Although this question is part of a long-standing debate in copyright law circles, I’ve picked up on this issue in light of recent comments emerging from the Obama administration, specifically by the current Vice President, Biden that “Piracy is flat, unadulterated theft“, and that “it should be dealt with accordingly.”
It is perhaps important to contextualise his statement in light of two specific events that I find particularly relevant:
1. The recent ‘Joint Strategic Plan to Combat Intellectual Property Theft’ statement delivered by the White House a few months ago (note the use of the word ‘theft’ in the title itself).
2. The ACTA negotiations, spearheaded by the US government, which while being masqueraded as a ‘trade agreement’ is in fact an intellectual property rights treaty designed to combat piracy.
WHY DISTINGUISH BETWEEN THE TWO?
Widespread public resentment surrounding the negotiation tactics as well as the subject matter of ACTA has been well documented, and frankly, heartening to watch, but I feel a need to stress on the importance of distinguishing ‘copyright infringement‘ from ‘theft’ to prevent any equivocation on the part of government authorities to sway public opinion. Although the debate appears to be restricted to American circles for now, I believe that Indian policy must not be influenced by such misnomers on the issue of combating piracy and general copyright infringement policy debates in the future, besides the fact that it has significant jurisprudential ramifications.
LEGAL BASIS FOR THE PROP THAT COPYRIGHT INFRINGEMENT IS NOT THEFT
DOWLING AND GROKSTER CASE LAW
In the case of Dowling v. United States (1958) the US Supreme Court concluded that the National Stolen Property Act did not extent to items which infringed copyright. In this case, Paul Dowling was invested in the business of selling bootleg recordings of Elvis Presley, but the court in pertinent part observed that:
“The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.”
Some have argued that the observation in the more recent case of MGM v. Grokster (2005) that “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft” discount the very argument. However, the basic legal difference between copyright infringement and theft is in no way negated by this observation.
NATURE OF RIGHTS
Perhaps the essence of the difference is in the nature of property rights itself, something that deserves closer jurisprudential analysis, which I will conveniently exclude from this post. However, I, like several others, argue that copyright infringement is not theft simply because one deprives its owner of its use completely, while in the case of infringement, there is no such deprivation. This flows from the ‘nature of rights’ issue, wherein copyright being a government granted monopoly right can continue to be exercised by the copyright/monopoly holder in spite of infringement, while in the case of, for example, theft of a watch, one is deprived of the ability to read time, sell or rent out the watch.
A similar argument has been advanced on the issue of music file-sharing, and I strongly agree with the view that merely because a particular song has been downloaded illegally, it does not directly account for a lost sale and therefore revenue loss to the recording label. Such a position presupposes that if that song has not been pirated, it would have resulted in a legal purchase of the same track by the individual, which is an incongruous presumption. No wonder the losses claimed by the entertainment industry have been dismissed as grossly inflated and inaccurate. Infringement of that track does not prevent future sale of the same track, so it is really correct to call it ‘theft’?
LEGAL TERMINOLOGY v. COLLOQUIAL LANGUAGE
This argument has been used to support the view that ultimately, actual legal terminology is unimportant, and if they are used interchangeably in the colloquial sense, then its use in any debate is perfectly understandable. Terry Hart in his blog argues that emphasising on the legal meaning of words ‘accomplishes little more than arguing for the sake of argument,’ and others argue that eventually, it is a sense of perception and feeling – people will be better able to understand the meaning of copyright infringement by equating the calling it ‘content theft’.
However, as I stated in the introductory paragraph, the very problem is that in using colloquial terms, by disregarding their legal meanings and implications, it is possible that the masses will be presented with a particularly grim view of infringement. The term ‘theft’ carries with it significant ethical connotations, is regarded as moral turpitude, and involves considerable value-judgement. While this may not seem as much to many, from a public policy angle and certainly a legalistic approach, such equation is simply preposterous.
I’ve noticed some specific cases where copyright infringement is presented as theft and while in some cases it is understandable, in others it is just not.
1. Content Creators: Equating copyright infringement with theft for a content creator arguably stems from emotional considerations – the feeling that they are being deprived of something that belongs exclusively to them. To some extent, their anguish is understandable, given the serious impact infringement has on creators directly. But equating the two is simply ignoring the real problem and preventing viable solutions to tackle the problem from being found.
2. Anti-piracy groups: The biggest culprits on this point are anti-piracy groups who have an obvious interest in equating the two (see above on inflated revenue loss figures) Backed by political groups and vice versa, their propaganda efforts have continued on and on. Remember the original DVDs we bought with the anti-piracy clip and voice-over saying:
“You wouldn’t steal a car. You wouldn’t steal a handbag. You wouldn’t steal a mobile phone. You wouldn’t steal a DVD. Downloading pirated films is stealing. Stealing Is Against The Law… Piracy: It’s a crime.”
Fortunately, their propaganda efforts have been criticised by most people and have been the butt of several jokes. However, this does not mean that their ads/campaigns/statements will have no effect whatsoever on the common man. Some people are easily brainwashed, indifferent or just too lazy to process the information and decide for themselves. So there is always a danger that in the minds of an average man, copyright infringement is in fact, theft.
3. Educational information: I have noticed that in order to discourage infringement of copyright, it has often been equated with theft, perhaps to increase stigma attached to the act. But surely there are other ways to discourage an unwanted act than by equating two legally distinct crimes. Do we really need to equate two different crimes just to make the common man understand the implications better because there exists a possible analogy?
Again, I reiterate that it is a not a mere semantic issue. If piracy is to be tackled effectively, in India or elsewhere, creators, anti-piracy groups and politicians must understand that infringement and theft are conceptually, legally and in terms of socio-economic effects, completely different from one another. Combating the two require distinct processes, and only when the difference in the two is properly appreciated and presented to the public can policy formulation effectively take place.
Thus, it is my humble opinion that simply put, copyright is not a property right; it is not a right of ownership of property in the ordinary sense; it is a privilege, and it is certainly not absolute. For this and the reasons above, I find that copyright infringement is not theft and engaging in a rhetoric that equates the two, deeply damages the possibility of understanding the problem of infringement and finding suitable solutions to it.