Wednesday, August 3, 2011

Copyright infringement /= theft.

It has become common, especially among those lobbying for tighter enforcement of copyright protection, to refer to illegal copying of copyrighted material as theft. I want to address a question of language: should illegal copying of copyrighted material be called theft? Let me be clear about two things. First, this is definitely NOT a discussion of whether or not copying is good, or what copyright policy should be, or any hard question like that. It is also not a debate about “correct” language, per se; most interesting discussions of language are not about right or wrong, but rather about what is useful. Is calling copyright infringement “theft” useful language? I think the answer is no, in the sense that it does not correspond to standard use of the word theft. Of course, the terminology might be useful politically for those wanting tougher enforcement of copyrights; certainly no one likes being called a thief, and theft has a particular negative connotation that goes beyond simple law breaking. Many people might admit to breaking the speed limit; virtually everyone agrees that theft is morally wrong. But it is a bad use of the language, in terms of corresponding to our usual definition of theft, to attach the term to copyright infringement.

It is useful to start with a “conventional” example of theft. If I steal your computer, than you have one less computer and I have one more computer. No additional computers are created; my enjoyment of your computer prevents you from enjoying it.

Copyright infringement can’t be considered theft of the work itself, since my copying the work does not destroy the initial copy of the work. The claim, then, is that the intellectual property, which is a right to exclude others from enjoying copies, is what has been stolen. What I want to claim is that infringement of a right to exclude is not routinely called theft; in fact it is quite unnatural to call it that. Perhaps the clearest example of this is your front yard. You have the right to exclude others from your front yard. If someone has walked across your front yard, would you call them a thief? I think not; they have trespassed, but calling them a thief would be misleading. If you yelled “Stop, thief!” when the person crossed your lawn, and a nearby policeman apprehended the trespasser and asked you what was stolen, you would probably be quite embarrassed to accuse them of stealing the right to exclude them from your front yard, even if they were guilty of trespassing. This shows the sense in which use it is important to make sensible use of language: whether or not it is technically correct to say that the trespasser stole your right to exclude doesn’t change the fact that it is misleading to use the term in that way. (And it explains why those wanting tougher copyright protection use the term: yelling “Stop, thief!” is a very effective way to get the attention of law enforcement.)

Most of the discussion of the use of the term theft in regard to copyright infringement focuses on the foregone value that the copyright holder could have received by selling the work to the person who makes the copy. But this is no different, in principle, from the front lawn example: you could have charged the trespasser to cross your lawn, and you lost that revenue when the trespasser crossed your lawn without permission.
Perhaps the difference, then, is that the trespasser wouldn’t have paid to cross the lawn. But if one claims that the difference in the copyright example is in the magnitude of the lost revenue, does that mean that infringement of copyright is fine if the infringer wouldn’t have been willing to pay for the work that is infringed? The term copyright infringement, like trespassing, need not come to a judgement about willingness to pay, and therefore is more precise than theft. Even if you want to focus on a substantial destruction of value as the motive for calling infringement theft, it is still difficult to justify. If the trespasser tramples your flowers, it would still not by typical to call them a thief, even though they have destroyed value and might sensibly be asked to pay restitution.

(Destruction of value, though, is itself a tricky concept in a world of competing ideas. Certainly a new album released by Lady Gaga reduces the value of the other music on the shelves, as customers substitute away from those albums and toward the popular new release. Of course we do not expect Lady Gaga to pay restitution any more than we expect a popular new restaurant that draws customers from neighbouring restaurants to pay restitution to its neighbours. On the other hand, if Lady Gaga’s album were literally a copy of one of those other works, the substitution toward Lady Gaga’s album would be viewed differently. In practice, copyright opens up a difficult grey area in between. Some say that Lady Gaga is reminiscent of Madonna; if so, do we view sales of Lady Gaga’s album as destroying value for Madonna in a way that demands restitution? Or do we simply say that Lady Gaga has simply added value by standing on the shoulders of what came before, as all ideas do? These are the hard questions that are beyond the scope of this discussion, but certainly interesting ones to think about.)

Agreeing that it is misleading to call copyright infringement theft doesn’t mean that copying is OK, or that copyright laws are bad, or anything like that. Nothing about this discussion takes a stand on that. It is just a question of what language is useful: calling these acts theft is not helpful, because it doesn’t correspond to our usual notion of theft. In a sense, calling a trespasser or a trampler of flowers a thief might be technically correct, since they have taken your right to exclude, or your right to enjoy untrampled flowers. But the language isn’t helpful, since we have other more specific words for what has happened, and a common use of the word theft that doesn’t include acts like trespassing, trampling flowers, or infringing copyrights.