Copying Is Not Theft

Last week, the New York Times ran an interesting and important op-ed by Stuart Green, a law professor, who argues that although illegal downloading of songs or videos from the Internet may be wrong, it’s not really “theft” in the sense that the term has been understood historically in the law. Nor is it theft according to the moral intuitions of ordinary people (as Green’s own research with psychologist Matthew Kugler shows), who draw a sharp distinction between online file sharing and ordinary theft, even when the economic value of the property taken is the same. 

That’s not to say that record companies and movie studios are not hurt by online piracy. But as Green points out, they’re really not hurt in the same way that victims of theft typically are.  If a thief steals your car, he has it, and you don’t.  But if someone illegally downloads your song, he has it — but so do you.  

In economic terms, intellectual property is non-rival, whereas tangible property is rival.  As a result, the “piracy” of intellectual property is simply not the same sort of zero-sum game that car theft — or theft of any tangible property — is. And that means that when Hollywood or the U.S. government says that music or movie downloaders are “pirates” or “thieves,” they are indulging in a bit of loose rhetoric.  There are, in general, good moral reasons not to take what doesn’t belong to you. But as this video by filmmaker Nina Paley so beautifully illustrates, copying is not theft.




clever.. but i would argue the spirit of the law is the same. if you are taking something that doesn't belong to you and w/out the expected and requested compensation for doing so then you ARE committing digital theft.


Yes, both are violations of laws - using something that does not belong to you. However, the entire point of the article, which you seem to have COMPLETELY missed, is that making a copy of something that belongs to someone else is very different than actually taking something.

Try reading. They said it quite nicely in the article:
"If a thief steals your car, he has it, and you don’t. But if someone illegally downloads your song, he has it — but so do you."

Copying does not equal Taking.

Legally, and even morally, both may be wrong but it is nonsense to claim that they are equal violations of morality/legality.


Copying information *is* taking from the original content producer.

By your logic, if Intel spends 2 years working on designing a new CPU, and AMD hacks their systems and copies their design, that's fine because it was just information, and Intel still has their copy.

What you fail to take into account is that the information itself is the value of the CPU. A CPU is less than $10 per-unit in materials and fabrication. The rest of the cost is the design. You're caught up in the physical realm while ignoring the fact that it is the configuration of the elements (the design) that has value. The same for music. If you took all the samples of a Lady Gaga or U2 song and played them all at once, it would just be noise. Its the way that the noises are laid out that give the content value, not the bits. And the person who created that design should be paid.

Another example: a Farmer grows corn. Its a physical asset. A programmer makes a program, which is information. You're saying that the Farmer's labor has value, but the programmer's doesn't because he created an information-good rather than a physical one. You are too caught up in the exchange of mollecules that you don't realize that its often not about the "stuff", but rather the way the stuff is arranged that has value. And that arrangement takes effort that, if people are expecting to receive payment for, should be paid-for.


Jason Denenberg

Yes, loose rhetoric. However, in economic terms, that intellectual property protection enables the record company to continue selling its value to the customer just like the bike company. Those revenues, if managed appropriately, is what keeps them around...or ensures they don't become a non-profit. Theft of a bicycle post-sale doesn't hurt the bike company.


That's a very valid line of reasoning, one often put forward. However, as study after study has shown, the illegal downloading of music/movies is not necessarily a harm to companies.

The facts are that quite a few studies that have shown either no net harm from illegal music downloads, or sometimes a net gain from illegal music downloads.

Your reasoning is sound, but your facts are faulty. It may seem counter-intuitive that illegal downloading of songs can be a benefit to the copyright holder, but nonetheless, that seems to be the case many times.


Examples of these studies? Don't tease us with supposed "facts" and then not provide them. Because every study I've seen has shown that overall it's a (rather large) loss for artists, especially for independant / non-major-label ones.

There may a couple of oddball cases where there's been an inverse correlation, but a couple of cases don't make a trend, they're simply anomalies.



While unauthorized copying is not morally pristine, it is very different than theft. Many try to make this a black and white issue by saying "copying = digital theft", but they are really quite different things that should be dealt with differently.

Every time someone says "torrenting is piracy" or "ripping DVDs is theft" I think they are either very ill informed or have an agenda.

This will become more and more relevant as 3D printers make it possible in the next 20 years to make copies of physical items. So it will literally become possible to copy a bicycle.


Music, videos and software is licensed, not sold. Re-distribution is a violation of the license agreement.


Agreed, and I'll go a step further.

#1 When copying intellectual property for personal use it essentially the same as going into an art gallery and taking a photograph of a picture and taking it home and putting the photo of the picture on your wall.

Are you stealing anything? No. And in virtually all cases, the person who does such a thing would NEVER have bought or obtained the original picture otherwise anyway, just as in the case of digital copying I'd say that most of what is copied for personal use is stuff that the individuals doing the the copying would never have paid for anyway, they would simply have done without.

#2 If we are talking about copying for commercial purposes, i.e. illegally copying material and then selling it, that's a whole different matter, and yeah, those folks do deserve to be treated like criminals.

#3 MOST IMPORTANTLY, however, is the fact that yes, digital copying DOES have an impact on the profits of media companies and performers, BUT, its actually reasonable. The reality is that they were getting over paid in the first place due monopoly power created by technology in the first place.

This is the real issue. The profits of media companies and performers has ALWAYS been LARGELY a product of RECORDING TECHNOLOGY, NOT of the work done by the performers or media companies.

Prior to the invention of "moving pictures" actors were poorly paid. Even the best theater actors had relatively modest incomes and even the best theater companies and performers, had much lower rewards per the work they put in.

The best gauge of this is probably "Buffalo Bill", who was one of the largest and most successful acts that existed prior to and at the dawn of the motion picture era. Sure Buffalo Bill was successful and made a good living, but nothing compared to what would be had by later producers and movie stars.

The fact is that the profits were always a product of technology and the law, and in many ways were always undeserved in the first place. If you could record and play back the work of an auto mechanic or a dentist or even a janitor the same way that you can record and play back singing and acting performances those jobs would become just as highly paid, if not more so.

Think about it, if it were possible for a janitor to "record his/her work" one time, license it, and sell it such that anyone or any commercial entity could by a copy of it and have it clean their place, a single individual could easily become a multi-millionaire.

What if it were possible for, say, a janitor to record his action cleaning a bathroom at McDonald's and sell it too all McDonald's franchises, etc. and license the replying of those actions, etc.

That's what we are really talking about, that's how the media industry works. It;s recording work a single time (well however many takes it requires), then licenses the replaying of that work, which is now fully automated.

It just so happens that entertainment is one of the easiest things to record, whereas other forms of work are much more difficult to record.

So really, what makes the media industry so profitable is the fact that are selling the easiest form of work to record and play back due to the realities of technology.

Their profits have always been a product of controlling the technology used for copying and playing the recordings. Computers took that control away, their control over the technology in the first place was always an inefficiency to begin with. Not to mention the fact that none of this control is "natural", its all been a product of the legal system.



If it's not theft, then it's a violation of my rights as a creator. I'm ok if you want to start substituting "abuse of rights" for "theft," and "rights abuser" for "thief," but not if the main point is to minimize or dismiss outright the impact of massive copyright infringement. And right now, it looks like this:

" There are, in general, good moral reasons not to take what doesn’t belong to you."

Is pure lip service, accompanied by a wink and a nod.


Jon, let's pull apart a particular part of your comment there:

"but not ... to minimize or dismiss outright the impact of massive copyright infringement."

Pray tell, what exactly do you think that impact is? Obviously you think it is extremely harmful, depriving the copyright holders of billions of dollars.

In this little place we call reality, that is simply not true. Not even close. In reality the net effect of illegally downloading music and videos is usually a net zero. In fact, the opposite is true at times.

As counter-intuitive as it may seem to you, in many situations the "impact of massive copyright infringement", as you put it is a net positive to the copyright holders.


You seem to have a very narrow focus of the issue, DanSanto. You're saying that "because the producers aren't losing as much money, its okay". Well... first off, that's bunk. There's no data either way because you can't release a song without piracy and then with piracy and compare the revenues. The fact is: you don't know what the revenues would be without piracy.

But... lets look at this from a different angle because there are other forms of copying than simply for personal consumption. What about a book. Music can make revenue off concerts, movies make revenue off theater, but books only make revenue from sales. I suppose you could do some book-signings, but basically you're saying that authors don't deserve to be paid.

What if someone took the copyrighted characters in my book, and wrote their own story with those characters performing sexual acts on children. Or, what if I wrote a song, and a free online porno series decided to make it their theme song. Do content producers have no rights in your twisted worldview?



Not so semantically tangled as professor Green might like.

One doesn't 'copy' the permission to copy.
It is either obtained from the owner honestly or stolen.


Nice post. Even though piracy prevents an artist from profiting from what would have been that transaction, (downloading a song instead of buying it) they benefit from the exposure which could lead to future song purchases or ticket and merchandise sales. There is an interesting study in there somewhere.


I am disappointed in this blog. For people who I normally consider fairly clever, you totally dropped the ball on this one.

There are two types of property - there is physical property and there is intellectual property. Neither property is typically inherently useful to the producer except in its value for trade. For example, a farmer spends his time and effort growing vegetables, which produces a good that can be sold to sustain himself. An ENGINEER spends his time and effort designing a new CPU. In his case, the time and effort involved has produced a purely information-based product: a design.

Your argument is that because the FARMER produced corn, stealing that is a crime. But stealing what the ENGINEER produced (the CPU design) is just fine because its only information, and he still retains a copy of the information for himself. But you're ignoring the fundamental fact that the reason why he produced the design was to sustain himself. By making his design publicly available for free, you deny that to him. Why? Because most of the cost of a processor is in the design. The actual cost to produce an Intel CPU is under $10. Why does it cost you $200? Are they just scalping us? No! Because the real value of the CPU is in the design, not the materials used to create it. You have to pay for hundreds of thousands of man-hours of highly-skilled labor to create that design.

You also dissuade further progress along such lines, and thereby stifle technological progress. The reason why civilization has gotten so productive is that we've intensely specialized our workforce. This is because individuals working on very specific problems become better at solving those types of problems. (its a depth versus breadth issue). By making something like CPU design unprofitable, you're leaving it up to hobbyists who have day-jobs.

Now you're probably going to argue that there's a difference between intellectual property like a design, and music or movies. But there isn't a difference. Its still theft. Perhaps not theft of the physical movie or music itself, but theft of the resources owed to the artist or designer that they are owed to sustain themselves. That is, it *IS* a zero-sum game. While "copying" allows more than one thing to exist (1+1=2) , the consumer keeps his money and the designer isn't paid (1 -1 = 0). You are blind to the reason why the producer produced the content. Much like the farmer who grew more corn than his family can consume, in order to sell it, he __does not care__ about the corn. He can't use it. His family can only eat so much. The reason why stealing it is bad is because he produced it, and intended to sell it and make money from it.

The same goes for intellectual property.



As a former avid file sharer, I would definitely agree that copying isn't stealing. But it still lacks the permission that separates borrowing from stealing.

As a Christian I've struggled with this, and thought maybe scripture would give guidance. I found this to be particularly appropriate: "He who steals must steal no longer; but rather he must labor, performing with his own hands what is good, so that he will have something to share with one who has need." [Ephesians 4:28] It brings to mind that labor is what is being taken (whether you steal or copy); be productive and mindfully share what you produce.


IP is mercantilism. It is the creation of an artificial monopoly. Philosophically, it is not the same as real property and should not be treated as such. A true right to property does not expire. Its transfer is supposed to only occur with voluntary exchange. If IP is legit, why does it expire? Because no one should be able to exclusively own and heir a monopoly over the wheel or any other 'idea' for that matter.

Without IP, it is not as if artists would not make any money, the business model would simply be different. There would be perhaps more focus on live performances rather than album sales, where allowing music to be downloaded for free acts as advertisement for those live performances. Perhaps there would be added incentive to create better protective technology if an artist chose to go the route of 'selling' albums rather than live performances.

You can't compare a world without IP to one that was created under it. The question should be dealt with at the philosophical level first to determine if this claim is legitimate. I find the argument for its legitimacy to be lacking.



Can't we just call it a crime?


Also, note that the media companies never made these arguments about "licensing" when things worked to their advantage.

For example, when records were replaced by 8 track tapes, then replaced by cassette tapes, then replaced by CDs, the studios never said that owners of records were able to get copies of the same content on new media as reduced prices.

It's not like, if you bought a Jimi Hendrix album on vinyl, then wanted a 8 track, that your purchasing of the content on vinyl was considered licensing rights that were already paid for, and thus you were able to get the 8 track for half price or anything.

So, it's just another case of selective inconsistency. In the past, when physical ownership of media benefited them, they didn't talk about licensing, they talked about ownership of the physical media. If you wanted a new copy, you had to pay full price for a new copy on physical media, the notion that you had already acquired the "licensing rights" upon the first copy of the media was never considered.

Now that the shoe is on the other foot they decide to raise a stink. They would have a much better case if they hadn't taken advantage of the situation previously....