The difference between theft and copyright infringement

While I was very pleased with the proposal the Songwriters’ Association of Canada recently put forth to legalize file sharing in Canada, I couldn’t help but slam my head against the table when reading the “what some music creators have to say” link.

With the exception of the a few (most notable the Canadian Music Creators Coalition), the comments were laden with words such as piracy, thievery and stealing. There are some fundamental misunderstandings here, obviously; many of these songwriters just don’t get it.

But some of them made comments that were just plain stupid.

There is absolutely no difference between stealing a piece of recorded material which has accumulated costs all the way down the line during its production (recording studios, engineers, recording
equipment which must acquired and maintained, artwork, printing, promotional materials and publicity– all this must be paid for) and stealing any other manufactured product. If the end product is taken without being paid for, there is no source from which to recover these costs, let alone any money for the artist to live on.

It is stealing — plain and simple.

It is no different than walking into a clothing store and stealing the clothes. Somehow the consuming public seems able to grasp this concept when it applies to sweaters, shoes, or groceries, but cannot understand that the same chain of costs and the need for the artist to recover those costs and to make a living applies to the world of recorded music.

I do not understand why this is, but it is well past time that someone other than the consumer put a system in place to help us keep our music from being stolen.

It is no different than the fact that pretty much all traditional retail stores now have, and have had for years, electronic scanners at the exits in order to alert them when someone is attempting to leave the store with items they have not paid for. We have a right to the income from the results of our labour, just as anyone else in any business has.

– Joan Besen

Joan Besen is so unbelievably confused about this. The claim that there is “absolutely no difference” between unauthorized copying of a digital audio file and the theft of a physical good is flawed right at the core. There is one very important difference. When you copy a file, you do not deprive the owner of their copy. When you take a physical item from someone, that someone no longer has that item in their possession.

Theft is universally considered to be wrong because you are taking something away from someone else. Copying a file is fundamentally different. It’s duplicating, not depriving. Far from “plain and simple” as Joan suggests, the issue of what kinds of copying should be considered infringement and what constitutes fair use is a complex legal question.

The analogy to manufactured goods just doesn’t hold. At the very least, it’s impossible to claim there is “absolutely no difference.” With manufactured goods, you need to recoup costs for every particular physical item because each particular item must be individually manufactured. With digital goods, the “manufacturing” process happens once. Once the original copy is created, manufacturing costs do not change whether the file is never shared with another or whether every person on earth has 20 copies of it.

In this important way, Joan, there is a difference between theft and file sharing. For this reason, theft is widely considered to be wrong (thou shalt not steal), but the act of file sharing is only wrong insofar as it is unauthorized or illegal. Distinguishing between fair use and infringement is often a difficult legal question, especially in our rapidly changing digital landscape.

Joan is right that artists need a way to recoup the costs of produce their art. That is what copyright was originally intended for, to provide an incentive through creating artificial monopolies for these artists, insofar as it increased the promotion of art for the public. But Joan is wrong that these costs need to be recouped through sales of songs. She is stuck with pre-digital economic thinking.

Traditionally, economics have been about scarcity. You have scarce resources (CDs), there is a demand for them (music fans) so you supply them with the product for a fee. In the digital world, we are dealing with abundance, not scarcity. Digital audio files are abundant, so the supply and demand model just isn’t the same unless you create artificial scarcity through copy protection schemes. Rather, you can leverage the abundant goods to provide extra value to the scarce goods. Through file sharing, artists grow their fan base as more people can listen to their music. Having a larger fan base creates a higher demand for scarce goods, such as concert tickets or merchandise, or even physical copies of the music (as in the case of Radiohead’s In Rainbows discbox). And you can still charge for the service of distributing abundant goods, like Radiohead’s pay-what-you-can model, or through an online store that makes music easily available.

There are ways to recover the costs of manufacturing without making the ridiculous assertion that there is actually no difference between theft and file sharing. In fact, that seems to be the only way to go as we enter further and further into the digital age.

More importantly, proposals like the one made by the Songwriters’ Association of Canada will not be accepted on the basis that everyone gets labeled as a criminal and is forced to pay a penalty upfront through their ISP fees (or for any recording medium). Rather, the public will embrace these sorts of proposals because of a genuine desire to compensate artists while accessing music in the way that they want.

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12 Responses to “The difference between theft and copyright infringement”

  1. Jared says:

    “While I was very pleased with the proposal the Songwriters’ Association of Canada recently put forth to legalize file sharing in Canada”

    Just wanted to comment on that. File sharing is legal in Canada. File sharing is not innately designed to pirate software/music/etc, it is a means of effectively communicating/transfering data, much like HTTP, FTP, email, etc. It merely does it in a way that large amounts of data can be effectively distributed without putting strain on any one host.

    For example, Linux distributions, many public domain sites, Blizzard (makers of Warcraft) all use file sharing/p2p legitimately

  2. Blaise says:

    Thanks, that’s a good point. There are obviously lots of legal uses for peer-to-peer technology, even when it comes to sharing copyrighted music (e.g. my music is released under a Creative Commons Music Sharing License). When I use “file sharing” in light of SAC’s proposal, I’m referring to sharing digital audio files of copyrighted songs.

  3. […] written about the SAC’s proposal to legalize music file sharing several times in the past, giving it mixed reviews. It’s not a new idea, but it’s one of the first […]

  4. […] and copyright infringement are not the same thing. And the sharing and spreading of music through digital channels is natural and, more importantly, […]

  5. […] and copyright infringement are not the same thing. And the sharing and spreading of music through digital channels is natural and, more importantly, […]

  6. x says:

    the difference between unauthorized and illegal is neglible. copying is depriving a sale for the artist or the creator. just because the method is one step removed doesn’t deny that fact.

  7. Blaise says:

    the difference between unauthorized and illegal is neglible.

    Umm… where did I say there’s a difference between unauthorized and illegal? I mean, I guess there is, but I’m not talking about that at all.

    I’m talking about the different between copyright infringement and theft. Both are illegal, but they are two clearly distinct things, by definition, ethically, legally, conceptually, technically, etc…

    I don’t really care about the difference between unauthorized and illegal here. I’m talking about the difference between copyright infringement and larceny.

    copying is depriving a sale for the artist or the creator.

    That’s not true. It may be sometimes, but there are lots of instances where unauthorized downloading is not in place of a sale, such as the sampling of new music. Furthermore, the latest Industry Canada study on the subject finds “a strong positive relationship between P2P file sharing and CD purchasing.”

    just because the method is one step removed doesn’t deny that fact.

    This has nothing to do with being “one step removed.” Did you read the post?

  8. x says:

    Ok stupid, let me show why you are an idiot. Here is what you wrote and are too dumb to understand the implications:

    “The claim that there is “absolutely no difference” between unauthorized copying of a digital audio file and the theft of a physical good is flawed right at the core. There is one very important difference. When you copy a file, you do not deprive the owner of their copy. When you take a physical item from someone, that someone no longer has that item in their possession.”

    You:
    Umm… where did I say there’s a difference between unauthorized and illegal? I mean, I guess there is, but I’m not talking about that at all.

    This is you being stupid and I refuse to even continue debating with a moron who can’t understand theft is illegal.

  9. Blaise says:

    x, are you serious? Like, actually full out serious? Did you read my comment?

    Call it “unauthorized file sharing” or “illegal file sharing,” I don’t care for the purposes of this post. You can take that sentence and make it: “The claim that there is “absolutely no difference” between illegal copying of a digital audio file and the theft of a physical good is flawed right at the core…”

    Don’t you see? Of course copyright infringement is illegal! (I also wrote “the act of file sharing is… wrong insofar as it is unauthorized or illegal.”) Both copyright infringement and theft are unauthorized and illegal. I am making no distinction between unauthorized or illegal but using them as synonyms here.

    Is that really so hard to understand?

    The comparison is between larceny and copyright infringement, which are two entirely separate areas of law. They are not related at all. Find me the words “theft”, “stealing” or “larcency” in the Copyright Act.

    To be absolutely clear and avoid any further reading comprehension problems:

    1. Copyright infringement is illegal;
    2. Theft is illegal;
    3. But theft is not copyright infringement; they are two separate things.

    When did I say theft isn’t illegal?! *sigh*

  10. txpatriot says:

    Joan used the word “steal”; you very deftly changed it to “theft”. And you built your strawman on the slight difference between those two terms.

    One can most certainly STEAL non-tangible things:

    steal

    1. to take (the property of another or others) without permission or right, especially secretly or by force: A pickpocket stole his watch.

    2. to appropriate (ideas, credit, words, etc.) without right or acknowledgment.

    http://dictionary.reference.com/browse/steal

    Conclusion: there is NO DIFFERENCE between unauthorized file copying and STEALING.

    • @txpatriot

      1. Did you read Joan’s quote? I don’t think she was suggesting that unauthorized file sharing of copyright music is like going into a clothing store and “appropriating the clothes without right or acknowledgement.”

      2. I’d used theft and tealing interchangeably. What do theives do? They steal things. What’s the difference between theft and stealing? Theft is what’s normally meant by stealing, and clearly what Joan meant by describing an example of shoplifting. I’d be happy to replace the word theft with stealing or shoplifting throughout the post, because it makes no difference in the way Joan is using it.

      On Wikipedia, the article on stealing redirects to theft. http://en.wikipedia.org/wiki/Stealing

      Princeton does the same thing, defining theft as stealing: http://wordnetweb.princeton.edu/perl/webwn?s=stealing

      Theft is what’s usually meant by stealing, certainly if we’re talking about shoplifting.

      If Joan meant stealing in the sense of appropriating the ideas or concepts of clothes, that would mean ripping off the design, copying the fashions, but not walking out of Winners with a sweater you didn’t pay for.

      ps It’s not very hard to refute the “NO DIFFERENCE” claim. If I copy a file from your website without you permission, do you still have it? If I steal a CD from your merch table, do you still have it? I’m not saying copyright infringement isn’t wrong, but it’s not the least bit productive or useful to pretend that it’s the same thing as stealing a coat or a sweater. It’s a weak and problematic analogy at best.

  11. eric says:

    ““a strong positive relationship between P2P file sharing and CD purchasing.””

    No kidding. Just because there is a correlation between P2P file sharing and CD purchasing does not mean the former causes the latter. Rather, they are likely driven by common factors, i.e. the reduced form demand functions likely share several factors in common (i.e. a popular song will likely be purchased more as well as shared more). I would venture a guess that file sharing costs artists more sales than sampling generates – though admittedly, this hypothesis is based on personal experience on college campuses, not hard data.

    Additionally, while you address music only, you ignore the fact that file sharing has significant implications for other intellectual property goods as well. In the case of books or films, there are far smaller positive effects from sampling, and in the case of the latter, much larger budgets to recoup (one song versus one film).

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