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Sunday, 11 October 2009

Copyright Infringement Is NOT Theft

From a legal perspective there is a neat "Special Effect" in every film.

It is in the tiresome small print, usually in the credits but sometimes even before the movie begins, which warns against unlawful copying.

The special effect is to insert the word "criminal" in to complement the word "civil" when mentioning the forms of liability. It really does have a supercharging effect.

However, mere infringement of copyright is not a criminal act.

There are indeed criminal sanctions contained in the relevant UK legislation: the Copyright, Designs and Patents Act 1988. These are generally in respect of the wrongful distribution of copyright material, usually on some commercial basis.

But the private end user copying a copyright work for personal use is not a criminal; he or she is not a thief; their wrongful act is not theft.

As Tim O'Reilly has pointed out, the right term is copyright infringement.

At this point, the vested interests - showing their legal illiteracy - will suggest that I am suggesting that it is somehow alright to infringe copyright.

I am not. An infringement of copyright is still wrong; more precisely it is a wrong, for copyright infringement is a tort and a wrong is what the word tort actually means.

Of course someone committing a tort - the wonderful legal word is tortfeasor - should pay compensation, just as the negligent driver pays compensation to a victim.

I do not support copyright infringement any more that I support negligent driving; but just because it is a wrong, it doesn't mean you can pretend it is also a criminal offence.

And the compensation should correspond to the money lost had the tort not been committed, which for copyright infringement will be the equivalent of a licence fee.

Many people would, I suspect, happily (correct meaning) pay an appropriate licence fee for using copyright material, if only the media content providers would make the works more easily available.

The media content providers are wedded to a commercial model which means they want to pick and choose when to make content available to the public; but the technology and ease of file replication is against them.

It cannot be a pleasant experience, but they are not being set upon by a band of thieves; they are instead suffering a mass tresspass.

I have written before that making money out of recorded music may well turn out to be a hundred year blip in the millennia of the history of music.

(I also suspect that the prevalence of the three minute popular song and half-hour album may also soon cease to exist, as it was only the 45" and 33" vinyl records which made such timings the standard.)

The commercial models may change - and innovations such as Spotify seem to show that the models are changing - and so there may still be a way of making money from recorded music in the copy-and-paste era.

In the meantime, it would be good to hear fewer accusations against end-users that they are thieves.

However, this is not the first time that anxious "property" owners have used the vocabulary of criminal law to deter those likely to commit torts.

For, contrary to all those threatening roadside signs, individual trespassers will not be prosecuted.

Simple trespass to normal private land per se is a tort not an offence.

But they wouldn't want you to know that would they?

21 comments:

Tom Morris said...

There is an important philosophical difference too: to say that something is a crime is to say that the act is serious enough that the act hurts both the victim and the state, and thus society, as a whole, and that the state on behalf of society must do something to punish the offender. That is so not the case with copyright infringement. There ought to be a significant difference in type between downloading some music off the Internet and, oh, raping or murdering someone.

Just wondering, Jack of Kent, what your position is on copyright term length. I think life+70 years is way too long. The Beatles aren't going to be making any new music however long the copyright term is. Eventually things have to go into the public domain, unless we want to be paying royalties on Shakespeare and the King James Bible. Surely, this ought to be driven by public interest rather than profit. And if so, a dramatic drop back from life+70...

Jim Lippard said...

There is such a thing as criminal copyright infringement, in U.S. as well as UK law. You're quite right that copying for personal use doesn't qualify, but in the U.S. criminal infringement includes "making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution." (17 USC 506)

You're also correct that it's still not "theft"--it's copyright infringement.

FelixCatus said...

The term copyright is directly linked to the patrimonial rights of the author in the Anglo-Saxon tradition.

I'm lawyer from Brazil, and I can say that overthere, the law is very generic in this aspect. As it's said in the Brazilian Penal Code (free translation).

"Art. 184. Violate the author's rights and the ones which are with them connected:

Detention, from 3 months to 1 year, or a fine."

In addition to it, if the agent has a lucrative intent, the penalty rises to 2 to 4 years of prison, plus a fine.

Hope this comparison helps.

seborgarsen said...

As usual an excellent and informative post. Thank you.

Owen said...

Of course, there's often a gap between how the law treats a word and how it is commonly used in English. According to the OED, “theft” is a noun meaning "the action or crime of stealing." It doesn't mention the Theft Act anywhere… In a perfectly acceptable English sense, IP violations are theft.

Is downloading music without the proper license a criminal offence? Without having done any research whatsoever (!), I suspect that the Computer Misuse Act (subject to quibbles over what is being "accessed") or the Fraud Act (obtaining services dishonestly, maybe) might furnish something a prosecutor could use were he so minded. If not, I’m sure there’s something out there…

Michael Kingsford Gray said...

Oh dear...
I shall have to inform my sister that her sign is not entirely legally accurate.
The one that says:

"Trespassers will be shot.
Survivors will be prosecuted."


As I mow understand it, the difficulty with the sign is the word "prosecuted"! ;)
You've tort me a lesson.

Andy Gardiner said...

Pedantry, I know, but you could get much more than a 3 minute song on a 45" disc. Or on a 7rpm one.

Colin said...

As a law & ethics lecturer, I cringe at the shameful 'you wouldn't steal a handbag' adverts. If I steal a handbag, I not only deny the handbag owner of the money I should have paid, I also deny him the right to sell that handbag to anyone else. That is untrue with personal-use copyright infringement. Furthermore, if I had no intention of ever paying for the downloaded content, then I haven't deprived him of anything at all.

'The media content providers are wedded to a commercial model which means they want to pick and choose when to make content available to the public; but the technology and ease of file replication is against them.'

Absolutely. I was talking to someone yes'day who is watching downloaded tv series 'True Blood'. Not because she is unwilling to pay for it, but because UK transmission is over a year behind the USA. She has already pre-ordered the DVD boxed sets, so the 'talent' will still get their payment. But they can't tease fans without consequences.

Ben Emlyn-Jones said...

I suspect that the Dan Brown lawsuit was a publicity stunt. A few years ago the Da Vinci Code author Dan Brown was sued by the authors of Holy Blood- Holy Grail for plagiarism. But being a writer myself, I thought that this was impossible. The Da Vinci Code is a fictional novel whereas Holy Blood-Holy Grail is an historical textbook. Brown just used it for research! There's no copyright on historical facts is there? EG: If I wanted to write an historical novel set on one of Lord Nelson's ships I might read a biography of Lord Nelson as research and incorporate what I'd learned in that book into my novel. Surely the biographer couldn't then go and sue me for learning from his information could he?

Colin said...

Some interesting historical context:

http://arstechnica.com/tech-policy/news/2009/10/100-years-of-big-content-fearing-technologyin-its-own-words.ars/2

Thnurg said...

And the compensation should correspond to the money lost had the tort not been committed, which for copyright infringement will be the equivalent of a licence fee.

In the case of an individual making a copy the money lost by the tort being committed is zero. Should the compensation therefore be zero?

While there is a strong argument for the licensing of content there is no real loss when someone make as copy, unless they would certainly have purchased a copy had they been unable to make one themselves.

Tom Morris said...

The amount that courts give for copyright violation is huge. Which is strange as it's not exactly difficult to work out how much the market value is for music or movies. Apple have been selling music downloads for 79p or 99p or whatever for ages. Take number of tracks, multiply by £1 = actual direct loss. There was one judgment in the US recently where an individual defendant ended up owing the record companies over $1 million for downloading music. Every case that's been brought has cost the defendants way more than the actual loss they brought on the media companies.

And the evidence presented has been utter shit. Showing that someone with a certain IP address downloaded some file is not enough in any sane person's book to conclude that a particular person intentionally downloaded that file. Open wifi networks, botnets/malware, IP address spoofing - the list of reasons go on. An IP address is hardly a DNA sample. They want to move from this to treating copyright infringement as being basically a strict liability crime with enforcement being done by ISPs. That's like crack-cocaine level of stupidity.

Jim Lippard said...

Ben Emlyn-Jones: I took that lawsuit as an admission that Holy Blood, Holy Grail was filled with fabrications devised by its authors.

Mojo said...

"I also suspect that the prevalence of the three minute popular song and half-hour album may also soon cease to exist, as it was only the 45" and 33" vinyl records which made such timings the standard"

just to add to Andy Gardiner's pedantry: the three minute popular song format was a result of the limitations of the 10" 78 rpm shellac record, not this new-fangled vinyl stuff.

bender.oh said...

I think that current copyright law as applied to digital media is immoral.

If I were to develop a vaccine that prevents all forms of cancer, I could "protect" it for twenty years. After which my monopoly disappears and I have to compete to continue to make money. This is as it should be as both I and society benefit.

However if I write some crappy novel, which gets turned into a film, Disney and I get to wring every last cent out of the market for life+70 years (for the book) and 70 years for the film.

How can these two equate?

llewelly said...

"However if I write some crappy novel, which gets turned into a film, Disney and I get to wring every last cent out of the market for life+70 years (for the book) and 70 years for the film."


"How can these two equate?"

Obviously, entertainers are more deserving of wealth than those who prevent cancer.


(Raise your hand if you can name 3 actors. Now raise your hand if you can name 3 oncologists. )

exarch said...

Ben Emlyn-Jones:
"I suspect that the Dan Brown lawsuit was a publicity stunt. A few years ago the Da Vinci Code author Dan Brown was sued by the authors of Holy Blood- Holy Grail for plagiarism. But being a writer myself, I thought that this was impossible. The Da Vinci Code is a fictional novel whereas Holy Blood-Holy Grail is an historical textbook.

I think that is the same mistake Dan Brown may have made when he assumed it wasn't a work of fiction ...

nchnch3 said...

It is worth noting that copyright infringement also has nothing to do with robbery and hijacking at sea - that is piracy, and copy right infringement is not....

For that matter can anyone explain what the alleged conection between downloading Hollywood movies and funding terrorism is ? That has been an increasingly common example of the bizzare claims of the copyright lobby.

Crosbie Fitch said...

You may say copyright infringement is a tort, but if copyright itself is unethical, then to use the term 'wrong' can also insinuate more than 'unlawful'.

Allow me to paraphrase Thomas Paine:

The Statute of Anne, by annulling the (natural) right to copy (that is inherently in all the inhabitants), in the majority, leaves that right, by exclusion, in the hands of a few (copyright holders). The privilege of copyright is consequently an instrument of injustice.

Could you recognise that it is at least theoretically possible that the privilege of copyright is wrong, and that infringements of it are therefore not 'wrong' as such?

In the same sense, it may not be 'wrong' for a slave to liberate themself from their owner.

Cathal said...

@Tom Morris
Speaking as a genetics, DNA evidence isn't airtight either.
1) The methods used to generate a fingerprint are agnostic to DNA sequence, only revealing length of certain sites. These lengths can match every once in a while. If you already have a suspect, the odds of a match between evidence suspect being spurious are infinitesmal (estimates vary but 1/200k is close). But if you just pass your sample through a database and find a 'match', you have no right to claim ironclad evidence.

2) It is now entirely possible to generate artificial DNA through easy web systems like mrgene.com, which could allow you to "spoof" DNA evidence at the scene of a crime. I await the first instance of genetic framing with trepidation.

Sorry for the aside. I thoroughly agree with the consensus view here that copying does not equate to theft. However, given the harm that the copyright lobby is doing to democracy and law worldwide (ACTA) at present, I have come to the conclusion that buying media from these companies is actually doing more harm to society than refusing to buy. Good thing I don't miss it much.

kimberly shaw said...

Your information about copyright infringement is as interesting as the comments about it, having had my intellectual property profited by others illegally without my permission. It feels like theft, though you are right, it technically isn't, as I still have my original designs in my possession. While I maintain an income from my own designs, others are increasing their coffers with them illegally. Thanks, I appreciate the info.