Copyright Infringement ≠ Theft
What does it mean to illegally download a movie from the Pirate Bay or the latest Bollywood album from Songs.pk? Are you stealing from the artists and record companies? Are you committing ‘theft’?
The nature of piracy is part of a rousing debate in copyright law circles. It assumes greater significance with the US Vice President stating categorically that “piracy is flat, unadulterated theft”, and it should be dealt with accordingly. There is also a statement delivered by the White House on the ‘Joint Strategic Plan to Combat Intellectual Property Theft’ just a few months ago (note the word ‘theft’ in the title) and of course, the Anti-counterfeiting Trade Agreement (ACTA), an intellectual property rights treaty spearheaded by the US government, which has been masquerading as a trade agreement.
Why distinguish at all?
The equation of infringement and theft, especially by governments and lobbyists, is troubling because of the significant influence it has on public sentiment surrounding these issues. Although the debate is restricted to US policy circles for now, Indian IP and innovation policy must be careful not to fall prey to such misnomers.
Does the law make a distinction?
In the case of Dowling v. United States (1958) the US Supreme Court concluded that the National Stolen Property Act did not extend to items which infringed copyright. In this case, Paul Dowling ran a business of selling Elvis Presley bootleg recordings. The court 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.”
A contrary position is offered in the recent case of MGM v. Grokster (2005) where it was held that “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft”. It is therefore open to debate whether the perceptible difference between infringement and theft is negated by the observation in Grokster.
Nature of Property Rights
At the heart of the distinction is the nature of intellectual property rights itself, which deserves rigorous jurisprudential analysis far outside the scope of this piece. However, the infographic reproduced above gives us some indication of how ownership rights are affected differently in the case of infringement and theft. Quite simply, copyright infringement is not theft because it does not deprive its owner of its use completely. On the other hand, theft of something creates an absolute and indefinite loss of property. This does not even broach the question of whether copyright is a property right, and if so, whether it is an absolute right in the sense of a monopoly (think patents). Is copyright not simply a limited privilege afforded to someone for a given period of time?
Extending this rationale to online piracy and file-sharing, one wonders whether illegally downloading a song affects the copyright owner in the same way that the theft of the physical DVD would. More importantly, does the unauthorised downloading of one song account for a lost sale? Has the artist/music company lost out on potential revenue? The problem with answering these questions in the affirmative is that it presupposes that an individual who pirates a particular song would have also purchased it legally if not for the unlawful alternative. No wonder then the incredible losses claimed by the entertainment industry have been dismissed by courts across the world as grossly inflated. Infringement of any digital music or movie file does not prevent future sale of the same track, so it is really correct to call it ‘theft’?
The Effect of the Vernacular
Many believe that the effect of legal terminology is irrelevant to the discourse, and that it is rather the colloquial meaning and understanding that matters. Terry Hart, in his blog post on the subject, argues that emphasising the legal meaning of words ‘accomplishes little more than arguing for the sake of argument’. Others believe that ultimately it is a sense of perception and feeling – people will be able to understand the meaning of copyright infringement when it is referred to as ‘content theft’.
But that is precisely the problem. Misunderstanding the legal implications of words and the use of misleading rhetoric presents a failure of the basic duty to educate. The term ‘theft’ carries with it negative connotations. When it comes to formulating policy around intellectual property and innovation, the weight of these value judgement will certainly influence decisions.
For content creators, the equation of infringement and theft could possibly stem from emotional considerations – the feeling of being deprived of the fruits of one’s labour. The anguish is understandable. But at the same time, equating the two distinct terms does not reveal the true nature of the problem or even elicit solutions. More importantly, it disregards the potential for artists to leverage contemporary digital distribution models. It is no secret that anti-piracy lobbyists are the biggest culprits here. There is an obvious commercial interest in conflating the two concepts, and the backing they receive from politicians has ensured that their poorly conceived propaganda continues to this day (see a previous piece on the bane of anti-piracy clips). Although several such efforts have been ridiculed, it would be wrong to assume they can have no effect. Misinformation and equivocation is a powerful weapon, and has been used for centuries as a clever political tool to guide public opinion.
That is not to say that copyright infringement should be condoned. Absolutely not. Creators add value to our otherwise mundane society and their intellectual output must be protected. But surely there must be other ways to discourage piracy than to meld two legally distinct offences. To reiterate, this is not a debate on semantics. To tackle piracy, in India or elsewhere, every stakeholder must make the effort to understand that copyright infringement and theft are conceptually, legally and economically different. There is no catch all remedy, so let’s try to find one for each.
A version of this post was published on SpicyIP.
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