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. ===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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  2. 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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  3. 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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      • Costa Botes says:

        Well, this is a deeply felt response, obviously extremely well thought out, and brimming with the milk of human kindness. Well done Sir. A special place is undoubtedly reserved for you in Dante’s seven circles.

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  4. 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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    • Costa Botes says:

      The point you entirely fail to acknowledge in this spirited tirade is that the activities of studios, and all the people who work for them, are only made possible by the support of people who buy tickets or purchase products. You are confusing Hollywood studies – which are expressly commercial entities, in business to make a profit (without profit, there is no business) – with individuals and groups that make art for their own gratification. There’s nothing wrong with sharing stuff for free online. But only if it’s yours to share. Anything else is … theft. Semantic arguments to the contrary are just a moral smokescreen for asshole behavior. If you have an issue with studios and their products being art or not art, the most positive response is to boycott them. Not take their work for free and castigate them for not acting according to your highly erroneous definition of what being an artist is supposed to mean. Apparently, it means being poor, and giving shit away for free to people with real jobs like you? Nice.

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  5. Costa Botes says:

    This grotesque travesty of an argument is akin to many thousands of semantic angels dancing on the head of a semantic pin. It’s not theft to take/appropriate/utilise/enjoy/share/sell (etc etc) something without fairly compensating its legal owner???

    Yeah, right.

    Sorry … how’s that again? I guess my moral intuition must be interfering with my appreciation of the finer legal points.

    Either way, I can see a pretty clear outcome. It looks a bit like this – professional artists lose, while moochers, deadbeats, and (yes) thieves, win. The implications of letting this rot continue unchecked are fundamental and ought to be profoundly worrying. The signs are leading not to a brave new all-sharing world, but a dumbed down wasteland fit only for scavengers.

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