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. 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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  2. 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.

      Well-loved. Like or Dislike: Thumb up 8 Thumb down 3
  3. 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 11
  4. 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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  5. 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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  6. 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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  7. 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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  8. 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).

    Well-loved. Like or Dislike: Thumb up 8 Thumb down 2