>you're not stealing a thing when you copy it, but you are stealing the utility that it confers [...] that you would otherwise have had to pay for. You're taking value and not compensating for it, aka theft.

I think our metaphors of property and theft are stretched to the breaking limit with digital content. When social rules first appeared, it was clearly wrong if Fred Flintstone made himself an awesome hat and Barney Rubble took it away; but not so clear if Barney just copied the exact design and made his own. Copyright and patents only appeared in the 18th century. They extended the notion of property into a sphere where it hadn't applied in the previous millenia. They also relied on the fact that, at the time, books and technical drawings couldn't be reproduced by the average person.

Now here we are in a new millenium, with intellectual content trivially easy to duplicate, and we try to stretch some already strained notions much further. I think we need a paradigm change in this matter (and there are some interesting attempts going on out there). The RIAA's version of morality is not handed down from Heaven, you know: its rectitude is at least as questionable as its practicality.

> but not so clear if Barney just copied the exact design and made his own

Actually, I think it was quite clearly a good thing if Barney made his own copy and they both had dry heads.

This remains true until everyone decides it's better for Fred to spend all his time designing hats rather than hunting, and we need a way to be sure to feed Fred. For this to happen we need technology to advance to the point where we have a surplus of the more basic needs, but also the cost of producing hats has to be cheap compared to the cost of designing hats. Otherwise a significant part of Fred's value is producing the hats, which is something he can easily get food for since it would require force to coerce him to produce a hat, while it requires no force to copy a hat's design.

>This remains true until everyone decides it's better for Fred to spend all his time designing hats rather than hunting

Specialization of labor became widespread around 3500BC, with the appearance of civilization. After that point, potters, goldsmiths, tailors etc. kept on freely copying designs from each other and "got away" with it for over 5000 years. (In times when punishment for theft was often physical mutilation.) If there was something obviously immoral about "stealing" intellectual "property", someone would have noticed, I think.

Potters, goldsmiths, tailors are all creating things, either solely or in addition to designing them. Their primary output is one of creation of a physical product, not of ideas. It's not until the means of production became very cheap that there was sufficient motivation to control the ideas themselves.

And I'm certainly not making any argument that there is anything immoral about "stealing" intellectual "property", I do not believe that is the case.

Good, I'm glad we agree about the main point. I don't even see that much of a difference between the creation of ideas and other forms of creation that it needs to be protected by costly monopolies. Writers, artists and philosophers have also flourished since the dawn of history without raising much ruckus about idea theft.

Thomas Jefferson's take on the subject of intellectual property is interesting to say the least and has a nice clarity to it;

"It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs.

But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors.

It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance.

By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it.

Stable ownership is the gift of social law, and is given late in the progress of society.

It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

Inventions then cannot, in nature, be a subject of property.

Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.

Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea.

In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices."

from, The Letters of Thomas Jefferson: 1743-1826

http://odur.let.rug.nl/usa/P/tj3/writings/brf/jefl220.htm

> Copyright and patents only appeared in the 18th century.

I find the argument that copyright and patents appear only recently in historical terms unconvincing. Following that line of reasoning shoudln't we be even more wary of e.g. universal suffrage and civil rights laws?

Moreover, that these laws occured relatively late in human history is IMO unsurprising, even to be expected given the state of human evolution. At the risk dilettantism, here's what Wikipedia has to say about the history of "copyright":

> Copyright was invented after the advent of the printing press and with wider public literacy.

Whether or not one agrees with copyright law, I would argue that the relevant laws followed technological innovations at some lag -- and did not just appear randomly or as a result of some kind of conspiracy.

Wikipedia puts the original date for Patents at 500BC, but if you read a few sentences further the industrial revolution appears. So again, the argument applies: effort expended on legal action followed effort expended on technological process, at some lag.

And even if we look before the industrial revolution, and before the printing press, history provides us with a wealth of examples of groups of individuals trying to preserve or protect their "edge" in crafts (often acquired through hard work and ingenuity, sometimes, through fortune), techniques, or otherwise "patentable" methods, with often far higher consequences than what are being proposed currently. (Though, admittedly, that means nothing.) I'm thinking for example of guilds of various forms throughout Mideaval Europe, as well as China. My knowledge in this area is not that extensive, but there are a few colourful examples in "The Rise and Decline of Nations" by Mancur Olson, e.g. IIRC one guild in China collectively biting another master to death for taking on too many apprentices (copies!) for fashioning gold leaf -- gold leaf for the king (no less), whose protection was worth nothing to him in the face of the guild's desire to protect its "IP".

So I think a case can be made that IP of some form has been around for a long, long time; it's not some accident brought about by a single, poorly-written law. It's not a relatively recent, arcane (thus exploitable) area of justice. Mankind has been grappling with these issues, these tradeoffs, for as long as human progress has existed, and will presumably continue to do so at each "singularity". It's right and proper that we have this debate; it's right and proper that the creative industries demand a say in new technologies, insofar as those technologies depend on the transmission of creative works to be interesting and demanded.

> The RIAA's version of morality is not handed down from Heaven, you know: its rectitude is at least as questionable as its practicality.

Agreed, sadly, none in the filesharing camp has offered anything even remotely resembling morality. You tend to see something along the lines of "I'm not talking about morality, I'm just giving you reality etc" (followed by "want some of my cash? dance, bitch!").

> Agreed, sadly, none in the filesharing camp has offered anything even remotely resembling morality. You tend to see something along the lines of "I'm not talking about morality, I'm just giving you reality etc" (followed by "want some of my cash? dance, bitch!").

How about this? Without copyright we could make the collective cultural works of mankind instantly accessible to every internet-connected person in the world, all the time, for free. Every book, every film, every recording. Would this be a good thing or do you think we should shutdown libraries as well?

If you think I'm being hyperbolic read-up on Google Books and Google Library. It's depressing the damage these laws have already done.

> Following that line of reasoning shoudln't we be even more wary of e.g. universal suffrage and civil rights laws?

Far from me the idea that "younger" laws and institutions are suspect. I was just arguing that (unauthorized) reproduction of ideas and designs has been around for a long time, without being perceived as immoral. As you show, various interest groups have sometimes tried, and even succeeded, in legally banning certain forms of it. But it was never seriously accepted that duplication is somehow morally equivalent to theft.

This particular trained lawyer wishes that we could never talk about whether copyright infringement is stealing, ever again. It's 100% legally irrelevant.

There are laws against stealing physical property. Copyright infringement doesn't violate them. There are laws against copyright infringement. Copyright infringement does violate them. The question of whether "stealing" is good shorthand for "copyright infringement" is a total waste of time. The real point is whether the copyright infringement laws are good laws.

In fact, let's get technical about it. Here's what's going on under the hood. Both areas of law relate to the idea of "alienable rights" -- stuff that only you are entitled to do, that you can sell or give away so other people can do.[1] For example, I "own" my bike. That means I have a bunch of rights over it. I can exclude anyone else from riding it. I can destroy it. I can sell the right to destroy it. I can sell the right to ride it on alternate Thursdays. I can sell the right to sell the right to ride it. Or I can sell the whole bike so someone else gets the whole bundle of rights. Lawyers, with a flair for the dramatic, analogize this set of rights over the bike to a "bundle of sticks" that can be separated or kept together.

Example 2: I rent an apartment. My landlord "owns" the property, but she's sold me the temporary, exclusive right to decide who can come on it and who can't. I can let neighborhood kids run through the backyard or tell them to take off. But I can't charge other people to sleep here -- she hasn't sold me that right.

Example 3: I "own" this comment. I can sell or give away the right to display it at ycombinator.com (in fact, that's what I'll effectively do when I click "reply"). I can sell the right to print it worldwide in any medium. I can sell the right to make a movie adaptation. I can sell the right to distribute it without my name attached -- or with your name attached. Or I can sell the whole thing and let someone else dispose of all these rights ...

So when we talk stealing and infringement, we're talking about violations of someone else's alienable rights. When you take away all of my alienable rights over my bike, that's called stealing. When you take them temporarily, it's "wrongful appropriation." When you take my right to exclude people from my property, that's called trespass. When you take my right to decide who rents my bike, it's theft of services. When you take my right to decide where this comment gets published, it's copyright infringement.

So at this point the copyright debate becomes a little clearer, right? The question is which alienable rights should attach to instantiated ideas (intellectual property), and how long should each right last, and what should be the consequences for infringing each right, and can we give artists something that works as well for them as these exclusive alienable rights, and so on. When people say "copyright infringement is stealing," it's intuitive, emotional shorthand for "the same arguments that justify the rights attached to physical property also justify the rights attached to instantiated ideas." When people say "nuh uh," that's shorthand for "nuh uh."

So the answer to whether copyright infringement is stealing is that there's a bunch of reasons we attach various rights to physical property, and there's a bunch of reasons we attach various rights to IP, and some rights and reasons apply to both and some reasons apply to just one or the other. Which is to say, it's a pointless question. The analogy is kind of right and kind of wrong, in a totally unhelpful way. The useful question is whether the particular rights bundled into "copyright" are the best way to do the things we're trying to do.

Seriously, when I think about it, I can't believe how many hours have been spent on the internet debating this pointless question. The next time you're tempted to start, just link to this comment instead. Then take that time to make something. Anything you like. Even a LOLcat or a drawing in MSPaint. Put it in the public domain. It'll be better for the world.

--

[1] You know how the Declaration of Independence says we're all endowed with "inalienable" rights? That's inalienable as in the opposite of the "alienable" rights I discussed above. That's why you can't sell yourself into slavery -- your right to liberty isn't alienable.

The More You Know.

There's an important distinction in the categorisation of theft as [primarily] criminal and copyright infringement as [primarily] tortuous which I feel you've simply ignored.

The category distinction is vital IMO as it is right that there is greater protection under the law against someone who steals your belongings vs someone who merely duplicates them.

If one considers that right to free enjoyment of ones personal property is oft considered a basic human right then it can readily be seen why denying someone ownership is considered to be a greater wrong, generally, that denying someone sole rights to reproduce a particular work.

Moreover the level at which the state intervenes has become twisted (at least in the UK) wherein the state is beginning to get involved (under USA's pressure it seems) in very low value tortfeasance on behalf of large corporations whilst at the same time ignoring rather higher value crimes (such as theft) against individuals. Indeed, though I'm not really on top of this one [perhaps you can elucidate], it seems that more copyright infringement is being treated in the USA as criminal than is elsewhere.

In short whilst, yes, copyright infringement is still illegal even if it's not criminal I don't agree that you can claim all denial of alienable rights is equal, or even nearly so, which appears to be the thrust of your argument.

--

"or with your name attached" is only true with provisos; there are several laws under which I could object to your passing off (in the common sense) of this work as mine which would prevent you from legally selling the right to do so.

To be clear: the fact that theft and copyright infringement both relate to interference with alienable rights does not mean that they should be treated the same way. A good legal system takes into account that different kinds of infringement on different kinds of rights should be handled differently.

Here's a cool example that includes both civil law and criminal law: in America, if you trespass on someone's property without being told not to, that's a civil violation, and the only thing the owner can do is sue you for any actual damage you caused. But if you trespass after they tell you not to, it's also a criminal violation and they can ask the state to prosecute you. That's why you see warning signs saying "no trespassing - violators will be prosecuted." It skips the first step.

Point being, sometimes the legal system even treats infringement of the same alienable right under entirely separate branches of law, depending how many times you've done it. And with trespass, it's calibrated pretty well.

Copyright in America is calibrated terribly. It's mostly civil rather than criminal (you can tell because it's "RIAA vs." instead of "United States vs."). But unlike most civil suits where you're basically compensated in rough proportion to the harm you suffered, there's this incredibly punitive fine of up to $150,000 for each mp3, which is collected by the civil party suing rather than the government. So it looks a lot like criminal enforcement. It's grievously weird.

(Actually, there is an analogous law I can think of, the Clean Water Act. Under that law any citizen who lives in a polluted area can sue a polluter and recover a large bounty for winning the case, even if the actual damages that citizen suffered are trivial. This basically offloads the work of enforcing pollution laws from the government to private citizens, which presumably made the Clean Water Act cheap enough to pass. And that Act has been incredibly successful -- we've gone from like 2/3 of America's waterways being impaired to 1/3. So maybe the copyright laws are just the right tool for the wrong job?)

Anyway! What's going on is: (1) copyright laws are all screwed up because only one side is at the bargaining table, and that side is panicking; (2) the internet makes copyright laws impossible to enforce, while also (3) greatly increasing the societal cost of copyright laws in terms of lost value to consumers. So we need a new deal. The better you understand the nuts and bolts, the better you can take part in crafting it.

>"Copyright in America is calibrated terribly. It's mostly civil rather than criminal"

We get a distorted view based on things like the current extradition of a British man to the USA for having a listings site with links to copyright material. And the whole Kim Dotcom business operated at the international level by USA Government's agencies.

Thanks for the technical writeup. Amusingly it really has embedded in it the very basis of the argument people are making when they say copyright isn't stealing. For example, no one would try to start an anti-trespassing campaign on grounds that it is stealing, they would be laughed at mercilessly. No one would try to start an anti-vandalism campaign on grounds of it being stealing. No one would start an anti-noise campaign on it being stealing. Yet all of these take away alienable rights, and are therefore close enough to stealing by your argument to justify it.

No the argument people make when they differentiate between copyright infringement and stealing is that perhaps the copyright bundle of alienable rights doesn't even make sense. They are saying this whole thing is talked about as theft but the fundamental situation is different, lets get the emotional word "steal" out of the picture. Instead lets call it what it is, and make a note of why these are different and why the rights granted and defended are perhaps outmoded and out-dated.

> lets get the emotional word "steal" out of the picture. Instead lets call it what it is, and make a note of why these are different and why the rights granted and defended are perhaps outmoded and out-dated.

I totally agree. That's the real conversation to have.

The only thing I would add is to be careful not to adopt the indefensible position that infringement is nothing like stealing. Some of the reasons we protect physical property do apply to copyright. We frequently defend physical property not because stealing deprives the owner of anything or even costs them money, but because stealing interferes with the economic model where you invest in creating something and charge for transferring your rights over it.

For example, consider stealing a newspaper from one of those coin-op machines. The paper was going to be pulped anyway, and you weren't going to buy it anyway. So you actually saved the publisher money. But it would sound absurd to most people to suggest that laws against stealing from newspaper vending machines should be abolished. Because the point isn't that you're depriving the publisher of the ability to read that particular copy of the paper themselves. The point is that our economic model depends on their ability to meter access to copies of the stuff they produce.

I hate these metaphors cause there's always a hundred reasons they don't line up. So don't look for the distinctions, just take it for the point that sometimes theft laws and copyright are protecting approximately similar interests. That doesn't mean copyright laws are a good idea -- it can be totally rational to protect papers in vending machines without protecting their online equivalent. It just means that you have to not trip yourself up at the start of the debate by suggesting that infringement and theft are nothing alike, or that copyright serves no purpose. It serves a purpose. It accomplishes useful stuff. It also costs our society a lot. The burden's on us to convince people we have a better plan to accomplish useful stuff with less cost.

Thank you for a very clear, informative post.

I've thought about this a fair amount, and you still managed to explain it in a way that made it new to me.

You do credit to lawyerkind.

Problem of course is that this is fundamentally not a legal discussion but a philosophical one.

It doesn't really matter wether it's 100% legally irrelevant. It's 100% philosophically relevant.

No. Copyright is always fundamentally a legal discussion. Everyday copying doesn't have deep ethical ramifications, because the most everyday copying we do is called 'memory' and remembering something is almost never unethical. And ethics is the only branch of philosophy which really has a voice in the matter -- copyright is not epistemic or ontological, etc. I would go so far as to say that the utter absence of a moral intuition against copying is why the vast majority of people do it and don't have a problem with it.

The people who do seem to be responding to some sort of intuition of this form: "a free lunch is unfair." It's not, as we'd say, unfair to you, and not even to the copyright holders necessarily, but something about a free lunch just looks suspicious. So the first comment in this thread says that whether Joe Blow's actions are unfair "comes down to how much Joe Blow WOULD have paid for avatar.mp4." You saw that he would have paid for X but instead he got it for free, and you said "man, there's something unfair here."

It may sometimes be useful to regulate things which our ethical intuitions don't speak very strongly about. Our ethical intuitions don't speak very strongly about living in a messy room; a boarding school might nonetheless demand that its students keep their rooms clean. (I have heard a cute theory that we lack this intuition because our primate ancestors lived in trees and therefore literally did not have to handle their own crap.) Seatbelt laws, licensing drivers, and regulating CO2 emissions would also fit into the same category. So "who has the right to copy this book?" can still be a valid question, even when that book is a .pdf and our relevant moral intuitions instead say, "hey, I'm just giving the book I bought to a friend -- that's within my rights as a person who bought the book." That moral intuition, even if you have it, doesn't necessarily obviate the potential social value of that law.

Part of why I love the law is that every legal discussion is also a philosophical discussion. Should killing someone be legal sometimes? Should pornography be illegal sometimes? Where does my right to privacy win out over society's right to protect itself from crime? When is it OK to back out of a contract? Should my quality of life suffer after the divorce, if you were making the money while I took care of the kids? Is there a right for a child-rape defendant to sit across from the child while she testifies and stare her in the face? Can we outlaw gay marriage just because some people don't like the idea, or do those people have to prove some kind of actual harm?

In all kinds of stupid little cases, every day, lawyers hammer out what kind of people we want to be -- how our society wants to instantiate our morality. It's glorious.

Anyway, the copyright question is partly the legal question of what people should be allowed to do, and partly the moral question of what laws it's OK to break when there's no real prospect of enforcement. But it's all about laws.

Copyright is but the idea of copyright isn't.

There is no idea of copyright distinct from copyright. o_O.

There is a definition of copyright and the question is whether that definition can be said to apply to digital.

I'm not sure you understand the context -- for that matter, your terse replies make it hard to know what you think you're saying. But to respond anyways: there is a legal definition of the idea of copyright and the question is pretty well-settled whether that definition applies to digital works. There is no philosophical definition of copyright, for the reasons that I said above -- it's hard to regard it as an issue in philosophy.

I understand the context perfectly.

To claim that the idea of copyright is pretty well-settled when it comes to digital works just illustrate the problem here.

It's not well-settled cause there isn't anything to settle as such. This is not a discussion about right or wrong but about whether it should apply to digital work.

Even a discussion of property on physical things aren't a settled discussion. There are no conclusion only a decision.

There are a number of indicators hinting that it's far from settled when it comes to digital. Among other things the very fact that we are debating it and the very fact that many people don't seem to have a problem downloading things and don't consider it wrong.

And not just because they are cheap. But because the very fundamental idea of demand and supply, the idea of owning ideas that are themselves byproducts of others ideas is way way way too complex to just say. Done deal. There is something more fundamental in play here.

Perhaps for you, but not for me and many others.

Thanks for the legal analysis, always a welcome addition here.

> The useful question is whether the particular rights bundled into "copyright" are the best way to do the things we're trying to do.

Yes, the ultimate goal is to reform that, but I think the argument needs to be that there is a more optimal way of codifying copyright for everyone - content creators, consumers, and 'mashuppers' - that can create more abundance, dynamism, an opportunity for all parties.

But instead the prevailing argument seems to essentially be one of technological entitlement - that taking something for nothing without the consent of the creator/rights owner, at least as defined under current laws, has no consequence for the rights owner, and that it should be legal to do simply because it can be done.

No, it should be legal to do because there is ultimately more utility and value in it for everyone including the rights owners than under the old regime, so much so that they do it willingly like some are starting to experiment with now (NIN, Louis CK, etc).

That's the argument that must and can ultimately convince society, government, and Hollywood (or at least drag the latter to it kicking and screaming) that there is a more optimal copyright system. Spurious appeals to neo-entitlement will just fail there.

I wish I could upvote this more.

Thank you.

So we should be able to copy mobile apps for free too? What about piracy of luxury goods, that's ok too right because hey they're just copying?