I’ve got a new post up at Roots Music Canada, why copyright infringement isn’t theft, which draws on William Patry’s book, Moral Panics and the Copyright Wars, to explain that theft is a poor metaphor for copyright infringement.
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.
The post was in response to table-thumping by some members of the community that, “there’s no grey area, it’s theft,” and that “it is now completely possible for ISPs to identify and eliminate illegal file sharing.” It could be interesting if those folks show up in the comments…