Why Copyright Infringement is Theft | Copyhype

This post by  Devlin Hartline at Copyhype was Cross-posted on the Law Theories blog.

In the never-ending copyright debate, one often comes across certain words the usage of which both sides vehemently disagree upon. One such point of contention is the use of the word “theft” to describe copyright infringement. Ars Technica ran an article a few years back where Vice President Joe Biden was quoted as saying that “[p]iracy is flat, unadulterated theft.” Copyhype’s Terry Hart had a post a week later discussing the infringement-as-theft meme, mentioning the fact that even Justice Breyer, a copyright skeptic, had referred to deliberate infringement as “garden-variety theft.”1 The response from the other side of the debate was predictable, with the usual suspects demanding that copyright infringement is not theft—though the skeptics conspicuously neglected to define the word theft or to actually explain why it’s wrong to refer to infringement as theft.


Artists Rights Watch – Sunday Jan 6, 2013

Happy New Year! Grab the coffee!

Recent posts from The Trichordist:
* First USC-Annenberg Brand Supported Piracy Report and Google Response
* Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 2
* Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 3
* Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 4
* What the FTC Should Know About Brand Sponsored Piracy and Google’s “Pinto Problem”


* What Turned Jaron Lanier Against the Web?

“I’d had a career as a professional musician and what I started to see is that once we made information free, it wasn’t that we consigned all the big stars to the bread lines.” (They still had mega-concert tour profits.)

“Instead, it was the middle-class people who were consigned to the bread lines. And that was a very large body of people. And all of a sudden there was this weekly ritual, sometimes even daily: ‘Oh, we need to organize a benefit because so and so who’d been a manager of this big studio that closed its doors has cancer and doesn’t have insurance. We need to raise money so he can have his operation.’

“And I realized this was a hopeless, stupid design of society and that it was our fault. It really hit on a personal level—this isn’t working. And I think you can draw an analogy to what happened with communism, where at some point you just have to say there’s too much wrong with these experiments.”

* Copyright Rules and the Art They Inspire

* The Year in News 2012

* The ‘Digital Economy’ in 2012: A big noisy hole where money should be

“Privacy and copyright are two things nobody cares about,” Mark Bide told us, “unless it’s their own privacy, and their own copyright.” How true.”

* Report links Google, Yahoo to Internet piracy sites

* Instagram Still Has the Right to Commercialize Your Work (or Why You Should Read Terms of Service Carefully)

* Google, Yahoo accused of funding piracy

* Keen On… Piracy: How Online Ad Networks Are Supporting The Major Pirate Movie And Music Sites [TCTV]

Annenberg’s Advertising Transparency Report should be seen as a wake-up call to brands to invest their advertising dollars in legal networks like Spotify or YouTube rather than pirate sites. Pretty simple, eh? Let’s hope that Madison Avenue wakes up to the troubling implications of Taplin’s report and shifts all its online advertising dollars to movie and music sites which actually pay artists for their content.

* More Evidence Ad Dollars Fuel Web Piracy

* Towards a Bill of Rights for Online Advertisers

* The Takedown-Why the DMCA has failed

* David Lowery makes list of people who changed the music industry.
* Collateral Damage: How Free Culture destroys advertising.

* Crocko.com lose Paypal. Resellers to follow.
* UltraMegaBit: A Crime Committed on American Soil
* Avangate forced to drop file sharing sites. More sites poised to lose Avangate payment processing.

* Abject Looting Continues at Pandora…
* In France, 92% of Pirates Never Receive a Second Warning Letter…
* Growth of Paid Downloads vs. Streaming, 2012 vs. 2011…

* Top 10 Most Popular Torrent Sites of 2013
* Music Biz Wants To Block Pirate Bay….Plus 260 Additional Sites
* IMAGiNE BitTorrent Group Leader Sentenced To Five Years in Prison
* Identifying Pirates Now Easier Following Swedish Supreme Court Decisions

* A look ahead to 2013

* Most popular intellectual property and technology law blogs

Weekly News and Recap! Sunday Sep 2, 2012

Grab the Coffee!

Recent Posts:
* Principles for an Ethical and Sustainable Internet
* Neil Young Exploited by Ford, Cooper Mini, Target, State Farm, Adobe, Alaska Air, ATT…
* CNBC Tonight : Hollywood Robbery — Thursday, August 30th 9p | 12a ET
* Hey Tom Waits! Who’s That Bandido Ripping You Off Now? … Wendy’s, Yahoo, BMW…
* The Making of Le Noise: the new album from Neil Young (9-14-10)

The Illusion of More : Dissecting the Digital Utopia
– A fantastic new blog and audio podcast launched this week which explores the good, the bad and the ugly of Internet culture, “Now that we’re just about 20 years into the digital age, and the babies born to the sound of dial-up modems are young adults who’ve never known life without the Web, it seems like a good time to explore some of the best and the worst of what we’re making of this technology.” Check out The Illusion of More [here].

Copyhype’s Friday Endnotes 08/31/12
– In addition to the weekly recap here, we strongly recommend the weekly reading of Friday’s Endnotes from Terry Hart’s fantastic blog, Copyhype. Terry often delivers thoughtful and insightful analysis of recent copyright cases, legal developments and news stories that are important to artists and creators.

Artists Exploitation is a Mass Scale, Enterprise Level, Infringing Business
– We are pleased to see several other blogs picking up on this story and asking the same questions we have been. Who is responsible for the funding of illegal artists exploitation on sites dedicated to infringement? Adland picked up the ball this week on our Neil Young post and commented from the perspective from within the Advertising Industry. Several other blogs also have been picking up on the story including Bill Rosenblatt’s Copyright and Technology, Terry Hart’s Copyhype, and Bruce Warlia at Music Think Tank.

Apple V Samsung, $1 Billion Dollar Victory for Apple leaves Anti-IP/Freedhadists with panties all bunched up…
– This is a major win for all artists and creators of Intellectual Property. Even though this case is about patents and not copyrights it clearly illustrates (again) that when presented to a jury (Tenenbaum/Thomas), people understand right from wrong and that copying without permission, is in fact stealing someone else’s hard work for profit. It’s important to note, this jury is comprised of regular folks being presented the actual facts in a court of law. All of the free culture nonsense that reverberates through the echo chamber of tech blogosphere has little impact in the bright light of reality. We are encouraged by the common sense and fairness that this jury displayed, Ars Technica reports;

The jury “wanted to send a message to the industry at large that patent infringing is not the right thing to do, not just Samsung,” Hogan told the newspaper. “We felt like we were 100 percent fair, but we wanted something more than a slap on the wrist.”

Comscore released a white paper this week on the Economics of Online Advertising.
You can download the white paper [here]. Readers of this blog will note that we are somewhat skeptical of the economics of online advertising as they seem to be largely dependent upon “exploitation economics” to remain profitable. This could be the use of unpaid bloggers for corporate gain, or the use of unlicensed content to aggregate an audience large enough to monetize with advertising. One only need look at the post IPO performance of Facebook to see this in action. Given the above, we found this statement particularly interesting,

“Bottom line, despite all the ingenuity of market participants, the current market situation is untenable.”

Cult of Mac Writer John Bownlee on “Why I Stopped Pirating Music”
– It’s a bitter sweet essay not unlike the one written by NPR’s infamous intern Emily White. We’re encouraged by the notion that as people mature from their 20s into their 30 recognize the value (not the cost) of music in their lives. Not only do they recognize this value, but they recognize the value in actually paying the creators of that work for enriching their own lives. As Brownlee writes, “As a thirty-three year old man, I’m ashamed of the piracy of my twenties” which is encouraging. However it’s the second part of the sentence, the rationalization for a decade plus of denying artists their rightful compensation that still remains as the bitter part, “but I’d be lying if I didn’t admit that it gradually helped transform me from a person who didn’t care about music into a music lover, an individual with a true passion for sound, and a fervent believer in buying music.”  The takeaway may be that one in their twenties will not pay for music if they don’t have to, but we should be grateful to them if they should grow a conscience and awareness in their thirties? We hope that people like John will stop with the rationalizations, and just admit to themselves and others that the artists that provide enrichment of their lives are deserving of compensation for the consumption of their work and for their contributions to the listeners life.

Streaming and Sustainability, Maybe it Just Doesn’t Work?
– This isn’t just about Spotify as Pandora also faces challenges with scaling it’s business. Maybe the truth is that internet advertising dependent businesses for content just don’t work once one factors in the actual fixed costs to produce and license the content itself? It’s no mystery to us why the illegally operating infringing sites monetizing content seem to be the only ones making money. They’re not actually paying for the content they are monetizing against. This is not a failure of the content industries, it is a failure of the internet community to figure out how to build models that can actually pay for the content they are using to attract the audience they need in which to sell advertising. Not surprisingly, Pandora has hired K-Street lobbyists in an attempt to deny artists of royalties and to line their own pockets. This may also be why Spotify is betting on a subscription model and not advertising, as Digital Music News reports.

Pirates meltdown as they realize that Copyright Law is not going to be abolished anytime soon.
– It is endlessly fascinating to us that the entirety of the free culture movement is defined by the same talking points as a petulant two year old, “I want it, I want it, I want it.” The constant whining and crying is really troublesome as they could be actually working on cooperative and innovative solutions for all stakeholders. Although Rick Falkvinge at Torrent Freak fears having these conversations for the next forty years, we’re a little more optimistic that only those who like walking into walls instead of walking through doorways will insist on continuing the pointless discussion about the unprincipled practice of exploiting the labor of others. We suspect in forty years people will look back at this moment in time and realize the truth that the exploitative robber baron’s of internet industry got a nearly two decade free ride as education and the law reconciled core societal values that have been present for centuries. Copyright is an individual right.

FilesTube Facebook Page Hacked
– Fascinating as it is entertaining. This week the Facebook page of FilesTube was hacked and an endless streaming of taunting and humorous pictures were posted. Not sure why, or who would be motivated to do this but it does indicate that not all hackers are aligned with the free culture movement. Wouldn’t a true “Robin Hood” movement actually transfer wealth from corporations to artists and creators as opposed to the other way around? One again, Torrent Freak reports.

Another one bites the dust, FileSonic Offline.
– The BBC Reports that FileSonic is the latest cyberlocker to go offline, “It’s becoming more difficult for file-sharing sites to operate without getting into trouble both from the authorities and also lawsuits from copyright owners.” Add to this that IMAGiNE BitTorrent Piracy Group Members Have All Plead Guilty and Sweden Ordered Pirate Bay Founder’s Arrest, while Cambodia Mulls Options. It’s getting hard out there for a Pimp, maybe the pirates should just listen to Larry Lessig and “Get Over It”?

Google, YouTube, Porn, Infringement, Copyright Policy and Consequences.
– We pretty much adhere to the time tested idea that eventually, the truth will out. We’ve said for a long time that managing copyright online is a question of will and not capability. This stunning story on Buzzfeed from a Google/YouTube temp worker confirmed what we’ve always believed. If there are consequences for bad behavior (such as porn and other nasty stuff getting onto YouTube) then there are ways to figure out how to manage it. This simply illustrates the obvious, consequences lead responsibility. Or in other words, necessity if the mother of innovation,

“One of the most shocking parts of my job was working on porn issues. Child porn is the biggest thing for internet companies. By law you have to take it down in 24 hours upon notice and report it to federal authorities.”

The Illegal Exploitation of Creators Work is not limited to Musicians.
– Javier Bardem, the Academy Award Winning star of “No Country For Old Men” explains how piracy removes opportunities from actors and other creative artisans.

Be sure to check out the CNBC, Crime Inc. Broadcast of Hollywood Robbery
– Airing Sunday, September 2nd, 11:00 PM EST/PST.

None Dare Call it Theft

Is copyright infringement theft?

It’s a good question to ask on the internet if you want to spark another round of an endless discussion.

Opponents of the “infringement = theft” argument will marshal an impressive array of arguments.

There are the semantic arguments: theft has a settled meaning that doesn’t apply to infringement (ignoring centuries of usage to the contrary).

Then there are the legal arguments: you can’t sue someone for copyright infringement under theft laws. Leaving aside the fact that there is no single “theft” law — statutes different from state to state and country to country — this distinction only matters if you’re a prosecutor; doesn’t dictate how words can be used in common parlance. And I don’t believe anyone is seriously making the argument that the goal of calling infringement theft is to eventually bring infringement actions under theft laws.

In a recent New York Times article, author Stuart P. Green adds his own arguments to the debate. While generally more eloquent than what you normally find online, they are still not so convincing.

Green begins with his explanation of how we got here:

From its earliest days, the crime of theft has been understood to involve the misappropriation of things real and tangible. For Caveman Bob to “steal” from Caveman Joe meant that Bob had taken something of value from Joe — say, his favorite club — and that Joe, crucially, no longer had it. Everyone recognized, at least intuitively, that theft constituted what can loosely be defined as a zero-sum game: what Bob gained, Joe lost.

When Industrial Age Bob and Joe started inventing less tangible things, like electricity, stocks, bonds and licenses, however, things got more complicated. What Bob took, Joe, in some sense, still had. So the law adjusted in ad hoc and at times inconsistent ways. Specialized doctrines were developed to cover the misappropriation of services (like a ride on a train), semi-tangibles (like the gas for streetlights) and true intangibles (like business goodwill).

Green goes on to lay the blame on the current debate on, of all things, the 1962 Model Penal Code (?!?).

While superficially appealing, this story is an over-simplification (as any two paragraph summary of thousands of years of history can be). One could just as easily fashion a Green-esque history of property law to make the claim that taking someone’s pet is not theft.

After all, for thousands of years pets weren’t treated as property — it wasn’t until the early 20th century (much later than the appearance of copyright law) that the common law recognized taking cats and dogs as larceny. And today, you can find those who will argue that pets should not be considered property. It shouldn’t be hard to find scholars who will claim that pets should be “free as the air to common use” — and it’s not hard to imagine a site like “PetDirt.com” pointing to stories about Michael Vick to prove that it’s harmful to allow people to claim ownership over animals.

But it’s not as simple as that. You can easily find exceptions to this narrative throughout history, and property law is always evolving.

Next, Green makes it sound like the description of copyright infringement as theft is a recent phenomenon:

With intangible assets like information, patents and copyrighted material playing an increasingly important role in the economy, lawyers and lobbyists for the movie and music industries, and their allies in Congress and at the Justice Department, sought to push the concept of theft beyond the basic principle of zero sum-ness.

This claim has a certain appeal to the conspiratorially-minded. But it’s simply wrong.

People have used theft language to describe copyright infringement long before now. In fact, referring to unauthorized copying as theft has occurred before the term “copyright” appeared in the English language. Centuries before, even.

For example, Martin Luther placed a “Warning to Printers” on the inside of his 1541 German translation of the Bible. The warning read:

SO feret der Geitz zu / vnd thut vnsern Buchdrückern diese schalckheit vnd büberey / Das andere flugs balde hernach drücken / Vnd also der unsern Erbeit vnd Vnkost berauben zu jrem Gewin / Welchs eine rechte grosse öffentliche Reuberey ist / die Gott auch wol straffen wird

Avarice now strikes / and plays this knavish trick on our printers whereby others are instantly reprinting [our translation] / and are thus depriving us of our work and expenses to their profit, / which is a downright public robbery / and will surely be punished by God

Later writers would use the term “piracy” to describe unauthorized reprinting and plagiarism, such as Elizabethan pamphleteer Thomas Dekker, who encouraged his readers in 1603 to “Banish these Word-pirates, (you sacred mistresses of learning) into the gulfe of Barbarisme.”

It would not be until 1710 that the first copyright law would be passed — England’s Statute of Anne (though interestingly, the term “copyright” does not appear in the law and would not enter the language until the 1730s.) Since then, it’s not hard to find a wide variety of sources describing infringement as theft.

Some examples: An 1858 article in the Journal of the Society of Arts says, “All the legislation which has taken place upon the subject of Copyright in England has proceeded upon the just theory that an author or artist has a property in his work. Where, therefore, a Copyright work is literally copied, or copied with merely colourable alterations, it seems difficult to distinguish the moral guilt of such a theft from that of picking a pocket, and consequently that such an act of piracy ought to be punishable as a criminal offence.”

This dictionary from 1861 defines “piracy” as “infringement of the law of copyright; literary theft.”

The editors of the Round Table, a weekly U.S. journal, petitioned Congress in 1866 for an international copyright law, saying “this license for literary theft (for it is nothing less than theft) is beginning to affect our own writers and publishers. American works are daily reprinted in England, and at a less cost than the original publications.”

Legal treatises routinely made use of theft language, such as this 1886 treatise from R.R. Bowker: “After the invention of printing, it became evident that new methods of procedure must be devised to enforce common law rights. Copyright became therefore the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished.”

A letter printed in an issue of the Literary World from 1899 made the case that “An author’s brain work is as exclusively his own stock in trade as is any other work of any other artisan of any kind. Stealing brain work is as much a theft as stealing handiwork. Any person of ordinary intelligence can understand this fact. The copyright of all such work is the author’s own. If he chooses to delegate rights to reporters, well and good. He may do this as he does to his publishers, by royalty or by sale, according to mutually approved terms. But any right assumed otherwise than by permission of the author is downright robbery, according to all high standards of morality.”

These are only a few examples. Since the early days of copyright, infringement was, “frequently equated with theft.”

Indeed, not only has infringement routinely been described as theft, some have argued that it is worse than stealing tangible property.

German philosopher Johann Gottlieb Fichte wrote in 1793:

[I]n consideration of the fact that anyone is a thief who usurps the use of others’ property for his own profit, then the reprinter is without doubt a thief. If, furthermore, a theft is the more heinous when it involves things which by their very nature cannot be kept under lock and key, then the reprinter’s theft is one of the most heinous, since it involves something which necessarily lies open to the public, like air and ether. And if, finally, a theft is all the more heinous the nobler the objects it is perpetrated on, then it is the most heinous of all when it involves things that are creations of the mind.

And an 1840 book, An Historical Sketch of the Law of Copyright, noted:

For the printing a work, the sole right to which belonged to another, was looked on as little better than theft, and punished accordingly. Indeed, it was said, that such conduct was worse than to enter a neighbour’s house and steal his goods: for negligence might be imputed to him for permitting the thief to enter: but in the case of piracy of Copyright, it was stealing a thing confided to the public honour.


The ancient Romans defined larceny as “Contrectatio rei alienae, invito domino cujus illa fuit” — “a diversion of the thing of another, contrary to the will of him, to whom it belongs.” Copyright gives creators an exclusive right to copy, perform or display, and make derivative works of their works, and copyright infringement is an appropriation of these things against the will of the copyright holder. For as long as copyright has been recognized by law, authors, philosophers, legal theorists and judges, and the general public have described infringement using theft language. The arguments that it is wrong to do so ignore logic and history.

What’s more, these arguments ignore the harm copyright theft causes the general public. Just last month, a Phoenix Center for Advanced Legal and Economic Public Policy Studies report demonstrated how “The existence of IP theft—even when assuming theft is costless to affect, produces consumption goods of quality fully equal to those consumers pay for, and does not suppress labor supplied—results in a reduction in social welfare” and “reduction in the rates of theft of intellectual property would benefit society (producers and consumers).”

So why do these arguments continue? At a basic level, they generally stem from this idea: it is wrong to call infringement theft because the word “theft” has moral overtones. But this begs the question that infringement is never an immoral act. Clearly that’s not the case.

Of course, saying that it’s sometimes appropriate to call copyright infringement theft does not mean we’re required to describe every act of infringement as theft. Someone who writes a fan-fic of a popular book, posted online for free, may end up with a work that a jury might find infringes the original, but I doubt few people would consider this theft — some authors even encourage such acts. There are plenty of other examples of online behavior involving non-commercial copying or transformative uses that, if put in front of a court, would be considered infringement but nevertheless would find few willing to describe as theft. So it’s worth being careful when using theft language.

However, that doesn’t mean it’s never correct to call infringement theft. When a service like Grooveshark, for example, doesn’t “pay the artists, the labels and/or the songwriters for the use of the music that’s making them tons of money”, it’s fitting to say they “knowingly and willingly use a legal loophole to steal from artists and songwriters.” For services like these, which seek to profit off creators’ labor without permission, it is very helpful to create clever semantic arguments that make their behavior seem not as bad as it is.