You've seen this argument on every Redditt, BoingBoing, TechDirt and of course Second Life forum for the last decade: taking a copy of a digital item -- a song, a picture, code -- isn't stealing, because the creator and/or owner of the original of the digital item still possesses his original. Herp derp!
Obviously, due to the inherent nature of the digital, the owner keeps his original and everybody else's identical copy doesn't take away his work. Norp dorp!
And elaborating further, the forums regular will tell you that in fact, the author didn't even lose a sale, because the person who swipes a copy wouldn't have paid anyway, had it been digitally locked an impossible to copy.
Oh, but nothing is impossible to copy -- or crack and copy -- or hack somehow on the Internet! Any forums-dweller will tell you that -- but IANAL.
Now you can hear it from a bona-fide professor of law, Stuart Green of Rutgers University, "When Stealing Isn't Stealing: 'Theft' Law in the 21st Century"
Yes, but there is something you have stolen from the creator when you take a copy: the monetarizing capacity of that content.
Sure, maybe that first thief wouldn't have paid you, but if he uploads it to his site, and hundreds and thousands more begin to grab it, maybe some of them would have? And will anyone want to, when it is available for free?
The monetarizing capacity -- it is a real if ephemeral capacity of the digital item -- is diminished if not destroyed when copies are taking without compensation.
Because it is so ephemeral and easily taken should it be discarded and distained by 21st century lawyers?
No, because that element of a product -- the monetarizing capacity -- is a real value and real artifact of that digital commodity -- indeed, it is what makes it a commodity and not merely a shared thing.
And it's that element that is most denied and most weakened by the copyleftism syndrome of the Internet.
In Second Life, this concept is very visibly at work. If you make something with your own original artwork or script something with your own ingenuity, you can set it to "copy/mod/transfer" or other variations -- "no copy/mod/transfer" or "copy/mod/no transfer". This is essentially that much-scorned Digital Rights Mangement (DRM) regime that tekkies always claim "can't" work but does by and large work in the virtual world of SL for the simple reason that the chief reason that makes people want to download unauthorized copies -- their need for multiple copies for personal use on a variety of other devices -- is removed in SL because you can make the digital items "copy/no transfer" so that a person can put up multiple pictures all over one server or many servers and yet not be able to resell the item to others.
Sure, this regime is hackable but the premise holds: the Creative Commons machine stands unused and unwanted. This machine -- a DRM that sets the tone even if breached -- is what works in a community of content linked by commerce -- commerce that is wanted, validated, cherished.
So most people in fact set their creations either on copy/no transfer or "no copy/transfer". That way it can be resold or given away but you can't resell its copyability and its monetarizing capacity.
In the real world, if you make a knitted cap or a wooden chair, it exists in only one edition, without copies, and that unique nature of the product already contains inherently in it the monetarizing capacity. You can sell this unique item. Even if you mass produce the item in a factory with templates, perhaps reducing its price, each discrete item is used up when sold out of the bin, it's gone, and you would have to order and make more to keep selling it and keep gaining the monetarizing capacity.
When you make a digital creation, you the monetarizing capacity is weakly represented precisely because Internet culture and Internet ideologies have heavily undermined it.
Creative Commons, for example, works very consciously to decouple commodification from content, and to disrupt deliberately the monetarizing capacity of an item by brow-beating you into sharing your content with others -- with only the reward of getting credit for your work, but not with the reward of money. Oh, you say, brow-beaten? Really? When you don't have to use the system? Yes, brow-beaten -- because there is no Creative Commons license that says "pay me and then copy this". No system of easy payments, especially micropayments, was ever developed with Creative Commons -- and that's no accident, comrades. Creative Commons doesn't want you to sell your work -- they want a digital commons of shared content. When the Internet is awash with your freely-shared freebies, so the theory goes, people will want to either tip you or order custom items and then you'll make money.
A very few people do this; a few write books about this method or give lectures about it to get more money, but it's a scam, because most people will never be able to make money by deliberately stripping out the monetarizing capacity of their item.
Stuart Green not only wants to remove the moral stigma of theft -- although you have in fact stolen something of value from someone when you nullify their monetarization capacity through unauthorized copying. He wants to upend the moral paradigm completely by nullifying "theft" as a concept and converting it to a permissions problem. "You are not authorized" or "You were not admitted".
Like a lot of people who go through an elaborate fan dance to pretend they care about copyright and think it's important, Green doesn't really offer a solution when he substitutes "theft" with "unauthorized use" (because he hasn't solved the problem of culture or of hacking):
Illegal downloading is, of course, a real problem. People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it’s reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn’t, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.
If we can't invoke moral stigmas in the mass context of the Internet; if we can't have people literally reap benefits by being paid by a click on the Internet, how are we really helping them to be "entitled to enjoy legal protection to repeat the benefits of their labors"?" We're not. Reframing the debate with different language or different legal terms doesn't remove the problem of the erosion of monetarization capacity.
Usually the lawyer or the forums-dweller at this point will argue that doctrines of scarcity in order to retain monetarization capacity won't work -- you can't keep digital items scarce. Well, in one sense, all our user-generated content is "scarce" in that most people can't find it unless they have a way to find it on search, or through social networks. My blog is very scarce -- only thousands, not millions, have read it! lol.
But in fact, holding on to monetarizing capacity isn't creating artificial scarcity, it's just holding on to monetarizing capacity. Why let go of a good thing?
The New York Times, for example, since it moved to paid online subscriptions, far from what the doomsayers said, has increased the numbers of online subscriptions, to something like 450,000, and increased its revenue. Good! That may be a far cry from all these people in every little town who would go and buy the Sunday Times for $1.00 or $2.00 back in the day, who have stopped doing that, but now if they want that content, many of them are willing to pay for it. Otherwise they don't get it. It's behind a log-in paywall. Good!
These other legal notions trotted out -- unauthorized use, trespass, conversion and misappropriation -- not a single one of them addresses the issue of the monetarization capacity. You aren't "using" content. You are validating its monetarization capacity by paying for it. Trespass? No, it's not that you came on my server from the boardwalk when you copied my song, but rather than you took away my ability to make money. Conversation doesn't seem to make sense and "misappropriation" isn't right either for the simple reason that outside of Second Life, most people copying songs or pictures or text or code on the Internet aren't trying to re-sell it -- indeed, the same ease with which anything can be copied is going to mitigate them from capturing that monetarizing capacity again that they've just undermined in another.
The problem with all this doesn't just rest in the ease with which the monetarizing capacity is instantly stripped out of a thing on the Internet.
The problem is prior -- it rests in the ideological aversion to having commerce and content coupled; the ideological aversion to recognizing that monetarizing capacity is a good and right thing to have in content.
The early pioneers of the Internet like Tim Berners-Lee either believed in utopian sharing and believed that like the scientific commons shares knowledge, all people should share everything in a collective farm in cyberspace -- or they believed that their own costs -- the costs of programmers and servers and computers -- had to be disguised. That's really evident in Youtube videos showing the first newspapers delivered over the early forms of the Internet. The set-up of the computer, the line, and the printer was so expensive that of course you had to make the newspaper free as a loss-leader! And so it goes!
I believe that instead of going down the route of all those more exotic legal concepts and their weak support in precedent law on the Internet anyway, we can steer the Internet in the same direction that Amazon took it back when everyone said Amazon would fail. And that is to recognize that commerce -- buying and selling things -- is a legitimate and needed purpose on the Internet (in other words, to get away form the John Perry Barlow diktat).
We can say that in the next iteration of Web 3.0, it's absolutely imperative that engineers create safe and secure and effective micropayments systems attachable to content. There is no reason on earth or in hell that they can't do this. They can change their minds from their goofy 1.0 and 2.0 days where they wanted it to be a big free-for-all while they got paid, undermined other people's industries, and nobody else got paid. That's going to have to end, or the Internet itself will end or fracture into a lot of aps attached to a few big companies with wallets on smart phones (and they won't be just telcos).
The hilarious thing about Square and the movement to make it easier to pay for things in the real world is that the makers aren't simultaneously making these inventions usable ONLINE. Duh! You know, on the Internet. For things on the Internet. Digital stuff. Why can't I tip someone on Twitter with Square or pay somebody for a blog post with Square? Why is Square only outside the Internet on phones buying real-world stuff?!
All this will change! Because people will need it to change.