Is copyright infringement “theft”? What’s your gut response?
Surprisingly, the current top dog at the Motion Picture Association of America has come out against describing infringement as “theft.”
Umm, let me get this straight, taking something owned by someone else without their permission is not theft? So you walk into Target with your eye on a top-of-the-line camcorder, slip that puppy into your backpack, then walk out without paying for it, we call that what? I’m willing to bet that even the MPAA’s Christopher Dodd would call that theft.
So what’s different in the copyright context? I ask because Mr. Dodd is not a lone wolf in making this claim.
The U.S. Supreme Court ruled in 1985 that infringement does not “easily” equate with theft. See Dowling v. United States (1985), 473 U.S. 207, 217–218).
This is also the position taken by a noted IP scholar, David Llewelyn (a professor at King’s College London and Head of Intellectual Property at White & Case in its London office), who stated at the IP Law Asia Summit that infringing another’s intellectual property should not be referred to as theft because infringement does not physically deprive the “author” of his/her physical work.
Now, most people would agree that copyright infringement is unlawful. (I’m not talking about instances of fair use, implied or express license, public domain, or protection under the DMCA, etc.). But at the same time, many folks have taken issue with calling infringement “theft” or even “piracy,” believing that it’s important to be precise in our language.
I find referring to copyright infringement as “theft” to be pretty precise. And I think the distinction about no physical possession of the work misses the point.
To parse this, let’s start with a standard definition for “theft.”
According to thefreedictionary.com, theft (n.) means “1. The act or an instance of stealing; larceny.” To steal (v.tr.), according to the same website, means “1. To take (the property of another) without right or permission.” Property (n.) means “1. a. Something owned; a possession.” Intellectual property (n.), just to close the loop, is defined as “an intangible asset, such as a copyright or patent.”
So, applying these definitions: a copyright is a form of intellectual property; property is something owned; taking the property of another with permission is called stealing; and “stealing,” by definition, is theft.
Under a standard dictionary usage of the words at issue, copyright infringement equates to theft irrespective of whether the infringer obtained physical possession of the underlying work.
And this makes sense. Even if the infringer never obtains physical possession of any “tangible works of authorship” as defined by the Copyright Act (see 17 U.S.C. §§ 101, 102)), the infringer still obtains “possession” of those intangible rights granted to the work’s author under Section 106.
These include the valuable right to reproduce, distribute copies, and publicly perform the work, among others. And these are not ephemeral rights. They come with them the right to receive something very tangible: money! One of the most important, underlying rights granted to any author is the right to profit from one’s creation. When an infringer misappropriates a work, he/she also steals the royalties the author could have received but for the infringement.
Just to make this perfectly clear: you want a copy of the work, it will cost you. If you take it without paying, that’s a physical deprivation to the author of the right to collect payment. How is this any different than taking the camcorder without paying for it? In both instances, the thief has taken for free, and without permission, something of monetary value that the owner of that item sought to exchange for a price.
The fact that the infringer does not take physical possession of the copyrighted work itself should not matter when defining infringement as “theft.” Indeed, taking physical possession of the work is separately actionable (civilly) under California law as conversion — or criminally as a theft.
A claim for conversion requires that a plaintiff establish: (1) the plaintiffs ownership or right to possession of certain property; (2) the defendant’s conversion of the property by a wrongful act or disposition of property rights; and (3) damages. Oakdale Village Group v. Fong, 43 Cal.App.4th 539, 543-44, 50 Cal.Rptr.2d 810 (1996).
And interestingly, a claim for conversion is generally distinct enough from a claim for copyright infringement that it is immune from preemption under Section 303 of the Copyright Act. The reason it is immune is because it is a different type of theft — one that involves tangible property, not an intangible such as the right to exploit the work itself.
Also of note, the immunity from preemption for conversion disappears where the plaintiff seeks damages for reproduction of the property — not return of tangible property itself. See Firoozye v. Earthlink Network, 153 F.Supp.2d 1115, 1130 (N.D.Cal.2001). In those instances, conversion and infringement merge (the rights address in the conversion claim are deemed the same as those protected by the Copyright Act), and thus the conversion claim would be preempted. Id.; see also Marketing Information Masters, Inc. v. Board of Trustees of the California State University System, 552 F. Supp. 2d 1088 (S.D. Cal. 2008).
So there’s no reason to preclude use of the word “theft” vis-à-vis infringement absent a physical taking, especially given we already have a civil term for that sort of conduct: conversion; and that sort of physical theft can exist side-by-side with the more ephemeral theft called infringement.
Finally, the Copyright Act itself lends some support to the position that infringement amounts to a “theft,” although it does so somewhat obliquely: All of us learn from an early age that stealing can land you in the pokey. Law enforcement is very concerned with the prevention of theft and punishing thieves. Agreed? So I find it interesting that the Copyright Act likewise has a criminal infringement component.
17 U.S.C. Section 506 states, in relevant part, that “Any person who willfully infringes a copyright shall be punished [criminally] as provided under section 2319 of title 18, if the infringement was committed — (A) for purposes of commercial advantage or private financial gain; (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or (C) by the distribution of a work being prepared for commercial distribution, by 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.”
While I understand that infringement does not typically amount to “theft” in the sense that the copyright owner is deprived of his/her physical work, physical deprivation is not required to meet the dictionary definition of “theft.” The fact that the copyright owner is deprived of his/her ability to receive compensation for the work, deprived of his/her right to control the distribution of the work, deprived of his/her ability to control the republishing and public performance of the work are all instances in which there has been a “stealing” of property rights. I see nothing wrong will calling that what it is: a theft.
Is “theft” the best word to convey what occurs through the act of infringement? It isn’t bad, and I’ve yet to hear better.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP, resident in Los Angeles and Orange County. Mr. Pink heads the firm’s Internet and New Media Team, and can be reached at jonathan.pink@bryancave.com.