Note: I actually submitted this as an op-ed piece to the New York Times which is why it’s far less technically voiced than my normal work. Unfortunately looks like I’m not getting picked up there, so I’ll just have to stand on my own soap box.
One day, Terry walked into a popular record store, slid a CD into his back pocket, and left the store without paying. The same day, Ian visited his favorite file sharing website and downloaded an album (as it happens, the same one that Terry shoplifted) without purchasing it or obtaining permission from the artist. If you think that these two cases sound almost identical, then you have likely fallen prey to a spreading and dangerous misnomer that has become nearly pervasive: conflating theft and copyright infringement.
In the story above, Terry has committed theft, a criminal offense under state laws. In legal terms, theft is taking the property of someone else without consent and with the intent to permanently deprive them of the property. Ian, however, is not guilty of theft but rather copyright infringement: he has created an unlicensed copy of a copyrighted work. By downloading an album from a file sharing service he has not taken it from anywhere but rather duplicated it. While each person is entitled to his or her own opinion as to the difference in morality or ethics between the two, one thing is clear: from a legal perspective these are very different illegal actions.
Theft is a criminal offense and is punishable by a wide array of remedies including jail time. Copyright infringement, on the other hand, is a civil infraction and can incur a lawsuit but cannot be prosecuted as a criminal offense (some instances of copyright infringement do warrant criminal punishment, but not as theft). The difference between criminal and civil infractions in our legal system is great: criminal infractions must be tried with the famous burden of proof of “beyond a reasonable doubt” while civil infractions are tried in court with a burden of “a preponderance of the evidence” (that the party is more likely guilty than not). The difference in burden is attributable to the weight of punishment: one cannot be jailed for a civil infraction, only fined.
Copyrighted works such as books, movies, songs, and even software are all protected by federal law for the purpose of encouraging their creation. “Intellectual Property” is the term given to these types of works and, in the United States, we have three means of protecting intellectual property: copyrights, trademarks, and patents. Intellectual property is something that cannot be stolen because it is, by definition, intangible. You might say that someone “stole your idea” but what you really mean is that someone copied your idea. How can someone have stolen your idea if it’s still in your head? I can understand how this confusion comes about, but while it may feel like a technicality it is actually a very important distinction.
I’m not surprised when representatives of copyright holders call infringement theft; it is to their direct benefit to create a direct equivalency between intellectual property rights and real property rights. What continues to shock me is seeing this confusion trickle its way into the vocabulary of everyone from Harvard law professors to members of Congress. It is frightening to think that this misnomer is being used by the very people who are currently debating laws regarding copyright infringement with sweeping ramifications.
My plea is simply this: stop thinking that these two terms are interchangeable and using them as such. Sure, “stealing” and “theft” are shorter and sound a lot more sensationalistic and juicy when one is talking about the issue of copyright infringement. But please at least use a term like “piracy” if you want a one-word term for the behavior. It may not be any more accurate but it doesn’t share the same effect of confusing everyday people about our legal system. Until there is a law decreeing that copyright infringement is a criminal offense punishable in the same manner as theft, one thing is certain: theft and copyright infringement are NOT the same thing.
P.S. I started a Tumblr to record these misnomers, feel free to submit one if you see it.