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Does IP slow down growth by throttling innovation?

Matt Yglesias fantasizes about a world without resource limits link here.

The fantasy depends on unlimited energy and the Star Trek replicator which produces an unlimited supply of whatever goods are desired. The dream becomes a nightmare when intellectual property is introduced, followed by lawyers, and bureaucrats to enforce these rights.

The fantasy originated in Peter Frase's blog, where he writes, "In the process of trying to pull together some thoughts on intellectual property, zero marginal-cost goods, immaterial labor, and the incipient transition to a rentier form of capitalism, I've been working out a thought experiment: a possible future society I call anti-Star Trek. Consider this a stab at a theory of posterity." link here.

Both are entertaining to read, but they also have a moral. As the cost of goods is reduced, we can contemplate a world in which for all practical purposes, necessities are free so that people only work to spend their lives in entertaining or educating themselves.

There is a discontinuity, however, as we are experiencing even now. As invention goes rapidly ahead, we find ways to assure that marginal costs do not fall to zero. Monopoly comes to mind as the biggest cause.

And doesn't this help explain the decline in growth hypothesized in Tyler Cowen's recent book, The Great Stagnation link here?


Comments

The "Star Trek" replicator works because of two, non-zero marginal cost, things. The first, and most important of those two things is a tremendously powerful power source. While such a power source may yet be discovered, the energy to create as they do on "Star Trek" would require much of the total generated electrical power currently available on planet earth. The cost of such energy production is far beyond just making the item in question.

The other thing needed is relatively easy in comparison to the power requirements. Two possibilities are posited for raw materials for the "Star Trek" replicator.

If the replicator is rearranging atoms from one configuration to another, then any raw material is usable for the replication process. Of course, the energy requirements also increase significantly.

If the replicator uses existing atoms or molecules and recombines them into a new shape, then the energy requirements drop, but the store of raw materials needed to support the replicator grows, perhaps significantly depending on the expectations for the replicator.

In any case, the "Star Trek" replicator is about as far from a zero-marginal cost device as you can get, even including the effect of intellectual property.

There are troubling side effects of having necessities reduced to being free (though it appears that is unlikely to happen any time soon).

Perhaps the first unintended consequence would be excessive breeding. Undoubtedly we have already overpopulated the earth, and billions more merely accelerate the primary problems facing this planet, such as an increase in greenhouse gases that will likely cause further perturbations in the weather and further strains on water, food and energy supplies.

Another unintended consequence we are seeing already. Not only will we have more displaced workers as new technologies replace old, but there is less need for workers in total. Yes, the skill level for the new workers is higher than for the old, but there are fewer of the new workers needed. What will these people do? Some argue that they will have more time for self-improvement (XBox, anyone?), but what happens when workers are displaced now? True, SOME work on self-improvement, but there is little evidence that a significant percentage actually do. It seems more likely that the new dystopia will be thousands of people glued to the boob tube or complaining about the lack of new video games.

Regarding another issue, it is seems that there is a mistaken belief about Star Trek and money. While the society of Star Trek did not use "money," they still had Federation credits given in exchange for labor. While there was no exchange of paper when labor was performed or goods or services were purchased, there was an increment or decrement of credits. The benefit to this method of tracking the creation of labor is that credits could be created endlessly based purely on labor or the lack of labor. In many ways credits are similar to our current monetary system, only without the use of physical money. There are a number of well-written articles about the economics of Star Trek. Some of these articles speculate that the economics of the future are much like communism wanted to be, though supposedly it works in the future.

I did see one comment in one of these analyses that frightened me. Since the people of the future are supposedly equal, then theoretically anyone could be a CEO or a president, and their system seems to have different people rotating into these roles. Now, just imagine that guy that lives a mile down the road from you who has the dead lawn, the old car up on blocks, and beer cans laying around his living room as the president of the United States. On the other hand, maybe we would not notice much difference.

There are troubling side effects of having necessities reduced to being free (though it appears that is unlikely to happen any time soon).

Perhaps the first unintended consequence would be excessive breeding.

*sigh* experience says otherwise. having more than enough reduces the overall fertility rate possibly to sub-replacement fertility or atleast to very near replacement fertility. http://en.wikipedia.org/wiki/Sub-replacement_fertility you might want to familiarize yourself with http://en.wikipedia.org/wiki/Demographic_transition and Population: Delusion and Reality -AMARTYA SEN http://www.marathon.uwc.edu/geography/malthus/sen_NYR.htm

Anon:

experience says otherwise

I am quite familiar with all these theories and hypotheses and more beyond those you mentioned.

One of the facts of the 20th century is that the rapid introduction of new medical technologies caused a huge decrease in infant mortality. Yet, birth rates remained the same for a lengthy period of time; decades, in fact. The end result was soaring population growth. Yes, the birth rates declined, eventually, but for a period of decades the population of the United States and much of the world was doubling at an exponential rate.

What none of these articles point out is what happens during the period after you change the factors that affect longevity. Our real-world observations are the best clue as to what happens. Our observations have been that when factors increase life span, it takes a long time, typically decades, for fertility rates to adjust to the change. Yes, they eventually do adjust, leading to the after-the-fact observations of the articles you provided.

Even when fertility rates adjust, there remain cultural perceptions regarding fertility and birth rates and some cultures, even in societies that have plenty, continue to have higher than average birth rates for that society. In some cases, significantly higher than average. It is common among certain cultural groups in the United States to have 4 children or more, and having plenty has done little to affect the size if families. Among certain sub-cultures in the United States families continue to average much higher than four children per family. (http://amishamerica.com/amish-family-size/, http://www.lightplanet.com/mormons/daily/social_eom.htm, http://www.pop.org/content/hispanic-family-size-in-usa-shrinking-93)

There is evidence that birth rates are declining in some of these subcultures, but not all, in spite of having excess food and access to health care.

First Anonymous, The power costs for the Star Trek replicator may indeed be beyond our current capacity, but it was a trivial cost in the Star Trek universe. There are many things whose costs would be large centuries or millennia ago but are trivial today.
Last Anonymous:

Perhaps the biggest cost of all has nothing to do with monetary value, and everything to do with physics. Even replicating minor objects would likely create terrific amounts of heat that would need to be removed. While such heat might be used to generate more energy, it still needs non-trivial resources to handle. If there was a significant amount of replication within the confines of earth, the heat buildup would be so tremendous that earth would no longer be habitable.

You could hypothesize that the efficiency of the replication process is so high that trivial amounts of heat are generated. If so, that would be unlike any other energy conversion process known today. Fundamentally, the replication process as shown on Star Trek is so physically implausible with any extrapolation of known physics or technology as to be in the realm of fantasy rather than science fiction.

Dream vs. Nightmare:

The dream never becomes a nightmare because the basic goods that you hypothesized would not be patentable. Even if those goods were patentable, there is still a fail because the economics of the future are different from the economics of now. As noted in earlier comments, Star Trek rewarded based only on labor. So, an invention would be rewarded Federation credits commensurate with the labor required for an invention. Patents would likely (thought not necessarily) be unknown or unused. However, patents could still be awarded as a source of recognition, and Federation credits awarded acordingly. In any case, there would never be a nightmare since patents are rarely related to the basic necessities that would be recreated in a replicator. A replicator could easily be programmed to account for a royalty based on the awarding of a patent, awarding Federation credits because each replicated item is an indicator of the value of the invention to the Federation.

1. Re: 7/17 4:17 PM "Any sufficiently advanced technology is indistinguishable from magic".

2. Patents would simply become subject to Napsterization as copyrights have been by the Internet.

Nova:

It is doubtful that energy will ever be so plentiful as to permit someone to duplicate any item of significant size at a lower cost than the item can be mass produced.

Obviously, you've never heard of nuclear fusion. Also, rearranging atoms with nanotechnology to duplicate an item is a form of mass production.
Nova:

Obviously you have never heard of radioactivity, which is a byproduct of nuclear fusion. Also, the byproducts of nuclear fusion are extremely limited.

Rearranging atoms with nanotechnology is a form of mass production. However, that was not how the Star Trek replicator worked.

Regarding the article about the theft of JSTOR articles, Justin Levine (not so)cleverly disable comments, so I have to put this comment here.

As noted in several places, the man was in fact charged in federal court of, among other things, data theft. Seems as though the AP got the story right.

http://www.bostonherald.com/jobfind/news/technology/view/2011_0719cambridge_man_accused_of_stealing_4_million_documents_in_mit_hack/srvc=home&position=also

Anonymous: obviously, YOU'VE never heard of the difference between fusion and fission. Ideal fusion would produce only large amounts of energy and small amounts of helium and oxygen from small amounts of water.

As for rearranging atoms with nanotechnology, that is how any realistic near-future replicator would work, so what's in the Star Trek Technical Manual is irrelevant.

Re "data theft": did JSTOR no longer have the data? If they still had it, then nothing was stolen. Copyright infringement may have occurred, but not theft.

Nova:

Ummm...my degree is in physics. I have been in two nuclear reactors, one of which was also a research reactor, where both fission and fusion experiments are conducted. "Ideal" fusion might not generate radioactivity, but with what we know today, "ideal" fusion is more than a long way off.

There are two hurdles between us and "ideal" (I keep putting quotations around the word ideal because you have not defined ideal in this context). First, the number of products we are able to make with fusion today is extremely limited. Second, even in the best possible scenario, all byproducts of fusion retain higher than desirable radioactivity. Given the current lack of funding for basic research, we are unlikely to overcome either of these problems in the near future.

Regarding nanotechnology: Undoubtedly nanotechnology is much more near-term than a replicator as it was defined on Star Trek. Since I already agreed with you on that, why do you keep returning to a subject for which there is no conflict?

There are hurdles with nanotechnology. The first one is that there are probably more trade secrets in nanotechnology than patents, because everyone who has nanotechnology that is useful is keeping their processes secret since the value in nanotechnology is not in the end products, but the processes that get you the end products. Until there is more knowledge throughout the industry, progress will be slower than if everyone was sharing. The next hurdle is that nanotechnology is currently relatively slow in comparison to the speed of replication that we saw on Star Trek. Even a modest item would take hours to complete with our current state-of-the-art. But, who knows what the future will hold?

Re JSTOR: The alleged criminals were charged under data theft laws. You may call it what you like, but the words used were "data theft."

Ummm...my degree is in physics.

All we have is your word for that, and your apparent failure to understand the implications of cheap fusion energy, should it become available, seems to indicate otherwise.

Since I already agreed with you on that, why do you keep returning to a subject for which there is no conflict?

To resist your efforts to sidetrack the debate with a straw-man argument, of course. For practical purposes, a replicator does not need to be a microwave oven sized gadget that materializes its products in a swirly-orange-light SFX. It just needs to cheaply manufacture almost anything.

Even a modest item would take hours to complete with our current state-of-the-art.

Doesn't matter. Again, it doesn't need to be a home kitchen unit like in Star Trek. An ultrasmall, ultracheap factory that takes air and tapwater and electricity and occasional hoppers full of other, cheapish materials (garbage, iron ore, sand) and spits out useful items can be in the back of the corner 7-11 and behind the counter of the local electronics store and you've got ten-cent steaks again, and $1 supercomputers, and penny digital cameras and nickel phones all as close as your local shopping mall. :)

Don't forget also that the costs of maintaining landfills disappear as soon as we can cheaply turn garbage back into shiny new whatever-it-wasses. Even the costs of hauling trash, if the stores give customers discounts if they bring in trash of the same basic composition as an item they're buying. (It won't end up recycled into the same exact item, but replenishing the raw materials for the next similar one.)

But, who knows what the future will hold?

Exactly. You seem to presume to know it won't contain certain things, generally a poorer bet than that it will, when those things don't violate the known laws of physics.

The alleged criminals were charged under data theft laws. You may call it what you like, but the words used were "data theft."

Then those laws are poorly named. Interesting that they think that such laws are applicable to JSTOR at all, though. Academic papers are published documents, not confidential ones. Aren't data protection laws aimed at hackers that copy confidential documents, and primarily intended to prosecute industrial espionage and getting and misusing other peoples' credit card numbers? Napsterizing published, but expensive copyrighted documents seems to me to fall outside that domain and noncommercial such copying, on however large a scale, to fall outside criminal law entirely, into the realm of civil copyright infringement at most.

The only criminal law that seems not to be a stretch here would be applying the CFAA to the means used to access the data and download it, which seems to have involved actual hacking to exceed authorized access (rather than, say, merely violating a website's terms of service without any real hacking being involved, which also should be at most a civil tort, breach of contract in that case, and usually settled with just an IP ban/account suspension by the web site). A theft of services argument might also be made regarding the JSTOR bandwidth consumption.

(An interesting question for any legal eagles still reading the comments here: does it cross the line into a CFAA violation if a webcrawler ignores a robots.txt directive? What if it avoids even seeing if there is a robots.txt? What about a crawler that bypasses a captcha? What if it instead actually solves captchas somehow, possibly by enlisting human assistance when it encounters one? What if it does so deceptively, recruiting unsuspecting humans in some way?

I'd say ignoring robots.txt shouldn't be, since it's just the machine equivalent of ignoring a terms-of-service document; bypassing a captcha seems to qualify as actual hacking; solving the captcha is the edge case, as one might argue it's playing within the rules and not hacking, but one might also argue that it's kind of like using a password you weren't supposed to know.)

Nova:

At long last you amend your comments with "just imagine." If you statements are a philosophical exercise, as you seem to indicate, that would be a game changer indeed. Sadly, there is little evidence that your dreaming is destined to be anything more than that into the imaginable future.

As for the words "data theft," does it really matter whether the terminology is poorly chosen? The fact is that Europe already has extensive data theft laws, and congress has adopted some similar laws and is considering adopting more. Europe and congress seem to be considering theft as the act of taking, focusing on the actions of the criminal, rather than an act of depriving, focusing on the victim.

At long last you amend your comments with "just imagine."

I amended nothing. You have misinterpreted.

If you statements are a philosophical exercise, as you seem to indicate, that would be a game changer indeed. Sadly, there is little evidence that your dreaming is destined to be anything more than that into the imaginable future.

And that is simply wrong. There is plenty of evidence.

As for the words "data theft," does it really matter whether the terminology is poorly chosen?

Yes, because such terminology can mislead people, such as the news media, the lay public, and jurors into thinking that the accusation is of something much more serious than it really is; in particular, the implication in this case that JSTOR was deprived of something irreplaceable, when nothing of the kind took place.

The fact is that Europe already has extensive data theft laws, and congress has adopted some similar laws and is considering adopting more.

Then they are moving in the wrong direction, to the extent that such laws are intended to protect more than just credit card numbers.

Actually, if you ask me such laws should be abolished entirely, along with copyright, patent, and trade secret laws, and trademark changed to a cause of civil action by *consumers* against purveyors of deceptively-marked products, so the latter can be punished via class-action lawsuit.

What about protecting credit card numbers, you ask? The one non-victimless case not covered if the above changes are made? Well, first, actually misusing the number would still be wire fraud. And second, using a shared secret number to authenticate transactions is just stupid. We should be phasing that out in favor of a public-key system where one needs to know one's private key to make a transaction online, but vendors, banks, lending agents, etc. only need to know one's public key to authenticate the transaction. Like checks, but digitally signed and the computers can tell if you're good for the money right away -- in other words, the authentication and security of checks combined with the ease and speed of debit/credit transactions. Really I can't think of a single good reason why we aren't already phasing out credit card numbers in favor of a public key "e-check" system for online credit and debit transactions.

Europe and congress seem to be considering theft as the act of taking

"Taking" means the other guy doesn't have it anymore. The act here is accurately described as "copying", not "taking". If I take your car, you don't have it anymore. If I copy your car or your data, now we both have it. If I take your data, you don't have it anymore -- either I copied and deleted it, or I took your USB key with the only copy, or something.

The problem with the acts classified under so-called "data theft" isn't "taking", i.e. depriving someone else of what's rightfully theirs (despite what the word "theft" implies); it's having access to data you're supposed to be forbidden access to.

And that means that "data theft" laws are really about censorship. Right now, I admit we may need a little bit of that, narrowly focused, to protect things like stored credit card numbers, but really, we shouldn't, and that public key system would go a long way. There'd still be the matter of wrongfully acquiring someone else's private key, but it would be a lot more difficult since it would normally be kept in a hardware dongle you carried around like you do your bank card and guard as closely. It could be further guarded by a memorized PIN, again like your bank card. Stealing the dongle would be pretty much required to acquire the private key and would be an undeniable, physical act of theft of a tangible item. And again, misusing the key after defeating whatever tamper resistance mechanisms obstruct its extraction would constitute wire fraud.

And here is some evidence to back up my claim that calling it "data theft" has the effect of misleading the media and, through them, the general public (and prospective jurors):

http://questioncopyright.org/aaronsw_case_not_about_theft

But beyond the disturbing fact of the arrest itself is a persistent problem in coverage of the case. Venue after venue refers to Swartz being arrested for "theft" or "stealing", even though he didn't steal anything. The bias isn't particularly subtle:

Aaron Swartz, the 24-year-old who went from helping to create Reddit to embracing a different brand of progressive activism, has been indicted on federal charges of breaking into MIT and stealing more than four million articles from an online database.

That's from Talking Points Memo, a political news site (boldface ours). But often the bias starts in the headline...

The media are making it sound like he actually busted a lock with a crowbar in the dead of night and made off with things, depriving MIT and/or JSTOR of four million somethings, when this is patently false.

Do you still wish to contend that there is no problem with calling it "data theft"?

This is actually a comment on the drugs going off patent, but I'm having to post it here because the comment submission form for EVERY ONE of the posts above this one is broken, and in the same way -- the page is simply truncated right after the words "Submit Comment". Fix your software!

On to the actual on topic part.

I find it interesting that the first major HIV drug to go off patent will do so in 2012. That means it only got approved, patented, and marketed in 1992. AIDS was first identified as a threat in 1981. That means it took the medical/pharma community 11 years to a) recognize it as an emerging disease, b) identify HIV as its cause, c) generate the first useful drug specifically for combating it, d) get that drug through trials, and e) get that drug through the approval process.

With response times that slow, if a highly virulent superflu emerged tomorrow we'd be fucked.

Perhaps the current state of the art in biotech can work faster to generate a drug or a vaccine to a new viral threat, but the regulatory framework they have to work within is going to be just as slow as it was in 1981. Can we afford it to be that slow?

Of course it's that same framework that's accused of causing much of the alleged high costs of drug development, the same costs that are used to justify patents on drugs and exorbitant prices on non-generic drugs. Both the patents and the regulatory framework of course represent monopolies, one government-granted and one actually held by the government itself -- no other agency can approve drugs.

Nova:

Taking does not mean the other person does not have whatever was taken, it only means that the person doing the taking left with something he did not have when he came. If you illegally steal electrical power, the producer still has the means of production and it is unlikely the producer would be able to measure the loss, but it remains stealing. If you intercept a satellite signal and have hacked a receiver to be able to interpret the signal, that too falls under theft laws, not because the owner of the original signals no longer has them, but because the person who took them does.

Taking does not mean the other person does not have whatever was taken,

Now you're just being completely irrational. I think we're done here.

If you illegally steal electrical power, the producer still has the means of production and it is unlikely the producer would be able to measure the loss, but it remains stealing.

Wrong. Energy is a tangible good and you actually took some -- they have less fuel or whatever to use to generate more. Also, your actions have a marginal cost to the producer.

If you copy something without disturbing it, whoever has the original still has it and has experienced no marginal cost.

If you intercept a satellite signal and have hacked a receiver to be able to interpret the signal, that too falls under theft laws,

No. It may be copyright infringement, but it is not theft. Again, nobody has had anything taken away from them.

Schleiss It's actually a little bit worse. The patent is issued when they have a chemical, so we were at c), not e). The date is a little bit fuzzy, since prior to 1995 (I think), the term of US patents was 17 years after the patent was issued, while now it is 20 years after the patent application (unless the patent is grandfathered in with the 17 years term, in which case the longer period applies).

In regards to the next superflu, we're apparently fairly well equipped. There's more to epidemics than just handling drugs, DNA sequencing has grown exponentially, and if it's an emergency, I think the FDA is less stringent.

Nova:

Regarding your comment:

"No. It may be copyright infringement, but it is not theft. Again, nobody has had anything taken away from them."

The actual crime that has been committed is criminal conversion, which is, appropriately enough, under the theft statutes.

Regarding your comment:

"Now you're just being completely irrational. I think we're done here."

One of the things I found amusing about my studies of philosophy is that there are diametrically opposed philosophies for which there is no possible way to reconcile the differences. One sign of such diametrically opposed philosophies is when one of the parties resorts to an ad hominem attack rather than reasoned argument. As you said, I think we are done here, though not because I am irrational.

The actual crime that has been committed is criminal conversion, which is, appropriately enough, under the theft statutes.

What, exactly, are you alleging was converted?

One of the things I found amusing about my studies of philosophy is that there are diametrically opposed philosophies for which there is no possible way to reconcile the differences.

Well, your philosophy seems to include notions that are antithetical to property rights, such as your concept of "data theft" and your peculiar notion that a positive-sum act can be immoral, when ordinarily one would regard only negative-sum acts, and nonconsensual zero-sum acts that are negative-scoring for at least one unwilling participant, as immoral.

(Example of a negative-sum act: I punch you in the nose. Example of a zero-sum act with a negative consequence for a nonconsenting individual: I pick your pocket and steal your lunch money. Examples of zero-sum acts without such consequences: I donate a dollar to charity; I accept a gift from a willing donor. Examples of positive sum acts: I work, I get paid, and my employer profits; I fileshare an mp3 or a paper you authored; I invent something useful or create a work of art.)

Nova:

Regarding criminal conversion, I have no answer to your question because I am not a legal specialist. The term is relatively new to me. My vague understanding is that criminal conversion is relates to exerting unauthorized control over the property of another, without depriving the other person of that property. It seems to be a catchall statute for people who have attempted to avoid charges of theft because they did not "deprive" someone of their property.

You might find it interesting that certain copyright violations, particularly recording a live performance or duplication of music, are defined under Indiana law as theft (not criminal conversion). See Indiana statutes IC 35-43-4, particular the definitions of section.

Actually, it seems that the definition of theft according to Indiana statutes requires deprivation.

Also, it doesn't look Swartz was charged with any conversation, mostly just fraud.

Anonymous:

Regarding "deprivation": The "deprivation" required is potential loss of value or profit. I believe it is unlikely that Nova would consider potential loss of value to be deprivation.

Under IC 35-43-4-3, criminal conversion, proof of deprivation is not required. All that is required is that a person exert control over another person's property without permission. The property controlled is defined in the definitions, IC 35-43-4-1, which defines one type of property as music recordings and recordings of live performances.

Regarding criminal conversion, I have no answer to your question because I am not a legal specialist. The term is relatively new to me. My vague understanding is that criminal conversion is relates to exerting unauthorized control over the property of another, without depriving the other person of that property.

The only things that might apply to in this case are the JSTOR server computers, but if the CFAA won't fly then neither would criminal conversion. If he didn't "exceed authorized access" per the CFAA then he didn't "exert unauthorized control".

You might find it interesting that certain copyright violations, particularly recording a live performance or duplication of music, are defined under Indiana law as theft (not criminal conversion).

There are also states that still have laws on the books forbidding oral sex between consenting adults. Did you have a point to make?

Nova:

Regarding making a point:

Most states that had laws regarding oral and other types have sex have either removed them from the books are almost invariably do not enforce them. On the other hand, the laws regarding theft of music and concerts is relatively new in Indiana and has been enforced.

the laws regarding theft of music and concerts is relatively new in Indiana and has been enforced.

Due to the powerful lobbying of recording industry interests and against the best interests of the public.

Nova:

Regarding your comments: Probably. However, that was not the point. The point was and remains that the copyright violations are defined as theft. The only "deprivation" listed is loss of value. However, the law also defines one form of theft as exerting unauthorized control over the property of another, not deprivation. Since the broader definition predates the addition of the copyright violations, it affirms my earlier comment that theft does not require deprivation.

but criminal conversion is specifically not theft.

Your claim that "certain copyright violations, particularly recording a live performance or duplication of music, are defined under Indiana law as theft (not criminal conversion)" is clearly untrue. It is NOT defined as theft, and it IS defined as criminal conversion.

Anonymous:

Have you read the Indiana statutes? Obviously not. Under the definition portion, it clearly states:

Sec. 1. (a) As used in this chapter, "exert control over property" means to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property. (b) Under this chapter, a person's control over property of another person is "unauthorized" if it is exerted: (1) without the other person's consent; (2) in a manner or to an extent other than that to which the other person has consented; (3) by transferring or encumbering other property while failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of that other property; (4) by creating or confirming a false impression in the other person; (5) by failing to correct a false impression that the person knows is influencing the other person, if the person stands in a relationship of special trust to the other person; (6) by promising performance that the person knows will not be performed; (7) by expressing an intention to damage the property or impair the rights of any other person; or (8) by transferring or reproducing: (A) recorded sounds; or (B) a live performance

Notice the last paragraph, paragraph 8. The section on THEFT then says:

Theft; receiving stolen property Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft

In other words, if you meet any of the definitions in section 1, which includes transferring or reproducing recorded sounds or a live performance, then under section 2 you have committed theft.

Anonymous wrote:

46> Blogs: Against Monopoly

46> Nova:

46> Regarding your comments: Probably. However, that was not the
46> point.

Classic unsubstantiated and erroneous claim. Clearly that was precisely Nova's point.

46> The point was and remains that the copyright violations are
46> defined as theft.

Classic unsubstantiated and erroneous claim. The Supreme Court has even specifically denied that copyright infringement is a form of theft. Suffering from ignorance of the law, Anonymous?

46> The only "deprivation" listed is loss of value.

Define "value", Anonymous.

46> However, the law also defines one form of theft as exerting
46> unauthorized control over the property of another, not
46> deprivation.

The only property of JSTOR's over which unauthorized control arguably may have been exerted was their server farm, Anonymous, and that falls under the rubric of CFAA, not criminal conversion. Nova already pointed that out earlier in this thread, Anonymous. Suffering from reading comprehension problems, Anonymous?

46> Since the broader definition predates the addition of the
46> copyright violations, it affirms my earlier comment that
46> theft does not require deprivation.

Classic unsubstantiated and erroneous claim. Theft requires deprivation even if there are a few lawyers and even legislators out there that have the peculiar notion that it does not, Anonymous. Or do you hold the ridiculous belief that legislators are infallible, Anonymous?

Tholen:

All people, including legislators, are fallible. If people were not fallible, then the papers referenced by the another anonymous regarding Boldrin and Levine's book would not exist.

However, you have yet to acknowledge my point, which is that in the state of Indiana there are certain copyright violations defined under theft laws that require no deprivation of property, in spite of the insistence of several people here that theft cannot occur unless the victim is deprived of their property. While that statement may be a position of philosophy, from the viewpoint of at least the laws of the state of Indiana that statement would not be correct.

You missed the important part: "with intent to deprive the other person of any part of its value or use, commits theft"

intent to deprive is part of theft under Indiana law. Without intent to deprive, it is not theft, but conversion.

Last Anonymous:

Yes, "intent to deprive," OF VALUE. So, if you copy a work with the intent to distribute the work you lessen the value of the original under Indiana state law, which is theft. So under Indiana law there are situations when the person retains their original property and theft has occurred.

That's a rather contrived interpretation, and even if one accepts it, it carries proving a loss of value to the copyright (or intent to), with the criminal standard of "beyond a reasonable doubt." I'd think that even with legislatures being bought off, DAs would go for conversion charges, since the conviction process would be much more straightforward (and thus lead to a higher conviction rate, an important part of every DA's re-election campaign). However, if you can provide real instances of a conviction of theft, or even a indictment, that would bolster your interpretation.
Last Anonymous:

The statute is up there in black and white. It clearly states that theft is:

A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value

Under the definitions portion, "unauthorized control" is defined to include:

(8) by transferring or reproducing: (A) recorded sounds; or (B) a live performance

Now, what part of my interpretation is contrived?

Yes, a DA might well charge a person for criminal conversion, which is under the theft statutes. In Indiana criminal conversion is generally applied in situations where the value of the item is less than $250. Thus, shoplifting, even though it deprives the owner of the owner's property, is charged as criminal conversion if the value of the item(s) is less than $250. Fundamentally, criminal conversion in Indiana is treated as misdemeanor theft. So a person copying music would, as you noted likely be charged with criminal conversion unless the quantity of copying could be shown to exceed $250 in value.

The intent to deprive part is what is contrived. I'm not saying it wouldn't be criminal conversion under Indiana law

"Yes, a DA might well charge a person for criminal conversion, which is under the theft statutes. In Indiana criminal conversion is generally applied in situations where the value of the item is less than $250." So, bootlegs can't be in excess of $250? Also, it's under conversion statutes.

It's not going to be a good example, because no party benefits in the long run. If someone is tried for infringement as theft, the DA has a harder time, the legislature may end up being made foolish, and it could very well spark a backlash against criminal enforcement of copyright in general.

Last Anonymous:

You statement regarding backlash may be accurate. I am unable to figure out a way to see whether anyone has ever been charge for reproduction of music or a concert performance under either theft or conversion law in Indiana. I did run across an interesting document that indicates that there are other statements that treat abuse of intellectual property as a crime of theft or conversion.

I did also run into an appeals court case in the Ninth Circuit, where the question of whether copies of videotapes transported across state lines should be treated as "theft" or "copyright infringement." The court ultimately held that theft was an appropriate terminology, even though there was also copyright infringement. Last time I looked, the ninth court of appeals still exists and there does not seem to have been much of a backlash from this case, and others like it.

That may be because the ruling was overturned when brought to the Supreme Court as Dowling v. United States, where it was concluded that it wasn't covered under the statute for transportation of stolen property.

Perhaps the most relevant part to consider was this: Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

Anonymous wrote:

48> Blogs: Against Monopoly

48> Tholen:

48> All people, including legislators, are fallible.

Classic pontification.

48> If people were not fallible, then the papers referenced by the another
48> anonymous regarding Boldrin and Levine's book would not exist.

Because those papers' authors would, being infallible, not have written them, Anonymous.

48> However, you have yet to acknowledge my point,

What does your classic unsubstantiated and erroneous claim have to do with monopoly, Anonymous?

48> which is that in the state of Indiana there are certain copyright
48> violations defined under theft laws that require no deprivation of
48> property, in spite of the insistence of several people here that
48> theft cannot occur unless the victim is deprived of their property.

First of all, that point is irrelevant, since the alleged JSTOR hacking did not take place in Indiana, Anonymous. Secondly, it just goes to show that Indiana's legislators are not infallible, Anonymous. The Supreme Court disagrees with them, Anonymous, and as soon as a case under those laws is appealed that high it will probably overturn them, Anonymous.

48> While that statement may be a position of philosophy, from the
48> viewpoint of at least the laws of the state of Indiana that
48> statement would not be correct.

And from the viewpoint of a flat-earther a statement about the oblate spherical shape of this planet would not be correct, Anonymous.

49> Blogs: Against Monopoly

49> Last Anonymous:

49> Yes, "intent to deprive," OF VALUE. So, if you copy a work with
49> the intent to distribute the work you lessen the value of the
49> original

Classic unsubstantiated and erroneous claim. Doing so may lessen the price, which is determined by the intersection of the supply and demand curves, by increasing the supply, Anonymous, but it won't lessen the value, which is determined solely by the demand curve. Indeed, to the extent that network effects increase demand the more people already have copies, it actually increases the value, Anonymous. Microsoft has acknowledged this in indicating that it would prefer China to pirate Windows than to use Linux, Anonymous, because the former makes Windows more valuable. Music also tends to display such network effects, Anonymous: if a lot of people you know are listening to a particular artist, you tend to want to as well, Anonymous, driving up demand.

49> under Indiana state law, which is theft.

One state once passed a law declaring that the value of pi was 3, Anonymous.

49> So under Indiana law there are situations when the person
49> retains their original property and theft has occurred.

In the case of someone borrowing a car without permission, which depreciates when they add to its mileage, and then returning it, that may be the case, Anonymous, but it has nothing whatsoever to do with the alleged JSTOR hacking, or even with music filesharing, Anonymous.

50> Blogs: Against Monopoly

50> Last Anonymous:

50> The statute is up there in black and white. It clearly states that
50> theft is:

50> A person who knowingly or intentionally exerts unauthorized
50> control over property of another person, with intent to deprive
50> the other person of any part of its value

Filesharers, in general, are not conspiring to deprive anyone of any part of any value, Anonymous; they just wish to hear some music, or make it easier for other fans to hear it. The alleged JSTOR hacker was doing academic research, with no intent to deprive JSTOR of any value, Anonymous.

50> Under the definitions portion, "unauthorized control" is defined
50> to include:

50> (8) by transferring or reproducing: (A) recorded sounds; or (B)
50> a live performance

50> Now, what part of my interpretation is contrived?

The part where this has anything to do with the alleged JSTOR hack, Anonymous.

50> Yes, a DA might well charge a person for criminal conversion,
50> which is under the theft statutes.

Classic evasion. You have still not demonstrated any instance of one doing so for a filesharing or computer hacking case, Anonymous.

50> In Indiana criminal conversion is generally applied in situations
50> where the value of the item is less than $250. Thus, shoplifting,
50> even though it deprives the owner of the owner's property, is
50> charged as criminal conversion if the value of the item(s) is
50> less than $250. Fundamentally, criminal conversion in Indiana
50> is treated as misdemeanor theft.

Non sequitur. What you have demonstrated instead is that misdemeanor theft in Indiana is treated as criminal conversion, Anonymous.

50> So a person copying music would, as you noted likely be
50> charged with criminal conversion unless the quantity of
50> copying could be shown to exceed $250 in value.

Classic unsubstantiated and erroneous claim. First of all, you've furnished no evidence that Indiana prosecutors ever actually bring theft or conversion charges against file sharers of music, Anonymous, and furthermore, there's a likelihood that if one attempted to do so the attempt would be preempted by federal copyright law. Then, Anonymous, in the case of theft charges the problem becomes that the prosecutor would have to show that the value of the copyright itself was decreased by at least $250; that if the copyright holder decided to sell his copyright to another company, it would fetch that much less than if the filesharing had not taken place. It is highly unlikely that anything of the kind could be proven, Anonymous, because in all likelihood the value of the copyright would be unchanged, or even slightly increased if a formerly-obscure artist became popular due to filesharing of his music.

Anonymous writes:

52>Blogs: Against Monopoly

52> Last Anonymous:

52> You statement regarding backlash may be accurate. I am unable
52> to figure out a way to see whether anyone has ever been charge
52> for reproduction of music or a concert performance under either
52> theft or conversion law in Indiana.

Your confession of inability to support your earlier claim is noted, Anonymous.

52> I did run across an interesting document that indicates that there
52> are other statements that treat abuse of intellectual property as
52> a crime of theft or conversion.

How does one "abuse" information, Anonymous?

52> I did also run into an appeals court case in the Ninth Circuit,
52> where the question of whether copies of videotapes transported
52> across state lines should be treated as "theft" or "copyright
52> infringement." The court ultimately held that theft was an
52> appropriate terminology, even though there was also copyright
52> infringement.

And got overturned by the Supreme Court, Anonymous.

52> Last time I looked, the ninth court of appeals still exists and
52> there does not seem to have been much of a backlash from this
52> case, and others like it.

Unless you consider being overturned by the Supreme Court to be a backlash, Anonymous.

53> Blogs: Against Monopoly

53> That may be because the ruling was overturned when brought
53> to the Supreme Court as Dowling v. United States, where it
53> was concluded that it wasn't covered under the statute for
53> transportation of stolen property.

Classic pontification.

53> Perhaps the most relevant part to consider was this:
53> Infringement implicates a more complex set of property
53> interests than does run-of-the-mill theft, conversion, or
53> fraud.

Classic unsubstantiated and erroneous claim. Copyright infringement doesn't implicate any property interests at all, Anonymous, because intellectual "property" is not actually property, Anonymous. Indeed, monopoly privileges like copyrights and patents are inherently antithetical to genuine property rights, Anonymous.

According to this article, tholen is right and the rest of you are wrong:

http://www.techdirt.com/articles/20110721/11295315199/absurdity-comparing-copying-to-stealing.shtml

I see there has been a classic misdirection by at least two individuals here. The case involving the interstate transport of videotapes containing pirated material is not Dowling v. United States, but the United States v. Belmont. Belmont was convicted of theft and appeal to the Supreme Court of the United States, claiming that he should have been charged under copyright laws rather than theft laws. The Supreme Court disagreed and denied certiori, upholding the conviction under theft laws.

Here is the case citation:

UNITED STATES v. BELMONT 715 F.2d 459 (1983) United States Court of Appeals, Ninth Circuit. Argued and Submitted August 2, 1983.

Anonymous wrote:

54> Blogs: Against Monopoly

54> I see there has been a classic misdirection by at least two
54> individuals here.

What does your classic unsubstantiated and erroneous claim have to do with monopoly, Anonymous? You are only one individual here, not two, Anonymous.

54> The case involving the interstate transport of videotapes
54> containing pirated material is not Dowling v. United States,
54> but the United States v. Belmont.

Classic evasion of the point. It remains true that the Supreme Court found that copyright infringement was not theft, and transporting infringing materials across state lines was not transporting stolen goods across state lines, Anonymous.

54> Belmont was convicted of theft and appeal to the Supreme
54> Court of the United States, claiming that he should have
54> been charged under copyright laws rather than theft laws.
54> The Supreme Court disagreed and denied certiori,
54> upholding the conviction under theft laws.

The Supreme Court often declines to hear an appeal without it meaning it agrees with the lower court's decision, Anonymous, and the Supreme Court has on other occasions, as has been pointed out repeatedly here, found that copyright infringement is not theft.

54> Here is the case citation:

54> UNITED STATES v. BELMONT 715 F.2d 459 (1983) United
54> States Court of Appeals, Ninth Circuit. Argued and
54> Submitted August 2, 1983.

What does your case citation have to do with monopoly, Anonymous?

You weren't particularly clear on the specifics before, but the subject matter in both cases was the same. SCOTUS just happened to take one, but not the other. That SCOTUS didn't take Belmont doesn't mean they agree with the ruling, and the ruling in Dowling says that they clearly didn't.
Tholen:

When the Supreme Court denies certiori, it means there is an insufficient dispute with the constitution for the court to take the case. So, when the Supreme Court denied certiori in the Belmont case, where Belmont was charged with theft for copying broadcast signals and duplicating them, the Supreme Court was endorsing the charge of theft for what was copyright infringement.

With respect to your comment that the Supreme Court found that theft did not equate with copyright infringement, you did not evade the point, you lied. The full case may be found here:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/473/207.html

The court evaded the term "theft" by pointing out that its first criteria in applying federal laws is to apply the more severe law when two laws are applicable. Since penalities under intellectual property laws were more severe, the applicability of interstate theft law was inappropriate. The court did say that the applicability of the interstate theft law in this case was "not easy," but not once did the court ever say that the crime committed by Dowling was not theft.

In fact, three justices dissented, Justice Powell, the Chief Justice and Justice White, all three of whom stated clearly that the court erred by holding that Dowling's crime could not be covered by the interstate theft statute. The justices clearly state that copyright infringement could in fact be equated with "theft, conversion, or fraud," and pointed out that there virtually every court has already held that the two are equivalent, as noted below.

The only issue here is whether the unauthorized use of a copyright may be "equate[d] with theft, conversion, or fraud" for purposes of 2314. Ante, at 217. Virtually every court that has considered the question has concluded that 2314 is broad [473 U.S. 207, 230] enough to cover activities such as Dowling's. See, e. g., United States v. Drum, 733 F.2d 1503, 1505-1506 (CA11), cert. denied, 469 U.S. 1061 (1984); United States v. Whetzel, 191 U.S. App. D.C. 184, 187, n. 10, 589 F.2d 707, 710, n. 10 (1978); United States v. Berkwitt, 619 F.2d 649, 656-658 (CA7 1980); United States v. Sam Goody, Inc., 506 F. Supp. 380, 385-391 (EDNY 1981). The only case cited by the Court that lends support to its holding is United States v. Smith, 686 F.2d 234 (CA5 1982). 1 The Court's decision today is thus contrary to the clear weight of authority.

As for you discussion of how many anonymous people are here, including yourself, what does that have to do with monopoly? Stick to the point and stop trying to misdirect the conversation.

Last Anonymous:

In the ruling with Dowling, the Supreme Court fell all over itself in avoiding saying that copyright infringement did not equate with theft. Instead, they kept saying that this was a difficult subject and the two did not "easily equate." At the time the Court denied certiori in the Belmont case, it is apparent they did not have a problem with applying the term theft to copyright infringement. Apparently, three of the justices still believed equating the terms were appropriate in the case of Dowling. Depending on the future nature of the court, the two could well be equated again.

Last Anonymous:

In the ruling with Dowling, the Supreme Court fell all over itself in avoiding saying that copyright infringement did not equate with theft. Instead, they kept saying that this was a difficult subject and the two did not "easily equate." At the time the Court denied certiori in the Belmont case, it is apparent they did not have a problem with applying the term theft to copyright infringement. Apparently, three of the justices still believed equating the terms were appropriate in the case of Dowling. Depending on the future nature of the court, the two could well be equated again.

Anonymous wrote:

56> Blogs: Against Monopoly

56> Tholen:

56> When the Supreme Court denies certiori, it means there is an
56> insufficient dispute with the constitution for the court to take
56> the case. So, when the Supreme Court denied certiori in the
56> Belmont case, where Belmont was charged with theft for
56> copying broadcast signals and duplicating them, the Supreme
56> Court was endorsing the charge of theft for what was
56> copyright infringement.

Classic unsubstantiated and erroneous claim.

56> With respect to your comment that the Supreme Court found
56> that theft did not equate with copyright infringement, you did
56> not evade the point, you lied.

Classic unsubstantiated and erroneous claim.

56> The full case may be found here:

56> http://caselaw.lp.findlaw.com/scripts/getcase.pl?
56> navby=search&court=US&case=/us/473/207.html

Classic pontification.

56> The court evaded the term "theft" by pointing out that its first
56> criteria in applying federal laws is to apply the more severe
56> law when two laws are applicable. Since penalities under
56> intellectual property laws were more severe, the applicability of
56> interstate theft law was inappropriate. The court did say that
56> the applicability of the interstate theft law in this case was
56> "not easy," but not once did the court ever say that the crime
56> committed by Dowling was not theft.

Classic unsubstantiated and erroneous claim. On numerous occasions the Supreme Court has clearly indicated that copyright infringement is not theft. See http://en.wikipedia.org/wiki/Copyright_infringement#.22Theft.22 for more information.

56> In fact, three justices dissented, Justice Powell, the Chief Justice
56> and Justice White, all three of whom stated clearly that the court
56> erred by holding that Dowling's crime could not be covered by
56> the interstate theft statute.

Three flat-Earthers, or perhaps in corporate hip pockets, Anonymous.

56> The justices clearly state that copyright infringement could in
56> fact be equated with "theft, conversion, or fraud," and pointed
56> out that there virtually every court has already held that the
56> two are equivalent, as noted below.

People in greater positions of authority have made even more outlandish claims, Anonymous, without it magically making those claims true. The Popes have uttered some well-known howlers, and continue to think that discouraging poor, population-dense regions from adopting birth control is somehow a good policy, Anonymous. Some fool calling himself a President of the United States got our country into the Vietnam War and a similar fool started the 2003 Iraq war, Anonymous.

And what does any of this have to do with the alleged JSTOR hack, Anonymous?

56> The only issue here is whether the unauthorized use of a
56> copyright may be "equate[d] with theft, conversion, or
56> fraud" for purposes of 2314.

Unauthorized use of a copyright would mean something like what Righthaven is doing, suing people for infringing someone else's copyrights despite having no standing to sue, Anonymous. Don't forget the distinction between copies of the work, which are ordinary property, and the copyright itself, Anonymous. And the latter isn't even real property, Anonymous. Pretending it is is a fiction with no basis in reason, Anonymous.

56> Ante, at 217. Virtually every court that has considered the
56> question has concluded that 2314 is broad [473 U.S. 207, 230]
56> enough to cover activities such as Dowling's. See, e. g., United
56> States v. Drum, 733 F.2d 1503, 1505-1506 (CA11), cert.
56> denied, 469 U.S. 1061 (1984); United States v. Whetzel, 191
56> U.S. App. D.C. 184, 187, n. 10, 589 F.2d 707, 710, n. 10 (1978);
56> United States v. Berkwitt, 619 F.2d 649, 656-658 (CA7 1980); United
56> States v. Sam Goody, Inc., 506 F. Supp. 380, 385-391 (EDNY
56> 1981). The only case cited by the Court that lends support
56> to its holding is United States v. Smith, 686 F.2d 234 (CA5 1982).
56> 1 The Court's decision today is thus contrary to the clear weight
56> of authority.

What does any of that have to do with the alleged JSTOR hack, Anonymous?

56> As for you discussion of how many anonymous people are here,
56> including yourself,

What does your classic erroneous presupposition have to do with monopoly, Anonymous?

56> what does that have to do with monopoly?

How ironic.

56> Stick to the point and stop trying to misdirect the conversation.

How ironic, coming from someone who keeps trying to misdirect the conversation from the matter of the JSTOR hack to the transportation of allegedly copyright infringing videotapes across state lines in a truck, Anonymous.

57> Blogs: Against Monopoly

57> Last Anonymous:

57> In the ruling with Dowling, the Supreme Court fell all over
57> itself in avoiding saying that copyright infringement did not
57> equate with theft.

Classic unsubstantiated and erroneous claim.

57> Instead, they kept saying that this was a difficult subject and the
57> two did not "easily equate."

That's legal speak for "these here are apples, and those there are oranges", Anonymous -- in other words, copyright infringement and theft are two different things.

57> At the time the Court denied certiori in the Belmont case, it is
57> apparent they did not have a problem with applying the term
57> theft to copyright infringement.

Classic unsubstantiated and erroneous claim.

57> Apparently, three of the justices still believed equating the
57> terms were appropriate in the case of Dowling. Depending on the
57> future nature of the court, the two could well be equated again.

Depending on the future nature of the court, Prohibition or segregation laws could well be instated again, Anonymous, and Jews rounded up into internment camps. Anything can happen if the wrong people get into power, Anonymous.

58> Blogs: Against Monopoly

58> Last Anonymous:

58> In the ruling with Dowling, the Supreme Court fell all over
58> itself in avoiding saying that copyright infringement did not
58> equate with theft.

Classic unsubstantiated and erroneous claim.

58> Instead, they kept saying that this was a difficult subject and the
58> two did not "easily equate."

That's legal speak for "these here are apples, and those there are oranges", Anonymous -- in other words, copyright infringement and theft are two different things.

58> At the time the Court denied certiori in the Belmont case, it is
58> apparent they did not have a problem with applying the term
58> theft to copyright infringement.

Classic unsubstantiated and erroneous claim.

58> Apparently, three of the justices still believed equating the
58> terms were appropriate in the case of Dowling. Depending on the
58> future nature of the court, the two could well be equated again.

Depending on the future nature of the court, Prohibition or segregation laws could well be instated again, Anonymous, and Jews rounded up into internment camps. Anything can happen if the wrong people get into power, Anonymous.

C'mon, Anon. You are just grasping at straws at this point. There's no good reason to equate copyright infringement and theft. The economics behind the two acts are drastically different, and if copyright infringement is actually just as bad, it'll easily stand on it's own. The only reason I can see to equate the two is because you lack a solid argument for infringement, and instead decide to fall back on conflating it with an argument that has a much stronger position.

Your claim about three justices is not particularly compelling, given that SCOTUS has been just as even more divided in cases that would be deemed 'no-brainers.'

Last Anonymous:

Sadly, you are missing the point. I do not equate copyright with theft. My point was that states laws have done so. Then someone argued that a DA would never prosecute such a case. I then rebutted that argument with not one, but five cases, plus the holding of SCOTUS where three judges said it was theft and the other justices refused to say it was not. I suspect that other cases exist and with access to a legal database they could be found.

I would say that given my intent, I am not grasping at straws but have proven:

(1) There are laws that equate some acts of copyright infringement as theft. Cites were provided. (2) There are prosecuting attorneys that have taken such cases. Again, cites were provided. (3) There has been essentially no backlash, as claimed would happen. In the ONE case where the Supreme Court overturned the Ninth Circuit, that is not a backlash, but business as usual given that the Ninth Circuit is overturned more than any other circuit. (4) There are at least five cases where the court has held that copyright can equate to theft. The Supreme Court has never stated that the two are not equivalent. Once again, cites were provided.

Last Anonymous:

On the other hand, Tholen is grasping at straws because he failed to provide any evidence to counter the evidence I provided. The best he could do is mumble something about erroneous argument and how does that have to do with JSTOR. Those are not arguments but distractions. Only a person realizing that he has failed in rebutting the arguments of another would resort to such desperate measures.

You have not provided a cite of (1). You've claimed that Indiana has such laws, but have not substantiated that. You have provided evidence that under certain circumstances, copyright infringement is conversion. (2)There are some prosecutors that have tried this, but my claim was specifically about District Attorneys, which is generally a state level elected position, while federal prosecutors are appointed. (3)I said it would be likely to cause backlash, but there wasn't a particularly long time before the SCOTUS overturned Dowling and the party was over, negating the need for any backlash. Furthermore, I was speaking in the context of the Indiana state doing so, as it's easier to hold state governments accountable. Your 'business as usual' statement doesn't particularly support your statement either, as if the Ninth Circuit is the most frequently overturned, then it is going to be the least reliable. For (4), there were cases where someone was prosecuted for theft, but SCOTUS determined that copyright infringement was not theft, and did say that they weren't equivalent. The charge was transporting stolen good over state lines. The value of the goods was over $5000, they were transported over state lines, so the only criteria there was any debate over was whether or the goods were stolen, which SCOTUS determined they were not.

Also, you haven't addressed my concern that Swartz was NOT charged with 'data theft.' The closest charge was "unlawfully obtaining information from a protected computer."

Last Anonymous:

Indiana's statutes are quite clear. I provide them below, again. Section 1 provides the definitions. Under section 1(b), the law says that "a person's control over property of another persion is "unauthorized" if it is exerted: (8) by transferring or reproducing: (A) recorded sounds; or (B) a live performance. As I am sure you will agree, 1(b)(8) is a copyright violation. Section 2 then says that that occurs when "A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft." Therefore, if you reproduce recorded sounds or a live performance, and the value of the reproductions is more than $250, then under Indiana state law you have committed theft.

Sec. 1.

(a) As used in this chapter, "exert control over property" means to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property.

(b) Under this chapter, a person's control over property of another person is "unauthorized" if it is exerted:

(1) without the other person's consent; (2) in a manner or to an extent other than that to which the other person has consented; (3) by transferring or encumbering other property while failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of that other property; (4) by creating or confirming a false impression in the other person; (5) by failing to correct a false impression that the person knows is influencing the other person, if the person stands in a relationship of special trust to the other person; (6) by promising performance that the person knows will not be performed; (7) by expressing an intention to damage the property or impair the rights of any other person; or (8) by transferring or reproducing: (A) recorded sounds; or (B) a live performance

Notice the last paragraph, paragraph 8. The section on THEFT then says:

Theft; receiving stolen property Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft

Last Anonymous:

You stated that:

(4), there were cases where someone was prosecuted for theft, but SCOTUS determined that copyright infringement was not theft, and did say that they weren't equivalent.

Using the language of the case, prove this point. I read the case carefully, and not once did I see where SCOTUS claimed that copyright infringement could not be charged as theft.

I also see that you now acknowledge that people have been prosecuted, and as you probably know, convicted for theft when there was a copyright violation. Thank you for acknowledging that.

I also point out to you, again, that the minority opinion said that the law for theft still applies, and the opinion for the majority did not specifically preclude the possibility. In other words, this issues remains open for future potential litigation.

For Indiana law, as I've said over and over again, there is no 'intent to deprive' in copyright infringement. You just don't seem to be able to understand that.

As for citing the case: "The phonorecords in question were not 'stolen, converted or taken by fraud' for purposes of 2314."

"I also see that you now acknowledge that people have been prosecuted, and as you probably know, convicted for theft when there was a copyright violation. Thank you for acknowledging that." I acknowledge that, but it is legally meaningless because the ruling was overturned by a higher court.. The Ninth Circuit ruled in the same era against Betamax (apparently they were doing a horrible job in copyright cases at the time), but this was overruled by the Supreme Court, and the Supreme Court ruling is what we cite. If you cite the overruled Ninth Circuit ruling for Betamax, people will point at you and laugh.

Again, there is no good reason to feel compelled to equate the two acts, or to pretend that laws actually do equate them (and even if they did, to pretend that such laws are just). The economic arguments behind them are completely different.

Also, you have STILL not acknowledged that Swartz was NOT charged with data theft, but rather "unlawfully obtaining information from a protected computer."

Last Anonymous:

You stated that:

(2)There are some prosecutors that have tried this, but my claim was specifically about District Attorneys, which is generally a state level elected position, while federal prosecutors are appointed.

While several states have laws on the books the specifically relate to the theft of copyrighted materials, I have been unable to find a case where a district attorney had actually charged someone under these laws. That does not mean the laws have never been used, but that there are no free databases that permit searching for charges under those laws. So, as you noted, people have been charged and convicted many times for making copies of copyrighted material, but only in federal court.

Last Anonymous:

You state that:

"I acknowledge that, but it is legally meaningless because the ruling was overturned by a higher court.. The Ninth Circuit ruled in the same era against Betamax (apparently they were doing a horrible job in copyright cases at the time), but this was overruled by the Supreme Court, and the Supreme Court ruling is what we cite."

I presume that you are talking about the Dowling case. What about all the other cases where people were charged with theft and the Supreme court did not overturn? You seemed to have overlooked those. I will list a few of them again for your benefit (there have been others, but this list should be representative). I did not list the

United States v. Drum, 733 F.2d 1503, 1505-1506 (CA11), cert. denied, 469 U.S. 1061 (1984)

United States v. Whetzel, 191 U.S. App. D.C. 184, 187, n. 10, 589 F.2d 707, 710, n. 10 (1978)

United States v. Berkwitt, 619 F.2d 649, 656-658 (CA7 1980)

United States v. Sam Goody, Inc., 506 F. Supp. 380, 385-391 (EDNY 56> 1981)

Of course, there is also United States v. Belmont, where Belmont was charged with theft and certiori was denied.

I do not know if any of these cases is the "Betamax" case.

Last Anonymous:

You stated that:

"Also, you have STILL not acknowledged that Swartz was NOT charged with data theft, but rather "unlawfully obtaining information from a protected computer."

Umm, I have never talked about Swartz at all. Not once. My involvement in the discussion began when people claimed it was impossible to charge someone who has committed copyright infringement with theft. Clearly there is abundant evidence that it has happened.

Last Anonymous:

You stated that:

"(3)I said it would be likely to cause backlash, but there wasn't a particularly long time before the SCOTUS overturned Dowling and the party was over, negating the need for any backlash. Furthermore, I was speaking in the context of the Indiana state doing so, as it's easier to hold state governments accountable. Your 'business as usual' statement doesn't particularly support your statement either, as if the Ninth Circuit is the most frequently overturned, then it is going to be the least reliable."

And yet, with the other cases I cited, there was never a backlash, including denial of certiori for two of the cases.

As for backlash in the state of Indiana, that remains to be seen. I would love to have full access to the databases for the states that have laws for theft of copyrighted material to see whether anyone has been charged under such laws.

With respect to the Ninth Circuit, there are some who say that the Ninth Circuit likes to be the circuit court to test the waters, so to speak. That does not mean that they are unreliable, only that they test the limits of how law should be interpreted.

"What about all the other cases where people were charged with theft and the Supreme court did not overturn?" SCOTUS doesn't need to overturn every single one of those cases. They've ruled on the subject once, and that covers the issue. Common law systems are based upon precedent, and SCOTUS ruling outrank other precedents.

If you don't know what the "Betamax" case signifies, you likely know nothing about modern US copyright case law. The "betamax" case was Sony v. Universal, on the subject of whether or not manufacturers of VCRs were liable for copyright infringement. The Ninth Circuit ruled that it was, while SCOTUS overturned that ruling (it also held that time-shifting was fair use). It was actually a closer case, a 5-4 ruling, and allegedly, Stevens had to convince four of his fellow Justices in that case. While Sony v. Universal was a closer case than Dowling, in retrospect, it would be ridiculous to hold to the contrary. If you were to cite the 4 dissenting justices and the ninth circuit as evidence that selling VCRs is contributory copyright, you would be laughed at.

Last Anonymous:

Given that SCOTUS did not rule definitively and put sufficient language into their decision that leaves open the question of whether there are situations where copyright infringement could be considered theft, I would say the issue remains open.

I know the case to which you refer. I just did not call it the "Betamax" case. That case was silly and the court ruled correctly. There was plenty of precedence showing the situation in the "Betamax" case should have been considered fair use, as it should be. There are also huge differences between Dowling and the "Betamax" case. In Dowling, the court refused to say that copyright infringement could not be considered stealing. In the "Betamax" case, the court definitely closed that door absent a new law.

The court ruled that infringements was not theft, relative to §2314, which all of the cases you cited used. That's the only federal law on theft or dealing with stolen goods I'm aware of that might conceivably apply to copyright infringement, except perhaps §668, theft of major artwork. So, unless someone else tries to prosecute someone who photographs paintings in museums under §668, the interpretation of 'theft' according to federal statutes is a closed door absent new statutes. Such new statutes would presumably have to define 'theft' or 'stolen' in a different manner, as those terms in the context of §668 and §2314 are not explicitly defined.

"I know the case to which you refer. I just did not call it the "Betamax" case. That case was silly and the court ruled correctly. There was plenty of precedence showing the situation in the "Betamax" case should have been considered fair use, as it should be." And yet, The Ninth Circuit and 4 Supreme Court judges decided against the common sense Stevens displayed. For SCOTUS, there was actually more support for holding Sony accountable for contributory infringement than there was for Dowling being prosecuted under §2314. You keep insisting that the cases that the majority in Dowling ultimately overruled matter, but you can see clearly that in the case of Sony v. Universal, they don't.

I must ask you why you are so eager to pretend that theft and infringement are under at least some circumstances the same?

Last Anonymous:

Please show me where in the decision they said that §2314 could never be applied to cover taking of intellectual property?

I merely pointed out that laws existed that equated theft with certain intellectual property violations. The next thing I see is people saying no way, even though there are such laws and people have been prosecuted under them. That does not mean that I agree with the laws, just that they exist and they have been used.

Now, if we want to go foreign, things get even more interesting. Certain intellectual property violations will get you prison time and potentially death in China. Some countries in Europe also treat certain intellectual property violations as serious crimes.

"Please show me where in the decision they said that §2314 could never be applied to cover taking of intellectual property? " How about this: "The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods." There can be no physical taking in copyright infringement alone. Now, if you steal a box of CDs, you might argue that you were 'taking intellectual property', and that could be covered, but it is not purely copyright infringement.

"The next thing I see is people saying no way, even though there are such laws and people have been prosecuted under them." The interpretation of the law that said people have been prosecuted under has been overturned. A big hint for you might be that the cases you cited are all prior to 1985, and are thus before SCOTUS ruled on Dowling.

"Now, if we want to go foreign, things get even more interesting. Certain intellectual property violations will get you prison time and potentially death in China. Some countries in Europe also treat certain intellectual property violations as serious crimes. " The severity of prosecution is not relevant to whether or not two acts are equivalent. Even if copyright infringement was treated more harshly than theft in the same jurisdiction, it wouldn't make infringement theft.

Last Anonymous:

I read the discussion to which you refer. That same opinion also said:

"It follows that interference with copyright does not easily equate with theft, conversion, or fraud."

That does not mean it cannot, or could not, only that it is not, in that court's opinion easily done. The court later says that Dowling's conduct only awkwardly fits the language of § 2314, so the court was reluctant to include Dowling's conduct within the scope of § 2314.

Is there any corroboration of my thoughts? In a government document titled "Prosectuing Intellectual Property Crimes," there is a portion discussing the effect of the Dowling case. The guidance provided is:

"Therefore, prosecutors should generally reserve charging § 2314 for theft of physical property and avoid using it for theft of intellectual property."

Note that it does not provide an absolute prohibition on using § 2314, only advising against it. It seems that the government also sees that there could be § 2314 applications to intellectual property in some circumstance that has yet to be revealed.

I do not have time to respond to your comment regarding China and Europe and intellectual property law crimes. I know that Europe has some pretty strong data theft laws and China has some very severe criminal laws relating to intellectual property, but I am unsure of whether they use the term theft.

Now, your argument is pretty much that there MIGHT be situations under which copyright infringement constitutes theft, although you apparently have no idea what said situation would entail. You are trying to treat a lack of absolute denial as evidence. You "pointed out that laws existed that equated theft with certain intellectual property violations." That is a positive claim, which requires positive proof, something you have not provided.
There are laws that equate some acts of copyright infringement as theft. Cites were provided.

There have been laws that equate pi with 3: http://www.stupidlaws.com/the-value-of-pi-is-4-and-not-3/

This actually passed in a state's House of Representatives.

In the SAME state as the "copying sound recordings is theft" law, at that.

Anonymous wrote:

59> Blogs: Against Monopoly

59> Last Anonymous:

59> On the other hand, Tholen is grasping at straws

Classic unsubstantiated and erroneous claim.

59> because he failed to provide any evidence to counter the
59> evidence I provided.

Classic unsubstantiated and erroneous claim.

59> The best he could do is mumble something about
59> erroneous argument and how does that have to do with
59> JSTOR.

Classic unsubstantiated and erroneous claim.

59> Those are not arguments but distractions.

Classic unsubstantiated and erroneous claim. Rather ironic, too, since all your blather about copyrighted sound recordings in Indiana are not arguments but distractions since the topic is the alleged "data theft" in Massachusetts of textual works from JSTOR, some of which are in the public domain and none of which JSTOR itself holds the copyrights to.

59> Only a person realizing that he has failed in rebutting
59> the arguments of another would resort to such
59> desperate measures.

Classic erroneous presupposition.

Nova:

It passed the House of Representatives back in 1897 but failed to make it through the Senate. All states have dumb laws.

Wisconsin also has a law nearly identical to Indiana's under the theft section of their laws. However, someone has been charged under those laws and that person will go to trial in September.

It passed the House of Representatives back in 1897 but failed to make it through the Senate. All states have dumb laws.

Indiana seems to have more than its fair share.

Nova:

You stated: "Indiana seems to have more than its fair share."

What is your basis for that comment?

What the fuck is going on? The front page of the site no longer displays properly, though bookmarked articles work and then I can get at the recent comments.

Put it back to normal immediately!

Chinese hacker attack.
???

And what part of "put it back to normal immediately" is not being understood?


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