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
    Karl (profile), 31 Mar 2012 @ 6:16am

    An underpinning of copyright law is the incentive to create and disseminated original works of authorship so that the ideas and information they express can be assimilated by others.

    ...And so that that body of work will eventually pass into the public domain, so that everyone can use the works without restriction.

    This underpins another point, which I don't think has been made in this thread. The only reason copyright is granted is so that society in general can use that "property."

    It is a funny kind of property, where "stealing" it is the only reason it exists in the first place.

    Hell, I've been doing a lot of this recently. I have a new smartphone, and I like to read books on it while I'm on the subway. I don't want to pay for these books, so I've been reaping the benefits of Project Gutenberg. I've burned through books by Jules Verne, H.G. Wells, and Arthur Conan Doyle.

    I took something, without permission of the authors (or their families), and nobody got compensated for their labor. Am I then a "thief?" Is my phone full of "stolen property?"

    one cannot "steal" that which is owned by no one, i.e., copyright no longer pertains to the work.

    That is completely false. A work in the public domain is not "owned by no one," it is owned by everyone.

    Without copyright, any person who owns a copy of the work would have a natural property right to do whatever they pleased with that work. That includes making copies of it, using it to create derivative works, and performing or displaying it publicly, whether for profit or not. Without copyright, everyone has the rights that are granted in 17 USC 106.

    Copyright is a "negative right," a right of exclusion: it does not convey any additional property rights upon the copyright holder, only the ability to take away some of the natural property rights of everyone else.

    Thus copyright itself is, in a very literal sense, theft. It is taking away property from the people it belongs to - everyone. It may be that society in general benefits by allowing this form of theft, which is the only reason this theft is legal; but theft it is.

    That is the reason people are so upset with Disney. Disney has no problem using "property" that is "owned" by everyone - including the commenters. And none of the commenters here begrudge Disney for doing so; they have as much of a right to do it as anyone else.

    But Disney does not want other people to have the same rights that it did, so it lobbied for laws that would allow its own theft from the public to continue. Notably, if the current copyright laws were in place when Disney started, the majority of Disney's source material would not be in the public domain.

    It is Disney's hypocrisy, selfishness, and thievery that people are upset with. Nobody cares that they used works without permission or compensation, because that is copyright's ultimate goal; they only care that Disney won't allow anyone else the same courtesy.

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