[x-pubpol] When Stealing Isn’t Stealing

Fri Mar 30 15:11:38 PDT 2012

Well, its a nice analogy but I doubt there is a common law country that 
does not uphold the principle that infringing copyright is a form of 
theft and while I agree its not an act of removing actual property, it 
is instead removing ones ability to capitalise on the sale of that property.

Anyway, I don't see the link to the Megaupload case, in this instance, 
Megaupload are merely the conduit of providing access to file 
transferring. Megaupload apparently do not provide the actual content, 
but users of their service do. So the critical issue here is 3rd party 
liability. Megaupload probably have useful defence from the safe harbour 
provisions of the Digital Millenium Copyright Act, if this case ever 
gets as far as going to court in USA.

I think the rightsholders who advocated the arrest and extradition of 
Kim Dotcom and take down of Megaupload were playing a game they thought 
was easily winnable. Silly, naive little New Zealand, who so desperately 
wants a free trade agreement with the USA, is an ideal country to do 
this in, and if "we" can arrest a foreigner in NZ, especially a 
distinctly different, slightly obnoxious, very rich, considerably obese, 
and obviously foreign, then the people of New Zealand (who apparently 
despise rich foreigners coming in and buying pieces of New Zealand) then 
with the popular support of the people, the political support of the the 
Politicians who want free trade with USA, and the ongoing political 
lobbying and shenanigans from the rightsholders groups, then "we" can 
have an international outcome that will be the end of "piracy" and buys 
"us" another few years of continuance for our failed business model.

Unfortunately this has back-fired badly and despite Kim Dotcoms apparent 
shortcomings, the people of NZ are clearly against the inappropriate 
methods of arrest, (helicopters and armed police in a dawn raid, the 
draconian response for an innoccuous "crime" and a general feeling of 
support for Kim Dotcom, Megaupload, and general concern at the NZ 
Polices over-reaction, and generally increasing NZers fear and loathing 
of the USA political machine and the USA rightsholders group.

I hear that Judge David Harvey is set down to hear the extradition case 
against Kim Dotcom, in August, and this is good news. David has taken on 
most of the major cases relating to the Internet in New Zealand over the 
past 15 years or more, and as a superuser of the Internet, clearly 
understands new technologies as well as a clear understanding of NZ law. 
While he probably doesn't have a heap of expertise in extradition law, 
which I guess will be at the heart of this case, nonetheless, I am 
delighted he has been selected, and I have no doubt that he will provide 
a fair trial.

Apologies for long rant...

Cheers

Keith

On 30/03/2012 4:17 a.m., Joly MacFie wrote:>
> http://www.nytimes.com/2012/03/29/opinion/theft-law-in-the-21st-century.html
>
>
>
>             OP-ED CONTRIBUTOR
>
>
>   When Stealing Isn’t Stealing
>
>
>             By STUART P. GREEN
>
>
>             Published: March 28, 2012
>
> 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.
>
> Enlarge This Image
> <http://www.nytimes.com/2012/03/29/opinion/theft-law-in-the-21st-century.html?_r=1&pagewanted=all>
> <http://www.nytimes.com/2012/03/29/opinion/theft-law-in-the-21st-century.html?_r=1&pagewanted=all>
>
>
>             Mikel Jaso
>
> Whatever wrongs Megaupload has committed, though, it’s doubtful that
> theft is among them.
>
>  From its earliest days, the crime of theft has been understood to
> involve the misappropriation of things real and tangible. For Caveman
> Bob to “steal” from Caveman Joe meant that Bob had taken something of
> value from Joe — say, his favorite club — and that Joe, crucially, no
> longer had it. Everyone recognized, at least intuitively, that theft
> constituted what can loosely be defined as a zero-sum game: what Bob
> gained, Joe lost.
>
> When Industrial Age Bob and Joe started inventing less tangible things,
> like electricity, stocks, bonds and licenses, however, things got more
> complicated. What Bob took, Joe, in some sense, still had. So the law
> adjusted in ad hoc and at times inconsistent ways. Specialized doctrines
> were developed to cover the misappropriation of services (like a ride on
> a train), semi-tangibles (like the gas for streetlights) and true
> intangibles (like business goodwill).
>
> In the middle of the 20th century, criminal law reformers were
> sufficiently annoyed by all of this specialization and ad hoc-ness that
> they decided to do something about it.
>
> In 1962, the prestigious American Law Institute issued the Model Penal
> Code, resulting in the confused state of theft law we’re still dealing
> with today.
>
> In a radical departure from prior law, the code defined “property” to
> refer to “anything of value.” Henceforth, it would no longer matter
> whether the property misappropriated was tangible or intangible, real or
> personal, a good or a service. All of these things were now to be
> treated uniformly.
>
> Before long, the code would inform the criminal law that virtually every
> law student in the country was learning. And when these new lawyers went
> to work on Capitol Hill, at the Justice Department and elsewhere, they
> had that approach to theft in mind.
>
> Then technology caught up.
>
> With intangible assets like information, patents and copyrighted
> material playing an increasingly important role in the economy, lawyers
> and lobbyists for the movie and music industries, and their allies in
> Congress and at the Justice Department, sought to push the concept of
> theft beyond the basic principle of zero sum-ness. Earlier this year,
> for example, they proposed two major pieces of legislation premised on
> the notion that illegal downloading is stealing: the Preventing Real
> Online Threats to Economic Creativity and Theft of Intellectual Property
> Act (PIPA) and the Stop Online Piracy Act (SOPA).
>
> The same rhetorical strategy was used with only slightly more success by
> the movie industry in its memorably irritating advertising campaign
> designed to persuade (particularly) young people that illegal
> downloading is stealing. Appearing before the program content on
> countless DVDs, the Motion Picture Association of America’s
> much-parodied ad featured a pounding soundtrack and superficially
> logical reasoning:
>
> You wouldn’t steal a car.
>
> You wouldn’t steal a handbag.
>
> You wouldn’t steal a mobile phone.
>
> You wouldn’t steal a DVD.
>
> Downloading pirated films is stealing.
>
> Stealing is against the law.
>
> Piracy: It’s a crime.
>
> 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.
>
> If Cyber Bob illegally downloads Digital Joe’s song from the Internet,
> it’s crucial to recognize that, in most cases, Joe hasn’t lost anything.
> Yes, one might try to argue that people who use intellectual property
> without paying for it steal the money they would have owed had they
> bought it lawfully. But there are two basic problems with this
> contention. First, we ordinarily can’t know whether the downloader would
> have paid the purchase price had he not misappropriated the property.
> Second, the argument assumes the conclusion that is being argued for —
> that it is theft.
>
> So what are the lessons in all this? For starters, we should stop trying
> to shoehorn the 21st-century problem of illegal downloading into a moral
> and legal regime that was developed with a pre- or mid-20th-century
> economy in mind. Second, we should recognize that the criminal law is
> least effective — and least legitimate — when it is at odds with widely
> held moral intuitions.
>
> Illegal downloading is, of course, a real problem. People who work hard
> to produce creative works are entitled to enjoy legal protection to reap
> the benefits of their labors. And if others want to enjoy those creative
> works, it’s reasonable to make them pay for the privilege. But framing
> illegal downloading as a form of stealing doesn’t, and probably never
> will, work. We would do better to consider a range of legal concepts
> that fit the problem more appropriately: concepts like unauthorized use,
> trespass, conversion and misappropriation.
>
> 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.
>
> Stuart P. Green
> <http://law.newark.rutgers.edu/our-faculty/faculty-profiles/stuart-p-green> is
> a professor at Rutgers Law School in Newark and author of the
> forthcoming “13 Ways to Steal a Bicycle: Theft Law in the Information Age.”
>
>
> --
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