Regulating the Internet and Why Online Piracy Isn’t Stealing

Courtesy of Wikipedia.

Two bills currently being debated in Congress should worry advocates of user-generated content and free-speech protections: the Protect IP Act in the Senate and the Stop Online Piracy Act (SOPA) in the House. Among other things, these bills seek to hold Internet service providers, content-accumulating platforms (like YouTube, Facebook, Dropbox, etc.), and search engines accountable for the content hosted on their sites. According to Rebecca MacKinnon at the NYTimes:

The bills would empower the attorney general to create a blacklist of sites to be blocked by Internet service providers, search engines, payment providers and advertising networks, all without a court hearing or a trial. The House version goes further, allowing private companies to sue service providers for even briefly and unknowingly hosting content that infringes on copyright — a sharp change from current law, which protects the service providers from civil liability if they remove the problematic content immediately upon notification.

Not only does this seem like a terrible piece of legislation in that it apparently throws the burden of proof onto the defendant, as opposed to the plaintiff; but, as Slate points out, because the content-host as a single entity is held accountable, the punitive measures look very much like collective reprisals that punish the many for the “crimes” of a few. Injunction wouldn’t apply to copyright infringers per se, they would apply to the entire site or ISP hosting the content at issue. The whole site would be blocked and all the users that use the site legally would be silenced while some particular case was sorted out.

As the law stands now (the Digital Millennium Copyright Act), if I upload some form of copyright-protected content onto YouTube, I am the copyright infringer. As long as YouTube removes the material upon discovery or notification, it’s fine. (If they don’t then there are lawsuits and the rest of it.) In this way, YouTube can go about its business of providing a service without having to devote mountains of resources to trolling and screening every piece of content that gets uploaded onto its site. Were this legislation to pass, it’s likely Internet companies would become way more proactive in restricting all potentially illegal content. It would be much easier to preemptively restrict than to deal with all the lawsuits and lost revenue that would follow a government- or other third party-imposed firewall. This would amount to a de facto limitation of free speech.

Interestingly, in all this talk about copyright violations and Internet piracy, very few journalists have attempted to distinguish between actual theft and piracy and the kinds of stuff people do on Internet that gets called that. (Thankfully, at least one Great Power has brought this up.)

Theft is the act of stealing. Stealing is the act of taking something whereby the person doing the stealing gains something while the person being stolen from loses something. Piracy is the act of stealing at sea – and usually includes trespassing and physical intimidation and what not. In both cases, the victim is left without something he previously was with. This is obviously not the case w/r/t copyright infringement and online “piracy.” These latter crimes involve victims being denied benefits they theoretically would have received had they been able to sell the stuff and not have it disseminated without their permission. In the case of copyright infringement and online “piracy” the victim still has the thing that was copied. It’s not theft, it’s copying; and failing to recognize this is to ignore an important distinction. Theft is a zero-sum game, copying is positive-sum.

However, this isn’t to say that copyright protections aren’t important and shouldn’t be enforced. They should. While copying stuff might be a positive-sum game, it certainly leaves the copyee, if they disapprove of the copying, in a different psychological and possibly monetary state. Their rights have been violated and the adulation and or revenue that should have come to them was siphoned off somewhere else. The first amendment does not necessarily protect copying, and in fact, Article 8 section 8 of the US constitution explicitly “secur[es] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

But again, copying isn’t stealing. As Great Power Yglesias (linked to above and linked again) says: “The difference between watching a movie with your friend and copying your friend’s Blu-ray is that one is legal and one is illegal. But in both cases you watch the movie without paying the copyright owner, and in neither case have you stolen anything from anyone.”

To be fair, the reason that the one act is legal while the other is illegal, is because the former is not copying and the latter is. But the point about stealing still holds.

A final thing to note is that copyright laws generally protect those in power who have access to lawyers and are established members of the elite. Lots of different kinds of innovation would occur without these sorts of laws – think about all the patent wars in silicon valley, for example. There’s always a tension between the rights of those who have already innovated and those with the potential to innovate further.

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