Is Copyright Infringement “Theft”?

The BBC reports on a study that the British do not equate downloading copyright material with theft. The British have specifically rejected one of the standard analogies that downloading copyrighted music is just like shoplifting a CD of the music from a retail store.

If this attitude holds true in the US as well, it would represent a colossal failure of the movie/music/software PR machine. For years, the copyright owner groups have tried to shape public perception of copyright infringement by using value-loaded words to describe infringement: “pirate,” “theft” and “just like shoplifting” are among the standard lingo of the lobbying/PR efforts. Yet, to the extent Americans can distinguish copyright infringement and “theft”/”shoplifting,” then a major axis of the copyright owners’ efforts will have failed.

This failure would have a second-order implication. Standard behaviorist theory says that criminal laws affect behavior only when they criminalize behavior that is generally considered wrong under prevailing social norms. Alternatively, laws that run against this perception generally fail to conform behavior. The BBC article clearly suggests that the British do not consider many types of copyright infringement to be “wrong” (indeed, the article talks about how they view it as “inevitable”). If consumers can distinguish copyright infringement from morally objectionable behavior like theft, they will behave as if copyright infringement is not morally wrong–in which case, restrictive copyright laws may be destined to fail.

As the BBC article indicates, the copyright owners’ real (last-ditch?) hope is to get access to kids in school to “educate” them about copyright law while they are still forming their norms. While in principle this idea doesn’t generally bother me, I’m not sure I would pick copyright infringement as the most important body of law to teach students about (assuming scarce classroom time where we can’t teach every law on the books).

I have a lot more to say about the effect of social norms on criminal copyright infringement, and in particular the analogies between copyright infringement and “shoplifting,” in my Road to No Warez piece.

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