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.