I was gonna get a fishing/hunting license in Montana

... but now it seems like too much of a risk.

Loughlan on "theft" of intellectual property

Via Lawrence Solum's Legal Theory Blog, Patricia Louise Loughlan's short paper on a topic I've blogged before - whether copying CDs (etc.) is theft, but it's really more about the discourse of it.

Her position:

"The insulting and inflammatory language of theft... reduces a difficult policy debate, with significant economic and cultural consequences, to a crude and simplistic moral drama. “How do you tell the good guys from the bad guys”?"

Interestingly (and this is me thinking now, not Loughlan), my intuition is that the anarchist concept of theft - as in, "property is theft" - is more appropriate to intellectual property than tangible property. That's because anarchists object to the removal of goods from the public domain, where they can be enjoyed by all, into the private sphere where others are deprived of them. That removal is more contemptible in the case of easily reproducible intellectual property than in the case of tangible goods, because it deprives many more people of the good. A tangible good in the public sphere can only be in one place at any given time, so there are limits on how many people can enjoy it. Reproducible intellectual property could be used by many people in different places at the same time.

In Israel, it's the liberals who try to limit the meaning of "public accommodations"

Well, "public arenas" in Israel's case. The context: religious parties got a law passed prohibiting the sale of bread during the holiday of Passover, when bread is forbidden by Jewish law. But the law as it currently stands only applies to "public arenas," which according to the courts excludes grocery stores, restaurants and pizza parlors.

"Public accommodation," of course, is the wording in civil rights statutes in the US. Liberals prefer the term to be applied broadly, because various kinds of discrimination are illegal in such places. It certainly includes grocery stores, restaurants and pizza parlors.

This is one more reason why Israel needs a proper constitution. Or at least, why it should let the Palestinian majority vote in parliamentary elections.

Stealing? Sharing? Stearing?

An LA Times article discusses the debate over whether it is stealing or sharing to replicate music, movies and other non-scarce goods for the benefit of those who don't pay for it.

The legal owners of copyright protections have been campaigning to have public opinion and the law recognize it as stealing, on par with lifting a CD from the shelf. As the article notes, this has met with some skepticism from the public, which apparently recognizes that replication has some aspects of both stealing and of sharing. As with stealing, the person receiving the benefit of the transaction confers no benefit on the owner. But unlike stealing, and like sharing, the person receiving the benefit does not deprive the owner of the right to enjoy the property.

Geoff Pullum on the Language Log compares it to "giving" someone a kiss. Of course, most kisses are not exchanged commercially the way music and movies are, so Pullum then compares it to a service, like giving someone a massage. If you give someone a massage and they don't pay for it, we tend to see that as stealing of a service. But that's still not a good analogy, because giving a massage requires effort on the part of the massager and takes up her time, creating opportunity costs. It therefore involves deprivation to the provider of the service, which makes it more like lifting a CD from the shelf than copying a song.

Is it a semantic debate? In a way it is. Both sides in the debate want the public to broaden its understanding of a concept to include the act of intellectual property replication, but disagree whether that concept should be "sharing" or "stealing". But what this is really about, of course, is whether, like stealing, replication is morally wrong and the law should allow the legal owner to bring a private action against the thief, or whether like sharing, it is benign and gives the owner no right to recovery.

The law, of course, does not have to declare that it is stealing or sharing. It can create a category for it in between the two, recognizing that it has elements of each, and ordering the state to treat it somewhere between its treatment of stealing and of sharing.