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Copying and Theft

The entertainment industry, in its fight against illegal copying, likes to use words describing common law crimes, such as "piracy" and "theft."  Prof. Stuart Green of Rutgers has this op-ed in the NYT opposing this "rhetorical strategy."  Not that he is in favor of illegal downloading, of course.  His point is that the crimes are different, and we should use different terms.

Illegal downloading is, of course, a real problem. People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it's reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn't, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.

This is not merely a question of nomenclature. The label we apply to criminal acts matters crucially in terms of how we conceive of and stigmatize them. What we choose to call a given type of crime ultimately determines how it's formulated and classified and, perhaps most important, how it will be punished. Treating different forms of property deprivation as different crimes may seem untidy, but that is the nature of criminal law.

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