Beyond theft and sharing

If you want to send an anticopyright activist to the heights of dudgeon just refer to the unauthorized downloading of a copyrighted work as an act of theft. You’ll immediately get a lawyerly earful about how, in order to have a theft, you not only have to have a guy who swipes a piece of property but you also have to have another guy who loses the property. If you grab a bike that doesn’t belong to you, the owner of the bike no longer has the bike. That’s theft. If you download a copy of a song without paying for it from a file-hosting service or a peer-to-peer network, you haven’t shut off anybody else’s access to that song. So: no loss, no theft.

And that does seem to be a pretty accurate reading of the law. As Rutgers law professor Stuart Green recently wrote:

From its earliest days, the crime of theft has been understood to involve the misappropriation of things real and tangible. For Caveman Bob to “steal” from Caveman Joe meant that Bob had taken something of value from Joe — say, his favorite club — and that Joe, crucially, no longer had it. Everyone recognized, at least intuitively, that theft constituted what can loosely be defined as a zero-sum game: what Bob gained, Joe lost.

Of course, for a long time there wasn’t anything much to filch other than physical goods — Caveman Joe didn’t have many MP3s stashed in his cave — so you might argue that the narrow definition of “theft” reflects an arbitrary distinction left over from history. Still, as Green goes on to argue, it’s not a bad idea to keep terms precise when you’re dealing with definitions of crimes:

[...] we should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind [...] This is not merely a question of nomenclature. The label we apply to criminal acts matters crucially in terms of how we conceive of and stigmatize them. What we choose to call a given type of crime ultimately determines how it’s formulated and classified and, perhaps most important, how it will be punished.

That strikes me as entirely reasonable, probably even wise. Green isn’t blessing the unauthorized copying of someone else’s creation — he still places it in the general category of “criminal acts” — but he is saying that it’s a different type of offense than theft and deserves to be evaluated and punished differently:

Illegal downloading is, of course, a real problem. People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it’s reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn’t, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.

That, too, seems entirely reasonable. But if we’re going to be precise in our use of the term “theft,” as I think we should be, we should also strive to be precise in our use of another word that’s flung around sloppily in discussions of digital copying: “sharing.” In a piece posted yesterday (responding to Emily White’s now famous article about her music-copying habits), Free Software Foundation founder Richard Stallman played the don’t-call-it-theft card in discussing the large-scale, unauthorized uploading and downloading of songs. So what does Stallman think we should call it? Misappropriation? Trespass? Unauthorized use? No. We should, he says, call it “sharing.” Calling it sharing puts a happy face on the practice, just as calling it theft puts a sad face on it. It’s the kind of word that short-circuits discussion, runs roughshod over subtleties:

Copying and sharing recordings [is] not a mistake, let alone wrong, because sharing is good. It’s good to share musical recordings with friends and family; it’s good for a radio station to share recordings with the staff, and it’s good when strangers share through peer-to-peer networks. The wrong is in the repressive laws that try to block or punish sharing. Sharing ought to be legalized; in the mean time, please do not act ashamed of having shared — that would validate those repressive laws that claim that it is wrong.

Sharing doesn’t scale quite so easily as Stallman pretends, at least not without twisting the word’s meaning. Sharing is an intimate act, a human act, and we’ve always sensed that it describes an act of generosity between people who are connected in some meaningful, tangible way: friends and family, for instance, or neighbors, or coworkers. If you try to stretch the meaning of sharing to cover anonymous, large-scale exchanges, you distort the word; you lose its essence. Sharing isn’t a transaction in a marketplace or a transfer of data among nodes in a network. The motivations and the consequences of a person uploading some band’s new album to a file-hosting site so that millions of strangers can grab free copies are different from the motivations and the consequences of a person making a copy of that same album for a friend. I find it hard to see much wrong with the latter act, and I find it hard to see much right with the former. In any case, to term them both sharing — and then proclaim “sharing is good” — is to try, through an act of semantic and ethical gimmickry, to erase important distinctions and to try to shut off an important debate.

If we can stop shouting “theft” and “sharing” about an act that is neither, maybe we can open the way for a grand compromise — one that liberalizes our currently onerous copyright laws and widens the scope of fair use while also respecting and protecting the work and the rights of artists.

16 Comments

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16 Responses to Beyond theft and sharing

  1. Sigh …

    1) Where you say “If we can stop shouting “theft” and “sharing” about an act that is neither, maybe we can open the way for a grand compromise …”

    You and what army? (of lobbyists).

    2) Wouldn’t it be fair to note that Stallman did make proposals, instead of leaving the impression with the quote that he’s vapid? (I mean, agree or disagree, he’s walked the walk on his beliefs, and he’s not ignorant or a huckster).

  2. Nick

    I thought Stallman’s two proposals — (1) put fee on Net connections and divide money among artists and (2) put a donation button on all devices to send money to an artist — are well-intentioned and worth considering, even if probably unrealistic. I certainly don’t consider him ignorant or vapid, but I do I think he got a lot wrong in that post.

    As to your sigh, if you like the status quo on copyright, that’s fine, but I happen to see an opportunity to make some worthwhile changes. Call me a pollyanna.

  3. apexc

    Good post. Personally I have never understood why some people are trying to come up with words other than (or in addition to) “copying”. “Copying” rather precisely describes what takes place, it is appropriately morally ambiguous (some copying is good, other copying is bad, still other is neutral), it is already incorporated into important relevant concepts such as copyright and copyleft, etc.

  4. Nick, the sigh is of world-weariness in regards to the topic.

    Copyright Is Broken And Nobody Knows How To Fix It

  5. Tom Lord

    Sharing is an intimate act, a human act, and we’ve always sensed that it describes an act of generosity between people who are connected in some meaningful, tangible way: friends and family, for instance, or neighbors, or coworkers.

    Do we share the use of Boston Commons?

    Do we share our public libraries?

    If the scientists at one of the SETI projects find something, will they share the news with the world?

    Do we share the Internet?

    Do we share international waters?

    Where does the ethos of sharing break, in your view, from legitimate to illegitimate? At what scale or under what condition?

  6. Nick

    Yes, the word “share” can be used with different meanings in different contexts – and you’re right to point that out. I was – as I think was fairly clear – using it in its familiar, personal sense, ie, sharing between individuals (of, say, a music album, or a book, or a garden tool, or a cup of sugar). It’s in that sense – the commonplace, intimate sense – that the meaning doesn’t scale. As I wrote, if I give a friend a copy of a song that I like, that’s a very different act than if I upload that song to a file-hosting site so a zillion strangers can copy it. To pretend they’re the same or even fundamentally similar is misleading and not particularly useful to thinking through the issue in a rational way.

  7. Bruce

    “Sharing is an intimate act, a human act, and we’ve always sensed that it describes an act of generosity between people who are connected in some meaningful, tangible way: friends and family, for instance, or neighbors, or coworkers. If you try to stretch the meaning of sharing to cover anonymous, large-scale exchanges, you distort the word; you lose its essence.”

    On the other hand, what you just penned here limits the meaning of sharing to cover just one set of historical connotations. Diseases are also “shared” and frequently on a very large scale. Granted, the contact required to share a disease is again more often than not personal, but it’s hardly necessary — a sneeze in a crowded market would share as effectively as in a small room.

    Come to think of it, when the item going around is an idea rather than physical, this notion of a disease is more apt than not (though diseases are rarely beneficial to the recipient, unlike ideas). However, I that’s probably a different discussion entirely.

    @apexc
    I don’t think that the term “copying” serves the same purpose as “sharing”, nor does it accurately describe both sides. By implication, if not outright denotation, a person “copying” something is receiving; a person “sharing” something is most often giving.

    Perhaps a better choice would be “distribution”? It is far more neutral and definitely scales from small to large numbers. Still, it implies the actor is giving, arguably even stronger than “sharing”, but it’s getting closer to the neutral ground Nick is wishing for.

    I do agree that our choice of words is critical in framing the debate and can easily short-circuit discussions. Sadly, this kind of emotionally charged framing happens all the time.

  8. Tom Lord

    Nick, I don’t think you have a clear thought here:

    As I wrote, if I give a friend a copy of a song that I like, that’s a very different act than if I upload that song to a file-hosting site so a zillion strangers can copy it. To pretend they’re the same or even fundamentally similar is misleading and not particularly useful to thinking through the issue in a rational way.

    Well, then, please articulate the relevant fundamental dissimilarity between small and large-scale sharing of music files.

  9. Tom Lord

    I think, in other words, that you’re position is basically the ethos of sharing doesn’t apply to anything that upsets some popular schemes for making money off the copyright regime because if it did, that would upset those particular schemes for making money off the copyright regime.

  10. apexc

    @Bruce, I see what you are saying, but most P2P stuff is pulled rather than pushed. And it does not alter much of anything for the party doing the “distribution”. No copying – no distribution, in a sense. The ‘seed’ does not really (selflessly) “share” or (actively) “distribute”, at most (s)he “makes available to copy”.

  11. Nick

    Tom, Your second comment here could hardly be further from the mark, but it does shed light on your first. You apparently have a need to see both intimate sharing and anonymous exchanges as political acts. I have no such need. Is there a difference between kissing a loved one and throwing a kiss to a crowd? Yes, I believe there is, though if you challenged me to “articulate the relevant fundamental dissimilarity between small and large-scale kissing,” I suppose that, after banging my head against the nearest table, I’d have to discuss the difference in terms of affinity, affection, attachment, empathy, informality, intimacy – the real qualities of personal relations that tend to become abstractions at scale. But I sense such terms wouldn’t carry much weight with you. If I said that there’s an important difference between a private gesture and a public one, would that help? How about if I said that a personal exchange is not the same as an automated one? There are a lot of terms in the language that are hard to get a grip on, but I really don’t think “sharing” is one of them.

  12. Nick, forgive me if if I’m misunderstanding, but I think you’re struggling to say that small-scale personal use should not err, share, the same word with large-scale impersonal use. I’m not quite convinced you’re strictly correct as a matter of English usage, that the word isn’t legitimate in all cases – this is what Stallman is very clearly doing in the portion – “It’s good to share musical recordings with friends and family; it’s good for a radio station to share recordings with the staff, and it’s good when strangers share through peer-to-peer networks.” – he has a deliberate progression from more to less intimate.

    What I think you’re actually trying to mean is that the connotations of that small-scale personal usage are being imported to large-scale impersonal usage, and you object to this.

    However, in the copyright wars, that’s a really pedestrian point. Pundit pieces on the need for centrism and bipartisanship (“We must stop this polarized bickering in Washington and the parties should work together, halting their overblown rhetoric, both sides do it – Republicans should not say Democrats are Muslim Communist Terrorists, and Democrats should not say Republicans don’t care about the sick and the poor”) tend to be ignored by the power players.

    P.S.: The next point to make is that whatever the case, “sharing” sure doesn’t apply to the people making significant bucks off running the ads on these sites, see recent criminal cases.

  13. Tom Lord

    Nick,

    If I said that there’s an important difference between a private gesture and a public one, would that help?

    Stallman was talking about laws and repression in relation to music recordings.

    If I understand, Nick, you agree with him that laws against private, intimate sharing are repressive.

    Stallman says that laws against more public forms of sharing music records are also repressive.

    I gather that you think his argument is too weak when he says that both kinds of law are repressive because both make it illegal to share. You counter that “sharing doesn’t scale that way”: the ethical clarity of intimate sharing doesn’t automatically apply, in your view, to public sharing.

    I was asking you to make clearer the distinction: where is your dividing line between private/intimate sharing and public sharing as matters to this discussion about laws and repression and music recordings?

    As I see it, the only direct harm done by public sharing of music recordings is a theoretical harm under particular, historically contingent copyright schemes. For something like music recordings, I don’t see any harm in free public sharing except as it impacts those legislatively created rights that some business models depend upon.

    I don’t see anything essential about those business models. Public sharing seems like a pretty essential consequence of building global networks — traditional copyright doesn’t have that same inevitability and grounding in human values.

    Part of why we share music publicly, I think, is in hopes of creating commonality, community, culture. Even at mass scale and anonymously there is a certain intimacy and inevitability to it, when we try to do good.

    Laws that outlaw such sharing seem to operate only in defense of a very contingent set of economic arrangements arising from traditional copyright-based business models. Such laws, comparing their purpose to their effect, deserve to be called repressive.

    Where’s the line you are trying to draw that says otherwise?

  14. The whole concept of intellectual property, as opposed to real property, is too subtle for most thinkers to wrap their heads around, and all the word wrangling in the world isn’t going to help. OTOH, any kindergartner’s sense of right and wrong is enough to know that when someone creates something, it’s wrong to appropriate it (use some other word that better satisfies of up like).

    What puzzles me is that whereas the trend in many areas of life is to privatize and profit from public institutions that ought to be supported via taxes for the common good (the Post Office, utilities, schools, etc.), the push with intellectual property is to move what is privately owned into the commons, where the usual tragedies threaten but never quite materialize because, unlike real property that can be used up, creative work is just that — creative — and many will do it even without economic incentive or protection.

  15. Ed van Stranden

    @ Tom Lord

    “Public sharing seems like a pretty essential consequence of building global networks — traditional copyright doesn’t have that same inevitability and grounding in human values.”

    Yes it does. Article 27 (2) of the universal declaration of rights: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

    Even if you don’t agree with how copyright laws work right now (I don’t), it seems to me the article above is a pretty basic human value.

    But apart from that, how exactly do public sharing and the right to benefit from ones own work exclude each other? If I like some music I bought, I can share my positive experience publicly. Those who pick up my message could then buy the music for themselves. I really don’t see how this obstructs the supposed need for sharing or creation of “commonality, community, culture”, other than that directly sharing the music is more convenient. But so does not paying for your groceries.

    PS: I bought ‘936’ by the Peaking Lights today. Great album!

  16. Tom Lord

    @brutus writes:

    The whole concept of intellectual property, as opposed to real property, is too subtle for most thinkers to wrap their heads around, and all the word wrangling in the world isn’t going to help.

    I happen to agree with Stallman that there is no coherent concept of “intellectual property”. The word conflates trade secrets, patents (invention and design), trademark, copyright, and the public domain in ways that lead to confusion.

    I agree that the concepts of each of those things — copyright, trademark etc. — are hard to grasp. This isn’t surprising: they are very artificial constructs.

    @brutus continues:

    OTOH, any kindergartner’s sense of right and wrong is enough to know that when someone creates something, it’s wrong to appropriate it (use some other word that better satisfies of up like).

    I think sharing sharing makes a lot of sense to kindergartners.