On Theft and Michael Eisner
• Gregory Adams
So what is wrong with downloading, copying and swapping works where there is no theft involved?

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In an article in The Financial Times 'Abe Lincoln and the Internet Pirates' (March 26) Michael Eisner (of Disney) tries to convince us that because theft is theft, copying is also theft. Odd that he supports this argument by explaining how he copied the intellectual teachings of his father and how his father had in turn copied his father before him. Does this mean that Mr Eisner comes from a long line of thieves? I think not, but then copying isn't actually theft and if Mr Eisner believes that society has a "moral compass" he may be saddened to realise that it has traditionally pointed at copying as a virtue and not a crime.

We have always hoped that the young would copy the best examples of behaviour, that the worker would copy the master and were would education or even musicians be without the ability and dedication to copy? He says that he taught his children not to take comic books without paying. A better analogy for copying is reading the comic book and then putting it back on the shelf. Why does Mr Eisner not give this as the comparison? Is it because we don't see this as being so obviously bad? Taking the comic book away from the owner without permission is theft, but reading it is not. Of course, if everyone read without buying the end result would be either that the shop went out of business (just like if everyone stole) or the shop would have to convert to charging for access.

We already have places where you can read without buying, those places are called libraries. Perhaps librarians are all thieves? but we don't feel that way about them, do we? When you copy you do not deprive the owner of possession. Therefore copying is not literally theft. Mr Eisner talks about our established moral compass and how file swapping is affecting this moral compass. The problem is that our thousands of years of moral compass tells us that copying is perfectly okay. Mr Eisner implicitly acknowledges this because he describes that his grand father taught his father not to steal and that his father taught him. Well they 'copied' this concept from generation to generation.

Mr Eisner also explicitly demonstrates this historical viewpoint (that copying is okay) by describing the change in such behaviour in the creation of patent property to grant inventors property rights in their invention. This was done because it was recognised that the right to copy was generally accepted and routinely carried out, but that this was not a good practice. Therefore laws were created to try to change the moral compass and to make it point in a new direction by granting the originator (or more exactly the first person to register) a limited period monopoly on some uses of the invention. Therefore our moral compass used to point towards copying as being okay, but we have shifted away from that position for some kinds of copying especially for the arts and inventions.

It is this change in the moral compass that Mr Eisner wishes to fortify, but he uses his rhetoric and folksy examples to push us toward a simpler false analogy that says copying is theft. Not only does he confuse the issue in this way, but he avoids any consideration of why we currently give such importance to popular music and other easily copied forms of entertainment when we give no equivalent protection to dance styles, fashion choices, comestic choices, philosophies, work-out routines, diets, religions or ideas. We do not expect to pay a royalty if we decide to dance 'the twist' or if we decided to cut our hair like Tom Cruise or wear clothes like Madonna, or talk like Bob Hoskins, or bake a pie like the one our neighbour has placed on the windowsill, or whistle the latest hit song when showering, or tell a friend the plot of the latest movie.

You see, some things, perhaps most, we copy without the slightest feeling that we are involved in doing anything wrong and certainly very few of us would describe these forms of copying as 'theft'. So what is wrong with downloading, copying and swapping works where there is no theft involved?

Going back to the example of reading a magazine and then putting it back on the shelf; it is fairly obvious that such magazines are produced on the basis that someone will pay for them. If no one pays then they may stop being produced. This is the reason why copying can be harmful. An important point is that it is only the person who might otherwise have bought the item who has any direct effect. Any person who would not have bought the magazine, but who reads it for free is not actually causing damage. Therefore the danger of copying is that persons who would have paid for it do not. The effect of that is a loss of income to the creators, the promoters and distributors.

Copying by persons who would not have otherwise bought the item really do not cause damage (In fact they cause less damage than my flicking through a magazine at a store and putting it back on the shelf). Should we be outraged at people who read magazines in stores without buying? Maybe we should and I am sure that many store owners are, but I can't get worked up about it myself. Although downloading, copying and swapping copyright works is not theft, it is a breach of copyright law and it should be regarded as not right because it is likely to harm the production of such things in the future, but how much effect it has depends on whether you would otherwise have bought the product and whether the loss of income is sufficient to damage production.

As a society we have historically seen nothing wrong with copying, but as more value has been seen in novelty which can be increasingly copied at very low cost we have decided to enact some laws to protect some such novelties. Why has music gained so many protections and rights of which other manufactures can only dream? Why cannot the shoe maker sell shoes only for private use at home and demand an extra fee if the shoes are used at work or in a public performance? Why cannot the light manufacturers obtain extra fees when their lighting systems are used within supermarkets to effect the mood of the shopper? Why cannot the farmer gain extra public performance licence income when his food is served in a restaurant? Why are these industries deprived of these extra earnings when the music industry has such privileges? Why is it always assumed to be good when the industry uses copy technology, but bad when the listener uses that same copy technology? I do not claim to know the solution to the problem of products that cost a lot to introduce, but which are cheap to imitate, but making false analogies with the permanent deprivation of property (theft) does not seem to be a serious reaction to a legal and economic problem.

It seems that we are now facing the need to review these laws and to decide what we think is best. Advocates of strict interpretation of copying as theft are, I believe, trying to fool us for their own interests. Even the notion that intellectual property is a simple extension of private property is I believe a hard argument to prove because my imitating your property is not equivalent to my taking it away from you. (It is only equivalent if after copying it I delete your version.) The argument that my copying decreases your ability to earn may often be true (if I would otherwise have paid), but there are many other ways on which I may decrease your ability to earn which would be accepted as perfectly normal. (Imagine that I were able to perfectly copy Mr Eisner's skills in a way in which enabled me to compete against him and in so doing reduce his income. What law would that break?)
We probably, as a society, need to reconsider the laws of intellectual property.

© Greg Adams April 2002
http://thoughts.editthispage.com

email: "Gregory Adams-Tait" gregory@wowglobal.com

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