Copyright Infringement as Stealing: Pfft!

Note on Copyright Infringement as Stealing

Brendan Scott, October 08

Summary

Infringement does not appear to fit the meaning of stealing or theft because an infringement does not involve either a taking or a deprivation.  Further, intangible rights seem almost impossible to steal by definition.  To use the infringement-as-stealing meme demonstrates something of a lack of respect for language and consequently a lack of respect for the people to whom you are speaking.

Introduction

There is a copyright-infringement-as-stealing meme which has been pushed for some time, but seems to be relentlessly marketed at the moment.  So, for the benefit of those being exposed to it, it’s appropriate to consider what the law actually says about the meaning of words like “stealing” and “theft” and whether it’s possible for a copyright infringement to fall within the meaning of these terms.

Attack of the Dictionaries

This what my Butterworths Australian Legal Dictionary (1997) has to say about what the words mean:

Stealing has no definition of its own, but has a reference to common law larceny and theft.

The definition for larceny is:

“The offence at common law of fraudulently, and without the consent of the owner or a claim of right made in good faith, taking and carrying away anything capable of being stolen, with the intent at the time of the taking to permanently deprive the owner of the property”

The definition of theft is:

“A term normally describing the offence of stealing of larceny… In some jurisdictions it is a term used to describe stealing which is defined in terms different from larceny at common law.  For example, in Victoria theft is dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it”

For the record, my Black’s Law Dictionary Deluxe Eighth Edition (US law) gives similar definitions (incorrect spellings are all [sic]):

steal 1. To take (personal property) illegally with the intent to keep it unlawfully. 2. To take (something) by larceny, embezzlement, or false pretenses.

larceny The unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently. Common-law larceny has been broadened by some statutes to include embezzlement and false pretenses, all three of which are often subsumed under the statutory crime of “theft”

theft 1 The felonious taking and removing of another’s personal property with the intent of depriving the true owner of it; larceny. 2 Broadly, any act or instance of stealing, including larceny, burglary, embezzlement and false pretenses.  Many modern penal codes have consolidated such property offences under the name “theft”

No Taking, No Deprivation, Therefore No Stealing

There are a couple of themes running through these definitions, one of which is that there is an intent to deprive someone of something – and to deprive them of it permanently.   It does not seem possible to shoehorn a copyright infringement into any of these definitions because an infringement does not involve the taking of a thing (or of personal property).  Moreover, nor does it result in a deprivation (nor, indeed a keeping of any thing taken).

Further Note on Black’s Dictionary

In fact, Black’s goes further than the definition above.  They have a special word “cybertheft” into which they put using the internet to “[interfere] with a copyright” – presumably they decided that such an interference didn’t fall within the meaning of “steal”, “larceny” or “theft”.   For your reference,  cybertheft is defined:

cybertheft The act of using an online computer service, such as one on the Internet, to steal someone else’s property or to interfere with someone else’s use and enjoyment of property.  Examples of cybertheft are hacking into a bank’s computer records to wrongfully credit one account and debit another, and interfering with a copyright by wrongfully sending protected material over the Internet.

The copyright example here is, by the way, somewhat tenuous – the authors have not used a copyright term, such as “infringement” to describe the activity, nor have they taken into account any of the myriad complexities of copyright law (what does wrongful mean?  would a fair use be wrongful?).  Presumably the “interfere with” limb of this definition would not withstand scrutiny.  Using the internet to hack someone’s home automation system and (eg) turn their lights off hardly qualifies as “cybertheft” (despite it being a clear interference with someone else’s use or enjoyment of property)  but would pass muster under this definition.

The Impossibility of “Stealing” Copyright

There is another problem for the infringement-as-stealing crowd.  Even if one concedes, for the sake of the argument, that copyright is “property”, as an intangible right it is practically impossible for anyone to steal it.  For example, if I give you the right to mow my lawn once a fortnight, how can someone else “steal” that right?  They might come and mow my lawn before you get there, but that doesn’t deprive you of the right.  You’ve still got it and you can still exercise it.  You might complain to me that I shouldn’t have let them do it because now all the joy’s gone out of the exercise for you, but in no sense have they (or I) stolen anything.  If you were to apply this term to other intangible rights, practically any interference with the use or enjoyment of any right would magically transform into stealing.

Note: This might not be the case in those foreign jurisdictions where copyright is effected through registration.  Someone might commit a fraud on the registrar to have the registration changed to a different owner.  Technically then it may be possible to steal copyright – but that would still not assist in the case of a mere infringement.

Conclusion

Infringement does not appear to fit the meaning of stealing or theft because an infringement does not involve either a taking or a deprivation.  Further, intangible rights seem almost impossible to steal by definition.  To use the infringement-as-stealing meme demonstrates something of a lack of respect for language and consequently a lack of respect for the people to whom you are speaking.