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.