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 @ 1:58pm

    Re: Re: Re: Re: Re:

    I believe you are misinterpreting the copyright law. Under Section 106 of the US Copyright Act only a copyright holder has the legal right to make a copy of his/her work.

    If a work is in the public domain, does nobody have the legal right to make a copy of that work?

    No, of course not. Everybody does, including what would have been the copyright holders had the work not been in the public domain.

    An example is "Night of the Living Dead." Because the distributor failed to follow statutory copyright laws, that film entered the public domain, where it still resides. Does that mean nobody is making copies of it? Hardly.

    Dozens of publishers are exercising the exact rights that are granted to copyright holders exclusively in 17 USC 106. The only thing a copyright on that film would have done is taken away those rights. That's the only thing copyright does: it excludes everyone but the copyright holder from exercising rights that otherwise would belong to everyone.

    Your focus seems to be what happens once a copyright holder has made a copy, and then transferred possession of that copy to a third party (typically by license or sale). That is a different issue altogether and involves other legal doctrines.

    I don't know how you got that idea. My focus is on what property rights people would have in a copy if copyright did not exist. The answer is: all of them. Thus, copyright - by definition - is "theft" of property from the commons.

    This is why traditional notions of "stealing" don't work with copyright. People generally think of "stealing" as "taking something without permission" or "taking something without paying for it." But this is exactly what happens with public domain works: you "take" something, without payment, and without permission of the authors (or original copyright holders).

    And, in fact, such "stealing" is the entire reason that copyright exists in the first place. Copyright exists to grow the body of work that is available - freely, without permission - to the public. That's obvious when we're talking about works in the public domain. It's also obvious when talking about the idea/expression dichotomy: copyright exists so the public can "steal" the ideas in copyrighted works. (See Feist v. Rural.)

    So, when other copyright defenders talk about "thieves," or "pirates," or "making money from the artist's work without paying for it," it's important to realize that the actions they're criticizing are precisely the actions that copyright is ultimately designed to encourage.

    If copyright doesn't result in more of this type of "theft," then it is not benefiting the public, and the public (through its representatives) has every right to take copyright away.

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