Theft and property

I rented a movie the other day. For the zillionth time, my senses were assaulted by a movie industry ad telling me not to steal their products:

You wouldn’t steal a car, you wouldn’t steal a handbag, you wouldn’t steal a television.

Downloading pirated films is stealing, stealing is against the law. PIRACY, IT’S A CRIME.

It always amuses me that those who download the movie will not see this ad. Only the people who haven’t done what they’re trying to tell us not to do will see the message. Talk about poorly targeting the appropriate demographic!

We all know that stealing is wrong. Stealing a car, handbag, or television is clearly wrong. The ad is clearly trying to equate the stealing we know is wrong with downloading films. They do this because we don’t see the downloading of a film as being wrong in the same way as stealing a television. The reason is because one is tangible property and the other is intellectual property. We don’t see them as the same because they aren’t the same.

With how easy copying has become in the past two decades, the entertainment industry is at a disadvantage in a way that the automobile industry is not. If I go to a car dealer and steal a car, not only do I have something I haven’t paid for, but the dealer no longer has what I’ve taken. If I download a movie for free, I have something that I didn’t pay for, but the movie studio isn’t missing any property. They don’t have the money I should have paid for the movie, but they’re not missing a DVD or a film print. This is how intellectual property differs from tangible property.

I read an interesting comment on a news story about intellectual property theft. It said that we tend to look at theft from the thief’s point of view. They took something that doesn’t belong to them, therefore a theft has occurred. The comment writer suggested that we instead look at theft from the owner’s point of view. In the case of intellectual property, the thief makes a copy, but the rights-holder/owner is not deprived of any property. The writer suggested that unlawful enrichment isn’t what defines theft, but rather the victim being deprived of the property that has been stolen. This doesn’t happen with illegal downloading, and therefore it’s not theft. It’s copyright infringement and still illegal and wrong, but it’s not stealing in the same way as taking a car.

Although it was only a few lines long, the comment was a real eye-opener. It was one of those rare times when someone else crystallizes your thoughts so clearly that surprises you, and leaves you wondering why you didn’t see it so clearly yourself.

In this case, it’s a subtle distinction, and that’s why I think it eluded me. Make no mistake, I’m not claiming that this distinction makes illegal copying okay. It doesn’t. But calling it ‘stealing’ is a strategy on the part of the entertainment industry. It’s also entirely disingenuous and purely manipulative if you follow my line of reasoning.

I wondered to myself whether I was subscribing to a distinction that isn’t really there. Theft is a concept deeply enshrined in the law so I decided to see what the law had to say about theft.

According to the Criminal Code of Canada, Part IX (Offences Against Rights of Property), statute 322, theft is defined in this way:

322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

I’m not a lawyer, nor to I play one on television, but every one of the four subsections references how the rightful owner no longer has the item in question. It’s not just about the unjust enrichment of the taker, but depriving the owner of the item is a requirement as well. I’m the first to admit that my interpretation of the statute may be incorrect. If it is, I hope you’ll enlighten me!

If I am correct, downloading a movie isn’t theft, but copyright infringement … and copyright infringement is not merely a type of theft. They’re entirely different things. Both wrong, but different from each other just as tangible and intellectual property are both property, but different from each other.

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