There are many problems I have with the state of copyright today. One of the central points is the idea that making a copy of something is the exact same thing as theft. I’m not saying there aren’t cases where copying is wrong but I’m not clear that it’s the same as theft. If I steal your bicycle, you no longer have your bicycle. That’s theft. If I make a copy of your bicycle, you still have your bicycle. How is that theft?
Ah, but some say that by making that copy the creator of bicycles has lost a sale, and therefore I have stolen the profit of that sale from him. Well, there’s some logic to that but let’s take that analogy out a few steps. (I’m not going to go into the “but that assumes I would have ever purchased a bicycle” counter argument. I’m taking this elsewhere.)
By this logic the following is also theft:
- Borrowing a bicycle from a friend
- Borrowing a bicycle from the library
- Picking up a bicycle from a trash pile
- Buying a used bicycle
In each of these instances the person who originally made the bicycle does not earn any money from my use of their product. Should any of these situations be considered theft?
Now, replace the word bicycle with a digital media of your choice. Is it still theft?
Making a copy is not the same as taking a bicycle (or CD or DVD). If you have the bicycle (or CD or DVD), then the original owner doesn’t have one. If you make a copy, then the original owner has one and you have one. Then the producer, maker, authorized distributor, whatever, doesn’t make any more money on it. As you know, all these publishers, books, music, etc, make money on some things and lose money on others, so they have to make money where they can to help encourage them to spend money on things that are good but may not make a lot of money. I hope this makes some sense, it does in my head. And I’m not saying that’s the final word, but it is something to consider. And I won’t say I’m consistent in this myself either.
I’m going to try to keep this as focused as possible despite you raising several interesting points.
I agree with what you’re saying but it’s the next step in the logic that I have a problem with. Yes, “the producer, maker, authorized distributor, whatever, doesn’t make any more money on it” but they insist that when it comes to digital content “copying = lost sale = theft” when by that logic anything that could possibly be a lost sale (i.e. libraries) should then be considered theft. That’s what I don’t get.
I think the obvious conclusion is that copying is not “theft” but something akin to theft under certain circumstances. We simply say “theft” because there isn’t a proper word for “causing a lost sale”. And that does, of course, assume that I would have bought the bicycle in the first place.
Oh, and then there’s renting the bicycle, too. That’s a whole ‘nother bookshelf!
Since I’ve been saying for years that copyright infringement is not theft, but is still both unethical and harmful, I could hardly argue with your assertion that it’s not theft.
So if the issue is terminology, then I agree: copyright infringement (whether digital or nondigital) is not theft.
But if the issue is “…and therefore it’s just peachy-keen to copy anything you can get your hands on,” well, there I disagree. But I don’t necessarily see you saying that.
For me, this analogy falls apart at levels of ownership and mediation. Let’s start with ownership: a bicycle is sold and owned physically by the purchaser. In comparison, a compact disc recording of music is sold and owned physically by the purchaser–however, ownership of its contents is not part of the sale. The copyright owner still owns and controls the contents, and the purchase essentially gives a usage license to the purchaser.
This isn’t really an idea that arose specifically because of the downloading movement, either–it was discussed nationally back in the mid-80s when consumer cassette duplication equipment became affordable, and folks started trading tapes.
That raises the issue of “mediation.” A bicycle is an unmediated purchase–that is, the physical item itself that’s purchased is a desirable and useful item by itself. In contrast, a CD is a mediated purchase, because the physical item purchased is essentially a medium to further carry the actual value in the product: the contents.
I think the CD example does still represent a theft–but the theft affects the owner of the contents, not the owner of any media acting as a vehicle for the contents.
Ok, I see your point and how you would consider it theft under that logic but is it theft “because it’s a lost sale”? That’s the argument I’m trying to keep focus on at this point.
The “lost sale” thing is tricky, for sure. Of course in many cases a person might download something and ultimately not care for it, or they wouldn’t have taken a chance on it if any cost were involved. But I still think it’s a theft if it wasn’t implicitly offered at no cost in the first place–the “money for access” issue has been broken, and that isn’t contingent on the consumers ultimate like or dislike of the content. There are a number of “netlabels” operating now that do offer albums for free with the option of making a paypal donation or that sort of thing, so the option exists if folks want to try it.
Using the bicycle analogy becomes interesting again here, because it shows how sideways the whole downloading-related conversation has become in looking for justifications, in my opinion. What would you think of the motivations of a person who “copied” hundreds of bicycles who then said s/he did it in hopes of finding a few bikes that s/he really loved, and would then actually buy those bikes? Would that be a believable argument?
I think a better analogy would be sneaking into a show with a cover charge through a side door. If you didn’t pay at the door, the band isn’t getting paid for their performance to you. A person could argue that if that show was free, the band might get some new fans who will buy merch, follow the band in the future, etc, but that argument also side-steps the fact that the show _isn’t_ free. In essence, a music CD is a performance you can hear any time you want, and if it’s been offered as a product for sale, the time for hypotheticals has passed.
This stuff rarely has a large impact on major artists, writers, filmmakers, etc–they sell enough of their content to get by no matter what the impact of illegal downloading. The problem as I see it is the potential effect of downloading on a small chunk of “the long tail” who are creating very sophisticated and time-consuming work that doesn’t have alternative revenue streams. Take composer Conlon Nancarrow, for example. He wrote really wild music for player pianos, hand-punching rolls for the devices for decades. All of that work, literally decades of work, takes about three hours to hear. Logistically, the pianos are delicate and there is no practical way to “tour” the devices and hear the music in a live performance. The only way to hear it is to buy a recording. At the time he made the recordings, vinyl was the dominant medium, and he was able to make some money to keep working that way. In contrast, if he was just getting started with that music today, and every disc he finished ended up on the internet for free, would he have enough financial incentive to keep going? I suspect that he might still dabble with the pieces, but his already somewhat limited output would have been even more limited by the need to devote his time to more profitable, if less interesting, pursuits.
I could name lots of other musicians and artists in other media who might be feeling a squeeze from this kind of issue. They’re exceptions among the greater world of the arts, for sure, but it’s these exceptions to the rule that I worry about. They tend to have small audiences for whom a percentage drop in numbers of paying customers has a more pronounced effect, and they tend to create the kinds of hyperambitious stuff that truly moves our culture forward artistically. To the extent that downloading has any effect on their collective output, we do ourselves a cultural disservice.