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Summary:

We’ve gotten used to the content industries arguing that what happens when people download or make copies is “theft.” But using that term muddies the waters when it comes to what copyright is supposed to be about, and lends support to irrational laws and court decisions.

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By now, most of us have grown pretty used to hearing the word “theft” used to describe what happens when someone downloads a movie or a song that isn’t theirs, and certainly media and entertainment lobby groups make heavy use of such terms — as do people like News Corp. founder Rupert Murdoch when talking about what Google News does with his newspaper content. But as Rutgers law professor Stuart Green describes in a New York Times opinion piece, this terminology is fundamentally flawed, since copyright infringement is a very different thing from theft of physical property.

Why does this matter? Because seeing it as theft makes it easier to accept ridiculous court decisions and/or unreasonable government legislation that vastly over-reaches what copyright is supposed to cover.

Green notes that the Justice Department is busy prosecuting a massive legal case against MegaUpload, the file-hosting and sharing site run by the colorful German hacker Kim Dotcom. But while the documents filed by the FBI and others for the indictment included enormous estimates of the amount of digital property allegedly “stolen” by the company — just as the record industry has in cases against Napster and other sites — it isn’t clear that MegaUpload has done anything different from what YouTube and others do. And whatever other things the company might be guilty of, theft isn’t among them.

Intellectual property is unlike any other kind of property

As with the Napster and Grokster and other similar cases, the argument made by the movie and music and software industries is that all of the files that are shared on such sites represent a theft of their property — their “intellectual property,” to use another term that is filled with contradictions and actually muddies the debate even further. Obviously, all of the people who downloaded movies and software from MegaUpload did so instead of buying a physical copy, and therefore it represents theft — just like walking into a movie store and taking a DVD. Except that it doesn’t represent anything of the kind, as Green notes:

If Cyber Bob illegally downloads Digital Joe’s song from the Internet, it’s crucial to recognize that, in most cases, Joe hasn’t lost anything. Yes, one might try to argue that people who use intellectual property without paying for it steal the money they would have owed had they bought it lawfully.

But there are two basic problems with this contention. First, we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property. Second, the argument assumes the conclusion that is being argued for — that it is theft.

As Green and others too numerous to mention have pointed out, downloading or copying something doesn’t represent the loss of anything tangible at all, which is what makes “intellectual property” such a misnomer. If I take your car or your coat, you no longer have them — that represents real theft. And even the argument that the content industries fall back on, which is that downloading or copying represents the loss of a potential sale, doesn’t hold water. As Tim O’Reilly of O’Reilly Media has noted, many of those who copy his books likely would never have paid money for them in the first place.

This is about more than just legal terminology or semantics

But this is all just semantics, right? Not really. For one thing, seeing it as theft makes it easier to steamroll right over issues like “fair use,” which is an incredibly important principle and one that is unique to copyright law (there are distinctions around public use of land in property law, but that’s a topic for another day). In a nutshell, the principle of fair use allows both individuals and corporations to take copyright content and use it in various ways without being guilty of infringement — it’s like a get-out-of-jail-free card, and it was included in copyright law to make creative use of content legally defensible.

One of the problems with fair use, however, is that it is incredibly complicated and filled with grey areas: as I described in a recent GigaOM Pro report on Pinterest (sub. req.) it is a four-factor test in which judges try to assess the original intention of the work, the nature of the infringing use, the amount of the original that is used, and the effect on the market for the original. In some cases the courts have decided that Google should be allowed to use images in search, because thumbnails are seen as a “transformative use.” Exceptions are also often made for journalistic or educational purposes.

But seeing any form of copying or unauthorized use as theft makes it virtually impossible to justify any of these actions, and makes it easier to see them as a crime.

And so we have the Authors’ Guild fighting for years to prevent Google from copying books so that they can be easily found, because the group argues that the simple act of copying them — even if only small portions of those books ever see the light of day — amounts to theft. And YouTube gets a takedown notice when a user’s video happens to have a song playing faintly on a radio in the background while her son dances. And laws like SOPA and PIPA and too many others to mention are drafted to prevent the widespread “theft” that is allegedly stealing billions from intellectual property holders.

And all the while, content industries deliberately ignore the fact that the intended purpose of copyright law is to promote innovation and creativity, not to smother it. Are there real issues around how creators get compensated for their work, and how we can accomplish that most effectively in an era of unlimited copying? Sure there are. But using terms like “theft” and “piracy” doesn’t get us any closer to solving those very real issues in any meaningful sense — it pushes us further away.

Post and thumbnail images courtesy of Flickr users David Goehring and Seth Anderson

  1. Would you call it theft if somebody ‘broke into’ a system to copy the software?

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  2. Would you consider it to be theft if the perp broke into a system to do the copying?

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  3. You’re right. Theft is the wrong word. A more accurate description of copyright violation is rape. It’s all about consent. And consent is not implied by virtue of being easy.

    And this specious argument, “we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property.” is like saying, “we can’t know whether the victim would have slept with the rapist anyway if he hadn’t acted without her consent.”

    There are plenty of great works being created by people who want to share. Share those works. If the argument is that the new economy is superior to the old business model, then leave those that don’t want to participate behind. Eventually, they will give consent because nobody is buying what they are selling anymore.

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    1. I respectfully disagree with your modified ‘description’. When Cyber Bob downloads Digital Joe’s work illegally, Digital Joe doesn’t even know that his work was being ‘taken advantage of’ unlike the scenario you compare to. Digital Joe might find out to his pleasant surprise later that Cyber Bob purchases one of his next works or recommends the pirated work to another person in conversation (who might end up buying Digital Joe’s work — word of mouth / free advertisement).

      While I don’t agree with some of the points expressed in this post [ https://www.insightcommunity.com/step2/311/why-i-pirate-an-open-letter-to-content-creators ], I think it presents an insight into consumer thinking (particularly, the thinking of the current 15 – 30 age group) which will serve content creators (books / software / multimedia) well.

      I agree with Mathew and the NY Times Op-Ed fully. It is time for content creators to adapt to the new modes of distribution.

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      1. Promotional material (to create word of mouth advertisement) is at the discretion of the content creator/owner. Like any other marketing expense, it is up to them how much budget to put into it. It is not up to random people to take someone’s content and claim they were “helping” the content owner “spread the word”.

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    2. The only reason you have consent is because you have been granted that through copyright law, something which has mutated to the level of abuse. I’ll leave it to you to sort the chickeh-or-the-egg of who raped who first. Copyright infringement is merely civil disobedience to an area of bad law.

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  4. Wow. Just wow. Equating copyright violation with rape is one of those things that deserves one of the deeper, darker pits of hell. bdubla, before you ever speak again, I recommend spending a week in a women’s shelter or, alternatively, spending a week getting violently raped. If you STILL think copyright violation and rape are the same thing, then, by all means, feel free to keep making the comparison.

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  5. ” First, we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property.” Has to be the most asinine rationalization I’ve ever heard. How the hell else would he obtain it? Either you pay the price to purchase it, which gives you the personal right (not anybody else) to that copy, or you obtain it by some other means. Which means that you didn’t pay to own a copy. Obtaining something when is placed on the market for re-compensation without paying for it is theft. Pure and simple. No semantic games about it.

    If you or anyone wants to post your opinions on a public accessible blog without any cost to obtain it. Then you have effectively stated it’s value. Nothing. Some other folks feel their work has value and expect to be paid for it. Anybody who agrees with the stated value of that work is free to purchase a copy. Anyone who does not feel the work has the same value is free to not have a copy of it. This is basic free market economics. It is not permissible to have a copy without paying the agreed upon cost unless you steal it.

    What part of this escapes the brains of entitled people is beyond me.

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    1. Derrick Harris Friday, March 30, 2012

      You’re technically right, of course, but the semantic argument has merit. Infringement and theft are different because one can infringe someone’s copyright in numerous ways without taking anything (e.g., creating a derivative work).

      Overall, of course, the missing link in digital content right now is what’s between not having it and paying what we paid in the physical world. It costs practically nothing to copy and store digital content compared with managing physical supply chains, manufacturing and distribution, yet the prices of most digital content don’t acknowledge that.

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    2. The reason people have difficulty with this is simple enough. Books can be bought and shared, music can be listened to on the radio, and television and even movies are broadcast over the air for free. And yes, we “pay” for radio and television by being exposed to advertising, but it’s hard for us to put any tangible value on that.

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    3. “How the hell else would he obtain it? ”

      Um, 1) libraries; 2) borrowed from a friend; 3) purchased second-hand (which generates no royalties). How’s that for 3 examples you have probably heard of before?

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    4. Steve K,

      ” First, we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property.” Has to be the most asinine rationalization I’ve ever heard. How the hell else would he obtain it? Either you pay the price to purchase it, which gives you the personal right (not anybody else) to that copy, or you obtain it by some other means. Which means that you didn’t pay to own a copy.”

      This is false bifurcation, a logical fallacy. In reality there are more than two choices. The downloader, like anyone else, might have chosen not to obtain it.

      I’ve made many decisions about whether or not to purchase songs in my lifetime and they have usually been not to purchase. FWIW, many of my decisions to purchase music have been based on listening to a song, album, CD or whatever on radio or listening to music a friend played on the stereo while I was visiting the friend.

      “Obtaining something when is placed on the market for re-compensation without paying for it is theft. Pure and simple. No semantic games about it.”

      I’ve accepted gifts of music and books for over 5 decades. Does that make me a lifelong thief, “pure and simple”?

      BTW, the quoted paragraphs don’t state that Digital Joe’s song was “placed on the market for re-compensation” though they imply that. They merely state that it was downloaded illegally. Digital Joe’s song could be a freely distributed musical political message and/or promotional song which Cyber Bob wants widely distributed and the illegality might be solely due to laws of Digital Joe’s government. “It’s time to talk about censorship” to quote from “Pass It Along (mp3)” which is one of several songs freely available from Chumbawamba’s website but possibly illegal to download in many nations. I don’t know the laws of the People’s Republic of China or North Korea but I’d risk betting a dollar both countries have restrictive laws and a desire that the general public not hear songs such as “The ABCs of Anarchism”, “Pass It Along (mp3)” or certain other songs freely available from that politically oriented band’s website.

      “If you or anyone wants to post your opinions on a public accessible blog without any cost to obtain it. Then you have effectively stated it’s value. Nothing.”

      That tells us the value you place on the opinions you posted. But you aren’t in a position to know what value others place on what they post or even what value they place on what you post. Would you state the authors of THE FEDERALIST PAPERS effectively stated those were of no value since they wrote and distributed those without being paid for doing so. Just curious.

      “Some other folks feel their work has value and expect to be paid for it. Anybody who agrees with the stated value of that work is free to purchase a copy. Anyone who does not feel the work has the same value is free to not have a copy of it. This is basic free market economics. It is not permissible to have a copy without paying the agreed upon cost unless you steal it.

      What part of this escapes the brains of entitled people is beyond me.”

      Some other folks feel their work has value and don’t expect or desire to be paid for it financially. That’s also basic free market economics. Can you explain how compulsory copyright such as the US now has is part of basic free market economics?

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  6. Rationalizing that someone might not buy it doesn’t mean that it is not taken without consent. If I ask $1 for an item and you aren’t willing to pay for it then it is dishonest to take it. Arguing whether it is theft or not is a semantic argument which really achieves nothing except destroying the straw man. If You wish to continue to take for free that which someone has worked to create I am sure you will continue. No argument could convince you otherwise nor could you sway my choice to pay for what I receive. The issue is really about what you value, the item you desire to have or the person who has worked to create the item you desire. Careful the world you create around yourself and inside yourself lest you devalue yourself in this transaction more even than the original creator of the item.

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    1. Thanks, Glenn — just to be clear, I am not arguing that downloading movies and music and software without paying for it isn’t wrong. I’m simply asking that we talk about in terms that make it obvious what it is, and what it isn’t — and it isn’t theft. It is infringement of copyright. There’s a difference.

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      1. Indeed–and the difference is embodied in the “right” part of the word “copyright.” When you download my music without paying for it, the precise description of what you have done – one which you manage to avoid – is that you have violated my constitutional right. Which, in my opinion, is no less egregious an offense than theft.

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      2. I’m calling BS: if this is your claim, then why do you go to such lengths to defend how the copyright owner is not harmed as a raincoat owner is? In both cases, a loss is imposed on the owner, a loss that benefitted the taker.

        In fact, the harm is the same. If I spend $125 to buy a raincoat, it’s not because I want the raincoat in my closet; I do so because I want to have the benefit of protection against rain. If I spend $5 million to make a movie about interesting, new sex techniques in Rio, I don’t expect to tout it on my tombstone; I want to make as much money as possible from selling it. The loss to me is forgone sales; if it’s really “good,” a very large fraction of bootleggers might have been buyers because that type of material is primarily distributed over the internet. I’m sure that “It’s A Wonderful Life” loses sales roughly equal to about 1% of the bootlegs, but that’s merely a measure of the extent of how the copyright owner’s livelihood has been compromised, not whether a loss was gratuitously imposed on the owner.

        So go back and strip out all the cant about why copyright infringement isn’t harmful, and admit that actual “fair use” issues are irrelevant to all but a tiny part of the copyright infringement issues, and see that there’s nothing left to your post.

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  7. My father was a composer. Call it infringement, piracy, illegal use. Whatever you call it, without copyright protection, we would have starved. Instead, my father was paid for the value he created for the pleasure of others. End of argument.

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  8. So you and your employer have no problem with me ripping some GigaOm-Pro articles and posting them on the web, because it’s just sharing and the word sharing is OK? No problem because it will never effect your revenue model?

    Ok.

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    1. You obviously aren’t thinking like a REAL copyright infringer. What you have received tacit permission to do is to create Giga-OM.Com, GigaOM.co.uk and a zillion other lookalikes, then methodically rip off EVERY SINGLE article. A little bit of creative work with others and you could pretty well take GigaOM’s entire revenue model down.

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      1. Ha, brilliant idea, it would be very amusing to see someone do it.

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  9. Too hard to debate on Twitter, and probably better placed here anyway. The iTunes point I was trying to make really boils down to this – if my entire library is “stolen” from me, it may not be material, but it sure as hell is tangible.

    Find it hard to believe that someone as forward-thinking as you on technology and the digital shift that is happening across all forms of content would argue, essentially, that if it’s not in physical/tangible/material form, it’s not “theft” to take it.

    So if you walk into a store (assuming you can still find one) see a DVD of some new release movie on the shelf, slip it into your pocket and walk out without paying, you are guilty of theft, you’ve stolen it. But if you find the same exact title on some rogue website and “grab” the same content without paying your criminality is diminished and should no longer be described as theft? Why not? Because it’s technologically enabled? Because you clicked a button instead of reached out and slipped a physical item into your jacket pocket and then ran to your car in the parking lot. Not sure I see that distinction as clearly as you seem to.

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    1. Derrick Harris Friday, March 30, 2012

      Actually, the legal difference is quite clear. You’re not infringing copyright by stealing a physical DVD because the store has no copyright (although the law — the first-sale doctrine — does give the store the right to resell the copy it legally obtained). All you’re doing is stealing the store’s physical property.

      Illegal downloading is covered under the exclusive right of a copyrightholder to make copies. In that case, you’re just infringing on a right by creating something you don’t have the right to create. Nothing has actually left anyone’s possession. It’s the same reason patent infringement isn’t theft.

      In theory, of course, there isn’t much of a difference between the two assuming the options are either (a) pay for it or (b) don’t have it.

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      1. Thanks, Derrick — you said it better than I could have :-)

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      2. Heh, what you say IS true. But of course, UltraVideo bought a disk+case worth about 50¢; it’s only $16.99 because of the bit pattern stamped into it. So the physical theft is only a few pennies at worst, too, no? It’s essentially the same thing.

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      3. I would take exception with the statement ” In that case, you’re just infringing on a right by creating something you don’t have the right to create.” When you download someone else’s creation without compensating them for it you are not “creating” anything. You are merely taking someone else’s creation.
        If I listen to a song and go out to my project studio and make my own recording of that same song then I have “created” a performance by my own efforts. But they have still “created” the song. And if I want to share my creation with anyone else, then I have to go to the Harry Fox agency in NY and get a license to do so. Otherwise I am “stealing” someone else’s song.
        Only “original” works, as defined by copyright law (just ask Ray Parker Jr) can be “created”. Anything else is copying.

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  10. Morgan Warstler Friday, March 30, 2012

    This is the argument to use… please adopt meme and spread:

    Treating copyright theft as equal jeopardizes real property rights.

    If food or oil could be copied… there would be RIOTS in the streets if we they couldn’t be copied.

    Media survives because it is viewed as a luxury good. IN FACT, even trademark violations (Gucci, LV knock-offs) are just a form of advertising for the $2K bag. The best way to know millions of women will be impressed with your REAL bag is if they carry a fake!

    First thing said about an LV bag? “It’s real!”

    In in atomic goods, copies improve things. When did fashion houses go public? When knockoffs stabilized an erratic market.

    —-
    Here’s the punch line: Everytime Hollywood argues a purely digital copyable thing is the same as atomic property, they DECREASE the legal value of atomic scarcity – the thing that has sustained us since the Magna Carta (look it up).

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