Arresting Technology: An Essay
Downloading an unauthorized copy of a creative work does not have quite the gestalt of grabbing an item from the bins of a retailer and sprinting for the store exit, nor does it have the same consequences for a retailer. If someone steals a one-of-a-kind diamond ring from a jewelry gallery, it is gone. If a person simply takes a photograph of the ring, takes the picture to another jeweler, and has a copy made, the owner-originator still has the ring, which has lost only its uniqueness. The jeweler who designed the ring has lost a sale, but has not been deprived of precious stones or metals or imbedded labor and resources. If the illicit photographer does no more than photograph the ring, the jeweler has lost nothing except control over a two-dimensional image of her three-dimensional creation.
Copying a song without authorization doesn't prevent the composer from playing or licensing her music, or from selling "legitimate" copies to interested consumers, so the song is clearly not "lost" in the same way a ring would be if stolen. Yet a good-quality playable copy performs the same function as the diamond ring itself. Alchemical devices that quickly and inexpensively duplicate fine jewelry exist only in science fiction. Technology capable of making hundreds of near perfect copies of digital works is increasingly diverse, plentiful, and accessible. A song is hot a diamond ring, and copying is neither theft nor looting in any traditional sense. Commercial bootlegging probably seems wrong to most people, but photocopying a few chapters of a book does not. Context is everything.
Buffalo Intellectual Property Law Journal
Ann Bartow, Arresting Technology: An Essay, 1 Buff. Intell. Prop. L.J. 95 (2001) .