I wasn't planning on writing about this topic today, but Matt Maroon's essay on intellectual property warrants a response. I'm not going to get into the broader philosphical and political argument about whether the current copyright scheme is good, bad, or whatever else.
Instead, I want to make a simple, provable point: copyright infringement is not theft.
Matt's Unstated Assumption
Throughout his essay Matt makes a common assumption, viz., that copyright infringement is a kind of theft. In response to Michael Arrington's post where he states "My position is that it’s bad to criminalize natural behavior," Matt writes
I’d like to point out that most evolutionary biologists would tell you that rape, murder, and theft are all natural human behaviors. Theft of a song is no more natural than theft of a car, so should we take those laws off the books too?
A Distinction With a Difference
The emphasis is mine, but he makes the same assumption in other places. There are at least three ways in which the belief that copyright infringement is theft is wrong.
The Legal Perspective
First, legally speaking, copyright and infringement are different things. Copyright is covered by 17 USC while theft, at the federal level, is covered by 18 USC. Furthermore, the authority to grant copyright is given to Congress explicitly in the Consitution whereas the crime of theft is generally a state matter.
This means that the statutues, rules, and precendents governing copyright infringement and theft are distinct and that arguments which apply to one cannot necessarily be applied to the other, except by loose analogy.
The Historical Perspective
Second, even if you reject the "strict" legalistic reasoning, there is a compelling historical argument that copyright infringement and theft are distinct. The Wikipedia article on the history of copyright law does a good job, but here's the gist.
Modern copyright came about in the late 17th century with the Statute of Anne. Before that the English Crown had given a monopoly over the distribution of books to the Stationers' Company. As the power of monopolies became increasingly contested Parliament responded by vesting the right to control copies in the hands of the creators rather than the publishers.
Copyright law has continued to evolve and expand over the centuries, but it's important to see it as historically distinct from theft, which has been a "crime" for as long as there have been laws.
The Philosophical Perspective
Third, one could dismiss all of the above by saying it's "just semantics." Even if the legal and historical circumstances surrounding copyright infringement and theft are different they are tantamount to the same thing.
As an intellectual exercise consider an artist and his studio. Passing by one afternoon I stop in and, while the artist is away in the restroom, I walk off with his latest painting, just finished.
This is theft. The artist has been deprived of his painting and there's no way he can get that painting back. It's gone forever.
Let's say instead I sit down next to the artist's painting with my own canvas and I begin duplicating it without her consent. I walk out of his studio leaving his painting untouched but with my copy.
In the first case it's clear that I've deprived the artist of something. After all, he has one less painting. In the second case he still has his painting, but I have one, too! What has the artist been deprived of? The best copyright proponents seem to be able to come up with is a "potential sale," but if you're "stealing" a potential sale in what sense did the artist "own" that potential sale to begin with?
Furthermore, how is this different from general competition? As a businessman I am deprived of money every time a customer chooses a competitor over me, but this is not theft. Competing by copying someone else's work and reselling it might be unfair. It might even be harmful. But it is not theft.
So What?
Ok, so there's a difference between copyright infringement and theft. Who cares?
First, I want to emphasize this is not just a debate about semantics. Copyright has a special place in our society. The constitution explicitly grants Congress the right to secure copyrights and there's a whole title in the US Code (Title 17) dedicated to it.
To reduce the argument for copyright to the syllogism that since copyright infringement is theft and theft is wrong it follows that copyright infringement is wrong will lead to bad conclusions, not to mention bad policies. This distinction is reflected in our legal system by virtue of the fact that copyright infringement is not generally a criminal offense, whereas theft always is.
Second, copyright is more important today than ever. One side-effect of the digital revolution is that everything we do is copying. Installing software is copying. Turning on your computer is copying bits from the hard drive into memory.
This means that copyright law governs much of what everyone does on a daily basis. Treating it so trivially by conflating its violation with theft obscures a major aspect of moern society.
If you still don't see a difference ask yourself this: do you honestly believe making a mixtape for a friend is theft?
Update
I guess I stirred the post with this post. I expected as much calling out someone specifically.
Here's his response in the comment thread on his blog. I'll let him have the last word.
My point was more to highlight the absurdity of saying we shouldn't outlaw natural human behaviors than to get into an argument about the definition of theft. I don't know why you chose to worry so much about whether music piracy is theft or some other crime, it's basically irrelevant to my arguments.
The artist owns the potential sale because he created the work with the expectation that the law would give him a monopoly in the work. In competition in general, there is no expectation of a legally enforced monopoly privilege. Creating a mixtape for a friend is theft if and only if artists that create the music have an expectation that the government will effectively prohibit mixtapes. No one has that expectation, so creating a mixtape is not morally equivalent to theft. Some other copyright violations, however, are morally equivalent to theft.
No expectations make copying morally equivalent to theft. At the most they make it morally equivalent to breaking the law mandating any other monopoly: e.g. by using Skype in a country where the government has granted a single carrier a monopoly on international phone calls.
Eli,
Your argument is circular.
You say that copyright infringement is morally equivalent to theft because there is an expectation that the government will protect the author of a creative work. That is, it is morally equivalent to theft because they are protected by copyright.
So what is the basis for copyright to begin with? It can’t be because it is morally equivalent to theft.
Also, things are crimes independent of whether or not they are enforced, i.e., whether there is the expectation of protection by the government. If there were only one police officer in Chicago you’d have lots of unprosecuted murder cases, but they’d be crimes nonetheless, for example.
Graeme got it right: the only similarity between theft and copyright infringement is that they’re against the law.
I think the original assumption that “theft of a song is no more natural than theft of a car” is very obviously flawed even without going into what constitutes theft.
Humming a song you’ve heard is a very natural behaviour. Telling somebody a story you’ve read, too. Even trying to copy a painting somebody else has made; lots of people do that, and I don’t think anyone would claim it was somehow wrong.
At the same time, accepting somebody else’s property right for physical things is also very natural (if you don’t believe, go ride a train and sit in a compartment somebody else already sits in - you automatically accept that the person has some amount of ownership over the compartment simple becuse he or she was there first. Or watch children playing; they don’t know anything about law, yet they accept and use the concept of ownership).
So copying a song is much more natural to humans than taking away somebody else’s car.
I don’t often agree with Arrington, but I think he has a fair point here.
If one artist copies another’s work, he is stealing time. As abstract as that may sound, I think it is quite important in the life of a mortal. (i.e. the worse a crime is, the more time you spend in jail.) I believe the moral basis of copyright law rests on this.
If I “spend” 20 years developing a new vehicle, and you “steal,” it in 20 minutes by copying my hard drive, you have not just stolen the bits of information. You have also stolen the entire value of my 20 years of R&D.
Jesse, it is true that if there were no copyright, it would not be morally wrong to copy works of art. This does not make the argument circular. If there were no copyright, then artists would produce with the expectation that their goods would be copied. As a result, they would produce fewer works (How many fewer? What is the efficient copyright term? These are empirical questions). It would not be wrong to copy these works.
The law provides for copyright because information goods are costly to produce and cheap to copy. It is an improvement in economic efficiency to provide copyright. Those artists who rely on copyright in their production decision have a right to that protection. Breaking their monopoly is equivalent to theft—you are taking something from them.
I don’t agree with your claim that (all) things are crimes independent of whether they are enforced. Read Hayek on the difference between law and legislation. Driving, say, 5 mph above the speed limit is not against the law. It is against legislation. But the law is what is done, not what some goofballs in your state capitol say should be done.
As a philosophical anarchist, I view government as morally irrelevant. The point is not that copying is a violation of the government’s legislation and therefore similar to theft. The point is that once people recognize intellectual property, it is property. Your car also is only your property because other people recognize it to be so, not (directly) because the government says it is. If intellectual property is property, then the unauthorized taking of it is theft.
Joshua: If I kill a man I am stealing his life. Should we conclude “murder = theft” ?
We are not saying copyright infringement is right, we are saying it is a different thing from theft, and should be studied differently.
Eli,
You’ve just restated your original point. It’s still circular, though. Your argument really seems to be not that copyright infringement is wrong because it’s a kind of theft but that copyright infringement is wrong because it’s breaking the law. That’s fine, but there’s plenty of laws whose breach people don’t find “wrong” in the sense that they find theft wrong, e.g., jaywalking, speeding, etc.
So, fine, copyright infringement is wrong in the sense that it’s breaking the law, but it definitely occupies a different moral sphere in society than theft.
Moreover, the origin of copyright law doesn’t rest in its potential analogy to theft, but in its own economic and political considerations.
Also, you’re not going to be able to sneak in “theft” through the back door by saying intellectual property is a kind of property and therefore copying it is a kind of theft.
First, theft covers intentional deprivation of a thing, not copying the thing without permission. It’s a different rule. Theft always requires mens rea, for example, whereas civil copyright violations do not.
Second, “intellectual property” as a term is relatively modern. Its consistent use didn’t come about until the mid-20th century and its earliest use is about 150 years after the Statute of Anne.
Using it in that way is a dirty kind of equivocation.
You’re also equivocating about what “law” means, now. If you were using a specific definition of “against the law” that is not what people usually mean then you should have stated it up front.
I don’t really have the time to play this game with you, so this’ll be my last reply.
Cheers,
Jesse
Uh, all property rights emerge as a result of economic considerations. Read, for instance, Harold Demsetz’s 1967 article, “Toward a Theory of Property Rights.”
Eli,
Yep.
It’s pretty clear that Arrington’s definition of “natural behavior” doesn’t include rape and murder. You can say he’s imprecise, but to say he’s in favor of murder is a ridiculous strawman based on Maroon’s definition of “natural behavior”. Arrington’s argument that it is ridiculous that the behavior of watching a show on YouTube for free is breaking the law, while watching it on Hulu for free is legal, deserves a more thoughtful analysis.
Precisely! It’s a distinction that many don’t appreciate. I wrote about this awhile back in 2003 in the context of a “stealing music” discussion. (http://slashstar.com/blogs/tim/archive/2003/09/18/stealing-music.aspx).
“We use our understanding of real property to help understand property rights and ownership of (digital) information, but in my opinion it’s a weak analogy. The primary difference is that multiple parties can technically possess (and use) information without infringing on the value to or rights of others to consume the same information.”
It is not theft per se. But when you share that song, you violate an unspoken agreement you have made with the holder of the copyright. You agreed to enjoy the work but not to copy it and sell the copies or give them away.
So you say “I did not agree to anything”, but law gives the holder the right to say if copies are made or not, you may not *like* the law but you are still subject to it. To the extent that you decide to copy what is not yours to copy you make a slave of the copyright holder.
On the argument above, “What if I go into an artist’s studio, and paint a painting that looks like the one they have done?” Trespass aside, Even if your skill were equal to the original painters, your version would look different. Now if you used a matter-duplicator that would be a better analogy. Good thing we don’t have matter-duplicators yet.
And I don’t want to hear the old one “Well I never would have bought it anyway”. It was important enough to you to copy it. You liked the song or the artist enough to want to keep it. If there were no way to copy it you would have bought it.
Tim - You infringe on the value of the information by making it less unique than the copyright holder desired. (if even only by one copy although it’s never just one copy) Also you infringe on
the right of the “copy” “right” holder by usurping her position when you decide to make a copy and transfer it.
On the following parts of the discussion we probably agree: Length of a copyright monopoly and the raw deal the artist get from the record label. But then the deal between the artist and the label is just that between them. And the length of the monopoly needs to be worked on using the legal route, get the law changed back.
Oh and by the way “everything we do” with a computer may be copying but the line is not crossed moving the song from the hard drive to memory to play it, usually that copy dissolves away when the song is done playing.
I do stand with when the RIAA says I can’t rip a CD for my own use, but that’s a somewhat different kettle of fishes isn’t it.
Arguing there is a difference between copyright infringement and theft IS just semantics. ‘Proving’ that they are different justifies nothing and gets us nowhere. It’s just meaningless point scoring over a fairly irrelevant part of the bigger legal debate.
Is making a mixtape theft? Well, it’s a crime, but a very minor one. Is making a mixtape then selling it out of your car boot theft? Well, It’s a crime, and one that surpasses physically stealing single copies of the music from a store.
Weak ending to an overall weak argument.
Alex,
The economics of copyright infringement and theft are totally different. Conflating them leads to bad arguments and worse policy.
And, for what it’s worth, most copyright infringement isn’t a crime. Learn the difference between a crime and a tort and then we can talk.
Well, they are different, (not sure I agree that they are ‘totally’ different though). Theft and Copyright Violation do have similarities, just like different types of traditional theft have similarities. My point is that to argue over the semantics is utterly fruitless. It’s all down to the individual cases. the range of seriousness of traditional theft has a huge range, just as the range of seriousness of copyright violation also has a huge range. There are many, many cases of copyright violation that are far more serious than cases of traditional theft.
Your second statement, ‘most copyright infringement isn’t a crime’ also seems to be about to turn down semantic avenue. Before you do then, let’s just call them offences and be done with it.
Right, they’re “just” semantic differences, even though the difference between a tort and a crime means difference burdens of proof, different measures of justice, and different court systems.
*shrug*
If you don’t want to make a nuanced argument that’s ok by me. These distinctions matter economically, legally, and philosophically, though.