Why It’s Important Not To Call Copyright Infringement Theft

A bunch of folks on all sides of the copyright debate have been submitting the recent post from the blog Copyhype (by a recent law school grad named Terry Hart) about the whole “infringement vs. theft” debate in terms of what to call it when someone’s copyright is infringed. Hart is very careful and specific, but in the end tends to lean towards it being perfectly acceptable in many instances to refer to infringement as theft:

It’s technically correct that “copyright infringement” and “theft” have distinct legal meanings, but so what? The idea that the legal distinction between the two terms forecloses any colloquial comparison is invalid. “Theft” in the legal sense has always meant something far narrower than “theft” in the everyday sense. In early English common law, for example, the crime of theft only included the taking of another’s property by force or by stealth. It didn’t include the taking of property by deception or trick, and it also didn’t include the taking of property by someone in whom the property was entrusted. While today we would have no problem saying a delivery truck driver engaged in “theft” if he kept a package instead of delivering it, earlier courts had to jump through several hoops before reaching the same conclusion.

He goes on to knock those who quote the Supreme Court opinion in Dowling v. US, where Justice Blackmun makes it clear that infringement and theft are two different things. Hart claims that people who quote Dowling are quoting Blackmun out of context, while also noting Justice Breyer’s concurring opinion in the Grokster case that says “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.”

His overall argument, however, is that there’s nothing wrong with calling copyright infringement theft, because beyond the legal definition, it accurately shows how people feel about having works infringed, and that’s useful to the debate on these issues:

The debate over the labels we give to copyright is interesting in an academic sense but largely meaningless in the real world. Creators often use words like “theft” to reflect how they feel about acts of infringement. Shifting the focus from the colloquial meaning of the word to the legal meaning accomplishes little more than arguing for the sake of argument, while misusing language from case law only forecloses a fuller understanding of the law.

I agree, in part, but mostly disagree with Hart’s conclusion here. I agree that arguing back and forth over which Supreme Court justice said what is somewhat meaningless. However, I disagree strongly that this becomes argument for the sake of argument. Whether we are speaking legally or economically or about the impact on any individual or organization, “theft” and “infringement” are two separate and different things. This is important. If you are seeking to understand what is happening and how to respond to it, calling it “theft” immediately shuts the door on a variety of important points. It closes off a path to understanding both what’s happening and how one might best deal with it. I find that incredibly dangerous from the perspective of a content creator. Calling infringement theft or not isn’t just a semantic argument from people who like to argue. It’s about actually understanding what’s going on, and that’s simply not possible when you put up a wall to understanding.

So, yes, arguing over what justice said what in which Supreme Court ruling may not enlighten anyone, but looking at the actual details of what’s going on, and making sure that you do not falsely lump two very different concepts into one in such a way as to preclude actual understanding, is no mere semantic argument. It’s about actually understanding the issues in a way that can move people forward. Calling it theft is wrong. And not because some Supreme Court justice said so, but because it’s wrong at an absolute level. You can call an apple and orange because of how it makes you feel, but that doesn’t make it correct, and hinders your ability to understand the differences between apples and oranges.

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