Chad Perrin: SOB

8 October 2009

Copyright Infringement Isn’t Theft

Filed under: Liberty — apotheon @ 05:09

In The Mythology of Intellectual Property, I mentioned that “The Product of the Intellect Isn’t Property” and pointed out that, consequently:

Even the law doesn’t recognize copyright as “property”. If you violate copyright laws, it is not called “theft”; it is called “copyright infringement”.

There’s always someone willing to argue the point, though, no matter how wrong the person might be. I guess not everyone in the world has read my comments on the subject yet. Earlier today, in fact, someone called copyright infringement “theft” in the context of altering the license on a piece of open source software — which would be a case of “copyright infringement”. What follows is an adaptation of my response to that email. I mostly just modified stuff that needed to be changed so it would make sense outside the context of the mailing list discussion.

The term “Intellectual Property” is essentially an invention of people who wished copyright, patent, and trademark bodies of law were treated more like actual property law. Saying something is “intellectual property” sure makes it sound like violating the relevant law should be called “stealing”, but it’s still not theft under the law (unless you happen to live in some jurisdiction that treats this stuff in a very nonstandard manner — I can’t speak for all jurisdictions, since I know nothing about copyright law in Eritrea, for instance).

Not only is copyright not legally considered theft, but it is not practically equivalent to theft, either. In theft, a person has a thing in his or her possession, and the thief takes it away. There is no thing in a copyright holder’s possession that is taken away when copyright is infringed. The common excuse for calling it theft is reference to the copyright holder’s profits being “stolen”, but because those profits do not even exist yet at the time of the copyright infringement, they are not literally being “taken away”.

As I hinted above, I suppose it is possible that Eritrea, or even Portugal, does not legally differentiate between theft and copyright infringement. Maybe in Portugal the word for “theft” is defined differently than here, so that it applies not to property per se, but to any illegal act of acquisition; that is not a jurisdiction whose copyright laws are familiar to me. I rather doubt it, though, because a legal definition of theft that is applicable to copyright would fail to account for actual theft of actual property of naturally limited abundance.

Given an example with which I am more familiar (the United States), though, I cite Dowling v. US:

The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.

Dowling v. US specfically set forth for those who wished to define bootleg recordings as “stolen property” the details for why this was not an appropriate definition, and rejected outright and in all its particulars the concept that copyright infringement is theft in any legal sense of the term. The reasoning is summed up in the above two-sentence quote from the Dowling v. US decision.

The economic principle that differentiates copyright infringement from property theft is that of rivalry. A rival good is one whose use by one consumer prevents the use by another, whereas a nonrival good is one whose use by one consumer does not interfere with use by another. Copyright infringement is illegal acquisition, by a consumer, of a nonrival good; property theft is illegal acquisition, by a consumer, of a rival good. Copyright violation does not deprive anyone else of the opportunity to acquire or use the good in question, whereas property theft does, accounting for the differences of legal status for acquisition between rival and nonrival gods.

Thomas Jefferson, in discussions of the idea of copyright and patent law before such were even included in the US Constitution, made this distinction as well:

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

The metaphor of a taper (i.e., candle) is quite apt for these purposes, I think.

Disclaimer: I am not a lawyer. This is not legal advice. If you want legal advice, talk to a lawyer. This is just “please stop confusing the issue by using the wrong terms when you get into flame wars” advice.

All original content Copyright Chad Perrin: Distributed under the terms of the Open Works License