What’s so Bad About Stealing?
Journal of Tort Law, Forthcoming
34 Pages Posted: 25 Apr 2011
Date Written: April 21, 2011
The moral prohibition against theft, and legal causes of action against trespass and like activities, are usually stated in absolutist terms that admit few exceptions. But application of the theft prohibition to creative goods is incomplete and unstable across industries, regions and periods. Existing economic explanations for the theft prohibition either overestimate its scope of application in creative environments or fail to specify a mechanism by which adjustments in its scope are implemented. A “power” approach that ties changes in the moral and legal treatment of “creative theft” to the distribution of formal and informal “influence capacities” across affected populations may have greater explanatory force. This broadly-applied political-economic approach derives changes in the tolerance of creative theft from the full range of formal and informal actions that may be taken by net users and net producers to facilitate or constrain the unconsented use of creative goods. Unlike conventional political-economic accounts in the copyright literature, this approach anticipates the substantial influence that dispersed net users (and allied corporate interests) have exerted historically over the development of copyright law and the especially powerful influence that net users (and allied corporate interests) currently exert over the partial demise of copyright law and associated norms in leading content markets.
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