A Thief By Any Other Name

Expert publishing blog opinions are solely those of the blogger and not necessarily endorsed by DBW.

Whenever there’s a high-profile crime it’s only a matter of time before someone belittles the victim. That’s what seems to be shaping up in the Justice Department’s indictment of file-sharing behemoth Megaupload on charges of massive copyright infringement. Stuart P. Green, a Rutgers Law School Professor blogging in the New York Times, writes “Whatever wrongs Megaupload has committed, it’s doubtful that theft is among them.”

Unless Green has a better word for it, I’m sticking with theft.

He argues that the complexities of modern intellectual property law have obscured the simplistic legal standards by which theft is measured. Those standards were set in 1962 when the American Law Institute issued the Model Penal Code defining property as “anything of value.” “Henceforth,” says Green, “it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly.”

Green’s beef with the Institute’s definition is that contemporary media and services like the Internet blur moral and legal principles. “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. His authority? “Lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.”

We don’t know who these “lay observers” are, but they don’t seem to have spent much time speaking to victims. If they had, they might have heard something like this from an author: “If I was in a bookstore, would I just drop this book in my purse and walk out of the store? Because that is exactly what you are doing when you download a book without buying it.” (See Are Downloaders Better Than Muggers?)

The subtle intricacies of modern life make it easy to rationalize crimes like stealing and call them something else. But calling theft a non-crime doesn’t make it a non-crime. Green may have many other words for the deed (the book that he and a social psychologist are writing is called 13 Ways to Steal a Bicycle: Theft Law in the Information Age). But for victims there’s only one way to say it: “I’ve been robbed.”

Judge for yourself: When Stealing Isn’t Stealing by Stuart P. Green.

Richard Curtis
For a complete archive of postings by Richard Curtis about piracy, visit Pirate Central.

2 thoughts on “A Thief By Any Other Name

  1. dave

    How about taking a few moments to consider exactly what the “sellers” of ebooks are doing. They charge prices that are simply unjustified in light of distribution costs and pay the author far less than what would be reasonable for the only participant in the process who has made a worthwhile contribution. In return the buyer only receives a very limited right of access to what they pay a very high price for. They don’t “own” the e-book since they cannot resell it, they can’t give it away, they typically can’t read it on another device, they can’t make a backup copy, they typically can’t recover it if lost. Hell, I’m surprised we’re actually allowed to read the damn things without accruing daily usage fees…Dave



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