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
    weneedhelp (profile), 29 Mar 2012 @ 11:22am

    Re: Re:

    "If you learned to trust authority (as most law enforcement officials do)"

    I disagree. Some individuals swear to fulfill a position and the duties within that position. And though they may disagree with the duties defined in that position, they agreed to do a job.
    CIP:
    I have a friend through work that is a X-Marine. After discussing conspiracy type things(conspiracies to some, facts to others.)I asked him how he could keep doing what he was doing with all that he knew. He looked at me serious as a heart attack and said, "I agreed to do a job for my country, and put my personal beliefs aside to do the best job I could. Other service personnel depend on me to do what is asked without question." That was just about 6 years ago and I remember it word for word.

    So to get back on point:
    If you learned to trust authority...
    Trust? Your boss tells you to do something, unless it goes against every moral fiber of your being, and you are willing to lose your career over it, you will do it.

    "If you're power hungry, like most law enforcement officials and politicians, and someone tells you that treating infringement like theft is an easy way to increase surveillance while making it look you are looking out for artists and the economy, you learn really quickly to treat infringement as theft." - Still does not mean you believe in the lie, just you are willing to exploit it.

    "Education" absolutely works.

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