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Real Intellectual Property Theft

December 19th, 2011 · 10 Comments

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?

Tags: Law · Tech and Tech Policy



10 responses so far ↓

  • 1 Mahesh Paolini-Subramanya // Dec 19, 2011 at 6:48 pm

    “deprives the victim of something they were entitled to use and enjoy”.
    What about *rarity*? It may be meta, but we humans tend to prize rarity. The act of copyright infringement (“theft”, whatever) *has* deprived me of the rarity value of the item that I have.
    I suspect there are other equivalent things happening (control over the things that I have, etc.)

  • 2 Devinder Gupta // Dec 20, 2011 at 7:31 am

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  • 3 Copyright Theft by Copyright Holders » Sapien Games // Dec 20, 2011 at 1:40 pm

    […] Sanches argues that the extension of copyrights out another 20 years – retroactively – is more of a […]

  • 4 pmc // Dec 20, 2011 at 11:56 pm

    MPA has created a ‘best practices’ roadmap that monitors university computer network usage as well as encouraged MPA member company executives to speak to university students in many countries about the importance of copyright. The MPA is also an author of a booklet that gives warning about the risks of peer-to-peer file sharing and this booklet is being distributed to young people all over the world. Read the article here. http://www.mirandah.com/en/categories/item/30-hollywood-and-bollywood-join-forces-against-piracy.html

  • 5 ramin // Dec 21, 2011 at 11:16 pm

    Intelectual property theft is a crime

  • 6 Censoring the Internet Won't Protect Intellectual Property - Forbes // Dec 27, 2011 at 5:13 pm

    […] a long response to Julian Sanchez, Freddie dismisses the current batch as “pro-piracy” and lays down a critique of the […]

  • 7 Censoring the Internet Won’t Protect Intellectual Property | Quotes About People // Dec 28, 2011 at 2:24 am

    […] a long response to Julian Sanchez, Freddie dismisses the current batch as “pro-piracy” and lays down a critique of the […]

  • 8 sjwhjw // Jan 2, 2012 at 12:25 am

    So what happens if you NEVER WOULD HAVE BOUGHT THE PRODUCT IN THE FIRST PLACE? Do you deprive the author any profit? I am not going to pay $500 for Adobe Premiere (in no universe, will I EVER pay that much), and personally I wouldn’t pay 10cents for a Katy Perry album.

    Of course we all have a moral obligation to support artists and creators, I have no moral qualms in reaping in the non-zero sum game that is infinitely-reproducible goods. The difficult part is being morally upstanding enough to admit to yourself when you would actually pay for the product. But I have no problems STEALING these infinitely reproducible goods under certain circumstances as I’m sure the kid in India that has his $3000 collection of Physics textbook pdfs or the grandmother whose grandkid put some *gasp* illegal software on her computer to make a video for her daughter, or the bittorrent pirate who does his 30 Rock watching on free hulu decided to download the season (AND WOULD NEVER HAVE PAID FOR THE PROGRAMMING UNDER ANY UNIVERSE).

    Yes this is a dangerous moral game and we have a moral OBLIGATION to help out the creators, but that does not mean that that this ‘stealing’ is always wrong. Excuse me, I’m going to go do some SEALING while you all climb down off your high-horse.

  • 9 Emily // Jun 2, 2013 at 7:36 pm

    It’s impressive that you are getting thoughts from this piece of writing as well as from our argument made at this time.

  • 10 Dragon // Dec 16, 2016 at 6:32 pm

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