Why It's Important Not To Call Copyright Infringement Theft 1

Why It’s Important Not To Call Copyright Infringement Theft

Posted Sunday, Oct 30, 2016 by Jeff Safire

This article argues that copyright infringement is not the same as theft in a legal context. However, in the case where source code may have been illegally obtained, such as an ex-employee taking a copy with him upon termination or, breaking into a server to obtain source code, shouldn’t that be called “theft”? I suppose this article may be focusing only on the use of open-source code combined with some new code and not following the licensing agreement, e.g., GPLv2. But, that is not necessarily determined as unambiguous from the article text.
   – Jeff Safire


From the it-goes-beyond-semantics:-it’s-about-understanding dept

by Mike Masnick, techdirt


A bunch of folks on all sides of the copyright debate have been submitting the recent post from the blog Copyhype (by a recent law school grad named Terry Hart) about the whole “infringement vs. theft” debate in terms of what to call it when someone’s copyright is infringed. Hart is very careful and specific, but in the end tends to lean towards it being perfectly acceptable in many instances to refer to infringement as theft:

It’s technically correct that “copyright infringement” and “theft” have distinct legal meanings, but so what? The idea that the legal distinction between the two terms forecloses any colloquial comparison is invalid. “Theft” in the legal sense has always meant something far narrower than “theft” in the everyday sense. In early English common law, for example, the crime of theft only included the taking of another’s property by force or by stealth. It didn’t include the taking of property by deception or trick, and it also didn’t include the taking of property by someone in whom the property was entrusted. While today we would have no problem saying a delivery truck driver engaged in “theft” if he kept a package instead of delivering it, earlier courts had to jump through several hoops before reaching the same conclusion.

He goes on to knock those who quote the Supreme Court opinion in Dowling v. US, where Justice Blackmun makes it clear that infringement and theft are two different things. Hart claims that people who quote Dowling are quoting Blackmun out of context, while also noting Justice Breyer’s concurring opinion in the Grokster case that says “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.”   Read full article…

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