Under the “theft” conception of copyright law, what, exactly, is the deprivation when someone makes illegal copies? It really boils down to just one thing: money. Copyright infringement – renamed copyright theft — deprives the copyright holder of some of his or her expected profit from exploiting the copyright. […]
Failure to pay expected money under a contract doesn’t trigger a penalty: contract law usually says that a party can recover the money she expected but not punitive damages or attorneys fees (unless parties have specifically bargained to pay attorneys fees for a breach). Failure to pay rent usually requires payment of rent to cure the default. Failure to put money in the parking meter prompts a ticket for $60. In New York City, failure to pay the $2.50 subway fare results in a maximum fine of $100.
That’s an immensely seductive analogy, and I’m sure it’ll be widely linked and tweeted, but it’s also completely incorrect (and I’m rather disappointed that it’s written by a lawyer). People aren’t sentenced to pay astronomical damages because they downloaded a song, but because they uploaded it. The author mentions in passing that Jammie Thomas was found guilty even though it was never proven that anyone had downloaded a file from her, but I’m pretty sure I remember the argument being that she had offered them for download and that was enough — it still wasn’t about her downloading them.
To get back to the author’s analogy: people aren’t found guilty of jumping the turnstile, but distributing fake subway tokens… by the thousands. I don’t expect you’d get away with a $100 fine for that.
On the other hand, the author’s point about how copyright infringement came to be known as “copyright theft” is entirely right, and quite depressing.