Discussion Groups / English Usage / February 2010

In our last episode,
<b724674f-8d8f-4e2b-8a2a-ed15e31e993d@f12g2000yqn.googlegroups.com>, the
lovely and talented Berkeley Brett broadcast on alt.usage.english:

Yes.

Of course the victim in the theft of music is the artist.

[...]

I don't much like it, but then I didn't much like the way the professor
of genetics currently speaking on the radio used the word 'alibi' three
times just now to mean 'excuse', as in criminals using their genes as an
alibi for their wrongdoing.

You can construct an argument that references to stealing and to theft
are shorthand ways to signal that a person's exclusive right has been
voided. This right is a valuable property of an intangible kind, and to
ignore it is to steal it. Indeed, there are some who speak of a patent
being "awarded" to an inventor, as if it were a prize or an honour,
though it would be more realistic to say it has simply been granted or
issued upon the request of the person who applied for it, or to their
nominee (assignee).

Making an image of a digital file from someone else's copy without
permission is much the same as stealing a photograph of someone. We do
use the word 'steal' in that sense with no difficulty. If they consider
themselves a celebrity with commercial rights to their image, they may
well regard it as theft. That kind of personality right isn't common
round the world, though.

That's industry-speak to make it sound like a more heinous crime.
Copyright violation is what it is, yes, copyright violation.

No need to muddle terms,

Jan

The swain who steals a kiss from his lass has not deprived her of
anything.  The trader who steals a march on his competitors has not
deprived them of anything.  The second banana who steals the show has not
deprived anyone of anything.  And so on and so forth.

For the curious, as of 1984 (the most recent copy I have), the Penal Code
of the State of California defines theft in salient part so:

 Every person who shall feloniously steal, take, carry, lead, or drive
 away the personal property of another, or who shall fraudulently
 appropriate property which has been entrusted to him, or who shall
 knowingly and designedly, by any false or fraudulent representation or
 pretense, defraud any other person of money, labor or real or personal
 property, or who causes or procures others to report falsely of his
 wealth or mercantile character and by thus imposing upon any person,
 obtains credit and thereby fraudulently gets or obtains possession of
 money, or property or obtains the labor or service of another, is
 guilty of theft. . . .

There is a great deal more, but it all builds on that poorly punctuated
block.

That provision is in the large chapter headed "Larceny", which also notes
that any reference to larceny, embezzlement, or stealing is to be taken
as referring to "theft".

Later in that same chapter, there are provisions relating to computer
crimes.  Those are too lengthy to quote, but the key points are fraud or
extortion to obtain money, property, or services; getting or tampering
with others' credit information; and altering, damaging, or deleting
programs or data.  But it does expressly note that "property" includes
data and programs.

So, in sum, it looks as if to the law (and I assume most states' laws in
these matters more or less parallel California's) taking an unauthorized
copy of a program or of data is included in the crime of theft.

As a sidebar, someone who took an unauthorized copy of a piece of music
from your computer is stealing, but not so much from you as from the
entity that owns the distribution rights to that music.  But I suspect
that is a matter for civil, not criminal, law.

Berkeley Brett <royaloui@gmail.com>:

It's the rights-holder that is deprived rather than you. And I'm happy
with the word "theft" as shorthand in such circumstances.

Where it all gets messy is the amount of the loss. The loss of your
bicycle is fairly easy to evaluate. But that copy of an MP3 file is
often valued at whatever amount the rights-holder would have asked for
it had they been given the opportunity (and if they were willing to sell
it to you at all). This is not an actual loss.

From the jurisprudential point of view, this argument is simply
too late to be considered.   Since the invention of copyright (in
Shakespeare's time in common law, in 19th century legislation)
Anglo-Saxon laws apply to it the model of patented intellectual
property and its infringement.   If you copied one of James Watt's
new steam engines, your crime was denial of the fee or royalty you
ought to have paid Mr. Watt:  and similarly for the copier of sheet
music or a recording.   A wrong has been done although that
wrong is not deprivation of use or enjoyment.

Berkeley Brett skrev:

Under Danish law theft (tyveri) only happens if something
tangible is removed from the owner(s control). Money in any form
is a tangible object.

I think burglary is "indbrud" (in-break) in Danish. This only
involves forced entrance - where the force may be only what is
needed to operate a handle.

If violence or a weapon is used as a threat or to attack with
during a theft, it becomes a robbery (røveri).

So in Denmark illegal copying is not a theft, and it is not
punishable under our criminal law.

Incidentally, according to Rolling Stone magazine, the famous $1.9
million judgement against a Minnesota mom for file sharing has just
been slashed to $54K by a district court judge:

http://tinyurl.com/yhso4g4

=== begin quoted text ===

Judge Slashes $1.92 Million RIAA Ruling Against Minnesota Mom

1/22/10, 4:25 pm EST

A Minnesota District Court judge has significantly slashed the $1.92
million fine against Minnesota mom Jammie Thomas-Rasset, who was sued
by the RIAA after illegally downloading 24 songs through peer-to-peer
networks. In a decision announced today, Judge Michael Davis found
that the decision to fine Thomas-Rasset’s $80,000 per song was “simply
shocking” and downright unconstitutional. Davis then sliced the
penalty to $2,250 per song for a grand total of $54,000 — a 97 percent
drop from the previous sentence, Copyrights & Campaigns reports. The
major labels named as plaintiffs in the case now have seven days to
decide whether to accept this fine or let Thomas-Rasset go to trial
for a third time.... (more in the article)

=== end quoted text ===

--
Brett (in Berkeley, California, USA)
http://www.electoralmaps.org/
Pictorial election results for every U.S. Presidential Election from
George Washington to Barack Obama.

No.

Yes.

No.

The conflation of copyright infringement and theft is propaganda, pure
and simple. It is notable that the usage comes almost entirely from
parties (and in particular large corporate parties) with vested
financial interests in the area. It is clearly calculated to hook into
people's established views of proper behaviour ("Copying is theft, and
theft is wrong, so copying is wrong"). In the process it attempts to
sideline any objective debate about the topic and to win self-serving
legislation by stealth. It's not an abuse of language that anyone who
values the concept of a society governed on grounds of fairness and
rational, considered law-making should allow to pass unchallenged.  

The whole concept of copyright is a very modern and artificial one.
The first real copyright act wasn't until 1709 (UK, Statue of Anne),
and the concept wasn't established internationally until as late as
1886 (the Berne Convention) - within my own grandfather's lifetime.
It's also very much a technical, social-engineering concept - give the
creator of a work a protected period in which to profit from that
creation, without depriving society as a whole of its benefits in the
longer run. It's emphatically *not* been a concept that copying itself
is wrong or even remotely undesirable (something that is demonstrably
and emphatically not true; the whole concept of human culture is
defined by and underpinned by shared - i.e. imitated and copied -
values and behaviours).

As for the specifics of music copying - it's a complex subject, but
the detail, when examined independently, has not tended to bear out
the strident, simplistic arguments of the large media corporations
("one download = one lost sale at full market price" - the average
10-year-old could poke a couple of holes in that). On the contrary,
such objective studies as there have been have been pretty consistent
in showing that unauthorised** copying *increases*, rather than
decreases, music sales. And very recent figures issued by the record
industry itself show that, far from being mere thieving leechers, file
sharers on average spend a third *more* on music than non-sharers, and
are *twice* as likely to subscribe to paid download services.  None of
which will stop the big media companies from spending large sums each
year in lobbying to get laws passed to protect their old and
now-probably-broken business models; nor, based on the evidence, is
the average politician inclined to make the effort to look beyond that
lobbying and understand the complexities.

[** Almost all copying is unauthorised, not illegal. An act isn't
illegal until a court examines the facts and determines that an
offense actually took place. In the case of music downloading there
have been almost no such findings.]

It's unclear whether or not, in the age of the internet as it is
developing, there actually exist any business models which will
continue to allow corporate profit (on a scale remotely similar to
that of the late 20th century) to be made from music. It's certainly a
matter for society as a whole to decide, though, whether there is a
need for such a sector - not something to be forced through ito its
own advantage by big business (which is what we're currently seeing).
The whole subject of intellectual "property" is, in my opinion
overripe for a broader debate on what society wants and needs from the
law - but sadly, it's hard to see that happening in the current
climate.

Cheers - Ian
(BrE: Yorks., Hants.)