Shapiro also turns to the other old standby, the Betamax case, to show that practices initially equated with "piracy" or "theft" have been accepted as fair use. But here again, he neglects to point out that the courts have already considered this claim several times in fact and repeatedly found that peer-to-peer file-sharing bears no resemblance to the facts or law in the Betamax case.

Perhaps realizing that the law as written and interpreted by the courts isn't really on his side, Shapiro devotes the heart of his speech to a passionate if poorly reasoned assault on the very notion of intellectual property. "To make downloading immoral," he says, "you have to accept that copyrighted products are governed by the same moral and legal principles as real property."

But the fact is that real and intellectual property are different and are governed by different principles. Downloading a copyrighted product does not diminish the product, as would be the case of taking and using tangible property such as a dress. At worst, it is depriving the copyright owner of a potential sale.

Though Shapiro apparently regards this as a key point, it is actually a distinction without a difference. Let's accept for the moment his assertion that "depriving the copyright owner of a potential sale" does not "diminish the product." In what way, then, is "taking and using tangible property such as a dress" any different? Whether you steal a dress from a store or steal a recording from an artist, you are harming the owner by depriving him or her of a potential sale.

To argue that the owner of the copyright can replace his intellectual property more cheaply or easily than the owner of the dress is to miss the point. Both owners have been deprived of something of value, and both are entitled to seek redress under the law.

Invoking the First Amendment
Shapiro goes on to contend that it's unfair to compare intellectual property to real property, because unlike intellectual property, real property can be taxed and "can be owned forever." So? Intellectual property royalties can be (and are) taxed, and the fact that the property right isn't for forever makes it even more important that it be adequately protected during its term. Shapiro also argues that, unlike real property, "copyright law must bow to the First Amendment that expressly allows people to use a copyrighted product without the permission of the copyright owner."