In which our intrepid hero opines on the subject of copyright infringement.

I posted this in reply to a post on my friend Craig’s blog on intellectual property:

With regard to copyright infringement, it should be noted that we’re dealing with apples and oranges, broadly lumped under the heading of “fruit”.

There are cases of actual theft—such as plagiarism. Were I to reprint your post verbatim in my own blog, claiming that it was my own work, then I would be guilty of trying to deprive you of ownership of your IP.

In contrast, what most people (including record companies, etc) think of as “copyright infringement” is actually violation of terms of use—in essence, you don’t buy CDs or software, but enter contractual agreements to use them in perpetual leasehold.

Whether these contracts are implicit (such as in the case of CDs) or explicit (as is the case with most software these days), a contract still exists in a legal sense. If you buy a CD that says “do not copy” in its copyright notice, and you copy it, then you’ve violated that contract (unless, of course, the jurisdiction it happens in has fair-use laws that apply and supercede that clause of the contract—or has no IP laws whatsoever by which to enforce IP rights).

On the other hand, if you don’t buy it, and copy it anyway, then you’re effectively using IP without the permission of its owner.

In this respect, the anti-piracy messages you see on DVDs are misleading—plagiarism is a crime, but piracy is a tort.

However, most IP laws contain an element of compulsion on the owner’s part, in that they must legally pursue any infringement of copyright and enforce their terms of use, or cede ownership of said IP. In practice, then, it’s much the same as a crime, and is bolstered by anti-piracy laws to boot.

The issue here, in my opinion, is that the state pursues copyright infringement “crimes”, when, in fact, it should have no interest in doing so—at least from a libertarian perspective.

There are sound reasons for why it does this—copyright holders often lack the financial wherewithal to enforce contractual (or extra-contractual) misuse of their IP—but the question remains as to why the hell we have such a restrictive model in the first place. Surely, I can be trusted to go out and exchange money for a CD, and then use it in perpetuity under my own supervision?

My opinion on this is nicely summed up here.

I don’t usually repost my replies to other people’s blogs wholesale, but I thought this reply sounded particularly erudite. Yes, I’m in a vain mood today. Cut me some slack—I’m ill.

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