Tuesday, May 03, 2011

Is copying theft?

I just read a provocative paper that, though I doubt it meant to, reinforced my sense that calling copyright “property” is unhelpful: Jonathan M. Barnett, What’s So Bad About Stealing? The paper skips straight to the proposition that any kind of unauthorized copying (including copying of ideas and expression, but also and of more present interest mechanical reproduction) is theft, then concludes that “Some positive level of tolerated theft is an essential component of any transaction structure that maximizes the social wealth generated by creative production.” I don’t quite understand how you can call copying theft without first establishing that the copied thing is owned.

As I tried to work through the reason the paper proceeds as it does, it’s that “theft” is a necessary concept in the property system, but that historically what formally counts as IP theft is highly variable. But I still don’t understand why “theft” is the right concept for copyright, since it inherently takes a normative side while Barnett simultaneously seems to want to disavow taking a normative side.  It might be correct to say that slaveowners believed that runaway slaves were stealing property, but for us to adopt the language of theft as our own description of what happened would be extremely problematic without a lot of dramatic/poetic license.

What really struck me here about the language of theft (second-comer side), rather than the more apparently neutral language of property (first-comer side), was the ways in which it highlights that intellectual property isn’t about theft. Since the paper makes arguments about the Demsetzian structure of property rights in intangible goods, I think it’s fair to bring up patent: patent’s formal definition is definitely not about copying. Trademark, a cousin regime, takes copying into account, but again the fact that the defendant invented the accused mark herself is no defense. Even copyright, with its doctrine of unconscious copying, can’t really sustain the language of theft. If I take your umbrella from a restaurant, believing it’s mine, I might create a bailment (I don’t really know the law there) but it would be bizarre to call me a thief. Maybe a less tendentious term like “taking” would make it easier to see the argument, but theft is just too rich a concept for me to get past it. This is very much about spillovers/causation—even in copyright, which is about copying, the use of “theft” to describe unauthorized utility causally related to the existence of an expressive work makes very little sense to me.

There’s still an interesting argument in the paper about what norms and formal law surrounding copying of expression will look like given various interests, but I’m left puzzled what purpose the language of theft serves. I suppose the idea is to avoid the question of what the boundaries of copyright are/should be (among other things, copying of ideas, copying of facts, private copying, private performance, first sale, and all the specific exceptions in the Copyright Act are apparently legalized theft, which might be efficient, in this view), but I don’t think that can be done.

This paper is also another datum for my theory that copyright restrictionists like to talk about “readers” and maximalists like “users.” Or anyway, they like to use that name for them.

8 comments:

Mac said...

I think that if copying reduces the value of the original than it can be called 'theft' - otherwise it is hard to justify. So it is 'theft' of the value of the item, rather than the item itself.

So putting a DVD on bit-torrent damages the commercial value - investors can't get the same return on their investment anymore. So that undeniably counts as 'theft'.

Rebecca Tushnet said...

But there are lots of acts that reduce the value of the owner's right, such as creating competing works, posting bad reviews, or even popularizing a new medium (consider the effect of DVDs and videogames on music sales). Indeed, if I give my old copy of Twilight away I deprive the copyright owner of a sale. And educational exemptions might also do so. Is that then theft? To call it theft there has to be something more than decrease in value. I can see why we might want to ban certain types of copying, but it's hard for me to get to theft.

Bob Cumbow said...

I take an admittedly simple-minded approach. If you take my umbrella, you possess it and I don't. That's theft. If you make a copy of my copyright-protected work, I still possess the copyright. You may have diminished the value of what I own, and you may have redirected to yourself some benefit that should have gone to me; but that is not theft. We need a different word for it, and fortunately we have a perfectly good one: infringement. It's not the same as theft, no matter what the MPAA and the RIAA say in their commercials.

Mac said...

Indeed - to be called 'theft' it has to be more than simply removing value from you and passing it to me. Many legitimate actions move value from one person to another.

The term 'theft' implies that it's a form of value transfer that is illegal. So why isn't the term appropriate?

For example, we talk about credit card details and passwords being 'stolen' - yet to be pedantic it is merely a non-permitted copying of information. It isn't even a copyright infringement - yet the word 'theft' seems appropriate.

We could call piracy and stealing credit card information a 'non-legal copying in a way that causes damage to the value of the property to the rightful owner' .. but that seems a little unwieldy !

Calling it 'infringement' certainly isn't sufficient .. because it doesn't differentiate between the kind of infringement that causes monetary loss and the kind of infringement that doesn't.

For example - I made a copy of my parent's wedding photo (snapped by a long-forgotton neighbor 40 years ago) and put it in a nice frame for their Wedding anniversary. Clearly that was indisputably a copyright infringement - I didn't spend any effort to try to track down the unnamed amateur photographer who took the photo with his box brownie to get his permission. The fact that it was clearly a copyright orphan doesn't make it any the less infringing under current copyright law.

So it was an infringement. Yet I wouldn't call it 'theft' - because I can't see that damage was done to the commercial value of the work.

So we want a term that differentiates between the type of infringement that is inevitable in a complex world and damage-causing infringement that we need to minimize.

Perhaps 'damage-causing-infringement'? Not as catchy as 'theft' ... but at least it is a workable.

Mac

Bruce Boyden said...

"This paper is also another datum for my theory that copyright restrictionists like to talk about 'readers' and maximalists like 'users.'"

That's interesting, I wouldn't have thought there is any particular valence here. I avoid "readers" for the same reason I avoid "authors"--I don't want people thinking only about books when they think about copyright. Is that a separate issue or do you think "restrictionists" actually *prefer* thinking about books as the paradigmatic example of a copyrighted work?

Rebecca Tushnet said...

Bruce, "users" can be problematic because we also use toothpaste; the term makes it easy to forget the communicative interests at issue. Audiences is perhaps a better word. As for restrictionists, I think we/they tend to use readers as a metaphor or central case to remind people of the cultural/First Amendment value attached to reading, whereas other forms of gaining information lack the same automatic cultural status.

Terry said...

I think "user" implies a more active engagement with the copyrighted work than does "audience" or "reader," which seem distinctly passive. "Consumer" would definitely have the negative implication that you're worried about.

Skyler827 said...

I think the whole question over ownership has something going for it. In my opinion, the concept and definition of theft requires a concept and definition of property, and if that concept and definition of property excludes knowledge, information or ideas, then there would be no grounds for any act of copying to ever be theft.

I think property can be understood only as scarce resources, over which conflict is possible because one person's use conflicts with another person's use, and so private property and the market mechanism is required to distribute this scarce thing. That's my opinion on the fundamental of property. Obviously, this conception of property excludes information, so I believe copying is not theft. Knowledge cannot be owned. Copyright is government granted monopoly.

This view is justified in my mind because copying is non exclusive. Information is infinitely reproducible, and the principle of ownership of information is inconsistent with society as I understand it. For example, without all the knowledge of humans who lived before us, we woulda ll live at subsistence level. So should we pay back everything we earn in royalties to the heirs of the thinkers who brought us the wheel, the fishing net, the Arabic numeral system and the wheel? No, because if we did anyone who has any ideas becomes entitled to infinite compensation, because all of their ideas will be used and will influence future ideas forever. Upholding ownership of ideas creates classes of idea-owners and everyone else, and Marx's criticism of capitalism becomes relevant, (with respect to intellectual property, not scarce physical property) I just think having a free information society would leave everyone better off.