# Copyright Infringement IS NOT THE SAME AS Theft **URL:** \ **Category:** The BBQ Pit\ **Created:** [October 26, 2004, 1:09am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165 "2004-10-26T01:09:00Z")\ **Posts on this page:** 14\ **Page:** 8
**Author:** ![yosemite](https://avatars.discourse-cdn.com/v4/letter/y/3ab097/32.png) [@yosemite](https://boards.straightdope.com/u/yosemite)\ **Post date:** [November 6, 2004, 9:24am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/141 "2004-11-06T09:24:53Z")
> [@Joools](#): > > This attitude misses the whole point! Once you show your essay to me, even once, you’ve created a second copy **in my head** that’s outside of your control. At that point the cat’s out of the bag. I may tell my friends about it, or quote parts of it to them, or even write it out from memory so I have my own copy of it. I may set it to music. Once it’s out in the wild, it’s an idea. Ho hum. This is old stuff. Yes, I know you can’t copyright nebulous _ideas_. If you get inspired by something I’ve written and you want to relate it to others, there’s no law stopping you. You can get an idea from what I’ve done and make something of your own, there’s no law stopping you as long as the idea is unique enough and not just a carbon copy of what I’ve done. What you _can’t_ do is take a copy of my work photocopy it, or make identical copies for distribution. You can’t republish it. It doesn’t belong to you. > [@](#): > > And frankly, you have to go through some pretty insane conceptual gymnastics to say that me setting up an apple stand, selling my _own_ apples that are derived from an apple I _legitimately bought_ from Farmer John is “theft” from Farmer John. It’s not. It’s infringement Theft, infringement—whatever you want to call it—it’s an asshole thing to do. To take someone else’s work and make a profit from it? You did diddly to create that work. You didn’t spend hours, days, years working on it. You just made some copies. Any moron can make copies. The price you paid for that work was probably set with the understanding was that it was only for _your_ use. If you want to pay for additional publishing rights—so you can sell copies yourself—you need to pay a lot more. _A lot_ more. If you don’t do that, then you’re being dishonest, and an asshole. When people ask to use my work, I ask them _what_ they are going to use it for. How many copies are they going to print out? How long are they going to use it? Is it just for home use, or for a print publication, or what? Their answer to this question helps me set a price. If they tell me that they’re just going to use it for one copy, for display in their office, I’ll charge them a low price. But if they’re in fact going to print out 10,000 copies to sell, then they’re being dishonest and thieving. ---
**Author:** ![Gary\_Robson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gary_robson/32/3448_2.png) [@Gary\_Robson](https://boards.straightdope.com/u/Gary_Robson)\ **Post date:** [November 6, 2004, 2:36pm UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/142 "2004-11-06T14:36:17Z")
> [@Joools](#): > > This attitude misses the whole point! Once you show your essay to me, even once, you’ve created a second copy **in my head** that’s outside of your control. **Joools** , I can’t tell whether you’re whooshing **Yosemite** ; you haven’t read the rest of the thread; or you’re being intentionally obtuse. You can’t copyright an idea. We’ve explained this before. If you want to memorize one of my books, the information contained in it will be in your head. You’re free to pass that information on, teach it to others, or use it to design and build things. That’s why I wrote the book. To teach people. Heck, if you want to use it as a textbook, let me know and I’ll help you design a curriculum, as long as the students are buying legitimate copies of the book. The _information_ in my book is now yours. I can (and did) copyright my specific expression of that information. You can’t make exact copies of it. You can’t set it to music. You can’t draw little flowers on each page of my book and then claim it as your own work. If I decide not to sell the book any more _for any reason_, you can’t make copies of it. Period. The apple analogy doesn’t fit here. Just for the record, though, if Farmer Jones had designed that particular apple himself through crossbreeding, genetic engineering, or whatever process, he could _patent_ the apple and you’d be forbidden to plant a seed and grow your own. Completely different argument. Totally unrelated to copyrights. If that outrages you, start another thread and I’ll give you some more information about it. ---
**Author:** ![moriah](https://avatars.discourse-cdn.com/v4/letter/m/b2d939/32.png) [@moriah](https://boards.straightdope.com/u/moriah)\ **Post date:** [November 6, 2004, 5:26pm UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/143 "2004-11-06T17:26:20Z")
> [@Evil Captor](#): > > Here’s a interesting analogy: > > YOu’re walking down the road by Farmer John 's apple orchard. He has harvested the orchard, but a lot of apples have fallen outside the fence fringing the orchard and are rotting on the ground, though there are plenty of apples that are just ripe and not rotted among them. > > You’ve walked down this road often enough to know that Farmer John is just gonna leave those apples there to rot becuase it’s too much trouble to pick them up. You’re hungry, so you pick one up and eat it. It is Farmer John’s apple, and you haven’t asked his permission, but the apple is just going to go to waste if you leave it on the ground, and this way it’s doing some good by assuaging your hunger. > > Moral or immoral? Legal or illegal? Of course no one is going to begrudge someone who might be about to die of hunger from taking a few apples for themselves. Even though it still is technically trespass and theft, and even if Farmer John is a big enough asshole to press charges, the judge will dismiss it. But this analogy fails on so many levels. [ul][li]Who’s dying from not be able to violate a copyright? [/li][li]The Traveller presumes to know Farmer John’s mind on this issue. But what if Farmer John had already hired someone who will be coming along later to collect those fallen apples and sell them?[/li][li]What if all the townsfolk travel the same route and do the same thing as the Traveller and take an apple for themselves? Farmer John will be sitting in the Town Market unable to sell his apples to a satiated community.[/li][li]And unlike the Traveller who only takes enough for themself, the world is full of assholes who secretively collect all the fallen apples and go around handing them out to friends and selling them door to door. This means that Farmer John isn’t able to sell his apples in the Town Market. And like many laws, in order to prevent the immoral misuse of ‘collecting apples’ the law prohibits what might be a moral use of ‘collecting apples’ just so we know that anyone who is ‘collecting apples’ is automatically considered suspect, for, if we catch someone taking an apple, how do we know whether their appropriation of the apple is moral? For the immoral taker will most likely lie and say that their appropriation was for a moral reason.[/li][/ul] ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [November 11, 2004, 10:55am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/144 "2004-11-11T10:55:42Z")
> [@cj finn](#): > > The conceptual foundation for copyrights is fundamentally different from the old common law origins of theft and conversion. This is just words. You are not meeting my arguments. You are just repeating that theft and copyright and infringement are different in trivial and irrelevant ways and have a different history, so there. You are yet to come up with a single difference between the function served buy copyright infringement laws and theft laws. > [@](#): > > The entire concept of fair use gives the lie to the idea that theft and copyright are equivalent. The way in which remedies for theft and copyright are administered also point out the fundamental differences. Point out for me how one can steal from another and have the law sanction it because it was for a good cause (fair use). This is nonsense. Your question is like saying “point out for me how one can infringe copyright but have the law sanction it because it was fair use”. If it was fair use, it was not infringement and vice versa. If you don’t understand this, you don’t understand copyright law. But I think what you are really saying is "Point out for me how one can _use another’s property_ and have the law allow it because it was fair use\*. And there are innumerable examples of this. In fact, using someone’s property in limited ways without harming it is usually legal, and unless you do something with the intention of permanently depriving the owner of it, it is never theft. Once again we see that copyright infringement and theft are directly parallel. _When the car is stolen, one of your rights is to possession of the actual car. This doesn’t necessarily follow with copyright law._ But it usually does. You have the right to confiscate pirated copies. And in some cases, it is not possible to have possession because the infringement is incorporeal (performance for example). So once again we see that within the practical limits imposed by the difference between corporeal and intellectual property, theft and copyright infringement are functional equivalents. [/QUOTE] ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [November 11, 2004, 11:09am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/145 "2004-11-11T11:09:13Z")
> [@Evil Captor](#): > > Sure, if Farmer John is using the apples or if the publisher republishes the work in some form, clearly, they’re being used. I specifically said that Farmer John was not using the apples, he was just locking them away for another day. But by all means do distort what I said if it’s the only way you can avoid acknowledging that even your own analogy means you are wrong. > [@](#): > > But if you had an ounce of intellectual honesty, which clearly you do not, you’d acknowledge that large corporations frequently cling to copyright on properties which they have no intention of selling, just on general principles (i.e., simple greed). If this is so obviously true that it amounts to intellectual dishonesty on my part not to acknowledge it, you won’t have any difficulty coming up with a cite, will you? Personally, I’ve never heard of any corporation that has held onto IP for any reason other than because they hope to be able to sell it in future. And if that’s unacceptable greed, then I guess every corporation that doesn’t give away all its stock in corporeal property are a bunch of greedheads and the theft of corporeal property from them should be OK, huh? > [@](#): > > I’d say there’s a lot of published material and a lot of artwork out there right now, this very minute, which could be put in the public domain for everyone to use for free, and no one, absolutely no one, would be harmed in the process. I guess you would say that. So? Face it, you’d say anything at all if it would help you to stop feeling guilty about your copyright leaching attitude. Doesn’t mean it has any basis in fact that you have demonstrated. > [@](#): > > But you, you freaking ass, are such a fucking greedhead that you automatically side with the big corps over regular folk. Get your face out of the lap of large corporations and take a look around sometime, maybe you’ll get a clue. It’s been pointed out at least twice in this thread so far that many copyright holders are regular folk, and many shareholders in big corps are (through bank accounts and pension plans and so on) regular folk, and that the artists participating in this thread don’t like your fucking inconsiderate leaching attitudes. You need to get your head around the fact that you are the Bad Guy, and that trying to paint everyone who decries your position is a “evil big corp” is both factually inaccurate and pathetic. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [November 11, 2004, 11:30am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/146 "2004-11-11T11:30:43Z")
> [@Joools](#): > > This attitude misses the whole point! Once you show your essay to me, even once, you’ve created a second copy **in my head** that’s outside of your control. At that point the cat’s out of the bag. I may tell my friends about it, or quote parts of it to them, or even write it out from memory so I have my own copy of it. I may set it to music. Once it’s out in the wild, it’s an idea. It’s self-reproducing. Like it or not, you can’t just magically make that idea disappear from my head. So no, you don’t have any say over it any more – because it’s physically and logically impossible to un-express an idea. > > Copyright isn’t about people coming to your house and forcing you to publish that essay. It’s about you being able to dictate terms to me – your audience – about what I can and can’t do with my own experience of your work. And the rules you’re allowed to impose on me are economic rules, not moral ones. I’m allowed to reproduce your ideas, and I’m allowed to create derivative works from them. I’m just not allowed to distribute those. You’re granted a temporary monopoly on distribution. > > Frankly, that’s why the “Farmer John” analogy is totally wrong. It’s begging the question of whether copyright is theft by using an analogy that starts with literal theft: taking an apple that fell outside of Farmer John’s property line. > > Copyright isn’t about what happens to that apple. It’s about what happens after I buy an apple from Farmer John. Am I allowed to plant the seed in my own yard? Yes. Am I allowed to eat the apples that grow from it, and to share them with my family and friends? Yes, even though that reduces the theoretical number of apples that John could be selling to us. Am I allowed to set up an apple stand and give away or sell the apples that grow on my tree? Nope, because Farmer John has a government-granted monopoly on distributing apples, since he thought of the idea first. And frankly, you have to go through some pretty insane conceptual gymnastics to say that me setting up an apple stand, selling my _own_ apples that are derived from an apple I _legitimately bought_ from Farmer John is “theft” from Farmer John. It’s not. It’s infringement. Others have debunked the minutia. The key overall point is that you are making a mistake that Yosemite and myself and others who participate in these debates see over and over and over again. You don’t understand copyright, and you don’t understand the limits of it. You think that it is much more restrictive than it in fact is, and you berate it for doing things it does not do. Anyone who argues that copyright restricts ideas is doing nothing more than showing their ignorance. Anyone who argues that copyright prevents one from using one’s own original work that derives from (but is not a copy of) anothers work, is doing nothing more than displaying their own ignorance. Or alternatively they are showing that they just want to have distorted ideas that copyright is an evil all encompassing beast so they can justify their infringement of it, and that the last thing they want to do is learn the truth because then they may not be able to maintain their belief in themselves as being moral or law abiding. ---
**Author:** ![cj\_finn](https://avatars.discourse-cdn.com/v4/letter/c/4bbf92/32.png) [@cj\_finn](https://boards.straightdope.com/u/cj_finn)\ **Post date:** [November 11, 2004, 4:27pm UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/147 "2004-11-11T16:27:15Z")
> [@Princhester](#): > > Anyone who argues that copyright restricts ideas is doing nothing more than showing their ignorance. Anyone who argues that copyright prevents one from using one’s own original work that derives from (but is not a copy of) anothers work, is doing nothing more than displaying their own ignorance. Prin: Be careful here. The concept of derivative works can and does trip many folks on this point. If, and that is a very BIG caveat, your work is 100% original, then it is in wise based or derived or inspired by another’s work. Accordingly, if the work actually is 100% original, then you are correct in stating that there is no liability for one in producing and publishing their own 100% original works. You are spot on in that ideas are not part of the monopoly that is a copyright. That’s bedrock copyright law. Don’t assume however, that simply because you think that all you’ve taken from a work is an abstract idea, that you haven’t inadvertently taken more that can make you liable for copyright infringement. Another issue that you need to read up on is the concept of fair use. Fair use is essentially a get out of jail free card with respect to copyright infringment. It does not mean that you are not infringing a copyright, only that under the enumerated circumstances, you will not be liable for doing so. > [@](#): > > This is just words. You are not meeting my arguments. You are just repeating that theft and copyright and infringement are different in trivial and irrelevant ways and have a different history, so there. You are yet to come up with a single difference between the function served buy copyright infringement laws and theft laws. Lets not be childish here. I am meeting your arguments. You have yet to describe why the differences I have pointed out are trivial and irrelevant. I can only assume that your point is that since you don’t agree with me, my arguments must therefore be trivial and irrelevant. If you have more to your conclusions, I would very much like to hear it. For example, you could start with describing just what a non-trivial difference might be. Lets look at the definition of theft, shall we? > [@](#): > > THEFT - This word is sometimes used as synonymous with larceny, but it is not so technical. > In the Scotch law, this is a proper and technical word, and signifies the secret and felonious abstraction of the property of another for sake of lucre, without his consent. > LARCENY - Illegal taking and carrying away of personal property belonging to another with the purpose of depriving the owner of its possession. > The wrongful and fraudulent taking and carrying away by one person of the mere personal goods of another from any place, with a felonious intent to convert them to the taker’s use and make them his property without the consent of the owner. [Lectric Law Library](http://lectlaw.com/def.htm) You just have to love the word ‘lucre’. Anyway, theft/larceny relate only to personal property. This is a non-trivial difference in my mind. Fair use is a defense to an otherwise proven act of illegal copying. I’m unaware of any similar circumstances in which an otherwise proven charge of theft/larceny is defensible on any grounds. It can be argued by a defendant that the act in question wasn’t a theft (i.e. there was permission, there was a dispute of ownership, the item in question was found and not taken), but once proved, you are a thief. Now let me reiterate that if you want to say that copyright infringement evokes the same emotional response as does theft or that on a moral basis, theft and copyright infringement are equivalent, go for it. I’ll even go out on a limb and agree with you. But don’t try to tell me that the two are legal equivalents, because they are not. cj ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [November 11, 2004, 5:03pm UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/148 "2004-11-11T17:03:44Z")
[QUOTE=Princhester] If this is so obviously true that it amounts to intellectual dishonesty on my part not to acknowledge it, you won’t have any difficulty coming up with a cite, will you? [Here’s a case where a big corp is using copyright law to hurt an entire industry](http://www.gamedev.net/reference/business/features/hasbro1/) [Here’s an essay about Paramount cracking down on those evil, evil fanfic writers](http://cyber.law.harvard.edu/property00/respect/main.html) that you and Yosemite probably hate. [Here’s one about SCO attempting to destroy the GNU public software concept](http://uk.builder.com/developer/0,39026995,39115793,00.htm) I’m sure I can find something about books in particular, but I think these cites establish that big corps use copyright in abusive ways that hurt entire industry. ---
**Author:** ![yosemite](https://avatars.discourse-cdn.com/v4/letter/y/3ab097/32.png) [@yosemite](https://boards.straightdope.com/u/yosemite)\ **Post date:** [November 12, 2004, 1:10am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/149 "2004-11-12T01:10:43Z")
> [@Evil Captor](#): > > [Here’s an essay about Paramount cracking down on those evil, evil fanfic writers](http://cyber.law.harvard.edu/property00/respect/main.html) that you and Yosemite probably hate. How funny. You obviously know nothing about me. I don’t generally have a problem with fan works, as long as the person doesn’t expect to sell copies of their work (make a profit). Fan works are really cool most of the time. Gets people excited about creating. Involved in a “fan community” where they can get encouragement. It’s good. Most copyright holders don’t mind it either—as long as limits are put on it. The copyright holders have that _right_—to put limits on it—because otherwise all hell could break loose. The line would be blurred between who is the “real” owner and originator of the work, and who are the “fan writers.” And I think that the “real” owner has the right to keep that line from being blurred. Also, regarding the Paramount cite—as far as I can see, Star Trek fans are still writing fan fic. I know for a fact that they are. Now, legally speaking, Paramount _could_ forbid all fan writers from doing anything, but they don’t do that. I’ve never wrote any fan fiction, but I know more than a few who have. Some of them have gone on to use their fan-fic stories in regular fiction (removing all fannish references and character names, etc). I’ve mentioned this before, but I’ll do again: [Melanie Rawn](http://www.amazon.com/exec/obidos/search-handle-url/index=books&field-author=Melanie%20Rawn/104-6852351-5127105) took a _Star Wars_ fan novela she’d written, changed it around, and got it published as mainstream science fiction. I think I recall a time when [Eluki Bes Shahar](http://www.amazon.com/exec/obidos/tg/detail/-/0886774756/qid=1100220983/sr=1-3/ref=sr_1_3/104-6852351-5127105?v=glance&s=books)’s _Hellflower_ was loosely related to _Star Wars_, but even if it wasn’t, I know she’s done other _Star Wars_-related works only to remove all _Star Wars_ references and get them published. Their fan fic affilation did not squelch their creativity. The effort they put into the work didn’t go to waste. They just adapted it and made it something unique, which they legally could publish and sell. Besides, much of copyright violation isn’t in the form of adapting someone else’s work and making something new (but still recognizable as coming from the original work). It’s flat-out _copying_ the original work, to sell or distribute. A lot of us copyright holders are understandably against that. And moreover (and addressing the point you’ve made before), we are not morally **obligated** to allow others to continue to publish our work. We are not **obligated** to fork over older (or obscure) works—works that we might have never intended to be published except on a very limited basis—so that you can publish it. Good grief. They’re _our_ works. You have no right to tell us that we _owe_ you access to them. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [November 12, 2004, 3:06am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/150 "2004-11-12T03:06:40Z")
[QUOTE=Evil Captor] > [@Princhester](#): > > If this is so obviously true that it amounts to intellectual dishonesty on my part not to acknowledge it, you won’t have any difficulty coming up with a cite, will you? > > [Here’s a case where a big corp is using copyright law to hurt an entire industry](http://www.gamedev.net/reference/business/features/hasbro1/) > > [Here’s an essay about Paramount cracking down on those evil, evil fanfic writers](http://cyber.law.harvard.edu/property00/respect/main.html) that you and Yosemite probably hate. > > [Here’s one about SCO attempting to destroy the GNU public software concept](http://uk.builder.com/developer/0,39026995,39115793,00.htm) > > I’m sure I can find something about books in particular, but I think these cites establish that big corps use copyright in abusive ways that hurt entire industry. None of these are cites for the proposition you advanced. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [November 12, 2004, 3:42am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/151 "2004-11-12T03:42:02Z")
> [@cj finn](#): > > Another issue that you need to read up on is the concept of fair use. Fair use is essentially a get out of jail free card with respect to copyright infringment. It does not mean that you are not infringing a copyright, only that under the enumerated circumstances, you will not be liable for doing so. Not under Australian copyright law and unless you provide me with a cite, I’m not inclined to accept that this is true under US law either. Under Australian copyright law, fair use is _not_ infringement. It is not a get out of jail free card, it is a card that means you never committed a wrongful act such as might land you in jail in the first place. Go to www.scaleplus.gov.au, download the Copyright Act and check out Part III Division 3. It’s headed “Acts not constituting infringements of copyright in works” and it deals with fair use. The heading is a clue. A quick look [on Wikipedia](http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense) suggests that you are wrong on US Law also. > [@](#): > > Fair use is an affirmative defense to copyright infringement. This means that if the defendant’s actions do not constitute an infringement of the plaintiff’s rights Next up: > [@](#): > > Lets not be childish here. I am meeting your arguments. You have yet to describe why the differences I have pointed out are trivial and irrelevant. They are trivial and irrelevant to my position, which is that theft and copyright infringement are functional equivalents. You are yet to explain how your points mean that there is no difference between the function performed by copyright infringement in relation to IP as compared to the function performed by theft in relation to CP. You just throw out various differences between IP and CP laws, without any attempt to address how that makes the function performed by each of theft/copyright infringement different to one another. By analogy I am saying a hat is functionally equivalent to a roof in that both keep the sun and rain off. You are saying that “a roof is made of tiles” or “roofs are bigger” or “roofs are real property and hats are personal property” all of which may be true but has nothing to do with my point. Until you can grasp this, we are not going to get anywhere. There is no point in me commenting on your theft stuff. I know that theft is not precisely the same as copyright infringement. I know one relates to IP and one to personal property. I’ve acknowledged this probably half a dozen times. Get to grips with the functional equivalent issue before you bother posting again in response to my position, could you? Please? ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [November 12, 2004, 3:52am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/152 "2004-11-12T03:52:12Z")
Actually, forget that Wikipedia quote. It isn’t to the point. But instead, here’s [section 107 of the US Copyright Act](http://www.bitlaw.com/source/17usc/107.html): > [@](#): > > Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include– “…is not an infringement of copyright” I don’t know from US law, but this seems clear enough. Where am I going wrong? ---
**Author:** ![cj\_finn](https://avatars.discourse-cdn.com/v4/letter/c/4bbf92/32.png) [@cj\_finn](https://boards.straightdope.com/u/cj_finn)\ **Post date:** [November 12, 2004, 5:04pm UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/153 "2004-11-12T17:04:40Z")
Prin: Perhaps you should read up on what an affirmative defense is. > [@](#): > > An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. Affirmative defenses work to limit or excuse a defendant’s liability even if the plaintiff’s claim is proven, based on facts outside those claimed by the plaintiff. From wikipedia. Note the phrase “to limit or excuse a defendant’s liability even if the plaintiff’s claim is proven”. Is this sufficiently non-trivial for you? Note also that that an affirmative defense is a matter of the function of the law, how the law works. Show me a counterpart for theft or larceny and I might begin to believe you. Apparently, fair use or fair dealing also exists in Australia: > [@](#): > > Fair dealing > From Wikipedia, the free encyclopedia. > > Fair dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations (which is largely descendant of the former British Empire). > > Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naively assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use. > > * * * > > In Australia, the grounds for fair dealing are (sometimes known as the “moral rights” of the copyright holder): > > Research and study > Review and criticism > “Reporting the news” > Legal advice (although the Crown is deemed to own copyright in federal statutes, and each State in state statutes). So, based on Wikipedia (a source that we can assume for our purposes is correct), fair use is an affirmative defense in both the US and in AU. As an affirmative defense does not do away with a charge of infringemet, but simply excuses it (get out of jail free card anyone?), the fact that affirmative defenses to copyright infringemetn exist where none exist for theft/larceny (unless you can show me some) is a structural and functional difference of no little significance. Another interesting difference between theft and copyright infringement is the issue of damages. You can and will receive damages for infringement that are considered to be a reasonable royalty for the copying. Once you have received payment for the copying, your right to recieve money damages is extinguished. Equitable rights to obtain the copies of the infringed work must follow common rules relating to ongoing harm to the copyright holder. If no harm can be shown, then the copyright holder will not be entitled to possession of the illegal copy. The copyright holder may choose to sue each of the possessors of the illegal copies for both royalties and for possession, in which case, to the extent that the reasonable royalty damages are paid by the individual holders of illegal copies, the copyright holder will not be entitled to damages from the copyist. One alternative here would be to sue the copyist and the holders of the illegal copies jointly and severally and try to obtain a judgement that the defendants would settle amongst themselves. This is rather different than the damages that are available in cases of theft/larceny in which a plaintiff will be entitled to money damages relating to his/her loss of goods AND possession of the stolen goods. Functionally, copyright and theft are quite different. What is the case here in the US, also appears to be the case in AU. CJ ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [November 13, 2004, 3:06am UTC](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165/154 "2004-11-13T03:06:36Z")
> [@cj finn](#): > > Perhaps you should read up on what an affirmative defense is. It’s a defence that has to be positively pleaded, and for which the onus is on the defendant. It’s a procedural not a functional difference. Frankly, which part of “… the fair use of a copyrighted work… is not an infringement of copyright” don’t you understand? > [@](#): > > Another interesting difference …[irrelevant procedural and damages formulation spiel omitted]the defendants would settle amongst themselves. Yes, yes, the exact types of damages available are different. But in the end, the functions are the same: recourse against those that appropriate others property. [Previous page](https://boards.straightdope.com/t/copyright-infringement-is-not-the-same-as-theft/271165.md?page=7)