In the wake of the Australian High Court decision in Roadshow Films v iiNet  HCA 16, though not entirely apropos of it, Prof Stuart Green of the Rutgers School of Law tells the Australian Broadcasting Corporation that illegal downloading is more similar to the crime of trespass than of theft:
“To say that there was a trespass is traditionally understood to mean that there was a temporary use of someone’s property without permission,” he said. “If someone trespasses on your property it means that they’ve come uninvited but they haven’t deprived you of use. They haven’t deprived you of the basic possession of the property.
This is something I’ve been arguing in pubs and such for some time, so I’m glad to have at some academic support. If you copy my movie or book or whatever without permission, you’ve enjoyed something for free that the law says I can exclude you from or else charge you for as I see fit. What I hold is something like a property right, but it’s not so much like a right in tangible personal property—which can be stolen, destroyed or used up—as like a right in real property, which I own up to heaven and down to hell and come what may.
Say I’ve got some land on a hill with a beautiful view. I might charge people to climb my hill and have a look—and if trespassers sneak in at night they’ve acted contrary to my right to charge or exclude them, but it’s a stretch to say that they’ve stolen anything from me. So it is with copyright infringement. It’s not the same as stealing a DVD off a shelf, where a retailer has paid for that DVD and now won’t be able to sell it to anyone else. It’s more like sneaking in to see a movie without paying, where the loss suffered is more amorphous and harder to quantify.
One difference between copyright infringement and trespass to land is that it’s not likely that literally millions of people would sneak up my hill at night, perhaps vastly outnumbering the people who paid, with almost nothing I could do to stop them. But I’m not sure that the empirical consequence of many repetitions of an individual act should be allowed to affect the legal nature of that act, or to call it anything other than what it is.
Does it matter? I think it does. Intellectual property is valuable and the people who develop it deserve to be paid. But punishing breaches of copyright is never going to be as effective as persuading people not to infringe in the first place. And we won’t persuade them of anything by presenting them with bad arguments whose premises they instinctively feel to be false. Rather than the simple-but-wrong equation of copyright infringement with theft, I think it’s worth making slightly more complex and much more sustainable arguments. As Green has said previously:
So what are the lessons in all this? For starters, we should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind. Second, we should recognize that the criminal law is least effective—and least legitimate—when it is at odds with widely held moral intuitions.
Illegal downloading is, of course, a real problem. People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it’s reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn’t, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.
This is not merely a question of nomenclature. The label we apply to criminal acts matters crucially in terms of how we conceive of and stigmatize them. What we choose to call a given type of crime ultimately determines how it’s formulated and classified and, perhaps most important, how it will be punished. Treating different forms of property deprivation as different crimes may seem untidy, but that is the nature of criminal law.
I’m looking forward to the anti-piracy ads to come: You wouldn’t sneak into a movie. You wouldn’t dodge a bridge toll. You wouldn’t just have a picnic in someone’s field. Downloading pirated films is conceptually a lot like trespass. Trespass is against the law. Piracy. It’s a crime. Just not that one.