Techdirt’s Mike Masnick had a curious post this past Monday concerning the Copyright and Duration of Rights in Performances Regulations 2013, which came into force on November 1st in the U.K. The Regulations, which implement the provisions of Directive 2011/77/EU of the European Parliament, extend certain copyright terms in the U.K. from 50 to 70 years after the death of the last surviving author. What strikes me as odd about Masnick’s post is not the fact that he argues that copyright infringement is not theft—he’s said that many times before—but it’s that he simultaneously argues that extending copyright terms is in fact theft. Masnick’s reasoning on both points seems to me utterly unsound, and in this post, I’ll explain why I think he’s wrong.
In Monday’s post, Masnick argues that while copyright infringements aren’t theft, copyright extensions are:
While we’ve pointed out for years that when people claim that infringing works are “stolen,” they’re using the wrong word, since nothing is missing, that is not the case here. Here, things are absolutely missing. The entire purpose of copyright law is to provide the incentives to have the work created in the first place. As such, it’s a deal, where the public grants the creators an exclusive right for a number of years, in return for getting the work (in a limited fashion) for a period of time and then having that work become public domain at the end. Retroactive copyright extension is a unilateral change in that deal — directly taking the work away from the public domain without any recompense to the public the work has been stolen from.
And then in the comments, Masnick further elaborates his theory:
Rivalrous stuff can absolutely be stolen. Non-rivalrous stuff is what can’t be stolen. But here we’re not talking about the content, but the singular concept of the public domain itself. This is the major difference. When you maximalists claim infringement is “theft” you say things like “he stole that song.” We’re not saying that the content was stolen here, because it’s not. It’s the public domain itself that was stolen, in that the public had a clearly granted RIGHT to make use of that content, and that RIGHT has been taken away.
Setting aside his questionable vision of the “entire purpose of copyright law,” Masnick’s argument hinges on differentiating between copyrighted content and copyright rights. He claims that copyright infringement is not theft since the copyrighted content has not been stolen—if I copy your song, I haven’t dispossessed you of anything tangible. However, copyright extensions are theft, in Masnick’s view, because the public has been dispossessed of the copyright rights that it once owned. Neither of these arguments makes any legal sense. Copyright infringement is theft because the infringer has acted in a way that is inconsistent with the copyright owner’s copyright rights—it’s got nothing to do with the copyrighted content as Masnick contends. And copyright extensions are not theft because nobody owns any copyright rights in the public domain that can be stolen.
In a post this past September, I made the argument that intentional copyright infringement is literally “theft” in the legal sense of the word. As I noted at the time, there are indeed criminal theft statutes that by their very terms apply to copyright infringement. For example, Section 3931 of the Pennsylvania Crimes Code, entitled “Theft of unpublished dramas and musical compositions,” provides:
A person is guilty of theft if he publicly presents for profit, without the consent of the author thereof, any unpublished dramatic play or musical composition.
Thus, the State of Pennsylvania defines the unconsented public performance for profit of some unpublished works to be theft. That statute is preempted by the 1976 Copyright Act, I should think, and I suspect that it was promulgated back when state law governed the copyright in an unpublished work, but the point is that copyright infringement is defined to be theft in Pennsylvania despite no one being dispossessed of anything tangible.
In fact, there are several federal copyright statutes (which preempt most, but certainly not all, similar state copyright statutes) that also define copyright infringement to be theft. Take, for example, Section 2319B of Title 18 of the U.S. Code, which provides:
Any person who, without the authorization of the copyright owner, knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under title 17, or any part thereof, from a performance of such work in a motion picture exhibition facility, shall . . . be imprisoned for not more than 3 years, fined under this title, or both.
Section 2319B is found in Chapter 113, which is entitled, “Stolen Property.” All of the statutes found in that chapter are property theft statutes, even though some only apply to intangibles. The point again is that acts of copyright infringement are considered to be “theft” in the legal sense, despite the fact that, as Masnick rightfully points out, “nothing is missing.” There certainly are states where copyright infringement would not be theft under the state theft statutes, and there certainly are states where it would. But the fact remains that at the federal level, copyright infringement is defined to be theft even though no one is dispossessed of any tangible content.
Masnick’s “content” straw man makes no sense. Of course, one can physically steal content, and that would be theft, but the content is irrelevant as to why copyright infringements are thefts. Copyright infringements are thefts, despite no one being dispossessed of any content, because they violate the intangible copyright rights of the copyright owner—doing something inconsistent with the property rights of a property owner deprives that owner, to that extent, of his property. What makes it a straw man is that Masnick is attempting to rebut the argument about copyright rights with an argument about copyrighted content. He’s misrepresenting what the argument actually is, and he’s conflating the copy with the copyright.
A quick foray into the realm of theft of services helps to see the point. When a person has gas service to his house, he is not only receiving the gas, which has physical substance, but he’s also receiving the service of the gas company supplying that gas, which does not. Stealing the gas itself would be larceny, but stealing the service would be theft of services. Both are thefts, but only the former involves dispossessing anyone of any “content.” The gas service is an intangible thing, but it is a thing that can be stolen nonetheless. If you monkey with your gas meter and take gas without paying, you can be charged with both larceny and theft of services. Masnick’s argument boils down to saying that infringers don’t “steal the gas,” but the point being made is that infringers do “steal the service.”
Masnick’s argument that copyright extensions are thefts similarly misses the mark. Recall his claim: “It’s the public domain itself that was stolen, in that the public had a clearly granted RIGHT to make use of that content, and that RIGHT has been taken away.” Copyright extensions are thefts, Masnick contends, because they take the ownership of the copyright rights away from the public, whom they had previously been granted to. Of course, not all copyright extensions could do this, and if a work that is currently under copyright protection has its copyright term extended, at no time could the rights have been granted to the public. I take his argument to be focusing on the situation where a work that had fallen into the public domain has its copyright status reinstated, since only there could the rights have actually been granted to the public at some point.
The problem with Masnick’s theory, naturally, is that nobody owns the public domain. The public domain is not actually owned by everybody, as he seems to think, but rather it’s, by definition, owned by nobody. A key element of the crime of theft requires that the thing taken be the personal property of another. If the thing taken is not owned by anybody—if it’s no one’s personal property—then it cannot be the subject of theft. One cannot steal what nobody else owns. The Supreme Court discussed the fact that nobody owns the public domain just last year in Golan:
As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. To copyright lawyers, the “vested rights” formulation might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.
Thus, Masnick is wrong on both counts. The reason why copyright infringement is theft has nothing to do with dispossessing anyone of any content, and the public domain can’t be stolen because nobody owns it. Moreover, Masnick’s discussion of rivalrousness is misplaced. It matters not whether the thing is rivalrous; what matters is whether it’s excludable. The act of dispossessing someone of something rivalrous is sufficient for theft, but it’s not necessary. Certain nonrivalrous things, such as copyright rights, are recognized as excludable property, and interfering with those rights can constitute theft. Masnick’s anachronistic view that theft can’t be applied to intangibles hasn’t been the law since the time of horse carriages and buggy whips. And his view that everyone owns copyright rights in the public domain has never been the law.
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