A Word on Copyright Misnomers

One of the most frustrating parts of working in the field is necessarily the legal issues that surround copyright, but the terminology. There are a lot of misnomers in the copyright field and, though that doesn’t usually bother me, it is always annoying when I meet people who are sticklers for the correct terms, even when definitions are understood.

While it is true that the copyright field is rife with terms that don’t fit their “true” definition or are misleading in nature, the simple fact is that it is the way people talk about these issues and these are the terms that people know and are comfortable with.

Still, it is worth taking a moment to look at some of the more common misnomers, why they’re wrong and why they are used. For better or worse, words do matter, so it makes sense to check our own terminology and be honest about the words we use.

Content Theft

We’ll start with one of the more common terms, one that is used regularly on this site (including in the logo) and one of the easier targets. Many people are quick to point out that copyright infringement is not theft and, technically, they are completely right.

Copyright infringement does not rise to the legal definition of theft. Theft is defined broadly as a “criminal act in which property belonging to another is taken without that person’s consent,” but no property is taken in the sense that the copyright holder is not deprived of it. It infringes the copyright holders exclusive rights over the work and may still be a criminal act, but that does not make it a “theft”.

The term “content theft” is used broadly to describe the wholesale lifting on content on the Web, typically via RSS scraping. It is a misnomer, but it is a layperson’s term and is not intended to be a legal definition by any stretch.

I use the term on this site for three reasons. First, it is nice to have another synonym for “infringement” or “scraping”. Second, it is a term that people are familiar with and search for (I receive a great deal of Google traffic for the term and its variations).

But third, and most important, it is used to describe an emotional reaction. Most people who use the phrase admit it’s not theft, but say that having their content wholesale used for spam blogs certainly feels like it. I have to agree and understand.

But yes, the term is a misnomer, but it is important to remember that this is a site, as well as this term, are targeted at laypeople (though many lawyers do read it) and that I use the terms others do to make it easy to find and understand.

Piracy

Many are quick to point out that piracy, historically at least, has more to do with the high seas than copyright infringement. Piracy, first and foremost, is a term used to describe violence and robbery on the open waters, not copying.

However, the term piracy to describe copyright infringement is nothing new. In fact, the “loosened” definition of the word dates back to the early 1900s, when it was used to describe player pianos. Today, every dictionary I’ve checked includes the “copyright” definition as one of the official definitions of the word, usually the second, behind the original.

Though piracy as a word does carry extremely negative connotations. The most common use of it today is to talk about infringement (unless one happens to be traveling in near Somalia it seems). For better or worse, it seems that this term has been codified in the English language about as much as possible and isn’t likely to go anywhere.

It is also worth noting that none of the definitions of piracy distinguish between commercial or personal use, but simply refer to “unauthorized” reproduction. Those who try to equate piracy solely with commercial infringement and not file sharing are also misusing the term, at least according to the dictionaries.

File Sharing

File sharing is a misnomer in that it is not the files that are actually being “shared”. If one shares something, they are deprived of access to it. If I lend you a book or a CD, I no longer have it. Sharing is a sacrifice and a sign of trust that the other person will return the product.

However, if I “share” a file online, I am not deprived of my copy. I am not “lending” nor am I “giving it away”. Rather, I am allowing copies to be made of it. File sharing does not result in files being “shared” but in them being copied and multiplied.

What IS being shared is the access and connectivity. Obviously if I let someone use my access to download a file I no longer have access to that bandwidth at my disposal. If you look at the dictionary.com definition of file sharing, that point is driven home.

File sharing can be called a form of sharing, but it’s not a sharing of the files. It could be “file copying” or “access sharing” and be accurate, but it is a stretch of the definition of sharing to call it “file sharing”.

Peer-To-Peer

This is one that has always irked me from a technology standpoint. Though it is true that “file sharing” networks are peer-to-peer in structure, so is all communication on the Web. Every Web site you visit, every VOIP call you make and every file you download, no matter the means, is a peer-to-peer connection.

The problem isn’t so much with the term itself but its use to describe file sharing services exclusively. File sharing, no matter what format, operates by turning your computer into a “server”, letting it receive and respond to requests from other machines. Though different Internet tools transmit different kinds of data in different ways, the idea of “client” and “server” is always there, even if it is masked in terminology.

The fact that servers are also clients and vice versa does not change the nature of the relationship. All connections on the Web are technically “peer to peer” and file sharing services are not special in that regard. What does make file sharing special is that it allows users to download from multiple peers, increasing the available bandwith and allowing uploaders to only provide a small amount of bandwidth while still giving downloaders decent speed. This would be more like a “peer to peer/peer/peer” service.

Once again, dictionary.com has picked up on the modern definition, including it as a second alternative, but makes the point about what really separates file sharing systems from more traditional Web surfing.

Conclusions

Truth be told, none of these terms bother me too much. In every case above, they are just common terms that almost everyone uses and understands the intended definition behind them.

For example, if you say “content theft” or “file sharing”, others most likely know immediately what you are talking about, even if the term is not technically correct. I don’t begrudge anyone any of the terms above.

In my experience, people who are sticklers for any of these terms are only picky about one or two of them, namely the terms that oppose them ideologically. People that are finicky about “theft” and “piracy” let “file sharing” go by and vice versa.

In these cases, it is not a push for accuracy, but a clear attempt to manipulate the language for their advantage. That, in my opinion, is just as bad, if not worse, than letting people use common phrases that are not wholly accurate.

Still, there are a lot of misnomers and incorrect terms in the world copyright. That’s the nature of the beast But if we think about our language as a whole, we realize that much of the terms we use every day, in all fields, are also not technically correct.

If we were forced tomorrow to only use words that were completely 100% accurate, we would have a very different, and very artificial-sounding, language.

In the end, the debate is more important than the exact terms, let’s keep talking and focus on dealing with the issues, not word choice.