Glyn Moody has an excellent post up on Techdirst, Misleading Metaphors That Drive The War On Online Sharing (see below). He discusses the confusion arising for misuse of metaphors like “stealing” when applied to ideas and other non-scarce things. I’ve noted this general problem before–see my post On the Danger of Metaphors in Scientific Discourse, and Hume on Intellectual Property and the Problematic “Labor” Metaphor; also Intellectual Property and Economic Development (my Mises U 2011 lecture); Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Locke, Smith, Marx and the Labor Theory of Value.
Here’s Moody’s post:
from the words-words-words dept
Certain terms crop up time and again in the arguments around copyright infringement and file sharing. Words like “theft” and “stealing” clearly represent an attempt to frame the debate in a certain way. That’s hardly a new insight: many posts on Techdirt have pointed out these attempts to manipulate the discourse.
But until now, no one has stepped back and looked at this phenomenon as whole, placing it in a historical and legal context, or tried to analyze how it is related to the battles for the future shape of the Internet currently taking place. That’s just what Stefan Larsson has done for his doctorate at Lund University in Sweden, in a thesis entitled “Metaphors and Norms – Understanding Copyright Law in a Digital Society” (available as a PDF.)
Here’s how the accompanying press release (yes, even theses have them these days) explains the central question it seeks to answer:
What is it about copyright that doesn’t work in the digital society? Why do millions of people think it’s OK to break the law when it comes to file sharing in particular? Sociology of law researcher Stefan Larsson from Lund University believes that legal metaphors and old-fashioned mindsets contribute to the confusion and widening gaps between legislation and the prevailing norms.
Our language is made up of metaphors, even in our legal texts. Stefan Larsson has studied what consequences this has when digital phenomena, such as file sharing and downloading, are limited by descriptions intended for an analogue world.
In other words, the problem arises when we transpose concepts from an analog context into a digital one, where those concepts are used as metaphors that fail to work because of key differences between the two worlds.
One of those metaphors is “theft”:
“When legal arguments equate file sharing with theft of physical objects, it sometimes becomes problematic”, says Stefan Larsson, who doesn’t think it is possible to equate an illegal download with theft of a physical object, as has been done in the case against The Pirate Bay.
Using the compensation model employed in the case against The Pirate Bay, the total value of such a site could be calculated at over SEK 600 billion. This is almost as much as Sweden’s national budget, says Stefan Larsson.
Another is “copy”:
In Stefan Larsson’s view, the word ‘copies’ is a hidden legal metaphor that causes problematic ideas in the digital society. For example, copyright does not take into account that a download does not result in the owner losing his or her own copy. Neither is it possible to equate number of downloads with lost income for the copyright holder, since it is likely that people download a lot more than they would purchase in a shop.
Both of those will be familiar terrain to Techdirt readers. But Larsson believes that these misleading metaphors have something in common:
“The problem is that these metaphors make us equate copyright with ownership of physical property”, says Stefan Larsson.
That is, the very idea of “intellectual property” is a metaphor that encourages people to make critical mistakes about what we can do with it, and what the ethical framework governing it should be. I certainly agree with that analysis – it’s why I prefer to call copyright and patents what they are: time-limited, government-backed intellectual monopolies. But maybe that’s just another metaphor….