Under the “theft” conception of copyright law, what, exactly, is the deprivation when someone makes illegal copies? It really boils down to just one thing: money. Copyright infringement – renamed copyright theft — deprives the copyright holder of some of his or her expected profit from exploiting the copyright.

What are other, similar kinds of “theft” by depriving someone of expected money? Failure of a tenant to pay the agreed rent to a landlord is one. Parking in a parking space without putting money in the meter is another. Jumping the turnstile to ride on a subway without paying the fare is a third. (And, of course, failure of a studio or record label to pay artists or actors the promised contractual royalties for their work on a record or film is a fourth. But something tells me the studios and labels sponsoring the current bills won’t go near that topic. The bills don’t include rogue studios and labels in their scope.)

How do the civil damages or penalties for the different types of such “theft” compare? Failure to pay expected money under a contract doesn’t trigger a penalty: contract law usually says that a party can recover the money she expected but not punitive damages or attorneys fees (unless parties have specifically bargained to pay attorneys fees for a breach). Failure to pay rent usually requires payment of rent to cure the default. Failure to put money in the parking meter prompts a ticket for $60. In New York City, failure to pay the $2.50 subway fare results in a maximum fine of $100.

Copyright “theft” is a very different story. Copyright infringement statutory damages in civil litigation can be as high as $150,000 for infringement of a single work. Yes, a single work such as a single song with an iTunes download value of $1. A copyright holder can claim such statutory damages without needing to prove a single penny of damage or loss. Think such sky-high damages aren’t realistic? Think again. In the RIAA’s case against single mother Jammie Thomas, a jury awarded $1,500,000 for the download of 24 songs, with no proof that she had transmitted songs to others. The federal judge thought that was ridiculous and reduced the total award to $54,000 – and the RIAA and MPAA are now arguing strenuously on appeal that the jury verdict should return to the original figure, $62,500 per downloaded song.

If we take copyright law’s maximum-penalty-to-price ratio as applied to an illegal download, and apply that same penalty-to-price ratio to the New York subway, the maximum penalty for jumping that turnstile and avoiding the $2.50 fare would be $375,000 instead of $100. Copyright industries are on to a really good thing under current law. One could say it’s a steal.

I don't think that their attacks are necessarily illegal or immoral. As long as they don't break into other people's computers, launching DDoS should not be treated as a crime by default; we have to think about the particular circumstances in which such attacks are launched and their targets. I like to think of DDoS as equivalents of sit-ins: both aim at briefly disrupting a service or an institution in order to make a point. As long as we don't criminalize all sit-ins, I don't think we should aim at criminalizing all DDoS.