Is downloading theft?

While browsing my RSS feeds using the Ajax-y goodness of netvibes, I came across a post made by Toronto-based venture capitalist Rick Segal, who is a partner with J.L. Albright Ventures — a VC group that has investments in Q9 Networks, Nuvo Networks and FUN Technologies (which just sold control to Liberty Media for $195-million). The post was a response to one from Fred Wilson, another VC based in New York City, who was writing about peer-to-peer networks and the music industry and how the two should get together in the interest of serving customers such as himself.

Rick took Fred to task for saying that he had no problem with downloading music if he couldn’t find it somewhere legally, and said this made him a lost customer rather than a thief. Rick said this was disingenuous, however, and used this metaphor: “The clerk went in the back room, I couldn’t wait so I took the candy bar but if the guy had been at the counter I would have gladly paid for it. Extreme example? Yes, but it is to make the point. Let’s just call it what it is.” In other words: theft.

But is Rick right? I don’t think so — and the U.S. Supreme Court agrees with me. In a ruling in 1985, they specifically said that copyright infringement is not the same as theft because the “thief” does not “assume physical control over copyright, nor does he wholly deprive its owner of its use.” In other words, the candy-bar example — not to mention the entire concept of music “piracy” — tries to take legal concepts that pertain to physical objects and apply them to creative works that have no physical attributes, in the sense that they cannot be “taken” the way a candy bar can be taken.

In the case of someone like Fred downloading music, the only loss that can be shown (and then only theoretically) is the loss of a potential customer. Some copyright experts have even argued that downloading should fall under the “fair use” provisions of copyright law, the same way listening to the radio does. In any case, I would have to disagree with Rick and argue that Fred is right to say he is more of a lost customer than a thief. A copyright infringer, perhaps, but not a thief.

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