[will_brown]

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.

[Karunamon]

You limited the definition of theft to only include when one's mental state intends to deprive someone.

As a lawyer, I'm surprised you are not familiar with the Dowling case, which is where that definition comes from. It wasn't pulled out of GP's ass.

[will_brown]

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.

[JoeAltmaier]

...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?

[will_brown]

>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)

[fnordfnordfnord]

>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.

[JoeAltmaier]

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?

[will_brown]

Reread the very last sentence of my post:

> 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.

[JoeAltmaier]

Very cogent summary sir! I will bookmark this discussion.