On Thu, Oct 08, 2009 at 11:19:00AM -0300, Carlos A. M. dos Santos wrote:
> On Wed, Oct 7, 2009 at 3:43 PM, Chad Perrin <per...@apotheon.com> wrote:
> > On Wed, Oct 07, 2009 at 01:25:35PM -0300, Carlos A. M. dos Santos wrote:
> >>
> >> You can fork the code, rename it, whatever, but you can NOT change
> >> the license without explicit permission from the original copyright
> >> owner. That would be legally considered theft!
> >
> > Incorrect.  It would be legally considered copyright infringement.
> > Copyright law is not property law, and both different laws *and*
> > different terms apply.  "Theft" is not a term legally applied to
> > copyright infringement -- at least, in any jurisdiction of which I'm even
> > vaguely aware of the state of copyright law.
> >
> > "That would be legally considered copyright infringement!"
> 
> I was referring to stealing intellectual property, which can be a
> synonym of copyright violation, depending on the country law. In my
> country, for instance, computer programs are considered intellectual
> property but they are also subjected to author rights, just like books
> and paintings [1,2] .

The term "Intellectual Property" is essentially an invention of people
who wished copyright, patent, and trademark bodies of law were treated
more like actual property law.  Saying something is "intellectual
property" sure makes it *sound* like violating the relevant law should be
called "stealing", but it's still not theft under the law (unless you
happen to live in some jurisdiction that treats this stuff in a very
nonstandard manner -- I can't speak for all jurisdictions, since I know
nothing about copyright law in Eritrea, for instance).

Not only is copyright not *legally* considered theft, but it is not
*practically* equivalent to theft, either.  In theft, a person has a
thing in his or her possession, and the thief takes it away.  There is no
thing in a copyright holder's possession that is taken away when
copyright is infringed.  The common excuse for calling it theft is
reference to the copyright holder's profits being "stolen", but because
those profits do not even exist yet at the time of the copyright
infringement, they are not literally being "taken away".


> 
> References (in Portuguese)
> 
> [1] http://www.planalto.gov.br/ccivil_03/Leis/L9609.htm
> [2] http://www.planalto.gov.br/ccivil_03/Leis/L9610.htm

Alas, I do not read Portuguese.  Maybe in Portugal the word for "theft"
is defined differently than here, so that it applies not to property per
se, but to any illegal act of acquisition; that is not a jurisdiction
whose copyright laws are familiar to me.  I rather doubt it, though,
because a legal definition of theft that is applicable to copyright would
fail to account for actual theft of actual property of naturally limited
abundance.

Given an example with which I am more familiar (the United States),
though, I cite Dowling v. US:

    The infringer invades a statutorily defined province guaranteed to
    the copyright holder alone. But he does not assume physical control
    over the copyright; nor does he wholly deprive its owner of its use.

Dowling v. US specfically set forth for those who wished to define
bootleg recordings as "stolen property" the details for why this was not
an appropriate definition, and rejected outright and in all its
particulars the concept that copyright infringement is theft in any legal
sense of the term.  The reasoning is summed up in the above two-sentence
quote from the Dowling v. US decision.

The economic principle that differentiates copyright infringement from
property theft is that of rivalry.  A rival good is one whose use by one
consumer prevents the use by another, whereas a nonrival good is one
whose use by one consumer does not interfere with the use by another.
Copyright infringement is illegal acquisition, by a consumer, of a
nonrival good; property theft is illegal acquisition, by a consumer, of a
rival good.  Copyright violation does not deprive anyone else of the
opportunity to acquire or use the good in question, whereas property
theft *does*, accounting for the differences of legal status for
acquisition between rival and nonrival goods.

Thomas Jefferson, in discussions of the idea of copyright and patent law
before such were even included in the US Constitution, made this
distinction as well:

    He who receives an idea from me, receives instruction himself without
    lessening mine; as he who lights his taper at mine, receives light
    without darkening me.

-- 
Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ]

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