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.