Regarding intellectual property law, is copyright infringement theft?
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If one answers the question from a strictly legal point of view, copyright infringement is clearly not theft. It is a violation of one or more specific statutes, none of which define said violation as theft. In general, the legal definition of theft involves the unauthorized taking of another's property. Even though we use the phrase Intellectual Property rather casually, making a copy of a protected work does not involve taking that property - it involves violating the owners right to control copying of the property.
Others who are willing to rely on a more informal definition of the word theft assert that copyright infringement is theft. It may not meet the standard for statutory theft, but violating someone's right to control copying at a minimum represents an ethereal opportunity cost, and in many cases tangible economic loss. To the person who finds their work stolen, the feeling of theft is quite real.
The result is that the context is important. If you are the RIAA testifying before a congressional committee, calling music file sharing theft is disingenuous. If you are an artist complaining about bootleg copies of your latest work, saying I've been ripped off is a legitimate expression of what happened.
Second, in the world of digital goods, we must keep in mind that they are very different from real goods. A real good is exclusionary - if I take your apple, you no longer have your apple. However, digital goods (without DRM) are not. If you give me a copy of an MP3, you can still retain it. Additionally, the marginal production cost is essentially zero. It doesn't cost me more money to make more digital goods. All the money goes into the creation of the original and the cost of making copies is pretty much zero. So, the evil connotation of "theft" is also difficult to apply to digital good.
Regardless of what anyone thinks about IP law, even the most stringent proponents, if they are intellectually honest, must admit that "theft" is the wrong word for IP infringement. The use of the word "theft" in this context is an attempt by copyright holder groups to associate an act that they don't like with something all common people, no matter how uneducated, can agree is wrong. It's far easier to dumb the issue down than to deal with realities of a complex legal and economic system.
The difference is obvious: If I steal your car, you no longer have it, and are deprived of the value of owning it. If I rip a copy of your CD, I haven't stolen it from you, nor have I stolen it from the record company. What I have done is made an unauthorized copy, depriving everyone in the value chain of the music business of a potential sale, generating potential income for everyone from the songwriter to the retail store owner.
Most thoughtful people immediately see through RIAA and MPAA's damages arguments that every unauthorized copy of a CD or DVD represents a lost sale. Trying to claim that amount of damages is disingenuous, and frankly hurts the labels' and studios' causes because it appears greedy and overreaching to the public. In economic terms, every unauthorized copy is causing financial damage equal to the product of:
- The lowest actual sale price available to the consumer (Amazon, iTunes, etc.), times
- The probability that the consumer would actually buy an authorized copy (taking into account budget constraints and competing priorities), which could be extremely low for certain types of pirated goods (e.g., $800 software packages traded by 7th-graders), and
- Some kind of multiplier taking into account the possibility that copies-of-copies may be made illegally.
I'm sure economists and lawyers have put a lot of thought into this, but the bottom line is that making an illegal copy of something is clearly not equivalent to stealing it. I think this explains why for generations, otherwise law-abiding people haven't felt particularly guilty about making copies of everything from chapters out of books to sheet music to MP3 tracks. Copyright infringement is clearly unlawful, but its morality or immorality is more of a gray area in which "where you stand depends on where you sit."
In the US, legally, the answer was no when the question actually did need to be decided. The case was Dowling v. United States[1] and was a question of whether a man who was transporting bootleg records in his car could be convicted of a “transportation of stolen property” type offense. But to show how confusing the issue is, many lower courts affirmed the conviction before the Supreme Court reversed, saying that copyright infringement does not easily equate to theft as it is generally understood. (His conviction for copyright infringement was not challenged, and of course would have been upheld as valid if it had been.)
It’s easy to see why. When one thinks of “theft”, one imagines something being, well, stolen. If you drive away in my car, or cut my bike chain and take my bike, I don’t have those things any more. If you built a bike exactly like mine down to the smallest detail, it would sound pretty strange for me to say you “stole” my bike. I still have it, you just now have one too. Even if you had a machine that could spit out thousands of copies of my bike in minutes, it would still sound pretty funny for me to say you were “stealing” it.
That’s why I see the term “intellectual property” as a very poor way of describing it. Even the US Constitution makes a distinction. For property, the Fifth Amendment is very clear that people cannot be deprived of their property by the government without due process and just compensation. But the amendment authorizing copyright specifies that it must be “for limited times”. So in contrast to property, laws on copyright not only may, but actually must, revoke the rights at some point, where on property those rights must not be revoked without due process and fair compensation.
Now, of course, the fact that copyright infringement isn’t theft doesn’t necessarily mean it shouldn’t be prohibited. Many acts (e.g., murder, rape, assault, DUI) are not theft, and yet are quite rightly still prohibited under the law.
To me, the best, though still imperfect, analogy is trespass. If someone sleeps on my front lawn, they are not “stealing” my lawn. Short of bringing in a backhoe, they cannot steal my lawn, just like I cannot steal “Stairway to Heaven”. But they are interfering with my rights to use and enjoy it and to control who has access to it. Trespass is not theft, but that doesn’t mean it isn’t or shouldn’t be illegal.
At the end of it, copyright infringement is copyright infringement. Aside from an edge case like Dowling, where it’s actually necessary to decide the issue, I just don’t see any need to call it anything else. It’s copyright infringement. That’s already against the law. In 99.9% of cases, arguing over whether it’s “theft” just doesn’t matter.
I think, though, that it is counterproductive in one way, the “You wouldn’t steal a purse…” type stuff. Most people look at that and say “Well…yeah, I wouldn’t, but I’d damn sure make a copy of a beautiful one if I could! The original owner would still have theirs, I’d have one too, no harm done!”. Focusing on the harms of infringement, in and of itself, is probably a much more productive strategy than the use of an ill-fitting analogy that’s often easily dismissed.
Footnotes
I love the varying answers with this question! It’s usually a good indication that you should seek legal advice from an attorney when numerous people disagree online because it’s hard to determine who is truly a legal expert on here. Anyways, I’ll jump on board with those that believe copyright infringement is theft in the practical sense. Yes one can make the argument that you cannot “steal” something that is intangible (as well as the civil vs criminal argument), but nowadays most valuable possessions are indeed intangible. Although I would submit that “infringing” is the most proper term - let's call a square a square right? Here are some other points to strengthen my argument:
- Whenever an author is deprived of the right to approve and to be paid for the use of their work, the author’s property interest is diminished (in order words - future earnings are stolen from them).
- Importantly, the Federal statute for “Criminal infringement of a copyright” (18 U.S.C. § 2319) can be find in Chapter 113 of the United States Code. Chapter 113 governs “Stolen Property.”
- The Model Penal Code (MPC) defines property for purposes of theft super broadly. “‘Property’ means anything of value, including real estate, tangible and intangible personal property, contract rights…”
- From the FBI website, “It’s an age-old crime: stealing. But it’s not about picking a pocket or holding up a bank. It’s robbing people of their ideas, inventions, and creative expressions—what’s called ‘intellectual property’—everything from trade secrets and proprietary products and parts to movies and music and software.”
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"Theft" is a very broad term that covers many situations, not just taking something physical that belongs to another. In the case of digital copying, you're not taking something physical, nor are you denying access of another to what you're taking, but you are denying the owner of the product the value of the sale of that product (assuming it's for sale).
This whole "if I take a bike, you don't have a bike" is smoke and mirrors to make the people who feel like they can take what they want from others free of charge feel morally superior.
In general, "theft" is denying another the power to exert the rights that they have over their property - whether that's possession or some other right is irrelevant.
In short:
1. If it is "property" (intellectual, real, or physical)...
2. And you take it...
3. And you don't have permission...
4. Then you've stolen it.
Any other justification is a post-hoc rationalization that has nothing to do with these very simple facts. Value has nothing to do with it (except where it has to do with paying for permission); exclusion has nothing to do with it; it's a very simple calculation that people seem to want to try to make more complicated than it needs to be.
A bit of background, intellectual property law is not the exclusive domain of big faceless corporations. The corporations may get the bulk of the coverage, but the owners of intellectual property are like my friend, the author Leonard Nash.
His stories appear in respected literary journals, magazines and some newspapers. He also published an award winning book (Florida Book Award 2007). His small press publisher (Kitsune Press) is also a friend of mine. I believe, as the copyright law would support, that passing around PDF copies of these stories is intellectual theft.
Although, many people like to throw around examples of RIAA and MPAA "persecuting" individuals of little financial means, these are not the focus of the law around intellectual property rights.
I live in a small college city and know a lot of "small" content creators. Another great example is a friend who owns a local toy store and mail order business. Because he specializes in unique toys from small manufacturers and crafts people, he reshoots products for his online catalog. He is constantly finding other resellers reusing his photographs.
In this example, it is his time, his labor and his exclusive efforts to promote his small business (fewer than 30 people) that is being infringed. Policing the Internet for his images has become a regular part of his business activities and steals his time away from other more profitable pursuits.
I can pull out many examples like the one's above, including a music producer who works a day job editing a music industry magazine. I know commercial photographers who have had their work pilfered. I know jewelry artists who have had their work counterfeited and copied. I have had items from my own portfolio used by unscrupulous infringers.
The point has been made that copyright (and all IP) is an exclusive privilege granted by the state to creators of original works. The argument has been asserted that it is intellectually dishonest to equate infringement with theft.
I offer that the state also has the right to remove physical items deemed to be contraband, to place easements on real property and take land through eminent domain and to repatriate goods suspected of being stolen by 3rd parties decades and possibly more than a century after supposed crime. Because the rights are granted by the state, it does not negate nor make the claim less legitimate than removal of physical goods.
In the area of software piracy, there are many legal options to reach
the same end product goals, including alternate licenses and fair use.
The Creative Commons license and GPL (GNU Public License) cover a wide
array of software titles which can perform functions from word
processing to photo editing and 3D rendering and animation, as well as databases and development frameworks. These license types depend
on sound and enforceable copyright law. With so many legal options
available in the ecosystem it seems naive to suggest that violating
copyright is some kind of bold civil libertarian statement.
To use the sweat of my brow without compensation is either theft or slavery. I would protest either.
Take a look at the word copyright. In it are the seeds of your answer. Copy-right.
The copyright owner owns the exclusive right to make and distribute copies of the original work for as long as the copyright remains in effect.
By taking onto yourself this function you are misappropriating a property right of the copyright owner. Are you stealing her property? No, but you are wrongfully taking away her exclusivity. You do not have the copy-right. She does. She has the right to distribute and to choose to profit from distributing copies of the work. You don't.
Even if you are not profiting, she has the right to charge a fee to YOU for a copy of the work, and to charge third parties for it. If you copy it and give away copies to third parties, you are defeating her right to sell copies to those third parties.
Please note: I am not defending the righteousness of current US copyright law, which is very hard to defend. The Walt Disney company and other big content providers have rewritten US copyright law far too much to their specifications. I am also not defending the practice of calling copyright infringement "theft." There's a lot of hyperbole around copyright law these days. But it's important to understand why the law of copyright exists, and why it is even embedded in the Constitution.
"The Congress shall have Power 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."
Copyrights and patents exist to encourage creativity and invention, and to reward those who create and invent. But the Founders also recognized that this protection should exist for a limited time only, to enable future creators and inventors to build on the achievements of others. That's why current US copyright law is so immoral. But I'm not going to go there. %^>
As for patents, a similar theory applies to copying of a patented invention. The inventor has the exclusive right to authorize others to rely upon the patented invention. In asserting that right yourself, without consent of the inventor, you are misappropriating it and depriving the inventor of her exclusive right to control the invention for a fixed period of time. Again, I am not going to defend the policies of the USPTO in deciding which inventions are patentable. But the policy behind patents is not so very different than the policy behind copyrights.
If you steal someone's bicycle, they no longer have a bicycle. If you copy someone's bicycle, you both now have bicycles. That's all well and good.
Let's say, however, that someone does not only have a bicycle, but has an idea for an improvement to bicycles, and they've patented this idea. This idea was an original creation of their own, conceived by them and developed by them. It is their intention to market their idea to bicycle manufacturers for profit - earning some money off of this great idea they've had.
Would copying their idea be theft? They still have their idea - you've not taken it from them, nor wiped it from their mind. But if you only "copy" that idea, you're nonetheless denying them potential profit and opportunity they'd otherwise have available to them and that most would feel they deserved.
The original bicycle analogy, as proposed, ignores the fact that "intellectual property" exists as a concept, reality, and consideration under law. "Property" is not limited to, nor defined by, physical form or substance; copyright law exists, trademark law exists, intellectual property law exists. It's long been established that people, if they so choose, are entitled to benefit from having creative and original ideas. They are entitled to have a certain extent of control over those ideas for a period of time, if not indefinitely.
So, perhaps copying a bicycle isn't theft. But, copying the bicycle from the person that conceived of the bicycle, invented the bicycle, and patented the bicycle, and then proceeding to manufacture and distribute the bicycle in spite of them? Yes, you've stolen from them.
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