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Originally Posted by Fbone
US Supreme Court Justice Breyer wrote in his concurring opinion:
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In any event, the evidence now available does not, in my view, make out a sufficiently strong case for change. To say this is not to doubt the basic need to protect copyrighted material from infringement. The Constitution itself stresses the vital role that copyright plays in advancing the “useful Arts.” Art. I, § 8, cl. 8. No one disputes that “reward to the author or artist serves to induce release to the public of the products of his creative genius.” United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948). And deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft. See, e.g., 18 U.S.C. § 2319 (criminal copyright infringement); § 1961(1)(B) (copyright infringement can be a predicate act under the Racketeer Influenced and Corrupt Organizations Act); § 1956(c)(7)(D) (money laundering includes the receipt of proceeds from copyright infringement).
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MGM v Grokster 2005 [bold mine] |
I don't think that portion of the judgment is binding though. Regardless, I think that it's fairly reasonable to make the following statements:
- Some people currently refer to copyright infringement as theft.
- In some legal judgments, copyright infringement is considered theft.
- In the future, theft may or may not become a universally accepted term for copyright infringement.
- In the future, theft may or may not become a legal term for copyright infringement.
Any opinions that want to declare that copyright infringement definitively is or isn't theft, (or ought to be, or ought not to be theft) based on the historical meaning or current usage of the word cannot be proven, and rely upon particular linguistic theories. If one applies a different theory, the results will change.
For everyone else, it's more important to consider why certain people advocate words like theft or piracy to describe copyright infringement. They want to apply the same emotional connotations of the existing words to a problem that most people don't care much about.
That's why music groups have pushed so hard lately to get copyright infringement labelled as theft. It works reasonably well in some contexts, like illegal downloading, but in others, like illegal public performance, which can even include playing music you've purchased at a house party, it doesn't.
We definitely need a word though to describe obtaining copyrighted works without ownership or license, separate from copyright infringement. Copyright infringement is too broad, and specific offences should have specific words. I'm not overly fond of theft, but right now it's the most prevalent term.