Yet Another Court Rules That Digital Data Is Not Property

from the pure-information dept

Back in March, we reported on an interesting case where a UK court ruled that information stored electronically is not property. Now senior judges in New Zealand have agreed (found via @superglaze), as the Lexology site explains:

Jonathan Dixon, the Queenstown bouncer who accessed CCTV footage of the England Rugby Captain in a bar during the 2011 Rugby World Cup, appealed his conviction for dishonestly obtaining property on the basis that the digital data did not come under the definition of ‘property’ in the Crimes Act. The New Zealand Court of Appeal yesterday agreed (but substituted his conviction with one of dishonestly obtaining a benefit).

Lexology goes on to explain:

The accepted legal position is that confidential information is not property, but protected by the law from abuse, as a matter of ‘conscience’ arising from the circumstances in which the information was obtained. The New Zealand Court of Appeal considered that a computer file’s “stored sequence of bytes available to a computer program or operating system? cannot meaningfully be distinguished from pure information”, and therefore was not ‘property’ for the purposes of the Crimes Act.

Although two court cases do not make a definitive answer, it’s significant that they were in different, albeit related, jurisdictions, and that the judges based their decisions on very different legislation. It certainly adds fuel to the already heated debate about whether it is possible in any sense to “steal” digital files containing copyright material.

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Comments on “Yet Another Court Rules That Digital Data Is Not Property”

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Anonymous Coward says:

Re: Re:

Copyright is not and never has been theft, despite what colloquial terms lawyers/RIAA/MPAA et al types use, usually in press releases/educational campaigns.

Breach of copyright is breach of copyright, not theft. Therefore it is likely that this ruling will have no effect on breach of copyright claims. Just as in the case referred to here where the Judge changed the conviction to “dishonestly obtaining a benefit” (btw – how can a judge after the fact change a charge? Aren’t you tried on the charges presented in court by the prosecution, and it’s bad luck for them if they don’t charge you with something else that you might have been convicted of with that evidence? How can an appeal change the charges you were found guilty on?), there are charges other than theft that can be levied.

Anonymous Coward says:

This sounds like a civil matter between the owner of the CCTV equipment and the fellow that stole the video.

I don’t see the connection between a UK court and a New Zealand court. The UK court has to answer to EU rulings and the New Zealand court doesn’t. I do like the fact both courts reaffirmed that a production is not property. This should help keep copyright in its proper place.

kiwirob (profile) says:

Re: Re:

New Zealand law is based on English Common Law. Up until 2003 the highest court for New Zealand was the Privy Council which is in London. It is very common for high level appeals cases to reference decisions from UK, Canada and Australian cases and Judges to apply principals found in these particular jurisdictions in New Zealand. So if UK, Australia and Canada all say if something quacks like a duck it must be a duck, New Zealand courts will typically find it to be a duck also.

kiwirob (profile) says:

Re: Re: Re: Re:

Unfortunately the charges are not “theft” they are “conspiracy to commit” charges including money laundering, racketeering, copyright infringing and aiding and abetting criminal copyright infringement.

Without the aiding and abetting criminal copyright infringement the rest of the conspiracy charges disappear but without the conspiracy to commit money laundry and conspiracy to commit racketeering there is no legal basis to extradite from NZ to the USA (direct copyright infringement is not an offence in the extradition treaty between the countries).

Conspiracy to commit copyright infringement I don’t think has every been tried before in a prosecution with the Dotcom defence referring to it as 3rd party copyright infringement as a made up law that doesn’t exist on the books. The aiding and abetting criminal copyright infringement charges are also a perversion of how aiding and abetting laws have historically been applied and given the laws have never been applied in this way in the past it’s virtually impossible to show Dotcom possessed a criminal mind necessary for the prosecution when they believed the DMCA Safe Harbor provisions protected them form liability.

That is why the DOJ appears to be hell bent on tying up all Dotcom’s assets so he can not pay for a suitable legal challenge for the new application of laws the DOJ dreamed up in this case. The NZ courts have taken a more balanced approach and let Dotcom resources to challenge the legal validity of the process to date. This is probably due to the lack of revolving doors between the NZ Court system and the media industries to date 😉

kiwirob (profile) says:

Re: Re:

The judge specified that the hard disks where not to be given to the FBI without further consultation with the courts and the defence but the FBI took them anyway. It was the taking without the approval of the court that made this illegal. Basically the FBI violated a NZ Court order. This might have contributed to the NZ legal system making multiply decisions in favour of Dotcom against the wishes of the Americans. It’s not a wise thing to ignore the wishes of the court.

Whatever (profile) says:

Re: Re: Re:

The disks themselves, perhaps – but with a ruling like this, is the information on there (the computer files) really property? It would seem with this ruling that only the physical hard drives themselves are property, and the 1’s and 0’s on it are not.

Essentially, the NZ court would have to overrule this latest judgement to consider the content of Kim’s hard drives to be property.

Another aside: Do you think that this ruling would mean that data stored, say on your phone, is subject to privacy laws? It’s not specifically private property, so what is it?

G Thompson (profile) says:

Re: Re: Re: Re:

The violation of a court order is not the same as the case this was about. Property in the criminal case under the definitions in the NZ Crimes Act are specifically now read to not include digital only data.

The Act involved in the Courts order forbidding the NZ police from removing evidence and handing it over to another jurisdiction is an entirely separate matter and has more to do with Evidence than ‘property’ in it’s tangible AND unfungible form. So there is no need to overrule a criminality decision on definitions within the Crimes Act at all.

The ‘evidence’ was removed and passed on contemptuously and that as kiwibob stated is not something any party really wants to do to any court. Especially the USA in New Zealand since no matter what the political climate at moment might be the NZ courts have a LONG memory and are not beholden in the same way to the government as the US courts/judges are in America.

As for your privacy question. Privacy isn’t really to do with the intangible data (or non-property) it is more to do with the identifiable information itself and how that data can be used. It’s more a subjective test than objective as the definition of property has now been defined in this matter.

Whatever (profile) says:

Re: Re: Re:2 Re:

My thought process is really this: If they hand back the drives but keep a copy of the data, have they retained his “property”? Nope.

If it is not property, then collecting it (the digital material) without a warrant should be acceptable, because it’s not anyone’s property.

The privacy part is just spin test. If data on your phone is not property (such a document would be your property), how can privacy by violated? If someone uses tools to obtain the data from your phone, have they actually broken any real laws? Is the data “taken” property as in theft, or would the entire case hinge solely on proving the unwanted access?

I’m just trying to wrap my mind around the concept to see how they might apply.

nasch (profile) says:

Re: Re: Re:3 Re:

The privacy part is just spin test. If data on your phone is not property (such a document would be your property), how can privacy by violated?

Why must something involve taking property to be a privacy violation? That seems like a complete non sequitur. For example, listening in to someone’s private phone call could be a violation of privacy without taking any property.

Anonymous Coward says:

Re: Re: Re:3 Re:

The privacy part is just spin test. If data on your phone is not property (such a document would be your property), how can privacy by violated? If someone uses tools to obtain the data from your phone, have they actually broken any real laws? Is the data “taken” property as in theft, or would the entire case hinge solely on proving the unwanted access?

You make little to no sense in that privacy laws are not property laws. Your private data is still private, even if it isn’t property. Obtaining that information without the consent of the person holding that data, or a legal mandate, is still a violation of privacy. Theft never really entered into the equation.

kiwirob (profile) says:

Re: Re:

In New Zealand you’d run afoul of section 240 of the NZ Crimes Act 1961 sorry.

240 Obtaining by deception or causing loss by deception
(1)Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—

(a)obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

(b)in incurring any debt or liability, obtains credit; or

(c)induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or

(d)causes loss to any other person.

(2)In this section, deception means—
(a)a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
(i)knows that it is false in a material particular; or
(ii)is reckless as to whether it is false in a material particular; or

(b)an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or

(c)a fraudulent device, trick, or stratagem used with intent to deceive any person.

Anonymous Coward says:

the only ones that refer to digital files being copied as being stolen are the entertainment industries heads and the lawyers involved in copyright infringement cases. it is then used to try to make the crimes seem to be x20 at least and is therefore worthy of an inexcusably long jail sentence and massive ‘out of all logic and proportion ‘ fine for the ‘perpetrator!!

Anonymous Coward says:

So all the claims about China hacking into US corporate computers and stealing “intellectual data”, are baseless accusations. According to the new law, information stored in digital form can’t be considered property.

I agree copying digital files isn’t theft. Unless the original files are destroyed in the process. In which case someone is being deprived of ownership through the destruction of their copy of the files.

So unless the Chinese are destroying files after they copy them from US companies back to mainland China. The only thing they’re guilty of is unauthorized access to “intellectual data”. They’re not guilty of theft. Intellectual data is not property.

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