Yesterday I went to an open discussion about SOPA with Jason Altmire, who represents my district. He came out against SOPA at the end of the event. But one thing that bugged me was that just about everyone used “theft” as a synonym for copyright infringement. And this “theft” by rogue websites in China and southeast Asia, everyone supposedly agrees, is a serious problem, even if SOPA isn’t the right answer.
Consider a typical case where somebody downloads a Hollywood movie to watch, without paying for it. Taking this movie wasn’t authorized by the copyright holders. But the copyright holders still own it. They still have all their copies, and they are still free to make more. They can distribute and license it as they wish. They can make sequels and spin-offs and t-shirts and bobble-heads.
What would you call that? I would call it copyright infringement, but I wouldn’t call it theft.
Now imagine a different scenario. A work you have is taken from you. And once it’s been taken, you can no longer make copies. In fact, you have to get rid of all the copies you have. When it was yours, you could make copies, send them to your friends, make derivatives, use it as a jumping off point for new works. You could do with it as you pleased. Now, you can’t do any of that without the permission of the person who took it from you.
Would you call that theft?
I would call it Golan v. Holder. Wikimedians are having to get rid of thousands of public domain works from Wikipedia and Wikimedia Commons that used to be public domain in the U.S.—used to belong to the public, to use and copy and build from—which were put back into copyright by Congress. And the Supreme Court just decided that in fact, that’s just fine.