Academic

Loughlan on IP & the Language of Theft

By Lawrence Solum

Patricia Louise Loughlan (University of Sydney - Faculty of Law) has posted 'You Wouldn't Steal a Car': Intellectual Property and the Language of Theft (European Intellectual Property Review, Vol. 29, No. 10, pp. 401-405, 2007) on SSRN.  Here is the abstract:

It is actually quite easy to tell a good guy from a bad guy when one of the guys is being called a thief. He is the bad guy. It is in fact quite hard to think of a thief as any sort of good guy at all once you have begun thinking about him, even just impressionistically, as a thief.

This paper will scrutinise and consider the legitimacy of the pervasive rhetorical use of the language of 'theft' in intellectual property discourse. That language, comprised of words like 'theft', 'thief', 'stealing' 'burglar's tools' and occasionally even 'robbery,' is increasingly employed to describe the unauthorised use of intellectual property, so that new social meanings become attached to acts such as the digital transfer of a musical file or a film:
YOU WOULDN'T STEAL A CAR
YOU WOULDN'T STEAL A HANDBAG
YOU WOULDN'T STEAL A TELEVISION
YOU WOULDN'T STEAL A DVD
DOWNLOADING PIRATED FILMS IS STEALING
STEALING IS AGAINST THE LAW

It seems to me that the "theft," "steal," and "piracy" are thick concepts that have ordinary meanings that provide their emotional and social meanings.  The use of these concepts by advocates of IP is misleading rhetoric, and deceptive.  The social norms (copynorms) against theft do not extend to copying, and this is not because ordinary folk do not understand the law.  It reflects that real difference that consumption of IP is nonrivalrous.

Full post as published by Legal Theory Blog on April 16, 2008 (boomark / email).