A while back, I was trying to explain to my daughter why illegally copying music was stealing. To my surprise, she simply could not see why it was considered stealing. Since she's an intelligent, fairly sophisticated, and reasonably honest person, her response made me question my assumptions.
I've since decided she's right. Copying music may be somewhat like trespassing, but it's almost nothing like stealing.
The intangible property of value that you own when you create music is the copyright, not the song itself. The copyright can be bequeathed in your will, sold, etc., much like tangible property. On the other hand, you don't directly have ownership in any of the copies of the song.
When I copy a copy of a copy of a copy of a copy of a song, I'm not stealing or directly affecting your ownership of the copyright in any way. This is very similar to when I walk across your land uninvited, I'm not stealing your land or directly affecting your ownership of the land in any way. I merely trespassed, which while illegal in the US (but not other countries such as Sweden), is a much different level of moral and legal breach than theft.
Indeed, unlike laws against stealing which are derived from fundamental western morals ("thou shall not steal"), copyright is only a legal issue, has no objective or traditional moral component, should only exist only to further the arts and sciences (according to the U.S. Constitution), and is really only even relevant if a substantial majority of people believe it has a net benefit to society (which, to the dismay of the record companies is becoming less and less true by the day).
I think that calling copyright violations stealing is derived from the legal marketing of the recording industry and other stakeholders in monopoly rents from copyright. After all, what better way to get the public on your side than to try to assign an erroneous but much morally stronger word to the violation of a law you strongly care about.
My daughter and her friends are right, copying is somewhat like trespassing, but not at all like theft.
21 comments:
I don't know about copyright, but trespassing is much like theft. When you walk across my land, you are directly affecting my ownership. The land has a finite carrying capacity and you used some of it, thereby depriving me of it. It's the same argument as recent "takings" lawsuits where over regulating is considered a taking, even though technically the ownership hasn't changed. You have directly decreased the utility of my land by your trespassing, therefore it's theft.
So you'd punish your kids equally if they were caught walking across someone's lawn versus shoplifting? Would you expect equal punishment for an adult who stole your lawnmower versus an adult who walked across your lawn?
No.
Then at minimum, they're in a different class of criminality.
Yes, but that's not what your wrote in the original post. It's different from your comment in the same way stealing a dollar is a different class than, say, Maddoff's crime. But fundamentally they are similar in a way that's distinct from copyright violation.
You're right, but I was just trying to eliminate one possible reason for disagreement.
Here's the specific definition of trespass I'm using from dictionary.com: "a wrongful entry upon the lands of another" with the caveats that after the wrongful entry, the trespasser leaves after a bit and that the trespasser does not vandalize the property or otherwise cause damage (which is yet another class of crime).
The case of new regulations isn't trespass at all, it's regulation. Since it doesn't end, it's a permanent change to your rights, which, unlike a trespasser who eventually leaves, doesn't end.
The main difference between theft and trespass is that theft is permanent, while trespass is temporary (especially with the definition that no damage occurs during the trespass). After the trespasser leaves, assuming no damage, absolutely everything is exactly as it was before the trespass. After a theft, you are missing that stolen property forever. It's likely you wouldn't even notice a trespass. It's very likely you'll notice a theft.
I'm not finding the "carrying capacity" argument convincing. Sure, if a billion people traipsed across your lawn, it would damage your lawn. However, unless you have very fragile grass, dozens per day could walk across it with no sustained damage. Lastly, various varmints traipse through my property all the time and I'm told I'm supposed to consider that a feature, not a trespassing bug.
Here's what wikipedia has to say about copyright infringement versus theft:
"Copyright holders frequently refer to copyright infringement as "theft". In law copyright infringement does not refer to actual theft, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.[5] Courts have distinguished between copyright infringement and theft, holding, for instance, in the United States Supreme Court case Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property and that "...interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright... 'an infringer of the copyright.'" In the case of copyright infringement the province guaranteed to the copyright holder by copyright law is invaded, i.e. exclusive rights, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.[6]"
That's pretty much exactly what I've been trying to say. I'm glad the Supreme Court seems to agree too. And I still think trespass is a pretty good metaphor for "an instance where a person exercises one of the exclusive rights of the copyright holder without authorization" where you just substitute in "land owner" for "copyright holder" and the exclusive right is being on the land without authorization.
I agree that copying music is not exactly like stealing, but it is a bit of a stretch to say it isn't, either.
Assume for a moment that the only way to get music is to purchase it: each instance of a piece of music provides some amount of revenue to the musician.
Now, one person, who would otherwise have purchased a copy, gets to make a copy. The musician subsequently has one unit less revenue than he would have otherwise.
How is it that one person did not steal from the musician?
That the incremental cost of an instance of the piece of music is zero serves only as a distraction.
If you had the perfect lawnmower, one that would last forever, no matter how much it is used, I'll bet you would view it as a form of theft if people borrowed it without permission while you weren't using it.
There is another way to see this as theft. If everyone downloads illegally, musicians will get no income, and there will be no more music.
Which is pretty much the way what happens to everything else when property rights vanish.
Hey Skipper asks: "How is it that one person did not steal from the musician?"
The musician still owns the copyright.
In the case of the lawn mower that lasts forever and someone used it without permission I would consider it trespass, not theft. That's because I could still use the lawnmower, whereas if it was stolen I could not.
Hey Skipper wrote: "There is another way to see this as theft. If everyone downloads illegally, musicians will get no income, and there will be no more music."
First, baloney regarding no more music. There are tens of thousands of musicians like me who produce music and make it freely available, so there will always be more music. In addition, creating music is also required for a musician to become successful performing so they'll create music for that reason.
Second, even if true (no more music), so what? There are already millions of excellent songs, why does the world possibly need more?
Third, I don't see how the above, even if valid, somehow proves that copying is theft. It may be bad, but it's still not theft.
"the trespasser does not vandalize the property or otherwise cause damage"
I consider that a physical impossibility. There will be damage, otherwise it would be fine to have a billion trespassers, whereas in reality such a group, no matter how careful, would utterly destroy your land. It's not a step function.
There's also the time value. In the lawnmower case, suppose a succession of people borrow it, so frequently that you never get to use it. At what point, from zero to that number of borrowers, is your ownership impacted? There are real life cases of this with regard to trespass. I would say you have either tell me where the threshold is, or say that yes, even a single person has a cost. It may be negligible, but the cost is there.
That is the fundamental difference between theft and trespass on one side, and copyright violation on the other. No amount of the latter ever reduces the wealth of the copyright holder, therefore we can hold each single violation as zero cost.
First, in the original post I didn't say that there is no cost to the land owner of someone trespassing. I think it is essentially negligible since while it might not be a step function, it is pretty non-linear = one person essentially causes so little damage it can't be measured.
Second, my main point is that at the end of the trespass, you still own and can use the property. After theft, you have no use of your (ex-)property.
If you're arguing that copyright violations are even less bad than trespass, fine, I won't argue with you. I'm just saying that copyright violations are nothing like theft, and if compared to tangible property violations, it's more like trespass than theft.
The musician still owns the copyright.
In the case of unauthorized downloads, that and twenty-five cents will get you a small part of the way towards coffee at Starbucks.
The problem with equating copyright violation with trespass is that the latter, at least theoretically, imposes no loss upon the property owner. Also, it is worth noting that the property owner can, both in theory and practical fact, exclude trespassers while still obtaining whatever economic benefit derives from charging for access.
In contrast, unauthorized downloads cannot be stopped, and they deprive the copyright holder of the income deriving from a fully protected copyright.
Take unauthorized downloads to the limit. The musician still owns the copyright, but its value is zero, and the income from the work is also zero, yet people possess the product of his work, which would not exist otherwise.
It we limit the definition of theft to an act which deprives the owner of a particular instance of material property, then you are right, unauthorized downloads aren't theft because they have no independent material existence.
However, the copyright itself has a unique material existence. It is tangible property. Unauthorized downloads reduce, or eliminate, the value of that property. When someone else's action deprives me of the value of my property, what am I to call it?
Despite the risks of argument by hypothetical, I'll go back to the lawnmower. I once used it to earn income by mowing others' lawns, but they found out they could use it when I wasn't around, and return it in its original condition. Consequently, the lawnmower, which I obtained at some cost in time and money, is now worthless. I contend that the unauthorized use is in fact theft, and the value of that theft is the difference between what the lawnmower would have earned and zero.
First, baloney regarding no more music. There are tens of thousands of musicians like me who produce music and make it freely available, so there will always be more music.
Okay, you got me there.
What I really should have said, and it may still not be right, is that without a price signal, there will be no filter to separate the wheat from the chaff. The wheat will be there, but any individual listener will no longer be able to rely on others' sacrifice as a proxy for quality. Also, if there is no economic return to be had from creating music, then no one will be able to make music their profession, and I think the intuitive argument that people who focus exclusively on making music make better music than those who don't, or can't.
Hey Skipper wrote: "The problem with equating copyright violation with trespass is that the latter, at least theoretically, imposes no loss upon the property owner."
The property owner loses the toll he might have collected, just like the copyright holder.
Hey Skipper wrote: "...it is worth noting that the property owner can ... exclude trespassers ..."
Since I'm comparing unauthorized copying to trespass, the case where there's no trespass (i.e. "exclude trespass") is not relevant to the subject at hand.
Let's take a specific example. Somebody builds a bridge on his property. At each end of the bridge he posts a sign which says, "No Trepassing. For authorized access, call nnn-nnnn to pay a small monthly fee." There's not enough traffic to justify hiring someone to watch the bridge.
With that example, let me rewrite your next few sentences:
In contrast, unauthorized bridge crossings cannot be stopped, and they deprive the bridge owner of the income deriving from a fully protected bridge.
Take unauthorized bridge crossings to the limit. The bridge owner still owns the bridge, but its value is zero, and the income from the work is also zero, yet people possess the benefit of his work, which would not exist otherwise. [...]
However, the bridge itself has a unique material existence. It is tangible property. Unauthorized bridge crossings reduce, or eliminate, the value of that property. When someone else's action deprives me of the value of my property, what am I to call it?
Trespass. That's the very definition of trespass, not theft. The bridge owner can still walk over his bridge or use the materials for something else.
Hey Skipper wrote: ...the lawnmower, which I obtained at some cost in time and money, is now worthless.
Really? Why can't you use it or sell it since it's "in its original condition"?
Hey Skipper wrote: "...without a price signal..."
What price signal? Last I looked, every tune at iTunes that was a certain age costs the same. There's never been much of a price signal anyway.
Hey Skipper wrote: "...the intuitive argument that people who focus exclusively on making music make better music than those who don't..."
That's the big argument, but I find it weak for a large number of reasons including: (1) There's plenty of money to be made touring and acts that want to tour will have to get songs written - they'll either do it themselves or hire a (professional) songwriter; (2) not being beholden to record companies and the rest of the music industry would, in my opinion, allow more creativity; (3) for many acts, their first album is their best album - if focusing exclusively were important, that would be very rare; (4) "better" is subjective, not objective in music - I see no evidence that people's choices in music seems to indicate that professionals are better; and (5) those that end up not creating music that would've been good are probably quite talented at other things and we benefit from them doing other things as well.
Since I'm comparing unauthorized copying to trespass, the case where there's no trespass (i.e. "exclude trespass") is not relevant to the subject at hand.
How can it not be relevant? When it comes to trespass there is a physical entity — a person — who has a specific location in space, and a definable area — someone's real property — from which that specific entity can be explicitly excluded. Or not, for that matter. After all, as the property owner I may allow some to proceed at will, and others not at all.
When expanding the analogy to a bridge, you don't really clarify things. Presuming someone built the bridge for the purpose of generating income, and the materials that constitute the bridge are worth far less, or nothing, after having become a bridge than beforehand (never mind the time and effort involved), then that is more than mere trespass; i.e. someone taking a shortcut across my property that doesn't result in any damage, inconvenience or material loss to me.
A more appropriate analogy is jumping the fence into Disneyland. That is trespass, with a twist. There is the word criminal that goes in front: A person is guilty of criminal trespass if, knowing that the person is not licensed or privileged to do so, that person enters any dwelling place; enters any structure that is locked or barred; enters any place from which that person may be lawfully excluded, or remains in any place in defiance of a lawful order to leave that was personally communicated to that person by the owner or authorized person. Title 17-A, 402, 1. Criminal trespass is a Class B through F crime.
The reason people fence jumping into Disneyland is considered criminal trespass is that doing so constitutes theft of services: a crime which is committed when a person obtains valuable services — as opposed to goods — by deception, force, threat or other unlawful means, i.e., without lawfully compensating the provider of said services.
How does unauthorized downloading of music, or trespassing upon a bridge, or illicitly borrowing a lawnmower, not constitute theft of services?
What price signal? Last I looked, every tune at iTunes that was a certain age costs the same. There's never been much of a price signal anyway.
Granted, the recording industry, and perhaps artists' egos, seems oddly disconnected from the law of supply and demand.
But there is still a price signal.
Perhaps you don't visit iTunes much — I do, because I view illegal downloads as theft — but there is a "popularity meter" associated with each track, which means that I can see the relative rates at which people are willing to part with a $0.99, or $1.29, or whatever to have that piece of music. Consequently, the amount of time I spend to separate wheat from chaff is greatly reduced by slavishly following the hive mind; I choose to do so, because, much of the time, the hive mind works.
I find [the intuitive argument that people who focus exclusively on making music make better music than those who don't] weak for a large number of reasons including: (1) There's plenty of money to be made touring …
But less than from touring plus recording sales. At the margin, in the absence of recording sales, some acts will fail that would otherwise succeed.
(2) not being beholden to record companies and the rest of the music industry would, in my opinion, allow more creativity.
I completely agree with you here, but I think you are presenting a false choice here. The existence of iTunes et al has disintermediated the recording industry. Ditching the suits, a good thing, does not require illegal downloading. Should an act get popular enough on the road (which substantiates my invocation of the price signal, BTW), then it can go direct to distribution while putting the music industry on complete disregard.
(4) "better" is subjective, not objective in music - I see no evidence that people's choices in music seems to indicate that professionals are better;
Subjectively, I disagree. I'd rather spend an entire night listening to a horde of mosquitos hovering around my ears than three minutes of Madonna / Michael Jackson / Britney Spears / Justin Bieber et al.
But despite my subjective dislike, I am perfectly willing to acknowledge that they possess some rare combination of talents that the vast majority of wannabes do not. Lots of people can throw a baseball, but the landscape is not littered with MLB quality pitchers.
Hey Skipper,
Blogger has been incredibly flaky for several days. I got an email comment from you that doesn't appear here.
Shall I resurrect your comment?
Thanks,
Bret
If it is about the legal definitions of criminal trespass and theft of services, by all means.
Much better that than my OT and, at the very least, faintly silly digression into price signals.
Hey Skipper,
It's there now. It actually got routed to a spam folder. Until now, I didn't know there was a spam folder. Live and learn. Sorry about that. I'll respond to the content a little later.
"How does unauthorized downloading of music, or trespassing upon a bridge, or illicitly borrowing a lawnmower, not constitute theft of services?"
Resource consumption, with regard to the property owner.
Illegal downloading consume *no* owner resources. The owner is in no way poorer. The only "cost" is his not becoming wealthier.
In all other cases, a resource is consumed - a service, an effort, access to property. For instance, in the Disney case, consumed resources include staff time, wear and tear, fuel costs (if the trespassers uses the tram). You can point to specific things owned by Disney which are consumed. That is what you cannot do in the download case. All of the potential revenue was never the property of the copyright holder.
Blogger is teaching me a whole new level of blinding hatred. Logging in after posting results in completely biffing the entire comment.
So, recreating from memory.
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SH, you confuse ends with means. Theft is the unauthorized possession of something, regardless of that thing's individual value. Granted, the legal system treats theft with varying severity based upon the amount, but that doesn't somehow partially vitiate the act itself.
Back in the day, when the only ways to get TV was either over the air, or through via cable, people would often do a little hacking on the cable box and obtain their programming for "free". This is completely analogous to illegal downloading. It consumed no resources from the cable company, or the companies providing programming. Yet it was, IIRC, prosecuted as theft of services. And rightly so, because those doing so were coming obtaining the service without the permission of the entity providing the service. That the incremental cost to the company was nil is completely beside the point.
All of the potential revenue was never the property of the copyright holder.
Of course not. The theft is from the value of the copyright itself. I addressed this above:
It we limit the definition of theft to an act which deprives the owner of a particular instance of material property, then you are right, unauthorized downloads aren't theft because they have no independent material existence.
However, the copyright itself has a unique material existence. It is tangible property. Unauthorized downloads reduce, or eliminate, the value of that property. When someone else's action deprives me of the value of my property, what am I to call it?
Downloads amount to theft in two ways. Theft of services is theft; limiting the definition of theft to material goods ignores the fact that theft is a specific type of act that is not defined by the value of the thing stolen. Secondly, the copyright itself has some value; illegal downloading reduces the value of that copyright. That the legal system defines that as copyright violation means that downloading has attained the status of a particularly defined type of theft. But it is still theft.
Before the age of downloads, the music companies forced people to buy a gramophone record or CD each time one wanted one or utmost two of the songs in that album. That in my opinion is tantamount to fleecing. As copying became rampant, the companies have started selling single songs. So things even out as time goes on. The huge figures projected by the companies as revenue loss on account of piracy is not realistic. A large majority would live without the song if it were not copyable and the only option was to buy it.
Then there is the case of damaged or obsolete media preventing a legal owner from listening. The companies act smart by not providing these songs on current media charging only the cost of media considering that the music has already been paid for.
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