Copyright Infringement Does Not Equal Theft

By Russell McOrmond 12/20/05

Online there's a relatively well known concept called Godwin's Law which suggests once a comparison to Nazis or Hitler is made, a conversation should be declared to be over. Once these analogies are made, any ability to have a rational conversation is dead and all focus will be on the analogy.

I believe a similar problem exists with the terms "theft" and "property" in conversations about copyright. I simply see nothing in common between the concept of "theft" of tangible property and the concept of infringement of intangible exclusive rights, such as copyright and patents.

This hasn't yet stopped me from trying to engage in conversation with people who think that infringing copyright is a form of "theft", but it isn't a conversation that tends to be very fruitful and I often call it the Jefferson debate, as this has been a debate waged for hundreds of years with no resolution. On August 13, 1813, Thomas Jefferson wrote a letter to Isaac McPherson which included part of this debate.

Russell McOrmond

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.

The full letter explains in a very eloquent way the fact that intangibles such as ideas are entirely different from physical/tangible things.

I believe there are more accurate analogies to copyright infringement than "theft". If I own a home, and a brothel moves in next door, their actions have reduced the value of my property. Since running a brothel is not legal in Canada, the activity that reduced my property value is handled under the law. If I instead had a neighbour that simply never kept up their home, this could reduce the value of my property, but in a perfectly legal way. There are even calls to municipal governments to pass by-laws about such activities which reduce property values.

No matter how frustrated I may be about the legal or illegal ways in which other people may reduce the value of my property, it's not rational to use the term "theft" to describe it. Even if the value of my property is reduced to nothing, I still posses the property and thus nothing can be claimed to be stolen.

When someone infringes copyright, they're reducing the value of the copyright in an illegal way, but it is equally inappropriate to use the term "theft".

Just because I entirely reject the concept of "theft" as applied to copyright doesn't mean I feel there's no problem with infringement. The reason I disagree with the word relates to how it closes the minds of those who use it to more modern ways to produce, distribute and fund creativity.

If people believe holding a copyright is like owning a car, it greatly narrows in their mind the ways in which they can possibly make money while at the same time reducing the incentives for people to infringe.

This narrow thinking is also dangerous when in the minds of policy makers who enact laws which, while intended to help creative people, end up greatly harming the majority of us.

For the software I create, I use a business model that couldn't exist if I were making and selling birdhouses or anything that's tangible. I call it the 95% solution: 95% of what a customer wants their computer to do is already solved within the public pool of software licensed under FLOSS licenses. I then get paid a one-time fee to author the missing 5% which I not only deliver to the customer, but also put back into that public pool to enhance that commons.

My business model relies on the fact that for intangibles such as software, the marginal cost of reproduction and distribution is zero. When I make a copy of some existing FLOSS software it didn't cost the author anything, and when people make copies of the software I authored, it doesn't cost me anything.

My work isn't put into the public domain, but publicly licensed. This is an important distinction as I do want my creative rights to be protected against a different form of copyright infringement.

Traditional copyright holders want to get paid royalties for any copies made of their work. I not only do not want to get paid royalties for my work, but the "Share and Share Alike" style license I use demands that those who make derivatives of my work also make their work available royalty-free. While I'm not asking for a monetary per-copy payment, I am asking that those who build on my work pay me by making their work available in the same way. Since my business model relies on the fact that most of a customer's problem is solved in this public pool of software, it's obvious why I want to use any leverage I can to ensure that this pool constantly grows.

Nothing of what I'm doing in my commercial software business makes sense to those whose minds have been narrowed by the concept of copyright "theft". Those who believe that making an unauthorized copy is theft also tend to believe the way to get paid is to charge royalties on authorized copies.

It's not only software where this confusion exists for them. When musicians take their recorded music and make non-commercial distribution royalty-free using one of the non-commercial Creative Commons licenses, they're not "giving away" their music. What these modern musicians have done is realized that by licensing their music this way they can turn something that isn't money making for them anyway into something that works as very inexpensive advertising.

Rather than paying expensive promoter of music they turn their fans into promoters, they take a smaller and less expensive risk by authorizing non-commercial distribution. They make money the way they always had: commercial distribution and use of their music.

Those whose minds are closed by the concept of "theft" won't understand how this can make musicians more money. To them, any royalty-free distribution is a loss of money, and they can't see how the theoretical loss of royalties from non-commercial distribution is most likely going to cost far less than an equivalently effective paid marketing campaign. While music promoters won't like being replaced by Internet peer-to-peer advertising, the positive outcome for the musicians themselves can be far greater.

We need to look more closely at those who are the loudest in the copyright debate.

Are these people who represent musicians, or are they people who represent legacy middle-men who are actually fearful of being made redundant ("right sized") by modern business models?

In Canada the most vocal groups are the US and the European major labels represented by the CRIA (Canadian Recording Industry Associatioin) that are the most vocal, followed by the United States government, and then pay-per-copy royalty collection agencies such as Access Copyright. These groups don't represent creativity or creators, but they do represent legacy middle-men or legacy business models that are being "right sized" or "transformed" in a new economy.

Russell McOrmond, the editor of Digital Copyright Canada, is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons).


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