Piracy Is a Form of Theft, and Copyright Infringement Is Neither

Copyright infringement is illegal, and like many things that are illegal (jaywalking, driving a car with an expired license), it doesn’t have anything in common with stealing except for the (not unimportant!) fact that it’s illegal. Piracy, by contrast, is a special form of stealing committed on the high seas. It involves rolling up to a boat, and taking stuff away from the occupants of the boat. Normally one accomplishes this by threatening to kill the occupants of the boat, and from time to time people actually get killed. By contrast, nobody has ever been killed downloading an authorized copy of a Katy Perry song or sharing the license key of a copy of PowerPoint with a colleague. Sensible people understand this, which is one reason that the content industry’s efforts to get copyright infringers treated like dangerous violent criminals has fallen into increasing discredit.

Interestingly, some industry insiders think the problem is that they’ve chosen insufficiently evocative metaphors:

“Our mistake was allowing this romantic word — piracy — to take hold,” Tom Rothman, the co-chief executive of Fox Filmed Entertainment, said in an interview last week in Washington.

“It’s really robbery — it’s theft — and that theft is being combined with consumer fraud,” he said. “Consumers are purchasing these goods, they’re sending their credit card information to these anonymous offshore companies, and they’re receiving defective goods.”

Romance has nothing to do with it. The problem with trying to convince people that copying something you don’t have permission to copy isn’t like taking something you don’t have permission to take. If I steal your car then you don’t have a car anymore, whereas if I duplicate a digital media file we both end up with it. The harm in the duplicating is supposed to be that by duplicating content that Fox Filmed Entertainment owns the copyright to, I’m depriving Tom Rothman of some revenue that he might have gotten had I instead gone out and bought a copy of the content for myself. That’s fair enough for Rothman to feel sad about, but it’s a totally different kind of thing. I didn’t buy DC’s animated film of Batman: Year One, and I didn’t pirate a copy either; I watched it at a friend’s house. The difference between watching a movie with your friend and copying your friend’s Blu-ray is that one is legal and one is illegal. But in both cases you watch the movie without paying the copyright owner, and in neither case have you stolen anything from anyone.

This is not to say that we need to endorse anarchy! There are perfectly good reasons for the rule to be that you can only cross streets in certain places and at certain times. At the same time, jaywalking isn’t stealing. And nobody thinks that America can or should implement a zero tolerance policy for jaywalking. It’s totally appropriate to have rules against jaywalking, and it’s also totally appropriate that the rules are imperfectly enforced. A world in which nobody ever jaywalked would be a world in which lots of people were wasting lots of time.