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
    Greevar (profile), 29 Mar 2012 @ 11:55am


    That's funny you mention rights and permission. When did the author attain the rights and asked permission to appropriate the common culture of humanity as a platform upon which they build their works? The truth is, under the copyright system, authors take our own culture and sell it back to us under monopoly control. They take that which belongs to all of us and then claim ownership over it. To say people are stealing from them while they do the exact same thing is hypocritical. It's those that promote copyright that are the real thieves.

    Do they deserve to be compensated for their work? Yes, without a doubt, but they are going about it completely the wrong way. Selling copies of our culture, remixed, is of the most flawed ways to run the business. It was always flawed because it relied on the inability of others to make copies on their own (which the internet has obliterated). So the solution lies in shifting from selling the intangible results to selling the finite time and labor (like any common occupation) that it takes to make it in the first place. Just as Michelangelo was commissioned to paint the Sistine Chapel, rather being paid for a copy of the work, so should artists today seek people to pay for the effort it takes to transform culture into new expressions. It's the ability to create that we should hold in value, not to hold value to artificial units of imaginary "property".

    If you haven't picked up on it yet, copyright is wrong in its application and in itself. Much less, infringement doesn't equate to "theft" on any philosophical level. Were you to call it theft, you must also hold it to authors for doing the same since they could not create were it not for the ability to take the works of others to transform and combine them into new expressions (they do, consciously or not). If it is theft we have committed, then so have the "artists". In order to get along in this new environment for communication, artists will have to let go of trying to control copying, since they never really had the power in the first place, and embrace a new model that thrives in spite or because of the unchecked propagation of culture.

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