It is not theft!

I said it before, and I’ll say it again: downloading copyrighted content without author’s consent is not theft. It’s copyright infringement! It doesn’t make it any less illegal, but it is a very different crime. Please get it right, otherwise any discussion about copyright is impossible!

Claiming that infringing copyright can be equated to theft is essentially building up a straw man argument. After all, everyone knows that theft is a relatively serious crime and one that affects the victim in a very real way. Infringement is very different crime which really requires a different set of laws and a different mindset. If you try to convince people that file sharing is harmful while basing your argument on claiming it is “like theft” you are simply doing it wrong. You are simply building a straw man, and toppling it with impeccable logic but none of that applies to copyright. Unless we change the law to treat intellectual property the same way we treat physical property, your argument is flawed.

It is really simple to explain, but most people on the other side of the fence (pro copyright) just don’t get it. When you download copyrighted content you are simply violating someone else’s exclusive distribution right. There are many real world examples people use to illustrate how infringement works, but I like this one:

Imagine there is a big game in the local ball park. Bunch of local kids decide to watch the game by climbing a tree growing on public property right outside the fence. They get caught. Should they be charged for theft? Do you think their crime is equal to for example that of a pickpocket who swiped game tickets from an unsuspecting sports fan?

They were able to watch the game because the tree was there to provide them with a good viewing platform. If it wasn’t there, would all of them buy tickets? Could you with any degree of confidence estimate how much money each of them would spend on tickets, hot dogs and refreshments?

If you haven’t figured this analogy yet, let me break it down for you. The ball park is the official distribution channel for the multimedia content. The ballpark owner is RIAA, MPAA and etc. The sports team playing inside are the artists. The kids are “the pirates”, and the tree symbolizes the internet. Downloading movies and music is like climbing that tree and watching the game for free. It’s not right naturally. You ought to buy a ticket to watch the game – so it can be said that the owner didn’t earn any money on you. But it can’t be said he actually lost any money because no one can prove whether or not you would actually buy a ticket if the tree was not there.

You Wouldn't Steal a Car

Infringement has nothing to do with steeling. This is why the MPAA’s “You Wouldn’t Steal a Car” campaign is nothing more than muddying the waters. It’s propaganda – a calculated distraction. Entertainment industry does not want to discuss the real issue here because it is not in their best interest. What they want to do is to sow fear, uncertainty and doubt. And it’s not that they do not have an argument to begin with. The law is on their side. But we have to agree that infringement is much lesser crime than theft.

Then again, you have to wonder what good is a law that is virtually unenforceable. When I meet new people the topic of file sharing invariably comes up sooner or later. I have to say that I have yet to meet a person below 40 who can honestly say they never downloaded a song or a movie from the internet. It is simply unheard of. I’m counting both males and females of all races, creeds and education levels. In fact, many times I was honestly surprised to find out that a given person engages in this activity. No one respects the copyright law. Copying is as natural as breathing to us. This is what computers and internet were designed for.

And there is no way to stop it. Technological means to curb copying (DRM) don’t work. And statistically chances of getting caught are close to zero. Only a very small percentage of people will ever get sued by RIAA and MPAA.

Who what is the point of un-enforceable law that everyone breaks without even thinking about it? Protecting revenue streams of distributors might be a reason here, but there is something wrong with this picture. Let’s step back and think about it for a second.

I just said that I don’t know a single person below 40 who doesn’t do at least a little bit file sharing. This means that a huge chunk of population is involved here. And yet, I haven’t heard about a single movie or music studio closing it’s doors because of losses incurred due to “piracy”. Movies, music and software keeps getting made so the alleged losses cannot be that significant. Entertainment industry can talk all they want about “lost sales” and projections of lost revenue but most of us know these are just wild guesses that cannot be substantiated with any concrete data. There is just no evidence to support them.

If this was theft, we would see real very tangible evidence of loss. But we have no such evidence – just fuzzy, optimistic estimates. And this is the gist of the problem that the pro RIAA and pro MPAA advocates try to avoid discussing.

So please, next time you get into this discussion, get it right. Otherwise you are just regurgitating a flawed argument that has no basis in reality.

[tags]copyright, copyfight, theft, riaa, mpaa, file sharing[/tags]

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13 Responses to It is not theft!

  1. Ben UNITED STATES Mozilla Firefox Windows says:

    Excellent points. Thank for writing this. I’d like to add that a democracy that makes criminals of an increasing percentage of its population is plainly broken.

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  2. ZeWrestler UNITED STATES Mozilla Firefox Windows says:

    I’ve always thought that the steal a car campaign is a load of bs. I really look forward to seeing how the law will change once the technically literate generation gets in power. Sadly, that could take anywhere from 1-2 decades. By that time, damage could be severe.

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  3. vacri AUSTRALIA Mozilla Firefox Ubuntu Linux says:

    Bah, it is theft. You’re taking something without requested recompense. You’re taking entertainment without paying for it. Unless the person who owns it releases it for free (or discards it), you are a thief for taking without giving.

    This is independent to your points of what we need to do to make the legal system reflect how society works. Sure, it needs to change. But it’s still theft. I’m not saying don’t do it, I’m just saying admit it.

    Anyway, several problems with your baseball analogy:
    1) kids in the tree get a lower-quality version of the ‘product’. They’re further away, in less comfortable environs, and don’t have access to associated entertainment items (overpriced hotdogs, giant foam hands etc). The difference between buying a movie and downloading it free is zero. In fact, you usually get a *better* experience for downloading it free.

    2) kids in the tree is a very small segment of the population. Most people aren’t limber arborealists. The barrier to entry for the canopy-dwellers is reasonably high. There isn’t much barrier for downloading stuff – if you can watch a movie on demand at home, you probably have the ability already to download stuff.

    3) There are only so many climbable trees-with-a-view outside a ball park. If you’re not one of the lucky few, it’s buy a ticket or miss out. Not so with torrenting, where it’s *easier* as the number of non-contributing watchers increase. Trees aren’t scalable (pun not originally intended), the internet is.

    One or two trees full of kids isn’t going to be policed, of course. But if you had a situation where there were more people outside watching for free than paying inside, then you can bet the ballpark owner will erect higher walls or police things better, since the service they’re providing isn’t being recompensed by the people that benefit from it.

    4) Breaking into someone’s network and copying their database of credit card information fits the kid-in-a-tree analogy as well. But why is copying that information theft? If you say because it lowers the value of that information, well, the same thing can be said of mass downloading of movies or songs. Plus, unless the black hat actually uses the copied information in a detectable manner, it retains the same value to the owner.

    5) Baseball is boring as hell. What the hell is wrong with these kids? Can’t they find an analogy with a more interesting sport to be in?

    There was also a deliciously ironic bit in the article where you mention opponents use a straw man fallacy, then in the very next sentence commit an Appeal to Common Belief fallacy.

    My position can be summarised as: “It is theft, it’s not a big deal to just admit it, keep doing it, and change the laws to reflect how this part of society works these days”

    The funniest thing in this whole argument I saw was someone who’d taken an iPod ad that said “15000 songs” and captioned the ad “Yes, we expect you to spend $15000 on music…”

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  4. Tobias AUSTRALIA Safari Mac OS says:

    Very nicely said. I wish more people would recognize this difference – imagine a musician trying to explain to someone who’s had their house done over, their computers, backup drives and the irreplaceable photos and documents contained within taken from them, that having your music pirated on bittorrent is “the same thing”.

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  5. Muhammad SINGAPORE Mozilla Firefox Windows Terminalist says:

    Thank you very much for the tree analogy! I have been trying hard to convince my fiancee that downloading != stealing.

    I guess the MPAA propaganda ad had really got to her. LoL! :P

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  6. Muhammad SINGAPORE Mozilla Firefox Windows Terminalist says:

    @ vacri: I have a few comments for regarding the points you raised..

    1) I wouldn’t agree that downloading the movie gets you a better experience. For starters, there’s no way you can emulate the whole giant theatre screen at home. A 46″ TV may be huge, but a 2-storey high screen is really something else altogether. Also, with DVDs, you could get 5.1 or 7.1 surround sound, deleted scenes, alternate endings, outtakes, bloopers, director’s comments, languages, subs, etc. For a normal 700MB or 1.4GB dvd-rip-of-the-movie download, all i get is the movie probably in 640×352 with 5.1 if the encoding is good. If you have the patience to download a DVD-R (4.7GB), but no goodies mentioned previously. Also, there is no guarantee that what you download is really the movie itself. Dun let me get into CAM, TS or TC quality.

    2) I would assume that most downloads are music, as they are relatively small to download and easily found via P2P clients. Torrents, I feel, remain in the realm of the semi-savvy. And well-seeded public torrents are very hard to find.

    3) As I have said before, well-seeded public torrents are very hard to find. On public trackers, once the download are finished, people simply don’t seed. I know. Cos I am one of them. There’s no incentive for me to let people leech off my bandwidth. And I think you’re over-simplifying the matter. If the ball park owners can erect higher walls, the kids can be savvy enough to build platforms enabling them to go higher than the tree (ala. diff forms of P2P technologies). Also, the tree is always growing right (ala. internet is also growing)?

    4) The definition of data theft is wholly different from “normal-tangible-object” theft. The victim for “normal” theft is deprived of the stolen object; his car, money, etc. For a victim of data theft, can you also say that he is deprived of a sale? You can’t. Cos people who “stole” his data (music, movies, etc) may not buy it in the first place. That’s why loss incurred due to piracy is not actual loss but a projected loss, with the underlying assumption that everyone who pirated will buy. But of course, the assumption is always in super fine print and will never be part of a headline.

    Also, you seem to be equating credit-card information copying to music/movie copying, which, to me, is vastly different! To me, the former is “normal theft” while the latter is “data theft”. With the credit card info, I am stealing a person’s money if I use that info, am I not?

    5) Toe-may-toe, toe-mah-toe. Substitute “baseball” with the sport of your choice. It’s soccer for me. What’s yours? Hehe. :D

    vacri, I hope you don’t regard this as a personal attack. Just my two cents. Feel free to point out where I’ve gone wrong! :)

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  7. Luke Maciak UNITED STATES Mozilla Firefox Windows Terminalist says:

    [quote post="2296"]I really look forward to seeing how the law will change once the technically literate generation gets in power. Sadly, that could take anywhere from 1-2 decades. By that time, damage could be severe.[/quote]

    I’m teaching the CMPT 109 now I’m more and more convinced that this is not going to happen. These kids are all like 5-6 years younger than me (if not more) – they all have facebook and myspace accounts. They all essentially live online – and yet they are still incredibly clueless. So the new generations are not getting more computer savvy – they just learn a very narrow set of computer skills they absolutely need.

    So in 1 or 2 generations we might not have a Ted Stevens level of idiocy walking around, but people still will be calling IT for the stupidest shit.

    Then again copyright might be the one area where higher exposure to the internet may improve things. So you might be right.

    @vacri – but LEGALLY it is not theft. When RIAA or MPAA sues you no criminal charges are brought against you. It is a civil suit, and you are usually just expected to pay a hefty fine.

    Anyways, on to your points:

    1. I would say that original movie is much more convenient to work with. Typically all you need to do is to open the box, and pop the DVD into the player. With a downloaded copy you may need to jump through several hoops. For example tons of scene groups like to ship large movies as a collection of 20-30 rar files (this is how they dump it on usenet before it hits torrent sites). So you need to extract it. Most common question in the comments for each torrent is “how do I unpack this”. The second most common one is “how do I play this”. Usually you either get a disc image or a video file. You either burn it to CD/DVD or you might need a special player/codecs. And like Muhammad said, if you don’t burn it you will be watching it at your desk on your monitor screen instead of a big TV sitting on your couch.

    2. Ok, my analogy is not perfect. Let’s assume that the ball park is surrounded by a ring of skyscrapers. Everyone who lives above ground level can peek over the fence. During big games thousands of people watch from the windows, balconies, roofs and etc. Is that better?

    3. See above.

    4. The only way to prevent tenants of the neighboring buildings from watching the game is to put a roof over the field which is actually very expensive. In addition one of ballparks revenue streams is from advertising blimps and planes which fly over the stadium during big games. Some advertisers even mount billboards on the roofs of the nearby buildings, and during big games hang banners and other advertising on the closest ones. Building a roof would mean giving up on all these advertising options.

    5. I’m not a baseball nut, I was simply looking for something most people could relate to. ;)

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  8. vacri AUSTRALIA Mozilla Firefox Ubuntu Linux says:

    Nah, I know it’s not a personal attack because you’re counter-arguing, not calling me stupid ;)

    in rebuttal:
    1) I was comparing more to a DVD than a movie experience. You do have a point that your downloaded .iso may just be the movie without extras, but conversely your downloaded .iso doesn’t force you to sit through menus and intros either. Most DVDs don’t really have worthwhile extras anyway, but your point about sound is a good one.

    2) I don’t think there’s much of a barrier to entry these days for torrenting. Well-seeded torrents for popular stuff is easy to find, but as soon as it’s not popular, yes it does get more difficult. When I started torrenting, I made the comment that I couldn’t find what I wanted – and my friend replied ‘just use google. type in what you want and ‘torrent”. It can work surprisingly well for rarer stuff. In any case, in the analogy, the kids that climb the tree presumably don’t have the capacity to buy a ticket (as they are ‘kids’ and not ‘people’). I know I have the capacity to buy what I torrent, I just don’t.

    I do know that I have an mp3 collection built entirely from unbought music – I haven’t bought a CD this century. I’ve pulled my collection from friends and customers’ computers and have about 40GB worth, half of which is chaff. And I’m mocked for having a small collection. I find my experience to be more common than those who buy music regularly as well as download, though those people do exist.

    Tonight at the gym I’ll be listening to Rage Against the Machine, Black Flag, System of a Down, and possibly a little Dead Kennedys. It keeps me motivated to keep doing cardio; without it I’d stop. I get a very real, tangible benefit from this music, and I haven’t paid a cent for it, just the mp3 player.

    3) But it’s the same with the ball game – if you’re not in the tree when the game’s on, you’re just going to see an empty field. If you don’t want the movie when it’s popular, no, you’re less likely to get it via download. Also, trees do grow to a maximum height :)

    4) The real point here is that people are trying to define this issue as a ‘victimless’ crime and therefore not a crime at all. Tobias says that since the artist isn’t having their house trashed, it’s not theft. But I can take $5 from someone’s wallet without their permission, and that is theft. The person isn’t particularly harmed by it – you have to be quite poor for $5 to matter – but it’s theft just like having a house ransacked is theft. Different magnitude, but same scale. I don’t remotely believe the labels when they project, but neither do I believe there is no harm done.

    Credit card info can be used for things other than straight-out moneymaking, but anyway, taking the actual info is still theft, regardless of whether it’s used or not.

    Anyway, the point as I see it is that the downloader is taking something that has not been released for free and not giving anything in return. Whether it’s actual loss or projected loss by the victim, it’s still the victim not being recompensed for a non-free service. How the labels treat the artists is distracting chaff – the issue is that the service user is not recompensing the service provider.

    The real problem I have is that people that strongly advocate free downloading of non-free material all seem to be people whose real motivation is that they want their entertainment for free, but don’t have the balls to say so. I admit, I’m a selfish bastard when it comes to music, I don’t want to have to pay for it when I can get it free, so I don’t. But I’m not going to pretend that my entertaining myself without recompense to the people that made my entertainment should be considered a blow for the forces of good. It’s selfish, plain and simple, and it’s taking something I don’t have a right to take. But hey, that’s the way this facet of the world works at the moment (which is a different ethical debate)

    5) The big three for me are baseball (the sport they had to design to be more boring than soccer), soccer (while I like a low-scoring game, a game where nil-all draws are common after 90 minutes is beyond the pale), and tennis (been going downhill ever since they stopped wearing slacks).

    Tennis is so bad that when I watch tennis with a tennis fan, I just commentate everything the players do. Turns out they don’t spend much time doing anything – there was a study done that said 1 in 6 minutes is actually playing the sport, the rest is basically wandering around scratching your arse. Also, any game that needs 5 times as many officials as players is just asking for trouble.

    The sports I like to watch are basketball and gridiron, and on a really hot day where you can’t move and you can’t be stuffed thinking and there’s beer at hand and maybe a friend for lazy conversation, cricket (which is dull at all other times).

    The truth is, I consider downloading stuff a crime, but not much of a crime. I rate it on the level of double-parking in light traffic – you don’t really inconvenience people, but you still shouldn’t really do it (also if everyone did it, it does become a bigger problem). Don’t get me wrong, I think things need to change, but I definitely believe in fair use (even though I don’t follow it :) ) – if I buy a song, I should be able to play it on any system I own, keep it however I want, back it up and so forth. I also think it’s not a moral thing to make copies for friends. But I’d double-park to pick up a friend by the side of the road…

    /waffle

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  9. Luke Maciak UNITED STATES Mozilla Firefox Windows Terminalist says:

    [quote post="2296"]The truth is, I consider downloading stuff a crime, but not much of a crime. I rate it on the level of double-parking in light traffic – you don’t really inconvenience people, but you still shouldn’t really do it (also if everyone did it, it does become a bigger problem).[/quote]

    Ah, see – same here. I do not claim downloading is a right thing to do. It’s just so damn easy it is hard not to. It is not necessarily a victimless crime – but it is close to one. I do acknowledge that it probably does have some impact on the sales but this goes both ways – on one hand you get lost sales, on the other you get free promotion. Net result of gains and losses is probably oscillating close to zero sometimes swinging to your advantage, and sometimes against you – but never enough to bankrupt you or make you rich. :P

    But I agree with what you said there. It is wrong – I don’t deny it. I just like to call the crime by it’s proper name. And legally, it is not theft (which is a criminal offense) but infringement. The theft thing just muddies the waters because it is a much more serious crime.

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  10. vacri AUSTRALIA Mozilla Firefox Ubuntu Linux says:

    cool, I made my own tl;dr during which Luke posted :)

    okay short and sweet:

    1) given the price of a DVD is 1-2 hours’ work depending on your post-tax wage, I’d still consider the free download less work. Plus once you’ve unpacked a couple of .rar files, it’s trivial to unpack in future.

    2&3) Are you kidding? Surrounded by skyscrapers? The owner should capitalise and sell up the land for a tasty fat profit :D

    I think this is where the analogy falls apart though. By climbing the tree, the kids are wilfully engaging in countermeasures to defeat the owner’s wishes. By looking out the window of your own apartment, you’re not engaging in countermeasures. It’s the owner’s decision whether or not to block your view. If he does and you take steps to circumvent it, then yes, we’re back at the same situation with kids-in-a-tree.

    4) But building a roof would increase ticket salesand get revenue that way. People who can’t watch anymore who really want to would have to get a ticket. After all, the ball park is so close!

    5) I know, I just find baseball tedious :)

    Whether something is legally termed theft or a more arcane legal term is to some extent irrelevant. The act of taking something without consent is still the same concept.

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  11. vacri AUSTRALIA Mozilla Firefox Ubuntu Linux says:

    re: 2nd comment: fair enough ;)

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  12. Muhammad SINGAPORE Mozilla Firefox Windows Terminalist says:

    I think the whole tree-and-ballpark analogy has gone waaayyy overboard.. :D

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