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), 1 Apr 2012 @ 3:50pm


    While "music" and "movies" seem to be the primary subject matter discussed here, there is a very wide body of other, unrelated works where the "incentives" do, in fact, "incentivize".

    That is a very difficult thing to quantify. Certainly, there are many successful industries whose products are covered by copyright. But is that success due to copyright?

    As a counter-example, let's consider the fashion industry. There is no question that the American fashion industry is a world leader. Yet, fashion is not covered by copyright. It is perfectly legal to copy someone's design and create a knock-off, identical in every way to the original (though trademark law means you can't claim it is the original).

    This wasn't always the case. Back in the 1930's, a strict "no-copy" rule was enforced by the Fashion Originators' Guild. They said copying was unethical and immoral, and called it "style piracy." If a retailer sold a knock-off, they were issued a "red card," and they were boycotted by everyone in the Guild.

    The only problem with the guild was that it was an illegal monopoly. At least it was according to the FTC, and the Supreme Court agreed in Fashion Originators' Guild v. FTC.

    Did the Guild's collapse harm the industry? Quite the opposite. The fact that there are "Red Carpet copycats" actually creates a demand for new designs, resulting in far greater sales of apparel. There's even a name for it: the "piracy paradox."

    Johanna Blakely did an excellent presentation about this at TED, which you can watch on YouTube if you like.

    So, here we have one industry that would be harmed by copyright laws. There are many other successful industries that don't have copyright protection: the food industry, the automobile industry, furniture design, etc.

    The question becomes: If these industries can be so successful and innovative without copyright protection, why do the others need it?

    On a final note, while we obviously do not agree on many points (though we do agree on many others), it is a distinct pleasure to engage in exchanges with one who has so obviously taken the time to give this subject much thought and who provides substantive, versus reactionary, comments.

    Not a problem. I'm an underground musician, and these sorts of topics (especially regarding music) interest me immensely. That, and I need a way to avoid my Physics homework...

    Incidentally, if a few of the commenters here seem a bit reactionary, that's because the usual "pro-copyright" folks here do nothing but call everyone "pirates," call Masnick a "scumbag," and believe Techdirt is a subsidiary of Google.

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