Is illegal copying of software theft?

If I take a DVD with a piece of software on it, without the owner’s approval, then everyone would agree that it is an act of theft. But if I only copy the disc’s content, or download it over the internet, and thus do not deprive the owner of any physical object, is it still theft?

The most basic understanding of theft would be when you take possession of someone’s physical property without that someone’s approval, be it a car, a wallet, or some jewels. Prototypically theft involves touchable things, but it can also extend to nonphysical things. For instance, you can illegally empty someone else’s bank account without actually moving any physical coins or money around. It would still be theft, even though no physical objects are involved. In both cases, you would have deprived the rightful owner of something of value.

But can the concept of ‘theft’ be extended to illegal copying and downloading of software? Clearly you have not deprived the owner of anything physical or even digital. You have merely copied it. The software itself is still there in its original place, so how can it be theft?

If I steal a physical DVD with software on it, it is not the disc itself I want. It’s the content of the disc that I want. If I illegally copy or download it, I’m after the same thing. The fact that I’m not taking the software with its physical container/carrier seems irrelevant to me. I have illegally transferred something into my possession that doesn’t belong to me. I have thereby also unduly benefited from someone else’s property. I have infringed on the legal owner’s right to control it’s distribution. Does this amount to theft? Instinctively I would say yes, it does.

Now, I can understand if people object to this. It’s common to treat words and their meanings as fixed points in the universe. If you have a fixed concept of the word ‘theft’, and try to apply that to illegal copying/downloading, then you would naturally conclude that illegal copying is not an act of theft because you’re not depriving the owner of the thing you’re making a copy of.

But words and meanings are not fixtures. Nor should they be treated as such. The world around us changes all the time, and so we must constantly re-negotiate our vocabulary to match it. Otherwise our language would eventually be useless.

The meaning of ‘theft’ relies on (at least) three concepts, namely, property, ownership and possession, as well as on how those concepts are transferred between keeper and taker. When the idea of theft was originally thought up (an occasion now long lost to history), there were no digital products around. Now there are. I can have ownership and possession of a physical thing like a car, and I can have ownership and possession of a digital product like a piece of software or a digital recording.

A piece of software cannot normally change hands in a physical sense, only copied. That is, while you can transfer the ownership of software, you cannot physically transfer the property itself. You can copy it and then delete the original, but unless you transfer the software’s physical carrier/container, the software by itself cannot be transferred.

If the concept of ‘theft’ depends necessarily on the illegal transfer of the property itself, it should by implication never be possible to steal digital products. To me, there’s something wrong, and obsolete, about that. In principle, anything that can be possessed can also be stolen. It really isn’t that much of a stretch to re-think the idea of ‘theft’ to include illegal copying/downloading. We need to focus on theft as an act of illegally taking possession of a property, and only that. The physical transfer of the property itself does not have to be involved.

I should perhaps emphasize that I’m not talking about the legal definition of ‘theft’ here. I’m trying to understand a colloquial usage of the word ‘theft’, in particular my own. And to be quite frank, I’m not even sure that I’m all that categorical about it. Perhaps we do need a new word for this. I guess my only point is that it’s at least not impossible to think of illegal copying/downloading as an act of theft.