Intellectual Property Infringement as Vandalism (Part 2)

I would like to continue the discussion I began in Part 1 about my co-authored paper Intellectual Property Infringement as Vandalism, which is forthcoming in the Stanford Technology Law Review.

We first explore in the paper why the theft label for IP infringement has become so sticky in many milieus. We believe that the main reason that content owners and their associates use the rhetoric of theft is that they want to emphasize the gravity of the conduct. The average downloader might tell herself that it makes little to no difference in the grand scheme of things if she illegally downloads music or movies, or if she shares such materials with friends and even a few strangers. Basically everybody, however, understands the concept of theft and has been raised to understand, often axiomatically, that stealing is wrong.

If one were to ask content owners and other proponents of the “IP infringement as theft” theory to explain their views in greater detail, they would cite to a number of factors that create parallels between the two types of violations. The IP owner, just like the property owner, generally mixes her labor with pre-existing materials to provide society with goods and help it to flourish. She will sometimes only do so, however, if provided with a critical mass of remuneration, or at least that remuneration will affect her level of productivity and of her efforts to distribute her work. To the intellectual property owner, large-scale illegitimate distribution of her works may economically create the same effect as a horde of potato thieves does for a farmer. In the farmer’s case, there will be nothing left to buy if all the potatoes are gone. In the infringer’s, even though the song will still “be” there at the end, few people may want to buy it if they can obtain it at zero cost elsewhere.

Looking at it from the other end, the potato thief ends up with a good for which he provided no labor or other valuable effort in exchange. Thieves, by definition, free-ride on others’ efforts (although not all free-riding constitutes theft). Similarly, the IP infringer is just a few clicks away from illicit goods that he can obtain without in turn contributing to society. Had the infringer not downloaded illegally, for example, one of two things would have happened. For one, he may have bought the good legally and the owner would have made more money. Or, he may not have bought the good at all and while the intellectual property owner would have felt no financial difference, the infringer would not have been free-riding and would not have had the opportunity to distribute that good to people that would have purchased the good legally but for this opportunity. There is a further possible loss that arises from the fact that intellectual property can—contrary to popular wisdom—be rivalrous at times. In the case of trademarks, the fact that lots of people use fake Louis Vuitton bags could disincentivize legitimate buyers from buying that brand if they value exclusivity or fear being viewed as potential infringers themselves, as I discussed in my article Hedonic Trademarks, 74 Ohio State Law Journal 241 (2013). In the copyright world, some legitimate buyers of concert tickets may no longer be willing to pay the same amounts of money for what should have been an exclusive show if they know that illegal tapings of that show will circulate later. The more rivalrous intellectual property turns out to be in a given case, the more it resembles property and the more its infringement parallels theft.

There has been strong opposition, however, to the idea that the harm to an intellectual property owner that originates in infringement can be equated to the plight of the potato farmer in the example used above. For one, critics have suggested that the intellectual property owner retains the original work at all times even if it is infringed, whereas theft deprives an owner of a good, including the ability to enjoy it himself or sell it to someone else. Second, it is virtually impossible to remove all value from a good even through a large-scale infringement operation, which again distinguishes this scenario from theft.  Third, the individual culpability of a given infringer tends to be much smaller than the culpability of a thief. Even if an infringer would have bought an artist’s work, she would have perhaps paid a few dollars in most cases given the high proportion of infringement that consists of illegal file sharing, and so a few dollars is the most that the artist is likely to lose. While many infringers together can occasion a large loss to a copyright owner, the infringers each tend to only chip away at the value of the work. Put differently, few infringers can truly be called the “cause” of a loss in this context, which is not true of thieves.

Some have argued that from a safety perspective, intellectual property infringement also simply tends to involve a much lower risk to the public than theft does because the latter could lead to physical altercations and the like. From a moral (and practical) viewpoint, a number of scholars have questioned what it means to say that what has become routine behavior for many is genuinely reprehensible. Scholars have argued that current intellectual property law makes infringers out of everyone, even people that do not engage in blatant behaviors like illegal downloading. Tying that in with theft and with the fact that the thief is generally viewed as an outcast of society who disrespects its rules, the concept of vast proportions of the population as thieves is puzzling. In the next part of this post, I will delve more deeply into why vandalism and trespass may provide better analogies for IP infringement than theft does. 

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