Copyhype

Cross-posted on the Law Theories blog.

In the never-ending copyright debate, one often comes across certain words the usage of which both sides vehemently disagree upon. One such point of contention is the use of the word “theft” to describe copyright infringement. Ars Technica ran an article a few years back where Vice President Joe Biden was quoted as saying that “[p]iracy is flat, unadulterated theft.” Copyhype’s Terry Hart had a post a week later discussing the infringement-as-theft meme, mentioning the fact that even Justice Breyer, a copyright skeptic, had referred to deliberate infringement as “garden-variety theft.” ¹Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 961 (2005) (Breyer, J., concurring). The response from the other side of the debate was predictable, with the usual suspects demanding that copyright infringement is not theft—though the skeptics conspicuously neglected to define the word theft or to actually explain why it’s wrong to refer to infringement as theft.

The debate lives on today. Just a couple of weeks ago, Swedish Pirate Party founder Rick Falkvinge had a post on his blog addressing what he called “the most disturbingly false bullshit repeated by pro-copyright-monopoly pundits,” i.e., that “copying is stealing.” He offered several retorts for others to use when this particular issue inevitably arises in future debates. Falkvinge amusingly noted that when it comes to such debates, “it’s not a logic game but a numbers game,” and “[i]t’s about looking like the winning team.” He claimed that anyone referring to infringement as “stealing” is “trying to redefine words in a very dishonest way to frame the debate in a factually incorrect light.” To Falkvinge, stealing is defined as “losing an object,” and anyone who disagrees is “talking of horseless carriages.”

My favorite part of Falkvinge’s post is where he claimed that we “should look in the nearest lawbook” since “in no book of laws on this entire planet are property laws (where stealing is defined) and copyright monopoly laws defined in the same section.” This claim is easily refuted. For example, Section 2319 of the U.S. Code, which defines “Criminal infringement of a copyright,” is found in Chapter 113 of Title 18, which is entitled “Stolen Property.” Section 3931 of the Pennsylvania Crimes Code, which defines “Theft of unpublished dramas and musical compositions,” is found in Chapter 39 of Title 18, which is entitled “Theft and Related Offenses.” And Section 5/16-7 of the Illinois Compiled Statutes, which defines “Unlawful use of recorded sounds or images,” is found in Subdivision 5 of Article 16, which is entitled “General Theft.” It’s trivially easy to find many more examples just like these. Having read many posts by Falkvinge (as well as many law books), I don’t get the impression that he’s actually opened many law books himself.

In this post, I’ll look at the meaning of the word theft, and I’ll explain why it is I think it’s perfectly natural to think of copyright infringement as theft. I think that oftentimes people refer to infringement as theft in the colloquial sense of the word, but it’s the legal meaning of the term that I will focus on. At the outset, I note that theft is a term of art that has many different meanings since each state has its own theft laws that are interpreted differently. For all of the arguments and examples I give below, there certainly are apposite counterarguments and counterexamples. I don’t mean for my view to be taken as the only possible one, nor do I deny that some of what I’m about to say is in fact the minority view. But I’ll leave the opposing arguments for the cynics to make—although it would be nice if they discussed the actual law while making legal arguments for a change.

What is Theft?

Theft did not exist at common law. Instead, theft is an omnibus term of recent origin that subsumes previously distinct property crimes such as larceny, embezzlement, and false pretenses. ²See, e.g., Editors’ Notes, Model Penal Code § 223.1 (“The offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like, as well as the technical distinctions among them, are thereby replaced with a unitary offense [i.e., theft]”). The antecedent to what most people think of as theft is larceny. Larceny can be defined as the “unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently.” ³Black’s Law Dictionary (9th ed. 2009). Under the common law, larceny required that the thing taken be tangible property. ⁴See, e.g. Bell v. United States, 462 U.S. 356, 360 (1983) (“[C]ommon-law larceny was limited to thefts of tangible personal property.”); People v. Zakarian, 121 Ill. App. 3d 968, 972 (1984) (“At common law, only tangible personal property could be the subject of larceny.”); People v. Ashworth, 222 N.Y.S. 24, 28-29 (1927) (“That which may be the subject of larceny is well comprehended in the following statement: It ‘should have corporeal existence, that is, be something the physical presence, quantity, or quality of which is detectable or measurable by the senses or by some mechanical contrivance; for a naked right existing merely in contemplation of law, although it may be very valuable to the person who is entitled to exercise it, is not a subject of larceny.’”) (internal citations omitted); 3 Subst. Crim. L. § 19.4 (2d ed.) (“At common law, larceny was limited to misappropriations of goods and chattels—i.e., tangible personal property.”). This is presumably why the skeptics think it’s wrong to refer to copyright infringement as theft. While copyright is personal property, it’s intangible property that, by its very nature, is nonrivalrous. Thus, if somebody infringes a copyright, they haven’t dispossessed the copyright owner of any tangible property, a necessary element for larceny under the common law.

To the uninitiated, the confusion about why copyright infringement is theft is understandable. But the line of reasoning that focuses on the old, common law definition of larceny neglects to take account of the fact that the modern definition of property for purposes of theft statutes has been broadened to include both tangible and intangible property. ⁵See, e.g., N.Y. Penal Law § 155.00 (McKinney 2013) (“‘Property’ means any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.”) (defining “property” under state larceny law); 3 Subst. Crim. L. § 19.4 (2d ed.) (“Modern statutes in all jurisdictions have broadened the scope of larceny to include such intangible personal property as written instruments embodying choses in action or other intangible rights.”). For example, the paradigmatic Model Penal Code, published first in 1962 by the sages at the American Law Institute, defines property for purposes of theft very broadly: “‘property’ means anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.” ⁶Model Penal Code § 223.0 (emphasis added).

The Model Penal Code goes on to define theft by unlawful taking or disposition of movable property: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.” ⁷Id. at § 223.2; “movable” property is another name for personal property. “Property of another” is defined to include “property in which any person other than the actor has an interest which the actor is not privileged to infringe.” ⁸Id. at § 223.0. And “deprive” is defined to mean “to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value.” ⁹Id. Thus, we can break theft of movable property under the Model Penal Code into three elements: (1) unlawful taking or control, (2) of movable property of another, and (3) with intent to deprive. The first two elements comprise the actus reus, while the final element is the mens rea.

Most, if not all, states have theft laws that substantially track the Model Penal Code. For example, in my state of Louisiana, theft is defined broadly as follows:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. ¹⁰La. Rev. Stat. Ann. § 14:67(A) (West 2013) (emphasis added); “Anything of value,” in turn, is defined to include “any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private.” Id. at § 14:2.

Florida defines theft in similarly broad terms:

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property. ¹¹Fla. Stat. Ann. § 812.014(1) (West 2013); “Obtains or uses” is defined to mean “any manner of . . . [t]aking or exercising control over property” or “[m]aking unauthorized use, disposition, or transfer of property.” Id. at § 812.012(3); “Property,” in turn, is defined to mean “anything of value,” which “includes . . . [t]angible or intangible personal property, including rights, privileges, interests, and claims.” Id. at § 812.012(4).

Copyright opponents such as Falkvinge appear to have a greatly attenuated understanding of what property is and what it means to deprive someone of that property. For example, the Court of Appeals of Kentucky noted seventy years ago that “the word ‘property’ is so all-embracing as to include within its definition every physical object, intangible benefit, and prerogative susceptible of ownership, possession, or disposition.” ¹²Button v. Hikes, 296 Ky. 163, 168 (1943). Over a century ago, the Supreme Court of Washington noted that “property . . . consists not in tangible things themselves, but in certain rights in and appurtenant to those things,” and “it follows that when a person is deprived of any of those rights he is to that extent deprived of his property.” ¹³State v. Superior Court of King Cnty., 26 Wash. 278, 287 (1901) (internal quotations and citations omitted). Or as the Supreme Court of New York, Appellate Division, put it over a century ago, property “is intended to embrace every species of valuable right and interest and whatever tends in any degree, no matter how small, to deprive one of that right, or interest, deprives him of his property.” ¹⁴People ex rel. Short v. Warden of City Prison, 145 A.D. 861, 863 (1911).

In 1942, the Supreme Court of Iowa explained:

[P]roperty . . . is applied with many different meanings. Sometimes it is taken in the loose and vulgar acceptance to denote not the right of property or dominium, but the subject of such a right; as where a horse or piece of land is called my property. A little reflection, however, will suffice to convince any one that property is not the corporeal thing itself of which it is predicated, but certain rights in or over the thing. . . . These rights are the right of use, the right of exclusion and the right of disposition. . . . The dullest individual among the people knows and understands that his property in anything is a bundle of rights. ¹⁵Liddick v. City of Council Bluffs, 232 Iowa 197, 217 (1942) (internal quotations omitted).

Thus, property is a very broad term that refers not just to the thing itself, as laymen such as Falkvinge seem to think, but also to the rights, benefits, and interests that accompany ownership of the thing. Anyone who exercises dominion over the property of another, interfering with these rights, benefits, or interests, is depriving the property owner of his property. It matters not if the wrongdoer doesn’t prevent the property owner from also exercising dominion over the property. It is the act of doing something with the property that is inconsistent with the property owner’s rights, benefits, or interests that matters. When one understands these broad meanings of these legal terms of art, calling copyright infringement theft doesn’t seem so strange. But to really understand how theft applies to intangibles, I think it’s useful to look at some concrete examples.

Examples of Theft of Intangibles

In Dreiman v. State, ¹⁶Dreiman v. State, 825 P.2d 758 (Wyo. 1992). the defendant had been convicted of burglary, i.e., entering a building with the intent to commit larceny, for breaking into his ex-girlfriend’s house, taking her keys and having copies made, and then returning the keys. At the time, Wyoming’s larceny statute provided: “A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.” ¹⁷Id. at 760 (internal quotations and citations omitted). On appeal, the defendant argued that there was no intent to deprive the victim of her keys since he had only borrowed them to make copies. The Supreme Court of Wyoming held that the defendant had deprived the victim of something, though that thing was intangible:

Copying those keys, therefore, was taking something from her and depriving her of her right to have exclusive access to her trailer house and automobile. Unauthorized copies of a person’s keys diminish the value of the original keys—keeping unwanted persons out of the trailer. In other contexts it has been said that property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys one or more of these elements of property to that extent destroys the property itself. . . . Thus, although the owner may retain possession of the original property, there has been nevertheless a deprivation of property when a copy is made and retained by another. The copies of the car and house keys . . . constituted sufficient evidence from which the jury could infer that appellant had the specific intent to steal when he unlawfully entered [the victim’s] dwelling. ¹⁸Id. at 761 (internal quotations and brackets omitted).

Thus, it’s theft to borrow someone’s keys and to make copies without their permission. This is so even if the original keys are returned to the owner. What makes it theft, which requires an intentional deprivation of the victim’s property, is the fact that the thief has taken from the owner of the keys the intangible benefits that go with having exclusive control over the set of keys. But this was not all that the defendant had taken. While in his ex-girlfriend’s house, the defendant copied down the victim’s unlisted phone number. The defendant argued that this type of information is not property which can be taken under the applicable larceny statute. The Supreme Court of Wyoming disagreed, finding that information “has been held to be property and a subject of theft in several criminal contexts.” ¹⁹Id. Even though the defendant had merely copied down the phone number, he nonetheless had deprived the victim of something—the victim’s property interest in keeping her phone number private.

The same sort of deprivation occurs when someone photocopies or photographs documents that he has no right of access to. For example, in People v. Parker, ²⁰People v. Parker, 217 Cal. App. 2d 422 (1963). the defendant was convicted of attempting to receive stolen property based on a scheme he had concocted to obtain confidential telephone directory supplements that were not publicly distributed. The defendant arranged to have the supplements delivered to him, which he would then photograph and return about an hour later. The defendant argued that since he was merely photographing the supplements and returning them shortly thereafter, there was no intent to deprive the telephone company of its property. The California Court of Appeal disagreed, and it upheld his conviction: “The supplements herein were property, had value and were the subject of theft within the meaning” of the applicable theft statute. ²¹Id. at 426. Thus, even though the defendant promptly returned the supplements, he had nonetheless intended to deprive the victim of the intangible rights, benefits, and interests associated with the supplements when he photographed them.

In People v. Ellis, ²²People v. Ellis, A099357, 2003 WL 21513612 (Cal. Ct. App. July 3, 2003) (unpublished opinion). the defendant had been convicted of burglary for breaking into the home of his estranged wife’s mother for the purpose of locating his wife’s address in the mother’s address book. On appeal, the defendant argued that he could not be convicted of burglary since an address is an intangible thing that is not property that can be stolen. The California Court of Appeal disagreed, noting that “courts have shown no hesitation in broadly defining property in an effort to protect privacy and confidentiality in something that is deserving of being safeguarded from disclosure.” ²³Id. at *6. The defendant, who had obtained the address without consent, was “in a position to reap the benefits of this information by having unwanted access to the residence,” and it “destroyed” the mother’s “ability to limit those who knew” the wife’s new address. ²⁴Id. Thus, the appellate court held that the address was property that could be stolen by merely copying it down.

Lastly, in People v. Kwok, ²⁵People v. Kwok, 63 Cal. App. 4th 1236 (1998). the defendant was convicted of burglary after he broke into his girlfriend’s house, removed the lock from one of her doors, and took it to a locksmith to get a key made. The defendant thereafter returned to her house and replaced the lock. On appeal, the defendant argued that he couldn’t be convicted of burglary since he had not taken the lock with the intent to permanently deprive the victim of it. The defendant claimed that making an unauthorized copy of someone’s house key is not theft, but the California Court of Appeal did not agree:

[P]roperty is something that one has the exclusive right to possess and use. A key to one’s residence is clearly one’s property. . . . [A] homeowner’s or tenant’s property interest in his or her house key is not just the right to maintain possession of a tangible object—the key—but also the right to control the intangible benefit conferred by ownership of the key, i.e., the ability to control access to one’s residence. Courts have said that the word property is all-embracing so as to include every intangible benefit and prerogative susceptible of possession or disposition. . . . Making an unauthorized copy of a “borrowed” key . . . destroys the intangible benefit and prerogative of being able to control access to one’s residence just as thoroughly as outright theft of the key itself. ²⁶Id. at 1250-51 (internal quotations and citations omitted).

The appellate court held that the defendant’s “acquisition of the key was theft” since he had “obtained a key in which he had no legitimate property interest.” ²⁷Id. at 1251. Moreover, in the court’s opinion, the victim “was the rightful owner of the key, even though the key, as a tangible object, did not exist until appellant had it made.” ²⁸Id.

As you may have guessed, I chose the foregoing examples because they involve theft of intangibles based on unauthorized copying by the defendant. Whether the thief returns the original property after copying it is irrelevant since the intangible rights, benefits, and interests in the property nevertheless have been stolen. Copyright opponents such as Falkvinge, however, hold a very narrow view of what it means to steal something. For example, Falkvinge claims that when it comes to copyright infringement, “[n]obody is stealing anything” since “[t]hey are manufacturing their own copies using their own property.” The examples above refute this claim. Not only are the rights, benefits, and interests in a copyright intangibles that can be stolen, but copyright itself is intangible property that consists only in those rights, benefits, and interests—that’s all that can be stolen.

Dowling and Copyright Preemption

The darling of the copyright opponents is Dowling, and no discussion of infringement-as-theft would be complete without discussing this Supreme Court opinion from 1985. ²⁹See Dowling v. United States, 473 U.S. 207 (1985). Dowling was a 6-3 decision that looked at whether the National Stolen Property Act (“NSPA”), as codified at Section 2314 of Title 18, applied to bootleg recordings. The NSPA prohibits the transportation in interstate commerce of “any goods, wares, merchandise, securities or money” that are known “to have been stolen, converted or taken by fraud.” ³⁰Id. at 208 (internal quotations and citations omitted). Dowling was accused of trafficking in illicit recordings of Elvis Presley for which no license had been obtained nor royalties paid. On appeal, Dowling did not dispute his conviction for copyright infringement, instead challenging whether the bootleg recordings he dealt in were stolen property under the NSPA.

The Supreme Court took the case to address the “apparent conflict among the Circuits concerning the application of the statute to interstate shipments of bootleg and pirated sound recordings and motion pictures whose unauthorized distribution infringed valid copyrights.” ³¹Id. at 213. The Court started its analysis with recognizing that its job, consistent with the rule of lenity, is to interpret criminal statutes narrowly and strictly. Dowling argued that the goods he shipped were not stolen within the meaning of the NSPA since the phonorecords themselves had not been stolen—while the copies shipped were certainly infringing, the physical phonorecords themselves were not stolen property. The Court agreed with Dowling, holding that the phonorecords at issue were not “stolen, converted or taken by fraud” as required by the NSPA.

In the Court’s opinion, prosecutions under the NSPA required that the physical goods shipped be themselves tangible goods that have been stolen: “[T]he provision seems clearly to contemplate a physical identity between the items unlawfully obtained and those eventually transported.” ³²Id. at 216. This meant, in the Court’s view, that “some prior physical taking of the subject goods” was necessary. ³³Id. The Court rejected the government’s view that shipping illicit copies of copyrighted materials would fit the bill if the materials those copies were embodied in had not themselves been stolen:

[T]he 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. *** It follows that interference with copyright does not easily equate with theft, conversion, or fraud. ***

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. ³⁴Id. at 216-18 (internal quotations and citations omitted; paragraph breaks altered).

It’s no wonder that copyright skeptics love this language, coming with the imprimatur of a majority of the Supreme Court, no less. In order to be convicted of transporting stolen goods under the NSPA, the Court held, the defendant had to have in his possession something tangible that was stolen. As the dissent pointed out, citing case law from multiple circuits, this holding was “contrary to the clear weight of authority.” ³⁵Id. at 230 (Powell, J., dissenting). You can read the dissent yourself to get other counterarguments, but for better or for worse, the Court read into the NSPA a distinction between tangible and intangible property. Only the former can be physically possessed as is required by the NSPA. A copyright, which is intangible and has no physical substance, simply can’t be carried across state lines.

But this doesn’t mean that copyright infringement is not theft. As the Second Circuit noted just last year, Dowling only stands for “the proposition that the theft and subsequent interstate transmission of purely intangible property is beyond the scope of the NSPA.” ³⁶United States v. Aleynikov, 676 F.3d 71, 77 (2d Cir. 2012) (emphasis added). In other words, intangible property can still be the subject of theft, but the NSPA just doesn’t reach it. The First Circuit has noted that the NSPA simply “does not apply to purely intangible information, the theft of which is punishable under copyright law and other intellectual property statutes.” ³⁷United States v. Martin, 228 F.3d 1, 14 (1st Cir. 2000) (internal quotations omitted; emphasis added). While the NSPA doesn’t apply to intangible property, the Economic Espionage Act still proscribes the “theft of trade secrets” in Section 1832 of Title 18, and the Identity Theft Penalty Enhancement Act still proscribes “aggravated identity theft” in Section 1028A of Title 18. Intangibles can be the subject of theft, there is no doubt; whether the NSPA reaches that theft is beside the point.

Moreover, the Dowling majority’s claim that “interference with copyright does not easily equate with theft” can be easily rebutted by looking at theft statutes that have been preempted by the Copyright Act. Congress made clear in Section 301 that it intended to expressly preempt the entire field of state law where the Copyright Act applies. Generally speaking, a state law is preempted by the Copyright Act if (1) the work at issue comes within the subject matter of copyright as defined by Section 102, and (2) the rights granted under the state law are equivalent to any of the exclusive rights granted by Section 106. ³⁸See, e.g., United States ex rel. Berge v. Bd. of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1463 (4th Cir. 1997). To survive preemption, the state law must protect rights that are qualitatively different than the rights granted by copyright. In other words, the state law claim must be based on some extra element which changes its nature. ³⁹See, e.g., Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 229 (4th Cir. 1993). If “the right defined by state law may be abridged by an act which, in and of itself, would infringe one of the exclusive rights,” then it is preempted. ⁴⁰Id. (internal quotations omitted).

There are many examples in the case law of state theft statutes being preempted by the Copyright Act, but I’ll focus on just one—the Eleventh Circuit’s opinion in Crow v. Wainwright. ⁴¹Crow v. Wainwright, 720 F.2d 1224 (11th Cir. 1983). Crow was a bootlegger who had been convicted by a Florida state court for violating Section 812.019 of the Florida Statutes Annotated, which prohibits “[d]ealing in stolen property.” The stolen property Crow was convicted of trafficking in was not the underlying copyright or the bootleg eight-track tapes themselves, but rather it was the private contractual rights that a certain performer held to collect royalties from a certain copyright owner. The Florida Court of Appeal and the Supreme Court of Florida upheld Crow’s conviction, finding that the state theft statute at issue was not preempted by the Copyright Act.

Crow then turned to the federal courts for relief. The Eleventh Circuit ran through the Section 301 preemption analysis, finding that the sound recording at issue clearly fell within the subject matter of copyright under Section 102. The state had justified its conviction of Crow “by attempting to characterize the stolen property rights as contract rights not within the exclusive scope of section 106.” ⁴²Id. at 1226. The Eleventh Circuit rejected this argument, noting that since Crow was not a party to the contract between the performer and the copyright owner, the action could not be maintained under state contract law. Instead, the “stolen property rights sold by Crow,” said the federal appellate court, were the exclusive rights to distribute and to reproduce the work—i.e., rights granted exclusively under Section 106 of the Copyright Act. ⁴³Id. As such, the Eleventh Circuit held that Florida’s theft statute was preempted by the Copyright Act:

Despite the name given the offense, the elements essential to establish a violation of the Florida statute in this case correspond almost exactly to those of the tort of copyright infringement. The state criminal statute differs only in that it requires the prosecution to establish scienter [i.e., intent], which is not an element of an infringement claim, on the part of the defendant. This distinction alone does not render the elements of the crime different in a meaningful way.

Section 506 of the Copyright Act, which sets forth criminal penalties for copyright infringement, also requires the prosecution to prove scienter as an element of the case. The additional element of scienter traditionally necessary to establish a criminal case merely narrows the applicability of the statute. The prohibited act—wrongfully distributing a copyrighted work—remains the same. Section 301 clearly prohibits Florida from prosecuting Crow in this case, and we conclude that Crow’s conviction is null and void. ⁴⁴Id. at 1226-27 (internal quotations and footnotes omitted; paragraph breaks altered; bracketed text added).

Thus, the Eleventh Circuit did not accept the state’s argument that its theft laws could be applied to Crow’s copyright infringement. If anything disproves the statement in Dowling that “interference with copyright does not easily equate with theft,” it’s the fact that courts do easily equate copyright infringement with state theft laws when doing a preemption analysis under Section 301.

Copyright Infringement as Theft

The word “theft” without any qualification usually refers to the criminal variety of theft, but it should be noted that there exists both criminal theft and civil theft. Whereas criminal theft claims are brought by the government, civil theft claims are instituted by private parties. A civil theft proceeding can be initiated by the victim against not only the original taker of his stolen property, but also against any subsequent person having possession of it. The civil theft action typically permits the victim to recover his stolen property and to collect three-times his damages. Colorado’s civil theft statute is representative of such statutes:

All property obtained by theft, robbery, or burglary shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to such property. The owner may maintain an action not only against the taker thereof but also against any person in whose possession he finds the property. In any such action, the owner may recover two hundred dollars or three times the amount of the actual damages sustained by him, whichever is greater . . . . ⁴⁵Colo. Rev. Stat. Ann. § 18-4-405 (West 2013).

Like theft, copyright infringement also comes in two varieties: civil infringement and criminal infringement. Civil infringement actions are brought by private parties under Section 501(b) of the Copyright Act, which permits “[t]he legal or beneficial owner of an exclusive right under a copyright . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it.” ⁴⁶17 U.S.C.A. § 501(b) (West 2013). Criminal infringement actions, on the other hand, are instituted by the government under Section 506(a) of the Copyright Act against “[a]ny person who willfully infringes a copyright . . . .” ⁴⁷17 U.S.C.A. § 506(a) (West 2013). It might be tempting to equate civil theft with civil infringement and criminal theft with criminal infringement, but it’s not that simple. A civil theft statute creates a private right of action, but it still requires the property at issue to have been the subject of criminal theft. In other words, to succeed in a civil theft claim, the plaintiff still has to show that his property was stolen under the state’s criminal theft statutes. ⁴⁸See, e.g., Sullivan v. Delisa, 101 Conn. App. 605, 619-20 (2007); Steward Software Co., LLC v. Kopcho, 275 P.3d 702, 706-07 (Colo. Ct. App. 2010), rev’d on other grounds, 266 P.3d 1085 (Colo. 2011).

The civil theft analysis thus collapses into an analysis of the criminal theft statutes, and there can be no civil theft unless there is an underlying criminal theft. But the civil and criminal varieties of copyright infringement do not work the same way. All criminal infringements are also civil infringements, but not all civil infringements constitute criminal infringements. The primary difference between civil and criminal infringement lies in the mens rea element. Civil infringement is an intentional tort such that the defendant must have intended to do the copying, but it is also a strict liability tort such that there is no need to prove an intent to infringe in order to establish the defendant’s liability. ⁴⁹See, e.g., Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F.3d 923, 931 (7th Cir. 2003) (“Copyright infringement . . . is an intentional tort.”); Gnossos Music v. Mitken, Inc., 653 F.2d 117, 120 (4th Cir. 1981); Illustro Sys. Int’l, LLC v. Int’l Bus. Machines Corp., Case No. 06-cv-01969, 2007 WL 1321825 (N.D. Tex. May 4, 2007) (“[C]opyright infringement is an intentional tort.”); Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931) (“Intention to infringe is not essential under the act.”); United States v. Bily, 406 F.Supp. 726, 733 (E.D. Pa. 1975) (“Under the civil law, there is strict liability for infringement.”); Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963) (“While there have been some complaints concerning the harshness of the principle of strict liability in copyright law, . . . courts have consistently refused to honor the defense of absence of knowledge or intention.”). Since civil infringement is a strict liability tort, whether the defendant acted innocently or willfully goes to the issue of damages, not liability. An innocent infringer is just as liable as a willful one, but the latter faces the possibility of being on the hook for more damages than the former. ⁵⁰See 17 U.S.C. § 504(c).

Criminal infringement, on the other hand, requires that the defendant must have willfully infringed in order to be guilty, that is, that he not only intended to copy but also that he intended to violate the law by copying. ⁵¹See, e.g., United States v. Wise, 550 F.2d 1180, 1194 (9th Cir. 1977); Bily, 406 F.Supp. at 733 (“One cannot be convicted [of criminal infringement] unless he has willfully infringed.”); United States v. Moran, 757 F.Supp. 1046, 1049 (D. Neb. 1991) (“[U]nder 17 U.S.C. § 506(a) ‘willfully’ means that in order to be criminal the infringement must have been a voluntary, intentional violation of a known legal duty.”) (internal quotations omitted). In other words, a defendant cannot be found guilty of criminal infringement unless it is proved that he had the specific intent to commit copyright infringement. Thus, this intent to infringe element distinguishes criminal from civil infringement. Besides the necessity of willfulness, criminal infringement also differs from civil infringement by requiring that it be done in one of three ways: (1) “for purposes of commercial advantage or private financial gain,” (2) by reproducing or distributing “during any 180-day period” one or more copies of one of more copyrighted works “which have a total retail value of more than $1,000,” or (3) “by the distribution of a work being prepared for commercial distribution . . . if such person knew or should have known that the work was intended for commercial distribution.” ⁵²17 U.S.C.A. § 506(a)(1) (West 2013).

Turning back to the Model Penal Code’s definition of theft, “[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.” ⁵³Model Penal Code § 223.2. I mentioned above that this can be broken down into three elements: (1) unlawful taking or control, (2) of movable property of another, and (3) with intent to deprive. While it may be tempting to compare only criminal infringement with criminal theft since civil infringement doesn’t have a specific intent element, i.e., civil infringement doesn’t require an intent to infringe, we must not forget that there is such thing as willful civil infringement. Section 504(c)(2) provides for increased damages awards when civil infringement is done willfully, that is, when the defendant intends to infringe. ⁵⁴See, e.g., Moran, 757 F.Supp. at 1050 (collecting cases). In other words, just because liability for civil infringement doesn’t require there to be an intent to infringe, that doesn’t preclude the possibility that there was such an intent element present when the defendant infringed.

To see why intentional copyright infringement, whether civil or criminal, is theft, we simply have to run through the Model Penal Code’s elements of theft. The first element, unlawful taking or control, is straightforward. Copyright infringement involves both an unlawful taking and unlawful control. As demonstrated in the examples of theft of intangibles mentioned above, this element doesn’t require the defendant to physically dispossess the victim of something tangible. Rather, the thing taken can be intangible. With copyright infringement, the infringer takes the intangible rights, benefits, and interests that go with copyright ownership, including the right to exclude the infringer from copying. Moreover, if you unlawfully copy my work, you’ve taken from me some part of the economic value of my copyright. And by making that illicit copy, you have exerted unlawful control over my property—you’ve taken it upon yourself to exert dominion over my property in a way that conflicts directly with my exclusive rights.

The second element, that copyright constitutes movable property of another, seems exceedingly obvious to me, but I know that skeptics such as Falkvinge define property so narrowly that intangibles such as copyright aren’t property under their definition. But as noted above, the modern definition of property, especially in the context of theft statutes, is extremely expansive. As the Supreme Court of Nevada has noted, “property is a broad concept encompassing every intangible benefit and prerogative susceptible of possession or disposition.” ⁵⁵M.C. Multi-Family Dev., LLC. v. Crestdale Associates, Ltd., 124 Nev. 901, 911 (2008) (internal quotations and citations omitted). For a more rigorous definition of property, the Ninth Circuit has formulated the following three-part test:

[T]hree criteria must be met before the law will recognize a property right: First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity. ⁵⁶G.S. Rasmussen & Assoc., Inc. v. Kalitta Flying Service, Inc., 958 F.2d 896, 903 (9th Cir. 1992).

Copyright easily meets this definition of property. A copyright is capable of precise definition as Section 106 delineates the specific exclusive rights that a copyright owner may do or authorize. Similarly, a copyright is capable of exclusive possession or control since the Copyright Act provides that a copyright owner has certain exclusive controls over his copyrighted work. That the work is not naturally excludable doesn’t take away from the fact that it is de jure excludable. Lastly, a copyright owner’s exclusivity is legitimate as it is specifically granted under the Copyright Act, which Congress enacts pursuant to its enumerated Article I power.

The final element of the Model Penal Code’s formulation of theft looks at whether there is an intent to deprive. As demonstrated in the examples above concerning the theft of intangibles, this element is not as simple as intentionally depriving the victim of his tangible property. Instead, the issue is whether the thief has intended to deprive the victim of any of the rights, benefits, or interests that the victim has an exclusive claim to. When someone intentionally infringes, whether that infringement is civil or criminal, the infringer has purposefully deprived the victim of something—the intangible prerogatives appurtenant to the exclusive ownership of his property. It doesn’t matter that the copyright owner can still exert some control over his copyright. Any act that is inconsistent with the copyright owner’s exclusive rights deprives the owner of his property.

Thus, not only is all criminal infringement the same thing as criminal theft since there is the specific intent to infringe, but all willful civil infringement is criminal theft as well since there is also that same specific intent. This is presumably why Justice Breyer in Grokster said that “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.” ⁵⁷Grokster, 545 U.S. at 961 (Breyer, J., concurring). Intentional infringement, whether the civil or the criminal variety, does in fact fulfill the traditional elements of theft. This is so not only because property for purposes of theft statutes is defined broadly so as to include intangibles, but it’s also because intentional infringement involves an unlawful taking or control of another’s personal property with the intent to deprive the victim of his property. In many ways, copyright law has been ahead of its time. Long before the modern notion that theft can be applied to intangibles came into fashion, copyright law had recognized that interference with the rights, benefits, and interests in an intangible was a wrong.

Special thanks to Terry Hart for his valuable feedback in drafting this post.

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