. The bookstore gets to keep their copies, and everyone who wants to read the book has copies. Just like in the video, everyone is happy, right?

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    • SGordon says:

      No, they’re not plaigarism. Plaigarism is when you try to pass off someone else’s work as your own. File-sharers aren’t doing that.

      That said, you can call it “theft” since you are stealing royalties from someone. Or you can call it “copyright infringement” if you’re uncomfortable using the word “theft” for whatever reason. Either way, you’re screwing someone over.

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      • John Grady says:

        … hence the quotes.

        Yes, the technical term is “copyright infringement”. However, the point that I was getting at is that file sharing is closer to plagiarism -as in taking advantage of other people’s creativity- than theft -as in taking something from someone.

        While a good deal of file sharing is for free, there is a significant portion of it that’s for profit. Either by directly selling bootleg CDs on the street, or advertisement on a torrent site, to selling copying software and hardware. While it’s true that they aren’t claiming it’s their original work, they certainly are copying verbatim the thoughts and ideas of an author, and then profiting from it.

        Look at it this way: if you turned in a term paper that you’d copied from someone who did the class last semester, you would be accused of what? Now, if you add at the end, “… copied from John Jones’ paper” does it suddenly stop being plagiarism and you get an A? Because, technically, that’s not copyright infringement, either.

        Which leads me to agree with you: either way -semantics or rhetoric- you’re still screwing someone over. But, since file sharers are getting free stuff, they aren’t complaining.

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    • LC says:

      It’s completely different.

      And that’s not even the definition of plagairism…

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  45. Voice of Reason says:

    Maybe we should stop file sharing when the artists stop using auto-tune and lip-syncing during live concerts.

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  46. Jim in Frankfort, IL says:

    It’s a crime even if you don’t want to call it theft … it’s pretty clearly covered by intellectual property laws. Apple would be pretty ticked off if you bought one of their manufacturers in China and started cranking out copies of the iPhone under a different name … but by your definition it’s ok because they haven’t ‘lost’ anything.

    Copying a song illegally IS theft and it is rival. If you obtain it legally the owner has the purchase price of the copy, if you get it illegally they do not. Even theft of $0.99 is still theft.

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  47. GLK says:

    In days of antiquity I’d buy a record and play it until I got tired of it then loan it to whomever wanted to borrow it. Then tape recorders came out and I’d make mix tapes for myself and I’d make one for whomever wanted a copy. For years this behavior mirrored virtually everyone I knew. I guess according to many pious do-gooders we should all be in jail for our callus disregard of the revenue stream, eh?

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    • John Grady says:

      Well, yes and no. There is a bit of a slight distinction between “old” sharing and internet sharing. The old sharing was done privately -you made a mixed tape in your home and then gave it to a girl you were trying to hook up with. Technically, that’s copyright infringement, but since you did it in the privacy of your home, and in the privacy of your conversation or contact with your intended sweetheart, there was no way to enforce that. So, while we can debate the morality of it -and that’s the point of having a separation between the Church and State- legally there was nothing to be done. No one would even consider letting record companies search your house trying to find mixed tapes.

      The internet, however, is a little different. While your computer is in your house and private, the internet -and the communication you have with your computer through the internet- is not private at all. So, while copying your CD onto an mp3 player is equivalent to the old style sharing described above (as in, it’s done in the privacy of your own home, with our own devices), and you can therefore get away with; the internet is not. Making something available through a file-sharing programme (like a torrent file) is not privately sharing a file, that’s “broadcasting” something publicly. Anyone with a torrent programme can take that file, so it’s no longer a private interaction. The “old school” equivalent would be standing on street corner hawking bootlegged tracks -which everyone recognized as illegal.

      I think part of the problem here is that people don’t realize that the Internet is public, even though you are sitting in the privacy of your house while you’re using it. Therefore, public rules apply on the internet -not private ones.

      Also, the copyright debate has polarized to extremes: on the one hand you have the users who are at the extreme of wanting to copy everything and not pay a red cent to record companies. On the other hand you have the industry trying to snoop into people’s private computers to secure their profits.

      With radios and tape-decks we came to a middle ground that allowed people to have access to music, but kept the industry profitable. The market has changed, but I don’t see why we can’t come to an equitable middle ground again.

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    • LC says:

      Agreed. Art should be art and free for all, not a profit mechanism.

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  48. ===Dan says:

    “But if someone illegally downloads your song, he has it — but so do you.” This is true in a narrow sense. If I buy a CD for my listening pleasure, and someone borrows it without authorization and makes a copy, and returns my disk before I realize it’s gone, I’m scarcely hurt. But the publisher of my disk may be hurt in a more tangible way, the loss of a potential sale. It’s something they don’t have anymore. Moreover, if my unauthorized borrower makes his copy available to the whole world, it’s little more than a matter of the temporary limits of technology that allows the publisher to sell even one more copy of the disk. The loss is real, whether or not you call it theft.

    If your next-door neighbor begins an activity (say, allowable by all regulations) that not only is unbearable to you but also lowers the value of your property, maybe a poll would say that’s not “theft.” It may not be a stolen bicycle, but it may cause even greater damage to you.

    “Theft” may be a marketing term but it really isn’t relevant to the consequences and the morality of the issues.

    When I hear people argue that publishers benefit from unauthorized sharing, and that the sharers would not have purchased any copy at all

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  49. ===Dan says:

    (sorry, mouse-spasm caused premature posting)
    …I see those arguments as self-serving, not to be trusted. Clearly the publisher could have chosen various forms of promotional pricing to maximize profits, yet the unauthorized sharer removed that choice from the publisher. It’s disingenuous at best to argue that it’s for the good of the publisher to do that.

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  50. John Grady says:

    Article 27 of the Universal Declaration of Human Rights: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

    Material interests.

    So, does that mean that copying files -as a threat to the material interests of the author- constitutes a Human Rights violation?

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  51. Iggy Smith says:

    This is a rather shortsighted view of a complex problem. Copyright in nature means the right to copy, which file sharing is illegal because you do not have a legal right to copy and disseminate. There are also more than two people in this tale, there are the large number of people involved in making an album from start to finish, everyone from the artists who make the music, the technical members with the engineering, the marketing reps, the store owner, and so on. The article is also hypocritical when it says the government is engaged in loose rhetoric when calling it theft or piracy. It is engaging in rhetoric when it plays with definitions to say that no one is getting hurt, it even mentions it in the article that companies do take a hit. Yes it is a small hit when one song is illegally copied, but do it a few million times a day and that takes a big bite. When it comes down to black and white, it is illegal, instead of hiding behind rhetoric, just tell us the truth, you don’t want to pay money for a song when you can get it for free.

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    • LC says:

      You clearly work in the record industry.

      No one wants to pay for the crap you talentless hacks are producing; they just want to play it at parties so the pretty, but vapid, girls stick around.

      Also, it’s not AT ALL illegal or immoral to download. This country was founded on a belief that the pursuit of knowledge of ANY TYPE is paramount, and anyone should be able to download.

      Uploading is the crime, (sharing what you don’t own), as evidenced by the fact that file sharing doesn’t become actionable until you upload it to someone else.

      MOREOVER, studies have shown that downloaders wouldnt have purchased the music anyway, and that they DO purchase music from acts they like.

      In summary, good luck establishing any sort of case for damages against anyone who downloads.

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  52. LC says:

    Wow, it looks like many of you on here have bit down hard on the recording industry’s PR hook..

    Art is art, and is not subject to ordinary property restrictions. Record studios CLAIM to be producing art and not product, so they should have to live up to their statements.

    If they called it what it is: cheap corporate schlock, I would have no trouble calling downloading unethical. However, as it stands they are claiming it to be art. And ART is created exclusively for beauty or expression and resides in the public domain.

    It belongs to the people, not a bunch of soulless corporate pricks.

    Oh, and I’m in finance.

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