Copyright infringement, although often regarded as theft, seems to be a rather strange kind of property infringement. If I steal your car, or your cash, or your furniture, I deprive you of the use of those things and stick you (or your insurance company perhaps) with the cost of replacing those items. But if I copy some music, or software, or a book, no one appears to be deprived of anything. David Hartline, the Assistant Director at the Center for the Protection of Intellectual Property tries to explain away this strangeness by explaining, in a very clear way, the distinction between “larceny”, and the broader concept of “theft”.
Under the common law, larceny required that the thing that was stolen be tangible – it requires that the target of theft be a thing that can be carried away. Although that is what we normally think of as “theft”, legally theft is actually a much broader concept that includes unlawful taking of “anything of value”. Hartline supplies a good summary of the legal concepts and terminology involved, leaving no doubt that, under the law in the USA and most other jurisdictions, copyright infringement is a type of theft.
Hartline does not, however, address the more interesting question of whether or not, or under what circumstances, copyright infringement is unethical, and whether it ought to be treated by the law as a kind of theft. I will assume, for the purposes of this discussion, that theft (larceny, specifically) is unethical and any exceptions to this assumption are special cases that are outside the scope of this discussion. (For example, some might argue that property obtained by capitalists is acquired through unethical means and thus capitalists are not entitled to it. That is a discussion for another time.)
Larceny is unethical because it causes tangible harm to the victim. If someone steals $20 from me, I do not have the use of that money. However, if I write a book and someone makes a digit copy (or an old-fashioned photocopy), the harm is less clear. If we suppose an extreme case where only one copy of the book is bought, and then millions of copies are made without me making any money, I am harmed – it may well be that in that case I am deprived of my ability to make a living. This kind of scenario, to a lesser or greater extent, is assumed when, for example, the software or publishing or movie industries argue that copyright infringement causes harm.
It is less clear, however, that I suffer harm if someone who genuinely cannot afford the cover price for my book copies it. It is also unclear what the relevant difference is between letting someone who cannot afford my book copy it, or lending them a copy of my book – the “deprival of revenue” argument applies just as much to the act of copying as it does to the act of lending. The “deprival of revenue” argument just doesn’t work in such a case.
The numbers from the Global Innovation Policy Center – a lobby group promoting greater intellectual property rights – supply an interesting perspective that bolsters the argument that not all copyright infringement is harmful, although it is doubtful that this is their intent. According to their report on “Impacts of Digital Video Piracy on the U.S. Economy”, between 14% or 34% of all illegally copied movies would have been bought had the video piracy option not been available. This means that between 86% and 66% of all illegally copied movies would not have been bought in any case, and most of the illegal copying caused no loss of revenue. Whether the numbers are similar for other industries, such as book publishing or software development, is not covered by the report, but it is likely that the numbers are similar.
Most instances of illegal movie copying cause no harm – i.e., no deprival of revenue. It is likely that this is the case with copyright infringement in other areas. This being the case, there does not appear to be any justification for treating 100% of all individuals committing copyright infringement as criminals – most of them do not do anything resulting in harm.
Imagine this state of affairs existing with tangible things. Imagine that I could bake a hundred loaves of bread, sell it to a hundred people, but at the same time have two hundred people who cannot afford to buy a loaf of bread would also walk away with a loaf of bread each. Such a thing, were it possible, would be rightly regarded as miraculous. Were I to then claim that the people walking away with unpaid-for bread are stealing from me, I would be rightly regarded as mad or, more to the point, extremely selfish. Even I were to show that some of the people walking away with free bread could pay for it, I would be hard-pressed to justify treating everyone getting free bread as criminals.
Michael Voytinsky
Michael is an adjunct philosophy instructor at the University of the People and an IT Security professional from Ottawa, Canada. He got his M.A. in Philosophy from the University of Wales Trinity Saint-David - his M.A. thesis’ title is “Utilitarianism as Virtue Ethics”. He is now contemplating what to do for his Ph.D.
Discussions of theft can quickly become more than a little inconvenient.
Here in the United States we’ve become increasingly obsessed with adamant moralistic proclamations concerning appropriate ethical behavior, while we remain contentedly sitting on the continent we stole from the native peoples.
I recall hearing a native American activist being interviewed on NPR. His suggestion was that some degree of racial harmony might be enhanced by handing the national parks over to Indian tribes for management. Who in America has a closer relationship with the land?
I thought this was a very interesting idea, which had no chance of happening. It never occurs to us white people that the national parks would or should belong to anybody but us.
Philosophy is a wonderful sounding medicine which reveals its unpleasantly inconvenient taste once we actually raise the glass to our mouths and drink it.