What is the difference between theft and infringement

There is one very important difference. When you copy a file, you do not deprive the owner of their copy. When you take a physical item from someone, that someone no longer has that item in their possession. Theft is universally considered to be wrong because you are taking something away from someone else. Copying a file is fundamentally different.

Once the original copy is created, manufacturing costs do not change whether the file is never shared with another or whether every person on earth has 20 copies of it. In this important way, Joan, there is a difference between theft and file sharing.

For this reason, theft is widely considered to be wrong thou shalt not steal , but the act of file sharing is only wrong insofar as it is unauthorized or illegal. Distinguishing between fair use and infringement is often a difficult legal question, especially in our rapidly changing digital landscape. Joan is right that artists need a way to recoup the costs of produce their art.

That is what copyright was originally intended for, to provide an incentive through creating artificial monopolies for these artists, insofar as it increased the promotion of art for the public. But Joan is wrong that these costs need to be recouped through sales of songs. She is stuck with pre-digital economic thinking.

Traditionally, economics have been about scarcity. You have scarce resources CDs , there is a demand for them music fans so you supply them with the product for a fee. In the digital world, we are dealing with abundance, not scarcity. Rather, you can leverage the abundant goods to provide extra value to the scarce goods. Through file sharing, artists grow their fan base as more people can listen to their music.

There are ways to recover the costs of manufacturing without making the ridiculous assertion that there is actually no difference between theft and file sharing. In fact, that seems to be the only way to go as we enter further and further into the digital age. Rather, the public will embrace these sorts of proposals because of a genuine desire to compensate artists while accessing music in the way that they want. Since the Songwriters Association of Canada SAC proposed to legalize file sharing, many Canadian groups have responded, both positively and negatively.

Thus, this intent to infringe element distinguishes criminal from civil infringement. I mentioned above that this can be broken down into three elements: 1 unlawful taking or control, 2 of movable property of another, and 3 with intent to deprive.

Section c 2 provides for increased damages awards when civil infringement is done willfully, that is, when the defendant intends to infringe. The first element, unlawful taking or control, is straightforward.

Copyright infringement involves both an unlawful taking and unlawful control. Rather, the thing taken can be intangible. With copyright infringement, the infringer takes the intangible rights, benefits, and interests that go with copyright ownership, including the right to exclude the infringer from copying. But as noted above, the modern definition of property, especially in the context of theft statutes, is extremely expansive.

Multi-Family Dev. Crestdale Associates, Ltd. For a more rigorous definition of property, the Ninth Circuit has formulated the following three-part test:. Kalitta Flying Service, Inc. Copyright easily meets this definition of property. A copyright is capable of precise definition as Section delineates the specific exclusive rights that a copyright owner may do or authorize. Similarly, a copyright is capable of exclusive possession or control since the Copyright Act provides that a copyright owner has certain exclusive controls over his copyrighted work.

As demonstrated in the examples above concerning the theft of intangibles, this element is not as simple as intentionally depriving the victim of his tangible property. Instead, the issue is whether the thief has intended to deprive the victim of any of the rights, benefits, or interests that the victim has an exclusive claim to.

When someone intentionally infringes, whether that infringement is civil or criminal, the infringer has purposefully deprived the victim of something—the intangible prerogatives appurtenant to the exclusive ownership of his property.

Thus, not only is all criminal infringement the same thing as criminal theft since there is the specific intent to infringe, but all willful civil infringement is criminal theft as well since there is also that same specific intent. Intentional infringement, whether the civil or the criminal variety, does in fact fulfill the traditional elements of theft.

In many ways, copyright law has been ahead of its time. Long before the modern notion that theft can be applied to intangibles came into fashion, copyright law had recognized that interference with the rights, benefits, and interests in an intangible was a wrong. Follow me on Twitter: devlinhartline. Thanks, James! I think some people just hear what they want to hear, and they are only open to views that jive with their preconceived notions.

Thanks again for reading! Fur, furis is word I remember from Latin class for thief. Plagiarius, plagiarii is another.

Plagiarist comes from that one. Heus tu insidiator ac alieni laboris et ingenii surreptor ne manu temerarias his nostris operibus incias, cave: Scias enim a gloriosissimo Romanorum impera-tore. Maximiliano nobis concessum esse: ne quis suppositiciis formis has imagines imprimere seu impressas per imperii limites vendere audeatque si per contemptum seu avarice crimen secus feceris post bonorum confiscationem tibi maximum periculum subeundum esse certissime scias.

Anglo- Canadian courts of the highest level have used the term theft in relation to copyright infringement, even though under some laws, like the Canadian Criminal Code, copyright infringement is not technically theft. I posted a blog on this with references to some of the leading cases in the Commonwealth.

This is hilarious. Naturally, Mr. He ignores the nearest digital copyright law book, available digitally, and yet his big mouth ignores it because stealing is digitally defined by computer science and law.

What is Theft? For example, in my state of Louisiana, theft is defined broadly as follows: Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. Florida defines theft in similarly broad terms: A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: a Deprive the other person of a right to the property or a benefit from the property.

In , the Supreme Court of Iowa explained: [P]roperty. Examples of Theft of Intangibles In Dreiman v. The Supreme Court of Wyoming held that the defendant had deprived the victim of something, though that thing was intangible: Copying those keys, therefore, was taking something from her and depriving her of her right to have exclusive access to her trailer house and automobile. Dowling and Copyright Preemption The darling of the copyright opponents is Dowling , and no discussion of infringement-as-theft would be complete without discussing this Supreme Court opinion from For a more rigorous definition of property, the Ninth Circuit has formulated the following three-part test: [T]hree criteria must be met before the law will recognize a property right: First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity.

Special thanks to Terry Hart for his valuable feedback in drafting this post. Excellent synopsis, Devlin. Devlin Hartline September 3, at pm. David September 3, at pm. Devlin Hartline September 6, at am. Devlin Hartline November 22, at pm. Barry Sookman September 3, at pm. Great Post. Metro-Goldwyn-Mayer Studios Inc. See , e. State v. People ex rel. Liddick v. Dreiman v. People v. See Dowling v. United States v.

Crow v. See 17 U. Before we go any further, we need to establish an essential aspect: IP cannot be the subject of theft in any literal or legal sense.

The term "theft" concerning IP is often incorrectly used by the general public and media. Since IP is a negative right that grants monopoly control over original creations, it is incorporeal and cannot be seen or touched. At the same time, IP infringement can, in some instances, be accompanied by the theft of actual physical property or in conjunction with other civil wrongdoings and crimes. This simultaneous overlapping of several distinct types of unlawful conduct can engender incorrect assumptions among many that IP can be "stolen.

In that case, we are talking about an act of theft or robbery, if taken by force that affects an iteration of the victim's IP, but not the IP itself.

Similarly, when digital files containing product blueprints or technical drawings are accessed without authorization to "steal" the subject matter, various cybercrime laws and other types of civil wrongdoing such as unlawful competition can occur in conjunction with IP infringement. Even so, "IP theft" has recently emerged in popular parlance due to factors including the issue's politicization vis-a-vis the U.

Nevertheless, "infringement" is the most accurate term for IP rights violations and should not be confused with "theft," no matter how prevalent it might be. Numerous misconceptions may result from the use of "IP theft" in the wrong context. Early in my career, I recall a matter in South Africa where an order for costs was obtained to "attach" a portfolio of patents and trademarks to found jurisdiction and as security for costs.

A local Sheriff of the Court tried to execute the order by visiting the defendant and expecting to collect the IP in question from the premises. Imagine someone knocking on the door and saying they are arriving to collect patents, trademarks and copyrights? Of course, this is not possible. IP rights can be attached by entering a caveat against the register of patents or trademarks, preventing their transfer to a third party until a specific condition has been met.

In the same way that an IP right cannot be loaded onto the back of a truck to execute a Court order to attach the IP, it is impossible to "steal" IP, which should be made more evident to business owners. After all, without a general understanding of IP, it will be nearly impossible to develop any strategy, even a basic one, to identify, protect and enforce the IP. Below, we have made a few comments as guidelines. If someone says "IP theft," it is essential to understand that they probably mean infringement of a trademark, patent, copyright or other IP rights.

This occurs in a variety of iterations:. As previously noted, literal theft does sometimes occur in conjunction with IP infringement. A hacker stealing a computer to access the copyrighted source code of a software development firm's flagship program would be a fitting example of multiple overlapping unlawful acts, as would an individual's physical theft of blueprints for a roughly sketched device or a prototype with pending patents.

The first step in proving that an IP right has been infringed is to confirm that the IP owner is, in fact, the owner of the IP right in question. Having documentary evidence available represents a significant part of the battle. Where an IP right is registered, this step often is straightforward.

Proving that an IP right has been validly registered is the beginning of setting out the evidence. Where IP is not registered, as is usually the case of copyrighted works, the evidence needs to be meticulously set out.