"Go to a local electronics store, grab some pricy gear, and leave without paying for it."

Until you stop committing this fallacy, it is impossible to take your argument seriously.

If folk could walk past, point a magic cloning ray, and have a COPY of the "pricy gear" while leaving the originals in place, then, hey, only the world's greatest assholes would begrudge folk that - all of society is bettered by free and uncompelled sharing.

Copyright infringement is simply NOT analogous to physical property theft. A copyright monopoly itself might, charitably, be considered owned - and if I wrongfully came to possess the copyright itself (say by fraudulently claiming to be the author of a work and presenting it to the copyright office) _that_ might be a little more closely analogous to theft.

But as it is, you propagandists make the same fallacious argument by comparison to physical property over and over again. Shrug. I don't actually mind all that much, since most normal people see straight through it.

Spumco, thank you for your comment. I am glad to see that you agree, (at least implicitly), that I correctly characterized a property right in a physical trade good as a right to sue those who appropriate a copy of the good without paying for it. If we agree about that, then I think that the rest of my arguments in this post do have to be taken seriously.

Nevertheless, I will respond to the larger point that you try make even though it was irrelevant to this particular case. You are claiming that no one can fairly analogize the effects of copyright infringement to the effects of theft of tangible property. Essentially, you are thus remixing the apple-ain’t-songs argument that Lessig made in Free Culture (p. 64). It goes like this: If I steal an apple from the grocery store, then the store has one less apple to sell, so stealing apples is bad. But if I use LimeWire to download an unauthorized copy of a recorded album, Tower Records still has the same number of CDs of that album to sell, so the unauthorized album download differs fundamentally from the theft of an apple.

Even Lessig calls this argument “very weak.” In Grokster, Justices Breyer and Stevens actually equated unauthorized downloading with “garden variety theft”—and Breyer is surely no “propagandist” for copyright protection.

Investors in Tower Records know why this attempt to distinguish property rights in apples and movies fails: It ignores the real purposes of property rights in trade goods. We recognize property rights in physical goods even when the existing supply of those goods is more than adequate. For example, if you steal an apple from the grocery store, you cannot avoid liability by proving that it probably would have rotted anyway. And for good reason.

From the perspective of static efficiency, your argument should prevail: Certainly the law should not punish you for stealing a apple that would otherwise rot. But the law will punish such conduct to preserve dynamic efficiency: If we made property rights this easy to evade, we severely compromise the incentives for authors to produce next year’s apples and for grocery stores to buy and transport them. In other words, owners of property rights in trade goods rarely care about how many units they have to sell—they care about the number of sales.

The books-ain’t-movies argument thus has a false premise. It presumes a 1:1 relationship exists between misappropriated and non-sold copies of physical goods but not between infringing and authorized copies of expressive works. That is just wrong: Regardless of whether we are talking about physical goods, the relationship between taken copies and lost sales is never 1:1. No doubt the relevant ratio varies, but this is a difference of degree, not kind—hardly a difference that precludes a valid analogy. Indeed, the author of a given book should care only marginally about whether you did not buy his book because you stole a copy from a bookstore or downloaded an unauthorized copy from the Internet.

Nor does the apples-ain’t-movies argument improve much when it is recast as a claim about the “nonrivalrousness” of intangible goods. Unfortunately, this is mostly just a way to sound erudite while trying to draw the same weak distinction between property rights in apples and movies. Your example of a “magic cloning ray” shows why. Recently, I was thinking about such a ray when I realized that real creators had already done the imagining for me: Your imaginary “magic cloning ray” is a Star Trek “replicator.”

So you are arguing that if replicators existed, “only the world’s greatest [idiot]” would require replicator users who wanted to replicate an otherwise-free copy of the latest gizmo to pay the gizmo’s original creator for incurring the costs and risks needed to create and distribute it. From the perspective of static efficiency, this would be idiotic. But from the perspective of dynamic efficiency, it would be idiotic to do otherwise—unless we thought that everything worth creating or saying already existed.

Moreover, if you do believe the “nonrivalry” version of the books-aint-movies argument, then I have bad news: Today’s law—is already “the world’s greatest [idiot].” We may not (yet) have replicators, but we have something very similar: We call them “counterfeiters.” For example, in most cases, nothing—except laws—would prevent you from walking into Best Buy, buying the latest popular gizmo, disassembling and reverse engineering it, and then making and selling gizmos of indistinguishable design and quality for less than the price that the original gizmo-creator could charge: You could under-price the original creator because it had to incur costs and risks in order to figure out what type of gizmo would be popular; you avoided those costs and risks by waiting and copying whatever type of gizmo was popular.

You assert that “only the world’s greatest [idiot]” would prevent you from doing this. Steve Jobs is no idiot, and he enforces Apples rights to prevent the sale of functionally indistinguishable copies of iPhones and iPods. Indeed, even Richard Stallman will sometimes reject this sort of argument—he will not let Microsoft enhance its products by incorporating “free” copies of GNU/Linux code that took FOSS programmers lots of time and effort to create.

Moreover, the nonrivalry argument should fail as to the iPhone for the same reasons that it should fail as to the movie Titanic. In each case, various laws (patent/trademark in the first case and copyright in the second) prevent the making of functionally indistinguishable copies of gizmos and movies that have already been created and widely distributed because doing so would destroy dynamic incentives to incur the costs and risks necessary to create and widely distribute new movies or improved gizmos.

Apple surely incurred lots of costs and risks to create the first “release copy” of the iPhone. The same thing happens with movies: It cost a movie studio about $200 million dollars to create the first copy of Titanic. And when that first pricy copy was created, no one could be sure that Titanic would recoup its creation costs. To the contrary—much of the early buzz about it was negative—many thought that Titanic would become the next big-budget bomb. In short, people incurred the costs and risks inherent in the making of the first copy of Titanic only because they could reasonably anticipate that—if people liked it—then its creators could recover its creation costs (and a profit) by controlling the creation and distribution of subsequent copies.

In summary, I do think that it usually will be fair to analogize copyright infringement to the theft of tangible trade goods. I do recognize a potential difference between tangible and intangible goods: In the case of apples, the supply of those already produced is finite, in the case of digitized expressive works, the potential supply of those already produced and distributed may not be. Consequently, the static effects of property rights in tangibles and intangibles can differ. But there is also a similarity: In both cases, property rights can promote dynamic efficiency. So the validity of analogizing infringement to theft really turns on whether the difference or the similarity is more important. I think that the similarity is usually more important, you appear to disagree.

Fine. But I would propose that we resolve our disagreement through real-world experience that requires neither of us to accept, in advance, that the other is right. Indeed, the key difference between us may be that I believe that we should have a copyright system that lets people who believe as you do, (and people who believe as I do), test their beliefs in the only arena that really matters—in the real world. Can you say the same?

The copyright system as it exists today lets you prove that you are right—that increasing static efficiency in the distribution of already-produced works outweighs any decreases in dynamic efficiency that enhanced protection might provide. Copyrights, like all property rights, can be waived in whole or in part. Creative-Commons attribution licenses and public-domain dedications will thus let those who agree with you test your shared theories and prove that easily distributed “free” or “near free” works beat those produced by people who act out of the profit motive and restrict distribution. The real questions is whether we should also respect the decisions of the latter—the decisions of those who choose to continue to rely on the profit motive that has made the U.S. the world’s most successful creator and exporter of a vast range of expressive works. I think that as a matter of law, policy and practice, those choices are sufficiently rational that they should be respected.

If you do not agree, I will not call you “the world’s greatest [idiot].” But would think the refusal significant. When people fear to submit their beliefs to the test of the marketplace, then others can fairly conclude that they are not worth the zero-cost pixels they are printed on.

That was rather long-winded. But still largely fallacious.

"you steal an apple from the grocery store, you cannot avoid liability by proving that it probably would have rotted anyway."

The grocery store still has one less apple, a difference of kind, not degree. you're arguing dishonestly.

"authors to produce next year’s apples"

You're either just blathering or trying to sneak through a fallacious equivalence of apples to information.

"to pay the gizmo’s original creator for incurring the costs and risks needed to create and distribute it"

Those were his costs and risks! - I did not ask him to create the "gizmo", and the "gizmo" itself presumably has positive value to him. The gizmo itself is the primary reward for the work put into it! If it's a thing he wouldn't have made the gizmo without the "incentive" of a monopoly, that's fine by me too - someone else, perhaps myself, might make it.

Your thoughts are symptomatic of a thorough underestimation of the value of things and information in themselves, actually - something I see a lot in people who don't create much.

"You assert that 'only the world’s greatest [idiot]' would prevent you from doing this. Steve Jobs is no idiot"

I did no such thing, I said asshole. Assholes can be very smart - asshole is a colloquialism for belligerence and sociopathy, not low IQ. Idiot suggests stupidity, asshole does not. I think Steve Jobs is pretty smart, Bill Gates is extremely smart. Both men are type-a assholes.

"Today’s law—is already “the world’s greatest [idiot].”

No argument there as such, for "idiot" or "asshole" - I indeed disagree strongly with much of today's law and work to change it (mostly simply abolish - the main problem with the law is that there's simply far too much), including some aspects of counterfeiting law (I support the abolition of all government-backed fiat currency and think currencies should compete in a free market). Shrug.

"the relationship between taken copies and lost sales is never 1:1."

The possibility of the ratio being a negative number is real and commonplace - i.e. taken copies can mean gained sales. That is well-established empirical fact of the Interent era. Shrug.

"I believe that we should have a copyright system that lets people who believe as you do"

[N.B. Creative-commons folk do not believe as I do, I support the Pirate Party.]

"Creative-Commons attribution licenses and public-domain dedications will thus let those who agree with you test your shared theories"

No they simply won't.

It is fundamentally impossible to establish a single coupled economic system where both pro-copyright and anti-copyright can compete fairly, since they interfere (if there were no copyright, I would be able to transmit any arbitrary information without interference in accordance with my beliefs) - consider the slave-less competing with slave-owners while slaves can be owned - It can only end in war. Sure, some might choose to forego slave ownership (choosing not to restrict the freedom of their fellow man even if the law allows it - much like waving copyright, copyright being a legal power to prevent people sharing information), and even win in the end (see: america), but purely economic argument is pointless - copyright is at its core a moral issue .