Wednesday, December 16, 2009

Hey Copyright Abolitionist Movement: Copying Sometimes IS Theft

Earlier this year, a woman named Nina Paley released an upbeat little ditty onto the internet called "Copying Isn't Theft." It's a catchy tune, and the message is exactly what you'd assume it would be: copying something is not the same as stealing it. The song's argument: when you steal a bicycle, someone is left without a bicycle. But when you copy a movie, there's still a movie left, so no one is disadvantaged!

It sounds Utopian, I know. But in reality, as I will explain, it is a very frightening, very disingenuous message for an artist to be sending to their audience, and I am sure Paley is aware of exactly how much of an oversimplification it is. It ignores some fundamental problems in "copying" both bikes and digital files, it misunderstands the purpose of copyright law, and it misrepresents the kind of copying permitted by the creative commons. In the end, it's nothing more than misleading propaganda for an anti-copyright movement.

But before I get into that, some background, both about Paley and about the creative commons.

Paley and the Creative Commons

Nina Paley, about whom I have written previously, is a great example of someone who had an artistic vision and decided that sharing it was more important than profiting from it: she released her film, Sita Sings the Blues, in full, under a creative commons license, a mechanism for making artistic content more available.

As regular readers (and also annoyed friends who I have subjected to long-winded, highly nerdy rants) already know, I am a huge fan of the creative commons. The creative commons, in short and without getting too nerdy, offers a way for content creators (artists, writers, musicians, etc.) to make their content available without the specific restrictions of copyright. In other words, instead of protecting their content from copying and use, they give up some of their rights, allowing people to more freely distribute, transform, and in general enjoy their work.

In a lot of cases, this is a win-win-win situation: artists get more exposure, viewers get easier access to the things they want to see, and other creators get new stuff on which to base their own creative efforts. It's this kind of situation for which the creative commons is designed.

And Paley's situation was exactly this kind of win-win-win. She's now quite well known, her film garnered a significant audience, and her treatment of both old blues songs and Indian myths has certainly impacted other creators.

But as wonderful as her story is and as shiny and happy as the message of "Copying Isn't Theft" is, both taken together leave us with some problems.

Bikes and Files

The first major problem is the comparison between bikes and files on a computer. This little song asserts that copying someone's movie, for instance, still leaves them with their movie, much the same way that copying someone's bike still leaves them with their bike.

In reality, comparing copying a file to copying a bike does the opposite of what the song would like: it suggests quite a few reasons to discourage this kind of copying.

Because the thing is, we sort of do punish people for copying bikes. If I were to copy your Schwinn bike and then sell it, I would be directly stealing from Schwinn the price of one bike. I'd be guilty of counterfeiting goods; I may not be stealing from you, but I am certainly stealing from Schwinn. Taking a bike is theft of property, and copying the bike is theft of intellectual property (in this case, their bike design and their brand name).

That's what's happening when you copy a film: you're stealing from the film company the price of one of their films. It may not feel like stealing the same way taking someone's bike does (because you are stealing something intangible, the amount actually taken is quite small, and you aren't actually looking the victim in the eye), but there still is a victim, and that victim is still harmed.

So despite what this video indicates, copying really can be theft. The two actions (stealing a bike and "copying" a bike) are both wrong. One is a crime because it deprives someone of their property, and the other is a crime because it deprives a third party of their rightful reward for making that property in the first place. Both take something of value from someone else.

The Purpose of Copyright Law

Fine, I hear you saying, so copying a movie does deprive a movie company of the revenue from selling you that movie. But maybe they shouldn't even be getting that revenue from you in the first place.

That's problem number two. This film really does want you to believe that copyright law is an unnecessary criminalization of what could just be a victimless act: freely copying art. But the film doesn't mention that copyright law is based on an array of already established aims.

These aims are evident even from the very beginning. Our forefathers, the writers of the constitution, believed that movie creators should be getting revenue from creating movies. We provide movie companies with copyright laws so that they can get paid for their creative efforts; if they couldn't, they may stop making movies altogether. Copyright law seeks to incentivise creation.

On a smaller scale, a person who makes films to put food on the table can't afford to give away their product. They make their money by selling copies of their art, and if copying isn't theft, there's no incentive to make that art. The only incentive they have left is to just build their reputation as an artist, but even then, at some point, that reputation has to become a revenue stream. No artist, not even Nina Paley, would commit now to release all of her future work for free. It's just not a supportable business model.

In fact, money as an incentive for creation is almost as old as creativity. The old masters had their patrons (they were paid to create if a rich family liked their work), and the new masters have theirs (they are paid to create if the public likes their work).

The internet maybe changes some of this, considering the low cost of creating things for the web, but sites like Hulu prove that even online content very often needs ad revenue to exist, a prospect made possible by restricting the viewer to only one location at which to view this content. That restriction is achieved using copyright. A successful, copyright-free way of monetizing creativity has yet to be proposed.

So copyright law really is grounded in some very reasonable purposes and seems to actually be in service of artists by design. And judging from the content that actually does get created, the system is at least partially working. This is all conspicuously absent from "Copying Isn't Theft."

Creative Commons Copying

The third problem with the song is that it pretty fundamentally misrepresents what kind of copying the creative commons allows.

Here's what I mean: Nina Paley is pro-copying. As a result, she wants you to copy this "Copying Isn't Theft" video. So, she's put it under a creative commons license. But this license requires any copy to attribute it to her. That means that every copy of this video that is made must refer back to Paley's original. The question is, if copying Paley's cartoon doesn't leave her any worse off, why would she ever place restrictions on what kind of copying can be done?

The fact of the matter is that a creative commons license isn't a mechanism for wholesale copying. It's meant to be a tool for building a creative community. Under the creative commons, if you take Paley's video and chop off the credits sequence with her name in it at the end, you have stolen from her. Copying without crediting actually IS theft. It's theft of an idea.

And I'm not talking about claiming you are the creator of the video when you copy it; that's lying, not theft. I'm referring to the much more common problem of a picture, video, or song being freely copied absent any mechanism for discovering the true creator. Not only does this deprive the creator of rightful compensation (as discussed above), it also deprives the creator of the only other possible incentive for creation: reputation.

The Real Issue

And that's the biggest problem. "Copying Isn't Theft" can pretend all day that copying someone's movie is harmless, but in the end, the video itself (and the legal and philosophical context surrounding it) recognizes that there really is a harm associated with copying without restriction.

We all really do wish we lived in a world where artists created just for the sake of creating, never to expect praise, credit, or compensation. But that world is and always has been a fiction. And so, therefore, is "Copying Isn't Theft," a song set in that fanciful world.

All that I've said in this essay is well established in the world of copyright legal scholarship, so to ignore it and instead make a fun little video unqualifiedly extolling the virtues of copying is reckless at best and deceitful propaganda at worst. The site that hosts this video offers a bit more serious discussion of these issues, but standing alone (the way most viewers will see it), the video's message is just not sophisticated enough.

I'm not trying to argue that copyright isn't broken. I'm not saying that copyright is the best way to encourage creativity. I'd be all for this video if it were instead called "Remixing Isn't Theft" or "Century Long Copyright Terms Are Ludicrous." But copying often IS theft, and to say otherwise, no matter how sweet, catchy, and Utopian it sounds, is to politicize and oversimplify a complex discussion. And that's harmful to artists and consumers everywhere.

More info on the organization behind the video:


  1. To say copyright infringement isn't theft is indeed an oversimplification, because there are cases of copyright infringement where unauthorised copying can be recognised as IP theft, e.g. when a burglar makes and takes a copy of an individual's unpublished manuscript or recording - a privacy violation.

    However, I think Nina Paley and others are thinking only of the case in which someone already possesses an authorised copy and makes an additional, illicit copy. That violates no natural right of any individual.

    Incidentally, the US Constitution only empowered congress to secure an individual's natural exclusive right to their intellectual works. It was suggested to add monopolies in literary works to the Bill of Rights, but this wasn't done. Copyright was simply legislated after the constitution, anyway, i.e. without its sanction.

  2. Well, the problem with that line of thinking RE: what is and is not theft when copying is that even an additional copy of a legally obtained thing is still theft if it detracts from the potential market of the thing you are copying. Making a copy of a CD you bought legally and giving it to someone else means one less legal copy sold, which amounts to theft of that potential sale.

    What you MIGHT be thinking of is fair use, which is an acknowledged allowance for types of "theft" because they are socially important or on a very small scale. I think it's important to distinguish between socially acceptable theft and socially unacceptable theft, not try to convince people of the falsehood that making illegal copies of stuff isn't theft.

    As to your last point, it contains some factually correct stuff, but it way oversimplifies the issue and belittles the role of the judiciary as the arbiter of the constitution's actual scope.

    Either way, the bottom line is that real talk about how our copyright system and legal system work is more important than rhetoric. It all starts with good conversation. I'm glad you found something worth thinking about in the post. Thanks for reading!