Mike Dunford was a graduate student in the Department of Zoology at the University of Hawaii, Manoa, where he studied evolution. Life as an army spouse has since moved him on to Pensacola, where he's currently trying to figure out what to do next. While he's doing that, he writes stuff here, although not usually in the third person. He's also a contributer to 
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.
Politics
Comments
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?
Posted by: gec | November 27, 2007 1:49 PM
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.
Posted by: hibob | November 27, 2007 1:52 PM
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.
Posted by: Alan | November 27, 2007 1:56 PM
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.
Posted by: derek | November 27, 2007 1:56 PM
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 (tm). But would contend that - whilst immoral and dishonest - copyright is not in anyway analogous to theft.
Posted by: Armchair Dissident | November 27, 2007 2:08 PM
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.
Posted by: Mike Dunford | November 27, 2007 2:10 PM
"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.
Posted by: Moopheus | November 27, 2007 2:26 PM
No, you are making something; nothing is being taken.
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?
Posted by: MartinM | November 27, 2007 2:27 PM
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.
Posted by: SMC | November 27, 2007 2:27 PM
Martin:
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.
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.
Posted by: Mike Dunford | November 27, 2007 2:38 PM
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.
Posted by: Armchair Dissident | November 27, 2007 2:38 PM
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.
Exactly! Copyright infringement - one victim, the original creator. Theft - two victims, the original creator and the owner of the physical object taken.
And if I had done, that would be worse, no?
Posted by: MartinM | November 27, 2007 2:45 PM
SMC:
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.
Posted by: Mike Dunford | November 27, 2007 2:56 PM
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.
Posted by: Mary | November 27, 2007 2:56 PM
Martin:
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.
Only in the sense that stealing a thousand dollars from someone is worse than stealing ten.
Posted by: Mike Dunford | November 27, 2007 3:05 PM
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:
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.
Posted by: Armchair Dissident | November 27, 2007 3:19 PM
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 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.
Posted by: Mike Dunford | November 27, 2007 3:27 PM
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?
Posted by: Armchair Dissident | November 27, 2007 3:28 PM
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.
Posted by: Armchair Dissident | November 27, 2007 3:41 PM
"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.
Posted by: Gordon | November 27, 2007 4:10 PM
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.
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.
Posted by: Mary | November 27, 2007 4:28 PM
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.
Posted by: Nomen Nescio | November 27, 2007 4:41 PM
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?
Posted by: MartinM | November 27, 2007 4:44 PM
"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?
Posted by: Drugmonkey | November 27, 2007 4:58 PM
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.
Posted by: Nomen Nescio | November 27, 2007 5:31 PM
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.
Posted by: dan | November 27, 2007 5:50 PM
"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.
Posted by: KeithB | November 27, 2007 6:03 PM
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.
Posted by: Alan | November 27, 2007 6:12 PM
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?
Posted by: Nomen Nescio | November 27, 2007 6:14 PM
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.
Posted by: Tyler DiPietro | November 27, 2007 6:45 PM
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.
Posted by: Mark P | November 27, 2007 7:17 PM
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.
Posted by: Xanthir, FCD | November 27, 2007 7:22 PM
Well, no. Because I wouldn't have it any more either. Slight difference.
Posted by: MartinM | November 27, 2007 7:25 PM
Mary
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.
Posted by: ArtK | November 27, 2007 8:06 PM
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.
Posted by: Russell Blackford | November 27, 2007 8:09 PM
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 ;)
Posted by: MartinM | November 27, 2007 8:13 PM
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.
Posted by: SMC | November 27, 2007 8:45 PM
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".
Posted by: Coin | November 27, 2007 8:57 PM
Working my way slowly through the comments that have accumulated while I was away from the desk...
Armchair:
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.
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:
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.
Posted by: Mike Dunford | November 27, 2007 9:27 PM
Nomen:
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.
Posted by: Mike Dunford | November 27, 2007 10:43 PM
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.
Posted by: Drugmonkey | November 27, 2007 11:37 PM
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."
Posted by: SMC | November 28, 2007 12:03 AM
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.
Posted by: Meng Bomin | November 28, 2007 2:58 AM
That's pure nonsense. If I hack into your computer and steal your personal information, you will still have it, yet it is theft.
Posted by: Kristjan Wager | November 28, 2007 3:30 AM
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"?
Posted by: Azkyroth | November 28, 2007 4:31 AM
Try rephrasing that in a way that doesn't beg the question.
Posted by: MartinM | November 28, 2007 5:28 AM
Mike:
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:
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:
Erm, if they got your permission first, it - by definition - wouldn't be theft :)
Posted by: Armchair Dissident | November 28, 2007 5:53 AM
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?
Posted by: mh | November 28, 2007 7:26 AM
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.
Posted by: Nomen Nescio | November 28, 2007 7:31 AM
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.