Defining Terms

Stealingright

A few days ago, I was reminded of an essay recommended to me by Jim called The Economy of Ideas: Selling Wine Without Bottles on the Global Net (a more readable PDF version). After over four years, I finally got around to reading it, and I’m sorry I took so long. I recommend it for anyone thinking about Intellectual Property, Copyright law, and software development.

One reason I looked up the article is that I was trying to explain to a couple of friends of mine that copyright infringement is distinct from stealing, both under US law and philosophically. Under the law, copyright infringement is simply separate from theft. If you copy and distribute VHS tapes of movies without authorization from the owner of the movies, you will not be charged with stealing anything, but rather copyright infringement.

Philosophically, theft and copyright infringement are also very different. I’ve heard some say “If you copy a CD instead of buying it, you’re stealing the $15 from the makers of the CD.” This is incorrect for two reasons.

First, theft requires that you take something from someone else. The Oxford English Dictionary, 2nd edition defines theft as:

The action of a thief; the felonious taking away of the personal goods of another; larceny; also, with a and pl., an instance of this.

If I literally steal the plastic disc from a music store, I have taken away the goods of another, and am therefore stealing. However, making a copy of something does not take anything away from someone else, as long as they still have the original copy. The “taking away” in my CD quote happens in this theoretical realm of what might have happened, had I not made the copy. This is a philosophically very different realm than that of actual, physical theft.

The second reason that this “stealing $15 from the makers of the CD” reasoning is not correct is that, even given that a theft has taken place, it is not clear from whom one has stolen. If I take a physical object (an apple, for example), it is very clear from whom I have stolen: whoever owned the apple before I had possession. However, suppose I have a machine that can make an exact physical copy of apples from a distance, without modifying the original apple in any way. Say I’m walking down the street with my apple copier and see someone walking on the other side of the street with an apple in her hand. Using my machine, I make a copy of this apple, and now have a new apple in my hand, while the passerby has not even noticed anything happened. In this case, from whom have I stolen? The person with the apple still can eat her lunch, and does not feel that a theft has taken place, so it’s surely not her. Is it the store from which she bought the apple, or maybe the store from which I would have bought the apple, had I not copied hers? If the former, I may not even know where that is, or it might not exist anymore. If the latter, this could be any number of stores, all of which would then be entitled to the cost of my apple. Neither of these seem right. Perhaps I have stolen from the apple grower that would have grown the apple that I would have bought from some store, had I not copied the passerby’s apple. Again, this does not seem correct. It is simply not clear from whom I have stolen the apple, which distinguishes it sharply from actual theft.

Besides all of which, if I did have such an apple copying machine, I would never get accused of theft. No one would be able to report a crime, there is no property to be returned, and no one has suffered from my actions. For all of these reasons, copyright infringement is completely other than theft. Of course, it benefits those who want more stringent copyright laws to associate copyright infringement with stealing and “piracy,” so they do it. This should probably be considered propaganda, and understood within this context.

None of this leads to the conclusion that copyright infringement is therefore moral or legal. It is certainly not legal in the US today, and it is probably not moral. The actual interesting question is: What constitutes copyright infringement? Many would say that making a single copy for personal use, when no exchange of money or goods occurs, is not copyright infringement. Under US law, this may very well fall under the “fair use” clause of traditional copyright law. This is a question that, at least legally, will likely be answered by case law in the US some time in the near future.

Interestingly enough, after thinking about these distinctions for several days this week, I was robbed last night, for the first time in my life. While at the Broken Social Scene concert in Detroit last night, Chad’s car was broken into. The front passenger window was smashed, and Olivia and my backpacks were stolen. Fortunately, there was nothing of great value in the backpack, and my wallet and keys were with me at the concert, so I don’t have to go through the hassle of canceling my credit cards and such. Unfortunately, one of my textbooks, all of my notes from all of my classes, my planner, a pair of prescription sunglasses, and some USB drives were in the backpack. All of my school notes and planner are irreplacable, in that the stolen goods were the only copies in existence of them. And who wants to buy a $94 textbook twice? Why couldn’t the thieves have brought along their apple copiers instead?

Update Apr 26, 2006: While it has long been apparent to me that these ideas are in no way new or original to me, I received a special confirmation of this today when I came across a section of a letter by Thomas Jefferson who says the same thing in different words, only about patents rather than copyright. In each case, all of the philosophical ideas apply to all forms of intellectual property.