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Why copyright infringement isn’t theft

Many people talk about copyright infringement as if it were literally a type of theft. “Downloading a song without the permission of the copyright holder is stealing, plain and simple” you might hear.

Referring to unauthorized copying as theft is just a metaphor—and a pretty weak one.

Copyright infringement is wrong because it’s illegal, but copying is not theft in any meaningful sense of the word. The Copyright Act itself doesn’t treat copyright infringement as theft, nor would a court of law. Infringement and stealing are not only distinct legally, but also conceptually—duplicating something is not the same as taking it away from someone (even if it’s still wrong).

In his latest book, Moral Panics and the Copyright Wars, William Patry writes about the reasons for invoking the image of theft (p. 87-88, 103):

Canadian law professor Stephen Waddams, in a well-regarded book about how we think about law, wrote that when a dispute arises about intangibles, such as copyrighted works, information, or… time,

[T]he claimant is always eager to categorize the claim as proprietary. Thus, the conduct of the defendant is apt to be described by claimants as piracy, highway robbery, and brazen theft. This is rhetoric: the taking of a photograph, the re-broadcasting of television signals, the use of confidential information, or the copying of a design cannot, in fact or law, be piracy, robbery (on or off the highway), or theft, and if it were any of these things, the rhetoric would be unnecessary…

[…] Describing someone as a thief or trespasser is a metaphoric step in gaining property rights, and not the result of having a property right in the first place. If one already had a property right, the property owner would sue for violation of that right and would not have to strut around… blaring loudly about “piracy.”

[…]

Copyright owners [describe] their right as “intellectual property.” The purpose of advocating something as a property right is to take it outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified. Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as who break into our homes and steal our cars.

Copyright law isn’t about theft and clearly fenced-off property. It’s a set of social relationships between creators and the public, granting creators certain exclusive rights, for a limited time, for the benefit of everyone. Abusing the theft metaphor shifts the focus away from the fundamentals of copyright, making it difficult to have any sort of meaningful or fruitful discussion about copyright.

I think it’s possible to present an informed and intellectually honest case for stricter copyright laws, but table-thumping about how copying is stealing is neither of those things.

Blaise Alleyne is a musician, programmer, writer, and free software/culture advocate. He writes and performs as a solo singer/songwriter as well as with his folk rock band, Fishkiss. He also records and performs with other artists as a violinist and arranger.

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