The Questionable Authority

I haven’t always had as much concern about copyright infringement as I do now, but I’ve always considered it to be a given that copyright infringement involves taking something that doesn’t belong to you without paying the owner. Taking something that doesn’t belong to you without paying the owner is, at least under any system of ethics that I’m familiar with, theft. Not “something like theft”. It is theft.

I was surprised (and a little disappointed) to find that a handful of people over at Pharyngula don’t seem to understand that view. There’s a discussion going on over there right now in a thread discussing Bill Dembski’s recent Intellectual Property oopsie. Nobody’s defending Dembski right now, but there are at least a few folks who seem to be advocating the position that copyright is somehow obsolete in the internet age. I was going to respond to them over there, but the response got a bit too long to work well as a comment.

The “copyright sucks” portion of the thread starts fairly early, in comment #4, when “Voting Present” wrote:

Can we skip the inaccurate “steal” substitution for “infringe”? When intellectual property rights go the way of the dodo, it will just make everything easier if we have kept the associated language clean and clear. What is meant in this case is “infringe”. You can’t “steal” information. Not even under current law.

That’s not the first time I’ve heard that “you can’t steal information” line. It’s a fairly common. It’s also a pure strawman, as The Ridger pointed out a couple of comments later:

He didn’t steal “information”, he stole a presentation of information: someone else’s camera work if nothing else.

She’s absolutely right, and I certainly couldn’t present a more concise and accurate explanation of the key distinction involved. In copyright infringement, you not only take “information,” you take information that someone has worked to present in a certain way. The fact that someone has chosen to present their work in an electronic format that lends itself to quick and easy copying and distribution does not make the work less “real” than something that was done with pen and paper, or paint and canvas, or chisel and marble, and it does not mean that it necessarily took less work to create. That’s something that I’d really like you to keep in mind as (or if) you continue reading this.

Jumping down to comment 40, we find Azkyroth making another argument commonly used to justify some forms of copyright infringement:

Mind supporting your implicit premise that downloading an MP3 is analogous to stealing a physical object?

(Craig makes essentially the same argument in comment 43.)

I wouldn’t argue that electronic copyright infringement is analogous to stealing a physical object. I’d argue that there’s absolutely no difference worth mentioning between the two – except possibly who the victim is.

In general, people who make things are paid for each copy. This is true not only for authors, for magazine publishers, for recording artists, for live performers. It’s also true for doctors, lawyers, plumbers, car manufacturers, building contractors, and dog breeders. It’s even true (at least in a sense) for bloggers like myself, Paul Myers, the rest of the Sciencebloggers, and quite a few other people who create things online today. When you create a copy of something for yourself without paying the maker, you are depriving them of their right to be paid for that copy just as surely as you’d deprive a store owner of their income by walking out with a CD in your jacket pocket.

There are some common counter-arguments to that, and some of them pop up in other comments. One of the most common is the “Two Wrongs” justification – the big bad (insert medium here) companies are twisted, evil, and charge way, way too much money so it’s OK to ignore their unreasonable demands for money (or demands for unreasonable amounts of money). That’s third grade ethics, at best, and the whole “Robin Hood” thing lacks a certain elegance when you include yourself among the poor that you are giving to.

Another is the “Free Advertising” argument. That’s the one that goes “downloading creates a buzz that generates more sales so I’m making money for the record company so I’m doing nothing wrong by not paying them”. A close cousin of that argument is the one that involves rectifying bad marketing decisions being made by the record companies. Neither is particularly good. Generally speaking, people off the street don’t get to make marketing decisions for companies. It may be true that free downloading is a good marketing tool, and that not allowing free downloads is a bad business decision. Saying that “bad business decisions” mean that it’s OK to download and share their products is like saying that it’s OK to walk into a grocery store, open a bag of chips and eat a chunk while offering the rest to other customers, then walk out without paying. The grocery store gets to decide what gets sampled, not you.

I’m not the biggest fan of a lot of the way copyrights are used (not to mention misused and abused) these days, but despite its flaws copyright is very important and needs to be taken seriously – particularly when it comes to online products. The internet is fantastic because it provides for so many different ways for authors to choose to distribute their work, and to choose if and how they want to be compensated for it. It’s possible to go with the iTunes model, and sell through a company. It’s possible to give away your work for free if you want, or to let people access your work for free while getting paid by advertisers. It’s possible to follow the Radiohead model, to follow a shareware model, or to create something entirely new. All of that is wonderful, in large part because it’s encouraging so many people to get out there and put their stuff out there.

But in the long term, that’s only going to work as long as the authors get the say in how they choose to distribute their work. An author has the right to tell you that you can read or watch or listen to his or her work for free. You don’t have the right to tell them that you are going to do so, regardless of their wishes.

I’m not going to sit here and tell you that I’ve never downloaded a song illegally. I will say that I haven’t done so since iTunes became available. But I’ve never pretended (at least as far as I can remember) that it was right.

P.S.: Having spent quite a bit of time pounding on Pharyngula commenters, I’d be remiss if I didn’t mention that there are quite a few other people posting in that thread who have a more reasonable understanding of intellectual property. In addition to The Ridger, GDwarf, Kevin Vicklund, DLC, and several others make some very good points.

Comments

  1. #1 gec
    November 27, 2007

    One problem I have with copyright is the way it always seems to be extended just before the mouse goes public domain. To my knowledge the last time anything went out of copyright was 1965. that’s just a bit too long in my opinion. Copyright was never meant to be perpetual but that seems to be where things are headed. For that matter works are going lost in the cracks – how many b movies from the 60′s only exist on deteriorating celluloid? When was that last time there was an author like Herman Mellville, whose genius was only recognized 30 years after his death? Moby Dick was a flop and under today’s rules would have remained outside the public domain until 1966. How likely is it that over 75 years it would have been lost forever?

  2. #2 hibob
    November 27, 2007

    infringement does not equal theft. The system of ethics we abide by in the USA has as it’s final arbiter the supreme court, which said:

    “(copyright infringement) does not easily equate with theft, conversion, or fraud… The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over copyright; nor does he wholly deprive its owner of its use.”
    http://www.theinquirer.net/en/inquirer/news/2003/09/20/riaa-collects-fines-doesnt-pay-artists

    In that case ( DOWLING v. UNITED STATES, 473 U.S. 207 (1985)) Dowling was convicted of copyright infringement but the theft conviction was overturned – because he didn’t steal anything.

    Infringement is interference with a government enforced monopoly, not theft.

    Here is Merriam Webster on Theft:
    “1 a: the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it b: an unlawful taking (as by embezzlement or burglary) of property.”

    The definition doesn’t include interfering with someone’s ability to distribute intellectual property for commercial gain.

    Here is Merriam Webster on Infringement (the relevant bit)

    “1: to encroach upon in a way that violates law or the rights of another

    That said, I’m not a fan of disregarding copyrights (I am a fan of having them end at a maximum of 40 years). Copyrights and patents were intended, from the beginning, as an incentive to create so that the public would benefit from more creations. A government enforced monopoly is the cost of that incentive, not the goal. Currently copyright law is being distorted towards perpetual monopolies that allow for maximum revenue extraction instead of striving to find the best balance between reward to the creator and cost to the public.

  3. #3 Alan
    November 27, 2007

    Well stated. One quibble: copyright does not rise out of the author doing work. Gathering and organizing the information to publish a telephone directory is a lot of work, but the resulting telephone directory is not protected by copyright. Rather, copyright protects the original expression of the information or ideas,the choices the author made in producing the work, etc.

  4. #4 derek
    November 27, 2007

    You’re just wrong. Words aren’t property. If they were, how could it be right, under 70-year copyright, for the owner to have to give the property up in year 71?

    The reason it’s right is that the words were never property in the first place. We, your peers, awarded you a *temporary* right to control who repeated your words, as a reward for writing them.

  5. #5 Armchair Dissident
    November 27, 2007

    Whilst I’m no supporter of the “information wants to be free” line, there is – however – a serious distinction between copyright infringement and theft.

    If I walk in to a shop and take a book of the shelf and walk out without paying for it, I have stolen from the shop (I’m no fan, either, of the word “shoplifting”. In this case, shoplifting is just theft). I have removed property from a shop with the intent of depriving that shop of that property.

    If I make a song available for download from the internet – or copy a CD for a friend – I have committed copyright infringement, but I have not stolen anything. This is not to say that such copying is therefore moral, but it is nevertheless not theft. It is not right; but it is not theft.

    I would give two arguments to support that contention:

    When I write an e-mail, I have created a copyrighted work. If I send that e-mail to another person, that person has no rights to that copyrighted work except the right to read it. If that person forwards that e-mail (either in part or in whole – at least in the UK, I know the US is different) that person has infringed my copyright. But it is not right to argue that he has therefore stolen from me.

    The deprivation of money argument is also faulty: Harvard and XVIVO made their copyrighted work available for viewing via the internet for free. There was no monetary consideration involved in viewing the work, but the authors retained all rights to the work. To claim that, therefore, by creating an un-authorised derivative work which was also (allegedly) subsequently released on the internet, the original authors are deprived of the money they could make, is clearly unsound. It is wholly dishonest, immoral and illegal, but it is not theft.

    I agree with you that copyright laws (both in the UK and the US) are – shall we politely say – not fit for purpose, and I also agree with you that copyright, nevertheless, is a Good Thing ™. But would contend that – whilst immoral and dishonest – copyright is not in anyway analogous to theft.

  6. #6 Mike Dunford
    November 27, 2007

    For both derek and hibob:

    Let me be clear: I am not arguing that words are property, and I am not arguing that copyright infringement is legally theft. I am arguing that it is morally indistinguishable from theft.

    Copyrights do expire, they should expire, and I agree with gec – they should expire a lot sooner than they do. However, a copyright does grant the creator the right to profit from his or her creation for the duration of the copyright.

    When you make a copy for yourself without compensating the copyright holder, you are taking something that doesn’t belong to you, you are doing so without permission, you are personally profiting from your actions, and you are denying the copyright holders the profits that are rightfully theirs. If there is an ethical distinction between that and stealing, I honestly don’t know what it would be.

  7. #7 Moopheus
    November 27, 2007

    “Copyrights do expire, they should expire, and I agree with gec – they should expire a lot sooner than they do. ”

    Weirdly the Surpreme Court more or less agrees, even if Congress does not. When the Sonny Bono extensions (passed rather blatantly at the behest of Disney and the other big media conglomerates–it’s no longer related to the needs of individual creators, hasn’t been for years) were challenged in court, the Court basically said, this stinks, but the Constitution gives Congress the authority to set the limit wherever it pleases, as long is it is some finite number. Curiously, the term for patents was explicitly fixed. Go figure.

  8. #8 MartinM
    November 27, 2007

    When you make a copy for yourself without compensating the copyright holder, you are taking something that doesn’t belong to you

    No, you are making something; nothing is being taken.

    If there is an ethical distinction between that and stealing, I honestly don’t know what it would be.

    That would be the ‘not taking anything’ part. Suppose I have a magic box that allows me to make a perfect replica of your car out of thin air. Are you seriously telling me that you see no ethical distinction between that and stealing your car? The former would upset you just as much, despite not actually depriving you of your car?

  9. #9 SMC
    November 27, 2007

    Is trespassing equivalent to theft? Because personally, I think trespassing is a better analogy for copyright and patent infringements than “theft”.

    The fundamental distinction between “gaining something without permission” and “gaining something while causing someone else to lose it” is an important one, I think.

  10. #10 Mike Dunford
    November 27, 2007

    Martin:

    No, you are making something; nothing is being taken.

    No. You are taking something that someone else made and reproducing it for yourself. You have made nothing original of your own. You are taking a copy of someone else’s original work for yourself, and disregarding their right to as you to pay them for that privilege.

    That would be the ‘not taking anything’ part. Suppose I have a magic box that allows me to make a perfect replica of your car out of thin air. Are you seriously telling me that you see no ethical distinction between that and stealing your car? The former would upset you just as much, despite not actually depriving you of your car?

    It wouldn’t bother me so much, but then I’m not Toyota. If, on the other hand, I had invested thousands of hours and millions of dollars in designing that car and producing the example you used as your prototype, I’d be bothered a great deal. You might not be robbing me of the materials used to produce the car, or the labor used to produce that specific vehicle, but you are depriving me of my just compensation for the time and effort involved in designing and developing the vehicle in the first place.

  11. #11 Armchair Dissident
    November 27, 2007

    Copyrights do expire, they should expire, and I agree with gec – they should expire a lot sooner than they do

    But possession of property does not expire. If copyrights can expire, and indeed should expire sooner than they do, then how can copyright infringement be theft, unless you would also contend that property ownership should expire?

    If I make a copy of the magna carta and make that available on-line, I have not committed an immoral act – I have not stolen anything and I have not infringed the copyright of anyone. If I make a copy of the original Mickey Mouse cartoon, I have not committed an immoral act – I have not stolen anything – but I have committed copyright infringement. But who have I stolen from?

    If I make a copy of an old Elvis record available on-line, I have not stolen anything, but I have infringed the copyright, but again, who have I stolen from? I can’t possibly have stolen from Elvis, but I have still committed copyright infringement. Would that still be the case if Elvis really was alive? If copyrights can and should expire, copyright infringement is immoral, but it is not theft.

  12. #12 MartinM
    November 27, 2007

    No. You are taking something that someone else made and reproducing it for yourself. You have made nothing original of your own. You are taking a copy of someone else’s original work for yourself, and disregarding their right to as you to pay them for that privilege.

    With respect, that’s a load of old cobblers. Were I taking something, they wouldn’t have it any more. You’re right that I am not making anything original; I am making a copy. Were I taking a copy, they would have one less copy.

    It wouldn’t bother me so much, but then I’m not Toyota.

    Exactly! Copyright infringement – one victim, the original creator. Theft – two victims, the original creator and the owner of the physical object taken.

    If, on the other hand, I had invested thousands of hours and millions of dollars in designing that car and producing the example you used as your prototype, I’d be bothered a great deal. You might not be robbing me of the materials used to produce the car, or the labor used to produce that specific vehicle…

    And if I had done, that would be worse, no?

  13. #13 Mike Dunford
    November 27, 2007

    SMC:

    The fundamental distinction between “gaining something without permission” and “gaining something while causing someone else to lose it” is an important one, I think.

    When you infringe a copyright, you do cause someone else to lose something. You cause the copyright owner to lose whatever they would have gained had you acquired the work the way you were supposed to.

    Armchair: In one paragraph, you say that infringing on a Disney Copyright is not immoral. In the next, you say that copyright infringement is not theft, but it is immoral. Which did you mean?

    In either case, copyright infringement means that you get to gain something without giving the person (or company) who owns the copyright the compensation that they should get. That does deprive them of something.

  14. #14 Mary
    November 27, 2007

    You don’t address the biggest point, the biggest difference between intellectual property and other kinds of property. If you own a certain amount of food, or gold, or whatever, and I take some, you have less food, or gold, or whatever. But if you own a recording of a song, and I make a copy, you *still* have the same recording.

    Copyright and theft would be the same thing only if we lived in the Star Trek universe, where all kinds of property could be duplicated via replicator.

    As it is, intellectual property is very, very different from other kinds of property with very, very different economics. There is no such thing as a shortage, and no such thing as economies of scale. The basic math of “supply and demand” gets all screwed up when the supply is infinite. And the moral rules get all screwed up too, when something can be stolen from you without reducing your inventory.

    You can still argue that making unauthorized copies is wrong, and you can certainly make analogies to property theft to support that, but the analogies aren’t perfect.

    I can think of a better analogy: a big company “dumping” products onto the market at below cost to put a smaller competitor (which can’t absorb the losses as well) out of business. That’s not theft, but it does deprive someone of an income stream they might otherwise have had. (As does making a public nuisance outside their store, or starting a smear campaign about their product, neither of which is theft, though they are wrong and do hurt someone’s bottom line.)

    “Dumping” was what Microsoft was accused of doing to Netscape a few years ago by bundling IE with Windows, and if I recall correctly, they were found guilty.

    And when you put something up on a P2P filesharing system, “dumping” is pretty much exactly what you’re doing, only, of course, you’re not just giving away something *similar* to someone else’s procut — you’re actually giving away their product. But the effect is the same, since their inventory is not reduced.

    The argument that filesharing is wrong because it’s like “dumping,” and dumping is wrong, makes a lot more sense to make that the argument that it’s like theft, which is wrong. In both cases the actual cost is a potential income stream, not a physical object of which you had a limited quantity.

    But then you have to be careful, because why aren’t libraries wrong by that argument? They certainly deprive some publishers of sales. And what about Walmart, driving smaller stores out of business without actually having to sell things at a loss (usually)? And what about “loss leaders,” offered by major stores? I was told by a small bookshop owner that Barnes and Noble was selling the new Harry Potter below cost in order to get people into the store, and that the small bookshop couldn’t compete… Is that illegal? The truth is, our system allows a lot of leeway in these matters, and the morality of depriving someone of potential income streams, as opposed to inventory, is pretty ambiguous.

  15. #15 Mike Dunford
    November 27, 2007

    Martin:

    With respect, that’s a load of old cobblers. Were I taking something, they wouldn’t have it any more. You’re right that I am not making anything original; I am making a copy. Were I taking a copy, they would have one less copy.

    They have – or rather had – the right to require you to pay for the copy you took for free. Taking the copy for free deprives them of that right. It’s not as concrete as a book or a CD, but I’m not sure that makes it less real.

    If, on the other hand, I had invested thousands of hours and millions of dollars in designing that car and producing the example you used as your prototype, I’d be bothered a great deal. You might not be robbing me of the materials used to produce the car, or the labor used to produce that specific vehicle…

    And if I had done, that would be worse, no?

    Only in the sense that stealing a thousand dollars from someone is worse than stealing ten.

  16. #16 Armchair Dissident
    November 27, 2007

    Armchair: In one paragraph, you say that infringing on a Disney Copyright is not immoral. In the next, you say that copyright infringement is not theft, but it is immoral. Which did you mean?

    Neither, and both. Infringing Disney’s copyright on the original Mickey Mouse comic is neither immoral nor theft. Infringing Elvis’s copyright on songs written and recorded long before his death is neither immoral nor theft.

    I then said:

    If copyrights can and should expire, copyright infringement is immoral, but it is not theft.

    In other words: under in the right circumstances copyright infringement should be considered “wrong”, and punishable through the civil courts, but it is nevertheless not theft.

    Theft of a physical object is relatively straightforward: Deliberately depriving someone of their property. Copyright is not that.

  17. #17 Mike Dunford
    November 27, 2007

    Mary:

    You make some interesting points, but I think there are a couple of things that you didn’t take into consideration.

    The most important of these, I think, is that in the internet era, intellectual property rights are often the only thing that the creator has. The property – whether songs, or text, or computer programs – doesn’t have any physical form. Under those circumstances, the only chance that the creator has to make any profit from their creation is if intellectual property rights are respected.

    To put it another way, when it comes to a lot of kinds of product, we do live in that Star Trek universe you just mentioned. People can record albums from home, distribute them, sell them, and never make a physical copy of their own. The same is true for text, for software, for lots of things.

    I can think of a better analogy: a big company “dumping” products onto the market at below cost to put a smaller competitor (which can’t absorb the losses as well) out of business. That’s not theft, but it does deprive someone of an income stream they might otherwise have had. (As does making a public nuisance outside their store, or starting a smear campaign about their product, neither of which is theft, though they are wrong and do hurt someone’s bottom line.)

    I don’t think that’s as good an analogy, honestly. Both the dumper and dumpee in your scenario buy their goods from someone else. In the case of intellectual property theft, the dumper is dumping something that only the dumpee has the legal right to sell in the first place.

    It’s also worth noting that in cases of dumping, the dumper is taking losses in the short term in the hopes of more income in the long term. In the copyright infringement, the people doing the “sharing” are getting things that they had absolutely no right to get for free in the first place.

    As far as the loss leaders and libraries go, yes, there are complexities when it comes to intellectual property. I just don’t think blatant copyright infringement is one of them.

  18. #18 Armchair Dissident
    November 27, 2007

    Sorry, I should add:

    Not all copyright infringement is immoral. Forwarding an e-mail is not necessarily immoral, but it is copyright infringement, and – technically – is illega.

    Not all copyright infringement is moral. Copying a CD for a friend that is too tight to buy a CD is immoral, but it is not theft.

    This is why it is copyright infringement, and not theft. How do you draw the line between outright theft and copyright infringement. How do you draw the line between “moral” infringement, and “immoral” infringement?

  19. #19 Armchair Dissident
    November 27, 2007

    The most important of these, I think, is that in the internet era, intellectual property rights are often the only thing that the creator has. The property – whether songs, or text, or computer programs – doesn’t have any physical form. Under those circumstances, the only chance that the creator has to make any profit from their creation is if intellectual property rights are respected.

    But what if the creator has no intention of making profit from their work?

    The issue with Demski is not that he deprived someone else of money, but that he either (depending on how you read it) passed someone else’s work off as his own, or passed his work as their own. In neither case was money required to change hands, and in neither case did the copyright holder loose any money.

  20. #20 Gordon
    November 27, 2007

    “Theft” means I don’t have it anymore. “Copyright infringement” means it may have been somewhat devalued.

    If you can recognize that, for example, not all wrongful deaths are first degree murder, you can surely recognize that copyright infringement is not the same as theft.

  21. #21 Mary
    November 27, 2007

    To put it another way, when it comes to a lot of kinds of product, we do live in that Star Trek universe you just mentioned. People can record albums from home, distribute them, sell them, and never make a physical copy of their own. The same is true for text, for software, for lots of things.

    I’d argue that things which can be infinitely reproduced are a fundamentally different kind of “property” than things of which a limited quantity exists. My point was that for right now, that’s a meaningful distinction. Only in the Star Trek universe would you be able to ignore the distinction. But your article doesn’t seem take recognize that distinction.

    I don’t think that’s as good an analogy, honestly. Both the dumper and dumpee in your scenario buy their goods from someone else. In the case of intellectual property theft, the dumper is dumping something that only the dumpee has the legal right to sell in the first place.

    Okay, they’re not completely equivalent. But the *effect* of filesharing is the same as the *effect* of dumping — loss of an income stream. (As opposed to loss of inventory.) This is why I think they’re more comparable than filesharing and theft are.

    My final point was that loss of an income stream is tricky ground, and it’s tough to come up with a general principle. And until we settle one one, copyright isn’t going to be so cut and dried as your headline makes it sound.

  22. #22 Nomen Nescio
    November 27, 2007

    you keep reiterating that copyright infringement involves taking something. i, like apparently many, disagree; it involves making something you had no right to make. the original owner of the original thing still retains possession and ownership of that thing, usually throughout the entire process, so nothing is taken.

    depriving the copyright owner of potential future income — like all copyright infringement (not all of it results in lost potential income, after all) — is deplorable, illegal, and immoral. but there is a moral distinction between it and theft. taking something from you which you already own is clearly not the same as illicitly preventing you from gaining something you have never owned at some unspecified future date.

    pet peeve number N+1: referring to copyright infringement as “piracy”. no, depriving someone of potential future income is not comparable to armed robbery, rape, and murder on the high seas, either.

  23. #23 MartinM
    November 27, 2007

    When you infringe a copyright, you do cause someone else to lose something. You cause the copyright owner to lose whatever they would have gained had you acquired the work the way you were supposed to.

    Well, no. If I download content with sales value of a million dollars, I haven’t deprived anyone of a million dollars of income. I can’t have, because I don’t have a million dollars. You’re assuming that the alternative to infringement is legitimate purchase; that leaves out not getting the damn thing at all. If I download something I have no intention of buying under any circumstances, I’ve deprived the maker of no income, nor of any physical object. If I keep that downloaded file for personal use only, and never redistribute it, I won’t deprive them of the opportunity to sell to others either. What, then, have they actually lost?

  24. #24 Drugmonkey
    November 27, 2007

    “And the moral rules get all screwed up too, when something can be stolen from you without reducing your inventory.”

    No, they don’t. The moral rules get all screwed up when someone really wants to do something that goes against what is otherwise their morality and needs to gin up some justification. Y’all defenders of download piracy don’t like thinking of yourselves as common thieves so you have to scrape up all sorts of narrow semanticisms, pin-head counting and irrelevant analogies. Sorry but it just doesn’t cover over the fact that you want to get something for free.

    The essential point raised in the library and expiration of copyright comments is that the morality of what theft, reasonable use, etc is essentially arbitrary, a matter of legalistic distinction. We have as societies agreed that libraries are not theft or infringement or immoral. Selling photocopies of the latest best-seller is not similarly protected. We have agreed that after copyright expiration an act that was illegal ten minutes before is now perfectly okay. Yes, these are arbitrary distinctions. Trying to make such distinctions conform to some universal ideals or code is a fool’s errand.

    So why don’t you downloaders argue it like that, eh? Admit that it is an arbitrary rule that you happen to disagree with and attempt to get the majority to see it your way. But don’t try to argue that downloading isn’t breaking the existing rule.

    tossing out another analogy as grist, what about used-paperback bookstores? buyers and sellers alike are conspiring to steal from publishers and authors, are they not?

  25. #25 Nomen Nescio
    November 27, 2007

    Y’all defenders of download piracy

    arr, ye scurvy nag of a cop’right holder! heave to an’ hand o’er yer intellec’l propr’ty right quick or ye’ll walk the plank afore three bells, shiver me timbers!

    copyright infringement is already illegal and immoral. it doesn’t get any more so by lame attempts to associate it with crimes it just isn’t.

  26. #26 dan
    November 27, 2007

    I believe in situational ethics when it comes to downloading items.

    I shy away from downloading music prior to its release. I don’t generally feel comfortable with taking physical possession of something before its intended street date. The lone exception for that has been the band Wilco, who have created informal pacts with their fans that have basically okayed illegal downloading of their albums prior to their release if fans pledge to buy the album through legal channels and drop a little bit of money towards a charity.

    I have no problem acquiring music through channels other than purchasing. Going to the library and borrowing a CD to burn, using LimeWire, or going to MP3 blogs through sites like HypeMachine – I have no problem with this. In the 90s, I spent so much money buying albums based on MTV airplay of one song – when there were no other real options – that I feel like I’ve given so very much money to the music industry on false pretenses and that it is therefore okay to get a little something back. I may have grabbed a few songs from the new Arcade Fire, but you know what? I bought two different Wallflowers albums. I think that, karmically speaking, it works out. I will say this: I’m far more likely to see a band live because of downloading, and that’s the primary revenue stream for this kind of act. The system has screwed me, but the band hasn’t, and now I’m in a position to reward the band for good stuff.

    I think, ultimately, that downloading music is no different (ethically speaking) than taping songs from the radio (like TQA and I used to do when we were kids), or borrowing tapes from friends and engaging in high-speed dubbing (like TQA and I used to do when we were kids). That is, to say, that someone has paid for the music that you’re enjoying, and that you’re enjoying it because of that payment.

    The question is (and it’s been raised here) – on the definition of “copyright infringement means that you get to gain something without giving the person (or company) who owns the copyright the compensation that they should get” – where does used book stores fit in? What about photocopying things? Used record stores? Burning a copy of a CD for someone? It’s a slippery slope, and it’s a tough one upon which to stand.

    That being said, I’m talking about downloading things for personal use only. I don’t, as a rule, share my files, and I don’t really use these things for any purposes other than personal. If I were to use something as part of a professional presentation, I would damn sure try to use things purchased through legal channels or – if I can’t do this – find an alternative. If you want to be a professional, act like a damn professional.

  27. #27 KeithB
    November 27, 2007

    “Well, no. If I download content with sales value of a million dollars, I haven’t deprived anyone of a million dollars of income. I can’t have, because I don’t have a million dollars.”

    Then it would be OK if I stole your car and ground it up into powder? After all, I would not have your car anymore and would be deriving no benefit from it.

    Copyright is more about *control.* By infringing copyright you are taking the control that an author is entitled to exhibit over his work. He alone should decide whether you get it for free or must pay for it.

    Copyright is only a contract between the Government and the artist. In return to eventually releasing the work into the public domain the government explicitly allows authors to get damages and penalties for infringers and acts as a sort of clearinghouse to help establish who has the copyright.

    I wonder if some of this could be solved by allowing corporations certain copyright rights – Let Disney have the rights to new expresssions of Mickey Mouse, but let the old expressions of MM lose copyright. Essentially, “Mickey Mouse” would be perpetually copyrighted, but we could copy and use Steamboat Willie at will.

  28. #28 Alan
    November 27, 2007

    Property 101: Property refers not to just a physical thing but, more basically, refers to a bundle of rights (e.g., possession, use, sale) granted by the laws or traditions of the prevailing society. So what is taken when you pirate a recording? Well, at least the right of the owner to dispose the recording as desired. If the owner wished to sell the recording, then what is taken includes the sale price that the owner was seeking.

    Even if you feel the owner didn’t lose a sale because you wouldn’t have bought the recording if you had to be honest and pay, there is the equitable concept of unjust enrichment. Unjust enrichment applies to any gain you inappropriately obtain at the expense of another.

    Property rights do disappear – ask any native people what happened to their right to possess and use theland and resources after “civilized” people took over. Ask the landowner who didn’t enforce his right to possession and now has a permanent easement, or worse, lost the land to squaters.

    Regarding Disney, Bono, etc., and the length of copyright. In the US, the length of copyright was increased in order to comply with certain international treaties. The US historically, and currently, lags behind most Western nations in author protection. That said, I disagree with the retroactive nature of the US changes.

  29. #29 Nomen Nescio
    November 27, 2007

    as i’ve mentioned elsewhere… the Baen Free Library, which is basically a copyright-ignored free-for-downloaders repository of SciFi books, has caused me to spend money on SciFi books i would not otherwise have purchased. bought ‘em brand new and in hardcover, too, which is unheard of in my house. Eric Flint’s explanation of why that repository exists is one most excellent introduction as to the real differences between copyright infringement and theft.

    come to think of it, the last two music CDs i bought were by artists i would never have heard of save for free, copyright-vague distribution of MP3 files. excepting other Baen Books readers, how many of the rest of you ever heard Heather Alexander, let alone decided to buy her albums?

  30. #30 Tyler DiPietro
    November 27, 2007

    There is one aspect of copyright that is getting overlooked here. If copyright is indeed a property regime, it is the only one I’m aware of that allows its owner to retain control after transferring ownership. Once I buy a CD, copyright restricts my right to dispose of that justly acquired property as I see fit in various. A much more accurate description of copyright is that of a monopoly privilege which redistributes property. This is not to say that it is an unnecessary policy or the violating it isn’t immoral, but calling it “property” is a misnomer.

    I’d also note that in this case Dembski not only committed plain vanillia copyright infringement, but plagiarism, which is the much more damning charge.

  31. #31 Mark P
    November 27, 2007

    The first mistake is in introducing the concept of morality as opposed to legality. Morality does not have an independent existence. Laws, and therefore legality, do. If you want to say that copyright infringement is immoral, please go right ahead, but don’t expect me to agree. My morality might be different. If you want to say it’s illegal, then, of course you are right.

    However, copyright infringement and theft of real property are different legally, which is the only way that matters, and that for most of the reasons already cited.

    I think one reason already cited is important. That is that the underlying intent of copyright is not to protect intellectual property but to stimulate development of intellectual property to benefit the public. Extending copyright too far, as is currently done, achieves precisely the opposite effect. For that reason, I think electronic copyright infringement, at least as far as music is concerned, is simply the market telling the content providers that they are failing at their jobs. I don’t say that that approach is legal or moral or even good. I just say that that’s what it is.

  32. #32 Xanthir, FCD
    November 27, 2007

    Regarding Disney, Bono, etc., and the length of copyright. In the US, the length of copyright was increased in order to comply with certain international treaties. The US historically, and currently, lags behind most Western nations in author protection. That said, I disagree with the retroactive nature of the US changes.

    While not a lie, this is a filthily dishonest statement. The reason that international treaties have long copyright periods is because the US leaned on them to do so. Then the US is allowed to ratchet up their copyright periods, just a bit longer than the treaties do. Then the treaties have to ratchet up their periods, just a bit longer than the US.

    Others in the thread have made several good argument as to why infringement is *not* comparable to theft. It’s not the same thing in any reasonable definition. Our making of this argument does *not* mean that we like infringing left and right. We simply recognize that there are dishonest people making bad arguments and trying to make something into much more than it is.

    Personally? I’m with those who say that property rights don’t work in the way we’re all used to when we’re dealing with digital goods, and we need to change out expectations of how we can profit from digital works. Whenever I produce something digital, I release it to the public domain. I disapprove of others taking credit for my work, but I freely allow them to take and redistribute, because it doesn’t cost me anything. I only expect to be paid for goods that are actually scarce. This includes, say, physical copies of my writings, but also things like my creativity itself – it’s a limited good that can be bought (via commissions).

    Until we readjust our expectations, though, I just try to keep people informed and do my tiny part in changing the existing rules to better reflect what I feel is right. Leading by example is my big thing. ^_^

    Now that I’ve said my piece, I must greatly agree with Norman Nescio (btw Mike, you really need to install the comment numbering hack). Freely reproducible goods have never existed in all of history, and so many people miss all the wonderful benefits they can bring. The advertising angle is one of the strongest arguments for making your information free.

  33. #33 MartinM
    November 27, 2007

    Then it would be OK if I stole your car and ground it up into powder? After all, I would not have your car anymore and would be deriving no benefit from it.

    Well, no. Because I wouldn’t have it any more either. Slight difference.

  34. #34 ArtK
    November 27, 2007

    Mary

    You don’t address the biggest point, the biggest difference between intellectual property and other kinds of property. If you own a certain amount of food, or gold, or whatever, and I take some, you have less food, or gold, or whatever. But if you own a recording of a song, and I make a copy, you *still* have the same recording.

    Ah, but the value of that recording has been lessened. That’s the issue with IP and copying. A copy made without the copyright owner’s permission (not the copy owner), reduces the value of the recording — that’s one less copy that the creator can profit from.

    There are a lot of reasons for people to create things — the joy of creation is certainly one of them. But the ability to earn an income is another one. If you eliminate the right of the creator to control their creation, then you also eliminate that motivation. Why should I make something if its value is going to be reduced because people can just make copies of it?

    There’s also the issue of derivative works. Perhaps I like what you did with my story, but perhaps I don’t. Am I to have no rights to my creation? Can I have no say in what others do with it? I have a vision about where that writing may go — if others can simply build on what I’ve done, then they’ve benefited from my work without expending as much themselves. I don’t like freeloaders.

  35. #35 Russell Blackford
    November 27, 2007

    Mike, while I’m not going to argue with your main point about there being merit in obeying the law, you don’t understand the policy justification for property in non-rivalrous resources. It is not the same as the justification for property in scarce resources.

    In one case, the policy is to encourage the creation of innovative forms of information, etc., in the public interest, for which reason a limited monopoly is granted even though the resource is not scarce once created. In the other case, the resource is scarce, setting up rivalries for it, with the possibility of violence. The resource must be allocated somehow in order to keep the peace.

    Yes, the law on non-rivalrous resources may well be analogous to that on scarce resources, but they are not the same and don’t have the same purpose, and it’s not clear that our moral attitudes to those laws must be exactly the same. We might think that the well-established body of law on scarce resources is fair enough and should be obeyed, while having a quite different attitude to some or all intellectual property laws.

    The concept of plagiarism is different again. The idea here is not so much about the allocation of resources – that may not be relevant as when two students collude on an assignment with one copying the other’s answer with her consent. It is mainly about someone gaining an unfair advantage in some situation where merit is being addressed.

  36. #36 MartinM
    November 27, 2007

    Our making of this argument does *not* mean that we like infringing left and right. We simply recognize that there are dishonest people making bad arguments and trying to make something into much more than it is.

    I’m glad you brought that up; saves me the trouble. I’m not exactly fundamentally opposed to copyright, given that I make my living writing commercial software. I fully understand the need for legal protections. I just think that these broad, sweeping principles that are brought to bear really don’t stand up to scrutiny.

    No, infringement is not equivalent to theft. Theft is not equivalent to theft, unless you think that robbing a bank is exactly the same thing as stealing a loaf of bread to feed a starving family. Infringement is not equivalent to infringement, unless you think that uploading a cracked version of $10k software so that anyone can get it free is exactly the same thing as watching an episode of the Simpsons online. The idea that you can take two broad, complex categories separated by broad, complex technological and practical differences and say ‘well, hey, they’re basically the same, right?’ is utterly ludicrous. It requires one to completely ignore context, and context is what really matters.

    To take an example, the company I work for produces promotional CDs containing literature and demo movies of our software. We also produce CDs containing live, 30-day demos of our software. And we produce CDs containing the software itself. Copying any of the three is copyright infringement, but it sure as hell isn’t the same thing in each case.

    In the first case, you’re doing us a favour. You’re giving us free advertising, and I’m all for it. In the second case, it would depend on the demo; whether it was something we wanted kept under wraps, or were happy to have widely distributed. In the third case, you’re screwing us, and we’ll see you in court.

    So simplistic equivalences, like ‘infringement=theft,’ or ‘infringement is immoral,’ or even ‘infringers are common theives‘ don’t hold up.

    But they’re not wrong in a particularly subtle way. This isn’t wrong in the way that, say, neglecting viscosity in fluid dynamics is wrong. This isn’t even flat-Earth wrong – at least the Earth looks sort of flat. This is more ‘I have a purple dragon in my garage’ wrong. This is Scientology wrong. This is about as wrong as you can be without dying.

    Well, OK, I exaggerate a little. But it’s still always struck me as one of those things that many intelligent, reasonable people accept for no apparent reason. And having discussed it with many such people on many occasions, I must confess to being no closer to understanding it.

    Perhaps I’ll have more luck tomorrow ;)

  37. #37 SMC
    November 27, 2007

    It still sounds like trespassing is a better analogy than “theft”. It’s an infringement of someone’s legal authority to control the use of a resource rather than removal of the resource from the person’s ownership.

    Trespassing: without permission, I enter your house, wander around, then leave. In this hypothetical situation, I have plainly committed both a moral and legal wrong, but I have not “stolen” from you. Your house is still yours and is still intact. Unless, of course, you want to claim that I’ve “stolen” otherwise-unused space in your house temporarily, which strikes me as what you seem to be claiming by equating copyright infringement with theft.

    Theft: I alter the deed to your house to put it in my name instead. Now I have your house and you don’t. Still a moral and legal wrong, but plainly a different kind of situation.

  38. #38 Coin
    November 27, 2007

    Let me be clear: I am not arguing that words are property, and I am not arguing that copyright infringement is legally theft. I am arguing that it is morally indistinguishable from theft.

    Well, okay, but that’s not what you said. What you said is, “it is theft”.

    Now, there might be some reasonable discussion that could be had about whether or not copyright infringement is morally distinguishable from theft. But I don’t think any such discussion is possible when you start out the discussion with loaded semantics, then when people naturally start debating your semantics you try to move the goalposts to “well, I was just talking in a moral sense…”.

    In other words, comment #6 to your own blog post is too late to start being “clear”.

  39. #39 Mike Dunford
    November 27, 2007

    Working my way slowly through the comments that have accumulated while I was away from the desk…

    Armchair:

    This is why it is copyright infringement, and not theft. How do you draw the line between outright theft and copyright infringement. How do you draw the line between “moral” infringement, and “immoral” infringement?

    I’d say that’s pretty easy. With the exception of things like email that might be technically copyrighted, but which nobody treats as such, there is no moral copyright infringement. The fact that the copyright is possessed by a major slimesucking corporation and has been for the last eon doesn’t make it morally acceptable to violate their right.

    The issue with Demski is not that he deprived someone else of money, but that he either (depending on how you read it) passed someone else’s work off as his own, or passed his work as their own. In neither case was money required to change hands, and in neither case did the copyright holder loose any money.

    Dembski did not deprive the copyright owner of money because they were not asking for money. The copyright owner is allowed to decide whether or not to charge for the product. If they decide not to charge for it, they have the right to decide who to give the material to and under what circumstances. Credit card marketers may be giving away t-shirts to people who fill out forms, but that doesn’t mean you can grab one and run.

    Gordon:

    If you can recognize that, for example, not all wrongful deaths are first degree murder, you can surely recognize that copyright infringement is not the same as theft.

    I recognize that there is a difference between petty theft and grand theft auto, but that doesn’t mean that petty theft isn’t theft. I recognize that there’s a difference between negligent homicide and 1st degree murder, but that doesn’t mean that both crimes don’t involve killing someone. The severity of the offense varies. The basic nature is the same.

  40. #40 Mike Dunford
    November 27, 2007

    Nomen:

    you keep reiterating that copyright infringement involves taking something. i, like apparently many, disagree; it involves making something you had no right to make. the original owner of the original thing still retains possession and ownership of that thing, usually throughout the entire process, so nothing is taken.

    I just don’t think that there’s a significant moral difference between grabbing an illegal copy of something for yourself and taking something physical. At most, the difference is only in whether someone else loses something physical. The person is still personally gaining by obtaining something that they have no right to. They are doing so despite the fact that someone else has the rights to the thing that they are copying, and they are doing so at the expense of – at minimum – those rights.

    If you want to split hairs, that’s fine, but that’s all the semantic argument between “making” and “taking” really is.

  41. #41 Drugmonkey
    November 27, 2007

    nomen, the baen free library comment is quite, er, curious in this thread because the referenced intro makes it quite clear that this is voluntary on the part of the authors. they sign up. they decide what books to offer. and Flint makes it clear that his view is that authors should use the first book in a series as bait while not making the rest available. his argument is quite compelling so far as it applies to convincing content providers of a certain type to market their body of work with selective chumming of free material.

    this has absolutely nothing to do with consumers making the choice for the author.

  42. #42 SMC
    November 28, 2007

    At most, the difference is only in whether someone else loses something physical.

    Are you suggesting that if someone stole your car, that you wouldn’t really be bothered by the loss of the car, but only in the fact that the car thief didn’t get your permission first?

    Your statement sounds a bit like saying that there’s no real difference between assault and battery, or that there’s no real difference between “voyeurism” and “sexual assault”. “At most, the difference is only in whether the victim suffers an actual injury.”

  43. #43 Meng Bomin
    November 28, 2007

    I have to agree with many of the commenters here that infringement and theft are two different concepts, and as has been pointed out by many of them, the difference is in what is lost.

    In both theft and copyright infringement, the perpetrator gains something, be it an item or information. However, in the case of theft, the owner of the item actually loses the item. In the case of infringement, the only loss is in opportunity cost.

    Now, as pointed out earlier, there are different types of theft and infringement. If you steal an item from the producer, then they are losing both the item and their ability to sell it for income. Whereas, stealing from an owner of the same item does not necessarily hurt the producer (unless the thief considered buying it instead).

    In the case of infringement, it doesn’t matter whether the copy was of the producer’s content or of a consumer’s, neither have actually lost the content, though there is the potential loss of business for the producer (as before).

    On the other hand, infringement can be potentially more dangerous to producers than theft, because there is the potential to make an unlimited number of copies and dump them on the market with much less effort than it would take to steal the equivalent amount of physical items.

    I would say that in general, copyright infringement is wrong by itself if it serves to undercut the income of a content producer or if it serves to give the infringer enjoyment that would otherwise only be available to those who have bought the rights to it. However, this is simply my personal moral views, and such views are not universal.

    I think that copyright should expire sooner as others have said, but I feel that that fight should be made through due process of law rather than protesting through infringement.

  44. #44 Kristjan Wager
    November 28, 2007

    “Theft” means I don’t have it anymore. “Copyright infringement” means it may have been somewhat devalued.

    That’s pure nonsense. If I hack into your computer and steal your personal information, you will still have it, yet it is theft.

  45. #45 Azkyroth
    November 28, 2007

    n addition to The Ridger, GDwarf, Kevin Vicklund, DLC, and several others make some very good points.

    Emphasis mine. Bit of advice: praising someone who has been trapped in what is clearly either a self-serving lie or reckless disregard for the facts about the meaning of a portion of the United States constitution as “reasonable” and someone who makes “some very good points” generally doesn’t help your case.

    I have neither time for, nor an interest in, engaging your argument above. I do, however, have a more general question: is there any argument for a change in the general position of society on a given matter than you think should be subject to reasoned debate and accepted or rejected on its merits, rather than simply buried under a regurgitated deluge of “the way things are”?

  46. #46 MartinM
    November 28, 2007

    If I hack into your computer and steal your personal information, you will still have it, yet it is theft.

    Try rephrasing that in a way that doesn’t beg the question.

  47. #47 Armchair Dissident
    November 28, 2007

    Mike:

    The fact that the copyright is possessed by a major slimesucking corporation and has been for the last eon doesn’t make it morally acceptable to violate their right.

    And I’m not claiming that it is. I’m simply stating that it is not, therefore, theft. It is a violation of their (allegedly temporary!) right to control how copies of their work are distributed, but it not theft. That it is not theft does not automatically make it okay. Similarly, that it is copyright infringement does not automatically make it wrong.

    Let me be quite clear: downloading music that you have not paid for, and that the copyright owner has not authorised is wrong. But it is copyright infringement, and not theft. Demski is a scum-sucking bottom-feeder, and his actions with regard to the video are wrong, but it is copyright infringement and not theft.

    I will concede that there can be an equivalence between copyright infringement and theft; just as arguments can be made for equivalence between patent infringement and theft, or trademark infringement and theft; but that does not mean that, therefore, copyright infringement is theft, and I do think that it is important to make the distinction. But perhaps we are just semantically splitting hairs on the more clear-cut cases.

    Krisjan:

    If I hack into your computer and steal your personal information, you will still have it, yet it is theft.

    No, it’s not. It’s the criminal misuse of a computer, possible trespass, violation of your right to privacy, and possibly a prelude to fraud, but it is not theft. Actually, it’s probably worse.

    SMC:

    Are you suggesting that if someone stole your car, that you wouldn’t really be bothered by the loss of the car, but only in the fact that the car thief didn’t get your permission first?

    Erm, if they got your permission first, it – by definition – wouldn’t be theft :)

  48. #48 mh
    November 28, 2007

    Mike, sorry to go all “Freud” on you, but are you trying to strongly equate copying to theft because you feel guilty for copying music in the past? When you began buying music from iTunes, did you also purchase all the music that that had previously downloaded for free?

  49. #49 Nomen Nescio
    November 28, 2007

    I just don’t think that there’s a significant moral difference between grabbing an illegal copy of something for yourself and taking something physical.

    so long as we can agree that there is a difference, i’ll be happy to leave it to the moral philosophers to split hairs over whether it is a “significant” one or not. although, if you seriously think that the difference between making and taking is one of hair-splitting caliber, i may just have to give you up for lost, i’m afraid; that difference is one i myself cannot see as anything less than significant!

    and the reason i brought up the Baen Free Library was to point out the differences in results. i realize that the differences in voluntarity surely matter, but the eventual outcomes of my patronizing that “library” are nothing like either the results of theft, nor like the results of a willing donation — nor even like the results of my going to an actual library. i think these differences in outcome, too, are significant.

  50. #50 mh
    November 28, 2007

    The Baen Free Library (of Sci-Fi) has already been mentioned. I would very much recommend reading the front page, where author Eric Flint explains the rationale behind the project.

    Personally, I’d never heard of Flint, but I’ll read some of his work, and if I like it, I’ll probably buy some of his other stuff.

  51. #51 Caledonian
    November 28, 2007

    Creators of content are selling a product. An abstract product – it’s basically access to what they’ve created. Sometimes they sell the thing they’ve created – or in the case of data, the rights to the things they’ve created – but in most cases, what’s being sold is access to the product.

    When you download content without paying for it, you’re stealing the access they’re selling. Period. It is a form of theft.

    The sellers aren’t losing anything when you steal access to their content, you say? Wrong – they’re losing your money, the money that you would have to pay to access their product, and they are effectively losing the ability to control access to the things to which they own the rights.

    But content copying is easy, and quickly rewarding, and rarely has obvious consequences. So people do it, and then feel the need to justify it. It’s like you’re all a bunch of teenagers convincing yourselves that shoplifting isn’t really stealing, and anyhow everyone does it.

  52. #52 Matt Penfold
    November 28, 2007

    “Gathering and organizing the information to publish a telephone directory is a lot of work, but the resulting telephone directory is not protected by copyright.”

    Er, yes it is. Try looking at BT!

  53. #53 Matt Penfold
    November 28, 2007

    If the law does not regard taking copyrighted content without permission as theft then why are people who steal copyrighted content on a physical medium (a book or CD for example) charged with theft of property to the full retail value of the stolen item ? Surely they should only be charged with theft of property to the value of the difference between the cost of the physical item and the cost of the online, digital, item ? After all most of the cost of a book or CD is paying for the contents, not the medium but there are those here who say you cannot steal content so one must assume they regard theft of CDs as a very minor offence, seeing as how CDs only cost a few pence to make.

  54. #54 Mark P
    November 28, 2007

    It’s pointless to try to compare copyright to theft because without the specific provision of the Constitution and laws enacted under that provision, there is no such thing as copyright. However, the legal concept of theft exists outside and previous to the Constitution and any federal or state laws. Theft is illegal under common law; copyright is a relatively recent invention and it exists for entirely different reasons. Copyright, as I said before, exists not to benefit the creator of intellectual material, but to benefit the public. Benefit to the creator is a byproduct.

    This is what the Constitution says: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    As you can plainly see, the intent is to promote progress in science and “useful arts”. That is the goal. The method to achieve that goal is by giving the creators limited exclusive rights to their creations. (Hmm … “useful arts?” Based on that, I don’t think a lot of things that are copyrighted are constitutionally protected.) So theft and copyright infringement are different not just by some twisted logic but by definition.

  55. #55 Matt Penfold
    November 28, 2007

    “It’s pointless to try to compare copyright to theft because without the specific provision of the Constitution and laws enacted under that provision, there is no such thing as copyright”

    Copyright is also covered by international law and treaties to which the US has signed up. Thus the provisions of the US constitution are amended by international law which has precedence.

  56. #56 Nomen Nescio
    November 28, 2007

    Caledonian, the debate seems to be over whether the word “theft” can be reasonably applied to abstract objects (such as “access to [something]“). some, myself included, essentially argue that that’s too much of a stretch and that “theft” should be reserved for misappropriating tangibles or at least some manner of tangible-equivalents.

    (embezzlement is still “theft” in my eyes, for instance, even if the money “stolen” may not have existed as tangible cash at the time. still, its loss meant a material deprivation for the victim, which is what i see as crucial to the word’s meaning.)

    as well, i’m struggling to remember when i might ever have downloaded something i might have been willing (at the time) to even grudgingly pay any sum of money for. i do not think i have, although i have found myself paying for stuff i downloaded after the fact. hence, it’s not straightforward or undebatable that anybody’s losing “the money i would have paid” when i download something, since the money i would have been willing to pay at the time is normally zero. if i could not have downloaded, i would have done without, and the content creator would likewise have done wholly without.

  57. #57 chili pepper
    November 28, 2007

    As far as I can tell, the only people who don’t have a problem with copyright infringement have never themselves produced anything worth stealing.

  58. #58 Matt Penfold
    November 28, 2007

    Nomen Nescio,

    Do you accept then that people who steal books, CDs etc should not be charged with stealing items to their full value as most of the value of a book or CD comes from the content and not the medium ? In otherwords someone who steals a book should only be charged with stealing property worth however much it cost to physically make the book ?

  59. #59 Mike Dunford
    November 28, 2007

    What Caledonian said.

    The primary justification, at least as far as I can tell, being used to differentiate “copyright infringement” from theft is that the thing that is being acquired illegitimately from the the person offering it for sale has no real existence.

    I’m sorry, but that is a hairsplitting difference.

    The justification that I’ve seen a couple of people offer – I would never have bought it, so I didn’t really deprive the copyright owner of their potential income is juvenile, at best. If you aren’t willing to pay the asking price for the item in question, you don’t get to take it for free.

    For those who want to equate copyright infringement with trespass, OK, I can go along with that. It’s just like trespassing. In a hotel room at night. Or Disney World while it’s open. Which, in either case, is a form of theft.

  60. #60 Mark P
    November 28, 2007

    Matt Penfold – nothing trumps the Constitution. The very authority under which treaties are engaged in and enforced in the US stems from the Constitution. Do you think the Supreme Court would enforce a treaty that eliminated freedom of speech?

  61. #61 Nomen Nescio
    November 28, 2007

    Matt,

    punishment for a crime should be set at a level that adequately discourages criminals without still being disproportionate to the perceived severity of the crime. theft of a retail product being punished to approximately the retail price of the item seems about right to me, although others might disagree. i’d actually add some percentage of the price to the punishment, just to underline that this is punishment for a crime, not merely an alternate and somewhat rude way to conduct a business transaction.

    where the item got its value is less important, to me, than that it was being offered for retail sale. IMO, the person robbed here is the seller, not the content creator. how and why they set their price tag — or even whether that price was “correct” or appropriate for the item — is immaterial to me.

    if you somehow manage to actually steal some content directly from the content creator (perhaps by nicking the only extant copy or final draft?), then the value of the item stolen is effectively the time and effort needed to create or recreate the item; presumably a great deal, in the case of most books and music albums.

    but if you illicitly copy that item, and redistribute it in such a way as to damage or destroy the original creator’s market value — that’s a rather more complex issue, and i think one of the very problems that copyright law was originally created to address. it’s still a serious crime and a moral wrong, but it is not the same crime nor the same wrong as that of theft. it’s more like a very predatory business practice that unfairly slants the market against the original creator, who certainly has been wronged and should have cause for a lawsuit.

    chili pepper,

    speaking for myself, i certainly do have a problem with copyright infringement. i haven’t seen many people here claim they don’t mind it, in fact. i just don’t have the exact same problem with it as i have with theft.

  62. #62 Mark P
    November 28, 2007

    One additional comment for Mike – here is the relevant section of the Constitution:

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land …”

    Note that treaties are considered “law”. Besides which, the copyright enforcement we are talking about here is made under federal law, not treaties (which have been promoted, as noted above, by the US in any event).

    Chili Pepper, is that your best argument?

  63. #63 Matt Penfold
    November 28, 2007

    Mark P,

    The US courts may not think anything trumps the constitution. They are wrong under international law. This why we were able to prosecute Germans at Nuremburg, and others who have committed gross violations of international human rights laws.

    If we took your position we would be forced to accept that if something was legal in the country where it occurred then international cannot be applied even if the law in that country is contrary to international law.

    Of course we know the US thinks it is above international law so that may explain your mistake.

  64. #64 chili pepper
    November 28, 2007

    Mark P wrote:
    Chili Pepper, is that your best argument?

    Ain’t an argument, just an observation.

  65. #65 MartinM
    November 28, 2007

    The primary justification, at least as far as I can tell, being used to differentiate “copyright infringement” from theft is that the thing that is being acquired illegitimately from the the person offering it for sale has no real existence.

    No. If acquiring something with no real existence required removing it from someone else’s possession, that would be theft. It’s specifically the fact that nothing is being removed from anyone’s possession that distinguishes the two cases.

    The justification that I’ve seen a couple of people offer – I would never have bought it, so I didn’t really deprive the copyright owner of their potential income is juvenile, at best.

    It’s not a justification. It’s merely a counter to the claim that potential revenue is being lost. An argument against one position does not constitute support for another.

    In fact, I haven’t seen anyone arguing that copyright is always bad, or that infringement is always fair and justified. What people are arguing for is nuance. We criticize your position because we consider it to be lacking in that nuance, and thus condemning as theft activities which we consider perfectly innocent. That doesn’t mean we consider all infringement innocent.

  66. #66 Armchair Dissident
    November 28, 2007

    Nomen:

    theft of a retail product being punished to approximately the retail price of the item seems about right to me, although others might disagree. i’d actually add some percentage of the price to the punishment, just to underline that this is punishment for a crime

    Here’s an irony regarding the “copyright is theft” argument: in the UK, the penalty for copyright infringement can be 10 years in jail and an unlimited fine. The normal punishment for shoplifting is a caution. If a caution is considered insufficient, the next most common punishment is a �50 on-the-spot fine. The normal punishment for burglary or robbery – for a first offence (or, more accurately, the first offence where you are caught) – is community service.

    The normal punishment being sought by the record companies for copyright infringement by making a song available for download is $750/song. There is every indication that music rights holders in the UK will be seeking similar penalties.

  67. #67 Matt Penfold
    November 28, 2007

    Mark P,

    One thing I would add. The US Supreme Court may be able to rule a law or treaty is unconstitutional, and the case of domestic laws set them aside. However it does not have the power to set aside international, only state that in a particular case international law does in not in accordance with the US constitution. That would not mean that the US no longer has to comply with that aspect of international law though as the adjudicating bodies on international law, such as the WTO or International Criminal Court are not subject to US court decisions.

    Thus the US government could find itself in violation of the contititution and international law at the same time. That may cause it no ends of problems but it is a problem for the US government and not international law. Despite ruling by the Supreme Court the US may well find itself facing sanctions by an international body. Such may well happen with regards the US prohibition on online gambling. The US is in breach of international law over that, regardless of what domestic US courts have said, and as such faces sanction such as allowing the complainent nations remove intellectual property protections for IP owned by US companies or citizens.

    So claims the US constitution trump internation law are wrong.

  68. #68 Nomen Nescio
    November 28, 2007

    If you aren’t willing to pay the asking price for the item in question, you don’t get to take it for free.

    you’re still begging the question of whether something was taken, and if so, what.

    as well, i’m sorry, but if the issue of an item’s “really existing” or not can be honestly called a hairsplitting difference, then that item probably does not really exist.

    of course intellectual property has a manner of real existence. it’s just not the same meaning of “existence” as tangibles have; the songs on my MP3 player (yes, i bought the CDs fair and square — don’t try to tell me i don’t have a right to rip the songs, for i should fart in your general direction and call your father a hamster) certainly “exist”, but not in the same meaning of “to exist” as the MP3 player itself “exists”. and yes, i think that difference should matter to the law and even to the punishments for breaking the laws.

  69. #69 Matt Penfold
    November 28, 2007

    “punishment for a crime should be set at a level that adequately discourages criminals without still being disproportionate to the perceived severity of the crime. theft of a retail product being punished to approximately the retail price of the item seems about right to me, although others might disagree. i’d actually add some percentage of the price to the punishment, just to underline that this is punishment for a crime, not merely an alternate and somewhat rude way to conduct a business transaction.”

    So in fact you do see taking IP without consent as theft, despite your protestations to the contrary. Either IP has value which can be stolen or it does not. You cannot claim it has when it is on CD but not when it is an MP3.

  70. #70 Mark P
    November 28, 2007

    Matt, just how do you think “international law” gets made? Does it appear out of nothing by an act of god? International law is based on treaties, which have the force of law in the US only because the Constitution says they do. International law is, of course, an oxymoron. It is enforced only if the subject of that enforcement agrees, or if it is forced to by military action or threat of military action. That’s why the Allies could try Axis leaders for war crimes after WW II.

    As I said, in the US, nothing trumps the US Constitution. Congress and the President can act only in accordance with the provisions of it. Of course I know that the current president acts outside the Constitution, but that is only because the current Congress lets him get away with it without impeaching him. But what I said is true in principle, and what you say is not true in principle.

  71. #71 Matt Penfold
    November 28, 2007

    Nomen Nescio,

    There is no begging the question at all that I can see. Intellectual Property is still property. The idea that there is any significant difference just because something can be touched seems to be silly to me. Why is taking an MP3 of a music track any better than taking a CD with the same content ?

    You have argued that taking a CD without permission is theft. No argument there of course. You also argued that when charging a person with such a theft it is the full retail value of the CD that should be taken into consideration, despite the fact much of the cost of a CD is for the contents, not the CD itself. However you seem to also be saying you cannot steal an MP3 file, so one must conclude that theft of a MP3 player complete with contents is only actually theft of the player itself regardless of any value of the contents.

    That seems to me to be very very silly indeed. Why would theft of a CD have the value of the contents taken into consideration but theft of an MP3 player complete with contents, possibly preloaded, not ?

  72. #72 Nomen Nescio
    November 28, 2007

    Matt Penfold,

    that whole paragraph of mine should have never been written; i should simply have told you that you’d picked an invalid analogy. stealing a (printed) book or CD is not a good example of copyright infringement or intellectual-property theft, because the item stolen there has tangible existence and an individual price tag. hence, you can’t extrapolate from that situation to the copyright infringement problem, and my discussion of how to punish theft of tangibles was quite off topic.

    more on the topic, Matt: when i take a music CD which i have legally purchased, convert the data on it to MP3 format, and listen to it on my MP3 player, am i committing a crime? if so, why, and how ought i be punished? if copyright infringement truly is theft, then how can i be said to “own” the books and CDs i have lawfully purchased?

  73. #73 Armchair Dissident
    November 28, 2007

    Matt Penfold:

    Either IP has value which can be stolen or it does not. You cannot claim it has when it is on CD but not when it is an MP3.

    In the UK, if I have a CD I cannot, legally, put that CD onto a computer or onto my iPod. My entire collection of CDs which reside on my iPod are copyright infringements. Is it clear that this is theft?

    My fiance’s car only has a tape player. We sometimes copy CDs to tape in order to play them in the car when there’s nothing on the radio. In the UK this is copyright infringement and is illegal. Is it clear that this is theft?

    Technically, according to this argument, yes it is: both otherwise seemingly innocent actions are theft. If I own a CD, the copyright holder has only granted me the license to listen to that copy of the copyrighted work, any other copies are unauthorised and illegal.

    Many years ago I bought an album by a group called Death Angel. My copy of the album is now all but inaudible. I would like to replace it, but I can’t; at least not legally. It does not appear to be available for download anywhere, and I have never seen it in the shops. If I download it from an unauthorised source, I have committed copyright infringement – but from whom have I stolen?

    Bear in mind that actions Americans consider to be perfectly legal under “fair use” doctrine are illegal in other countries. The UK, for instance, has no legally defined concept of fair use, merely an understanding by the major recording industries that they won’t prosecute; but those actions – in the UK – are still copyright infringement.

  74. #74 Matt Penfold
    November 28, 2007

    “As I said, in the US, nothing trumps the US Constitution. Congress and the President can act only in accordance with the provisions of it. Of course I know that the current president acts outside the Constitution, but that is only because the current Congress lets him get away with it without impeaching him. But what I said is true in principle, and what you say is not true in principle.”

    You keep saying it, and each time you are wrong. Just because US law says that does NOT mean it is correct. The US, and its citizens, are still are required to abide by international law REGARDLESS of what any US court says. Failure to do so may well mean they face action under international law. The fact that the US has not signed up to the International Criminal Court does not mean that Americans cannot be indicted by it. The can. The fact that the US has not signed up to it just means there is no legal obligation on the part of the US to extradite those so indicted. No ruling by the US Supreme Court could alter whether an US national is indicted or not and the ICC need take no notice of any ruling by any US court. It may effect the practicalities of bringing a US national to justice of course, but in principle US court decisions would have no effect. Likewise with the dispute over online gambling. US law prohibits US residents from gambling online, and makes it an offence for non-US companies to enable US residents to gamble. This law has already been declared unlawful but the WTO. The US now has a choice of amending the law or facing sanctions by not only the countries making the complaint but by others who have an interest. The EU has already declared it has such an interest. It will not matter what rulings any US court makes, as the US courts do not have jurisdiction or standing in the matter. If the US fails to comply with the WTO ruling it will face sanactions, and quite possibly from Europe and there will nothing the US courts can do about it.

    So sorry, you are wrong. It seems that international law DOES trump US law, regardless of US court rulings.

  75. #75 Matt Penfold
    November 28, 2007

    “In the UK, if I have a CD I cannot, legally, put that CD onto a computer or onto my iPod. My entire collection of CDs which reside on my iPod are copyright infringements. Is it clear that this is theft?

    My fiance’s car only has a tape player. We sometimes copy CDs to tape in order to play them in the car when there’s nothing on the radio. In the UK this is copyright infringement and is illegal. Is it clear that this is theft?”

    The answer is no. Whilst strictly against UK law on IP it has no equivalence to theft for the simple reason that you have not given any IP to a third party. Should you have made copies and given them to friends, made them available to download or sold copies then I would consider what you are doing the equivalence of theft.

    “Many years ago I bought an album by a group called Death Angel. My copy of the album is now all but inaudible. I would like to replace it, but I can’t; at least not legally. It does not appear to be available for download anywhere, and I have never seen it in the shops. If I download it from an unauthorised source, I have committed copyright infringement – but from whom have I stolen?”

    You have stolen from whomever currently holds the intellectual property rights. Simple question to which there is a simple answer.

    “Bear in mind that actions Americans consider to be perfectly legal under “fair use” doctrine are illegal in other countries. The UK, for instance, has no legally defined concept of fair use, merely an understanding by the major recording industries that they won’t prosecute; but those actions – in the UK – are still copyright infringement.”

    US law on IP does not seem to be in accordance with internation law on IP.

  76. #76 Armchair Dissident
    November 28, 2007

    The answer is no.

    But I’ve committed copyright infringement. And – according to the argument – copyright infringement is theft. Ergo I’ve committed theft. Let’s make this a bit more awkward: the CD belongs to me but I put it on a tape for my fiance to listen to when I am not in the car. Have I committed theft?

    You have stolen from whomever currently holds the intellectual property rights. Simple question to which there is a simple answer.

    But what is the difference between downloading an MP3 file of a song I have on cassette, and transferring a CD to a tape, that renders one action theft, and the other not?

  77. #77 Nomen Nescio
    November 28, 2007

    The US, and its citizens, are still are required to abide by international law REGARDLESS of what any US court says.

    who’s doing this requiring, and with whose army shall they enforce their requirements?

    (there might be copyright tie-in here; abstract concepts of “international law” are well and good, but tangible rifles trump ‘em. the analogy only goes so far, of course.)

  78. #78 Matt Penfold
    November 28, 2007

    “who’s doing this requiring, and with whose army shall they enforce their requirements?”

    The appropriate international organisation. To answer whose army, it would seem you think law derives from who has the biggest gun.

  79. #79 Nomen Nescio
    November 28, 2007

    US law on IP does not seem to be in accordance with internation law on IP.

    which is ironic, because U.S. political pressure has effectively written most international IP laws and treaties.

    then U.S. laws get ratcheted up to match or exceed the treaties; then the treaties get ratcheted up to match, ad infinitum. guess who benefits? i know i don’t.

  80. #80 Nomen Nescio
    November 28, 2007

    it would seem you think law derives from who has the biggest gun.

    certainly not! just law enforcement.

  81. #81 Matt Penfold
    November 28, 2007

    “But I’ve committed copyright infringement. And – according to the argument – copyright infringement is theft. Ergo I’ve committed theft. Let’s make this a bit more awkward: the CD belongs to me but I put it on a tape for my fiance to listen to when I am not in the car. Have I committed theft?”

    You misunderstood the argument. It is neither Mike’s nor my contention that all unlawful copying etc is theft but that it is theft if the IP is passed to a third party, or you are that third party.

    If you download a song from the internet that you do not already own that is the equivalence of theft from a moral and ethical point of view. If you rip a CD to your MP3 player and it is a CD you own and your MP3 player then it is not the equivalent of theft as you have not passed any IP onto a third party, or originally obtained that IP without permission. The distinction is an important one you seem to have missed.

  82. #82 Matt Penfold
    November 28, 2007

    ” it would seem you think law derives from who has the biggest gun.

    certainly not! just law enforcement.”

    You could have fooled me.

    But as to who enforces international law, try other countries.

    You know, like how other countries provide judges and prosecutors to the ICC ? Or how the WTO allows countries to impose sanctions against countries in breech of WTO rules ?

  83. #83 MartinM
    November 28, 2007

    The answer is no. Whilst strictly against UK law on IP it has no equivalence to theft for the simple reason that you have not given any IP to a third party.

    If (value of a CD) = (value of a blank CD) + (value of IPR),
    and presumably (value of a tape) = (value of a blank tape) + (value of IPR), then copying a CD to a blank tape must increase the total value I hold. In which case, I’ve acquired IPR-value I didn’t pay for.

    Alternatively, if (value of a CD) + (value of a taped copy) = (value of a CD) + (value of a blank tape), then the IPR content of the tape doesn’t contribute to its value.

    Of course, you could claim that the tape doesn’t increase in value because I’m merely duplicating IPR content I’ve already paid for. But then, if I steal a copy of a CD I already own, only the value of the blank CD should count. Right?

  84. #84 Armchair Dissident
    November 28, 2007

    You misunderstood the argument. It is neither Mike’s nor my contention that all unlawful copying etc is theft but that it is theft if the IP is passed to a third party, or you are that third party.

    But I have passed my tape on to a third party: my fiance.

    If you rip a CD to your MP3 player and it is a CD you own and your MP3 player then it is not the equivalent of theft as you have not passed any IP onto a third party, or originally obtained that IP without permission.

    The distinction is an important one you seem to have missed.

    It was not me that missed the distinction:

    Armchair dissident
    “Many years ago I bought an album by a group called Death Angel. My copy of the album is now all but inaudible. I would like to replace it, but I can’t; at least not legally. It does not appear to be available for download anywhere, and I have never seen it in the shops. If I download it from an unauthorised source, I have committed copyright infringement – but from whom have I stolen?”

    Matt Penfold
    You have stolen from whomever currently holds the intellectual property rights. Simple question to which there is a simple answer.

  85. #85 Matt Penfold
    November 28, 2007

    MartinC,

    As I have been trying to say, the idea that you can detach IP from physical property is silly.

    Your example, logically correct, is silly. Which is why those who argue taking IP without consent is not the equivalence of theft are wrong. Once you accept both stealing a CD and downloading an MP3 without consent are both forms of theft, ethically and morally if not legally, then these issues go away.

    I have yet to see anyone who thinks taking IP without consent is not the same as theft make a cogent argument as t o why. The seem to concentrate on what the law says when in fact the discussion started by Mike is a moral and ethical one.

  86. #86 Matt Penfold
    November 28, 2007

    “But I have passed my tape on to a third party: my fiance.”

    Then you are a thief.

    “It was not me that missed the distinction:”

    Sorry, but it was.

    But then you are a thief by your own admission. Maybe not a very significant one, but a thief non the less.

  87. #87 Nomen Nescio
    November 28, 2007

    It is neither Mike’s nor my contention that all unlawful copying etc is theft

    this seems to be where i get to use the “you could have fooled me” line.

    mr. Armchair Dissident — apologies for assuming a gender — already owns a copy of the song he’d like to download, it’s just that the physical media has degraded to near uselessness. should the legality of downloading depend on what physical format you have previously legally purchased your first copy in, that the durability of CDs versus cassette tapes should matter?

    …see, for tangible goods, these sorts of questions are all nonissues. for intellectual property, they are honestly debatable. how is that not in itself a sign that the issues genuinely differ?

  88. #88 MartinM
    November 28, 2007

    Your example, logically correct, is silly.

    Which would be why they call it reductio ad absurdam ;)

  89. #89 Matt Penfold
    November 28, 2007

    Nomen Nescio,

    “this seems to be where i get to use the “you could have fooled me” line.”

    Fooling you seems to require little effort on my part so I will take no credit.

    “…see, for tangible goods, these sorts of questions are all nonissues. for intellectual property, they are honestly debatable. how is that not in itself a sign that the issues genuinely differ?”

    For the very reasons I have already pointed out. If taking IP without consent is not the moral or ethical equivalence of theft then those people who take tangible items without consent can only be guilty of stealing the value of the tangible part of that item, ie the medium and not the content. Since is most cases the cost of the physical medium is only a small part of the total cost of an item then it would seem a lot of people are being wrongly charged and convicted. You have totally failed to answer this issue. Is there a difference is how people who do either ought to be charged ? Possibly but I would argue the sanctions ought to be much the same if convicted.

  90. #90 Matt Penfold
    November 28, 2007

    “Which would be why they call it reductio ad absurdam ;)”

    That is of course what I was attempting, but I clearly failed to get through to some people. The conclusion drawn is that to make an moral and ethical distinction between taking a CD and MP3 file without consent is not only futile, it leads to absurd outcomes.

  91. #91 Armchair Dissident
    November 28, 2007

    Nomen:

    mr. Armchair Dissident — apologies for assuming a gender

    You are quite correct in your assumption of gender :)

    Matt

    Sorry, but it was.

    And this is why labelling copyright infringement as theft is fraught with danger. I provide you with precisely the same circumstances, but if I present the facts one way, I’m not a thief, if I present exactly the same facts but in another way, I am.

    Essentially – with regards to the tape – your argument appears to be that my status of “thief” – and therefore the status of my action of copyright infringement – is entirely dependent upon whether I am present when my fiance listens to the tape in the car.

  92. #92 MartinM
    November 28, 2007

    The conclusion drawn is that to make an moral and ethical distinction between taking a CD and MP3 file without consent is not only futile, it leads to absurd outcomes.

    And yet the examples I gave, which you yourself described as ‘silly,’ follow directly from your reasoning. So if it’s absurd outcomes you’re trying to avoid, you need to rethink.

    To restate, either

    1) copying a CD to tape produces IPR-value,
    2) IPR-value doesn’t exist, or
    3) stealing a CD is rendered a lesser crime if I happen to own a copy of the content already.

    You’ve identified this as logically correct, if silly. So which option are you going to pick?

  93. #93 Matt Penfold
    November 28, 2007

    “And this is why labelling copyright infringement as theft is fraught with danger. I provide you with precisely the same circumstances, but if I present the facts one way, I’m not a thief, if I present exactly the same facts but in another way, I am.

    Essentially – with regards to the tape – your argument appears to be that my status of “thief” – and therefore the status of my action of copyright infringement – is entirely dependent upon whether I am present when my fiance listens to the tape in the car.”

    Sorry, but you are still a thief.

    You may not like the fact. You may not even think you have done anything wrong but you have committed acts that are the moral equivalence to theft.

    “And this is why labelling copyright infringement as theft is fraught with danger.”

    Only if you steal IP. Stop breaking the law and you will not be a thief will you ?

    It sounds like the only reason you object to theft of IP being theft if because you, by your own admisson, steal IP. You are hardly starting from a sound moral position there are you ? Arguing you cannot call it theft because otherwise it makes you a thief is a piss poor argument.

    You seem to refuse to admit you have done anything wrong. Mike had the decency to admit that he has downloaded stuff illegally but makes no claims that he was not in the wrong to do so. I admit the same, and I also was in the wrong. You have done the same and rather than have the honesty to admit you did something wrong you try to deny the fact taking IP without consent is wrong.

  94. #94 Mark P
    November 28, 2007

    Matt Penfold

    No international law has any effect within the borders of the US if the US does not agree to it. And the same applies to any other country. The only way international law can be enforced on an unwilling nation is by force. That means that international law does, indeed, depend on who has the biggest gun or the biggest army. There is no world government and no international law outside the willingness of the participants or the force of those with the biggest guns. That might be a bad thing or a good thing, but in any event, it is a sure thing.

  95. #95 Armchair Dissident
    November 28, 2007

    Sorry, but you are still a thief.

    How do you know? I could, for all you know, be writing this from the comfort of my fiance’s car.

    Only if you steal IP. Stop breaking the law and you will not be a thief will you ?

    But you’ve already stated that not all copyright infringement is theft, even though all copyright infringement is illegal. According to your theory I can continue to break the law and still not be a thief, so long as I’m only putting my CDs on to iPods, but not replacing inaudible tapes.

    You’ve also stated that if I get into my fiance’s car, I’m no longer a thief. Presumably, too, if I take the tape back from my fiance I also cease to be a thief. So I don’t even have to stop breaking the law to cease being a thief, I merely have to change where I am.

    It sounds like the only reason you object to theft of IP being theft if because you, by your own admisson, steal IP. You are hardly starting from a sound moral position there are you ?

    But you have yet to determine whether I am, actually, a theif, because you don’t know whether or not I’m in my fiance’s car!

  96. #96 Matt Penfold
    November 28, 2007

    MartinC,

    Huh ?

    I am making the argument that it is silly, not you. Your post agreed with my position.

    I will admit it did surprise me as earlier you seemed to disagree with me. However I assumed that you had thought on the matter and changed your mind. Now I do not not know what you think.

    I will make my position clear.

    If you own a legitimate copy of something then I would argue you commit no offence from a moral or ethical position if you make copies for your own use.

    If you own a legitimate copy of something and make copied for others then you are morally and ethically committing theft.

    If you do not own a legitimate copy of something and obtain without consent a copy by whatever means then you are morally and ethically committing theft.

    Your position seems to be that taking (without persmission we can assume) something physical like a CD is theft. I agree. But you go onto argue that taking the MP3 equivalent of that CD is not theft. That is a reasonable argument to take providing you are consistent. Artists are normally paid according to how many CDs they sell, not how many are manufactured. Thus until a CD is purchased by the consumer no payment in regards of the IP content of that CD becomes payable to the artist. Artists get no payment for CDs left on the shelves of the shops. Thus stealing a CD from a shop is taking from the income of the artist. A substantial part of the purchase price of a CD is for that IP payment. Now remember you have already taken the position that taking IP without consent is not theft so anyone stealing a CD cannot, according to you, be stealing any IP content, which leaves us with the physical medium. However when people who steal CDs are charged they are charged with the theft of items worth the full retail value. However you have already made it clear the full retail value is not the value of what has been stolen. Thus unless you think people charged with theft of CDs should only be charged with the theft to the value of the physical medium you are not being consistent.

    The position taken by Mike and myself would mean that in treating taking IP without consent you morally and ethically commit theft if you steal either an MP3 file or a CD. Thus no inconsistency occurs. Note that I am not arguing that someone who downloads without consent should be charged with the same crime as someone who steals a CD as the means by which these crimes were committed are different. However they should both be treated with a similar degree of severity and similar degrees of punishment.

  97. #97 Matt Penfold
    November 28, 2007

    “But you have yet to determine whether I am, actually, a theif, because you don’t know whether or not I’m in my fiance’s car!”

    You gave the hypothesis that you were not. In which case you are, as I already said, a thief.

    You are correct. There is a difference if you copy a CD to use for your own use and you copy it to give away to others. Immediate family may well be considered “own use”, the criteria being I suspect if more than one copy is used at the same time. It is clear that in this regard IP law in both the US and UK, and most likely elsewhere needs amending as many IP law principles pre-date the age of MP3s, CDs and the Internet. I know you could copy from a tape to another tape, or from vinyl to tape but the extent to which such copies could be distributed were limited by the analogue tech used (have you heard a copy of a copy of a copy ?). The advent of CDs changed that, and you could copy from CD to tape, or later another CD. However again it was distribution that was the issue, this time the need to handle a physical medium. The advent of the ‘net has changed all that. It is now very east to obtain or make available copies of CDs. The advent of the ‘net has also brought into much sharper focus the concept of intellectual property being something different to physical property. The concept existed in the past of course but the nature of the tech at the time meant it made little practical difference. Now the tech allows IP to be removed from a physical presence and it would seem also make some think that it ceases to be property when it does so.

  98. #98 Nomen Nescio
    November 28, 2007

    If you own a legitimate copy of something then I would argue you commit no offence from a moral or ethical position if you make copies for your own use.

    but this argument is by no means self-evident. large copyright holders’ associations have held the position that such copying is wrong, and have attempted to make it illegal, even quite strenuously. considerable technological effort has gone into attempts at preventing it de facto when preventing it de jure has proven impossible. even greater effort has gone into legal and political maneuverings to protect those technological measures from being circumvented through other technological means. quite a bit of that effort is still in legal and/or technological effect, and more seems destined to yet be implemented.

    what makes you a better authority on this point than the RIAA and the MPAA — or me?

  99. #99 Matt Penfold
    November 28, 2007

    “If you own a legitimate copy of something then I would argue you commit no offence from a moral or ethical position if you make copies for your own use.”

    Actually I think it is. Many jurisdictions already allow for such copying in their copyright laws and many of those that do not have tacit agreements from IP holders that copying for personal use is not something they will pursue under the law. In the UK such personal copying is illegal. However the record companies have made it clear they do not regard such copying as morally or ethically wrong and that they have no intention of taking any action against someone copying for their own use. In the US the law already allows for such copying I understand. Further in the UK the government has stated that copyright laws need amending and that allowing personal use copying is likely to be allowed under any new law.

    So it would seem that from an ethical and moral viewpoint, if not a legal one, the issue of personal use copying has been dealt with and is not considered theft, or indeed wrong.

    The RIAA and MPAA are I think American organisations. Why do assume only American insitutions count ? There are other IP bodies, and other countries and not all kowtow to the US line. Me thinks you assume the US = the world, and that is rather nationalistic of you, as well as a stupid. Please do not assume we are all Americans. It only serves to make you look a moron and perpetuate the myth Americans are nationalistic and xenophobic when in fact most are neither.

  100. #100 Nomen Nescio
    November 28, 2007

    The RIAA and MPAA are I think American organisations. Why do assume only American insitutions count ?

    they’re not the only ones that count, but they do seem to be more equal than others. as (fairly powerful) U.S. lobbying groups they have a disproportionate influence on U.S. copyright law, which in turn has a dominant influence on international copyright agreements and treaties, which in turn influence every other country’s IP lawmaking. those two organizations are the agenda-setters for copyright law everywhere, by dint of their influence in the U.S., whether we like it or not.

    and FWIW, though i live in the USA, i am not an american by either birth, upbringing, or citizenship. i simply recognize that this country is for better and worse the 800-pound gorilla of nations and tends to get its way, right or wrong.

  101. #101 Matt Penfold
    November 28, 2007

    Nomen Nescio,

    I have no doubt both organisations are influential on the US policy. I would note though that the EU is beginning to flex it muscles over things such as IP, no doubt helped by the pitiful state of the dollar.

  102. #102 jeffk
    November 28, 2007

    Since this thread is massively long and I cannot possibly read all of it, I’ll just mention one thing: I would suggest that people interested in this topic pick up a copy of Lawrence Lessig’s “Free Culture” (available for free on Creative Commons). I think it covers more or less what has been covered in this thread in a few pages and moves on to a really intelligent treatment of the history of copyrights and the moral implications, and eventually the legal ones.

  103. #103 Armchair Dissident
    November 28, 2007

    Matt: Just so I absolutely clear on this:

    Copyright infringement is theft, but only in specific circumstances which you define. Other forms of copyright infringement may or may not be theft depending upon whether the form suits you to call it theft?

    So it would seem that from an ethical and moral viewpoint, if not a legal one, the issue of personal use copying has been dealt with and is not considered theft,

    I do believe that you’ll find that the BMA takes a very different view. Personal copying is frowned upon, and – in the case I cited regarding tapes (irrespective as to whether I am in the car) is (or, at least was) considered theft by the BMA. The only reason that the BMA have not taken this position on copying songs on to iPods, is because the politicians – who all own iPods – would go spare.

    So, you see, when people make blanket statements like “copyright infringement is theft”, they really do mean “copyright infringement is theft, except in circumstances where I personally believe that it is not theft”. Your view on what is serious infringement and the view of the copyright holders may vary substantially.

    So it would seem that from an ethical and moral viewpoint, if not a legal one, the issue of personal use copying has been dealt with and is not considered theft,

    It has only been “dealt with” by you to your personal satisfaction, and your personal criteria. There is by no means a universally agreed on “ethical principle”. Hell, nation states can’t even agree what constitutes copyright infringement or the length of time a copyright can be enforced; you can’t really – then – expect everyone to then agree on universal “ethical principles” for personal use.

    Me thinks you assume the US = the world, and that is rather nationalistic of you, as well as a stupid

    With all due respect – which is rapidly declining to zero – I make no such assumptions: I’m a British Subject, living in the UK under UK law, which is why I discussed UK copyright law. If you’d noted that I lamenting the lack of fair-use principle in the UK, or had bothered to click on my name, you would have noted this fact (my blog clearly has the tagline “Musings from a UK skeptic”).

    Apart from being utterly wrong, that is also a stunning accusation from a person who is apparently so concerned as to whether US or international law should take precedence in intellectual property law.

    It only serves to make you look a moron and perpetuate the myth Americans are nationalistic and xenophobic when in fact most are neither.

    No further comment is needed.

  104. #104 Nomen Nescio
    November 28, 2007

    in fairness to mr. Penfold, i think he meant to smear me as the xenophobic American nationalist. in fact, i meant to criticize certain American IP lobbying groups as wielding too much power over the rest of the world, and swinging it too freely; i may not have been sufficiently clear about that.

  105. #105 SMC
    November 28, 2007

    I think overall the implication that “failure to obtain permission” is virtually the entirety of the crime of theft is what’s really bothering me here. The logical conclusion that “failure to consult authority” is much worse than directly causing a degradation of someone else’s condition (e.g. depriving them of something) is a deeply disturbing parallel with the authoritarian bent that seems to be taking over in the US and other countries.

    Look at it this way:
    Copyright Infringement = “failure to seek permission from the rights-holder while obtaining a personal gain by the infringer”
    Theft = “failure to seek permission from the rights-holder while obtaining a personal gain” AND “DEPRIVING the rights-holder of what is gained by the criminal”.

    Again much as “assault” (e.g. someone threatens you with a baseball bat) is different from “assault and battery” (e.g. someone proceeds to actually strike you with a baseball bat).

    It should also be noted, since the definition in law has come up (“Stop breaking the law and you will not be a thief”, “In the US the law already allows for such copying I understand. Further in the UK the government has stated that copyright laws need amending and that allowing personal use copying is likely to be allowed under any new law.”) that at least in the US, the law itself is very clear that copyright infringement is a completely different matter from theft. The former is a “civil” matter, while the latter is explicitly “criminal”. Or so I understand it.

  106. #106 Armchair Dissident
    November 28, 2007

    Nomen:

    in fairness to mr. Penfold, i think he meant to smear me as the xenophobic American nationalist

    Ah, my xenophobic American nationalistic imperialist friend^H^H^H^H^H^H dog {spit}, it would appear you’re right.

    My sincere apologies to Penfold.

  107. #107 windy
    November 28, 2007

    …large copyright holders’ associations have held the position that such copying is wrong, and have attempted to make it illegal, even quite strenuously.

    Yep. The new Finnish copyright law was adopted hastily despite concerns that it would make bypassing copy protection illegal (even for making a backup copy or for playing a CD or a DVD on a machine not supported by DRM, e.g. Linux). A Finnish record company representative offered the now-classic answer “people need to understand that listening to music on your computer is an extra privilege” (meaning: not a right)

    Oh, and to make all this even more complicated, there are the copyright levies.

    Bear in mind that actions Americans consider to be perfectly legal under “fair use” doctrine are illegal in other countries.

    I almost get the impression that Europe is pressured by US-based producers to adopt stricter copyright rules than Americans themselves would accept? Maybe that serves us Europeans right for imposing unfair trade rules on developing countries…

  108. #108 Nathan Parker
    November 28, 2007

    Mike Dunford wrote:

    The justification that I’ve seen a couple of people offer – I would never have bought it, so I didn’t really deprive the copyright owner of their potential income is juvenile, at best.

    Sorry, calling it “juvenile” isn’t an argument. The justification above fundamentally undermines your claim that “you are depriving them of their right to be paid for that copy just as surely as you’d deprive a store owner of their income by walking out with a CD in your jacket pocket.”

    If you aren’t willing to pay the asking price for the item in question, you don’t get to take it for free.

    Well, yes, sometimes you do. ;-)

  109. #109 El Christador
    November 28, 2007

    Don’t know how you define theft down there in the US, but here, in Canada, by definition, theft must deprive the owner of the use of the thing which is stolen. In copyright infringement, the owner has not been deprived of the use of the original thing which has been copied. Therefore, no theft. Copyright infringement yes, theft no.

    That’s also why illegal copying doesn’t result in theft charges. Criminal copyright infringement, maybe. Civil suits over copyright infringement, maybe. But I doubt a theft charge could be sustained.

    I submit that depriving the owner of use of something is not merely a technical legal definition of theft at work in Canada, but also the essence of what people mean by the word “theft” in ordinary usage. Anyhow, this is what people mean when they say copyright violation is not theft, that it doesn’t deprive the owner of use of the thing, which is true.

  110. #110 El Christador
    November 28, 2007


    Let me be clear: I am not arguing that words are property, and I am not arguing that copyright infringement is legally theft. I am arguing that it is morally indistinguishable from theft.

    Ok, I’d call that agreeing with the “infringement is not theft” position. Who cares about “morally indistinguishable”? “Is copyright infringement theft?” is a legal question. How one feels about copyright infringement is another thing entirely, and it seems to me a completely different question from that originally raised.

  111. #111 El Christador
    November 28, 2007

    Dang! I failed to indicate that first paragraph in the previous is a quoted excerpt. It is.

  112. #112 El Christador
    November 28, 2007

    Actually, the notion that two wrongful acts are morally equivalent is an interesting one. There is a viewpoint that all wrongful acts are morally equivalent i.e. doing wrong is a binary thing, like being pregnant. I recall reading in a book of stories about the legendary Japanese judge Ooka (http://en.wikipedia.org/wiki/%C5%8Coka_Tadasuke) that he viewed small thefts as equivalent to large thefts, because the wrong is not in the amount stolen, but in the decision to not respect the rights of the other.

    And of course, every wrongful act committed against another does contain a decision to knowingly not respect the rightful rights of the other, and to intentionally put one’s own interest ahead of justice at another’s expense. So taking a five cents from someone is not fundamentally different from, say, killing and eating babies (unlawfully and wrongly, that is; we assume for simplicity that this is not a situation where killing and eating babies is morally acceptable).

    We conclude that copyright infringement is morally and ethically equivalent to murder: although maybe not being identically in law, they’re equally bad.

  113. #113 Matt Penfold
    November 29, 2007

    “in fairness to mr. Penfold, i think he meant to smear me as the xenophobic American nationalist. in fact, i meant to criticize certain American IP lobbying groups as wielding too much power over the rest of the world, and swinging it too freely; i may not have been sufficiently clear about that.”

    If you read why I actually said it should be clear to you that I did NOT smear you. I pointed out that what you were saying could be taken as being nationalistic and xenophibic, as indeed they can.

    I can only suggest you and Armchair either take the trouble to read what I say. I do sense that you are at least trying to be honest. Armchair is just a thief who does not like being called such and so tries to claim that what he does is not theft after all. Armchair is trying to take a principled position just to hide to dishonesty. I doubt he fools anyone in his attempts.

  114. #114 Mike Dunford
    November 29, 2007

    Nathan:

    The justification that I’ve seen a couple of people offer – I would never have bought it, so I didn’t really deprive the copyright owner of their potential income is juvenile, at best.

    Sorry, calling it “juvenile” isn’t an argument. The justification above fundamentally undermines your claim that “you are depriving them of their right to be paid for that copy just as surely as you’d deprive a store owner of their income by walking out with a CD in your jacket pocket.”

    Calling it juvenile wasn’t an argument. It was a description, and probably a generous one at that. It’s the sort of thing that you expect to hear from a couple of teenagers trying to work up the courage to sneak in the back door of the movie theater: “The movie sucks. No way is it worth $7.50.”

    If you go in through the back door and watch the movie, you have deprived the theater owners of the income that was rightfully theirs. If you download the song, or the book, or the movie, or whatever, you have deprived the copyright holders of the income (and/or control) that was rightfully theirs.

  115. #115 MartinM
    November 29, 2007

    Huh ?

    Perhaps it would help if I restated your argument as I see it, so you can correct me if I’m missing something.

    Your position is that someone who steals a CD is stealing not only the physical medium, but also the IP it contains. On the other hand, copying a CD for personal use does not constitute theft, since no IP is being transferred to or accessed by someone who hasn’t paid for it.

    Now, my reductio on that position is as follows: if someone steals a CD of which they already own a legally purchased copy, they are not acquiring any IP they haven’t already paid for. They are acquiring only the physical medium. Therefore, according to your position, we should treat them differently to someone who steals a CD they don’t already own. No?

  116. #116 Matt Penfold
    November 29, 2007

    “Now, my reductio on that position is as follows: if someone steals a CD of which they already own a legally purchased copy, they are not acquiring any IP they haven’t already paid for. They are acquiring only the physical medium. Therefore, according to your position, we should treat them differently to someone who steals a CD they don’t already own. No?”

    No.

    Well done, you got there at last. Took you a while though, lot of hand holding needed so I am afraid you do not get much credit.

    You see both are theft. I would regard someone who steals a CD as stealing both physical property and IP. I would regard someone who steals only the IP, by say downloading via P2P, as committing the moral and ethical equivalence of theft.

    It really is very simple and I will not offer you any more help as either I am explaining it very very badly or you lack the ability to understand no matter how I explain it.

    Property is property regardless of whether it exists as something you can touch or not. If I make something with my hands, say a violin and someone takes it without my permission you would regard that as theft, as would I. If I compose something to be played on that violin and some takes that composition and uses it without my consent I would regard that as theft. You it seems would not.

    Can you explain why efforts of my manual labour should have less protection than the labours of my mind ? After all that is what copyrighted material is, the product of the someone’s mental labour. It seems you think that helping yourself to that is not a crime. I think your morals must stink if that is the case.

  117. #117 Davis
    November 29, 2007

    It’s already well-established that infringement is not legally equivalent to theft.

    So now I’m left wondering: how do we conclude whether two different acts are morally equivalent? What’s the standard? Some folks seem to be willing to make blanket statements about moral equivalence, but it’s easy to concoct scenarios where the equivalence (or lack thereof) of certain acts is broken because of circumstances.

    Personally, I find the “infringement=theft” crowd unconvincing. Both are immoral/unethical, but there’s a reason we have different terms for them (and treat them differently under the law). I can easily envision situations where one or the other is more repugnant, or both are equally wrong, but the only value I see in making the statement “infringement=theft” is rhetorical.

  118. #118 stet
    December 3, 2007

    In general, people who make things are paid for each copy.
    Are they really? So, how, exactly does a plumber get to repair one toilet and then sit at home raking in repeat profits from that job for the next 70 years? A carpenter must keep creating tables to continue earning … why shouldn’t the Carpenters have to keep creating records?

    Your argument hinges on the supposition that this unearned repeat income is the “right” of the content producer, but I don’t see how that is proved. They may be entitled to it under current copyright law, but law doesn’t equal morality.

  119. #119 Olorin
    December 3, 2007

    sret says: “‘In general, people who make things are paid for each copy.’ Are they really? So, how, exactly does a plumber get to repair one toilet and then sit at home raking in repeat profits from that job for the next 70 years?”

    Say again? He d9oesn’t get to rake in repeat profits because there are no further copies of that toilet.

    Copyright does differ from stealing tangible property, in that stealing tangible property takes the value of that property away from the original owner and adds it to the taker, while stealing information takes away only part of the value (lost sales) from the owner.

    Copyright law has always been a balance between competing rights. Fior one example, a news reported has a right to profit from his scoop, butthe public has a right to know about current events as well. The balance shifts back and forth, not always the way you—or I–would like.

    But infringing a copyright is theft even if the property is intangible. Bypassing the electric meter on your house is also theft, even though the electricity is intangible energy. Stealing a credit card is theft, even though the card is just an insignificant piece of plastic and the crook may never use it; what is stolen is an intangible claim to funds of the card owner. Tangible/intangible is not a recognized distinction for theft.

  120. #120 Davis
    December 4, 2007

    Bypassing the electric meter on your house is also theft, even though the electricity is intangible energy.

    If you’ve ever been electrocuted, you wouldn’t claim electricity is intangible. Moreover, stealing electricity is a poor analogy, because you’re taking something finite, and depriving someone else of that thing. Same goes for the fund-stealing credit card thief.

    But infringing a copyright is theft even if the property is intangible.

    Again, as I stated above, if copyright infringement is theft, why do we have two completely different names for the crimes, and treat them differently? Why can copyright run out? They’re two different immoral acts, and equating the two serves only rhetorical purposes.