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Law professor says illegal downloading not theft


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VxE
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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?

Since cookies reside on your computer (i.e: on your property), you have every right to erase* them at will. That right trumps any intention of the NYT webmasters.

As for morality, I don't think the extremes of moral or immoral apply. Perhaps circumventing NYT's view limit is morally dubious, but that's as far as I would take it.

(*) "erase" is an exact word in this context. Replacing it with any other non-synonymous verb voids the entire statement.


On Topic:

1 a : the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it

I think that sums up the distinction between real theft and digital misappropriation, which is the point of the article linked in the OP.

wtg
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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?


Yes I did. I didn't read the NYT article is was about but have since went back and done that too.

Re: the article you linked, it seemed quite biased and didn't make a very good argument, imo. For instance, it uses this quote from the original as central to it's argument:

“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,” writes Green in an op-ed for The New York Times. “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.”

This seems to imply that the definition of theft requires that the thief be otherwise willing to pay for the the item they're stealing, which is not a requirement when discussing IP theft. Photo-copying a book and reading it or distributing it to others has long been considered theft. (In laymans terms anyway - I don't pretend to know if legally it's always or ever been termed "theft" from a legal definition. I'm guessing so but I don't know for certain.)

Also, there is more than one definition of theft. Theft from the cable company with an unauthorized tap doesn't meet that criteria above either, but it's legally known as theft of service and generally considered theft by most people, I'm assuming anyway.

Finally, the author quotes the original article when saying it would be more appropriate to use “concepts like unauthorized use, trespass, conversion, and misappropriation”. Conversion and misappropriation are specific legal distinctions that would commonly be translated as "theft" in layman's terms, even if there is a specific distinction between them legally.

"Conversion: Any unauthorized act that deprives an owner of personal property without his or her consent."

"Misappropriation: the intentional, illegal use of the property or funds of another person for one's own use"

Is there really much a difference between being accused of theft vs. conversion or misappropriation? It might make a difference from a legal perspective but for a layman, they're essentially synonymous.

Now at the time I originally read the article I imagined - and have since discovered - that the NYT op-ed piece probably did a better job making their argument. It does do a better job but I don't think his rational is unquestionable, and again, as the original author suggests misappropriation or conversion is a better term than "theft", I'm not sure that it matters that much as a layman. If your 10 year old asks "What does misappropriation mean?" would you define it much differently than stealing?

Carcophan
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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. :?


Ownership.

How do oyu, or anyone, define ownership of a vertual file. Digital property, downloaded over the internet.

Example... iTunes. Do you 'own' that iTunes song you bought for .99c?

What does the term possession mean, in terms of ownership of an item/person/place/thing. Who owns it. Who owns anything.


I buy a movie for 9.99 from an online 'retailer'. I never get a physical DVD or Tape, just the rights to download it from them, and 'own' the 1's and 0's that make up the movie? Or am I really just 'renting' it and they call it something else.

IsNull
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Laying out paragraphs, which were written with no background of the todays possibilities in mind, in one or the other direction, is not really a solution.

Law is nothing to be for or against. Law has its purposes, and mostly it is splitted up in two counterparts to balance each other.

Monopolism (Intellectual Property Act)
You have paragraphs which ensure, that intellectual property is protected, for one simple reason: If spending years on research would gain you "Nothing", nobody would do research. Instead steal from others. The civilization would stand still, or at least develop much slower.

Competition Protection Act
The counterpart to the above, guarantee that there are changes for other people use and improve knowledge. This avoids syndicates and provides an open and free market.

You guys just think to close. If the law does not fit the today situation, it is not time to reinterpret it. Its time to create a law which actually works for our digital world.

sumon
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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. :?


Ownership.

How do oyu, or anyone, define ownership of a vertual file. Digital property, downloaded over the internet.

Example... iTunes. Do you 'own' that iTunes song you bought for .99c?

What does the term possession mean, in terms of ownership of an item/person/place/thing. Who owns it. Who owns anything.


I buy a movie for 9.99 from an online 'retailer'. I never get a physical DVD or Tape, just the rights to download it from them, and 'own' the 1's and 0's that make up the movie? Or am I really just 'renting' it and they call it something else.


In fact (if it is relevant to the discussion), most software that is "sold" is actually never sold in the sense that you own it - it's sublicensed. Read a license agreement some time and you will notice this. If you would legally own the software, you would be entitled to resell it, rent it out to someone, etc. - for example. If I buy a bicycle I am fully entitled to lend it to anyone, or resell it. If I "buy" software, I may (usually) not.

wtg
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If the law does not fit the today situation, it is not time to reinterpret it. Its time to create a law which actually works for our digital world.

Actually I'd be surprised if any of us that have chimed in thought differently, not that it necessarily means much. It's the one thing the MPAA, it's supporters and opponents probably *all* agree on. *How* each of the concerned parties would change it is a different story. ;)

sinkfaze
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“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,”


There is no amibguity there as to whom the owner is, because a chain of title can easily be traced. Joe owns the mp3 and the CD it came from, not the music company, thus it is not theft. This is where the distinction between misappropriation and theft is significant (if misappropriation is even the proper term).

This seems to imply that the definition of theft requires that the thief be otherwise willing to pay for the the item they're stealing...


No, what it's saying is that 1) there's no guarantee that the person who downloads the mp3 might not decide to go buy the album it came from anyway, and 2) the music company, through legislation, has absolved itself of having to respond to price signals in the market to entice consumers to buy rather than download via file sharing. In that respect, they have gained a monopoly advantage in the market.

Photo-copying a book and reading it or distributing it to others has long been considered theft.


Again, considered theft by who? As I pointed out earlier, statements in this manner imply a majority agreement when no such majority exists. Also, there are myriad "fair use" exceptions on photocopying, reading and distributing, so it is not the case that all such usages (and I would even go so far as to argue most such usages) are theft.


Also, there is more than one definition of theft. Theft from the cable company...


Again, this evades the issue of ownership that makes the comparison irrelevant. The cable company isn't ambiguous about who owns the cable. There's also no ambiguity about who owns a CD when I purchase it from the store, but the music company wants to represent an ex post facto claim that you never did own it despite a clear chain of title. The practice also likely runs afoul of the court's position on denial of fair use by disclaimer, but again, the legal teams of music companies make a habit of browbeating legal adversaries into submission before it can get to that point.

Conversion and misappropriation are specific legal distinctions that would commonly be translated as "theft" in layman's terms...


Even if that assumption is true, how the layman chooses to define it is irrelevant; the only definition which is relevant is the one you will be found in violation of, the legal definition.

G. Sperotto
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I refuse to accept that copying is the same as stealing.

If one ever finds a way to "copy" a bread slice and give it to hungry children, will he/she be immorally stealing the intellectual property of a cooker?

What about the bread and fish that fed the multitude? Was the Fisherman stolen in any way by it? One must assume that nobody is going to buy fish due to having had their bellies filled, but if that is the same as STEALING from the fisherman, aren't we actually claiming that the fisherman had actual property over ones hunger?

infogulch
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What about the bread and fish that fed the multitude?

Wow I like that argument. Very interesting.

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I refuse to accept that copying is the same as stealing.

If one ever finds a way to "copy" a bread slice and give it to hungry children, will he/she be immorally stealing the intellectual property of a cooker?

What about the bread and fish that fed the multitude? Was the Fisherman stolen in any way by it? One must assume that nobody is going to buy fish due to having had their bellies filled, but if that is the same as STEALING from the fisherman, aren't we actually claiming that the fisherman had actual property over ones hunger?

An absurd analogy if ever I've heard one. Can you eat a movie or a video game (not the medium it's stored on, but the actual data)?

If you want to get biblical... in those days, professional physicians treated various sicknesses for profit. When Jesus healed the sick, did he steal future profits from the physicians? I could go further ad absurdum with the analogies, but I'll leave it there.

infogulch
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Can you eat a movie or a video game

No, but you can consume it, i.e. play/watch/listen.

Edit: Also your second point agrees with him... /confused

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Can you eat a movie or a video game

No, but you can consume it, i.e. play/watch/listen.

That's a very loose way of putting it. "Consuming" a movie doesn't stop someone else from "consuming" it. Can you say the same for a piece of bread?

Edit: Also your second point agrees with him... /confused

What second point? I see one point and one question. /confused

infogulch
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That's a very loose way of putting it. "Consuming" a movie doesn't stop someone else from "consuming" it. Can you say the same for a piece of bread?

In the case of the multitude that G. Sperotto pointed out, yes I can say the same. It was originally just a few pieces of bread, but my eating some had no effect on the thousands of others that ate.

Well your question implied agreement.

G. Sperotto
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An absurd analogy if ever I've heard one. Can you eat a movie or a video game (not the medium it's stored on, but the actual data)?


Its not absurd at all, though it is an analogy, of course.

One of the main claims of media industry regarding "piracy" (and the actually only one that involves "harming") is that it harms them because consumers that would otherwise buy those CDs will not due to have had access to the same benefits without paying them directly for it. In other words: They are claiming that relieving consumer needs is actually "stealing" from them (this is the main point of the idea: "Consumers that would otherwise buy... will no longer buy..."), which is the same as claiming that consumer needs are a property of them (otherwise how could it be stolen FROM THEM?).

And if they let go of that idea alone, than they can no longer claim to have been "harmed" in any way, as merely listening to the copy of a CD will not harm the author in any way.

corrupt
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I find it interesting that people try to rationalize downloading retail items that they didn't pay for... Why bother debating whether it should be considered as theft or classified as a different crime? Although the methods of enforcement vary the concept is the same.

If you go to a store and buy a movie, game, CD, etc..., you will have purchased the physical media that contains the content and a license to use the content. In many cases you can sell the item. That however means that you must sell the physical media that contains the content and transfer the license to the person buying the media (without retaining any copies that allow you access to the content - since you would no longer be licensed to access the content without the physical media you had purchased).

The obvious issue with unauthorized file sharing of purchased content is that the person "sharing" the content is actually distributing content that they have not been granted authorization to distribute and in most cases distributing the content to people that have not purchased a license to access the content.

If the author of the content wanted to give their work away for free then they would give it away for free. Instead, they may have chosen to make money from their work. It makes it difficult to make a profit when people are giving away what you are trying to sell. Hardly seems fair to the person trying to make a living from their work...