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What Do Infringement/Theft Analogies Really Illustrate?

August 18th, 2011 · 14 Comments

Mike Masnick finds another MPAA flack in high dudgeon in response to the simple factual observation that, especially a rough economy, studios and networks risk audience flight to BitTorrent if they don’t make their own digital offerings more consumer-friendly:

In other words: movie and TV theft is inevitable. Why? Because it’s easy to steal something that, in physical form, exists only as data, and easy to justify stealing it as a result?

First, as Masnick notes: Yes! However huffy you get about it, however morally outrageous you might find it, online copying clearly isn’t going anywhere. Lots of bad things are, indeed, pretty much inevitable regardless of what we think about that fact.

Second, a couple things worth pointing out about this familiar copyright maximalist trope. You know the one: “If you wouldn’t shoplift a CD, you shouldn’t think it’s any less wrong to ‘steal’ music and movies just because it’s easier to get away with!”

I always find this an odd line to take, because one of the reasons it’s easy to get away with copyright infringement than theft is that copying has no direct impact (and in many cases not even an indirect impact) on the rights holder, which means they don’t just have to expend resources to find infringers—it takes some work just to find out how much infringement is happening! And this seems relevant to the aptness of the equivalence with stealing.

Suppose I tell you that assaulting people is wrong, and it doesn’t become any less wrong just because it’s easy to get away with, owing to the fact that the victim doesn’t notice. You might think a reasonable response is that, while it’s surely possible for a genuine assault to go unnoticed by the victim under certain circumstances, that sounds like a prima facie reason to wonder whether what we’re talking about really is an assault. It’s a little odd to lean on this “don’t forget it’s theft just because it’s so easy!” when the reason it’s easy is also a reason it’s not a whole lot like real theft.

The other point to make is that, while I’ve certainly never done it, shoplifting actually also seems pretty easy. I suspect a well-dressed person who’s minimally clever about it could routinely just walk off with small items from brick-and-mortar shops. For someone in the habit of doing it, safely pocketing a couple items from a low-security store now and again probably is not appreciably more difficult or risky than hunting down a new movie on BitTorrent. Probably some small percentage of adults do just that. But the vast majority of people who download pirated music or movies clearly don’t. Indeed, probably the reason it would often be easy is precisely that the vast majority of people think stealing is wrong, and so most people don’t do it even when they can easily get away with it. Since most people are honest, shops that don’t sell especially expensive items generally don’t find it worth investing in higher security to deter the few exceptions, since the security would often cost more than the stolen items.

That makes this, too, an oddly counterproductive comparison for copyright maximalists to make. Because once you acknowledge that physical stealing is, in many circumstances, effectively about as easy and low-risk as pirating, you need to come up with some other story to explain why vast numbers of people who’d never dream of doing the former will do the latter. And the obvious answer is that despite a relentless propaganda campaign aimed at equating the two, most people intuitively see a difference between copying and stealing, for reasons that have nothing to do with how easy or risky it is. That doesn’t mean people who pirate necessarily think it’s morally unproblematic—they might do it a bit guiltily, thinking they really ought to be paying—but regard it as a venial sin, not something on the same order as real theft.

Of course, a widespread moral intuition is no infallible guide—plenty of societies countenance grossly immoral practices—but it seems at least like an important data point, at least. First, because it seems wildly out of wack to impose such enormous penalties (often, indeed, far in excess of what would apply to someone who did shoplift the same music) on actions that most people sincerely do not regard as wrong. Even if it were the efficient thing to do (because only very high penalties will deter piracy enough to save valuable industries) it would not seem particularly just. Second, because any system of rules relies overwhelmingly on voluntary compliance—on people respecting the rules because they dovetail with people’s views about what’s right and wrong, not because of formal enforcement measures. That makes law and regulation that run contrary to people’s moral intuitions vastly more costly to enforce, precisely because so much more actual enforcement is necessary to achieve the same level of compliance. That, in turn, means that the social gain from achieving given level of rule compliance has to be much higher to make the rule worthwhile.

Tags: Tech and Tech Policy



14 responses so far ↓

  • 1 wkw // Aug 18, 2011 at 7:59 pm

    I think your early point answers some of your later questions. In many, perhaps most, internet piracy cases, the “theft” reduces neither demand nor supply. Many people that would never buy Beyonce’s new record will pirate it to put the new single on a CD for their girlfriend. And, obviously, the consumption of a pirated version of Beyonce’s record does not reduce the supply of Beyonce records. Given that neither demand nor supply is reduced, it really doesn’t seem much like theft for the same reason that dubbing a mixtape for your friends didn’t seem like theft.

    Some piracy does reduce demand on the margin of course, but it’s really difficult to know how much. Record sales are down, but that can’t all be attributed to piracy. Some blame has to be reserved for satellite radio, Pandora, Spotify, streaming on a variety of sites including Myspace. The record industry had a captive market for a long time; they don’t anymore. Even absent piracy I think the industry would be in trouble, particularly the major labels.

    I’ve also read that concert attendance is up, which could make us think that “theft” is increasing demand by expanding audiences costlessly. This is in effect a redistribution from record labels to musicians, venue operators, promoters, etc.

  • 2 sheenyglass // Aug 18, 2011 at 8:01 pm

    I think the stealing analogy is an attempt to shift people’s moral intuitions so that we view copyright infringement with a comparable level of distaste for theft. That would theoretically reduce enforcement costs.

    Of course it won’t work, because its a bad analogy.

    A much better analogy would be trespass. Infringement does not deprive the holder of the use of the work, it deprives the holder of the exclusive right to deprive other people of the use of the work. Just as trespass deprives a landowner of the right to exclusive control of the land. Of course trespass is something that is far less taboo than theft, so that would not serve the purpose of the analogy, which is to align moral sentiment with the interest of copyright holder.

  • 3 Crosbie Fitch // Aug 19, 2011 at 7:06 am

    To really understand what’s going on you have to drop down to the rights of the issue.

    One either violates a right, or one infringes a privilege (disobeying the annulling of a right).

    Theft is the violation of an individual’s right to privacy (to exclude others from the objects they possess/spaces they inhabit), by invading it & removing a possession. However, invading someone’s privacy to make a copy of their diary and remove/communicate it without, is an equivalent violation.

    So, a burglar copying an author’s private manuscript could indeed be said to be stealing the author’s intellectual property – an act of IP theft (a violation of the author’s exclusive right to their writings).

    Naturally, once an author, Shakespeare say, has sold or given you a manuscript or copy thereof, you are at liberty to do whatever you want with your own possession, e.g. destroy it, or make and sell as many further copies as you fancy (as you might copy a basket or vase). There is no rights violation in doing so.

    In 1709 Queen Anne annulled this natural right of individuals to make & sell copies of their possessions (relating to literary/graphic/printed works). The privilege of ‘copyright’ was thus created (annulling the people’s right to copy, for some arbitrary period, e.g. 14 years from publication).

    To disobey this privilege of copyright is an infringement. It violates no right of the individual. On the contrary, it is a liberty and right that the individual is born with, but prohibited by law.

    So, applying ‘steal’ or ‘theft’ to copyright infringement is to attempt to elevate the assertion of a natural liberty contrary to privilege into a crime. Similarly, when people claim copyright is a right (as if a natural or human right, as opposed to a legislatively granted quasi-right) this is to pretend a right is being violated, rather than a privilege being infringed.

    This is why natural rights aren’t taught in school – they undermine the state’s interest in derogating from the people’s rights in their own interest (obviously with pretexts that privileges are in the people’s interest).

  • 4 TheMormegil // Aug 19, 2011 at 9:28 am

    Good article, good comments, especially Crosbie Fitch. Thanks.

  • 5 pop // Aug 19, 2011 at 12:10 pm

    If I may latch onto the store analogy for a moment, the MPAA is the equivalent of a security guard. Asking the security guard if the store needs a security guard, even when it’s uneconomical for the store owner to spend money on security, is guaranteed to get you a biased answer!

    It seems that trade groups like the MPAA are banking on having their funders panic and spend more money to fight piracy than they need to, thus enriching the trade groups in the process.

    In other words, the unnecessary theft analogies are not wholly directed at us, but to their employers, the artists: “They are stealing from you,” they say, “so you need to fight back. See, we are protecting your rights, so you need to give us more money to beat the pirates!”

    And at the end of the day, the employers really are the artists, because they foot the bill. The studios’ and the labels’ CEOs don’t care about what happens in the long-term. The CEOs think to themselves, “If I can preserve these state monopolies for just a little longer, I can continue to receive my $X million yearly salary and the next guy can deal with the new technology.”

    Thus the problems remain and probably won’t go away until the money completely dries out or we get another anti-trust case like in ’48.

  • 6 gregorylent // Aug 20, 2011 at 7:38 am

    as collective consciousness becomes understood, as it is recognized that there is only one mind, as mystics know, concepts of ipr and copyright will be seen to be simply barbaric …

    we are still in medieval times

  • 7 biomuse // Aug 22, 2011 at 4:13 pm

    I am truly sorry to say this but this conversation has largely been asinine.

    There is plainly a direct impact on someone whose art is copied without payment: that artist.

    No amount of abstraction of the issue changes the fact that an explicit contractual arrangement between a producer and consumer of art has been breached when art that is provided for sale is taken possession of without payment.

    The form of the art is irrelevant; pointing out its ephemeral nature merely exposes the moral obtuseness of the observer: the art gets made by a human being, who needs to eat and have a roof over their head.

    Certainly, innovation in distribution and licensing practices can and must be used to try to circumvent the damage done by societal acceptance of theft. That fact has no meaning other than that people are too crude to think of others when the fruits of their labors aren’t in solid material form.

    I say this as someone who has tried, and watched others try, to make a living from musical and other artistic output. Don’t try to undefine theft to me; it remains theft whether we listen to music via CDs, mp3 players or neural implants.

    As long as you know the expectations of the other party, you know your obligations and you know whether you’re breaching them or not. Whether you care or not is a test solely of your empathy and nothing else.

  • 8 Michael B. Sullivan // Aug 22, 2011 at 6:48 pm

    I think I might be engaging a troll, here, but what the hell:

    Biomuse: what is the “explicit contractual arrangement” that exists between me and an artist who has never presented me with any contract?

    I mean, that’s an awfully high bar you set there. An EXPLICIT contractual arrangement. Doesn’t the word “explicit” mean that you could, say, point to a contract? Are you positing that there can exist contracts that can bind me if I do not wish to enter into them and never sign them? How would I do that?

    By “explicit contractual arrangement,” did you mean, “implicit societal arrangement,” or “explicit legal arrangement”? Because those aren’t the same thing.

    As to the notion that there is “plainly” a “direct” impact on someone whose art is copied without payment: no, there isn’t.

    Point in time A. Artist A has no money of mine. I have no art of Artist A’s.

    Point in time B. Artist A has no money of mine. I have art of Artist A’s.

    Where is the “plain, direct” impact on Artist A? His condition seems entirely unchanged. By a “plain, direct” impact, do you mean that at point in time B, there is the loss of a potential future sale? If so, how on earth do you call that “plain” or “direct”? What if I assert that at point in time A, there was also no potential future sale for Artist A? If something is plain and direct, shouldn’t it not involve analyzing the motivations of people you don’t know?

    And finally, knowing the expectations of the other party: I expect you to Paypal me $100. You are now aware of my expectations. Are you going to breach those expectations? Can I create an explicit, contractual arrangement (not actually involving an explicit contract, much less one that you signed onto) that you give me $100, regardless of your feelings on the matter?

    I leave it to your empathy to paypal me $100. I note that I have so little faith in your empathy that I’m not even going to bother to provide enough documentation for you to successfully complete this transaction.

  • 9 sac à main // Aug 26, 2011 at 3:01 am

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  • 10 jre // Sep 7, 2011 at 5:47 pm

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  • 11 Ben A // Sep 8, 2011 at 11:58 am

    Why isn’t the analogy sneaking into a movie during the second week without having paid for a ticket. Hey, most of those shows are 50% empty. Where’s the problem.

    The problem, obviously, is that that wasn’t the deal on offer by the guy who runs the theatre or the guy who made the movie.

    I see lots of people trying to fight the ‘theft’ analogy. Ok, it’s not like stealing little billy’s insulin. Maybe it’s more like trespass. But in any case, it’s clearly a *dick move.*

    Someone created that art/software/music. Maybe they don’t have the kinds of rights on how that work is disposed as consequence that they would have if they had carved a statue. But they clearly should have more say in how it is disposed than some guy who’s claim is simply: “I want it.”

    It’s *amazing* to me that faced with authors/musicians/programmers saying ‘please don’t pirate my stuff’ people who had no hand in creating it, who have no actual *need* for it (this isn’t IP to an HIV med), are constructing all these arguments about why they aren’t behaving like dicks. Maybe you aren’t a thief if you pirate all your software/movies, but you are *a dick*.

  • 12 Chuck Baggett // Sep 10, 2011 at 11:41 am

    Where it says “one of the reasons it’s easy to get away with “it should be “easier” rather than “easy”.

  • 13 Sam // Sep 20, 2011 at 9:59 pm

    The thing is, Ben, people see lots of different levels and gray areas of “being a dick,” and most people are OK with some value of dickishness.

    I speed in traffic. A lot. I try to keep it within reasonable bounds (as defined by me, natch), but it’s still probably kind of a dick move. And yet when I see some guy blow by me at 100, I think, “Man, that guy is a dick!” It’s all relative.

    Same deal with piracy. Most people are starting find a dickishness equilibrium of who they’re willing to be a dick to, and who they’re not. A lot of people are willing to be a dick to major studios and people who have a crapton of money – they won’t claim they’re not being dicks to those people, they just don’t *care*. But those people won’t pirate an indie game, or a self-published novel, or whatever. I’ve seen these discussions drawn among people who pirate enthusiastically.

    Thus the quibble over theft. Stealing someone’s property is more of a dick move than trespassing in their yard.

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