Quote:
Originally Posted by Ben Thornton
The discussion preceded your post. The point, though, is that according to the law, copying is not theft. That's the point - look at the laws indeed.
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That is correct.
When people start talking about "theft" in connection with copying, what they are really doing is invoking a deeper morality than that reflected in the law. All things that are legal are not necessarily moral. All things that are illegal are not immoral.
Take speeding. Illegal in most places. Immoral when dangerous to others. But in Montana, with nothing but the sky and the highway, it's not immoral and last I heard, not illegal.
Now, some people believe that it is immoral to violate the law. But even the law does not believe that. The law - at least, Anglo-Saxon derived law - distinguishes between
malum in se, (wrong or evil in itself) and
malem prohibitum (wrong only because it is prohibited.) Murder for the former, parking violation for the latter.
But it is absolutely clear that in the US, disregard of copyright/DRM is under some circumstances legal, sometimes illegal, but never "theft." It is
malum prohibitum, whereas theft is
malum in se.
A quick & dirty way to tell the difference is to suss out whether the law can be violated unintentionally. If it can, it is usually
malum prohibitum. You cannot unintentionally steal something. But you
can unintentionally violate copyright.
So when someone says that copyright violation is theft, what they are saying is that based on their interpretation of prevailing moral standards, it is morally wrong. They aren't really saying that it is theft, legally speaking. If they are, they are wrong.
The discussion gets confused because in the course of enacting and enforcing copyright, the law comes up with a mental construct, "intellectual property," which has no objective existence. You can steal an idea only in a colloquial sense. You cannot actually deprive someone of an idea.
It used to be that IP, to be profited from, had to be embodied in a physical artifact. And that is still true, for example, in connection with medical drugs, or inventions like cars and computers. But it is no longer true in connection with books and music.
You have to be careful here, because if you don't watch out, the discussion takes a turn into the question of copying. Analogies are drawn between digital copying and photocopying, for instance.
But I think the real problem is this: the concept of Intellectual Property never actually solved the problem of rewarding creators. The reason IP seemed to work was, not because it was a coherent idea, but because there was no other way to use IP except to make a physical product, and the economic and technological circumstances of the time made it possible to control the making and distribution of that product.
IP is a kind of fudge factor. It is a mental placeholder for something that we think must exist in order to explain what is going on. But it is entirely dependent on a correct understanding of the situation. That's why in an earlier post, I compared it to aether. Aether explained a scientific understanding that turned out to be a misunderstanding. IP explains an old technology that is being replaced by a different technology. It worked under the old technology, but that technology is no longer "correct."
There are all sorts of legal concepts that disappear, or are replaced by new ones as times change. The oath of fealty is an example. Made sense under feudalism. Not very useful for democracy, but in some sense has been replaced by citizenship - and citizenship itself is changing and might seem quaint in a hundred years or so. I think that IP is going down the same road. Some vestige of the concept will linger, like the Cheshire Cat's smile, even where physical products have been supplanted by digital ones, but eventually, the whole cat will be gone.