[Hitch]

Originally Posted by Harmon

Actually yes. Me. I'm a lawyer.

It's not the legal definition of "theft" that is in issue here. It's the legal definition of "property." What everyone calls "intellectual property" is NOT actually property. As a legal matter, it cannot be stolen (unless, of course, there is some other law specifically establishing some form of intellectual property as "property" for purposes of the statutes against theft. I believe that there are some concerning trade secrets. But in the case of copyright, there are none that I am aware of.)

That's a nice piece of sophistry. I particularly admire the deployment of the imprimatur of inarguable authority based on your credentials to put an end to the opposition. But, assuming arguendo that you are indeed a lawyer, then, surely, counselor, you have failed to mention Downing? The--and I mean THE--precedent case on the topic of "property?" In which the court held that Property is a broad concept that includes “every intangible benefit and prerogative susceptible of possession or disposition.” Downing v. Mun. Court , 88 Cal. App. 2d 345, 350 (1948). The one case cited constantly on the very topic of the definition of property, since 1948?

"Intellectual PROPERTY" is property. That's why it's named "property," and not "Intellectual Ephemera." You're attempting to make your case by an inverted argument; that because there is a separate set of Federal Statutes that specifically address the criminal activity termed "infringement," (above and beyond those laws that cover "theft") that this means that what occurs when this type of personal property is "misappropriated" or "converted" ISN'T theft. As if this is the end-all and be-all; as if some Roddenberry-esque utopian idea exists that our form of government is so streamlined and so efficient that additional, unnecessary laws never come into existence, and that no legislator ever existed who introduced a completely unnecessary set of Statutes to be passed, regardless of the fact that the thef--excuse, me, the "infringement"--of this form of personal property would have been adequately covered under the existing laws governing theft.

You FURTHER fail to mention that States regulate their own laws regarding everyday, ordinary THEFT, and that the federal government was REQUIRED to specifically address the crime of copyright infringement, not as some lesser, wink-wink, nudge-nudge, "everyone is doing it and we'll turn a blind eye" offense, but as something covered by and prosecuted by FEDERAL law because of its very origins. The fact that the Feds named it something different hardly constitutes a viable argument that it somehow doesn't amount to the legally-defined term of "theft." That's akin to arguing that because a horse is a Thoroughbred, that means it's ONLY a Thoroughbred, and no longer a horse. That's obvious nonsense; a thoroughbred is merely a TYPE of horse; or, in the alternative, it's a thoroughbred in addition to being a horse. I submit to you that the categorization of "copyright infringement" is nothing more than a naming convention specifying and setting apart a TYPE of theft.

Since that term--theft--seems to blow so much smoke up your nose, however, fine; I'll limit myself to simply calling it "stealing," which isn't covered under Statutes anywhere, to the best of my knowledge. Or, if you would prefer, pilfering; nicking; swiping; lifting; how about "ripping off?" There, is that much better?

That's why we have copyright laws. If your misunderstanding of the law of theft and property were correct, we would not need to have any copyright law. The very existence of copyright law demonstrates that "theft" doesn't do the trick. Otherwise, we'd simply bring prosecutions for theft.

I don't misunderstand it at all. You know quite well that we have copyright law for myriad reasons, and not because it "isn't theft." We have many overlapping laws from Federal and State Statutes. You further know that many criminals are in a toss-up, jurisdictionally, for prosecution; that hate-crimes, for example, can be prosecuted at the State level OR the Federal level, and may be called two very different things--the offense differently named--but the crime remains the same. It's misleading to state your position as a settled legal FACT. Your assertion that the existence of Federal copyright laws is dispositive proof that copyright infringement isn't theft is an argument; it's not a statement of settled legal finding, the last time I looked. I'm sure if it was, you'd have cited the precedent and/or decision, to actually "settle" the argument--but you didn't. I mean, what, 12 pages of posts and you can't be bothered to post the precedent that clearly states that IP isn't "property?" Since you seem heated about it, I'm sure you have that case immediately to hand, and I for one would like to see it. Hell, I'm sure everyone involved in this discussion would like to see it.

My advice is to keep the law out of this discussion. It won't help you that, for example, it is not a violation of copyright law (in the US) to download a book from a pirate site for free, if all you are going to do is read it yourself. Nor is it a violation to strip DRM from a Kindle ebook in order to read the ebook on your Sony.

It MAY be unethical, in your view. But that's a different matter.

I notice you also failed to reference Kremen v. Cohen, which is fascinating, in which the court held that a domain name (sex.com, in case anyone is interested) clearly intellectual property in the context of this discussion--is personal property. The court went on to say that:

[We applied] a three-part test to determine whether a property right exists:
“First, there must be an interest capable of precise definition;
second, it must be capable of exclusive possession or control;
and third, the putative owner must have established a legitimate
claim to exclusivity.” G.S. Rasmussen, 958 F.2d at 903
(footnote omitted). Domain names satisfy each criterion.

Moreover, Bancroft (Bancroft & Masters, Inc. v.Augusta National Inc., 223 F.3d 1082 (9th Cir. 2000)) found that a domain name--by any line of reasoning, "intellectual property"--was property, and that the the defendant had committed conversion of a domain name, which it characterized as “tortious conduct.” By your own logic, this patently proves that intellectual property is "property," as only property may be converted. That which is NOT property may not be "converted" under law; hence, if IP may be converted, it is property.

BTW, in Kremen, the court went on to say:

"It would be a curious jurisprudence that turned on the existence of a paper document rather than an electronic one. Torching a company’s file room would then be conversion while hacking into its mainframe and deleting its data would not. That is not the law, at least not in California." It further stated that "...And the common law does not stand idle while people give away the property of others."

I think that's pretty damned clear.

James Madison wrote in Federalist Paper No. 10 that “[t]he protection of . . . the faculties of men, from which the rights of property originate . . . is the first object of government.” (For those of you who like to opine as to what the intent of the Founders really was.)

So, curiously, the court cases relevant to this seem to contradict your assertion that IP isn't "property." The Kremen case's Appellate decision language about the distinction between paper and electronic documents being specious seems to be rather precisely on point with regard to this topic, in fact.

And lastly, I notice that in your statement that "it is not a violation of copyright law (in the US) to download a book from a pirate site for free, if all you are going to do is read it yourself," you neglect to mention the outcome of the Napster case, the RIAA suits, or the fact that the four Pirate Bay founders each got a year of prison time in addition to massive (millions) in fines. I would like to know your basis for that statement--what case or precedent are you citing? Unless the book on the pirate site is Creative Commons licensed, downloading it is a violation of copyright laws because, again, you have obtained that property without the consent of its creator and without a license to use that property from the creator.

People should not be fooled by the fact that all the fooferah--all the legal action and prosecution--has been initially over music, and then movies being pirated. That's because it was music and movies that first became widely available in a digital format. Now, however, books are being widely distributed in digital format, and if you think that Morrow and Random House and all the others are going to remain idle on this topic, you're wrong.

And I come back to what I said in my last post: it's clear to me, as no one has disputed it, that the pirates here wouldn't DREAM of walking into a bookstore and stealing a physical book. They know that that act IS theft, inarguably. They don't do it because they'll be caught and punished. So the fact that they'll pilfer its digital equivalent isn't about any cleverly sophistic and specious argument as to whether or not it's infringement, or theft, or conversion; it's about CRIME AND PUNISHMENT.

And now, I really am DONE with this thread. I said this previously; but was sucked back in...but it's too much of a time-suck and, frankly, a gigantic waste of time and text. I apologize to you all--okay, MOST of you--for the length of this post, but I thought that presenting actual court decisions, language and precedents might be useful to those trying to grapple with this topic.

Truthfully, I think the entire discussion about whether or not IP is "property" is a gigantic red herring; another act of sleight-of-hand to misdirect the watcher's eye from the fact that somebody's work is being pilfered, and that the person who made it isn't being paid for it. I don't know how much simpler it gets than that.

Later.