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Re: "My dad is a pirate."
Re: "My dad is a pirate."
Thu, 21 Feb 2008 22:45:23 -0600
Here's another great article on the subject, coming from LA Times
(hardly a bastion of extremism).
>From the Los Angeles Times
File ~sharing~ or ~stealing~?
The semantic debate over whether copyright infringement is theft.
By Jon Healey
February 18, 2008
A few days ago I came across an Op-Ed submission that called for file sharing
to be decriminalized. The editors here decided not to run it, but it intrigued
me for a couple of reasons. First, the author, Karl Sigfrid, is a member of the
Swedish Parliament from the Moderate party ~ a pro-business party that's akin
to this country's Libertarians (except in Sweden they're more than just a
fringe group). Second, although he covered much of the same ground earlier this
year in a Swedish paper, Sigfrid's new piece added another provocative
contention: that unauthorized downloading isn't actually theft. Here's an
In "The Fatal Conceit: The Errors of Socialism", the economist and Nobel
Prize winner F.A. Hayek explains the difference between conventional property
rights and copyright. While the supply of material resources is limited by
nature, the supply of an immaterial good [is] unlimited, unless the government
limits the supply by law~. A later Nobel Prize winner, Milton Friedman,
describes copyright as a monopoly that decreases supply to a level below the
optimal level. Copyright and the regulations that follow from it should,
according to Friedman, be described primarily as a limitation of free speech.
In essence, Sigfrid is saying that something in unlimited supply can't be
stolen. His position is a variation on a theme advanced by Mike Masnick of
Techdirt.com, among others: that the entertainment industry's aggressive
copyright-enforcement efforts spring from an outdated, analog-era notion of
scarcity. Under this view, copyright holders are helped, not harmed, by file
sharing and other online distribution pipelines; they just haven't adapted
their business models to take advantage of the new opportunities. Supporters of
this view include musicians, authors and filmmakers who say that that file
sharing helped bring the exposure they needed to sell their works.
These aren't just academic arguments. They're ammunition in a battle that's
raging online to shape the way the public thinks about copyrights. The first
salvo was fired by the original Napster, which defined itself as a file-sharing
network. That won the semantic high ground by defining unauthorized downloading
as "sharing," not "copying" or "duplicating." The implication was that users of
these networks were merely being generous with something they possessed, not
usurping the rights of copyright holders.
Record labels, music publishers and movie studios contend that copyrights are
indeed property, entitled to the same protection as a home or a car. To counter
the notion of "sharing," they've advanced an equal powerful metaphor:
downloading as theft. "When you go online and download songs without
permission, you are stealing," the Recording Industry Assn. of America says on
its website. "Piracy is theft, and pirates are thieves, plain and simple.
Downloading a movie off of the Internet is the same as taking a DVD off a store
shelf without paying for it," adds the Motion Picture Assn. of America. The
imagery has been echoed by the news media, lawmakers and college
administrators. It's even found its way into the online term-paper site
FratFiles.com, which offers a model essay, "Illegal downloading 'is' stealing"
(yes, there are shortcuts even for ethics assignments).
Nice image, but it's not a perfect fit. As Sigfrid noted, there's a fundamental
difference between intellectual property (copyrights, patents, trademarks) and
real property (houses, cars, plasma TVs): The latter is tangible and limited in
supply, the former is not. "Copyright infringement is not 'theft' in the same
way that taking a CD from a store is theft," said Mark Lemley, a copyright
expert at Stanford University Law School. "If I take your physical property, I
have it and you no longer do. If I copy your song, I have it, but so do you."
Legal scholars aren't the only ones making that point. You'll see it again and
again in discussions online about the propriety, morality and economic impact
of file sharing. To Lemley, that suggests the entertainment industry's choice
of metaphors has backfired. "Let me be clear: copyright infringement is wrong,
and should be punished," he wrote in a recent e-mail. "But simplistic
statements that infringement is 'just like' stealing a CD, or using a room in
my house, are wrong. They are also counterproductive, because people
instinctively know they are wrong, and so they are likely to ignore histrionics
of this sort."
So what's the right metaphor? Unauthorized downloading may not be larceny, but
it still seems to fit under the broad notion of theft. Even though the copies
cost nothing to produce, the data in them has value. Downloaders acquire that
value without paying for it. Some say they're not causing any real losses
because they buy new copies of the downloaded files they like. But that
rationalization wasn't persuasive to Supreme Court Justice Stephen Breyer, who
flatly declared in his concurring opinion in MGM vs. Grokster, "Deliberate
unlawful copying is no less an unlawful taking of property than garden-variety
The downloading-isn't-stealing faction makes much of the fact that
infringements don't deprive copyright owners of their works. But that
deprivation is not an essential element in every kind of theft. If you splice
into your neighbor's cable wire and get 150 channels for free, you're not
diminishing the available supply of cable TV or depriving anyone else in the
neighborhood of it. But you're still acquiring something of value without
paying for it, and you're doing it without the seller's permission. That's
calledtheft of service.
Don't expect Hollywood to start likening illegal downloading to stealing cable,
though, no matter how well the shoe fits. Cable pirates are heroes in some
quarters, not pariahs, and the cable operators' image problems rival those of
the RIAA and the MPAA.
More important, copyright owners want the public to view unauthorized
downloading as shoplifting because they want intellectual property to be as
respected by society just as much as real property is. But there's more at
issue here than just the propriety of file sharing. The imagery associated with
infringement also affects debates over other aspects of copyrights, such as how
long they should last and who should be responsible for stopping piracy.
Likening them to real property tilts the debate by making copyrights seem
immutable, when in fact they have a specific social goal: "to promote the
progress of science and useful arts," as the Constitution states in Article I.
Achieving that goal means balancing the interests of content creators against
the public's, which is a much more complicated task than erecting a legal
barrier to five-fingered discounts.
Jon Healey is a Times editorial writer and author of the Bit Player blog. Tell
us what you think at firstname.lastname@example.org.
If you want other stories on this topic, search the Archives at
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- Re: "My dad is a pirate.", (continued)
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