Thursday, November 27, 2008

Copyright infringement is not theft

And this is why I have a problem with morally conflating copyright infringement and theft. This is a response, however haphazard, to people who want to suggest that infringing on a copyright is morally equivalent to theft in order to make this argument.


Here is in short the problem that I have with conflating copyright infringement and theft. Theft is concrete, it is well defined and understood. If I take an item from a store valued $3, it can be said that I have committed theft. Copyright infringement is abstract, it is fluid and what constitutes infringement is modified by great latitudes all the time. If I sing Happy Birthday and make $30, assuming a royalty of 10% and I don't pay the holder of that copyright that $3; I have committed copyright infringement. Have I really taken that $3 from them without permission? Do we really want to morally entangle these two concepts? Why morally entangle taking a $3 concrete item from a seller and not paying royalties for making money off Happy Birthday.

How can we talk about the morality of copying if we are constantly trying to resolve it with the possession and transfer of concrete objects—when copyright infringement is not at all a concrete thing.

Copyright infringement has affirmative defenses, like “Fair Use;” how does Fair Use apply to theft?* Copyrights don’t last forever, they expire—the ideas that they license don’t expire; how does this apply to the theft of concrete objects?** Is copyright infringement really a special form of theft with fundamentally different rules and effects?

If so, then why call it theft?

When conflating copyright infringement with theft we commit a fallacy of equivocation. We suddenly make any discussion about copying an object equivalent to the taking of that object.

As much as I'm going to say this is bad for talking about copyright infringement:

Think about how saying “taking an object without permission is morally equal to copying an object without permission” affects discussions of theft itself. Can we really have a sane discussion about stealing a car if someone keeps on pointing out that morally it’s exactly as if I just drove off with a copy of the car?

* The problem I face here is that there is no viable metaphor for “Fair Use” with concrete objects in relation to theft. How can I create a discussion about the “Fair Use” of a stolen (borrowed?) car; when the thief gets charged with Grand Theft Auto but argues that they only used the car for 4 hours (a very small percentage of the lifetime of the car) and did so to make a statement about the car. I would have to talk instead about how the thief really came over, made a COPY of the car, and drove that around instead; because infringing on a copyright involves a copy, which doesn't deny access to the original idea to the holder of that idea.

** Another fundamental difference between how concrete objects and abstract ideas are treated. Concrete objects are possessions and their theft denies the possessor their use; but ideas are abstract and COPYright covers the license to copy it. After the copyright expires it is no longer infringement to copy that object; but are there any concrete objects where my ownership of them expires? Where twenty years after building this car, suddenly anyone in the world can just come and take it from me and it's not theft anymore (once again, a failure of metaphor because we would have to talk about them coming to take a COPY of my car.)


Arizona Atheist said...

I like this sum it up well.

I never did understand the whole "piracy" deal. Just a bunch of propaganda by rich people who want more money. After all, when I was a kid I used to make copies of my tapes for friends and now people are basically doing the same thing, just on a much larger scale. Something that a lot of people don't realize is that most of the music on the file sharing networks have been purchased. Many people make copies of the songs from their cds and then more copies get spread as people download those copies. It's not like someone ripped off a cd and made copies. Obviously the copies were not purchased, but the source for the copies was, so I don't see how it can be considered stealing. Plus, the people are giving away the copies...another fact that makes this phenomenon not comparable to theft.

Here's a good site with some good P2P info.

Kyt Dotson said...

Thanks for the message.

I've been letting this one literally rot on my hard drive for a long time. I wrote it literally on whim in an attempt to respond to someone who angrily posited that there was no moral difference between copyright infringement and theft.

I really felt the need to show why it is not sane to conflate the two.

I just never showed it to the person; because when I pointed out that the 1980 Supreme Court decision United States v. Dowling had, "Copyright infringement is not theft," they started into a discussion of abortion and morality and the Supreme Court and I was pretty sure that the concept of how law worked would go out the window if I tried to continue to talk.

But, I am still bothered by how insane it is to conflate them.