I Say It’s Theft, and I Say The Hell With It

Whenever there’s a high-profile crime it’s only a matter of time before someone belittles the victim.  That’s what seems to be shaping up in the Justice Department’s indictment of file-sharing behemoth Megaupload on charges of massive copyright infringement. Stuart P. Green, a Rutgers Law School Professor blogging in the New York Times, writes “Whatever wrongs Megaupload has committed, it’s doubtful that theft is among them.”

Well, Professor Green, unless you have a better word for it, I’m sticking with theft.

Green argues that the complexities of modern intellectual property law have obscured the simplistic legal standards by which theft is measured. Those standards were set in 1962 when the American Law Institute issued the Model Penal Code defining property as “anything of value.” “Henceforth,” says Green, “it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly.”

Green’s beef with the Institute’s definition is that contemporary media and services like the Internet blur moral and legal principles. “We should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind. His authority? “Lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.”

We don’t know who these “lay observers” are, but they don’t seem to have spent much time speaking to victims. If they had, they might have heard something like this from an author: “If I was in a bookstore, would I just drop this book in my purse and walk out of the store? Because that is exactly what you are doing when you download a book without buying it.” (See Are Downloaders Better Than Muggers?)

The subtle intricacies of modern life make it easy to rationalize crimes like stealing and call them something else.  But calling theft a non-crime doesn’t make it a non-crime. Green may have many other words for the deed (the book that he and a social psychologist are writing is called 13 Ways to Steal a Bicycle: Theft Law in the Information Age). But for victims there’s only one way to say it: “I’ve been robbed.”

Judge for yourself: When Stealing Isn’t Stealing by Stuart P. Green.

Richard Curtis

For a full archive of postings about piracy, visit Pirate Central.


7 Responses to I Say It’s Theft, and I Say The Hell With It

  1. Brian says:

    Curious. Unless the law gets rewritten, the courts will only uphold what the law says whether we think it’s right or not doesn’t really matter.

    So what’s the difference between lending someone a physical copy of a book or sharing that book on the Internet? I’m curious how the Supreme Court will handle the first sale doctrine.

  2. Erick says:

    In France, that’s counterfeit, which is eventually quite good… philosophically speaking.

    Maybe you could see how this is “judged” in other countries.

  3. Brian, the question of whether First Sale Doctrine applies to digital books has already been settled by the very definition of First Sale Doctrine.

    According to stated definition, when you resell a physical book you are selling the paper, ink, binding, and glue, NOT the contents which still belong to the copyright owner. Since a digital book isn’t a physical thing, you can’t resell it.

    For more details and links to the pertinent US government documents and legal articles, I suggest my article on the subject at


  4. Rowena Cherry says:

    Brian, what do you call it when someone gives away something that does not belong to them?

    What would you call it if someone took your full name, address, passwords and bank account information, and “shared” that with a few thousand strangers on the internet?

  5. Brian says:

    @Rowena: I’d call that pastebin:)

    @Marilynn: Actually, the Supreme Court will be reviewing the First Sale Doctrine again this year:


    Also, a website exists, where folks can resell their electronic music purchases:


    What would happen if eBooks were resold for a fraction of their sale price?

    I think we’re in interesting waters right now.

  6. Rowena Cherry says:


    I followed your link and it appears to me that the portion of First Sale Doctrine that SCOTUS is reviewing concerns the purchase of physical products overseas and importing them for resale.

    That is not what Marilynn was talking about, and it is rather dishonest of you to reply to her post in a way that suggests that Marilynn’s expertise concerning ebooks might be out of date or subject to judicial review.

  7. Rowena Cherry says:

    As for your “interesting waters”, if authors and musicians sell their works for 0.99 cents, PayPal takes a minimum of about 0.44 cents in commission.

    If a User were allowed to sell an e-book for a fraction of the sale price of 0.99, they would still pay PayPal 0.44, so it would not be all that interesting.

    What is happening currently is that copyright infringers on EBay and other auction sites (EBay was mentioned in one of the articles you cited) are bundling hundreds, if not thousands of “used” e-books onto DVDs and selling them for a fraction of the price that the individual titles would sell for legally if sold individually.

    This is immoral, illegal, and if Viacom prevails against YouTube, I hope that publishers will sue EBay.

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