Copyright Wars: Theft v. Infringement

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Recently my Twitter feed has filled up with this debate, with one side claiming copyright as theft, the other claiming it is infringement. I am writing this piece not to take sides, but to put forth the actual law of the land regarding this debate. A scholar of law, having nearly gone to law school to study Intellectual Property Law, and whose thesis at the undergraduate level was a report on issues with 21st Century Approaches to Intellectual Property, I wanted to provide an non-hysterical academic approach to help people understand this subject.

Editors Note: I do not pirate, nor do I explicitly condone piracy. I own my entire library of music, movies and also pay for my own Netflix and HBO/Showtime subscriptions.

1. Theft or Infringement?

If you’ve rented or bought a DVD in the past 10 years you are probably now familiar with the MPAA ad that plays at the outset of your DVD. It’s an ad cut to an action movie score, proposing the argument that you wouldn’t steal (all theses things) so why would you steal a movie? “Downloading is theft” they say at the end of the ad, which you can view here.

Here’s the problem with that claim, it is entirely wrong as a matter of law. In 1985, the United States Supreme Court sought to answer this question, “theft or infringement.”

A man by the name of Dowling transported goods that were reprinted without the copyright holders permission across state lines, specifically, bootleg phonorecords (which just as easily could have been bootleg movies, CDs or any other form of copyrightable entertainment fare). He was caught and charged with violating Title 18 U.S.C. 2314 which is defined as “transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.” While convicted by the lower courts, Dowling and his team of attorneys contested that violating copyright wasn’t actually theft, since Dowling did not deprive the owners of any physical copy.

The highest court in the land agreed in its decision in Dolwing v. the U.S. 473, U.S. 207 (1985), it’s majority opinion has since become law of the land. Here’s some of the majority opinion and it’s definition of theft v. infringement, specifically why infringement is NOT theft:

It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: “`Anyone who violates any of the exclusive rights of the copyright owner,’ that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.‘ [17 U.S.C.] 501(a).” Sony Corp., supra, at 433. There is no dispute in this case that Dowling’s unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another’s protected work comfortably fits the terms associated with physical removal employed by 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful [473 U.S. 207, 218]   appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. As a result, it fits but awkwardly with the language Congress chose – “stolen, converted or taken by fraud” – to describe the sorts of goods whose interstate shipment 2314 makes criminal. 8 “And, when interpreting a criminal statute that does not explicitly reach the conduct in question, we are reluctant to base an expansive reading on inferences drawn from subjective and variable `understandings.'” Williams v. United States, 458 U.S., at 286 .

On the intent of Copyright Law:

[t]his protection has never accorded the copyright owner complete control over all possible uses of his work.

So there you have it, the law of the land as it stands is that copyright violations are not theft, but infringement. So the MPAA cannot make the claim that it is theft, for that would be a legal fiction that stands at odds with what the highest court in the land has held as a matter of jurisprudence. Additionally, the intent of copyright law illustrates a separate concept of property which is naturally defined by limits and so cannot be seen as traditional property but rather the temporary grant of a license. While it is no doubt illegal to violate the terms of that license, namely not obtaining the uses of it, it is not theft, but unlawful copying without prior consent.

2. In Case You Still Find Disagreement With the Law, Why is it Still Not Theft?

In the now notorious Expendables 3 case, Avi Lerner, the films producer, has sought to sue for the losses encountered by his film as a result of piracy. If you’re wondering how exactly you calculate the losses from this film, you’re not alone. Avi claims that his film lost $250 million as a result of people downloading his film and not going to see it in theaters. The problem with this logic is that is rests entirely on an assumption, namely that those who would download the film would have paid to see it had the film not been made available digitally for free. You cannot assign a concrete dollar amount based on a logical fallacy like an assumption, it would not nor should not stand in a court of law. For what it is worth, because of said assumptions on calculating loss, the London School of Economics in an impartial peer reviewed study found that the industry routinely exaggerates its losses from piracy: here.

Lets look at it in strict logic. If I do not pay for a product, that does not mean I have in fact stolen that product. For example, I go into a store and obtain something without paying. Logically, P -> Q, where P = Does not Pay, Q = Obtains item. The only thing this logic illustrates is that I did not pay for the item. “But you stole it!” That would be an assumption, I could have borrowed it with permission, I could have gotten it for free, I could have bought another item and got that as a gift.

Now how does this logic apply to the piracy debate? Someone posts a copyrighted song on YouTube. I look up that song and listen to it, even though the artist did not give express permission for that user to redistribute the song on their page. I essentially got to listen to the song for free. Did I steal anything? No, I simply did not pay for it.

Now you may still be screaming “theft” but this is where infringement actually comes back into play. The person who ripped that song and posted it to their YouTube page is in violation of breaking the law. However, they did not steal the song. The song is still available for purchase on iTunes, Amazon and a litany of other legal avenues. The song was merely redistributed without consent. The poster of that song failed to pay to post that song. That is not theft, that is infringement of the users copyright. That is the failure to pay a middleman to redistribute the work.

3. The Conclusion, It’s About the Artist!

“But it’s about the artists, this all hurts the artist!” The sad thing is, artists don’t own their copyright. In the instances where conglomerates have taken legal action against torrent sites and individual infringers, most of that money is taken up by legal fees and goes back into the coffers of the copyright holders. The artists receive comparatively little money from any settlements (provided settlements even occur, as often times the pirates are actually insolvent).

Even Chris Dodd of the MPAA himself said before Congress earlier this year that fighting piracy through court battles and excessive fines was not going to solve the problem. I agree with Mr. Dodd, and appreciate his confession.  Ultimately all of this legal crusading does nothing but enrich conglomerates, all the while failing to actually stymie piracy. Providing works in more formats, at appropriate price points and with less restrictions by geography and exclusivity would be a step in the right direction.

The problem with combating piracy in the most effective way is that is stands at odds with how these media conglomerates and copyright holders actually make money. By restricting content and making exclusive agreements with distributors, they rake in billions. In fact, since the decline of traditional DVD sales and a further decline in North American box office, a sizable percentage of Hollywood’s money is coming from licensing and exclusivity contracts.

At the end of the day, artists aren’t in control of their work. Additionally, copyright is now being lobbied into a perpetual property right in conflict with its original intentions, which was a temporary license of the redistribution of a copyrighted work. Happy Birthday is still not in the public domain, nor is Mickey Mouse. Why? Because conglomerates want to keep stretching the term of their copyright so as to continue to make money through licensing and ownership of the work.

It’s really simple, Hollywood and others can either continue to rake in billions through licensing and exclusivity contracts, or they can make work more widely available to combat piracy while having less exclusivity contracts. Someone who wants to watch Orange is the New Black but can’t because it’s only available on Netflix and Netflix isn’t available in their country will not wait, they will pirate – and they have, it’s among the most pirated shows. It’s a global cultural marketplace now, geoblocks and content restriction, and drawn own windows of distribution do not make sense in the 21st Century. So either Hollywood can find a way to cater to demand or constantly be behind the 8-ball.

Hollywood cannot have its cake and eat it too. We need to find a way to make IP law and copyright work for both the artist and the company that funds and distributes the artist’s work. Currently too much is in favor of the conglomerate. This has wide spread consumer choice ramifications that also tends to increase piracy in the near term. Fact is, you cannot eradicate piracy any more than you can poverty, or unemployment – or what in economics is referred to as “the natural level,” in that there will always be some natural level of piracy the same way there will always be some natural level of poverty, unemployment or even illicit drug trade. If you shut down Silk Road today, people will buy pot from another online vendor tomorrow. If you shut down Pirate Bay today, another Pirate Bay will pop up tomorrow.

This whole MPAA crusade is The War on Drugs on steroids (pardon the pun). It DOES NOT work. The only thing that will work is embracing innovation, reforming copyright law, making content widely available at reasonable price points and working with artists to assure they are getting a fair share of the work they essentially created. Unfortunately, we cannot have that debate without first understanding the difference between infringement and theft, and with Hollywood’s fingers still firmly in its ears, I don’t know when we ever will.