NYTimes OpEd Explains Why Infringement Isn't Theft

from the and-why-it-distorts-the-debate dept

We've argued for years that it's absolutely improper to call infringement "theft." Some, of course, have insisted that since copyright is so obviously "property", it's fine to call infringement theft. However, in a rather brilliant OpEd piece in the NY Times, law professor Stuart Green not only demolishes the "infringement = theft" argument, he also gives some of the history about how it came about:
When Industrial Age Bob and Joe started inventing less tangible things, like electricity, stocks, bonds and licenses, however, things got more complicated. What Bob took, Joe, in some sense, still had. So the law adjusted in ad hoc and at times inconsistent ways. Specialized doctrines were developed to cover the misappropriation of services (like a ride on a train), semi-tangibles (like the gas for streetlights) and true intangibles (like business goodwill).

In the middle of the 20th century, criminal law reformers were sufficiently annoyed by all of this specialization and ad hoc-ness that they decided to do something about it.

In 1962, the prestigious American Law Institute issued the Model Penal Code, resulting in the confused state of theft law we’re still dealing with today.

In a radical departure from prior law, the code defined “property” to refer to “anything of value.” Henceforth, it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly.

Before long, the code would inform the criminal law that virtually every law student in the country was learning. And when these new lawyers went to work on Capitol Hill, at the Justice Department and elsewhere, they had that approach to theft in mind.
There's a lot more worth reading in the oped piece, including references to research that shows that, no matter how many times you compare infringement to stealing, people intrinsically just don't believe it. Professor Green and his collaborator Professor Matthew Kugler have done some of this research themselves, where they point out that these language choices really matter. As you can sense from what they wrote about above, when you call things "theft" that have very different characteristics than "theft," it actually influences how people think about these things.

Falsely lumping all of these specialized areas into the "theft" bucket leads law enforcement and politicians to take easy mental heuristics that have them assume that even if infringement is not exactly like theft it's "close enough" that you can treat it like theft and respond to it like theft. And that's exactly what we see happening. The legal proposals and constant changes to copyright law are all about treating infringement more like theft, and believing that greater enforcement leads to less infringement, and that greater "education" does the same. But that assumes that individuals intrinsically believe that making a copy of something is bad, even though in many, many cases they do not feel that way. Calling it theft when they know it's not theft doesn't convince people to stop file sharing. It just makes them respect copyright law even less, since it's clearly completely out of touch with the times and the technology.

The language choices used in this debate matter quite a bit, and it's great that the NY Times opened up its oped pages to someone who's done actual, detailed research on this specific issue.

Filed Under: copyright, infringement, language, moral panic, stuart green, theft


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  1. icon
    G Thompson (profile), 29 Mar 2012 @ 9:37pm

    It's about asportation

    The US definition of theft (which is really larceny) used to include a required element called asportation, which is still a required element, as is intent, in most places in the world.

    Asportation is the actual physical removal or "carry away" in which a defendant must after having obtained property in question must also move it from its original position.

    The US Model Penal Code totally eliminated the required element of asportation and only requires that any defendant exercise what is classified as "unlawful control" over that property.

    This is why the US (and people who should know better) think that copyright infringement is theft.

    Interestingly common law larceny (not to be confused with the Criminal Penal code) in The USA can not be committed against intangible things (or land) which includes identity, ideas, information, contracts, wills, and intellectual property though the paper upon which they are written is a specific larceny of that actual paper.

    The misuse of some ones copyright is NEVER larceny and never the absolute common definition of theft that the common-man knows.

    The problem is, as the article states, lawyers and police don't work on what the common sense approach means and instead can only work with what they have in front of them. In America that is the Model Penal Code.

    I don't have to work with the US's Code, so to me copyright infringement is Never theft and NEVER larceny, though it's getting to the stage where it could be considered a type of conversion, but that's the subject of much controversy and PHD's

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