Copying content is not the same as theft

March 15, 2016

This post shouldn’t need to be written, but apparently it does. In recent discussions of Sci-Hub, I still keep seeing people trot out idiot analogies where copying scientific papers is portrayed as the equivalent of stealing physical goods. A couple of examples:

Mickey: You want a pair of shoes go to the shoe store and buy them. Notice you have to buy them. You want to read an article either pay or go to the library and read it for free. Notice unlike shoes you can read it for free! What is so difficult about this concept?
Our old friend Harvey Kane.

Or:

“It’s as if somehow stealing content is justifiable if it’s seen as expensive, and I find that surprising. It’s not as if you’d walk into a grocery store and feel vindicated about stealing an organic chocolate bar as long as you left the Kit Kat bar on the shelf.”
Alicia Wise, Elsevier’s ironically titled “Director of Universal Access”.

It pains me to read the words of experienced and presumably knowledgeable people when they trot out such absolute nonsense. Digital goods (which are copied) are nothing like physical goods (which are given and taken).

This is not complicated.

Here are some of the differences:

  • If you steal my shoes, I don’t have my shoes any more. If you copy my Brachiosaurus paper, I still have it.
  • Only one person can steal my shoes. Any number can copy my Brachiosaurus paper.
  • Everyone agrees that stealing is bad, but plenty of people think that copying is good.

(Regarding that last point, note that I am not at the moment taking a position either way on whether copying is good or bad; just recognising that its morality is much more open to debate than that of stealing.)

The “analogy” between copying of digital goods and theft of physical goods is so utterly broken, so absolutely devoid of a factual basis, and so very misleading, that when someone uses it there are only two possible reasons:

  1. They are so completely ignorant about these issues that their opinion is of literally no value.
  2. They are deliberately confusing the issue.

So: ignorance or malice. There are no other alternatives.

Here, then, is my request. Those of you who are opposed to Sci-Hub may well have valid points, and I am happy to hear them — after all, it took me seven posts before I finally figured out what my own position is. But stop making invalid points. All it does is weaken your argument, cheapen the whole debate, and make you look dumb.

When you pretend that copying is the same as stealing, you undermine your own position.

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23 Responses to “Copying content is not the same as theft”

  1. Stephen.gunnell Says:

    I think the correct form of the argument goes “We sell this product. By making this product available free you are causing us to lose sales. Therefore you have stolen the value of those missed sales from us.” This is usually accompanied by an inflated valuation of the lost sales and the presumption that everyone who downloaded a free copy was going to be able to afford a non-free copy. The most heinous version of this is where the supplier is railing against downloads by a sector of the the market where they are not even making their product available (we suffer that one a lot in Australia).

  2. Mike Taylor Says:

    Agreed — that form of the argument is perfectly coherent. The actual numbers might be wildly misstated (they usually are), but the idea is at least conceptually sound. Mike Masnick is very good on this: he identifies “intellectual property” not as a copy of a work (which is not “property” in any meaningful sense) but the copyright itself: the monopoly right to make money or other capital from the work.

  3. luisvrey Says:

    Completely agree Mike. Science is for everybody… next we know we are not going to be able to even use the dictionary or any reference book for fear of “stealing”. Citing and copying (and even more if it is technical scientific material) should never be considered the same as “stealing”.

  4. Anon Says:

    With regards to Sci-Hub it really is a lot more complicated since most papers are written by people on Ph.D. grants, their work is essentially a work for hire and whoever paid their grants (in many cases various states) should hold copyright.
    It could be argued we maximize value for sponsor by widest possible distribution.

  5. Joe Daniel Says:

    I think Stephen describes the argument more accurately. It is important we don’t oversimplify points. Taking the argument that way, copying can be considered as theft. Looking at this from a broader perspective than just a scientific publisher perspective, it takes time and resources to create something, even a copy (although granted not nearly as much as the original). If someone else makes copies and passes them out for free in such a way as it adversely affects the creator’s income, then the creator will be less likely to be able to create more. If that original person is an artist like Luis, then we all suffer because we are then all deprived of his wonderful art. This will happen regardless of what happens to the original pieces of artwork.

    But the problem here is not copying really. The problem is that the scientific publishers are not creating anything themselves. The question really is should private profits be protected for information bought with public money? To me, that answer is obviously no.

    Did they pay the authors? Did they pay the editors? Did they pay the reviewers? What have they contributed that should be protected by copyright? Nothing. They don’t even typeset the damn manuscripts anymore.

    Admittedly, this puts them in a quandary of having no income at all eventually because if they have no control over anything they publish, then no one will pay them and they will go out of business unless they radically alter their business plan, but the entire business model of scientific publishing needs to change, which it, slowly, has been doing.

  6. Mike Taylor Says:

    Well, Joe, you are right — as I have already agreed — that there are indeed issues with copyright violation. My point in this post — the only point I am trying to make — is that those issues are completely different from those of theft.

    It’s also true that many other factors play into the case of scholarly publishing, including the source of the content, the free donation of editorial and reviewer time, and so on. But those issues, too, are orthogonal to the core one I wanted to deal with here. Which is that, while there is a rational, reasonably discussion to be had about Sci-Hub and its pros and cons, that conversation will never happen while one side is busily shouting flatly incorrect slogans like “IT’S JUST THE SAME AS STEALING SHOES!”

  7. David Crotty Says:

    An interesting take on “theft” versus “larceny”, as well as a bunch of legal precedent where “theft” was charged when intangibles were taken:
    http://lawtheories.com/?p=523

  8. Frosted Flake Says:

    Re : David Crotty

    The Dowling decision seems to hinge on the constitutional structure that provides the U.S. Congress with regulatory authority. It is called the interstate commerce clause. Congress can make no law regulating commerce if that commerce does not cross a state line. That an intangible cannot cross a (state) line seems to be the heart of the reasoning. The subsequent advent of the internet may well change the reasoning.

    Either way, Dowling is the result of the Court interpreting the specific language of the actual statute. And not all of them. Just the one statute then under discussion.

    law.cornell.edu/uscode/text/18/2314

    The clumsiness of the law in this area may not be readily apparent to a foreigner. Or for that matter, to a native.

    Note that I am not a lawyer.

  9. Joe Daniel Says:

    Except that, and the point I was trying to make, is that they are not not entirely incorrect because this is a subjective matter, not an objective one, and you screaming at the top of your lungs they are wrong is not going to change that. You are arguing about someone’s livelihood here. However much you or I may disagree with whether or not their livelihood is a valid choice, from their perspective, there is no difference between someone stealing shoes and someone copying a paper for which they own the copyright. It is still money coming out of their pocketbook and you will never convince them there is a difference because from their side there really isn’t. From your side of the argument, there of course is a huge difference. From their side, there is not. Perspective makes an enormous difference and if you refuse to recognize that fact, all you will do is beat your head against a wall and have futile screaming matches.

    You are arguing the wrong points. Arguing whether or not making a copy is like stealing a pair of shoes depends on point of view and will not be solved by people yelling at each other. What needs to be solved is how to make the results of scientific inquiry that is paid for with public funds freely available. Arguing whether or not scientific publishers should be able to prevent scientists from freely publishing their articles? That is an argument worth having.

    Don’t get caught up in pointless analogies that don’t apply and distract from the real issues. None of us have time for that.

  10. Mike Taylor Says:

    Except that, and the point I was trying to make, is that they are not not entirely incorrect because this is a subjective matter, not an objective one, and you screaming at the top of your lungs they are wrong is not going to change that.

    You are incorrect. I quote:

    Here are some of the differences:

    If you steal my shoes, I don’t have my shoes any more. If you copy my Brachiosaurus paper, I still have it.
    Only one person can steal my shoes. Any number can copy my Brachiosaurus paper.
    Everyone agrees that stealing is bad, but plenty of people think that copying is good.

    I wonder which part of that you failed to understand, or disagreed with, or construed as my screaming at the top of my lungs?

    The difference between copying and theft is the difference between a thing remaining with the original owner when copied, and being removed from the original owner when taken. It is not a subtle distinction. This is an objective matter. Two things which are not the same do not become kind-of-sort-of-the-same because someone claims its subjective.

  11. Bill Hooker Says:

    “Don’t get caught up in pointless analogies that don’t apply and distract from the real issues. None of us have time for that.”

    Publishers have *loads* of time for that, because every day their critics spend arguing about nonsense is another day of 48% profit. It’s called FUD, and it’s a venerable tactic for when neither facts nor ethics are on your side.

    That’s why professional toad-eaters like Alicia Wise bring up this bullshit argument over and over again: to waste time. Indeed, the entire Scholarly Kitchen site is nothing but a vast gushing pipeline of FUD.

    I’m afraid, Mike, that you do have a tendency to fall for this trick.

  12. Mike Taylor Says:

    Well, Bill, you’re right that I do fall for this. But I hope I do it in an efficient way, by writing about it once, solidly, and then referring back to it. That’s my plan for this post, anyway. (Maybe I should make a page of links to such posts.)


  13. While I totally agree that the issue around scientific paper PDFs is not really in the realm of ‘theft’, I think the shoe analogy is slightly off – if someone steals your shoe you don’t have shoes, but if someone steals shoes from a store, the store owner probably still has their own shoes. But they have suffered financially, because they have lost the income from selling the stolen pair of shoes. And that’s really the argument here with scientific papers – what is being ‘stolen’ is the revenue from selling copies of the papers, even in electronic form.

    Where the problem lies with academic publishing is who is losing the money. If a novelist writes a book for royalties and then people distribute the book without paying for it, both the publisher’s and the novelist’s livelihoods are at stake. If someone copies my papers, I benefit regardless of whether or not it was paid for, but the publisher does not. I benefit because I have already been paid for that work, I need citations in order to keep getting paid, and more copies = more citations, possibly. The publishers, on the other hand, lose money because people aren’t buying the papers. To me that’s a pretty irreconcilable problem.

    Anyway, what I would love to see in my lifetime is a switch over to university library-hosted academic journals. Libraries funnel their subscription costs into journal maintenance, and federal/institutional funding agencies are putting their money back into institutions that actually do research in addition to publishing it. I feel like that’s the true way forward for academic publishing and some places have already started doing it, but it cannot happen fast enough, in my opinion.

  14. Andrew Stuck Says:

    Reminds me of those terrible anti-piracy ads they sometimes play in movie theaters:
    “YOU WOULDN’T DOWNLOAD A CAR, WOULD YOU?!?!?”

  15. Andrew Stuck Says:

    Victoria brings up a good point about increased circulation bringing increased citations for the original researchers. I’m surprised I haven’t heard anybody else mention that as a pro for Sci-Hub yet.

  16. Mike Taylor Says:

    Andrew,

    In the UK, those terrible ads are a mandatory play when you watch a legitimately purchased DVD — if you try to skip them, the DVD player say “operation not permitted”. The wording is “YOU WOULDN’T STEAL A CAR”, which invariably provokes a chorus of “No, but I’d download one!”

  17. dale Says:

    I think this whole copy rite thing is more widespread than just scientific papers. It also extends into the realm of palaeo-art and commercial DVDs. Perhaps the question that hasn’t been asked is whether or not “papers” are written for commercialization. Most scientific papers are unsolicited. Most people think that the author(s) are already “highly paid” by their institutions. The idea of publishing papers is for scientific dissemination. So the sponsors are geared for this. If I publish a book, I hassle with my publisher over rights, marketing, profit percentage, and so on. If I publish a paper, I have no need of this. I only want dissemination of the ideas in that paper. I don’t give a damn how much a publisher profits from it anymore than I give a damn how much the banking system profits over my deposits or loan(s). I get what I want. They get what they want. I would be worried if they were going under rather than being financially stable. I want a platform(s) for my ideas to be disseminated. I still profit from that. Want to make a profit directly from your scientific publishing outside of your institution ?? Then write a popular book for the general public on your work and see how far that takes you.
    You just simply can’t view these as the same type of publishing platforms. My 2 cents.

  18. derek Says:

    A few months ago the musician Suggs (of the group “Madness”) was reminiscing on the radio about his misspent youth, and how he once stole someone’s parents’ entire vinyl record collection from a party he crashed. He said “really, I was just being a few years ahead of you lot,” addressing downloaders.

    I thought it was a bad analogy for the reasons you give, but then I realized there is something it’s a good analogy for: the parents liked the music, they bought the music, they thought that meant they’d always be able to play the music. Then one day, it turned out they couldn’t play the music any more, and would have to pay all over again for it. That’s a bad analogy for copying, but a good analogy for DRM.

  19. Mickey Mortimer Says:

    Victoria Arbour wrote- “what is being ‘stolen’ is the revenue from selling copies of the papers, even in electronic form.”

    But unlike shoes, pdfs are not priced so that researchers can afford all that they need. As admitted on The Scholarly Kitchen, the vast majority of downloads are done via university subscriptions. This creates the unrealistically inflated $30 individual downloads of most non-OA pdfs. So there was never going to be significant revenue from individual pdfs, because most who need them cannot afford them. Thus the publisher, unlike the shoe shore, is not losing profits.

  20. SueM Says:

    There are limitations on what you can copy from the web. Copyright laws apply to the web exactly like they do to articles and books printed on paper. Just because it’s easily accessible doesn’t mean everyone can steal it. And, are you selling advertising on your website or blog? You don’t think that that is making money off stolen works belonging to other people? Try again, after thinking.

    Here’s what the U.S. Govt says about it: “Copyright Registration for Online Works”: http://www.copyright.gov/circs/circ66.pdf

    This is written in plain English, from George Mason University, Fairfax, VA — “Copyright & the Internet”: http://www.desertusa.com/flowers/devil-claw.html

    The penalties can go up to $150,000 plus legal costs. And the excuse that “you didn’t know” isn’t worth diddly.

  21. Mike Taylor Says:

    SueM writes: “Copyright laws apply to the web exactly like they do to articles and books printed on paper”. That is flatly incorrect. A lot of people would like copyright to work the same on our infinite-free-copies-with-free-distribution system as it does on slices of dead tree, perhaps just to make things apparently simple, but it’s not so. The concepts just don’t fit. For example, copyright interpretation for digital goods includes the well-known time-shifting exception. There is nothing analogous for physical goods: the concept simply doesn’t apply.

    By the way: no, we don’t sell advertising on this site. Though I don’t understand what that would have to do with anything if we did.

    Finally: your link to GMU’s “Copyright and the Internet” page goes to a page about desert plants.

  22. paleoaerie Says:

    Are you trying to say that you don’t think copyright laws apply to the internet or am I misunderstanding you? If that is really what you mean, that is not accurate as any copyright lawyer and numerous unhappy defendants will tell you. Just because it’s on the internet does not mean that copyright laws don’t apply as the courts have made quite clear many times. SueM is quite correct that if you get taken to court for internet copyright infringement, you will lose and it will be a costly loss.

    Now as to whether or not they should apply the same or to what extent, that is a whole other debate. But as to whether or not they do apply right now? The courts have said they do.

  23. Mike Taylor Says:

    No; as I am sure you understand perfectly well, I am saying that “copyright laws apply to the web exactly like they do to articles and books printed on paper” is false. The law is not the same in the cases of digital and physical goods; which is not at all the same thing as saying that there is no law online.


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