Proponents of ever stronger and longer copyrights, supported by ever more draconian enforcement mechanisms, like to toss around terms like “piracy” and “theft” for the emotional reactions they provoke. This is not, as Matt Yglesias notes, an aid to clear thinking: Copyright infringement and theft are both illegal—along with jaywalking, murder, and speeding—but they’re otherwise quite different acts, which are quite properly treated very differently as a matter of law, and prioritized differently as a matter of enforcement practice. The most obvious reason the analogy fails is that “theft” centrally involves depriving the owner of the thing that’s stolen. Copying a CD or DVD for a friend—or letting them borrow your copy, for that matter—may occasionally displace a legitimate purchase, but it doesn’t leave the artist or rightsholder with any fewer copies than they had before. That’s not to say copyright infringement isn’t also problematic, or something the government needn’t worry about deterring. Copyright maximalists insist on “theft” instead of “copyright infringement,” however, mostly because they don’t want people thinking too hard about the myriad ways these offenses are different, and how they might therefore call for different policy responses.
But if the defining characteristic of theft is that it deprives the victim of something they were entitled to use and enjoy, then there are things that can accurately be described as “intellectual property theft.” When legislators—many of whom now support censoring the Internet to stop “piracy”—rewrote the copyright bargain with the Sonny Bono Copyright Term Exension Act, they retroactively extended the monopoly of rightsholders over existing works by 20 years. That retroactive extension, of course, did nothing to incentivize new creation. And since economists have estimated that the present value of a copyright monopoly was already barely distinguishable from the value of an unlimited term, it’s doubtful that even the prospective extension bought us much additional creativity. But it did mean that the general public would be denied, for another 20 years, the free use of works that had been slated to fall into the public domain under the original copyright bargain. That sounds more like “theft” of intellectual property—and not just theft from a particular creator or industry, but from the whole of the public.
When rightsholders engage in copyfraud, insisting that other creators beg for permission and pay licensing fees for “fair uses” copyright law allows—and when skittish lawyers make that insistence effective, creators and their audiences are deprived of a use of that intellectual property they’re entitled to. When overbroad DMCA notices sent by careless lawyers remove original creations that making novel transformative use of prior work from the public Internet, users are robbed of art they are entitled to enjoy.
The pillaging of the public domain is real “intellectual property theft.” How about a crackdown on that?