Copyright Infringement Is Not Theft

Theft implies loss; and for loss to occur (whatever the circumstances) there has to be a change in stasis from "having" something to "not having" it. Copying something creates an identical duplicate of something, it does not change the stasis of the original. So let's work through possible angles to explain "loss".

Lost stock? "Copyright infringement is stealing, it's no different from leaving a store with a physical piece of stock that you haven't paid for." Wrong, if you have 10 items of stock and 2 are shoplifted, you're left with 8 items of stock. This is theft. You've lost stock. Instead of being able to sell 10 items, you can now only sell 8. That stock cost you £X per item, you've lost £X x 2. 

That stock is an investment you would have made a profit on, so those 2 stolen items have denied you the opportunity to make your profit on them. This is only an opportunity, since you don't recoup the cost of buying the item or the profit made from it until it's sold. If it's never sold you don't make that profit. If you have to discount it, the level of profit drops. If you have to drop it below cost price to sell it, you still lose money on it.

So how about the lost sale? I've already blogged about this before, but we'll cover it briefly here. Most of the people who use your stuff illegally would never pay for it. If they were forced to either pay for it, or not use it, they would choose not to use it. They were never your customers, you never had their money, so you haven't lost what you never had in the first place.

If you count every illegal install or use as a lost sale, it means those are your customers; so why are you suing your own customers? Is this a secret chapter of a business guru's masterclass in customer relations? If a company either sue me or threaten to sue me, demanding settlement fees to avoid going to court, what are the chances that I'll continue being a customer of theirs? It doesn't give that warm and fuzzy "we really appreciate your custom" feeling, specially when money is tight and companies have to try harder than ever to retain or gain customers.

How about rights over how the software is to be used, distributed etc? For this to be true, the rights to something must act like a baton in a relay race, passing from person to person to person. When P2P site 1 hosts a link to download your software, have they stolen your rights to it? When you go to court to protect them does the judge say "sorry, but you don't have the rights to that software anymore, P2P site 1 does since they stole them from you."

What happens if P2P sites 2, 3, 4 and 5 all copied the original version and made it available illegally for free? Who owns the rights to it now? Did they get in before P2P site 1? P2P site 1 stole your rights after all, so it's them who now own the rights, not you or P2P sites 2, 3, 4 or 5. What happens if they copied it from P2P site 3 and made it available elsewhere, do they now own the copyright on it? If it was stolen by someone else, they didn't steal it. If it worked like that, the solution would be to find out who currently has the the rights, ie whoever stole it last, and steal it back from them by copying it. The flaw in this plan is that if someone then steals it from you after that, you're on the hunt again.

How about loss of branding? Or the customer associating that brand with inferior quality good? For that, customers have to buy the copy under the belief that it is genuine. This would mean it's being sold as the original, official licensed product. Most flea-markets have their CDs and DVDs with titles written on them in marker pen, often with no cover other than a blank CD jewel case. Even those with covers make it pretty obvious that it's not official, so there's no confusion in the customers mind.

When flea-markets the world over are busted for having boxes of CDs and DVDs of stuff rights holders own the rights to, it's still not theft. Those blank CDs or blank DVDs burned with PC burning software were never owned by the rights holders to begin with. If there is some effort to disguise it as an original with a cover, inlay card etc, that'd come under the description of forgery, or counterfeit. If your official goods are indistinguishable to customers from cheap bedroom knock-off's then you have a much larger problem on your hands.

Remember to lose something, you have to have had it in the first place, and to no longer have it. In the real world, the rights holders don't lose their rights. They can still enforce them against any infringer's they see fit. Just because it's not theft, does not mean it's not an offence or should not be punished. It is, and it should be, but it's copyright infringement.

So does it deny the customer the proper official experience, as set down by the creator? Yes I'm sure there are plenty of people who love having the DRM experience by having invisible blocks put in their way when they try to rip their CD to listen to on their MP3 player, or find that they now have an extra program they never installed on their PC, or find that they can't back up the digital copies of their ripped CD as the action gives some cryptic unknown error while refusing to copy. Perhaps they miss out in the fun of entering product keys only to find the DRM authentication server can't be reached at the time so they can't install at the time, or the fact that every time they want to run the software, they have to dig the CD out and insert it into the drive.

This is the "official" experience for more and more users thanks to the consumer hostile DRM policies insisted upon by corporations to "protect" their work. DRM only punishes genuine customers. An unofficial version with the DRM ripped out or bypassed improves the user friendliness of the product. Many people use unofficial versions of things they've still bought, because the lack of DRM makes it practical.

Not only is the "official" experience often inferior due to DRM, it does not deny it to anyone either. Just because there is a copy doing the rounds, it does not magically transform the official versions. Those are untouched, so people who pay for the official versions are not denied the official experience.

Linking the terms wrongly is something the front groups and lobby groups insist in doing at every opportunity to enable even stricter laws in their favour. They constantly make claims that have long been debunked. They constantly use emotional terminology to illicit an emotional response in favour of what they want. Linking "copyright infringement" to "theft" is only one of their lies.

When you start using the same language use as the RIAA, MPAA, BSA and many others, you become part of the propaganda used to change laws which will hurt users. These are the people who pay for reports by their partners to produce specific results, then exaggerate to make them show something which doesn't exist, and hide their connection to paying for the report. These are the people who create all sorts of non-profits who seem to be unconnected, give no indication of their source, then proceed to send copy / pasted letters in support of proposals their masters are trying to get written into laws.

Copyright infringement is copyright infringement, theft is theft. They are not the same thing, although if these corporate lobbying campaigns work, they will be legally classed as the same.