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Digital piracy wrong but not 'theft,' professor says

Compiled by Michael DeGroote

For the Deseret News

Published: Wednesday, April 11 2012 10:45 a.m. MDT

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Related: Stealing public's trust

People aren't buying it.

The music and movie industries want to equate illegal downloading with theft, but an op-ed article in the New York Times by a professor at Rutgers Law School says that is wrong headed and simply a rhetorical strategy or PR move.

"The problem is that most people simply don't buy the claim that illegally downloading a song or video from the Internet really is like stealing a car," Professor Stuart P. Green said.

Green said illegal downloading is a real problem and people who produce creative works should have legal protection to profit from their efforts. "But framing illegal downloading as a form of stealing doesn't, and probably never will, work," he said. "We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation."

In a paper published by the Journal of Empirical Legal Studies, Green and co-author Matthew B. Kugler of Lehigh University found study participants "drew sharp distinctions across both means of theft and type of property."

They concluded that crimes needed "fair labeling" to reflect widely held views about the magnitude and type of law breaking.

And calling copying theft didn't fit the perceptions.

A 2004 study looked at industry "claims that file sharing is the primary reason for the recent decline in music sales." The conclusion of looking at downloads and U.S. sales data for a large number of albums?: "Downloads have an effect on sales which is statistically indistinguishable from zero."

Freakonomics.com said, "In economic terms, intellectual property is non-rival, whereas tangible property is rival. As a result, the 'piracy' of intellectual property is simply not the same sort of zero-sum game that car theft — or theft of any tangible property — is. And that means when Hollywood or the U.S. government says that music or movie downloaders are 'pirates' or 'thieves,' they are indulging in a bit of loose rhetoric."

The underlying assumption in the theft analogy is that every time a person downloads something illegally they are taking money from the creator of the work. Felix Oberholzer-Gee of the Harvard Business School, one of the authors of the 2004 study, told the New York Times why the analogy is flawed.

"Say I offer you a free flight to Florida," he said to the New York Times. "How likely is it that you will go to Florida? It is very likely, because the price is free."

But without a free ticket, the chances you would fly to Florida are not very likely. In the same way, he said, "free" music or movies may attract a lot of people, but it doesn't mean they would buy the CDs or DVDs if they couldn't get them for free.

An animated video on YouTube by "QuestionCopyright" (a "free culture" advocacy group that argues "freedom-based distribution is better for artists and audiences") features catchy music lyrics illustrating the difference between traditional conceptions of theft and copying:

Copying is not theft.

Stealing a thing leaves one less left.

Copying it makes one thing more;

That's what copying's for.

Bevin Carnes, an animator who blogs against free culture at Huffington Post, doesn't buy the line of reasoning. "Most people have a general sense that it's probably wrong, but they'll keep doing it anyway, because they doubt that anyone will really get hurt as a result of their actions," she said.

Carnes explained that illegal copying destroys the business model that creates the original. "Your actions have now caused a chain reaction that has robbed good people of their dream of producing good work that you can enjoy in the future," she said. "People are 'sharing' movies and music with the thought that no one is getting hurt in the transaction. They don't realize how many people were involved in the process of creating those original films and songs and that when these creators are deprived of compensation for the use of their work they go out of business."

But, as Freakonomics.com said, "There are, in general, good moral reasons not to take what doesn't belong to you."

It's bad and illegal — but just don't call it "theft."

EMAIL: mdegroote@desnews.com, TWITTER: @degroote, FACEBOOK: facebook.com/madegroote

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