[JasonCarr]

Recently the website techdirt took a stance on the debate over whether or not copyright infringment should be consider theft.

http://www.techdirt.com/articles/20100913/22513210998.shtml

This was in response to another blog were a law student named Terry Hart put forth an argument suggesting the copyright infringement is theft and should be framed as such.

I haven't read Terry Hart full analysis but I believe that Techdirt is wrong in trying to show a distinction between copyright infringement and theft. Terry's reasoning is that copyright owners refer to infringement as theft as an expression of how they feel about having their copyrights infringed. In other words its not technically theft but it feels like theft, according to Terry. In my eyes, the reason why content owner feel like copyright infringement is theft is because it IS theft.

Trying to separate stealing and copyright infringement does no good to your typical pirate. Even if, by downloading, you are not stealing you are still committing an act of copyright infringement and therefore committing an act which carries moral weight. Are we supposed to believe if we remove theft as part of the definition of copyright infringement then content owner are no longer going to make claims against us? They will continue to cry afoul on the basis of rights infringement.

What we should be aiming for is a narrowing of the definition of what constitutes copyright infringement while allowing remaining acts of copyright infringement to be analogous with theft.  Copyright infringement on a commercial scale is most definitely an act of theft because you are stealing the profits that rightfully belong to the copyright holder. But copyright works for personal use is not theft and it is not copyright infringement. Sure the law might give content holders the right over copying for personal use but this is exactly what we should be fighting to stop.

Arguing that all acts of copyright infringement are not theft is confusing the issue and neglecting the real problem of lawmakers failing to provide a distinction between commercial and personal copying of intellectual property. What we really need to remind people is that it is not when you make a copy that you are stealing, it is stealing when you sell that copy.

There is definitely a subtlety to the argument that techdirt is missing.

[Sovy Kurosei]

Copyright infringement on a commercial scale is most definitely an act of theft because you are stealing the profits that rightfully belong to the copyright holder.

The issue here is that the copyright holder lost money that they didn't have in the first place. Nobody would really know if the client would have bought a legit copy if the illegal version wasn't being sold. If the client would not have bought the more expensive legal copy of the IP then would the copyright holder still say that they lost money?

The other problem with this is that this is the same argument used against personal copyright infringement and that the copyright holder has their profits stolen because the client can get a free version of their IP off of the internet. "If the free version was not there then the client would have bought the software," the copyright holder would say. The likes of the MPAA, RIAA and BSA treat personal and commercial infringement as one and the same.

[Mikkel Paulson]

I don't think commercial copyright infringement should be equated with theft. I do, however, think that it's wrong and should remain illegal.

[JasonCarr]

Nobody would really know if the client would have bought a legit copy if the illegal version wasn't being sold. If the client would not have bought the more expensive legal copy of the IP then would the copyright holder still say that they lost money?

Indeed that would be a fallacious argument. The stolen profits are not those that could have been made by the content creator rather those that were made by the bootlegger. Its the actual profits made by the bootlegger then constituents theft not the potential profits lost by the content creator. That is why it falls apart with respect to personal copyright infringement because nobody, on either side, is making any money. 

I don't think commercial copyright infringement should be equated with theft. I do, however, think that it's wrong and should remain illegal.

In fact, without a notion of theft tied to copyright infringement we lack of real distinction between personal and commercial infringement. What reason is commercial infringement wrong that is not present in personal infringement? other then the theft of profit.   

[Sean Hunt]

In fact, without a notion of theft tied to copyright infringement we lack of real distinction between personal and commercial infringement. What reason is commercial infringement wrong that is not present in personal infringement? other then the theft of profit.   

Sure we do. Consider plagiarism. In academic circles, the one thing that you do not ever do is copy another's work and take credit for it. You will be flayed alive. This is because someone else has put the hard work into developing what they have developed and you have gone and taken credit for it. The same thing applies to commercial copyright infringement. If non-commercial infringement is allowed in all cases (which I'm not entirely sure I agree with, but that is not germane here), then copyright becomes not a law that gives the owner the exclusive right to copy, but rather a law that gives the owner the exclusive right to receive credit in monetary form for his work.

[Jay Frank]

For something to be of enough value to be stolen - it must be tangible.
1's and 0's, thoughts and sounds - these things are intangible and as such do not have a value comparable to physical gold.

J

[Mikkel Paulson]

Don't mistake monetary worth for value. Ideas are more valuable than physical gold. Our culture is the very foundation of our society, and it deserves to be protected. Protecting the corporations profiting from that culture is not the same.

[Sovy Kurosei]

The stolen profits are not those that could have been made by the content creator rather those that were made by the bootlegger. Its the actual profits made by the bootlegger then constituents theft not the potential profits lost by the content creator.

Technically the money belongs to the buyer and they should stop using the illegal software. In the real world when someone buys a stolen car and it is found out then the car is returned to the original owner and the seller returns the money to the buyer.

[GregW]

To me, copyright infringement cannot be theft.   I find the biggest problem with this kind of debate is definitions. My definition of theft is not the same as your definition of theft. Beetle in a box.  Ideas cannot truly be stolen.  To steal something from someone is to deprive that person of its use. No one can say that downloading Photoshop deprives Adobe of the ability to use it.  There is a potential loss for future revenue, but the inherent uncertainty of the future prevents us from determining how much.

I feel many ideas have value.  However, that value has no relation to monetary value.  Some ideas are utterly worthless. An idea's value is wholly subjective.  It can only be determined by the person considering it.  It has no inherent value of its own. 

Nothing I've said here is uniquely mine.  Everything else in this thread has been said before. The word combinations may be unique but the ideas are not.  Our species is where it is because we love to share ideas with each other. Of course, the sharing of ideas is very different from the sharing of works based on those ideas. In the end, I think commercial copyright infringement laws are only as necessary as commerce is.  Noncommercial infringement is much fuzzier.

[Mikkel Paulson]

No one can say that downloading Photoshop deprives Adobe of the ability to use it.

True. What's more, I know a number of people who would never be able to afford or justify the expense of Photoshop, but they download it because they can. Lost sales: $0.

However, on the flip side, there's an element of collateral damage in the up-sell. I can't afford $400 for Dreamweaver, so I download it. Fine. However, if I couldn't find a free copy of Dreamweaver, I might have bought Coda for $100 instead, which I could afford. Adobe didn't lose a sale, but Panic did.

(I actually did spend $100 on Coda, and it was worth every penny.)

[Mapleson]

To steal something from someone is to deprive that person of its use.

The key word in this sentence is "use".  What is the intended "use" of any created work? It is either an act of creation or it is the pursuit of monetary compensation.  In the former case, no subsequent use may enfringe on the achieved purpose.  In the latter case, someone can be deprived of a works use by another receiving exclusive monetary compensation for its reproduction.

Illicitly obtaining (downloading) Photoshop deprives Adobe of the ability to sell it to that person.  If that person is compensated for produces that are produced in part because of Adobe's creation, Adobe has been deprived on their due recognition in that  creative process.  If the person does not use it for commerical purposes, they have gained no monetary compensation from the existance of that specific copy and therefore should not be obligated to compensate Abode for Photoshop's creation.

Who would engage in creative activities if there was no recourse for monetary compensation?  Only those that wish to indulge in the creative act for its own merit. 

Commerical copyright enfringement is equivalent to thief, but as both already exist seperately under Candian law, I see no need to try to conflate the terms.

[securr]

True. What's more, I know a number of people who would never be able to afford or justify the expense of Photoshop, but they download it because they can. Lost sales: $0.

However, on the flip side, there's an element of collateral damage in the up-sell. I can't afford $400 for Dreamweaver, so I download it. Fine. However, if I couldn't find a free copy of Dreamweaver, I might have bought Coda for $100 instead, which I could afford. Adobe didn't lose a sale, but Panic did.

(I actually did spend $100 on Coda, and it was worth every penny.)

Good point. But there's also a long-term benefit to having up and comers pirating your software as "learning tools". Take Maya (a popular 3D animation package used in the games and film industry) for instance. The software, out of the box, for a single user costs almost four thousand dollars. Well out of the reach of any student or hobbyist looking to enter either industry. There are lots of cheaper and even free 3D animation packages out there, but the problem with learning them is that they all have their own peculiar little quirks. If you enter the job market without knowledge of Maya itself, your chances of breaking into the industry is pretty slim.

However, Maya is actually one of the easiest programs to find working keygens for and there's a persistent rumor that Autodesk actually leaked the keys themselves to facilitate piracy of their product. Why? Well, first of all they sell a commercial application. They have no real business interest in individual users and any potential lost sale due to piracy is minuscule at best. However, if a large percentage of students/hobbyists learn to model using their software package then the chances of Maya being used when those people enter the industry increases dramatically. Why, as a business, would you risk switching away from software that everyone in your company is  used to using? There's a delayed benefit to piracy that helps Autodesk maintain its dominance in the industry. For employees, the fact that Maya is ubiquitous means that they can focus on learning that particular piece of software and their skills are broadly transferable.

That's why we shouldn't equate copyright infringement with theft. There are lots of unintended consequences (both good and bad) that require judicious examination and plenty of tweaking in order to strike a healthy balance. Also, if there's no physical loss of product (which is one of the key factors in determining "theft" - there's an immediate loss to the business) how do we measure the damage done? And what about perfectly legal practices that potentially do the same amount of damage to the business, such as buying software used? At the risk of being glib, there's a lovely Penny Arcade strip that presents the argument rather well: http://www.penny-arcade.com/comic/2010/8/25/

[JasonCarr]

No one can say that downloading Photoshop deprives Adobe of the ability to use it.  There is a potential loss for future revenue, but the inherent uncertainty of the future prevents us from determining how much

Ahh but the issue I raised was not about downloading rather it was about commercial copyright infringement(ie: bootlegging). It has nothing to do with potential loss nor does it have anything with to do with loss in general, it has to the with the gains made by the bootlegger.

If a bootlegger sells photoshop for 100 dollars, that 100 dollars rightfully belongs to adobe. Its that 100 that they have stolen not the potential profits adobe would have made had they sold it for more.

I hope that this clear, I feel like most of the people that responded to me in this thread have completely missed this point (with the exception of Sean who illustrated it beautifully with his plagiarism example, though he still claimed to disagree with me which is confusing.)

[securr]

Ahh but the issue I raised was not about downloading rather it was about commercial copyright infringement(ie: bootlegging). It has nothing to do with potential loss nor does it have anything with to do with loss in general, it has to the with the gains made by the bootlegger.

If a bootlegger sells photoshop for 100 dollars, that 100 dollars rightfully belongs to adobe. Its that 100 that they have stolen not the potential profits adobe would have made had they sold it for more.

I hope that this clear, I feel like most of the people that responded to me in this thread have completely missed this point (with the exception of Sean who illustrated it beautifully with his plagiarism example, though he still claimed to disagree with me which is confusing.)

Thanks for clearing that up. I thought you were referring to copyright infringement more generally.

In that case, if you're actually making a profit from the infringement then certainly you should be punished with appropriate force. I hesitate to say it is equal to theft, however. If we consider the example you gave of bootleggers (one guy, makes a business out of pirating widely available commercial products) then my initial reaction is yes, it absolutely should be considered theft and punishment should be dealt out with consideration to the size of the operation. However, we should also think about some of the peripheral issues around bootlegging. I live in Vancouver and there's lots of bootleg shops in Chinatown. While they do often sell bootlegged copies of current first run films, many of them also bootleg foreign films that don't have a Canadian distributor. Even many of the English language bootlegs are copies of Asian versions of the film containing language tracks that are valuable to non-English speakers that may want to watch the film. Given the concerns any city or nation has in regards to acculturation, many of these bootleg shops may be providing a secondary service to their customers. If you're talking about bootleggers present in largely ethnic neighborhoods where assimilation is difficult due to second language acquisition than having elements of Canadian (or American etc) culture transmitted through alternative means might have some side benefit.

Naturally though, it doesn't do any good for the content provider and in the case of selling a pirated copy of software that's simply that - pirated - I'd say the law should come down hard on bootleggers. However I'm still queasy about calling it "theft". We should implement a gradual series of fines/jail time that takes into account the nature and size of the operation ensuring that we differentiate the two legislatively.  Like in the example above, there are lots of market failures as well as social and cultural factors that give rise to some (though certainly not all) bootleg shops.

That does beg the question though: how do we make exceptions to the rule? Or should we try to at all?

[Mapleson]

I live in Vancouver and there's lots of bootleg shops in Chinatown. While they do often sell bootlegged copies of current first run films, many of them also bootleg foreign films that don't have a Canadian distributor.

In Toronto, the Chinese built Pacific Mall, which wouldn't be viable without the dozens of competing unauthorized sellers.  They've been busted by the RCMP 5 times in the last 5 years.

The last raid, in February 2009, the RCMP seized over 49,000 DVDs, 217 DVD burners and over 100,000 blank discs. Four people working in the mall were charged with multiple counts under the Copyright Act, also with Possession Of Property Obtained by Crime, and Fraud.

http://www.newswire.ca/en/releases/archive/May2009/06/c8907.html

So the status in Canada is that Copyright Infringement is Thief but it's also CI.  Two charges, one action.