13 Ways to Steal a Bicycle, But How Many to Steal a Song?

I was recently asked to review Stuart Green’s new book “13 Ways to Steal a Bicycle: Theft Law in the Information Age” for The IP Law Book Review, and I just posted the near-final draft of my review. Stuart’s goal is to provide a comprehensive overview of theft law over the centuries and to expose its key tensions and inconsistencies. His main thesis is that the consolidation of theft law has led to the discarding of important moral distinctions, and that theft law has therefore taken problematic steps toward throwing the baby out with the bath water. I highly recommend that anyone interested in the subject read Stuart’s book.

One of the most complex issues that Stuart tackles is whether and when IP infringement constitutes theft. I would like to discuss here one of his examples that I also cover in my review.

Stuart questions whether copyright can be subject to theft law by testing whether the materials it covers are commodifiable, rivalrous, and subject to zero-sum transactions. He gives the hypothetical example of a copyrighted monograph with limited market potential that is available for download on the publisher’s website for forty dollars and that is expected to sell about 1,000 copies. In variation 1 of the scenario, a defendant makes an illegal download for personal use. In variation 2, the defendant downloads the book, makes a thousand digital copies, and distributes them to libraries and individuals that she thinks would likely buy the book otherwise. In variation 3, the defendants are one thousand likely buyers who circumvent the paywall on the publisher’s website and each illegally download a copy of the book for personal use. Stuart notes that the material in question is a nonrivalrous public good, and hence the typical zero-sum nature of tangible property theft is not present, but he notes that the copyright owner lost, or potentially lost, a thing of value in each case anyway. He argues that variation 1 does not constitute theft because the owner has suffered only a limited setback to his property interests but no deprivation of his property. In variation 2, the defendant possibly deprived the owner not only of the purchase price paid by the defendant himself but also of that paid by another thousand purchasers, and thus theft has occurred. In variation 3, while the total financial loss to the owner is the same as in variation 2, “no single offender or group of offenders is sufficiently culpable to justify criminalization”.

I am not sure why Stuart exempts individuals who each only downloaded for themselves from theft liability when he states elsewhere in his book that exempting de minimis takings from theft law in the context of tangible property is unlikely to work because “[b]y creating a license to steal low value items, it would undermine the norm against theft generally and potentially raise the aggregate level of . . . theft to intolerable levels”. What is the meaningful difference for theft law, to draw a comparison to variation 3 of Stuart’s hypothetical, between 1,000 people each taking a dollar from a man’s wallet that contains no more money afterwards and the 1,000 likely buyers of the monograph each illegally downloading the text and hence depriving the owner of its value? Why are the individuals in the latter scenario insufficiently morally culpable to subject them to criminal law punishments when those in the former scenario are not? These tensions pose some important difficulties for Stuart’s framework and his requirement of individually-caused substantial deprivation of value for intangible goods in the context of theft law.

That being said, there are no easy answers here (are we willing to call a single download a theft like the content industry encourages us to do?). I have previously suggested that parallels may exist between the reduction of value that illegal downloads can cause and that occasioned by the vandalism (rather than theft) of traditional property, but I would like to explore this issue further.

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3 Responses

  1. Matt says:

    I haven’t read Stuart’s book yet (though I hope to) but if I had to guess, I’d assume that the “no de minimis exception” bit interacts with the other requirements above. In our first case, the loss is de minimis _and_ the item is nonrivalrous. In your stealing a dollar case, the second condition is quite clearly not met. That seems to at least be a plausible important difference. I would want to treat Stuart’s examples 2 and 3 as exceptions to the normal rule, not as instances of it. Because that’s so, _and_ because the loss is de minimis, case 1 seems reasonably exempted from the typical way of treating theft. Therefore, there’s no good reason to think that cases like 1 above are likely to harm the norm against “normal” stealing.

    (Here’s a real-world example: When I was in the Peace Corps, I would sometimes buy pirated copies of movies to show the classes I taught. I could afford to buy the pirated movies, but could not afford to by the “legitimate” copies. [Nor, for that matter, could the vast majority of the population in that country, which explained why there was such a large market for pirated copies. Better price discrimination tactics would have helped the movie companies here, but they were apparently not smart enough to know that.] So, the real choice was to buy the pirated copy or not to buy it at all. This has made me 0% more likely to, say, steal an individual DVD, even if there were a perfect chance to do, and the owner would not notice- say it was from a huge DVD warehouse with poor inventory control. I don’t think I’m exceptional here. This seems to indicate that Stuart’s case 1 doesn’t have the problems we have with allowing de minimis takings of rivalrous property. [Note how I would not have thought of stealing the physical copy of the movie from the seller, even if I thought I could get away with it.])

  2. Irina Manta says:

    Thanks, Matt. I understand what you mean, but I have a few concerns. First, while the use of IP-protected goods is often nonrivalrous, that is not always the case (as I have especially discussed in my article “Hedonic Trademarks”, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2125252). Let’s assume, however, that most cases of song downloads do not give rise to that issue. The question in that case becomes why the nonrivalrous nature of such IP should exempt its illegal taking from receiving the theft label given the usual principle that even a de minimis taking is theft. What is special about nonrivalrousness in the theft context when, as far as the owner of an IP-protected good is concerned, the deprivation of value is the real harm? At the very least, does that make such IP infringement meaningfully different from vandalism?

    To be clear, I am not saying that the nonrivalrous nature of IP is irrelevant in every theoretical context, but it is not obvious to me why it is so relevant to the theft discussion that it creates this exemption from the theft label in de minimis cases.

    I won’t go into your Peace Corps example too much so I can keep my comment on the shorter side, but I would need to know more about the specifics before deciding that companies are “not smart enough” to engage in price discrimination here. There could be many economic reasons for that, such as the issue of grey markets (cf. the Kirtsaeng case).

  3. Stuart Green says:

    My thanks to Irina for her thoughtful review of my book, and to her and Matt for their stimulating exchange here. Irina wonders why I would extend theft liability to an individual who stole a de minimis amount of tangible property, but not to an individual who illegally downloaded for his own use a single digital copy of a book. Irina imagines a case in which a thousand people each take a dollar from a man’s wallet. Why, she asks, is each taking a theft on my view, while it’s not theft when a thousand people individually download a song or text illegally from the Internet?

    Matt – who hasn’t yet read the book! – is nevertheless prescient in anticipating my response. Under my approach, cases in which the misappropriation of intangibles constitutes theft are indeed the exception to the general rule of non-liability. That’s not so with de minimis thefts of tangible goods like dollar bills. My reasons for exempting most de minimis thefts from prosecution are pragmatic and equitable. By contrast, my reasons for exempting misappropriation of intangibles are conceptual: before we can call something theft on my view, the owner must actually be deprived of the thing stolen, and that happens only rarely when the property misappropriate is intangible.

    Matt’s intuitions regarding his experience in the Peace Corps are more or less consistent with my own, though he’s added to the mix some additional issues about theft and social justice. Why is or isn’t it okay to steal from the rich and give to the poor? That’s an issue I deal with elsewhere in the book . . . .