Piracy, Theft, Trespassing, and Metaphor

If you’ve ever argued about copyright violation/piracy online, you’ve probably run across the guy who wants to make really sure that everyone knows that “copyright violation is theft.”

Theft is a terrible metaphor for copyright violation.  They just aren’t analogous acts.  The “copyright violation is theft” meme is one desperately peddled by people who want strong copyright law in the hope of disengaging their audience’s brains.  This blog takes it for granted that its readers are smarter than that.

Recently, I, and others I’ve read, have toyed with the idea that the better metaphor for copyright violation is trespassing.  The acts have a fair amount in common: both involve a violation of property rights, but not one that takes something away from an owner.  Both are interestingly flexible in how serious they are: as with trespassing, it’s easy to imagine scenarios in which a copyright violater commits the illegal act, and does so over the objections of the rights-holder, but does no actual harm to the rightsholder.  And, similarly, it is possible to imagine scenarios in which the economic harm is quite serious.

But I have a different question:  why do we need a metaphor at all?  What is it that’s so hard to understand about copyright violation that we must analogize it to another illegal act?  In this day and age, does anyone not know exactly how digital copying works?  While I’m sure the technical details of peer to peer services fly over the head of most people, the essential act of copying a file from someone’s computer to someone else’s computer is surely one that mystifies no one.

Theft is a terrible metaphor for copyright violation.  Trespassing is a better one, but still not an exact analogy.  Can’t we just discuss the merits and drawbacks of various levels of copyright protection based on our understanding of actual copyright violation, rather than strained parallels with fundamentally different acts?


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