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Here’s The Reason I’m Not an Attorney

From a very young age, people told me I should be an attorney. When I was a kid I thought that was a compliment, but as I got older I realized it was merely commentary on my ability to come up with an argument for (or against, for that matter) almost anything.

It’s a useful skill. And I’m pretty sure I would have made a great lawyer. I even reconsidered going to law school about ten years ago. But at the end of it all, I felt the same way as an adult that I did as a teenager and college student: I don’t approve of most of what most attorneys do and didn’t want to join the party.

Every now and then I write something here in which I speak about the law, and feel compelled to point out my “not an attorney” status. And of course, our Intellectual Property clients hire us in part specifically because nobody at Answer Guy Central is operating from the position of having passed a Bar Exam; I’m a business guy; we see change and adapt, rather than trying to work the system to the point where that work stops meaning anything.

Lately, the subject of Intellectual Property has become one bandied about by regular people. Whether it’s the Carpathia/MegaUpload debacle or Neil Young and Elvis Costello coming out in favor of music piracy, IP is now being discussed in the mainstream. This is great news; it will force changes in the media business that the media business itself has been resisting. It’s the kind of discussion that needs to take place; if the only people willing to speak openly about piracy are the Fred Wilsons of the world, nothing’s ever going to change. Fred Wilson just doesn’t reach enough of the Joe Sixpacks to get a real groundswell going. (Sorry, Fred)

Yesterday, this piece ran at Freakonomics, arguing, as this one from The New York Times had several days earlier, that Copying Isn’t The Same Thing as Theft. Sounds like these were both written by lawyers, putting forth the kinds of “difference without a distinction” positions that I was so good at as a child.

In reading the Freakonomics piece I can twist my mind to the point where I think that the authors at least got it right in lawyer-speak, by titling their piece “Copying is Not Theft” and relying on the legal definition of theft to make their point. I was actually thinking they were smart for not having titled the piece “Copying is not Stealing”; but for the wording, they might well have been wrong.

But the New York Times article is called “When Stealing Isn’t Stealing”. So much for that argument.

So let me come out, once again with the disclaimer that I’m not an attorney, that of course copying something you know belongs to someone else and that you’re supposed to pay for the privilege of possessing a copy of, IS stealing. But let me also say that Neil Young and Elvis Costello are right; it’s time this stops being the focus of the discussion. The way this business is done needs to change.

Software Patents? They’re a mess. Entire businesses predicated on enforcing patents? A boon for attorneys, but not the best idea. The entire media business? Don’t get me started!

There needs to be more common sense applied to this subject. Thank goodness the US Supreme Court had more of it than the New Jersey Supreme Court did; the age of bits and bytes is different than what came before. And seriously: In what world should it be illegal to sell used software?

Copying may not be theft, but of course it’s stealing.

The real issue, though, is that it’s time that stopped being the thing we’re talking about and instead we concentrate on making real business change.


  1. It’s neither theft nor stealing (which are synonyms as far as I know). And I don’t mean that some kind of legalistic, weasel-worded way, I mean it in the most simple and direct way one can use the English language: copying something from person A without getting person B’s permission first is simply not theft, because neither A nor B have lost possession of the thing being copied.

    How did we get to the point where someone failing to honor a state-granted monopoly on information-sharing came to be equated with stealing physical objects?

    If we want a one-syllable word to describe unpermissioned copying, we’ll have to make one up. Calling it “theft”, with all the connotations that word already has, is misleading.

    This whole concept of a song “belonging to someone else” is problematic. I never share Neil Young’s copies of things. I share *my* copies of things. Some of those things might be copies of copies of copies that originally came from some copy in the possession of Neil Young, but by the time it gets to you or me sharing a copy with some one, it’s not his copies at issue anymore, and I don’t see why he should get to own my stuff. (Remember, this isn’t about attribution — no one’s advocating plagiarism or fraud here. The debate is about properly attributed copying, not about lying, which is not going on.)

    • Karl, your suggestion that we create a new word is a great one—you know, except for the sad reality about how many esoteric words we have in English for no obvious reason other than to relieve us of needing to think about the things we say and hear.

      As anyone who reads my stuff knows, I’m staunchly against software patents, and I have serious issues with how silly the idea of copyright is, especially given the nature of the laws that govern it. But with that said, let’s get to the crux of the issue (on music in particular, but of course this applies to film and other “art” too):

      Whatever you call the “transgression”, copying a piece of art without paying the artist when you know you are supposed to is morally wrong. That said, I think it’s remained questionable until very recently as to whether people ever thought about the issue. Huh! A copy of my favorite Beatles album, just sitting here for free! Cool!

      Move past that very difficult point and you end up back at the subject of “stealing” or “theft” or whatever you call it. And now, remove the physical goods part of things. No, this isn’t “theft of services”, exactly, but now we’re closer to something that has a legal equivalent.

      I don’t know what the answer is. I DO know that groups like the RIAA are going about things too heavy-handedly and the courts don’t understand the complicated realities behind it all.

    • Karl, in case you missed it, a new ruling that backs up your “I am not a legal weenie, that isn’t stealing or theft” position was just issued by a US Court of Appeals Judge.

      Interestingly, though, the judge acknowledges that his position is a legal weenie position and that the spirit of things makes taking code theft . . . but that legally it fails to meet the criteria for stealing or theft.

      So we’re both wrong, and both right. Copying music both is and isn’t theft or stealing.

      Or Something.


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