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ShadeOfLight avatar 3:56 PM on 02.14.2011  (server time)
Piracy is not Theft, Piracy is Piracy: A Law student on calling it by it's name

Piracy has been a very hot topic these past few days, and I realize that I'm late to the party. However, that doesn't necessarily make my (counter)arguments any less valid. No, my illogical points and untrustworthy facts will do that just fine.

In all seriousness though, I am a bit bothered by the fact that piracy is often considered to be theft. And I mean not even 'similar to theft' but actual oldfashioned real 'theft'. Not only Jim Sterling has made this point on several occasions, pretty much every anti-piracy ad ever has included the line 'Pirating [X] is stealing!'
Below: the weirdest one I could find.

The irony in this? There's most likely a copyright on this ad as well. Uploading this on youtube is therefore also copyright infringement

However, the notion that piracy is theft is simply a false one. I fully understand why some people may feel this way, feel that it's the exact same thing, but that doesn't change the fact that it is untrue. This may be the law student in me speaking, but I also think that it's important to make that distinction. Piracy is not theft and therefore can't (and shouldn't) be treated in the same way.

Don't take this the wrong way though, I am not in any way saying that piracy is justified, for any reason, I'm only saying that it's not theft. And I'll tell you why I think this is important.

My reason is actually very simple. Accusing someone of something (s)he didn't do is simply not very effective. Imagine this situation, which may very well be the worst comparison you've ever seen (you're welcome): a 'stranger' walks up to a child and offers him an apple, the child takes it and the stranger simply walks away. You, the parent, see this happening. Now I ask you, what would happen if you went up to your kid and accuse him of stealing the apple? That's very easy, the child would simply say that he didn't steal anything and therefore did nothing wrong.
However, that was not the point. What the child did wrong was taking the apple from a stranger, since most will agree that you shouldn't take something from strangers just like that. This is where it goes wrong, because the next time a situation like this arises the child will have no problems with taking the apple again, since it still isn't stealing.
It would obviously be much more effective to tell the child that (while he didn't steal anything) he is not allowed to take something from strangers, and/or punish him for that. So, punishing him for something he did do wrong.

A similar thing is going on with piracy. Accuse pirates of stealing and they will respond with a simple justification: 'we're not stealing anything!' and continue on pirating. And they'd be right, more or less. In contrast, what we should do is condemn piracy...because it's piracy.

I hope you will agree with me that "You're pirating and pirating is wrong!" is a much stronger message than "By pirating you're actually stealing, even though you're not really!"

Still, I feel that I should give a short explanation on the difference between piracy and stealing, even though most of you have probably read about that by now.
The Criminal Code in my country defines theft as follows (translated): "the taking away of any goods which belong, as a whole or in part, to someone else, with the intention of obtaining these goods for oneself contrary to law."
While this is obviously not a universal definition, I think it sort of represents what we all understand to be stealing. So let's examine it for a while.
Two important parts of this definition are the word 'goods' and the phrase 'taking away'. Can data and information be considered a 'good'? Well, you could argue about that, but the court actually decided (in a case where an employee was taking company secrets by cutting/pasting them to an USB) that yes, yes it can.

More important is the phrase 'taking away'. You see, taking something is not inherently bad. If I obtain a new car, nobody will care. What makes it bad however, is if I obtain a new car by taking it from someone else. The core of theft is thus not my obtaining of an object, but the losing of it by the victim. Victimless crimes are rare, and theft is not one of them. Piracy is therefore evidently not the same as stealing, since there is no one who actually loses a particular 'good'.
A counterargument I've seen is that you're actually taking away revenue, money. I can fully understand where this idea comes from, as most people who pirate a game will consequently refrain from actually buying it. However, this is still a somewhat weak point, since the calculated lost revenue will be completely fictional. Not every person who pirates a game would've bought it if piracy hadn't been an option. Some people may download a file more than once, as it may not work the first time. There are all sorts of reasons to say that the number of pirates cannot be considered the same as the number of lost buyers of a game. As such, saying that by pirating you are actually stealing money is also highly questionable.

Which still doesn't mean that this doesn't apply

Does this mean that piracy is okay? No, it simply means that piracy should be treated differently than theft.

In this context, I would like to mention that piracy and using illegally downloaded games might actually be 'more illegal' than one would think. Copyright is the exclusive right of the creator of a work to copy and distribute said work (again, based on the definition found in my own legal system). Consequently, sharing the work, a game in our case, is an infringement of copyright since this is a form of distributing. Where it becomes more interesting is with the downloader. Obviously you create a copy when you download a game. Copyright infringement, that much is clear.
Additionally, since games usually require the user to agree with the EULA, the pirate will violate that 'contract' as well. The fact that nobody ever reads the blasted things doesn't mean that they're not binding on the user.

However, I'd like to go one step further. Think about what happens when you boot up the game. Your PC will automatically copy the files of the installation to your computer's memory. Since this could arguably also be considered a form of copying (as meant by the law concerning copyright), this would be a infringement of copyright as well.
Taken to it's logical extreme, this means that a pirate infringes on someones copyright every single time he even boots up the game.
The situation I describe here isn't even that far-fetched either. In fact, the courts in my country specifically decided that the above interpretation is correct. This doesn't mean very much to other countries, but it still shows that this interpretation could indeed be used and it even sets some kind of precedent. It might just be a matter of time before the courts of other countries come up with similar interpretations.

So in conclusion, piracy is bad. Big shocker, right?
However, piracy is not stealing, it's simply not. 'Stealing' implies that someone lost a particular item, which is not true for piracy. Still, piracy can be considered highly illegal. Not only is it illegal to download a game, thus creating a copy to your computer and infringing on the copyright of the creator, it might actually be illegal to even boot up a game obtained through downloading. Subsequently, a downloader may actually break the law an endless amount of times, simply by playing the game.
But while we have established that piracy is bad, calling it stealing might not simply be a question of terminology. By calling piracy something that it's not, we actually give pirates the perfect excuse on a silver platter. In my view, it would be much more effective to call piracy what it is and condemn it for exactly that.
So really, the core of my argument is this: We should not condemn piracy for being stealing, we should condemn piracy for being piracy.

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