Copyright Infringement IS NOT THE SAME AS Theft

The BBQ Pit
121

Copyright infringement is illegal… let’s see, what else is illegal… howabout… DEFACEMENT OF PRIVATE PROPERTY; TRESPASSING; SLANDER; PERJURY; etc… etc…

Whether covered under criminal or civil statutes, it is illegal. Like creating or buying bootlegs. Copyright violation is not the same as theft, but it is like theft and those other illegal things I just mentioned because it is illegal.

My goal was to win the argument against all the cowards who were avoiding the illegality of copyright violation by fighting the straw men positions that violation of copyright was ‘theft’ or ‘criminal.’ When we take away those straw men, and stick to the ‘illegality’ of copyright violation, all those who were implying that their copyright violation was somehow OK because it’s not ‘theft’ or ‘criminal’ lose that disingenuous cover.

122

Poly:
Dogma isn’t used incorrectly in this sense as the ‘belief’ in copyright is, for some, more religious that the virgin birth. It is used perjoratively here and that’s too bad because it seems to needlessly ratchet up the rhetoric. It does get the blood flowing though.

It is clear that copyright infringement is illegal as it is clearly prohibited by law. However, copyright infringement is not theft in the eyes of the law. It is copyright infringement. Look at your definition of theft: the appropriation to one’s own use of that to which one has no legal right. This crime has essentially two elements (it can be parsed into more, but for our purposes only two): appropriation and no legal right. We are in agreement that there is no legal right in copyright infringement. However, simple copyright infringement is not appropriation. One could argue that making an illegal copy of a work is appropriation, but one would be wrong. The copyright owner is still in possession of the work and is still in possession of the copyright. Neither the work nor the rights have been ‘appropriated’. Accordingly, there is no theft. If I stole your Picasso to make copies, then we have a theft and any copies I might make would be copyright infringement, two separate things mind you.

Now, the key here is what is a ‘copyright’. Copyrights are a bit odd in that they are a negative right, meaning they give you the right to prevent others from copying. Copyrights do not give you the exclusive right to make copies of your work. Therefore, if one makes an illegal copy of a CD, the copying does not infringe or appropriate a right to copy the work because there isn’t one. Instead, the copying infringes your right to preclude copying. In a sense this is much more similar to trespassing than it is to theft.

This seems to be a slight difference, but it is conceptually very important as the ‘negative’ rights of copyright make it impossible to commit a theft in infringing a copyright as there was nothing to take in the first place. Copying cannot “appropriate” a negative right to prevent copying. Infringement of a copyright does not take away the copyright; it simply empowers the copyright owner to obtain damages and an injunction. One can argue that the act of copying has ‘appropriated’ some amount of income. However, there is no right to income from one’s works, though there is a right to damages if one’s copyrights are infringed.

So in conclusion, copyright infringement is illegal (as in prohibited by law), and in some instances criminal, but it is not and cannot be theft or conversion. We wouldn’t need copyright laws if it were theft.

cj

123

The copyright owner is in possession of a diminished right. You have effectively appropriated to yourself part of their right. Try a reductio ad absurdum on your argument: if everyone in the entire world helps themselves to a copy of your work, you say that your exclusive right to copy has not been appropriated?

Tosh. Your right has been chopped up into small pieces and handed out till you have nothing left.

You sure? From the US Copyright Office

A positive right to copy, combined with exclusivity (ie a right to prevent others from doing so.)

I could make the point that copyright is a property right (see previous posts) and how can copyright be property if there is “nothing to take” (according to you). If your “negative” thing holds any substance, how can one own a negative as property? The answer is that a negative is a thing. And a negative thing can be taken, just as a positive thing can be. So you can steal it.

You may see all this as conceptually important, and we could crap on for hours about the conceptual interest involved in some undergraduate kind of way. But that’s all we’d be doing. Shooting the breeze aside, the key point is that for practical purposes copyright infringement of commercially valuable IP is equivalent to theft.

One may have no right, but one has an opportunity. That opportunity has a value, in just the same way as the rights represented by a lottery ticket have value. The fact that the value is not ascertainable except in terms of odds doesn’t mean that there is no value or that I wouldn’t be stealing from you if I took your ticket. Illegal copying similarly.

Yes we would because it’s an unusual kind of property, and needs particular handling because of that.

124

Princhester:

So you are saying that the next time the owner wants to sue somebody for infringement, its harder because his rights have been diminished? I’m pretty sure that you are not trying to make that point and that what you really mean is that the owner may have lost a royalty due to the copying. Though I will admit that your statement that “nothing is left” seems to argue against my reading of your assertion.

When infringement takes place, the owner has a right to damages, usually described as a reasonable royalty. In addition, statutory damages are also available (these are the type of damages that allow RIAA to sue a 12 year old for $100K on 10 illegal downloads). Even where infringement has taken place, the owner is still entitled to the royalties and in fact, his ability to collect royalties will be enhanced by the copyright statutes. Infringement diminishes nothing in any legal sense.

In a purely practical sense, infringement actually enhances the value of a copyrighted work as it gives the owner some very useful legal tools that were not available to the owner back in the pre-copying “please buy my work” stage. Perhaps I should also point out that potential liability for infringement of intellectual property rights (copyrights included) are often bought and sold in much the same way as are accounts receivable.

There is no dimunition of any rights due to infringement of a copyright and in fact there are more rights available to an owner after infringement than before. As an intellectual property attorney, I would immediately start asking for a percentage of any case where “everone in the entire world [has helped] themselves to a copy of [my client’s work].” The amount of money that would be won boggles the mind and would likely far exceed the amount I could reasonably expect from a straight up royalty arrangement.

Only if you sit on your perfectly undiminished rights and neglect to do something about it. Copyrights aren’t self enforcing you know. There are no copyright cops walking the beat, looking for illegal MP3’s. (Law enforcement does get involved with piracy, but that is another matter). Enforcement of copyrights is entirely up to the owner and so any diminution of copyright value, as opposed to a dimunition of the actually copyright, is due to the actions of the owner.

Quite sure thank you. I’m not sure that you realized this, but there are very few copyrightable works that are created in a vacuum. Most copyrightable works include at least some reference to preceding works. Since those earlier works are also copyrighted, or are at least susceptible of copyright, many new copyrighted works incorporate previously copyrighted works. Just because you have created a work that is itself entitled to a copyright, does not mean that your use of previously copyrighted works is exonerated.

Even if your work is 100% original, it is possible that you might be subject to at least accusations of infringement if another person happens to come up with 100% original work (before you do) that is similar to your own. So while you have an “exclusive” right in your own copyrighted work, that right extends only to excluding others. Since your own valid copyright won’t keep you from getting sued and losing a copyright infringement suit where you have used another’s copyrighted works, I would say that you do not, in fact, have a positive right to publish/copy your works. You are free to publish/copy your own works only to the same extent that someone perusing the internet for photos is, i.e. only so long as your work doesn’t infringe someone else’s intellectual property rights.

Copyright laws, like all intellectual property laws, operate in this manner. Its a common misconception that intellectual property rights give you the right to practice or publish your protected work/technology, they don’t. Copyrights are a property right. They just work differently than do normal property rights. That’s just the way it is.

Your real beef here seems to be the contention that copyright infringement is wrong. I don’t disagree that it is wrong. Its not theft however. If you would like, you can state that it is morally equivalent to theft. I’ll think you are being a bit histrionic, but I won’t really disagree with you. But in no legal or practical sense is copyright infringement the equivalent of theft.

cj

125

All this stuff about how you can milk someone’s infringement of your copyright just illustrates my point for me.

If someone takes my property (physical or intellectual) it makes them susceptible to reimburse me for the value of it (by the law of conversion or copyright respectively).

Like I said, copyright infringement is comparable to theft in all relevant respects.

I suspect there are some differences between Australian and US law rearing their head here, because what you say doesn’t fit my understanding at all. Under Australian law, to the extent that your work contains other people’s work beyond “fair dealing” it is not going to be original and therefore is not copyright anyway.

If it is copyright, and you hold the copyright, you have the right to copy it.

Yes, yes IP is different in the details but ultimately, I can’t see anything that detracts from the position that infringement is equivalent to theft. Different nuances in how you’d attempt to effect a recovery after theft, and in what problems there might be with your own title in the first place just aren’t germane.

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Princhester:

The point I’ve been trying to make here all along is that one can equate copyright infringement with theft on a moral basis if you really want to, but not on a legal basis. If the moral aspects of copyright infringment is what is primarily relevant to you, then I woud agree that to you, copyright infringement and theft are similar in your relevant aspects. But in the law, we need to be a bit more accurate and we cannot paint with such a broad brush. Not only would it get the case thrown out, but it would bias the entire process.

Your continued use of the word “take” with respect to intangible rights is inaccurate. Infringement of one’s rights does not take those rights away. That is not the way copyrights work. Infringment simply brings new rights and obligations into being that have heretofore lain dormant. While laws do differ between our countries, both the US and Australia are members of the Berne Convention. This treaty normalizes copyright laws between jurisdictions; accordingly, the same concepts apply.

Regarding your right to copy and/or publish your own works, that right is subject to other’s copyrights (or other intellectual property rights) in their works. You have a right to copy/publish your works in the sense that you are free to do so. However, if your work somehow infringes another’s copyrights, you will be subject to copyright infringement charges. Because this is the case, the only unadulterated right that copyrights grant to the holder is the right to exclude others.
cj

127

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?

128

In my opinion, illegal and most likely moral (lot depends on motives here). This is an interesting question for debating the intersection of morality, ethics, and the law, but is a bit inapt regarding the specific question of whether copyright is the same as theft.

129

Two words: fair use. If you’re going to present a scenario, be more specific. Some copying is legal, and some is not. When you try to claim that “you cannont demonstrate that you have a right to do so” with regard to copying copyrighted documents, you make copyright out to be much worse than it actually is, which in turn makes people rebel against the whole notion of copyrights.

Copyright is broken in some ways, particularly the length of a copyrights, but the general idea is a good one.

130

Suppose some big publishing house owns the copyright to a lot of books. They’re not printing the books because they don’t think they can make any money on them. But they keep copyrights “just in case.” Or suppose a big film company owns the copyright to a lot of old films that they don’t publish for the same reason.

How are these different from the apples lying outside the fence, unused and uncared for by their owner, but maybe of great interest to you?

that getcha pack on track with copyright?

131

The copyright means you have the right to print the books and the right to not print them. I have an old book that I don’t want reprinted, because it’s obsolete and I have a new one out. I have to right to stop you from making copies of the old one.

Getting back to the OP on this one, Lucas doesn’t like the original Star Wars movie. He’s re-done it. He has the right to say, “No more copies of the original will be sold.” It’s his movie. He has that right.

It’s like Disney when they take one of their cartoon movies off the market for ten years. I may want a copy, but it’s their movie. They can decide not to sell it any time they want to and for any reason.

132

This is a bit more germane, but the answer is the same: its illegal to copy the movies but morally OK (though again, intent and other circumstances not part of your hypo have a lot to do with it). The purpose of patents and copyrights, as written in the Constitution, is to promote the useful arts. Were the copyist to believe, as do I, that the term of a copyright is so long as to be counterproductive with respect to promoting the useful arts, then the morality of copying the movies in question is open for debate, particularly for older, out of print works.

I made a few suggestions regarding modifications to the Copyright laws earlier in this thread that would, I think, weed out a lot of the problems that you sugested. For example, we could impose maintenance fees and/or affirmations of continued use as we require for patents and trademarks, respectively. Only those works deemed ‘valuable’ (whatever that means) by their copyright holders would be maintained. Furthermore, works that were out of print or otherwise lying fallow with no good reason (to be defined by the hypothetical statute), would enter the public domain for lack of use. The incentive then, would be for works of questionable value (to the owner) to move back to the public domain where some clever soul could then use the free information to create value.

Why someone needs a copyright for seventy five years after they are dead escapes me.

CJ

133

Agreed, but you can also equate it on a functional basis (perhaps that should be dys- or ant- functional basis :)).

The type of nitpickery you are coming up with is important from a procedural point of view for lawyers, but functionally there is no real difference between the two.

You’re so caught up in the beauty of the peculiar detail of copyright that you are not seeing the similarities. Everything you say here applies, more or less, to physical property. One could as equally argue that taking my car does not take my rights away, I still own it and I’m still entitled to it. Taking my car simply brings new rights, namely that I can now take legal steps to recover possession and or compensation. And please don’t bother telling me that the exact details of car ownership and copyright ownership aren’t the same and that exactly how you’d go about recovering a car or its value is different to how you’d go about recovering in an IP situation. It’s just not important.

Your analogy is carefully crafted to include (a) near certainty that the owner of the property doesn’t want it and (b) a form of property that will be of no worth to anyone (and indeed will not in any real sense exist) within a few days or perhaps weeks. Your analogy doesn’t have much to do with anything outside of its own narrow boundaries.

…and then you neatly provide a gun to shoot you with. Because the differences are obvious. You are now talking about (a) a situation where the owner of the property deliberately preserves the property (“keeps the copyright”) and in which (b) the property will last such that it may be worth something later.

Let’s add the relevant elements into your Farmer John analogy. Suppose instead of leaving the apples in the road, Farmer John doesn’t sell the apples because he “doesn’t think he can make any money out of them” now, but he instead puts them in a nitrogen atmosphere to preserve them “just in case.” (perhaps he thinks the price of apples might go up).

Now do you think it would be moral or legal to take them? Answer: obviously not.

What are you doing up there on your own petard, Evil Captor?

I have always been standing on it, you arrogant snit. You, on the other hand, are standing over in Farmer John’s field.

134

And you can paint it purple and call it a grape too. You would still be wrong. This isn’t nitpickery (good word by the way). The conceptual foundation for copyrights is fundamentally different from the old common law origins of theft and conversion. The fact that copyright infringement is a moral outrage to you doesn’t change this fact. Personally, I’m morally outraged that anyone would allow a small child to wear a mullet (hairstyle); that doesn’t make it abuse (though some might argue that is does :slight_smile: ) .

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). When the car is stolen, one of your rights is to possession of the actual car. This doesn’t necessarily follow with copyright law.

How can you continue to say that these two are functionally the same?

cj

135

You have a legal right, but I’m not sure you have a moral right.

136

Sure, if Farmer John is using the apples or if the publisher republishes the work in some form, clearly, they’re being used. 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).

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. 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.

QUOTE]

137

What? That makes no sense. If you write a letter to your lover, you don’t have the moral right to decide that other people can’t have copies of it? It’s yours, for goodness’ sake.

I wrote that book. I can choose to sell it, not sell it, burn it, only sell it to my friends, only sell it until the third Thursday in March, refuse to sell it on Palm Sundays, or make a “limited edition” run of 500 copies. It’s my choice, and I have no moral obligation to sell one to everyone that wants a copy.

138

Okay, I know you were talking to Princhester and not me, but I have to ask: What is your hangup with “large corporations”? This is about copyrights, many of which are owned by individuals, small businesses, and families. Is your irrational hatred of large corporations so intense that you’re willing to screw all artists, writers, and musicians out of their work just to hurt some “large corporations” (most of which, incidentally, are primarily owned by “regular folk” just like you and me)?

I see nothing greedy about wanting to retain control of a book I spent a year writing. And if you take away a corporation’s right to buy my copyright, then you’re taking away the potential profit I could make by selling it!

139

Exactly, Invisible Wombat.

As I’ve mentioned many times on previous threads covering similar subjects, I’ve produced a lot of work of various types. Old sketchbooks, photos, essays, so forth. I do not owe everyone access to those works. Just because someone saw them or read them way back when, it doesn’t mean that I owe them my work indefinitely I have some say over my work. We all do.

I’d daresay that there are more “little folk” like me and Invisible Wombat who want to keep rights over our work than there are Big Evil Corporations hoarding work. Every one of us, whether we realize it or not, have created intellectual property. We don’t owe everyone access to this property. It’s ours.

140

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.