Stealing a Copy?

In one of my chapters, “Intellectual Property in a Digital Age,” of Robert Leston’s and my book Beyond the Blogosphere: Information and Its Children, I write:

The laws and economic models in use today do not reflect… changing realities of either IP [Intellectual Property] or of the possibilities of copying. At some point, in law at least, we are going to have to play catch-up by reexamining just what we mean when we say ownership. Our current assumptions and legal structures will no longer suffice. (67-68)

I thought of that this morning as I read Stuart Green’s op-ed in today’s The New York Times. He writes:

[W]e should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind. Second, we should recognize that the criminal law is least effective — and least legitimate — when it is at odds with widely held moral intuitions.

It’s nice to see that I am not alone in seeing our assumptions about theft of IP as being insufficient in a digital milieu. My comment came on the heels of a discussion of the views of Marcus Boon’s In Praise of Copying  and a Las Vegas Times op-ed by Stephens Media CEO Sherman Frederick, who equates stealing (copying) of copyrighted material with stealing his sports car. But the two, as Green makes clear once more, are not at all the same. And they are not the same for reasons far beyond the false equivalency engendered by the use of the word “stealing” in both cases. Stuart writes:

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. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.

Furthermore, as I write:

Questions of ownership–and more–of IP (creations having no distinct and necessary unique physical presence) change as soon as any particular work becomes public (or is utilized discretely but for public purpose), if for no other reason than it is then covered by copyright, patent, trademark, or trade-secret laws. It loses its simply property status and becomes part of the intellectual commons, though with a great deal of restriction. (68)

Not all types of property are treated the same in law now, but the distinctions are glossed over by many who want to protect the ownership of IP from any infringement.

Green traces current confusions back to a 1962 Model Penal Code, but I think the problem has antecedents much older (and I am sure Green would agree), stemming from the development of the modern concepts of authorship and creativity that developed through the 18th century. By 1826, certainly, Noah Webster could (in a letter to his cousin Daniel Webster) make an argument for “placing this species of property, on the same footing, as all other property, as to exclusive right & permanence of possession.”

In the 21st century, it is certainly time that we start questioning assumptions of ownership stemming from a time before the photograph, let alone the Xerox copier and the more recent and explosive digital possibilities.

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