Given how technical a topic intellectual property is, most debates about it are strikingly emotional and partisan. Opponents of intellectual property cast movie studios, record labels, and even book publishers as robber barons who want to squeeze every last cent out of consumers whose only crime it is that they love art. Defenders of draconian punishments for online piracy, meanwhile, tend to cast themselves as civilization’s last line of defense – once the pirates take away our intellectual property, they seem to say, our women and children will be next.
The hysterical terms of the debate are hardly conducive to drawing the fine distinctions the field of intellectual property calls for. Even a recent exchange between Matt Yglesias and Caleb Crain on Slate, which rightly got a lot of attention for its relative subtlety (and considerable entertainment value), suffers from a few fundamental misconceptions. Their main points of disagreement revolve around two questions that appear crucial if we want to formulate reasonable laws on intellectual property: Is intellectual property theft? And to what extent is online piracy a threat to important social and cultural goods, like the ability of artists to produce movies, films and books? Unfortunately, they both are confused about the first question and both miss (though, in Crain’s case, only narrowly) the most important considerations concerning the second question. Let me try to do better.
Is online piracy theft? Yglesias and Crain both try to settle the question by analogy to other forms of theft. For Yglesias, online piracy isn’t theft. His reason is simple: if you steal my slice of pizza, I no longer have a slice of pizza to eat; if you illegally download a copy of a book I’ve written, my publisher retains the original copy of the electronic file. Crain is more ambiguous on this point. On the one hand, invoking Immanuel Kant, he echoes the point that nothing is really being stolen because no material possession is being taken away from a holder of intellectual property. On the other hand, Crain worries that what is being stolen is the potential income that artists might derive from the sale of their property to persons who, instead, acquire illegal copies for free.
But both Yglesias and Crain – and, along with them, virtually every writer who’s tackled this point in the public sphere so far – put the cart before the horse here. They think that we need to start by thinking about whether the making of unauthorized copies of art is theft; once we’ve settled that question, we can decide whether or not online piracy violates the rights of holders of property rights. Thus, using ever more extravagant metaphors, they endlessly agonize about the supposedly complex concept of theft. “Is an illegal download more like stealing a Mercedes or more like Jesus multiplying fish?”, they ask.