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Law professor says illegal downloading not theft


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dmg
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Any thoughts?
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sinkfaze
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Unfortunately the fight over copyrights/patents/trademarks is one where people will go down kicking, scratching and screaming to the bitter end. Too many companies in too many industries have had a free ride fattening their wallets over many years thanks to these laws, now they've dug their heels in and have paid for the lobbyists/politicians it will take to force people to bend to their will.

fragman
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Well that file sharing isn't theft should be obvious to anyone, since you're not taking away something, but copying it.

That's no comment on the legality of course but the media industry (a.k. a. content mafia) has been incorrectly using these terms all the time so it has become somewhat common.

wtg
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Well that file sharing isn't theft should be obvious to anyone, since you're not taking away something, but copying it.


Actually it's not obvious to many. While a new legal term that distinguishes the difference between material theft and file sharing might be useful, the term theft has been long established legally when misappropriating items for which a person or company is legally entitled compensation.

When someone illegally hooks up their cable to the cable company's equipment the person isn't literally taking something away but it's still theft - theft of service. And while some percentage of people that steal cable service might not actually ever be subscribers, that doesn't mean the cable co doesn't suffer real loss when people steal their service. It doesn't take a rocket scientist to understand that if many people stole service the cable co would not make as much money and not be able to employ as many people, and if everyone stole cable service the company would go out of business. The fact that some believe the cable co. charge too much for their service is immaterial. Theft of service affects their revenue, and same is true for media and software companies.

I'm no apologist for media companies. I believe the big ones have brought much of the current situation on themselves through greed and continue to operate in a corrupt manner politically. I have no sympathy for them. Further I believe the penalties for illegal file sharing are ridiculously excessive and shudder at the thought of how easily I could turn into one of their victims if one of my teenagers suddenly decides to bittorrent her CD collection. Their conduct is reprehensible. However much I might dislike them though, it doesn't make it ok for me to steal their products.

I'm sure there are very few who don't enjoy a bit of schadenfreude when we listen to the big media companies complain about piracy. I certainly do. My CD and mp3 collection is quite small by most standards because I've long resisted buying most music because it was just so expensive. I just listen to the radio. My game collection isn't very impressive either. At $60 a pop I just don't buy very many, even though there sure are a lot I'd like to try. A few I buy, and then others I might pick up later when I find them on the $20 bargain rack or I find a great deal on Steam. I resist the urge to pirate because I strongly believe it's wrong - it *is* a type of theft even if it's not exactly the same as stealing someone's wallet - and it's not justified even if I think many of the media companies are greedy, dishonest and corrupt organizations.

sinkfaze
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Actually it's not obvious to many.


Many who? Many people on the street? Many politicians? Many lawyers?

Most of the people I know (who are mostly far from 'techies') think the word theft is merely a scare word the entertainment industry employs. It's clear to them that what is occurring does not fall under the common definition of theft since the property owner didn't actually lose anything, and if it comes to legal action the entertainment lobby doesn't even attempt a legitimate theft argument; their legal complaints and briefs never mention theft as a direct action (only an analogous one) because it would be grounds for dismissal.

The cable example actually is an example of theft because the end user they piggyback onto is not the owner of the cable but a renter (subscriber) of it; the fact that it may affect the cable company's revenues is only a reason they don't want it to be stolen, just like the effect on my savings if I have to pay for a new TV is a reason I don't want it to be stolen. But the fact that all theft results in lost revenues/savings does not mean that everything which causes such losses is thus theft, which is the logic the entertainment industry wishes to obscure.

But let's look at the cable example again: Instead of piggybacking, let's suppose that the subscribing neighbor simply allows the non-subscribing neighbor into his home to watch whatever he wants while the subscribing neighbor is at work. Is the non-subscribing neighbor still stealing from the cable company? Why or why not?

wtg
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Many who? Many people on the street?

Yes, lots of many reasonable, rational people. Feel free to google it for other differing opinions if you don't believe they exist.

The cable example actually is an example of theft because the end user they piggyback onto is not the owner of the cable but a renter (subscriber) of it.

With many cable systems there is no need to piggyback on my neighbor. Basic cable channels often only need a connection to the cable company's neighborhood box. Premium channels that require a cable box aren't available, but basic channels usually are and I don't have to tap a renter. I'm surprised you agree it's theft actually.

the fact that it may affect the cable company's revenues is only a reason they don't want it to be stolen

Probably the only reason the media company cares too.

Let's suppose that the subscribing neighbor simply allows the non-subscribing neighbor into his home to watch whatever he wants while the subscribing neighbor is at work. Is the non-subscribing neighbor still stealing from the cable company? Why or why not?

Clearly not. The agreement between the cable provider and the subscriber allows the service to be viewed on their property. But no need to continue this analogy if you disagree - I was not suggesting it's a perfect analogy and don't intend to argue that it is.

The fact is media is viewed very similarly to written works. Someone writes a book and they have the right to make a living off that work. It's their intellectual property and can decide whether to sell it or not, and under their own terms for the most part. The law does limit their terms to some extent - aka "fair use" - and most people consider this reasonable - authors, publishers, consumers alike. (Of course, not all do) Is it theft if I photocopy a book, read it, give it away or sell it? A type of theft yes, even if the author hasn't had anything taken out of their pocket. It's their work and they deserve to make a living off it, whether it's meager or not. You don't have to agree, but many reasonable people do and it is the law, like it or not. A lot of people see this very if not exactly analogous to the copying of software, music and other media.

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It's not pirated. It's the extended deluxe trial version.



sinkfaze
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Yes, lots of many reasonable, rational people. Feel free to google it for other differing opinions if you don't believe they exist.


I didn't suggest that differing positions don't exist, nor did I intend to. Your usage of "many" in your previous response was hanging in the gray area like when a politician uses the word "we".


With many cable systems there is no need to piggyback on my neighbor. Basic cable channels often only need a connection to the cable company's neighborhood box. Premium channels that require a cable box aren't available, but basic channels usually are and I don't have to tap a renter. I'm surprised you agree it's theft actually.


Yes, but depending on where you live tapping the neighborhood box will make you very easy to locate when they do checks, so many people opt to skip that and piggyback. (We may have grown up in different kinds of neighborhoods. :wink: )

Of course it's theft because the ownership issue is clear; no citizen owns their cable service, they have a right to it per their lease agreement with the cable company.

Probably the only reason the media company cares too.


To be fair in the instance of cable companies, if illegal riders were significant enough to cause distortions in viewership for certain channels, which made those channels more difficult to negotiate with for price reasons at contract renewal, I as a cable provider would probably be a bit annoyed too.

But that's all to ignore the fact that the cable company's ownership issues are not in question, where music and movie makers are trying to posit that clear transfer of title transactions between they and their middlemen, the middlemen and their stores and the stores and their consumers didn't really happen, that what transpired was actually a lease agreement.

But no need to continue this analogy if you disagree - I was not suggesting it's a perfect analogy and don't intend to argue that it is.


My intention was to further some dialog in the hopes that others might join in the discussion, sorry if you felt otherwise.

The fact is media is viewed very similarly to written works. Someone writes a book and they have the right to make a living off that work. It's their intellectual property and can decide whether to sell it or not, and under their own terms for the most part.


The question is where one's "original work" ends, as evidenced by one of the most significant events in my young life, The Turtles suing De La Soul for not receiving credit (and royalties) for a sample of one of their songs, which did not itself constitute an original work in that context. Borrowing licks and riffs is a practice as old as music itself, and here the music industry basically hung De La Soul out to dry rather than risk their future profits in a similar sampling situation. It was not a matter of what was morally right in the eyes of the law, but what was legally adequate to get by. As I'm sure you're aware, the biggest legal team, not what's legally right, usually wins.

Carcophan
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Let's suppose that the subscribing neighbor simply allows the non-subscribing neighbor into his home to watch whatever he wants while the subscribing neighbor is at work. Is the non-subscribing neighbor still stealing from the cable company? Why or why not?


This is what the FBI warning on VHS/DVD's says. It is technically illegal to take The Lion King into a school and show a class room full of kids.


Filesharing is not illegal. Downloading a shared file, which you do not already own physically, or digitally, is illegal.


You do not own your movie. You are renting it from them, for a fixed price, with no expectation of return. It is implied that you alone, will enjoy the content of the purchase. You've paid the rights to view the movie, you do not own the content within the movie. You paid for the physical (or digital) media to view the content, the movie does not belong to you.

sinkfaze
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It is technically illegal to take The Lion King into a school and show a class room full of kids.


There are several exceptions for this in copyright law.


Filesharing is not illegal. Downloading a shared file, which you do not already own physically, or digitally, is illegal.


If, as you will assert in your next statement, that no movie or music is ever owned by a consumer but is rented, then you can never download anything which you already own and thus filesharing is illegal.


You do not own your movie. You are renting it from them, for a fixed price, with no expectation of return.


Who am I renting it from? The store? The middleman they got it from? The movie company? Where can a consumer expect to find that on their receipt from the store, which clearly indicates a transfer of ownership, not a lease agreement?

I'll state again that this ex post facto claim by the music and movie industry has never actually been put to a legal test in the high courts; the defendants have simply been worn out by by bigger legal teams. So whether such actions are truly illegal we won't know until someone has the resources to take the argument as far it should go (and arguably the runaround tactics of a large legal team are designed to dissuade defendants from doing exactly that).

You've paid the rights to view the movie, you do not own the content within the movie. You paid for the physical (or digital) media to view the content, the movie does not belong to you.


When was that ever at issue? I think you have confused two separate issues as if they are the same.

wtg
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Yes, lots of many reasonable, rational people. Feel free to google it for other differing opinions if you don't believe they exist.

I didn't suggest that differing positions don't exist, nor did I intend to. Your usage of "many" in your previous response was hanging in the gray area like when a politician uses the word "we".

There is no gray with the word "many". It's true that many do agree with me. I didn't say all agree, or even a majority. Your comment "that file sharing isn't theft should be obvious to anyone" suggested that a different opinion isn't even reasonable, and that's where I disagree.

Yes, but depending on where you live tapping the neighborhood box will make you very easy to locate when they do checks, so many people opt to skip that and piggyback.

Honestly what I should have said is that I don't see how it matters where you tap into it. It's not a physical theft either way, and it's not much different from illegally copying music, movies or whatever. If you argue that copying a file you don't own isn't theft, I'm not sure how you believe an illegal tap on cable is theft.

Again, I'm not saying either of these acts is exactly the same thing as taking someone's wallet, but it's still theft.

To be fair in the instance of cable companies, if illegal riders were significant enough to cause distortions in viewership for certain channels, which made those channels more difficult to negotiate with for price reasons at contract renewal, I as a cable provider would probably be a bit annoyed too.

Illegal riders wouldn't be counted - since they're unknown - so I don't see how this matters. Illegal taps only cause a cable co to suffer loss if you acknowledge that they are entitled to compensation for their good or service - whether the amount of compensation is fair or reasonable is immaterial - and that by using those illegal taps the person is denying the company the compensation they are entitled to.

But that's all to ignore the fact that the cable company's ownership issues are not in question, where music and movie makers are trying to posit that clear transfer of title transactions between they and their middlemen, the middlemen and their stores and the stores and their consumers didn't really happen, that what transpired was actually a lease agreement.

They make lots of arguments, many of which I don't agree with. The one you quote I believe the one they use for attempting to restrict re-sale of movies, games, etc. I agree it's BS, as is the EULA agreements we feel resigned to accept with software. That's an entirely different issue.

I don't think this is their argument for why copies shouldn't be legal however - it's a copyright issue re: intellectual property. And it's a fair argument. Media is much like a book, and I believe rightfully viewed that way by the courts. Some media companies make lots of BS arguments for restricting things way too much - eliminating "fair use" if they could - but those are other issues and other arguments. My support for copyright protection of things like books and other media doesn't mean I support their many of their other arguments. File-sharing and theft was our topic.

The fact is media is viewed very similarly to written works. Someone writes a book and they have the right to make a living off that work. It's their intellectual property and can decide whether to sell it or not, and under their own terms for the most part.

The question is where one's "original work" ends

No, what constitutes original work is not at all related to file sharing as I understand it. That may have been the question with the "De La Soul" lawsuit, but that has nothing to do with whether unrestricted file sharing is theft or not.

dmg
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I have been reading these arguments, back and forth, and I have to ask wtg a question: Did you read the article? I don't think anyone would argue that file sharing is not illegal, or probably even wrong on some level, but the point of the article I posted, and the op-ed it references, is that from a considered legal stand point file sharing is not THEFT. It simply does not meet some of the basic criteria for that crime. It may be classified as something more along the lines of trespassing or unlawful interference but not theft. This is the opinion of a professor of law, after study and research.

For the record, I do not post this as a disparagement of your viewpoint. I simply do not understand your viewpoint, how if you read the article you still use the term "theft" to describe illegal downloading. :shock:
"My dear Mr Gyrth, I am never more serious than when I am joking."
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Carcophan
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considered legal stand point file sharing is not THEFT.:


What is 'possession' then, in a digital media?

dmg
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considered legal stand point file sharing is not THEFT.:


What is 'possession' then, in a digital media?

Would you mind elaborating a bit? I don't really understand the question. :?
"My dear Mr Gyrth, I am never more serious than when I am joking."
~Albert Campion

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nimda
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This is quite the interesting topic, and it's a great thread in that there is a debate, not an argument :)

I'd like to throw out the example of the New York Times online version. There is a paywall, meaning you can only read 20 articles per month without paying. However, merely clearing your cookies from that site (I have a bookmarklet for that type of thing) removes the paywall.

I assert that if I was unable to avoid the paywall, then I would not read more than 20 articles per month online; i.e. I would not pay.

Given that, is it morally wrong to avoid the paywall? Is one who does so robbing the NYT of anything beyond arguably negligible bandwidth? Keep in mind that there are only two scenarios:
[*:22zdd92f]A person does not pay, and the person avoids the paywall. This is a win-neutral situation (i.e. the person gains, the NYT (arguably) doesn't lose)
[*:22zdd92f]A person does not pay, and the person does not avoid the paywall. This is a neutral-neutral situation (nobody gains or loses)It seems to me that the best choice is scenario number one. Then again, does a man have the rights to the fruits of another man's work, if he does not harm the other man?

for reference,
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