These Journalists Spent Two Years and $750,000 Covering One Story — Writes Peter Osnos of the Atlantic, “It costs a lot, but investigative reporting can save lives. And non-profits lead the way in producing high-quality, in-depth stories. So who’s going to pay for them?” Maybe they can sell t-shirts?

Breaking Up With ‘Breaking Bad’ Is Hard for Albuquerque — A highlight of the contributions that film and television production have on local economies. “During the show’s run, the production directly employed an average of 200 people, said Wayne Rauschenberger, chief operating officer at Albuquerque Studios, the 28-acre facility where much of the show was filmed. Beyond that, there were lumber yards, antique stores, limousine companies, hotels, caterers and others performing ancillary functions. Residents were hired as extras, and homeowners and businesses were paid for filming privileges.”

A Conversation with Dr. David Price Part 1 — David Newhoff chats with Price, author of the recent NetNames report Sizing the Piracy Universe. The result is an in-depth and engaging discussion. Continued in Part 2.

New York Times: “David Lowery Represents the Anger of Musicians In the Internet Age…” — “Because the tech industry still hasn’t innovated a way to shut up David Lowery.” Digital Music New’s intro to this New York Times article.

An interesting duo from the Trichordist, whose titles speak for themselves: Record Labels Invest $4.5 Billion Annually in Artists… Pirates, $0… Any Questions? and Grand Theft Auto V: How Profits Soar when Piracy is Managed.

Why Ad Blocking can Hurt Ad Blockers — Jonathan Bailey writes, “The end result though is that ad blocking doesn’t push the Internet toward a future free of advertising, rather, it pushes us toward a future of ads tougher to separate from the content and harder to remove. We’re likely nudging toward this future regardless of ad blocking, but ad blocking is certainly a factor and could become a much bigger one. The only way to ensure better business models and a better future for content is to support the content creators that you feel are finding the right chords.”

MPs attack Google’s ‘derisory’ efforts to stop music and film piracy — Despite Google’s “influence in the government’s inner, policy-making sanctum,” a UK gov’t committee has released a report that “accused the search engine of offering the thinnest of excuses to avoid taking action against widespread piracy.”

How Google Algorithm Changes Hit Torrent Site Traffic — Torrentfreak speaks with an admin of one of the largest torrent sites who notes that changes in Google’s search engine have a big impact on the traffic that is driven to infringing sites, confirming last week’s report from the MPAA.

Fox Television Stations, Inc. et al. v. Filmon X LLC, et al.:Another victory for content providers in the ongoing saga of internet re-transmission of broadcast TV — Scott Sholder of Cowan, DeBaets, Abrahams & Sheppard examines the decision from a DC district court earlier this month that continued the trend of courts outside the Second Circuit rejecting the “one antenna one user” contrivance that Aereo and FilmOn X have relied on.

As the world churns: The young and restless world of online video — TechPolicyDaily looks at the explosion in options in online video that we’ve seen in recent years. “Of course, any assertion that media consumers are not better off than ever is difficult to support. In my childhood, most of us got CBS (and perhaps a few dozen VHF and UHF channels) via one medium — broadcast. Depending on your geographic location, the signal was often fuzzy. And once a show aired — it was gone forever, or at least until summer reruns.”

The 13 Most Insidious, Pervasive Lies of the Modern Music Industry… — Everything from the Long Tail to touring and t-shirts.

Copyright 2.0 Show – Episode 300 – Not Quite Sparta — Last week I joined Jonathan Bailey, Patrick O’Keefe, and David Newhoff of Illusion of More for the 300th episode of Jonathan and Patrick’s Copyright 2.0 show. A freewheeling discussion of current copyright issues ensued.

Goold on Translations in Early Copyright Law — Interesting academic article that challenges the dominant historical account that early copyright law focused only on verbatim copying and did not extend the exclusive right to translations.

Hotfile is liable for the “staggering” amount of infringement it financially benefitted from, and it is not protected by the DMCA safe harbor for online service providers.

That is the conclusion of U.S. District Court Judge Kathleen Williams of the Southern District Court of Florida. Williams made the ruling August 28, but the decision had been under seal until this past Friday.

What makes this case notable is that it was brought by the five major motion picture studios (Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Columbia Pictures lndustries, Inc., and Warner Bros. Entertainment Inc.) against a fairly popular filelocker service (at least at the time the suit was filed). This appears to be the first time an infringement lawsuit from major players in the creative industries had been brought against a filelocker service specifically — previous efforts have aimed at P2P services and the like. Add to that the fact that the suit was filed in Florida, outside the 2nd and 9th Circuits where the bulk of copyright litigation occurs, and you have a situation where the court is interpreting many DMCA provisions on a blank slate.

Oh, and the decision also comes in at just under 100 pages.

I had previously discussed the issues in front of the court and both parties’ arguments. That was over a year ago, which is an unusually long time between hearing and order on a summary judgment motion. Part of that may have been the sheer complexity of the issues; part of that may have been the aggressive litigation posture taken by both sides. The court diplomatically refers to the many “robust pleadings” filed without leave of court and notes, certainly an understatement, that “the parties do not agree on much.”

Whatever the case may be, the issue boils down to a familiar one. Hotfile, an “off-shore technology company” provides online file storage. As is often the case, infringing works are among the files that were stored and shared by Hotfile users. The film studios argued that Hotfile should be held liable for such infringement because it contributes to, encourages, or benefits from such infringement.

As the court explains, Hotfile’s storage locker service allows registered users to upload any file they want from their computer to Hotfile’s servers to be stored. The service automatically generates a link where the file can be accessed. The files or links are not otherwise private; any member of the public can access them so long as they know the link. Hotfile operated an affiliate program which paid users when they directed others to Hotfile file locations, encouraging affiliates to catalog and broadcast Hotfile links. Hotfile also provided premium service, which gave users additional file space and faster download speeds for a monthly fee.

The court begins with a careful, comprehensive discussion of the facts (nearly 35 pages worth). As we’ll see in a moment, the question of whether Hotfile had adopted and reasonably implemented a repeat infringer policy will play a key role in determining whether the service is protected by the DMCA safe harbor, but I do want to highlight the court’s discussion regarding the policy that was in place — some of these numbers are staggering. The evidence reveals that when the studios had filed their complaint, Hotfile had received a total of 10 million takedown notices for infringing content, yet had only terminated 43 users – 33 of those as a result of a court order from prior litigation. At the same time, nearly 25 thousand Hotfile users had accumulated more than three infringement notices; 61 of those users had over 300 notices each. After the litigation began, Hotfile adopted a “revamped” repeat infringement policy, and the results were dramatic: 444 of its 500 highest paid affiliates were terminated for repeated infringement.

The DMCA safe harbor and the repeat infringer policy

Turning to the legal issues, the court begins with the DMCA safe harbor.1 As it notes, if Hotfile qualifies for the safe harbor, it is immunized from any liability for infringement. If it doesn’t, the court must then separately consider if Hotfile is liable. The court cites to the relevant legislative history of the DMCA to explain the law’s motivations in striking a balance between protecting creators’ rights and promoting the growth of online services.

The DMCA applies to online service providers, which Hotfile clearly is, and one of the safe harbors covers storage at the direction of the user, which the court says covers the activities at issue here.2

The DMCA safe harbor requires that a service provider

has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.3

The court here turned to the legislative history and other courts to flesh out the details of this provision, since the terms are not defined in the statute. It determined that a policy is “reasonably implemented” if it terminates users, under appropriate circumstances, who “repeatedly or blatantly infringe copyright.” At a minimum, this means that a policy “must be capable of tracking infringers.” Hotfile, said the court, “effectively did nothing to tie notices to repeat infringers.” This, in addition to the breathtaking scope of infringement that Hotfile essentially ignored took the service provider outside the protection of the DMCA safe harbor. The court concluded:

Here, the scale of activity – the notices of infringement and complaints from copyright holders — indicated to Hotfile that a substantial number of blatant repeat infringers made the system a conduit for infringing activity. Yet Hotfile did not act on receipt of DMCA notices and failed to devise any actual policy of dealing with those offenders, even if it publicly asserted otherwise. It has presented no evidence to show that the small number of removals that did occur were for any reason other than threatened Iitigation or by court order. lndeed, it has been unable to point to a single specific user who was terminated pursuant to its policy of manual review and exercise of ”discretion.” Documents and statistics indicate that there was never any realistic threat of termination to Hotfile’s users, whose activities were protected by the company’s indifference to infringement notices. In sum, regardless of official policies forbidding infringement, Hotfile did not significantly address the problem of repeat infringers. This renders Hotfile’s policy legally insufficient under Section 512(i).

While this, on its own, was enough to kick Hotfile out of the safe harbor, the court continued to provide observations and conclusions on two other DMCA requirements. The first provides that service providers designate an agent to receive infringement notices and register the agent with the U.S. Copyright Office. Hotfile, however, did not register an agent until December 2009 and had not identified the agent on its website as required by the statute until May 2010. Additionally, the court suggested that Hotfile was still not in compliance with this requirement since it “to date, has not provided a proper mailing address for its registered agent insofar as it lists only a post office box,” contrary to Copyright Office regulations.

The second requirement is that a service provider cannot have either actual or “red flag” knowledge of infringement. But, as the court notes, the DMCA places limitations on this requirement. Under the statute, a service provider does not initially have a duty to affirmatively monitor for infringement. Courts have also determined that the statute requires the knowledge be of specific infringing activity rather than a general awareness of infringement, a determination that the court here adopts. At the same time, willful blindness is a form of knowledge, and courts have struggled with incorporating willful blindness into the DMCA consistent with its limitations on the knowledge prong — the court here notes the complexity of this inquiry but doesn’t attempt to clarify it.

Instead, it concludes that whether Hotfile had the requisite knowledge that would disqualify it from the DMCA safe harbor was a question that would need to be decided by a jury. This conclusion is a little odd procedurally, as the court had already granted summary judgment denying Hotfile’s DMCA defense, meaning the question of knowledge would never reach a jury, but perhaps Judge Williams wrote it anticipating an appeal.

Secondary liability for copyright infringement

Next the court turns to the question of infringement itself. As it notes, the DMCA safe harbor and secondary liability are independent inquiries (even though there is plenty of overlap between some of the factors and the evidence that is relevant to each). And while it has been a challenge for courts to apply common law secondary liability principles to new technologies, they still play an important role since copyright protections would be rendered meaningless if creators were limited to going after each individual infringers using such services.

Inducement and contributory infringement are discussed first. The court marches through some of the most relevant precedent here, including, among others, the Supreme Court’s Grokster decision, the recent Lime Group decision, and the Ninth Circuit’s Perfect 10. The court extracts from this precedent its own standard for examining contributory infringement, one that provides three separate avenues for establishing secondary liability:

First, while it may be unclear whether Grokster introduced a new category of Iiability based on inducement or whether it spoke to pre-existing notions of contributory liability, it is evident that a defendant will be liable for actually expressing an intention to foster infringement. If that intent is express or can otherwise be said to be ‘’unmistakable,’’ the Sony/Betamax defense will not apply and the defendant will be liable for aII acts of direct infringement committed using its system, as was the case in Grokster. Similarly, as explained in Amazon.com, where traditional principles permit a court to impute intent – for instance, where the defendant knows of specific infringing content available on its system yet fails to remove it – that defendant may be Iiable, by operation of Iaw, just as if he had actually intended to infringe under Grokster. Finally, contributory infringement may be found based on a material contribution theory in instances where a defendant did not express an intention to foster infringement but provided the means for infringement of distributed a commercial product that was subsequently used to infringe. Under that theory, the Sony/Betamax rule provides a backstop of liability, immunizing a defendant who demonstrates that noninfringing uses of the system are substantial.

Here, the evidence left a number of unresolved questions about whether Hotfile is liable under any one of these avenues, and the court concludes that “while Hotfile may have difficulty explaining its ‘innocence’ to a jury, the genuine issues of material fact must be resolved by a jury at trial.”

Less complex is the vicarious liability inquiry. The standard used by the court here is two pronged: one is vicariously liability if he (1) profits from direct infringement while (2) declining to exercise a right to stop or limit it.

The profit, or financial benefit, from infringement does not, the court observe, need to be a direct one, or even a significant one. It is enough that there is a causal relationship between infringement and benefit to satisfy this prong. And here, the court found that the evidence did establish a connection between infringement on Hotfile and its sales of premium subscriptions, concluding that “it is undeniable that it financially benefitted from [infringement] by attracting some users.”

The second prong was just as easily met. The infringing files were stored on Hotfile’s own servers, and it contractually retained a right to control uploaded files in its terms of service. As a matter of law, then, Hotfile is vicariously liable for copyright infringement.

Two final issues were addressed in the court’s order. First, the court held that Anton Titov, one of the primary corporate officers of Hotfile, is, as a matter of law, personally liable for any infringement along with Hotfile itself. And second, the court found that there was enough evidence to support Hotfile’s counterclaim against one of the studios involved, Warner. The evidence suggested that Warner intentionally sent takedown notices for files that it knew it had no right to remove.

While the decision has been a long time coming, and while it will take a long time to digest — it’s very thorough — this is likely only the beginning. Hotfile has already appealed the decision to the Eleventh Circuit.

Footnotes

  1. 17 U.S.C. § 512. []
  2. I note that the court glosses over one of the studios’ (admittedly far-reaching) arguments that the infringement in question was not within the scope of the storage safe harbor. The studios had argued that Hotfile’s practice of routinely deleting files that have never been downloaded was the antithesis of “storage” and thus not protected under the safe harbor. []
  3. 17 U.S.C. § 512(i)(1)(A). []

Colour grading: the unsung hero of film — Whether it involves balancing color tones over different scenes to make a consistent look or more aggressive techniques to create a specific tone or mood, film colorists are just another of the countless behind-the-scenes technicians who contribute to the films and television programs that audiences enjoy.

Online Piracy Grows, Reflecting Consumer Trends — A study from NetNames was released this week that gave an empirical look at the size and shape of online infringement. Among the study’s revelations is that “Successful pay-for-play subscription plans, such as Netflix and Amazon, have not curbed widespread piracy of copyrighted content.” The full report is available here.

Congress: Restore Our Rightful Privacy Ownership — An interesting piece arguing for more meaningful privacy protections. The overlap between privacy and copyright is not always obvious, but no less tangible. “In the not too distant past, people enjoyed substantial privacy because practically it was inefficient, difficult, and expensive to collect, store, and disseminate private information. In stark contrast, Internet technology now makes it hyper-efficient, easy and near-free incrementally to collect, store, and disseminate private information. As we have learned, Internet technology can serve as a universal tracking and recording device, copy machine, and surveillance system for those who want it to serve those functions.”

Rene Summer gets it Wrong about Piracy and Payment… The Internet Time Machine Strikes Again — The arguments favoring piracy have been wrong for over a decade, yet they are still being recycled. “So Kim Dotcom’s five suggestions have been fulfilled and yet, I don’t think we’ll see an end to piracy anytime soon. There is still one thing piracy offers that legal, licensed and legitimate services do not, and that is compensation to the artists, musicians, filmmakers and creators which requires that consumers actually do pay the fair price asked.”

MPAA report says Google, other search engines a major gateway to piracy — “The survey found that 74% of consumers surveyed cited using a search engine as a navigational tool the first time they arrived at a site with infringing content, even when the consumer was not looking for pirated movies or TV shows.”

Practical Lessons from the MPAA’s Search Engine Study — PlagiarismToday’s Jonathan Bailey offers some practical advice, especially for independent creators and artists, in the wake of the MPAA study that shows a significant amount of traffic for infringing works comes from search.

Google’s Eric Schmidt says government spying is ‘the nature of our society’ — Schmidt also says that protecting citizens from government surveillance will “break the way the internet works.” If this is Google’s vision for the internet, do we really want to keep it from breaking?

UnSound : New Film Explores Artists Rights in The Digital Age (Video Clip) — UnSound looks to be a promising romp through the past decade or two and how it has reshaped the music industry. Here is a clip from the documentary featuring Bad Religion guitarist and Epitaph Records founder Brett Gurewitz.

“[W]ithout question, the exercise of the [copyright] power has operated as an encouragement to native genius, and to the solid advancement of literature and the arts.”1

September 17 marks “Constitution Day” in the United States, a day that commemorates the approval of the final draft of the Constitution by the U.S. Constitutional Convention delegates in 1787.2 Copyright is the subject of one of Congress’s few enumerated powers; Clause 8 of Section 8 of Article 1 says that  “The Congress shall have power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The story of how the United States became only the second nation in history to recognize a modern day version of copyright is one of authors and ideals. There was no publishing industry to speak of in Colonial America. What few printers did exist in the thirteen original states by the time of the Revolution focused mostly on government printing or newspapers. Horace Scudder, a 19th century biographer of Noah Webster (more on him later) wrote of the time, “Literature in its finer forms had but slender encouragement. The absence of easy communication, the poverty of the people, the dispersion of the population, gave little chance for bookstores and circulating libraries and private accumulation.”3

As in many parts of Europe and Great Britain, exclusive publishing privileges had at times been granted to individuals in the colonies, but these were rare.4 It was not until after the Revolutionary War that we would see the push for copyright begin in earnest.

Copyright before the Constitution

Thomas Paine, who is best known in U.S. history for his 1776 pamphlet Common Sense, immensely influential in calling for independence from Great Britain, also “counted copyright agitation among his many other revolutionary interests.”5 In a 1782 pamphlet, Paine used the introduction to call attention to the pirating of works by French writer Abbe Raynal, saying “It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth.”6 Paine added, in a passage that demonstrated that his thoughts on copyright were consistent with the Republican ideals he espoused in his political writings,

The state of literature in America must one day become a subject of legislative consideration. Hitherto it hath been a disinterested volunteer in the service of the revolution, and no man thought of profits: but when peace shall give time and opportunity for study, the country will deprive itself of the honour and service of letters and the improvement of science, unless sufficient laws are made to prevent depredations on literary property.

These sentiments were shared by Noah Webster, who wrote in a letter to Connecticut representative John Canfield, “America must be as independent in literature as in Politics, as famous for arts as for arms.”7

Webster, who would go on to create the dictionary bearing his name, played perhaps the most pivotal role in getting states to recognize copyright. Having recently completed his second book on grammar and spelling for schoolchildren, Webster began efforts to lobby the states for copyright laws, beginning in New Jersey in 1782. Then, on to Connecticut in October of that year (at which time he wrote the letter quoted above), returning in January of 1783 where he learned of the plans to pass a general copyright act.

On January 6, 1783, author and explorer John Ledyard had petitioned the Connecticut General Assembly for copyright protection for his latest work, A Journal of Captain Cook’s Last Voyage to the Pacific Ocean. On January 29, 1783, the General Assembly instead passed a general copyright statute, the first in the colonies.

Titled “An Act for the Encouragement of Literature and Genius”, the statute’s preamble indicated its foundations in natural rights and its goals to encourage publication, which was seen as providing a benefit to the public and the nation.

Whereas it is perfectly agreeable to the Principles of natural Equity and Justice, that every Author should be secured in receiving the Profits that may arise from the Sale of his Works, and such Security may encourage Men of Learning and Genius to publish their Writings, which may do Honour to their Country, and Service to Mankind.

The statute also provided a public interest requirement that authors and publishers provide sufficient copies of books at reasonable prices.

Along with Ledyard and Webster, others were striving for a copyright act, including historian Jeremy Belknap and author and politician Joel Barlow. Barlow wrote to Elias Boudinot, president of the Continental Congress in 1783, calling on him to protect the rights of authors. Barlow’s letter would end up playing an influential role in the foundations of U.S. copyright law. It both pressed the issue forward and established its starting points. Barlow’s exhortation for protecting the natural rights of authors would be reflected in the Continental Congress’s and State’s language to follow, and his suggestion to follow the Statute of Anne was also heeded.

In it, Barlow also echoed the appeals to pride in the new nation that Paine and Webster used. Said Barlow,

America has convinced the world of her importance in a political & military line by the wisdom, energy & ardor for liberty which distinguish the present era. A literary reputation is necessary in order to complete her national character; and she ought to encourage that variety & independence of genius, in which she is not excelled by any nation in Europe. As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law.

According to Continental Congress records, the Connecticut Act was forwarded to the Continental Congress two days after it was proposed, on January 8th, followed another two days later by Barlow’s letter.8

Continental Congress representative Hugh Williamson of North Carolina moved that a committee be formed “to consider the most proper means of cherishing genius and useful arts through the United States by securing to authors or publishers of new books their property in such works.” That motion carried on March 10th, with the Congress appointing a committee consisting of Williamson, Ralph Izard of South Carolina, and James Madison.

On May 2, the committee issued its report. Records indicate the committee “to whom were referred sundry papers and memorials from different persons on the subject of literary property, [are] persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius.”9 The Continental Congress issued a recommendation encouraging States to pass copyright legislation. By that time, Massachusetts and Maryland had already joined Connecticut in passing a general copyright law. It is likely that Noah Webster shared some responsibility for the the Massachusetts law, as he had been in that state, along with New York, that winter to lobby the representatives.

The Massachusetts copyright act began with a preamble explaining the foundations and motivations for the law:

Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.

After the Continental Congress’s recommendation, Webster redoubled his efforts, visiting the “middle and southern states” in May 1785. That November, Webster visited General Washington, who gave him letters addressed to members of the Virginia legislature to assist Webster in his efforts. Webster also lobbied James Madison personally to pass a copyright act, including through a letter to the Virginiana legislator in 1784. Madison would eventually write the act himself. The bill, “An act for securing to the authors of literary works an exclusive property therein for a limited time,” was presented to the Virginia House of Delegates by Madison on November 16, 1785.

Webster’s successful run fell short, however, when he reached Delaware. He petitioned the legislature, saying

Among all modes of acquiring property, or exclusive ownership, the act or  operation of creating or making seems to have the first claim. If anything can justly give a man an exclusive right to the occupancy and enjoyment of a thing it must be that he made it. The right of a farmer and mechanic to the exclusive enjoyment and right of disposal of what they make or produce is never questioned. What, then, can make a difference between the produce of muscular strength and the produce of the intellect?

But while a committee was formed to draft a copyright bill, the bill was deferred at the end of the legislative session, never to resume. All in all though, not too bad. Following the Continental Congress’s recommendation, twelve of the thirteen original states — all but Delaware — had enacted copyright legislation within three years. And over half, like Massachusetts, referred explicitly to the natural rights foundation of the law.10

Toward a Federal Copyright Power

Within a year of the last state copyright act going into effect (That honor goes to New York, which passed a copyright act on April 29th, 1786) there were calls to amend the Articles of Confederation that governed the Continental Congress. Once this Convention assembled however, in May 1787, delegates agreed that the goal was not amendment but drafting of an entirely new Constitution. From that point, the delegates moved quickly:

The Convention kicked off May 14, 1787. On June 23, a Committee on Detail was established to draft a document that incorporated the various plans and proposals from the Convention. The Committee presented the first draft of the Constitution to the Convention on August 6. On September 8, a Committee on Style was created to incorporate changes brought up by delegates after discussing the first draft and revise the text of the Constitution. This Committee presented the final draft to the Convention on September 12, who ratified and signed it on September 17. And that’s how you make an America.11

James Madison played a pivotal role in drafting the Constitution. In the April before the Convention, he sat down to write a memorandum to the chairman of the Convention detailing a dozen Vices of the Political System of the United States. Among these vices was a “want of concert in matters where common interest requires it.” Madison wrote that this defect was most noticeable concerning commercial affairs, but it was also felt in “the want of uniformity in the laws concerning naturalization & literary property.”

Considering the enormity of the issues facing the delegates, it should not be surprising that copyright was not a high priority. It was not included in the first draft of the Constitution, on August 6, and would not be proposed until the waning days of the Convention.12

On August 18, James Madison and Charles Pinckney proposed a number of enumerated powers to vest in the legislative branch of the federal government. Among these, Madison proposed that Congress have the power “to secure to literary authors their copyrights for a limited time” while Pinckney proposed the similar power “to secure to authors exclusive rights for a certain time.” All were referred to the Convention’s Committee on Detail without discussion.13 The final version of the Copyright Clause (which also incorporated a authority to secure patents) was presented to the Convention on September 5, where it was agreed to without any objections.14 There is no evidence that the change in wording between the proposed powers and the final version was intended to be substantive rather than merely stylistic.

The Copyright Clause in the Court of Public Opinion

After September 17, the newly drafted Constitution went to the Continental Congress for approval on September 28, and then referred to the states to be ratified. Reflecting the low amount of attention the power received during the Convention, there were few mentions of the power during ratification debates.

James Madison did refer to the Clause in the Federalist Papers, written along with John Jay and Alexander Hamilton to drum up support for ratifying the Constitution, but only once, and only very briefly. In Federalist Papers 43, Madison wrote

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

George Mason, a delegate to the Continental Convention from Virginia became one of the Constitution’s most strenuous critics, and penned a series of Objections explaining his reasons for not signing the final draft. Among these, he warned that “Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper.”15 Mason was referring to the Necessary and Proper Clause. But this and his other objections drew a response from North Carolina’s James Iredell, a strong supporter of the Constitution and future Supreme Court Justice. Iredell explained that the Necessary and Proper Clause was not an independent grant of authority; it could only be exercised in conjunction with authority that the Constitution expressly granted Congress. Iredell then went on to confirm that none of Mason’s specific dangers could come to fruition through Congress’s delegated powers. When he looked at the possibility that “Congress may grant monopolies in trade and commerce,” Iredell remarked in a footnote

One of the powers given to Congress is, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” I am convinced Mr. Mason did not mean to refer to this clause, he is a gentleman of too much taste and knowledge himself to wish to have our government established upon such principles of barbarism as to be able to afford no encouragement to genius.16

At another point in his answer to Mason’s objections, Iredell noted that Congress could not infringe the freedom of speech and press through the Copyright Clause:

The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works. This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one, and can be attended with no danger of copies not being sufficiently multiplied, because the interest of the proprietor will always induce him to publish a quantity fully equal to the demand-besides, that such encouragement may give birth to many excellent writings which would otherwise have never appeared.17

We see the Clause come up during the Pennsylvania ratification debates as well, where it was mentioned by influential politician Thomas McKean, who was addressing possible objections to the Constitution. He noted none regarding the clause, pointing out instead the need for national uniformity in protecting authors.

[T]he power of securing to authors and inventors the exclusive right to their writings and discoveries, could only with effect be exercised by Congress. For, sir, the laws of the respective States could only operate within their respective boundaries, and therefore, a work which has cost the author his whole life to complete, when published in one State, however it might there be secured, could easily be carried into another State, in which a republication would be accompanied with neither penalty nor punishment—a circumstance manifestly injurious to the author in particular, and to the cause of science in general.18

The Constitution would eventually be ratified by the States, and it went into effect on March 4, 1789. The first Congress exercised its authority under the Copyright Clause not too long after, with George Washington signing into law the first U.S. copyright act on May 31, 1790.

Footnotes

  1. Joseph Story, Commentaries on the Constitution of the United States, Book 3, Chapter 19 (1833). []
  2. 36 U.S.C. § 106. []
  3. Horace Scudder, Noah Webster: American Man of Letters (Boston: 1890). []
  4. The first was granted to John Usher in 1672 to print and publish the laws of the Massachusetts colony. The first attempt by an author, rather than a publisher, to seek exclusive rights to his work came in 1772 from musician William Billings, though he was ultimately unsuccessful. []
  5. John William Tebbel, 1 A History of Book Publishing in the United States 138 (1972). []
  6. Paine, On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up (1782). []
  7. Oren Bracha, Commentary on the Connecticut Copyright Statute 1783, in Primary Sources on Copyright (1450-1900), (2008). citing Noah Webster, Letters of Noah Webster ed. H.R. Warfel (New York: Literary Publishers, 1953), 1-4. []
  8. 24 Journals of the Continental Congress 211 (1783). []
  9. 24 Journals of the Continental Congress 326. []
  10. The others included Connecticut, Georgia, New Hampshire, North Carolina, New York, and Rhode Island. []
  11. Copyright and the Constitution (September 12, 2010). []
  12. Some suggest that South Carolina delegate Charles Pinckney included authority to secure copyrights in the Plan he submitted on May 28th, which would move the genesis of the clause a few months earlier. However, at least one scholar has concluded that the evidence does not support this. See Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009). []
  13. 2 The Records of the Federal Convention of 1787, at 321–22, 324–35. []
  14. Id. at 509. []
  15. Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787). []
  16. Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863). []
  17. Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361. Alexander Hamilton implicitly made a similar argument regarding the liberty of the press and the copyright clause in the Federalist Papers number 84, when he wrote, “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” []
  18. Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution. []

Beastie Boys Can’t Escape ‘Paul’s Boutique’ Sampling Lawsuit — Great summary (as usual) by Eriq Gardner of a recent decision involving allegedly infringing samples used in the Beastie Boy’s classic album Paul’s Boutique. A link is provided to the actual decision, which will delight hardcore copyright nerds, as it extensively discusses the law’s substantial similarity doctrine and how it applies to sampling.

“Artists Should Expect Nothing” from Spotify says George Howard — The Trichordist has an excellent answer to that claim from Howard.

The end of kindness: Weev and the cult of the angry young man — Greg Sandoval has written a compelling and thoroughly disturbing (don’t read if you don’t have a strong stomach) piece on internet abuse and free speech. “‘I have this beef with a lot of organizations, including EFF,’ Aurora said. ‘This is another case where they’re saying, ‘The cases we care about are the ones white men are interested in. We’re less interested in protecting women on the web.’'”

About that “graduated response doesn’t work” paper — Say you found evidence of a murder on Google maps, and the Internet will work tirelessly until it has debunked the claim. Say you found evidence that copyright protections don’t work, and that’s apparently good enough. Fortunately, IPI’s Tom Giovanetti takes a closer look at a recent study that claims graduated response efforts are ineffective and finds, among other shortcomings, that the study’s author “ignores or disparages data that disagree with her prevailing bias, and … draws predetermined conclusions.”

Which music services are growing, which are shrinking — Paul Lamere has an interesting collection of graphs showing search trends over the past decade for a number of major online music services. See which services are apparently growing in popularity and which ones seem to be struggling to stay relevant.

FilmOn Turned Off: Another Court Rejects Aereo’s “Unique Copies” Interpretation — Details on last week’s decision from a DC District Court enjoining FilmOn X after finding that it was likely publicly performing television broadcasts without permission.

Randolph May & Seth Cooper: Copyright’s Constitutional History and Its Meaning for Today — The Originalism Blog notes that May and Cooper’s excellent article, Literary Property: Copyright’s Constitutional History and its Meaning for Today, is now available at SSRN. Recommended.

Five Things Congress Could Do for Music Creators That Wouldn’t Cost the Taxpayer a Dime Part 4: Pay Unclaimed Royalties to State Unclaimed Property Offices — The latest installment in Chris Castle’s multi-part series on practical, common sense updates to the copyright laws that would improve the situation for musicians and songwriters.

Although published in 2011, I’ve only recently finished reading Robert Merges’ Justifying Intellectual Property. The book provides an examination of the ethical foundations of intellectual property — primarily copyright and patent — and an explanation of how they fit into a fair and just society. Merges has made a significant contribution to the field of IP while also advancing a positive view of a legal doctrine that has been the subject of increasing skepticism over the past two decades.

It could be said that Justifying Intellectual Property is actually two books in one.

In the first section, Merges explains his theory of the philosophical foundation and justification of intellectual property. He jettisons the utilitarian basis of IP that tends to dominate copyright debates (particularly in the academic arena). Essentially, the utilitarian seeks to maximize net social welfare; IP policy is working if its benefits outweigh its costs. But for Merges, when it comes to IP, this type of calculus is so complex as to be, for all practical purposes, impossible — like, he says, trying to design “a perfect socialist economy.” How do you measure the “optimal number” of copyrighted works? And how do you quantify the quality of works?

Instead, Merges uses property as his starting point, but not some narrow, primitive conception of property that only includes those things we can see or touch. As Merges explains, property is an incredibly adaptable doctrine that has developed a vocabulary that is just as useful for intangibles as it is for tangibles. But most importantly for Merges, property is built around an important core principle, a one-to-one mapping of owner to asset that allows for decentralized ownership and coordination.

Merges obviously doesn’t declare copyright to be property and call it a day. He synthesizes the work of three influential philosophers — John Locke, Immanuel Kant, and John Rawls — to create his normative foundation of IP. As he summarizes near the end of the book:

Locke has a simple but convincing story about initial appropriation, the conditions under which property rights originally arise. Kant understands ownership to be crucial to the development of a person’s full potential, which involves both extensive interaction with objects in the environment and also persistent rights over those objects, so that the individual can place his unique stamp on them. And for Rawls, property fits into the overall scheme of a fair and just society, taking its place alongside other institutions and rights that guarantee an equal chance at self-fulfillment to all citizens.

Locke in particular has fallen somewhat out of favor among academics for the relevance of his labor theory of appropriation to intellectual property. Merges joins several other legal scholars in rehabilitating the Lockean foundations of copyright.1 A big part of this rehabilitation comes from focusing on Locke’s “provisos” — limitations or conditions on property appropriation and ownership. Merges writes that these “provisos” — “sufficiency”, “spoliation”, and “charity” — have not received enough attention by scholars, particularly the “charity” proviso. But these provisos, says Merges, are central to Lockean property theory. If properly applied, they strengthen the justification for intellectual property, especially in ways that are relevant to current policy debates.

In the remaining sections, Merges departs from the normative foundation he established to argue, essentially, that normative foundations are not the most important guiding principles of IP law. That honor instead goes to midlevel principles, the “basic concepts that tie together a number of discrete and detailed doctrines, rules, and practices in a particular legal field.” The primacy of midlevel principles over foundational, or “upper-level principles” is a concept that Merges attributes mostly to John Rawls and his conception of pluralism in a modern state. Merges explains

I believe in the independence of … foundational normative principles from the operational details of the field, as well as from the midlevel principles that arise from and are shaped by those details. By “independence” I mean that there are a number of foundational normative commitments that may serve equally well to anchor the principles and practices of IP law. I offered the ones I did… because those are the ones I believe best justify the structure of IP law. But other foundations might serve as well. As I put it earlier, in my view there is “room at the bottom,” at the foundational level of the field, for various justificatory principles, including perhaps utilitarianism and various alternative ethical theories.

Midlevel principles engage foundational values in a number of ways, but they do not depend on any particular set of values for their validity. They spring from doctrine and detail, from the grain of actual practice. It is at the level of midlevel principles, therefore, that much normative debate in the IP field takes place. From a certain point of view, in fact, this is their role exactly: they enable normative debate — debate above the detailed doctrinal level — without requiring deep agreement about ultimate normative commitments. Because of this, they are the common currency of most debate over IP policy.

Merges identifies four plausible candidates for midlevel principles in IP law, though there are obviously other potential candidates: nonremoval (from the public domain), proportionality, efficiency, and dignity. While all are explored throughout the book, Merges sets aside an entire chapter to discuss proportionality in detail. As he describes it, proportionality is in many ways a corollary to the justification for intellectual property. If we accept that the act of creation or invention entitles one to property rights, then it follows that one is not entitled to anything beyond what one creates or invents. That is, the rights should be proportionate to what a creator deserves.

From this discussion of midlevel principles, Merges turns to contemporary issues in IP policy to show how the principles might be applied in practice. These issues cover a wide spectrum: from corporate ownership of copyrighted works and transaction costs, to property in the digital era (which includes remixes, collaborative creation, and open source licenses), to patents and drugs for the developing world.

Merges concludes his work by reiterating what he considers the basic elements of a workable theory of IP. Intellectual property law should (1) “Propertize creative labor,” (2) “Grant real rights, but not absolute rights”, and (3) “Accommodate the needs of consumers and users by (a) facilitating and encouraging cheap and easy IP permission and licensing mechanisms, together with (b) simple waiver techniques that permit binding dedication of rights to the public.”

At times, I felt that I was not reading specifically about intellectual property, but about property in general. Copyright skeptics often make the mistake that certain aspects of copyright — that it should provide a public benefit, that there are times when competing interests override exclusive rights — distinguish it from other forms of property. Quite the opposite. All property shares these characteristics, and intellectual property, at least how Merges conceives of it, comes the closest to the Platonic ideal of property.

While Justifying Intellectual Property may not be an easy read, it is certainly an accessible read — put another way, it requires mental stamina rather than mental agility. One does not necessarily need a legal or philosophical background to get what’s going on. Merges does not assume much prior knowledge on the part of the reader; concepts are explained fully as they are introduced. This is, in my opinion, one of the strengths of the book. Weak arguments are not disguised behind academic jargon. Instead, the clarity of writing reveals the clarity of thinking.

The other great strength, in my opinion, is that Merges does not take any of his assertions for granted. He moves carefully from point to point to ensure that each conclusion he makes rests on a solid logical foundation. And he anticipates counterarguments, many of which are familiar to those who have followed copyright debates closely over the past decade. So, for example, Merges replies to arguments that IP is not susceptible to being property because it is “nonrivalrous”; or that it is not justified because it creates “artificial scarcity.” He discusses open source licenses and “remix culture”, fan sites and the democratization of publishing (and not, lest one think Merges is a caricature of a “copyright maximalist”, in a negative manner).

Justifying Intellectual Property is a landmark work that provides a solid theoretical foundation to “what may be called the metaphysics of the law.” It should be on the shelf of anyone with a deep interest in intellectual property doctrine and policy.

Footnotes

  1. Others include Adam Mossoff, Saving Locke from Marx: the Labor Theory of Value in Intellectual Property, 29 Social Philosophy and Policy 283 (2012); Justin Hughes, Locke’s 1694 Memorandum (and other Incomplete Historiographies) (2006). []

FilmOn X, which is a commercial service retransmitting Plaintiffs’ television performances, is in no meaningful way different from cable television companies, whose relationship with broadcasters such as Plaintiffs was the primary motivation for the 1976 Act’s enactment.

Fox Television Stations v. FilmOn X, Opinion, No. 13-758 (RMC) at 27 (D. DC Sept. 5, 2013).

TV Broadcasters Granted Injunction Against Alki David’s TV Streaming Service — The District Court of D.C. yesterday became the second court outside the Second Circuit to consider an Aereo-styled Internet retransmission service and the second court to reject the Second Circuit’s erroneous interpretation of the Copyright Act’s public performance provisions. Judge Collyer saw through FilmOn X’s overly clever arguments, saying that the system was “hardly akin to an individual user stringing up a television antenna on the roof.”

The sharps and flats of the music business — Indie musician Zoë Keating speaks candidly about the challenges and opportunities that face musicians looking to earn a living from their craft today. “It sounds pathetic, but knowing that 60,000 people liked my albums enough to buy them gave me confidence I’d lacked and encouraged me to take my art seriously and make more of it… Now subscription streaming and YouTube are finishing what Napster began, and the revolution is fully corporatized. With music services spending millions of dollars to promote tag lines like ‘Never pay for music again,’ the story is no longer about a collective Robin Hood taking down a resented industry. Now it’s about plain old personal economics. Only a fool or a true fan would pay to own music that is available for free listening at any time on a subscription music service.”

U.S. Copyright Office Announces Ringer Fellowships and Kaminstein Scholars, Names Brauneis of The George Washington University — Congrats to Robert Brauneis for being named the first Kaminstein Scholar by the U.S. Copyright Office. And recent law school grads and recently minted attorneys interested in copyright law and policy should certainly check out the Office’s new Ringer Fellowship.

New (old) study on Megaupload’s demise features fuzzy methods and major omissions — Vox Indie’s Ellen Seidler takes a closer look at a study that purports to show that theatrical revenues from some films actually decreased after Megaupload was shut down following its indictment for criminal copyright infringement. Many smaller and independent films don’t rely so much, if at all, on revenues from theaters.

Thom Yorke, Trent Reznor and a Chorus of Artists Speak Out For An Ethical and Sustainable Internet — The Trichordist collects a series of quotes from artists and musicians. “Perhaps 2013 will be the year that we see as the tipping point in artists rights advocacy for an ethical and sustainable internet. There have been more artists speaking up vocally this year than in we can remember over the last decade.The hangover from an excess of hope that the internet would empower musicians has begun to set in as the evidence of more, and worse exploitation becomes increasingly obvious every day.”

Cross-posted on the Law Theories blog.

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

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

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

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

What is Theft?

Theft did not exist at common law. Instead, theft is an omnibus term of recent origin that subsumes previously distinct property crimes such as larceny, embezzlement, and false pretenses.2 The antecedent to what most people think of as theft is larceny. Larceny can be defined as the “unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently.”3 Under the common law, larceny required that the thing taken be tangible property.4 This is presumably why the skeptics think it’s wrong to refer to copyright infringement as theft. While copyright is personal property, it’s intangible property that, by its very nature, is nonrivalrous. Thus, if somebody infringes a copyright, they haven’t dispossessed the copyright owner of any tangible property, a necessary element for larceny under the common law.

To the uninitiated, the confusion about why copyright infringement is theft is understandable. But the line of reasoning that focuses on the old, common law definition of larceny neglects to take account of the fact that the modern definition of property for purposes of theft statutes has been broadened to include both tangible and intangible property.5 For example, the paradigmatic Model Penal Code, published first in 1962 by the sages at the American Law Institute, defines property for purposes of theft very broadly: “‘property’ means anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.”6

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

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

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.10

Florida defines theft in similarly broad terms:

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

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

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.11

Copyright opponents such as Falkvinge appear to have a greatly attenuated understanding of what property is and what it means to deprive someone of that property. For example, the Court of Appeals of Kentucky noted seventy years ago that “the word ‘property’ is so all-embracing as to include within its definition every physical object, intangible benefit, and prerogative susceptible of ownership, possession, or disposition.”12 Over a century ago, the Supreme Court of Washington noted that “property . . . consists not in tangible things themselves, but in certain rights in and appurtenant to those things,” and “it follows that when a person is deprived of any of those rights he is to that extent deprived of his property.”13 Or as the Supreme Court of New York, Appellate Division, put it over a century ago, property “is intended to embrace every species of valuable right and interest and whatever tends in any degree, no matter how small, to deprive one of that right, or interest, deprives him of his property.”14

In 1942, the Supreme Court of Iowa explained:

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

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

Examples of Theft of Intangibles

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

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

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

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

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

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

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

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

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

Dowling and Copyright Preemption

The darling of the copyright opponents is Dowling, and no discussion of infringement-as-theft would be complete without discussing this Supreme Court opinion from 1985.29 Dowling was a 6-3 decision that looked at whether the National Stolen Property Act (“NSPA”), as codified at Section 2314 of Title 18, applied to bootleg recordings. The NSPA prohibits the transportation in interstate commerce of “any goods, wares, merchandise, securities or money” that are known “to have been stolen, converted or taken by fraud.”30 Dowling was accused of trafficking in illicit recordings of Elvis Presley for which no license had been obtained nor royalties paid. On appeal, Dowling did not dispute his conviction for copyright infringement, instead challenging whether the bootleg recordings he dealt in were stolen property under the NSPA.

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

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

[T]he Government’s theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel. A copyright, like other intellectual property, comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections. *** It follows that interference with copyright does not easily equate with theft, conversion, or fraud. ***

There is no dispute in this case that Dowling’s unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another’s protected work comfortably fits the terms associated with physical removal employed by § 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.34

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

But this doesn’t mean that copyright infringement is not theft. As the Second Circuit noted just last year, Dowling only stands for “the proposition that the theft and subsequent interstate transmission of purely intangible property is beyond the scope of the NSPA.”36 In other words, intangible property can still be the subject of theft, but the NSPA just doesn’t reach it. The First Circuit has noted that the NSPA simply “does not apply to purely intangible information, the theft of which is punishable under copyright law and other intellectual property statutes.”37 While the NSPA doesn’t apply to intangible property, the Economic Espionage Act still proscribes the “theft of trade secrets” in Section 1832 of Title 18, and the Identity Theft Penalty Enhancement Act still proscribes “aggravated identity theft” in Section 1028A of Title 18. Intangibles can be the subject of theft, there is no doubt; whether the NSPA reaches that theft is beside the point.

Moreover, the Dowling majority’s claim that “interference with copyright does not easily equate with theft” can be easily rebutted by looking at theft statutes that have been preempted by the Copyright Act. Congress made clear in Section 301 that it intended to expressly preempt the entire field of state law where the Copyright Act applies. Generally speaking, a state law is preempted by the Copyright Act if (1) the work at issue comes within the subject matter of copyright as defined by Section 102, and (2) the rights granted under the state law are equivalent to any of the exclusive rights granted by Section 106.38 To survive preemption, the state law must protect rights that are qualitatively different than the rights granted by copyright. In other words, the state law claim must be based on some extra element which changes its nature.39 If “the right defined by state law may be abridged by an act which, in and of itself, would infringe one of the exclusive rights,” then it is preempted.40

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

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

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

Section 506 of the Copyright Act, which sets forth criminal penalties for copyright infringement, also requires the prosecution to prove scienter as an element of the case. The additional element of scienter traditionally necessary to establish a criminal case merely narrows the applicability of the statute. The prohibited act—wrongfully distributing a copyrighted work—remains the same. Section 301 clearly prohibits Florida from prosecuting Crow in this case, and we conclude that Crow’s conviction is null and void.44

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

Copyright Infringement as Theft

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

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

Like theft, copyright infringement also comes in two varieties: civil infringement and criminal infringement. Civil infringement actions are brought by private parties under Section 501(b) of the Copyright Act, which permits “[t]he legal or beneficial owner of an exclusive right under a copyright . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it.”46 Criminal infringement actions, on the other hand, are instituted by the government under Section 506(a) of the Copyright Act against “[a]ny person who willfully infringes a copyright . . . .”47 It might be tempting to equate civil theft with civil infringement and criminal theft with criminal infringement, but it’s not that simple. A civil theft statute creates a private right of action, but it still requires the property at issue to have been the subject of criminal theft. In other words, to succeed in a civil theft claim, the plaintiff still has to show that his property was stolen under the state’s criminal theft statutes.48

The civil theft analysis thus collapses into an analysis of the criminal theft statutes, and there can be no civil theft unless there is an underlying criminal theft. But the civil and criminal varieties of copyright infringement do not work the same way. All criminal infringements are also civil infringements, but not all civil infringements constitute criminal infringements. The primary difference between civil and criminal infringement lies in the mens rea element. Civil infringement is an intentional tort such that the defendant must have intended to do the copying, but it is also a strict liability tort such that there is no need to prove an intent to infringe in order to establish the defendant’s liability.49 Since civil infringement is a strict liability tort, whether the defendant acted innocently or willfully goes to the issue of damages, not liability. An innocent infringer is just as liable as a willful one, but the latter faces the possibility of being on the hook for more damages than the former.50

Criminal infringement, on the other hand, requires that the defendant must have willfully infringed in order to be guilty, that is, that he not only intended to copy but also that he intended to violate the law by copying.51 In other words, a defendant cannot be found guilty of criminal infringement unless it is proved that he had the specific intent to commit copyright infringement. Thus, this intent to infringe element distinguishes criminal from civil infringement. Besides the necessity of willfulness, criminal infringement also differs from civil infringement by requiring that it be done in one of three ways: (1) “for purposes of commercial advantage or private financial gain,” (2) by reproducing or distributing “during any 180-day period” one or more copies of one of more copyrighted works “which have a total retail value of more than $1,000,” or (3) “by the distribution of a work being prepared for commercial distribution . . . if such person knew or should have known that the work was intended for commercial distribution.”52

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

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

The second element, that copyright constitutes movable property of another, seems exceedingly obvious to me, but I know that skeptics such as Falkvinge define property so narrowly that intangibles such as copyright aren’t property under their definition. But as noted above, the modern definition of property, especially in the context of theft statutes, is extremely expansive. As the Supreme Court of Nevada has noted, “property is a broad concept encompassing every intangible benefit and prerogative susceptible of possession or disposition.”55 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.56

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

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

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

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

Follow me on Twitter: @devlinhartline

Footnotes

  1. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 961 (2005) (Breyer, J., concurring). []
  2. See, e.g., Editors’ Notes, Model Penal Code § 223.1 (“The offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like, as well as the technical distinctions among them, are thereby replaced with a unitary offense [i.e., theft]”). []
  3. Black’s Law Dictionary (9th ed. 2009). []
  4. See, e.g. Bell v. United States, 462 U.S. 356, 360 (1983) (“[C]ommon-law larceny was limited to thefts of tangible personal property.”); People v. Zakarian, 121 Ill. App. 3d 968, 972 (1984) (“At common law, only tangible personal property could be the subject of larceny.”); People v. Ashworth, 222 N.Y.S. 24, 28-29 (1927) (“That which may be the subject of larceny is well comprehended in the following statement: It ‘should have corporeal existence, that is, be something the physical presence, quantity, or quality of which is detectable or measurable by the senses or by some mechanical contrivance; for a naked right existing merely in contemplation of law, although it may be very valuable to the person who is entitled to exercise it, is not a subject of larceny.’”) (internal citations omitted); 3 Subst. Crim. L. § 19.4 (2d ed.) (“At common law, larceny was limited to misappropriations of goods and chattels—i.e., tangible personal property.”). []
  5. See, e.g., N.Y. Penal Law § 155.00 (McKinney 2013) (“‘Property’ means any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.”) (defining “property” under state larceny law); 3 Subst. Crim. L. § 19.4 (2d ed.) (“Modern statutes in all jurisdictions have broadened the scope of larceny to include such intangible personal property as written instruments embodying choses in action or other intangible rights.”). []
  6. Model Penal Code § 223.0 (emphasis added). []
  7. Id. at § 223.2; “movable” property is another name for personal property. []
  8. Id. at § 223.0. []
  9. Id. []
  10. La. Rev. Stat. Ann. § 14:67(A) (West 2013) (emphasis added); “Anything of value,” in turn, is defined to include “any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private.” Id. at § 14:2. []
  11. Fla. Stat. Ann. § 812.014(1) (West 2013); “Obtains or uses” is defined to mean “any manner of . . . [t]aking or exercising control over property” or “[m]aking unauthorized use, disposition, or transfer of property.” Id. at § 812.012(3); “Property,” in turn, is defined to mean “anything of value,” which “includes . . . [t]angible or intangible personal property, including rights, privileges, interests, and claims.” Id. at § 812.012(4). []
  12. Button v. Hikes, 296 Ky. 163, 168 (1943). []
  13. State v. Superior Court of King Cnty., 26 Wash. 278, 287 (1901) (internal quotations and citations omitted). []
  14. People ex rel. Short v. Warden of City Prison, 145 A.D. 861, 863 (1911). []
  15. Liddick v. City of Council Bluffs, 232 Iowa 197, 217 (1942) (internal quotations omitted). []
  16. Dreiman v. State, 825 P.2d 758 (Wyo. 1992). []
  17. Id. at 760 (internal quotations and citations omitted). []
  18. Id. at 761 (internal quotations and brackets omitted). []
  19. Id. []
  20. People v. Parker, 217 Cal. App. 2d 422 (1963). []
  21. Id. at 426. []
  22. People v. Ellis, A099357, 2003 WL 21513612 (Cal. Ct. App. July 3, 2003) (unpublished opinion). []
  23. Id. at *6. []
  24. Id. []
  25. People v. Kwok, 63 Cal. App. 4th 1236 (1998). []
  26. Id. at 1250-51 (internal quotations and citations omitted). []
  27. Id. at 1251. []
  28. Id. []
  29. See Dowling v. United States, 473 U.S. 207 (1985). []
  30. Id. at 208 (internal quotations and citations omitted). []
  31. Id. at 213. []
  32. Id. at 216. []
  33. Id. []
  34. Id. at 216-18 (internal quotations and citations omitted; paragraph breaks altered). []
  35. Id. at 230 (Powell, J., dissenting). []
  36. United States v. Aleynikov, 676 F.3d 71, 77 (2d Cir. 2012) (emphasis added). []
  37. United States v. Martin, 228 F.3d 1, 14 (1st Cir. 2000) (internal quotations omitted; emphasis added). []
  38. See, e.g., United States ex rel. Berge v. Bd. of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1463 (4th Cir. 1997). []
  39. See, e.g., Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 229 (4th Cir. 1993). []
  40. Id. (internal quotations omitted). []
  41. Crow v. Wainwright, 720 F.2d 1224 (11th Cir. 1983). []
  42. Id. at 1226. []
  43. Id. []
  44. Id. at 1226-27 (internal quotations and footnotes omitted; paragraph breaks altered; bracketed text added). []
  45. Colo. Rev. Stat. Ann. § 18-4-405 (West 2013). []
  46. 17 U.S.C.A. § 501(b) (West 2013). []
  47. 17 U.S.C.A. § 506(a) (West 2013). []
  48. See, e.g., Sullivan v. Delisa, 101 Conn. App. 605, 619-20 (2007); Steward Software Co., LLC v. Kopcho, 275 P.3d 702, 706-07 (Colo. Ct. App. 2010), rev’d on other grounds, 266 P.3d 1085 (Colo. 2011). []
  49. See, e.g., Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F.3d 923, 931 (7th Cir. 2003) (“Copyright infringement . . . is an intentional tort.”); Gnossos Music v. Mitken, Inc., 653 F.2d 117, 120 (4th Cir. 1981); Illustro Sys. Int’l, LLC v. Int’l Bus. Machines Corp., Case No. 06-cv-01969, 2007 WL 1321825 (N.D. Tex. May 4, 2007) (“[C]opyright infringement is an intentional tort.”); Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931) (“Intention to infringe is not essential under the act.”); United States v. Bily, 406 F.Supp. 726, 733 (E.D. Pa. 1975) (“Under the civil law, there is strict liability for infringement.”); Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963) (“While there have been some complaints concerning the harshness of the principle of strict liability in copyright law, . . . courts have consistently refused to honor the defense of absence of knowledge or intention.”). []
  50. See 17 U.S.C. § 504(c). []
  51. See, e.g., United States v. Wise, 550 F.2d 1180, 1194 (9th Cir. 1977); Bily, 406 F.Supp. at 733 (“One cannot be convicted [of criminal infringement] unless he has willfully infringed.”); United States v. Moran, 757 F.Supp. 1046, 1049 (D. Neb. 1991) (“[U]nder 17 U.S.C. § 506(a) ‘willfully’ means that in order to be criminal the infringement must have been a voluntary, intentional violation of a known legal duty.”) (internal quotations omitted). []
  52. 17 U.S.C.A. § 506(a)(1) (West 2013). []
  53. Model Penal Code § 223.2. []
  54. See, e.g., Moran, 757 F.Supp. at 1050 (collecting cases). []
  55. M.C. Multi-Family Dev., LLC. v. Crestdale Associates, Ltd., 124 Nev. 901, 911 (2008) (internal quotations and citations omitted). []
  56. G.S. Rasmussen & Assoc., Inc. v. Kalitta Flying Service, Inc., 958 F.2d 896, 903 (9th Cir. 1992). []
  57. Grokster, 545 U.S. at 961 (Breyer, J., concurring). []

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