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. 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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  2. kevin says:

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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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  3. Don says:

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  4. 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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  5. 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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  6. 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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  7. Richard Weisberger says:

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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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  8. 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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