I am a lawyer...I know these definitions pretty well, so Ill chime in.
Let's take George Bernard's famous quote: “If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.” According to your definition, one could not engage in theft of an idea, because one could never be deprived of an idea like with the taking of an apple.
However, let's look at the actual legal definition of theft: The actus reus (act) of theft is usually defined as an unauthorized taking, keeping or using of another's property which must be accompanied by a mens rea (mental state/intent) of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.
You limited the definition of theft to only include when one's mental state intends to deprive someone. The actual definition is not limited though, but alternatively includes when the taking was done dishonestly. Therefore, if someone takes something not belonging to them, and does so dishonestly that in fact is theft. Since I foresee the definition of dishonesty being the next issue here, that has been defined in case law, but generally where the person intended to take property they did not have a legal right to take.
I am very familiar with the Dowling case. However, I assure you the definition of theft does not come from a case from 1985, the common law definition has been around quite a bit longer than 1985. There were a few issues on appeal, but most likely what you and GP are referncing has nothing to do with theft but a conviction under 18 USC 2314 which was over turned because the counterfeit goods in question being transported across state lines were not physical goods, and the court found there must have been a physical taking. This is not about theft, this is about 18 U.S. Code § 2314 - Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting, and under that very specific law of transporting goods, not theft, there has to be a physical taking.
...and pursuing that line of argument right to the end, "intent to permanently deprive the owner...of that property". Clearly that part means, ideas are exempt from the possibility of theft, under the law?
>Clearly that part means, ideas are exempt from the possibility of theft, under the law?
Lets try again, because while I used "idea" in the Bernard quote to demonstrate how non-physical can be taken without depriving the owner, GP was talking about more than an idea, but a digital good:
Act:
An unlawful taking (idea or physical good)
Intent:
1. Dishonesty; (idea or physical good) OR
2. To permanently deprive (physical good only)
You would be right if the intent was only (2) with intent to permanently deprive as the argument, but that is not the case, it is OR (1) taking dishonestly.
Lets remove "ideas" and put it into perspective with a "good", for clarity. I steal your car and chop it up and sell for parts (a unlawful taking with intent to permanently deprive = theft); alternatively, I steal your car at night, go joyriding and return it in the morning before you even know (unlawful taking without intent to permanently deprive...would you say that is not theft? If so you would be wrong even though I never intended to permanently deprive, because it is an unlawful taking and my intent was dishonest = theft)
>I steal your car at night, go joyriding and return it in the morning before you even know (unlawful taking without intent to permanently deprive...would you say that is not theft?
I would say that is not theft. According to my lay-person's understanding of the law, what you've described is called criminal conversion.
I also remain unconvinced of your notion that copyright infringement is theft.
Thanks, I carefully re-read and see that now. (Why I'm not a lawyer I guess!)
So, legal mental state must be a particular (non-intuitive) thing, because if the other posters on this thread think its not dishonest, then they're clear of any wrongdoing re: digital piracy. Right?
> Since I foresee the definition of dishonesty being the next issue here, that has been defined in case law, but generally where the person intended to take property they did not have a legal right to take.
Intent is a legal term of art and not purely subjective mental state pursuant to the natural definition - so in this context it is fair to say mental state is non-intuitive.
Another example...if you throw your car keys at me and tell me I can take your car for the night, but unbeknownst to me it wasn't your car at all, then I would not have the mental state required to be convicted of theft because while I committed the act (unlawful taking) I did not have the mental state required (dishonesty in the taking or intent to permanently deprive). That would be true lack of intent, whereas, in your example there would be intent to take a digital good, but a moral objection/indifference to the law.
I recall in law school a student once told our Con Law professor, "I don't believe in Judges being appointed to the bench" and supported his position with 5-10 minutes of very strong arguments against the concept, at the end of the diatribe our Con Law professor simple said, "whether you believe in appointed Judges or not, I assure you they exist". The same would be true of laws, whether you believe in/support them or not, that does not negate their existence or ones intent of committing the act, to be distinguished from where one truly did not intend for the act to occur.
Terms such as "theft" and "steal" and similar words have meanings in English beyond the literal violation of a law. Some examples of stealing as correctly used in English:
• Someone says they do not like cats and have no interest in having one as a pet. A cute stray kitten shows up on their doorstep, they take pity and feed it. They fall in love with it and keep it. They might say that the kitten "stole" their heart.
• An actor playing a minor role in a play gives a performance that outshines the performance of the stars. Many would say that the actor "stole" the show.
• An employee of a rival company poses as a janitor to gain access to your lab and takes a photo of a whiteboard containing the formula for a chemical that is a trade secret in your manufacturing process. It would be common to say that the rival company "stole" your secret formula.
• When crackers gain access to a company's list of customer email addresses, passwords, or credit card numbers, it is commonly said that the data was "stolen".
• A team that has been behind since the start of the game but wins on a last second improbable play is often said to have "stolen" the game.
You are correct, it's not theft. It's counterfeiting, which is worse. If you steal a TV, it can be counted as a loss and the TV manufacturer can still sell TVs with little to no problems.
If enough people pirate, it changes the perceived value of a digital good to $0 or near $0 and will eventually put the person out of business. The big businesses can handle it just fine. The small companies are the ones you are hurting.
The app store, while not pirating, is a good example of this. Apps are no 99 cents. If you try to make an app more expensive than this, people generally will complain or not buy it at all. Why? Because the perceived value of an app is 99 cents.
"Piracy" isn't counterfeit because pirates have no intention of defrauding or deceiving anyone (you're confusing them with bootleggers). Nor is the media they offer in any way a forgery. It's the authentic product, perhaps undergoing augmentation (i.e. to disable copy protection) or some lossy compression when transcoding video or audio. These are not equivalent to forgery.
Anecdotal evidence here, but I have a successful app on Google Play (which is commonly viewed as a less-willing-to-pay audience) at 5$+, despite the fact that the app is FOSS and you can download the binary from the home page: https://play.google.com/store/apps/details?id=org.aprsdroid....
People often use this very semantic, very pedantic difference and expand it to make it a difference in practical effect. Piracy and theft have the same practical effect : you're accessing a consumable good without paying the requisite cost, your individual crime may not have a large effect on the ability of the seller to provide for that good, but, on the large scale, if everyone committed your crime, you would severely affect the seller's ability to both 1. provide for him/her/their-self and 2. provide that good to the people. So, for all intents and purposes, yes, piracy is theft.
Digital goods are fundamentally non-excludable and non-rivalrous (sometimes anti-rivalrous, as with software). Thus the semantics of "theft" do not apply. At worst it would be free-riding, which has different implications.
The idea that theft has to include rivalrous good is a strawman. You are just taking the difference between theft you don't like and pirating and then saying that difference is hugely important.
> Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or ....
So the people trying to get through the not stealing it is copying due to a technical definition of theft are wrong. Stealing is having a copy that you didn't get permission to take.
My other ethics brain is wondering how NOT taking property but a copy seems to also allow sneaking into a movie theater, concert or sporting event to watch something. You are neither taking anything or even copying you are just watching. Is this also not theft?
In which case properly delineating what "asking for permission" is becomes increasingly intractable. I have all sorts of images in my thumbnail cache that my browser has downloaded which nominally I do not have permission to keep, but are unavoidable artifacts of using the web via a graphical browser. Indeed, the lines of what is and is not implicit consent are very blurred. Not to mention that merely not being supposed to have something under a set of terms says nothing of the legitimacy of said terms.
A lot of companies have provisions in their EULAs to allow for copies stored in RAM or by the browsers, e.g. http://storedvalue.com/en-US/terms-and-conditions and I believe streaming services are doing that as well since going to the monitor will require making copies and transforms of the data from the network. It's all pretty funny until someone gets sued.
Yes this is the cause of many crazy Internet stories of Instagram or FaceBook now own your photos.
Photos on a public web page are implicitly giving you permission to view the photo and the technology need you to have a local copy for viewing. That does not mean you can grab the photos from say National Geographic and re bundle them put them on you website surrounded by adds. They are not giving you permission to do anything but view the pictures.
Let's take George Bernard's famous quote: “If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.” According to your definition, one could not engage in theft of an idea, because one could never be deprived of an idea like with the taking of an apple.
However, let's look at the actual legal definition of theft: The actus reus (act) of theft is usually defined as an unauthorized taking, keeping or using of another's property which must be accompanied by a mens rea (mental state/intent) of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.
You limited the definition of theft to only include when one's mental state intends to deprive someone. The actual definition is not limited though, but alternatively includes when the taking was done dishonestly. Therefore, if someone takes something not belonging to them, and does so dishonestly that in fact is theft. Since I foresee the definition of dishonesty being the next issue here, that has been defined in case law, but generally where the person intended to take property they did not have a legal right to take.