by CodeWarrior

You hear it all the time. Illegal file sharing is theft, it's piracy...yada yada yada. Nonsense! What is going on appears to me to be an intentional attempt to convict people in the court of public opinion, for things the RIAA never charges in court.
Theft and piracy are criminal charges. Criminal charges are not filed in civil court cases.

There is a little Supreme Court case that you should know about. The text is kind of long (12 pages) so I will just post the link..http://www.netjus.org/pages/giurisprudenzax.asp?article=12
__________________________________________
U.S. Supreme Court
DOWLING v. UNITED STATES, 473 U.S. 207 (1985)
473 U.S. 207
DOWLING v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 84-589.

Argued April 17, 1985
Decided June 28, 1985
_________________________________________
The issue was that Mr. Dowling was alleged selling unauthorized copies of Elvis Presley recordings, and was prosecuted for the Interstate Transportation of Stolen Property. The Supreme Court judges did not condone his actions, but did make it clear that it was not "theft" -- but technically "infringement" of the copyright of the Presley estate, and therefore copyright law, and not anti-theft statutes, had to be invoked.

This Dowling case clearly establishes that copyright infringement, is just that, infringement of copyright.

It is not technically theft.

Now, there are those savvy folks who will now say,
But what about the No Electronic Theft act ?
Know what that act deals with? Criminal copyright infringement, and the word theft only appears in reference to the title. So, really, they mislabeled the short title of the act.

So, there you have it. So far, in another article, we have shown that, legally, copyright infringement is not "piracy" using the Title 18, Chap 81, Section 1652 of United States Codes. Now, we have a Supreme Court decision that apparently, copyright infringement is not theft.

So, next time you hear the rhetoric of the RIAA or your local newspaper, you will know that either :
a) They are uninformed and haven't taken the time to read up on the legal issues or
b) They intentionally are misrepresenting these issues.

Either explanation shows them to be unprofessional, and not caring about the truth in this issue.

~Code

Well said, guys. If only the RIAA supporters would admit it...

Perhaps these issues will come up in the debate at Goucher College in Baltimore.
Mitch G. maybe can give us the RIAA response...lol...if he appears for the debate !

Yes I like that explanation, best one yet.

Well like Code said. It's an intentional public relations effort on their part.

I do not think they will admit it, at least untill they let go of their grip on the almighty dollar.

They're publicly "slandering" the individuals they're suing in an attempt to alter the perception of the judge and/or jury of their trials by refering to them and insinuating they preformed an illegal action they did not.

"Infringer" doesn't sound that menancing or criminal, it brings to mind someone on the outside trying to get "in" on the "fringes". But "Thief" and "Pirate" and all the verbs akin to them promote the idea of guility before proven innocent. Just another thing we should be suing THEM for.

One of Jefferson's most famous statements on patent law was in
his often-quoted letter of August 13, 1813 to Isaac McPherson, in
which he wrote that, since there is no natural right to property in
land, how much less is there a natural right to a property in ideas.
I think Jefferson's words apply equally well to copyrights as to
patents; to "expression" as well as to "ideas": "he who lights
his taper at mine, receives light without darkening me."

man...tipping my hat to raoulduke1...very good quote...very appropriate!
~Code

Yeah...I was thinking about that. If I walked into a nearby Sam Goody or FYE, picked up a CD and walked out without paying, could they DCMA me for $150,000? No, I don't think so. Downloading a file is not "just like stealing."

Or can they and I'm completely wrong?

Taking a product like a CD without paying for it in a store, and permanently depriving the store of that product, or the revenue they would get from the sale of that property, would be theft, not infringement. This would be a matter between you and the SG store, not the RIAA. You would not fall into their DMCA cluthes unless you went home, copied the CD and started giving copies away, or ripped it and uploaded it to a P2P.

commenting on what Cpyder said: that's the problem. they'll never let go of their grip. Misrepresenting the issue is what the RIAA does best.

Let's presume that the cd was worth about $15 us. You would need to steal 10,000 to equal $150,000.

So 1 mp3 is equal to 10,000 cds. Gosh I never made the connection.

btw, I don't think any store carries 10,000 copies of the same cd in any case.

Great article Code!

Yeah, most informed people on these issues know that there is a big difference between theft and copyright infringement.

But many do not! And of those who do, many will feel that even copyright infringers should be punished as if they were thieves. Such people do not know how our copyright laws have been adulterated by the political process, and do not realize that they have been (dare I say?) ROBBED of creations which should have already entered the public domain.

RIAAposterchild -thanks!

Which kinda brings me 'round to this question again. In my M$ Window$ Temporary Internet Folder sits all kinds of copyrighted material in files that I did not download. All I did was click on a web page.

There are gif's, jpg's, swf's (shockwave flash files), mp3's, m3u's, pdf's, wav's, and a whole lot of other good stuff. All just sitting there on my hard drive. I didn't download a single one other than opening a web page. Now I am suppose to pretend they're not there? I can't use them for my own personal use? They are on MY hard drive.

Is there any information on the legal status of files obtained in this manner?

kyodylee as long as you don't share them from your p2p software. As I've seen some unscrupulous people (leeches) do this to boost their maximum number of files shared.

And by nature of the design it is only intended to speed up webpage loading. So as long as you don't use the items on something other than for personal use there is no harm done.

Kyodylee..you have hit on the biggest undiscussed issue about the DMCA.
I have written many senators and reps, and said that under the DMCA, every time a web page is loaded, a violation occurs. I've posted my ideas here and elsewhere. No one has disputed I am correct. Under the DMCA, if you make unauthorized digital copies of copyrighted material (gifs, jpegs,sound files, whatever) it is a violation, plain and simple, unless you have express, prior written authorization from the copyright owner.

When you visit a site..the fact you are seeing the page, indicates your computer has stored digital copies of everything on that page, in your cache.

EXCELLENT, EXCELLENT POINT!!!!!!!

Code, so, then could I possibly argue that since the copyrighted material was downloaded to my computer by the website itself when I visited, and not by me, then that is "implied" permission to possess and use the material?

So now what I really have is an "authorized" copy instead of an "unauthorized" copy?

And just suppose that now this is an "authorized" copy. What would I legally be allowed to do with it?

Just rhetorical questions at this point. But have any anti-DMCA lawyer types looking into this angle?

Dead wrong.

Dowling said that the person in question was not guilty of theft as defined by section 2314, Title 18, Part I, Chapter 113 of the U.S. Code. That's ONE form of theft. There are quite a few others, see http://www4.law.cornell.edu/uscode/18/pIch113.html , including CRIMINAL infringement of a copyright (section 2319). Just to eliminate any confusion as to the type of activity being treated as crimes, the chapter of the law under which sections 2314 and 2319 are to be found is called "STOLEN PROPERTY."

Look for yourself.

kyodylee...technically, the computer that pulls up the site,,,does a request....and there is no implied permission for use in copyright law.

spareme- criminal infringement is not theft. plain and simple.

I looked at your "Stolen Property" link...you do know that "stealing" is not a legal term....theft is.
and, using your link...
please find the words "theft" or "stealing"
...neither does the criminal copyright infringement define the words "theft" or "stealing"
But, we do find the word piracy defined in USC, Title 18, Chapter 81, Section 1652...has to do with murder and robbery on the high seas....

I have the copied the criminal copyright infringement section below for you to look for either the word theft, or "stealing"...
TITLE 18 > PART I > CHAPTER 113 > Sec. 2319. Prev | Next
Sec. 2319. - Criminal infringement of a copyright


(a)

Whoever violates section 506(a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b) and (c) of this section and such penalties shall be in addition to any other provisions of title 17 or any other law.

(b)

Any person who commits an offense under section 506(a)(1) of title 17 -

(1)

shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;

(2)

shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and

(3)

shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.

(c)

Any person who commits an offense under section 506(a)(2) of title 17, United States Code -

(1)

shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;

(2)

shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and

(3)

shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.

(d)


(1)

During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.

(2)

Persons permitted to submit victim impact statements shall include -

(A)

producers and sellers of legitimate works affected by conduct involved in the offense;

(B)

holders of intellectual property rights in such works; and

(C)

the legal representatives of such producers, sellers, and holders.

(e)

As used in this section -

(1)

the terms ''phonorecord'' and ''copies'' have, respectively, the meanings set forth in section 101 (relating to definitions) of title 17; and

(2)

the terms ''reproduction'' and ''distribution'' refer to the exclusive rights of a copyright owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 120, of title 17 "

More ideas on this topic :

http://cyber.law.harvard.edu/archive/dvd-discuss/msg12504.html
"And of course one of the many important differences between copyright
infringement and theft -- even among those differences which the law
has already recognized, and we can only hope that more will be recognized in the future -- is that there are routinely cases when copying almost any copyrighted work is definitely legal."

http://www.explainplease.com/intellectual-property.htm
"Though it is convenient for beneficiaries to regard intellectual rights as akin to "property", most items protected by IP law are not physical objects "ownable" in the traditional sense. For example, the holder of the copyright in a book has the legal right to make and sell copies of the book, and the right to forbid others from making and selling copies of the same book. By analogy, then, he can be said to "own" the words in a similar way to which he might own the press on which they were printed, because ownership of a physical object also confers the right to forbid others from using the object.

Opponents of the term also point out that the law itself treats these rights differently than those involving physical property. To give three examples, copyright infringement is not punishable by laws against theft, but rather by an entirely different set of laws with different penalities. Patent infringement is not a criminal offense although it may subject the infringer to civil liability. Possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not. "

http://www.gnu.org/philosophy/words-to-avoid.html#Theft
"``Theft''
Copyright apologists often use words like ``stolen'' and ``theft'' to describe copyright infringement. At the same time, they ask us to treat the legal system as an authority on ethics: if copying is forbidden, it must be wrong.
So it is pertinent to mention that the legal system--at least in the US--rejects the idea that copyright infringement is ``theft.'' Copyright apologists are making an appeal to authority...and misrepresenting what the authority says.

The idea that laws decide what is right or wrong is mistaken in general. Laws are, at their best, an attempt to achieve justice; to say that laws define justice or ethical conduct is turning things upside down."

http://www.shaviro.com/Blog/archives/000183.html
"September 22, 2003
File sharing (copyright infringement) is not theft
Despite what the music industry likes to say, the Supreme Court ruled in 1985 that copyright infringement “does not easily equate with theft, conversion, or fraud… The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over copyright; nor does he wholly deprive its owner of its use.”
So, even if file sharing is not protected under fair use (which I believe it should be), it cannot be equated with stealing either. (Via Techdirt)."

http://www.macobserver.com/comments/commentindivdisplay.shtml?id=18554\

http://www.oreillynet.com/pub/wlg/2425

And...just some background on intellecutal property...

http://www.explainplease.com/intellectual-property.htm
"History
It is not exactly clear where the concept of intellectual property originated.

The first patent in England was granted by Henry VI in 1449 to a Flemish man a 20 year monopoly (co-incidentally, the current length of UK/EU patents is still 20 years) on the manufacture of stained glass (destined for Eton College). This was the start of a long tradition by the English Crown of the granting of "letters patent" (meaning 'open letter', as opposed to a letter under seal) which granted "monopolies" to favoured persons (or people who were prepared to pay for them). This became increasingly open to abuse as the Crown granted patents in respect of all sorts of known goods (salt, for example). After public outcry, James I was forced to revoke all existing monopolies and declare that they were only to be used for 'projects of new invention'. This was incorporated into the Statute of Monopolies 1623. In the reign of Queen Anne the rules were changed again so that a written description of the article was given.

Outside of England, patent law was the subject of legislative protection in the Venetian Statute of 1474.

Copyright was not invented until after the advent of the printing press and wider public literacy. In England the King was concerned by the unfair copying of books and used the royal prerogative to pass the Licencing Act 1662 which established a register of licenced books and required a copy to be deposited with the Stationers Company. The Statute of Anne was the first real act of copyright, and gave the author rights for a fixed period. Internationally, the Berne Convention in the late 1800's set out the scope of copyright protection and is still in force to this day.

Design rights started in England in 1787 with the Designing & Printing of Linen Act and have expanded from there.

The term intellectual property appears to have originated in Europe during the 19th century. French author A. Nion mentions "propriété intellectuelle" in his Droits civils des auteurs, artistes et inventeurs, published in 1846, and there may well have been earlier uses of the term.

During the period in question, there was some controversy over the nature of copyright and patent protections in Europe; those who supported unlimited copyrights frequently used the term property to advance that agenda, while others who supported a more limited system sometimes used the term intellectual rights (droits intellectuels).

The system currently used by much of the Western world is more in line with the second view, with limited copyrights that eventually expire. Regardless, the term intellectual property has gained prominence throughout the world, as evidenced by the United Nations World Intellectual Property Organization (WIPO), formed in 1967. "

And...to add another dimension...
if copyright infringement IS theft..
and if the attorneys for the RIAA are "officers of the court" , and become "aware" of over 1000 people who they have a good faith reason to believe have committed..each one..over 1000 acts of "theft"..don't they have a legal and ethical duty, as officers of the court to report these astounding amounts of theft which they have been made aware of? And, if they have convincing evidence, of so many acts of theft...aren't they bound to report this to the proper legal jurisdictions? And, if so, why are we not seeing the courts across the United States, seeing DAs filing case after case of "theft" pursuant to the information being provided to them by these reponsible officers of the court.

Know why? Because simple copyright infringement is not theft. And, while we are at it, any time you or anyone else xeroxes a newspaper article or page from a book in its entirety, without express written permission of the copyright holder, do you really think that is covered by the four pronged elements of fair use? (See below)

Fair Use evaluates:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Fair Use is purposefully vague (it essentially says “the amount must be considered” without spelling out “10% is OK” or “five minutes is safe” or “20 pages is allowed”)

Fair Use calls for a case-by-case analysis ...So if you copy a whole article..not a part, just so you won't have to buy the paper to get the article..
it may be that such an act would NOT fall under fair use..but would be copyright infringement...

So, if copyright infringement-theft...
I guess LOTS of these "copyright infringers" should be hauled into
criminal courts. And, since there are gradations of theft around the country in municipal courts based on the value of the idea which is taken.. would such a theft be "under 50" dollars or "over 50" dollars...or would you apply the DMCA standard of 150,000 dollars for that article.... ?

By the way...I don't think any of the people alleged to be guilty of copyright infringement, in RECEIVING copyrighted songs, have been filed against for "receiving stolen property" using your stolen property statute...
curious isn't it

Oh yeah, AND, if copyright infringement is theft....why hasn't every judge in every civil copyright infringement case which has been won successful by the plaintiff, been duty bound to have the defendant placed into custody for an immediate criminal trial for theft, since at that point, the judge has affirmative knowledge that the crime of theft has been committed...
more and more puzzling....

typo...should say "been won successfully"

darn..looks like the facts don't seem to indicate that copyright infringement and theft are one and the same...darn, those facts just mess up that copyright infringement is theft argument.

Even writer Kevin Boone, has to admit that part and parcel of the notion of "theft" is the intention to permanently deprive the rightful owner of the thing stolen. In copyright infringement, the copyright holder in fact, is still the rightful holder of the copyright and his rights remain with him or her. The copyright holder is not permanently deprived of any and all copyrights which he or she had prior to alleged infringement, and since all the alleged infringers usually end up with is a copy of a copy of a copy....the person holding the original product, is not permanently deprived of his property.

Thus, if copyright infringement really is theft legally, why is it that if you were to go to the library, and xerox a small book without prior express permission of the copyright holder, the librarians would not charge you with theft? After all, theft is theft, right? Theft is theft,
but copyright infringement is not theft.

And, even in the misnamed No Electronic Theft act, the word theft is only used in reference to the title, it does not even appear once in the working part of the act. You would think that if this were actually dealing with the crime of theft, they would define theft in the context of the act, or at least mention the word somewhere but in the title, and references to the short title.

and that's the truth!

and...in case the point has not been drive home enough...the DMCA does not include ONE instance of the word "theft"...not one, and neither does the Copyright Act of 1976 in its clause on copyright infringement. Don't believe me?
Let's check it out, shall we>?
"TITLE 17 > CHAPTER 5 > Sec. 501. Next
Sec. 501. - Infringement of copyright


(a)

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term ''anyone'' includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

(b)

The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

(c)

For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station.

(d)

For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue:

(i)

the primary transmitter whose transmission has been altered by the cable system; and

(ii)

any broadcast station within whose local service area the secondary transmission occurs.

(e)

With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 119(a)(5), a network station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station.

(f)


(1)

With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station.

(2)

A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station's rights under section 338(a) of the Communications Act of 1934"

You would think it would say somewhere...oh yeah, and every instance of the phrase "copyright infringement", the reader should understand that means "theft"...hmm...
guess they just gosh darn forgot it...
and forgot to modify it and stick that in...right ??????

NUFF SAID FOR NOW

from this site, in the ARCHIVES...
from lawguy74...
http://www.boycott-riaa.com/forums/copyright/1145
"lawguy74
Subject: AGAIN, File-sharing is NOT Theft, at least according to the U.S. Supreme Court
Date: August 7, 2003 @ 2:38 PM
For those of you insisting that file-sharing is theft, I will post a portion of a United States Supreme Court decision that states in detail why copyright infringement is NOT theft:



Dowling v. United States, 473 U.S. 207 (1985)



*** In contrast, the Government's theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel. A copyright, like other intellectual property, comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections. "Section 106 of the Copyright Act confers a bundle of exclusive rights [473 U.S. 207, 217] to the owner of the copyright," which include the rights "to publish, copy, and distribute the author's work." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546 -547 (1985). See 17 U.S.C. 106. However, "[t]his protection has never accorded the copyright owner complete control over all possible uses of his work." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984); id., at 462-463 (dissenting opinion). For example, 107 of the Copyright Act "codifies the traditional privilege of other authors to make `fair use' of an earlier writer's work." Harper & Row, supra, at 547. Likewise, 115 grants compulsory licenses in nondramatic musical works. Thus, the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," for the copyright holder's dominion is subjected to precisely defined limits.



It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "`Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.' [17 U.S.C.] 501(a)." Sony Corp., supra, at 433. There is no dispute in this case that Dowling's unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal employed by 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful [473 U.S. 207, 218] appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us &vol=473&page=207 "