[Harmon]

Originally Posted by Andrew H.

Royalties from the author, among other things. You stated that "I will not pay for "owning" or "renting" or "borrowing" ebooks" and that you would break DRM if the providers tried to make you pay.

I went back & read my original post. You are right that I did not explicitly say that I pay for digital products. But my examples (Netflix, Kindle, library) all pretty much have to start with a legal acquisition.

But for the record, I always pay for whatever I get in digital format except when the product is not being sold in digital format. Then I buy a paper copy, and take a digital copy wherever I can find it.

It is when you strip DRM to avoid paying for the product.

This does not make any sense to me. I mean, if there's any stealing involved, surely it is if I acquire the product without paying for it, whether or not it has DRM on it.

And with respect to "stealing," I think you are confusing it with the crime of theft. Although even theft has several different definitions, depending on the jurisdiction. "Stealing" is a catch-all term (even when used by courts) that refers to all sorts of impermissible takings.

It appears to me that you are assuming the premise, namely, that the "takings" are impermissible. First, you have to show that anything I've done is "impermissible." Only then do you get to call it "stealing."

See, e.g., this statement in Judge Davis's most recent opinion granting remittitur in the Jammie Thomas case: "[A]n award of $1.5 million for stealing and distributing 24 songs for personal use is appalling." Slip op at 29, although he uses stealing in the same sense throughout.

Well of course she was stealing. She illegally downloaded and distributed the files. That has nothing at all to do with any of this.

As it turns out, I'm also a lawyer.

But my arguments will either stand or fall on their own merits. If my argument is bad, it doesn't matter that I'm a lawyer. And if my argument is good, it also doesn't matter than I'm a lawyer.

Sorry. I didn't recognize a lawyer making a moral argument.

The point is not whether your argument is good or not. The point is that someone who is not legally trained is not in a position to decide if your argument is good or not. That is why judges give juries trial instructions. It's not that laymen are not smart - they are plenty smart as any lawyer who serves on a jury finds out. It is that an opinion formed by a lawyer about what the law means is not very likely to be changed by someone who is not him or herself a lawyer.

Arguments from authority just aren't very compelling when it's easy enough to explain the rationale. And if I can't explain the rationale, I have no business practicing.

When I say that I am a lawyer and have formed a legal opinion about a subject I have done some research on, I am NOT committing the logical fallacy of making "the argument from authority." I am giving my informed opinion based on my knowledge and training. If it is otherwise with you, you have no basis for charging legal fees to your clients.

Royalties from people involved in making the movie because you paid a rental price but kept the movie. The same as if you borrowed a movie from redbox, made a copy, and then returned the borrowed movie the next day.

(This is the situation where I get the movie from Netflix and rip it) Ah, I see. You are assuming that I keep the movies. Nope. Any movie I want to keep, I acquire on DVDs. Same for classical music, actually. But then I rip them.

As for rentals, I get them, rip them, return them and watch them, in that order, about half the time. And then I trash them.

Still think that's stealing?

I don't think you have stolen anything in this instance.

(This is where I buy a Kindle book & strip the DRM to read it on my Sony.) Why not?

Royalties from the author that s/he could have otherwise received either because the library would buy additional copies if the book was very popular (my library sometimes buys 300 copies of a new book), or else royalties that the author would have received when you or someone else became fed up with the wait time and bought the book.

(This is where I get the book from the library, strip it, return it, & read it later.) Now this is interesting. What you are saying is that if I keep the ebook checked out for a year it's not theft but if I make a copy and return the book, then, it is theft. Sounds a little...backwards.

But actually, I don't get ebooks from the library. Maybe they self-destruct after three weeks on my ereader. So what you are saying is that I have an obligation to read the book within the 3 week time frame, or check it out again. And that by allowing the library to lend the book out again when I am secretly reading my bootleg copy, I am stealing a hypotetical sale that the publisher would otherwise make to an impatient library patron.

I think that the publishers agree with you. They apparently are moving to a model where they don't actually sell the library an ebook. They sell the right to lend the book a certain number of times. So when I borrow the book, it makes no difference whether I read it, or not, or when I read it if I do. The publisher gets his money no matter what.

Now note closely what this means: the publishers have awakened to the idea that they are selling/renting convenience, not a book.

Which is precisely the point I was making in my original post.

Most of this is simply a justification for you to do whatever you want.

That's an ad hominem if there ever was one.

Theft, in my jurisdiction, and in most jurisdictions, is defined as "exerting unauthorized control over the property of another person, with intent to deprive the other person of any part of its value or use." (A few jurisdictions, including the federal, still keep the older "with intent to deprive the other person of *all* of its value or use.)

The statute further specifies that exerting control is "unauthorized" if it is exercised "in a manner or to an extent other than that to which the other person has consented."

Now we descend into the murky law of federal preemption. For the non-lawyers, the doctrine of preemption basically says that where Congress has "occupied the field" by passing a law, the state can't pass its own law. That's why Arizona can't have its own immigration law.

First level response: federal copyright law and the DMCA preempt state statutes involving theft. You aren't going to convict anyone for theft because he or she copies a file & strips the DRM.

Second level response: let's assume that preemption doesn't apply. How do you prove the element of loss of "value or use?" It seems to me that you must be claiming that the loss of a hypothetical sale - not the loss of an actual sale - constitutes theft. Good luck on convincing a jury of that. In fact, good luck on surviving my motion for a directed verdict.

Third level and somewhat unfair response: You started off by saying I missunderstood "stealing" to mean "theft." Now you argue "theft." What did I missunderstand, after all?

But now, we need a judge. Any judges lurking? Oh well, you don't get to be a judge by being dumb enough to out yourself as a lawyer on an internet forum...