Copyright Infringement = "Theft"

Is copyright infringement “theft”? What’s your gut response? Surprisingly, the current top dog at the Motion Picture Association of America has come out against this description of infringement as theft. Umm, let me get this straight, taking something owned by someone else without their permission is not theft? So I’m imagining a conversation that goes like this: “Hey, did you just walk out of Target without paying for that? Why that’s . . . that’s . . . .” What is that called? I’m willing to bet that even Christopher Dodd would call that theft. So what’s different in the copyright context, because Dodd is not a lone wolf in making this claim. The U.S. Supreme Court ruled in 1985 that infringement does not "easily" equate with theft. See Dowling v. United States (1985), 473 U.S. 207, 217–218). This is also the position taken by a noted IP scholar, David Llewelyn (a professor at King’s College London and Head of Intellectual Property at White & Case in its London office), who stated at the IP Law Asia Summit that infringing another's intellectual property not be referred to as theft because it does not physically deprive the “author” of his/her physical work. Now, most people would agree that copyright infringement is unlawful (I’m not talking about instances of fair use, implied or express license, public domain, or protection under the DMCA, etc.), but many have taken issue with calling it theft or piracy, believing that it’s important to be more precise in our language. I, for one, find that referring to copyright infringement as “theft” to be pretty precise. And I think the distinction regarding physical possession misses the point. Let’s start with a standard definition for “theft.” According to thefreedictionary.com, theft (n.) means “1. The act or an instance of stealing; larceny.” To steal (v.tr.), according to the same website, means “1. To take (the property of another) without right or permission.” Property (n.) means “1. a. Something owned; a possession.” Intellectual property (n.), just to close the loop, is defined as “an intangible asset, such as a copyright or patent.” So, just applying these definitions: a copyright is a form of intellectual property; property is something owned (a possession); taking property of another with permission is called stealing; and “stealing” is by definition theft. Under this tautology, copyright infringement equates to theft irrespective of whether the infringer obtained physical possession. Even if the infringer never obtains physical possession of the "tangible works of authorship" that fall within the scope of the Copyright Act (see 17 U.S.C. §§ 101, 102)), he/she still obtains “possession” rights granted to author under Section 106: the right to reproduce, distribute copies, publicly perform. And what about the right to profit from one’s creation? The infringer misappropriates royalties the author could have received but for the infringement. Isn’t that a physical deprivation? The fact that the infringer does not take physical possession of the work itself should not matter with respect to defining infringement as “theft.” Indeed, taking physical possession of the work would be separately actionable under California law as separate theft – or civilly, as conversion. A claim for conversion requires that a plaintiff establish: (1) the plaintiffs ownership or right to possession of certain property; (2) the defendant's conversion of the property by a wrongful act or disposition of property rights; and (3) damages. Oakdale Village Group v. Fong, 43 Cal.App.4th 539, 543-44, 50 Cal.Rptr.2d 810 (1996). And interestingly, a claim for conversion is generally immune from preemption under the Copyright Act specifically because it involves tangible property except where they seek damages for reproduction of the property — not return of tangible property itself. See Firoozye v. Earthlink Network, 153 F.Supp.2d 1115, 1130 (N.D.Cal.2001). Where the plaintiff does not seek the return of property, but damages for its use, the rights asserted in the conversion claim are the same as those protected by the Copyright Act, and as such the conversion claim is preempted. Id.; see also Marketing Information Masters, Inc. v. Board of Trustees of the California State University System, 552 F. Supp. 2d 1088 (S.D. Cal. 2008). Finally, the Copyright Act itself – albeit obliquely – lends some support to the position that infringement amounts to a “theft.” All of us learn from an early age that stealing can land you in the pokey. Law enforcement is very concerned with the prevention of theft and punishing thieves. Agreed? So I find it interesting that the Copyright Act likewise has a criminal infringement component. 17 U.S.C. Section 506 states, in relevant part, that “Any person who willfully infringes a copyright shall be punished [criminally] as provided under section 2319 of title 18, if the infringement was committed — (A) for purposes of commercial advantage or private financial gain; (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or (C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.” While I understand that infringement does not typically amount to “theft” in the sense that the copyright owner is deprived of his/her physical work, physical deprivation is not required to meet the dictionary definition of “theft.” The fact that the copyright owner is deprived of his/her ability to receive compensation for the work, deprived of his/her right to control the distribution of the work, deprived of his/her ability to control the republishing and public performance of the work are all instances of stealing a valuable property right, and I see nothing wrong will calling that what it is: a theft. Is this the best word to convey the act of infringement? It isn’t bad, and I’ve yet to hear better. Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP, resident in Los Angeles and Orange County. Mr. Pink heads the firm’s Internet and New Media Team, and can be reached at jonathan.pink@bryancave.com.