Talk:Dowling v. United States

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[edit] "Physical", a matter of law, and continuing debate

The last several conflicting edits between myself and user 88.101.134.43 have concerned these points. I believe the net effect of his edits is to subtly slant this article in favor of the philosophical/political position that copyright infringement is "stealing" in some significant sense. Rather than simply reverting again, I'll bring the discussion here:

I believe the constant references to "theft of physical goods" are misleading. The term "physical" does not appear in the relevant laws, and if goods are physical by definition, the phrase is redundant.

[Response: Good grief! You've been posting back and forth about the Dowling decision, and you haven't even read it. Here's what it says: "[The statute] seems clearly to contemplate a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods." Apparently, the net effect of your edits is to "subtly slant" the viewer into thinking that you had actually read the decision.]
Yes, that's from the decision, not from the law. Mr2001 09:27, 15 May 2006 (UTC)
[Response: Um...the decision IS the law. That's why it's called "case law". Is there even a point in having a legal discussion with someone who doesn't understand that?]
I have to say that despite his inappropriate tone, I agree with Anon here: if you don't know that a SC decision is law or that all goods are physical then you shouldn't be editing articles on SC decisions. That's basic first semester law school stuff. Kidradical

"[This statement] has since been interpreted by many advocates of file sharing as a declaration that copyright infringement is not 'stealing'--though the Supreme Court has never interpreted it this way, nor has any other court." It has never been interpreted either way, because it is not a matter of law. The question of law is settled: making an illegal copy is not theft, it's copyright infringement.

[Response: By your own statements, you defeat the very argument that you're trying to make: If it "has never been interpreted either way," then how can it be that "the question of law is settled"? Besides, trying to argue that "it has never been interpreted either way" as a means to prove your interpretation is like saying that the court has never ruled either way on whether invisible unicorns live on the Moon, so therefore it must be judicially viable to suggest that invisible unicorns live on the Moon. Contrast that with saying, "the court has never ruled that invisible unicorns live on the Moon, as invisible unicorn advocates have suggested."
I'm not suggesting that anything is "judicially viable", nor am I trying to prove any interpretation; I'm only trying to correct the reasoning in that statement. When someone asks "is copyright infringement stealing?", the question can be taken (at least) two different ways: Legally, as in "is an infringer committing the crime known as stealing (or theft, larceny, etc.) and are illegal copies considered 'stolen' under the relevant laws", or philosophically, as in "is infringement the type of behavior generally thought of as stealing".
The former is settled, partly by the decision in Dowling that unauthorized copies are not "stolen goods", and partly by the fact that the laws covering copyright infringement do not classify it as theft or stealing (not even "theft of intellectual property", so I will be removing that phrase once again). The latter is not a question of law, and cannot be settled by the Supreme Court or any other court. Mr2001 09:27, 15 May 2006 (UTC)

"Nevertheless, debate about this ruling and its implications for file sharing continues to this day among file-sharing advocates and opponents." I wrote "and opponents"; the anonymous user deleted that phrase. I have never seen one file-sharing advocate debate the implications of Dowling with other file-sharing advocates, only with opponents, and it seems odd to think that the only debate on this topic is strictly between advocates. Mr2001 23:39, 4 May 2006 (UTC)

[Response: It's only file-sharing advocates who think that Dowling has "implications." Really, no kidding: Just do a Google search and you'll see.]
That may be. The word "among", however, suggests internal disagreement the way you've phrased it. Are you seriously trying to say that some file sharing advocates believe Dowling has implications for file sharing, other file sharing advocates believe it doesn't, and file sharing opponents have never considered the issue nor discussed it with advocates? Mr2001 09:27, 15 May 2006 (UTC)
Once again, if you're conceding that Anon "may be" right, then why argue the point? Kidradical

[edit] "Theft of intellectual property rights"

I have removed this phrase, which the same anonymous user inserted, because it is not a legal term; there is no such crime as "theft of intellectual property", and copyright infringement is not considered "theft" under any (US) law. Kindly refrain from inserting such biased language into this article. Mr2001 19:27, 20 May 2006 (UTC)

[Response: How is it that you know what is or is not a "legal term" when you don't even know what case law is? (See above.) I'm a senior lecturer of media law, and trust me, you're not doing anyone's understanding of this case any service with your edits...]
Heh. I'm afraid your ad hominem doesn't cover up the fact that you have no source for this claim. Either cite a source for this supposed "theft of intellectual property rights"--go ahead, find just one case where copyright infringement has been declared "theft"--or stop inserting POV language into this article. Reverting once more. Mr2001 00:55, 21 May 2006 (UTC)
[Response: Reverted back. And, for the record, how is it that you've randomly accused someone of engaging in a scheme to "subtly slant" an article, and then acted as the victim of an ad hominem attack?
[And if you need a source for "theft of intellectual property rights," anyone with even a cursory knowledge of law can find this. Here's just one, from the Department of Justice's report on "Intellectual Property Theft," issued in 2002: "Criminal intellectual property theft offenses include copyright and trademark infringement and theft of trade secrets." You can find the full report here: http://www.ojp.usdoj.gov/bjs/abstract/ipt02.htm; but there's probably dozens of other easy-to-find legal references to "intellectual property theft" on the Internet. Perhaps if you spent less time feigning expertise by trying to invoke phrases like "settled law" and more time actually reading up on the subject, you might both learn something and help others do so as well.]
Sure, you can find plenty of people referring to such crimes as "theft". Similarly, you can find people referring to various acts as "hate crimes" or "war crimes" or "rape" even when the acts aren't legally categorized as such, and "intellectual property theft" is no different. The DOJ is not a court and it does not write laws; its opinion as to whether copyright infringement is "theft" has no more legal weight than yours or mine. The fact remains that there is no such crime as "intellectual property theft", and the laws that do cover theft don't apply to copyright infringement. If you'd like to make clear that "intellectual property theft" refers to a (controversial) opinion, rather than any crime or legal category of acts, go right ahead. Mr2001 00:33, 23 May 2006 (UTC)
Let me put it this way: suppose you pored over Dowling tomorrow and discovered tiny, hidden print at the end saying "Oh, by the way, we also find that copyright infringement is theft of intellectual property rights." Would any cases be decided differently in the future based on this new discovery? Would any past cases be found to have been decided incorrectly? No, because the term has no meaning other than a political one. Such a declaration would be as irrelevant to actual violations of the law as "We find that ice cream is delicious." Mr2001 00:46, 23 May 2006 (UTC)
Agreed, under US law there is no such term as "theft of intellectual property rights". I even asked a final year law degree student who is doing his thesis on US law :D -- Tmorton166 (Errant Emote)  talk 12:14, 21 May 2006 (UTC)
[Response: Wow, a law student. Now THERE's a reliable source of expertise! And he's doing it on "US law"--whoah! just one year, or all 230? <g>]
Please be civil (WP:CIVIL). It will help the moderation of this dispute and is official wikipedia policy. -- Joebeone (Talk) 01:04, 23 May 2006 (UTC)
Also, 88.101.134.43, be conscious of not owning articles (WP:OWN): "You agreed to allow others to modify your work here. So let them." -- Joebeone (Talk) 22:10, 23 May 2006 (UTC)
Seconding the motion to be civil here. But it should be noted that there's all kinds of "theft of intellectual property" in US law--trade secrets, patent infringement, etc. etc. It's really not even a question.

[edit] Mediation

I have applied to the cabal for mediation: Wikipedia:Mediation_Cabal/Cases/2006-05-21_Dowling_v._United_States. Mr2001 01:23, 21 May 2006 (UTC)

Look, anonymous, if you say you're willing to go through mediation, then how about actually doing it? How about trying to come up with some compromise language, like I did and you "reverted"? How about not adding even more POV language when you claim you're reverting? Mr2001 02:45, 25 May 2006 (UTC)

It seems you aren't reading or participating in the mediation cabal page, anonymous. I cannot assume good faith on your part when you revert without comment and without paying the slightest heed to our mediator. Mr2001 22:35, 26 May 2006 (UTC)


[edit] RfC

Normally, we see RfC before something goes to mediation; I see here someone wants both....eeek. Anon: you would do much better to get an account, log in, and sign your posts: it does wonders for credibility. 2001 - the phrase "Some copyright advocates consider it theft of intellectual property" is weasel-worded - some??? if you are a copyright advocate, you consider it at least theft of IP; that's almost by definition. Regardless, a statement like that would need a citation. I am not up on this particular case, but I would suggest that in terms of settling a dispute on WP, comp[romise is not always the best answer. Example: I say 2+2=7, you change it to 2+2=4, we get into a revert war. Now is the proper solution here to end up at 2+2=4 or 'compromise' and publish it as 2+2=5.5 ??? It may well be that what one party thinks is POV is actually the truth/correct answer. And sometimes, the correct answer is not the one you want it to be.....Bridesmill 00:43, 27 May 2006 (UTC)

I agree about the weasel wording. Frankly, I don't think a statement about "theft of intellectual property" belongs in this article at all, since it has little if any relation to the matter in hand in Dowling - the legal definition of "stolen". I don't think removing "some" would be an improvement, though, without evidence that all copyright advocates equate infringement to theft. One can advocate laws against unauthorized copying without believing such copying is equivalent to theft.
I also agree with your point about compromise in general, but I don't think this is one of those either-or cases. The problem here is that terms such as "theft" and "stolen" mean one thing legally, and often mean something else outside the courtroom. It's factually incorrect to claim that infringement is considered "theft of intellectual property" by any court, but if Anonymous wants this article to mention that some people do consider it such (without any legal weight behind their opinion), I'm not opposed to that, as long as the article is clear on the difference between those philosophical/political beliefs and the actual law. Mr2001 01:54, 27 May 2006 (UTC)

Almost by definition, 'all copyright advocates consider it at least theft of intellectual property - if they didn't they would not be advoicates of copyright. Some consider it more than theft of IP & would go so far as to consider the IP to be a material good. Methinks you are trying to weasel your way out of what Dowling says.Bridesmill 03:28, 27 May 2006 (UTC)

That's not true. One can believe in and support copyright without confounding copyright infringement with theft. --ElKevbo 03:36, 27 May 2006 (UTC)
Bridesmill is way of the mark with this reasoning. I consider myself a "copyright advocate", yet I emphatically do not consider copyright infringement to be "theft of intellectual property". Why? Because such a phrase is factually incorrect. Copyright infringement and theft cannot be equated; they are two separate concepts, hence their incorporation into two separate titles of the US Code. Theft deprives the owner of the thing concerned the ability to make use it entirely. Copyright infringement does not do this. Instead, copyright infringement attacks the ability of copyright holders to exercise certain exclusive rights afforded to them by law (generally, the right of reproduction and the right of distribution). Infringing on a person's copyright does not deprive the copyright holder of the work in question; it tramples on their right to exclusively control that work's reproduction and distribution. If you want a realistic parallel, copyright infringement is much more akin to the concept of trespass: trespassers do not take land away from owners, they infringe upon landowners' rights to exclusively control who can be present on the land. -- Hux 12:19, 19 November 2006 (UTC)

Eeek. If you do not consider infringement of copyright as theft (of at least intellectuial property), then what is the value of copyright in the first place?Bridesmill 03:55, 27 May 2006 (UTC)

I don't think it necessary or even a good idea to try to equate copyright with physical property. I have no problem separating the two concepts and violations related to the two concepts. Theft physically deprives someone of a physical object. Copyright infringement violates someone's state-given rights to copy, distribute, and use an idea. They're both crimes but they're different. --ElKevbo 04:01, 27 May 2006 (UTC)
I believe it's a perfectly legitimate viewpoint to say that "I don't think it necessary or even a good idea to try to equate copyright with physical property." But that's exactly the point: It's a viewpoint, and is therefore POV, not factual statement. Kidradical
IMO you might as well ask "if you don't consider rape as murder, then what is the value of laws against rape in the first place?" They're different actions with different consequences and different reasons to oppose them. Someone might support copyright because they feel it's necessary for running an effective business around the production of intellectual works (and they consider the widespread production of such works a goal), for example, rather than because of any moral beliefs about the ownership of property. Mr2001 11:51, 29 May 2006 (UTC)
Bridesmill said: "If you do not consider infringement of copyright as theft...then what is the value of copyright in the first place?" Your question suggests you don't really understand what copyright is and what it is for. The value of copyright as a concept is a function of its purpose: "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" (US Constitution, section 8, clause 8). In other words, its purpose is to encourage more creative works to be produced and (eventually) pass into the public domain. Given that the ultimate beneficiary of copyright law is intended to be society as a whole, the best possible copyright law would be that which guarantees the maximization of both the production of works and the free use of those works by the public. That is "the value of copyright". -- Hux 12:19, 19 November 2006 (UTC)
But you're ignoring how it promotes such things: it does so by giving authors property rights in the works they create. When the law protects against those properties from being stolen, it encourages authors to create more works. Kidradical
Correction: when the law protects against people infringing on authors' exclusive rights it encourages those authors to create more works. (Copyright law does not protect against works being stolen. In fact, no law does because works, not being physical objects and not being owned by anyone, cannot be stolen.) And I'm not ignoring how copyright law promotes such production - I simply outlined the purpose of copyright and why that purpose is a good thing. The means by which the purpose is achieved (i.e. giving authors certain exclusive rights for a limited time) is both ancillary to that point and implied by the general "copyright is a good thing" tone of my response. -- Hux 20:10, 12 December 2006 (UTC)
PS Could you could sign your posts properly (using four tildes) so that your timestamp is recorded? Thanks. -- Hux 20:10, 12 December 2006 (UTC)

Here is where we may need to be careful in terms of US law & other laws & legal interpretations versus linguistic definitions - theft refers to unlawful taking of property; not of necessity physical property. This I believe is part of what Dowling is struggling with: Intellectual property theft is copyright infringement and is theft. Whether it is physical theft or not is debatable, but it is intellectual property theft. I wouldn't go near trying to call copyright vios as theft of physical property; although I supposew some people make that argument and in some cases it does/might apply.Bridesmill 15:15, 27 May 2006 (UTC)

The text in Dowling specifically notes that the Copyright title in US law (which is what is applicable in the case of Dowling, of course) recognizes that taking of intellectual property is not theft, but something different that the Title calls "infringement" of one of the exclusive rights. -- Joebeone (Talk) 20:55, 27 May 2006 (UTC)
All those conclusions are debatable, because whether an act constitutes "unlawful taking of property" depends on your definitions of "taking" and "property". A copyright opponent might argue that "taking" refers to taking something away from its rightful owner, not simply to obtaining [a copy of] that thing, and property doesn't properly refer to nonphysical things anyway. Mr2001 11:51, 29 May 2006 (UTC)

The issue seems to be stale or old, but I will add that copyright infringement is not theft either under the common English meaning or the legal meaning. Theft of something requires a transfer so that the victim no longer has possession of the thing stolen; duplication cannot be theft. —Centrx→talk • 02:38, 23 July 2006 (UTC)

[edit] What is "it"? Copyright infringment?

"Some copyright advocates consider it theft of intellectual property" in the first paragraph? BrownHornet21 03:06, 14 June 2006 (UTC)

Yes, "it" refers to copyright infringement. I thought that would be clear from context: "X was a case deciding on whether Y could be legally considered Z. Some people consider it W [which is similar to Z], but that's a separate issue." Feel free to clarify the paragraph if you think it's necessary, though. Mr2001 07:24, 16 June 2006 (UTC)

[edit] Kidradical's recent changes

I assert that Kidradical's recent changes are misleading and incorrect. To state that the case was about whether the defendant's actions "could be legally considered theft of physical goods in addition to theft of intellectual property" is incorrect. The Supreme Court held that "interference with copyright does not easily equate with theft" and thus to state that there was "theft" of intellectual property is grammatically and legally incorrect. Kidradical's changes beg the very question this case attempted to answer (and answered in the negative). --ElKevbo 22:17, 11 December 2006 (UTC)

Agreed. I also re-edited that paragraph to attempt to make it clearer and remove ambiguity. Thoughts? -- Hux 20:18, 12 December 2006 (UTC)
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