1. Content
  2. Index
  3. Search
  4. RSS/Subscribe

Theft of Intellectual Property vs Copyright Infringement · Monday October 04, 2010 by Crosbie Fitch

I’ve had a little discussion with Nick R Brown and George Ou on the DigitalSociety.org blog in the comments to Nick’s article “Whoa Shelly Roche…Stealing Does Not Equal Free Speech”. The blog says it is “Pro-Culture, Pro-Commerce”, and that’s what I am, so what could we possibly have to argue about?

Unfortunately, due to copyright restrictions in your country, Nick’s and George’s comments cannot be shown. However, thanks to the sophistry of the so-called idea/expression dichotomy some lawyers believe I still have the liberty to paraphrase another’s words (even though those paraphrasings constitute an act of unauthorised copying, i.e. a copyright infringement, which, if I could afford the spondulicks to take it to court, may be regarded by a judge as fair use/dealing).

I start the ball rolling with an example of the difference between ‘theft of intellectual property’ and ‘copyright infringement’.

27th September 2010 at 11:48am, Crosbie said:

If someone burgles your house, takes a copy of your diary, and then removes it as they abscond, then that is THEFT of intellectual property, but just you try getting the police to help you recover it.

If you publish your memoirs as an e-book and a purchaser thereof makes a few copies to share with their friends, then that is the infringement of an 18th century privilege your publisher enjoys – a reproduction monopoly established by The Statute of Anne in 1710 for the benefit of her Stationers’ Company. This was copied by James Madison and unconstitutionally passed in 1790 as the US Copyright act – the annulling of the right to copy in the majority, to leave it, by exclusion, in the hands of a few – an instrument of injustice (per ‘Rights of Man’ by Thomas Paine).

Preventing copyright infringement is therefore a derogation of the right to free speech.

Securing the author’s natural exclusive right to their writings (against theft or copying by burglars) is NOT a derogation of the right to free speech – we can have no liberty to speak that which we do not know, nor liberty to communicate or copy that which we do not have.

27th September 2010 at 2:29pm, Nick’s comment, paraphrased:

Copyright is the law!
For better or worse, all must obey.

27th September 2010 at 3:15pm, Crosbie said:

Not so long ago Nick, someone liberating a slave was considered to have stolen property from the cotton farmer.

Reclamations of liberty do tend to be perceived as theft by those with privileges derogating from it.

Whereas slavery suspends all liberties from a few, copyright suspends a few liberties from all. So it’s a little more socially tolerable.

Remember that copyright even suspends the author’s liberty to copy their own words. Moreover, if they produce a work for hire or sell their copyright to a publisher, they no longer even have the privilege of copying their own words.

Would you still call it theft for an author to make a copy of their own book – contrary to their employer’s or publisher’s privilege?

Copyright indoctrination corrupts our language into a newspeak Orwell would be unsurprised by. We use ‘right’ in place of privilege, ‘steal’ in place of copy, ‘theft’ in place of infringement, and ‘piracy’ in place of cultural liberty.

Prior to 1710 every individual could share and build upon mankind’s folklore, folktales, and folk song. Today only the likes of Disney are permitted such cultural liberty. Human beings must sit back on their couches, pay through the nose, and consume, but not touch, the content that is delivered to them by multinational publishing corporations. ‘Soma’ as Huxley would term it, but ‘content’ works just as well.

27th September 2010 at 5:16pm, George’s comment, paraphrased:

Copyright is nothing like slavery!
An author doesn’t have to part with their privilege.
You can still derive from Grimm even if not Disney.

28th September 2010 at 5:14am, Crosbie said:

I think I was contrasting the quite different way in which liberty is abridged today than it was a century or so ago.

Instead of brutal coercion by slave owners, today we have the kindness of the judicial system dragging youngsters through the courts to fine them millions of dollars for sharing music, imprisoning cinema goers for pointing their iPhones at the cinema screen, recording industry lawyers’ litigious extortion bankrupting thousands of families unable to afford to defend themselves, and soon, households to be disconnected from the Internet merely upon accusation.

So today, yes, it’s a lot more civilised. The enforcement of copyright’s suspension of individuals’ liberty is removed from the crude agricultural environment and hygienically institutionalised behind closed doors – and there but for the grace of God go us all.

One of the Founding Fathers, Thomas Paine, had this to say about privileges in his book Rights of Man:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

28th September 2010 at 5:58am, George’s comment, paraphrased:

Million dollar fines are ridiculous, but settlements are reasonable.
No-one goes to jail for camming in cinemas!
The mob has no right to take wealth from wealthy.

28th September 2010 at 8:47am, Crosbie said:

You can finesse everything I write as hyperbole, as no doubt apologists for injustice would have done in centuries past, but at some point your suspension of belief must give way to the rising tide of reality.

Emmanuel Nimley: Graduate who used iPhone to record blockbusters inside cinema is jailed for six months in landmark ruling. Not everyone is so enthusiastic to mete out Queen Anne’s 18th century ‘justice’, see Why I am not ashamed of Emmanuel Nimley.

This is nothing to do with envy of others’ accumulation of wealth through the exchange of their labour in a free market, but the exploitation of monopolies obtained through the abrogation of everyone’s liberty to share and build upon their own culture, upon mankind’s science, technology, and arts.

28th September 2010 at 3:50pm, George’s comment, paraphrased:

The Nimley case is a one-off.
You’re suggesting copyright enforcement is violation of human rights.
For my views see “A kinder graduated response system”.

28th September 2010 at 5:28pm, Crosbie said:

I cited the Nimley case because it was the most recent.

This has been going on for years.

Try a search:

Yes, copyright is an intrinsic “violation of human rights”, I’ve already agreed this, that it’s a derogation of the natural right to copy from the individual’s liberty. Imprisoning people for pointing their phones at films is extremely offensive. Suggesting that people should have their cultural liberty restored to them is rather kind I’d say. What do copyright holder’s lose except an ability to sue, fine, bankrupt, levy, disconnect, or imprison members of the public? Authors and artists retain the right to exchange their labour, their intellectual work in a consequently free market – and if you have a thousand fans commissioning your work at $10 each, that’s a pretty good deal compared to a 1% royalty from a publisher (if you’re lucky).

29th September 2010 at 1:10am, George’s comment, paraphrased:

Do you really think artists can make a living without copyright, on live performances alone?
I maintain there should be reasonable penalties for infringement.

29th September 2010 at 6:37am, Crosbie said:

On the article of yours that you linked to you say “Now I want to be clear that I am not talking about pirates that are making mass illegal duplications and selling them. Those people need to be severely fined and jailed.” It’s a bit of a challenge to reconcile that with “I personally oppose criminal penalties for copyright infringement or outrageous fines”.

Bear in mind that every youngster auditioning artists’ work via BitTorrent is typically engaged in mass illicit duplications and selling them in the sense of exchanging their valuable bandwidth (sale/commerce is exchange).

Civilisation cannot progress if mankind has perversely enacted laws that prohibit cultural or technological exchange.

If copyright and patent holders’ only source of income is obtained through the exploitation of their privileges then they cannot survive without them – so yes, they need to stop being parasites and find something productive to do that people will pay them for willingly, not through extortion, monopoly, or licensing people’s liberty back to them.

Creators, intellectual workers, authors, inventors, sure, the last things these productive people need are laws that prevent them exchanging, improving, or building upon culture and technology. They can then exchange their labour in a free market.

Copyright and patent are the regime. Their absence is the absence of a coercive regime, a restoration of cultural and technological liberty, leaving us only with our natural rights to be protected by law (not privileges).

As for live performances, who said anything about performances having to be live? A musician can perform in a recording studio as well as in a concert hall. A thousand fans can pay $10 a piece for the recording of a studio performance as much as of a live one. The privilege of a monopoly in copies thereof may well be lucrative to whoever can win that favour from their Queen, but it remains an instrument of injustice. The musician is still able to exchange their labour in performing their music for $10,000 from their thousand fans. If they do not have a thousand fans they are in the same predicament as any craftsman with insufficient demand for their products or services. There is no right to be paid for your labour, only to be free to exchange it for whatever the market will bear. I have no right to be paid for my comments here. Indeed, instead of giving them freely I could have withheld them and instead invited you to commission my participation in discussion with you. There’s nothing wrong in commerce concerning intellectual work, only in the grant of mercantile privileges such as monopoly. Have you not heard “Free as in free speech, not as in free beer”?

29th September 2010 at 10:57am, George’s comment, paraphrased:

Taking work is not cultural exchange. It’s theft.
Copyright and patent were enacted to promote culture and technology. Monopolies encourage giving it away.

29th September 2010 at 12:31pm, Crosbie said:

It is strange that I am the one who must convince you how draconian and severe the measures are that copyright holders will resort to. If I can recognise the exchange of bandwidth as commerce do you think industry lawyers will hesitate to do so too?

While the weapon exists the unscrupulous will wield it, and copyright is indeed a weapon, a most iniquitous instrument of injustice.

If you wish to believe that cultural liberty is theft, that prohibitions against people’s use of their own culture and technology constitute incentives to do so, then such doublethink is your choice, but religious dogma will not get you to the moon. For such progress you must abandon your geocentric programming and dare to consider the heresy of heliocentricity.

The comfort of the blue pill, or the paradigm shift of the red pill?

30th September 2010 at 10:08pm, George’s comment, paraphrased:

It seems you hope for more draconian legislation so you can argue for abolition. I support neither extreme.

1st October 2010 at 1:14pm, Crosbie said:

The copyright maximalists WILL take a harder stance: DMCA, ACTA, COICA (and others like INDUCE). There will be more injustice to come. I’m expecting ‘possession of unlicensed copies of copyright protected works’ to become a crime comparable to ‘possession of a proscribed narcotic with intent to supply’. And I’m expecting you to have your work cut out arguing for leniency, shorter jail terms.

This trajectory is not a matter of hope, but inevitability.

I am not in the business of hoping or lobbying for ever more draconian legislation, but in solving apparently intractable problems, inventing what is necessary, and arriving, when the impossible has been eliminated, at what must be the truth (however incredible or ‘extreme’ you might find it).

The monopoly of copyright is at an end. It cannot be resurrected through argument. However, for the sake of fundamentally innocent people the world over, it can be argued to be abolished – sooner rather than later.

Paul Lockett said 3674 days ago :

Great reading as always.




Recent Articles

Recent Comments



Natural Right

Legal Rights






Being Privy


Personal Data





Moral Rights







Freedom of Speech

Freedom vs Liberty

Official Secrets Act













US Constitution

'exclusive right'












No Rights






Amnesty International

Copyleft (Wikipedia)

Electronic Frontier

Free Culture F'n

Free Culture UK

Free S/w Foundation


Against Monopoly

One Small Voice



Question Copyright







Downhill Battle

Publishers vs Public


Rethinking Copyright


Against Monopoly

Ecstasy of Influence

Libertarian Case



Janet Hawtin

Nina Paley

Rob Myers

Scott Carpenter