infringement is not theft! enough already!

Tell me how you steal an intangible concept.

Theft is the taking and carrying away of the personal property of another which has value.

Let’s take a download: if someone gets a download without permission, they haven’t stolen your music because you still have it. And they haven’t stolen any money to which you were entitled because you cannot prove that entitlement with any certainty. You never had the money in your possession. “Stealing” is an emotional word to make the act look evil. Copyright infringement is copyright infringement, not theft. It is actionable but it is not criminal unless the law says so (and that’s only defined as done for pecuniary gain. Here’s how the code described when infringement becomes criminal:

§ 506. Criminal offenses4
(a) Criminal Infringement. —

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

(2) Evidence. — For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

(3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution —

(i) the copyright owner has a reasonable expectation of commercial distribution; and

(ii) the copies or phonorecords of the work have not been commercially distributed; or

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture —

(i) has been made available for viewing in a motion picture exhibition facility; and

(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.

A teen-ager downloading a song for himself without permission (or for his friends) is not engaging in a criminal act as defined by the law. Period, end of story.

Creators need to wrap themselves around the law as it is, not as they imagine it.

All the bullshit to the contrary,  is just simple minded nonsense.

Louis B. Mayer once said something like: I love the movies,
even when you sell it, you still own it.


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2 Responses to “infringement is not theft! enough already!”

  1. Don Rath Jr Says:

    Well, now that was an eye opener! Thanks for the knowledge and the straight talk.

    • corberlaw Says:

      You are welcome. Theft is the criminal analog of the common law tort conversions. With infringement of a digitl file, you are not converting any tangible property.

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