When Stealing Isn’t Stealing

[Commentary] The Justice Department is building its case against Megaupload, the hugely popular file-sharing site that was indicted earlier this year on multiple counts of copyright infringement and related crimes. The company’s servers have been shut down, its assets seized and top employees arrested. And, as is usual in such cases, prosecutors and their allies in the music and movie industries have sought to invoke the language of “theft” and “stealing” to frame the prosecutions and, presumably, obtain the moral high ground. Whatever wrongs Megaupload has committed, though, it’s doubtful that theft is among them.

The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same. 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.