You know the cliche in movies and TV shows where one character distracts another by looking aside and saying “What’s that?” only to punch the other character while he’s distracted? I see that a lot in the comments sections of news columns and blogs dealing with copyright.

In this BBC News column, for example, Darren Waters dismisses a lot of those “What’s that?” attempts regarding the illegality of unauthorized uploading and downloading:

I’ve heard a lot of rhetoric from both sides and the arguments of those who defend their use of file-sharing sites tend to be:

•Music is too expensive
• I download music for free to get a taste and then buy the album
• Downloading some songs for free encourages me to buy more music overall
• The entire structure of the music industry is just flawed beyond repair
• The music industry is making enough money already
• The copyright laws need to be overhauled for the 21st Century

I’ve probably missed a few off. But I have to say that to my mind not one of those arguments is justification for stealing. I actually agree with some of the points and over the years have also felt frustrated by the attitude of record firms. But is that a reason to steal?

Instead of actually addressing these bullets, however, the commenters instead take issue with his word “steal.” To them, downloading a song or movie without paying for it is not stealing, it is “copyright infringement.” Apparently this distinction matters to unauthorized P2P file-sharers. Some go on to say that it can’t be stealing because, since the work is intangible, nothing is “taken” from the artist.

Nothing, except for their rights, including their right to compensation.

Waters attempts to address these commenters:

UPDATE: A few people have questioned my use of the word stealing. Arguing that it is copyright infringement and not stealing. There may be a point here but to my mind this is semantics. It’s a bit like breaking into a car, driving it around and then abandoing it. I believe it’s called Taking Without Consent in legal parlance. Stealing to everybody else.

Well put. But I’d be more generous to the commenters and say the car was returned to its rightful owner and was taken when the owner didn’t need it. After all, they claim that copyright infringement causes no harm to the owner. But of course there are two harms here, just as there are with infringement. The joy trip used gas and put miles on the vehicle. And more importantly, the joy trip violated the right of the owner to decide what happens with her car.

Another “What’s that?” that we hear to set us up for the punch and keep the debate off issues of creators’ rights is the distinction between physical and online piracy. Interestingly enough, there are some supporters of unauthorized file-sharing who oppose the criminal act of replicating and selling physical DVDs and CDs, such as this case.

I’m pleased they share our concern with counterfeiting; it’s a concern Congress also shares. But why the distinction? You hear two “What’s that?” reasons: 1) It is for profit and not a “personal” use. 2) It involves a physical property.

But instead of looking at it from the perspective of the infringer — profit motive and technological tools needed to replicate — let’s instead look at it from the creator’s perspective. What is taken when a work is counterfeited.

Nothing, except for their rights, including their right to compensation.

Lost sales result from both. In both cases, someone has a creative work without the creator being compensated. There is no difference to the creator between physical theft (yes, I’m using the word “theft,” feel free to focus on that instead of the larger point) and online theft. Both harm creators, and both provide a disincentive for the creation of new works. Presumably we all want these works created because so many are stealing them. One commenter is so consumed in this culture and these rationalizations and “What if?” feints that he can’t actually believe that the BBC writer doesn’t infringe.

It is in an infringer’s self-interest to maintain that lack of self-awareness. That is why we will always have people taking others’ works and thus denying them their rights, legal or otherwise. But hopefully we can have more people like Darren Waters, who dabbled in unauthorized downloading and realized it wasn’t the way to go. I know a lot of people who followed this path, generally as they became older and took on more responsibilities in the world, and thus were less me-focused. But as those people mature new ones come along, short on cash and long on time, so the advocacy for creators will have to continue.

This entry was posted on Monday, July 7th, 2008 at 10:00 am by Patrick Ross and is filed under blogging, capitol hill, copyright law, copyright opponents, counterfeit, creators, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.