The Absurdity Of Comparing Copying To Stealing
from the preach-it dept
This is certainly a point we’ve probably made hundreds of times on this site over the years, highlighting that infringement is different than “stealing” in some very important ways. And yet, industry folks, politicians and law enforcement continue to make the claim that one is “no different” from the other. We had already called out US Attorney Carmen Ortiz, who’s heading the prosecution of Aaron Swartz for making the bogus “no different than stealing” statement about Swartz’s actions:
“Stealing is stealing, whether you use a computer command or a crowbar and whether you take documents, data, or dollars,” US Attorney Carmen M. Ortiz said in a statement. “It is equally harmful to the victim, whether you sell what you have stolen or give it away.”
Reader jjmsan points us to Matthew Yglesias’ wonderful two paragraph debunking of this absurd statement, and the fact that US law enforcement continues to make such obviously false equivalency claims:
This is absurd. I wrote a book once, titled Heads In The Sand. I both own physical copies of the book and own the copyright to the content of the book. It is obviously not equally harmful to me if you break into my house and steal my physical copy of the book than if you were to somehow go to the library and make a photocopy of the book. The difference, not at all subtle, is that when you steal something of mine (be it my book, my iPad, my shoes, my money, my immersion blender or whatever), I don?t have it anymore. If you copy something that you?re not allowed to copy without my permission, that?s a very different issue. Perhaps you deprive me of income I would have had if you hadn?t done that, or perhaps you don?t deprive me of anything. As I?ve said before, I sometimes beg online for someone to send me a copy of an academic article that I can?t get free access to. It?s never the case that my fallback option in this situation is to purchase an extremely expensive academic journal subscription. Nobody is harmed when this sort of copying occurs, and even in the cases where there is a harm the nature of the harm is quite different from the harm incurred in actual cases of theft.
I?m not really sure why the people charged with enforcing copyright law are obsessed with obscuring this fact. The laws against stealing are hardly the only laws on the books. There is a perfectly sound public policy rationale for requiring cars to have license plates, but nobody would say ?stealing is stealing whether you take someone?s car or just drive your own car without license plates.? The regulations against copying are supposed 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.? That?s a good reason to have a set of rules, but it?s a reason that has nothing to do with ?stealing.? The question is whether the rules we currently have are actually good ways to achieve this goal.
It’s that second paragraph that’s really the crux of the issue here. We’ve all argued way too many times over the issue in the first paragraph. But there’s simply no good reason at all for officials to use such language when it comes to copying, because copyright laws are entirely unrelated and have a totally different purpose than laws against stealing.
Of course, it’s also worth pointing out a key point that Yglesias seems to skip over which makes Ortiz’s statements here even more ridiculous. For all the “stealing” talk regarding Swartz’s attempts to copy JSTOR documents, he wasn’t even charged with copyright infringement. The “stealing” claim rings even more hollow than usual because he’s not charged with either “stealing” or “copying.” He’s charged with hacking into a system, against their terms of service. Now, I guess someone could try to claim that’s some sort of “theft of service,” but even that claim doesn’t hold up to much scrutiny, because anyone who had access to the MIT network — which allowed guest access, as Swartz was using — had free access to JSTOR.
Comments on “The Absurdity Of Comparing Copying To Stealing”
There is a good reason they keep saying it.
Because that’s what the industry lobbyists who are whispering sweet secrets into their ears are telling them to say. It’s flat out that simple.
As always, if someone has something they don’t have the rights to, they obtained it illegally. You beat around the bush and play games with it, but the underlying act is there.
Oh yeah, from dictionary.com:
1. to take (the property of another or others) without permission or right, especially secretly or by force: A pickpocket stole his watch.
2. to appropriate (ideas, credit, words, etc.) without right or acknowledgment.
3.to take, get, or win insidiously, surreptitiously, subtly, or by chance: He stole my girlfriend.
Steal is still a pretty good way to describe it. You don’t have to take the physical original to appropriate something, do you?
Re: Re:
Then we have the word Appropriate by dictionary.com
verb (used with object)
3. to set apart, authorize, or legislate for some specific purpose or use: The legislature appropriated funds for the university.
4. to take to or for oneself; take possession of.
5. to take without permission or consent; seize; expropriate: He appropriated the trust funds for himself.
No one took “Possession” of someone else’s ideas. It’s not like someone claimed to own the thought in someone else’s head…
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Okay, then, let’s try this the other way.
You have nothing, I have something (a digital copy of a song I paid for on itunes). You access my computer without me knowing, and you obtain a copy of it.
Now you have something. I do too.
Did you pay for it? Did you obtain the rights to it? Did you lawfully obtain it?
Now, let’s say I give you the copy (you don’t have to break in to get it). Is the result not the same? There is now more music, but only one of us has rights to it. What would you considering your copy?
Illegal, right?
So when you obtained the copy, you had to break the law, right?
So if not stealing (as in theft of service, theft of rights, etc), what would you consider it?
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The second person in your story infringed on the privilege of distribution granted to the copyright holder.
It can’t be theft of service, because the file isn’t a service. It can’t be theft of rights, because the copyright itself wasn’t transferred illegally; the second person doesn’t now hold the copyright, just the file. That copyright itself is a privilege and not a right is a separate topic.
You are aware that there are other types of illegal activity than theft, right? Walking across someone’s yard isn’t theft of right-of-way, it’s trespass. If a neighborhood child comes into your unfenced yard and drowns in your pool, you aren’t guilty of theft of life, but you may be guilty of creating an attractive nuisance and manslaughter.
Bernie Madoff wasn’t found guilty of theft, but of fraud. People who take money from their company or investors are guilty of embezzlement.
Theft is specific. Some things are analogous to theft, but that isn’t how the law works.
Re: Re: Re:2 Smuggling
Infringement is more akin to smuggling. Smugglers react to an artificial scarcity to provide what is desired. Nothing is stolen, in fact the total supply is increased unlike theft. The only loser is the holder of the economic benefits of the scarcity.
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You both already own digital storage devices. On your storage device the 1s and 0s are arranged in a certain way that a digital music player will make particular sounds and noises into a specific song. The second guy already owns his 1s and 0s on his device, they’re just not arranged the same. The second guy copies the arrangement of your 1s and 0s and can now produce the exact same sounds and noises from his device. Nothing was taken.
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It’s copyright infringement!
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“So if not stealing (as in theft of service, theft of rights, etc), what would you consider it?”
Um, the same thing the law does: infringing (notice again, not stealing).
Re: Re: Re: Okay, then, let's try this the other way.
I would consider my copy infringing.
I think you’ve overlooked something important. You didn’t pay for your copy of the song. You paid for a license to a song from iTunes. That’s why you can’t sell me your copy. You don’t have the right to because you don’t own it.
That’s why copyright infringement is not theft. The same property rights do not apply. You could however sell me your Lincoln Towncar.
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“So if not stealing (as in theft of service, theft of rights, etc), what would you consider it?”
Exactly what it has been called, what it has always been called and classified in law: Infringement.
Infringement is not theft. The law says so, the judiciary says so, every case to date says so.
Good luck on your time-wasting crusade to conflate it with theft tho. I guess even trolls and shills need some way to earn a living.
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Did you pay for it? Did you obtain the rights to it? Did you lawfully obtain it?
Is there anything missing compared to what you had before?
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Now, let’s say I give you the copy (you don’t have to break in to get it). Is the result not the same?
…
So when you obtained the copy, you had to break the law, right?
I think you just said “recieving a gift is the same as stealing.” Is that the direction you mean to be heading in?
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I hate agreeing with ACs but I have a story that will help. A few days ago I was hiking in my beloved Sierra Nevada mountains outside of Lake Tahoe. I saw a beautiful snow-capped peak just to my left. I harmlessly thought that I’d take a picture of it. Well I snapped my photo and wouldn’t you know it, the entire damned thing disappeared!
A park ranger came up to me demanding to know what had happened. I told him that I had taken a picture of the mountain. No sooner had I uttered those words than a fleet of black helicopters descended on our location. An engineer jumped out of the first one, grabbed my camera, and proceeded to pull out all of the bytes one at a time with a very tiny set of tweezers.
It took most of the weekend, but the mountain is now back to where it was (along with a couple of families camping in the mountains and a very confused black bear). The moral of the story is copying things, or even remembering them can be critically damaging to our planet, and thus our children.
And won’t somebody please think of the children?
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Epic. This needs to go to the next funny comment of the week!
You say think of the children, I say THINK OF THE POOR BEAR u bastard 😉
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That’s not the way the law describes it though buck-o. Stealing as the law defines it is taking property from another with the result of depriving the owner of their property. This points out the flaw in logic saying that infringement is theft. When copying works you don’t have permission to, but you are not depriving anyone else of, especially the rights holder, the possession of that content. Theft is the taking of and subsequent loss of property. Infringement is a violation of permissions.
Secondly, content is NOT property. It’s natural state as part of the public domain, because that’s where it came from, makes the public the real owner of any published content. Copyright does not bestow any title of property over author’s works, only the copyright is theirs and that is temporary (if you can call “lifetime” temporary). No one can “steal” from you what was never yours to begin with.
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“When copying works you don’t have permission to, but you are not depriving anyone else of, especially the rights holder, the possession of that content.”
When copying works you don’t have permission to, you are not depriving anyone else of, especially the rights holder, the possession of that content.
Fixed.
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[Secondly, content is NOT property.]
This isn’t always true. A painting or artwork is considered property – it has a physical presence. If I create a painting and display it (whether on a website or in a gallery), it is still “mine” – and it is also content. The public does not own it, I do.
The images I display on my website of my artwork and photography are “mine” – the physical aspects of them. I can touch them, hold them in my hands, etc. They are not part of the public domain and the public doesn’t own them just because I display them on my website as sample work.
You need to be careful how you define “content”. Anything on a website can be considered content, including a digital representation of a real work.
Redistributing that sample image isn’t likely to cause much in the way of harm if you sell physical works, but it still doesn’t belong to the public, nor does it reside in the public domain just because you can see it on the website.
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The physical manifestations of art (e.g. paintings, sculpture) are property because they are exclusive and rivalrous. But the expression and ideas contained within the art are not property because they are non-exclusive and non-rivalrous. A digital image displayed on a website is not anyone’s exclusive property. The author does, however possess the privilege of copyright to control whom may access that image.
All works reside in the public domain by default, because all works belong to the public domain (all works are based on ideas and expression possessed by the public domain, i.e. the whole of human history, everything is based on what came before), copyright just takes certain rights away from the public domain to provide special privileges to copyright holders.
Painting = property
Sculpture = property
Ideas and expressions of those works are not property.
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[But the expression and ideas contained within the art are not property because they are non-exclusive and non-rivalrous.]
Yes, but I wasn’t really talking about ideas or expression. Content can contain more than ideas and expression. The contents of my purse are not ideas or expressions, yet they are “contents” (hence my statement on being careful you define content).
[A digital image displayed on a website is not anyone’s exclusive property.]
Says who? A digital image is created by someone – regardless of how. The ideas in it can be public even the methodology or expression can be “public domain”, but the digital image still has a physical value (ie: money) if the image is one that is licensed or sold. So no, it is not belonging to the public or nobody because it’s displayed digitally.
The actual “sight” of the image (ie: what you see with your own eye) is yours or anyone’s or the public’s. How you interpret the image is yours too, and in many cases, what you do with that (derivative work) is yours (or the public’s if that’s how you choose to see it).
I am all for creative commons and give away much free work, and I believe that copyright laws are rather flawed, and also don’t believe that “stealing” and “copyright infringement” are the same, nor cause the same harm, though both can sometimes cause monetary loss…or not.
I do still believe the image is MINE – until copyright runs out, or I say otherwise (which usually comes long before copyright runs out). You can license it, or you can buy it, or you can probably even use it in your blog. You just can’t claim you created it.
I wasn’t in any way talking about the ideas or expressions contained in the image, but about the actual image itself. There is quite a distinction between the ideas expressed in an image, or the expression of something and “the actual image itself”.
The difference is I can sell or license the image I created (that’s mine). You cannot (nor can the public) sell or license the image I created…not without my permission.
I have a feeling we’re talking about slightly different aspects of the art/image and not quite meeting up.
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Says who? Says copyright law. A copyright on the image is not ownership. Copyright doesn’t give you complete control over the image.
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When you’re talking about digital images, there is nothing but the expression. It is not a painting, a sculpture, nor a hardbound book. It is pure idea and expression displayed in a less abstract form. The painting is made of canvas, minerals, and linseed oil. The sculpture is made of stone, clay, or metal. Those are things that exist in the real world and were someone’s exclusive property before they were art. That digital image is made of nothing but ideas and expression. Those ideas and expressions are created from ideas and expressions taken from the commonwealth of human culture, borrowed, to innovate new ideas and expressions that are, by nature, now part of that whole of human culture.
You emphatically state that the image is your property. How can it be? Does it include only subject matter that didn’t exist before your creation of that image? Is it made of materials that you own? Is your only claim to ownership to that image is that you used your camera to photograph it? If you think copyright provides title of ownership to the images you take, you are mistaken. It is clearly written in copyright law that the copyright, not the work which it covers, is the property of the author. Therefore, you do not own that image. Only the copyright is yours.
I wouldn’t be surprised if that concept bothers you, but you do own something. Your labor, your skill, your ability to create is yours and yours alone. If people want you to create, you command for whom you will create. That is what you own. The art is just your business card, your advertising, your hook. Labor is the good that people will always pay for. Labor is scarce and always in demand.
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No, it is absolutely always true. You are merely conflating “content” with several things that are not content.
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You do realize that words obtain different meanings based on usage, right? Those second and third meanings exist because people equated another action with stealing until the use become understood. That doesn’t actually mean that the different uses are equivalent. There’s a reason there’s more than one definition – because they are different meanings.
By your logic, feeling violated is the same thing as being raped because a lot of people use the the term rape to describe non-sexual violation, as in, “the government is raping my constitutional rights.” Would you be okay with being prosecuted for rape when you’re actually doing something quite different but were accused of “raping” someone’s rights, just because they wanted to use colorful language to paint the action in an awful light?
If copyright violation is actually stealing, why aren’t people being prosecuted for theft? If it really is the same, we don’t need copyright laws.
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As always, if someone has something they don’t have the rights to, they obtained it illegally. You beat around the bush and play games with it, but the underlying act is there.
Move goalposts much?
Copyright infringement is illegal.
Stealing is illegal.
That doesn’t mean that copyright infringement = stealing.
This is basic stuff, and not at all hard to understand.
Re-bunked, just to show how your take is wrong.
‘”Stealing is stealing, whether you use a computer command or a crowbar and whether you take documents, data, or dollars,” US Attorney Carmen M. Ortiz said in a statement.’
Ortiz doesn’t say that every theft is of the /same/ stuff, you conflating propagandist, but mentions different items to show that the underlying principle is the same regardless.
“It is equally harmful to the victim, whether you sell what you have stolen or give it away.”
That seems unarguable in this area: a sale of a wanted product doesn’t occur either way; the only difference is whether the “thief” profits in /money/ not just in the joy of “liberating” what someone else is selling.
Re: Re-bunked, just to show how your take is wrong.
“It is equally harmful to the victim…”
Prove that there was “harm” to the victim. In physical materials this is easy in the the victim now has to replace the item that was stolen. In this case the “victim” still has all the items in their library, and no evidence that what Swartz did has stopped or changed anyone’s mind from buying a subscription.
Re: Re: Re-bunked, just to show how your take is wrong.
but since when does theft have to involve harm?
Re: Re-bunked, just to show how your take is wrong.
So is murder “theft” of life? How about rape as a “theft” of reproductive choice? Hell, by your deranged logic any crime can be considered a form of theft.
Re: Re: Re-bunked, just to show how your take is wrong.
Extending this one step further in that all types of “theft” are equally morally wrong and should be treated as such, since theft of life warrants the death penalty we can assume that copyright maximalists (who support the view of copying = theft) want the death penalty for music downloads.
Well, now, there’s a surprise.
Re: Re-bunked, just to show how your take is wrong.
“It is equally harmful to the victim,”
aw, in what way, a bruised ego? figuring out they aren’t a sepcial snowflake when it comes to their ideas? too bad for them, really, i hope more and more copytards go through that “harm”, maybe then all of this patent/copyright bullcrap will slink to back to whatever abyss it came from
Words matter - under the law.
Accuser/prosecutor (who should know better): Stealing is stealing.
Curious onlooker: So will you be levelling charges of theft?
A/P: We will be levelling charges of [anything but actual theft].
Why do they have to embellish at all? Just state what law has actually been broken and leave it at that.
Wouldn't gov't subsidizing academia be better than waging wars for empire?
You know, this whole problem of “free information” could easily be prevented with a little “socialism” of subsidizing repositories for documents instead of squandering it on obscenely murderous militarism that only increases how the US is hated. The 60’s hippies were again correct.
Now. Matthew Yglesias wrote: “As I?ve said before, I sometimes beg online for someone to send me a copy of an academic article that I can?t get free access to. It?s never the case that my fallback option in this situation is to purchase an extremely expensive academic journal subscription.”
Okay. First, Yglesias considers /his/ wishes to be the only factor: he clearly doesn’t care beans whether /someone else/ wishes to retain the Constitutional rights that he even goes on to list in the next paragraph! That’s just typical of someone who sets themselves above others. But society only works among reasonably equal Peers. Yglesias only sees it going only one way: to /his/ benefit.
2nd requires only substituting nouns to refute: “It?s never the case that my fallback option in this situation is to purchase a — Lincoln Town Car.”
Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
“2nd requires only substituting nouns to refute: ‘It?s never the case that my fallback option in this situation is to purchase a — Lincoln Town Car.’ “
Logical fallacy. Content is not property. A Lincoln Town Car is.
Re: Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
More to the point, if someone gives you a Lincoln Town Car, even if you never intended to buy one, is that the same as you stealing it?
Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
Chances are really good that the academic article that he is requesting a copy of is in the public domain, but locked behind an expensive paywall. Why should he have to pay to access something he should already have access to?
Re: Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
Just because it’s in the public domain doesn’t mean you can take it from anyone that has it for free. If JSTOR takes the documents, organizes them, makes them searchable, etc. and decides to sell access to them, that doesn’t mean you have the right to take it from them for free just because the copyright to underlying document happens to be in the public domain.
Re: Re: Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
What if I pay for access, print out the documents, and then scan my printouts. Can I then make those scans publicly available?
If not, why not?
Re: Re: Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
So obviously I can download stuff from Jstor and make available on my site because everything is Public Domain, right?
Ok,any1 willing to start ThePirateScholar.org with me? I’d go for Peter Sunde and the crew but I need sober ppl and they would be more drunk than sober.
Oh that reminds me that there’s no case against Aaron. But never mind me, the Govt is always right, no?
Re: Re: Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
Doesn’t matter what they did, if it is in the public domain they can’t stop other from using it in any way others see fit, they can even sell the darn thing and you wouldn’t be able to do nothing about it.
Re: Re: Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
“Just because it’s in the public domain doesn’t mean you can take it from anyone that has it for free.”
Umm.. Yeah… Yeah, it kinda does… That’s what PUBLIC DOMAIN IS.
Re: Re: Re:2 Wouldn't gov't subsidizing academia be better than waging wars for empire?
Umm.. Yeah… Yeah, it kinda does… That’s what PUBLIC DOMAIN IS.
That’s not what the public domain is. If JSTOR has a copy of a public domain document on their computers, that copy is their property. You can’t just take it because it’s in the public domain. You’re confusing the copy with the copyright.
If I invite you into my home and tell you you can browse through my library, that doesn’t mean you can take any book that happens to have a copyright in the public domain. That book is my property.
Or more analogously, say I tell you you can copy a couple of photo files from my computer. If I happen to have some other files, like say a scan of a book that’s in the public domain, that doesn’t mean you can copy that file too. That file is my property and your use would be unauthorized.
Re: Re: Re:3 Wouldn't gov't subsidizing academia be better than waging wars for empire?
Actually, if the work is in the public domain I would be perfectly in the right if I made a copy of it while I had legal access to it.
I haven?t done a thing to your copy. Once again, you don?t own a copy of a digital file, you have just (temporarily) licensed the right to use that particular arrangement of 1s and 0s.
If it?s in the public domain, everyone has the right to use it. If you don?t want me to copy it, you need to prevent me from having any access to it.
Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
Now. Matthew Yglesias wrote: “As I?ve said before, I sometimes beg online for someone to send me a copy of an academic article that I can?t get free access to. It?s never the case that my fallback option in this situation is to purchase an extremely expensive academic journal subscription.”
Okay. First, Yglesias considers /his/ wishes to be the only factor:
You aren’t familiar with academia are you?
Generally the practice described is approved , encouraged, and even facilitated even by the publishers. They even used to hand out free reprints for authors to give away to people who requested them.
Re: Wouldn't gov't subsidizing academia be better than waging wars for empire?
Perhaps you have not thought this through properly. Information sharing is an exemplar of moral universalisation — if everyone does it, everyone benefits.
If everyone produces one thing and allows it to be shared freely, everyone no longer only has access to their one thing, but access to hundreds, thousands, millions of things — and at no loss to anyone.
Anyone choosing to restrict their products — in exchange for payment — is the one acting immorally: they break the plainly moral rule purely for self-interest.
Mike, there's a reason they use the word "stealing".
They use the word stealing because it is a semantic tool to make the public sympathetic to their side of the issue and it’s working. It’s the same reason they use the word “pirate” rather than “infringer”. “Pirate” sounds much more serious doesn’t it? It’s a war of semantics where they try to sway public opinion to their defense so they can ask for laws and enforcement far beyond what it reasonable.
Re: Mike, there's a reason they use the word "stealing".
i thought that this might be relevant, so i stole it from one of my favorite books:
JSTOR has pointed out that it cost them money to scan, index, annotate etc all of these articles. What they leave out of the equation is, once it is scanned they have that copy forever. It makes no sense to keep collecting the same amount of money it cost to scan it 15 years ago. They are not paying the people who scanned a document 10 years ago every time a copy goes out.
Given the advances in scanning technology it is no longer the dark ages where their monks produce copies by hand. But they have always charged like this, so they need to continue to do this. (A related example of this nonadapting behavior is record labels still charging the breakage fee based on typical vinyl record breakage.)
JSTOR declined to press charges, but this is continuing as a great piece of theater. They want to paint this as evil hackers pirating these documents and we need stronger laws to lock them away forever or they will rob all of us.
Isn’t the real robbery the fact that a non-profit is charging people a fee to see the documents, and limiting access with rules trying to keep them out of the publics hands? How much needs to be paid to let them recover their costs for each document? Should we keep paying that price once the costs have been paid? Or is this another non-profit with top heavy administration that just wants more?
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> JSTOR has pointed out that it cost them money to scan,
> index, annotate etc all of these articles.
If they had annotated, then they would have copyright on those annotations, and thus would have an actual case.
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O rly? [in reply to JSTOR allegations that they have scanning costs) I’ve produced a few articles myself where there were no physical copies, just the digital one. So that means not all of them were scanned. And they don’t own the copyright simply because the copyright belongs to the author (considering he has ever claimed such thing).
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“JSTOR says it?s in the process of verifying that the documents came from their service, but says the manifesto?s quotes of prices are incorrect, since JSTOR doesn?t sell these articles a la carte. And even if the documents were out-of-copyright, JSTOR says users are not free to post them online, because JSTOR?s terms of service prohibit that ? though the company doesn?t claim copyright on them.
JSTOR says that?s their policy because they spend a lot of money to scan, markup and index material, and that their service is available to many people ? though not all ? through university and public libraries.
?In reaction to this individual?s message accompanying the files it is important to understand that there
are costs associated with digitizing, preserving, and providing access to content,? a statement from the company said. ?We have worked, and continue to work, extremely hard to provide access to scholarship to more and more people around the world every day in ways that are sustainable and that assure the public that the content will also be preserved and available into the future.?”
http://www.wired.com/threatlevel/2011/07/science-pirate-bay/
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“JSTOR says users are not free to post them online, because JSTOR?s terms of service prohibit that ? though the company doesn?t claim copyright on them.”
Is this a new form of effectively extending copyright? Just put in your TOS that users are prohibited from copying the material, and now you don’t have to worry about the fact that the material is public domain?
Re: Re: Re:2 Re:
once I am in possession of copies of documents that:
* may or may not have come from JSTOR at some point, or
* may or may not of been annotated by JSTOR at some point, or
* may or may not of been indexed, hidden behind a paywall, charged fees for by JSTOR, or
* may have been part of a so called ‘usage license’ created by JSTOR
AND
those same copies I now have are classified under the public domain in the jurisdiction to where I reside.
Then I have an absolute right and priviledge to do anything whatsoever with those copies. This can include:
* sharing
* editing
* transforming them into other works
* charging for the use of them
* selling them back to JSTOR
* reading them in public at midnight under a full moon whilst naked singing the theme song to cats.
Whether or not JSTOR has a license to the docunments is irrelevant and since those documents are classified as within the public domain, for them to then try to enforce their license on them will result in there breach of license since you can not enforce a contract unlawfully.
Remember they are basically stating they hold an exclusive license on the copies of any form of that document, when in fact the only license they hold is upon the actual physical copy they currently have in their possession, NOT any others that are not in their possession.
As for any annotations, or indexing they have created on their copy, that’s fine and good for them and the reason why they are still able to charge money, though that could soon be a problem, since they are value adding to the document. Courts have held that annotations, indexing etc does not give you ownership of the PD documents, just of your annotations (that are separate anyway from documents)
Now, I guess someone could try to claim that’s some sort of “theft of service,” but even that claim doesn’t hold up to much scrutiny, because anyone who had access to the MIT network — which allowed guest access, as Swartz was using — had free access to JSTOR.
But he exceeded the level of service he was entitled to, so it was “theft of service.” Whether the access is free or not is beside the point.
Re: Re:
What level was he entitled to, that he exceeded?
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He ran an automated script that scraped documents from the database. The terms of use don’t allow this.
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Violating a ToS is now “theft of service”?
Yikes. I think pretty much everyone in the world is a thief, then.
Re: Re: Re:2 Re:
Violating a ToS is now “theft of service”?
This argument has been tried before in various forms (see: Drew, Lori) and is really nefarious. Though it means I can turn all of you into felons pretty quickly. *Insert evil laughter here*
Re: Re: Re:3 Re:
Why, because you can change your TOS? If I posted something yesterday that was within your TOS, and you changed your TOS today such that if I posted it today it would violate your TOS, that doesn’t mean the thing posted yesterday violates your TOS. They don’t work retroactively like that.
Re: Re: Re:4 Re:
would you notice if the Ters of Service changed overnight? I sincerely dout it — i wouldnt know. And thats the point.
Re: Re: Re:3 Re:
As Mike said, this law (CFAA) has never really withstood scrutiny in a court. All of the cases (at least the high profile ones) have not resulted in any convictions.
The law, as written, allows a private entity to determine what is criminal behavior, which is deeply troubling. Courts haven’t been sympathetic to that possibility.
Re: Re: Re:4 Re:
18 U.S.C. ? 1030(a)(4).
So what’s the argument this doesn’t apply to him? Are you saying that since JSTOR created the policy it’s not fair to hold him accountable for what he did? It’s safe to say that if the allegations are true, he knew damn well that he was breaking law, right? I don’t see what all the hubbub is.
Re: Re: Re:5 Re:
Better question: Which part of this DID he break? Intent to defraud? That takes a hefty level of proof. Access without authorization? He used the guest access that’s available for everyone. Exceeds authorized access? Doesn’t seem to fit, either. And by means of such conduct furthers the intended fraud (there’s that word, again, Intent) and obtains anything of value. That’s a possibility, but that pesky ‘AND’…
Re: Re: Re:6 Re:
Exceeds authorized access? Doesn’t seem to fit, either.
If the use that is authorized includes a prohibition against scraping the database and downloading entire volumes of journals, and you then scrape the database and download entire volumes of journals, how is that not exceeding authorized use?
Re: Re: Re:7 Re:
how is that not exceeding authorized use?
“Authorized use,” isn’t mentioned. Just “authorized access.” He hadc authorization to access any and all of those files; just because you don’t like the way he did it doesn’t mean he exceeded his authorization.
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“Authorized use,” isn’t mentioned. Just “authorized access.” He hadc authorization to access any and all of those files; just because you don’t like the way he did it doesn’t mean he exceeded his authorization.
He explicitly did not have permission to scrape the database and download entire issues of journals. He had limited access, and he exceeded those limitations. He appears to have done so on purpose, full well knowing that he did not have permission to do what he was doing. In other words, he knew that he was breaking the law. It’s got nothing to do with how I feel about it, it’s just a fact.
Re: Re: Re:9 Re:
He was authorized to access those articles. He was not allowed, by ToS, to use a scraper. Therefore, he broke ToS but didn’t not violate his authorized access. This is as opposed to if he abused the system in such a way that he gained access to files he wasn’t authorized to or managed to access the system without any legitimate authorization.
The statute being used was intended to prevent/prosecute hackers who break into computer systems, and that’s not what happened here by any reasonable measure. By all means, take him to task for breaking his contract or whatever, but calling this a breach of 18 U.S.C. ? 1030(a)(4) is over-reaching.
Re: Re: Re:10 Re:
He was not authorized to download files the way he did, nor was he authorized to download as many files as he did. As I quoted above, the TOS does not allow downloads of entire issues. They tried to block him, and he hacked his way around it. I’m not so sure that this is overreaching.
Re: Re: Re:2 Re:
Violating a ToS is now “theft of service”?
Here’s a typical statute:
Tex. Penal Code Ann. ? 31.04.
The TOS told him what services he could legally make use of. Violating the level of use he was authorized to have is “theft of service.” So yes, violating the TOS is theft of service. What else would it be?
Re: Re: Re:3 Re:
No. You missed the part about “with intent to avoid payment for service that he knows is provided only for compensation”. The content was not provided only for compensation (he had free access, right?) so this does not apply.
Re: Re: Re:4 Re:
He took more than the free access allowed, and what he took, he would have had to pay for. So he intended to avoid payment for service that he knew is provided only for compensation.
It’s like if my internet company offers free dial up service, but they also have cable broadband. If I sign up for the free service and then steal the cable broadband, I can’t say it’s not theft of service because they give it away for free. What I took, the service, was not given away for free. I should have paid for it. I exceeded my authorized use whether it’s free or not.
Re: Re: Re:3 Re:
“So yes, violating the TOS is theft of service. What else would it be?
Breach or Forfeiture of Contract perhaps?
Oh sorry.. that’s the Legal definition you just want the “He murdered my service so he needs to pay” definition.
OH BTW, it still isn’t a breach, forfeiture, theft, or any other type of tort unless and until a legal authority ie: Court or tribunal finds that it is.
Stating that someone infringed your copyright without having that finding upheld by procedural fairness rules (due process) is soon going to guarantee that a court might find you in breach of another tort called defamation.
Re: Re: Re:3 Re:
Violating the level of use he was authorized to have is “theft of service.”
Let’s see… you have false token, deception, diverting someone else’s service, failure to vacate a rental, and renging on a promise to pay. I don’t see anywhere on there either “violating ToS” or “exceeding authorized use,” so your argument fails.
As to your other point, where you claim he would have had to pay for the level of use he got, I haven’t seen that in any of the reports; is there a limit to University’s access that no one’s talking about, and if so why isn’t anyone talking about it?
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So if you violate the terms of service inside a McDonalds that means you go to jail?
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But he exceeded the level of service he was entitled to, so it was “theft of service.” Whether the access is free or not is beside the point
JSTOR does not say you only have access up to x amount.
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As far as we know the problem is the use of ‘bots’ (scripts) to retrieve all the content.
Still, Public Domain is Public Domain (heh) so it’d be ok if Aaron put everything in a site, providing he had the funds.
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JSTOR does not say you only have access up to x amount.
Yes it does.
http://www.jstor.org/page/info/about/policies/terms.jsp
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[2.2]g. make any use, display, performance, reproduction, or distribution that exceeds or violates these Terms and Conditions of Use; or
They do not have the legal capacity to make this condition for any documents that are within the public Domain, therefore in those instances this condition is voidable.
in fact condition 2.2c “modify, obscure, or remove any copyright notice or other attribution included in the Content;” is also voidable, as are conditions 2.2h, and 2.2j
In fact this is why we see if we go down the TOS a nice little condition
“9.3 If any provision or provisions of these Terms and Conditions of Use shall be held to be invalid, illegal, unenforceable, or in conflict with the law of any jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. A waiver of any breach of these Terms and Conditions of Use shall not be deemed a waiver of other breaches of these Terms and Conditions of Use.”
Which means in plain English.
These conditions in this contract of Service you agree to, could be held to be unenforceable and downright illegal, so just to make sure we need to cover our arse, since we know we cannot state conditions for all eventualities.
Theft
“A lie gets halfway around the world before the truth has a chance to get its pants on.”
Winston Churchill
Mine now.
If Copying is Theft
Then everyone who has taped a song off the radio should be arrested for theft. Everyone who has copied an article from a book or a magazine should be arrested for theft. Everyone who has taken photos of anything covered by copyright has committed theft and should be arrested.
Sharing copyrighted works have been around since the photocopier. People would make copies of interesting things they read and share them around the office. Now days they just copy/paste to e-mail.
Equating theft with infringement is less a flaw in logic and more an act of desperation to attempt to garner public support for outrageous claims.
Except the public isn’t as stupid as they want to believe.
Re: If Copying is Theft
The bible is a translated copy.
Re: Re: If Copying is Theft
King James that is.
Re: Re: Re: If Copying is Theft
The King James is just the Tyndale Bible translation made more palpable to the English crown.
There were earlier English translations of the bible, but Tyndale wrote the majority of the English translation which remains current.
Re: If Copying is Theft
[Then everyone who has taped a song off the radio should be arrested for theft.]
My dad would have spent his entire life in jail if that were the case.
So..
So by your logic, printing money is not stealing?
Re: So..
Yes, I believe that it would be counterfeiting not stealing.
Re: So..
Printing fake copies of money is calling counterfeiting. And actually, in the US, it is NOT illegal to print your own money (your own unique money, not counterfeits).
You forget what is being "stolen"
Let’s not forget – the mindset is that a SALE has been stolen – the entire old business was based on SALES of recordings – measuring the success of a band by number of albums/singles SOLD. Copying completely destroys their whole way of life.
Since not enough support was gained for propping up that model, then the obvious warpath is to prove that EVERY instance of copying is a THEFT so that THEFT obviously must be stopped. Yeah. That’ll happen. That’ll fix it.
Re: You forget what is being "stolen"
one question with regards to your example, if every instance of copying is theft could we say that copyright = theft ?, ( and no i wasn’t refering to copyright infringment )
Re: You forget what is being "stolen"
They need to disable all these rogue recording devices: cassette tape decks, CD/DVD burners. They are obviously tools for stealing sales. Without these rogue devices, we can win the war on piracy. Confiscate any such device without a warrant and without a court order. Only by such decisive action can we protect the artists and the dying music and movie industry.
Consider the copyright itself
It seems logically obvious that when you copy a thing there is no theft of the thing, since the owner still has the thing, so nothing was taken from them. But there are ways to think of copying a thing as resulting in theft. One is that the copying of the thing might have resulted in a lost sale of the thing. Having a sale taken can be thought of as the theft of a sale. Another is that the copyright holder has had the copyright taken from him. Sure he still has a piece of paper that says he owns the copyright on the thing. But by ignoring the copyright owner’s will the copier has effectively stolen the copyright.
I am simply pointing out that the lines between dictionary definition of theft and the results of copying are not as clear as those that focus only on the copying of the thing itself conclude. It seems like something to consider if you are really trying to have an honest debate about this issue.
Biggest issue with comparing copyright violations to stealing is that it misses out on the large ambiguities associated with copyright infringement.
Generally, when you steal something it’s pretty cut and dry that you took some physical item that wasn’t yours. It’s a pretty rare occurance that there is some ambiguity there.
Copyright violations on the other hand are much more open to interpretation. Is the copying allowed via the “fair use doctrine?” It’s hard to tell and the only way to know for sure is to litigate it (and it’s certainly not cut and dry even then).
Is something in the public domain? You can’t tell by looking at it. Sure, you can make some inferences and be right most of the time, but again there is some ambiguity. So what you’re doing could be perfectly 100% legal or illegal with massive fines attached.
What limits on the use of a material does the copyright owner have? In the case of Swartz, that’s really what the entire case comes down to. Again, it’s not an immediately clear line. You have to dig through the TOS (which may randomly change) to be sure.
So if someone was writing a paper… someone else copied it without their permission… then turned it in to the professor… that is not considered stealing? After all, they still have their copy, am I right?
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It actually isn’t theft. It would be plagiarism.
Now had you actually taken his paper, put your name on it, and submitted it, it would be theft AND plagiarism.
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Still not theft. It’s called “plagiarism.”
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With plagiarism you’re taking the other persons ideas, and saying they came from you. Its not theft, because he still has his ideas, but you are attempting to profit (grade) from using his ideas.
With copyright, no one is claming the music came from them, or in may cases, trying to profit from it.
(The theft bit came from the fact that you had literally stolen the paper it was written on.)
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Seriously? This is the best you can come up with?
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It’s called plagiarism, a subset of fraud since you are claiming to pass off the work, or parts of the work, as your own.
Could also be classified as False and Misleading practice.
Aren’t words great!
Copying is sharing, sharing is love.
If It?s ?Stealing?, Treat It As ?Stealing?
When happens if you find a shoplifter in your shop? Do you put your lawyers on to them to send them cease-and-desist letters? Do you try to take away their right to use the public road to come to your shop? Do you sue them for infringing your commercial-property rights?
No. You do none of these things. Instead, you call the cops, and have them prosecuted as the criminals they are.
That?s what ?stealing? means. And that?s why copyright infringement is not ?stealing?; if it was, why not just report it to the cops?
terrorism
Why argue? Copyright infringement is clearly domestic terrorism.
Thomas Jefferson ++
The two-paragraph quote in the article is just a modern re-write of what Thomas Jefferson believed about intellectual property law:
?He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.?
This whole quest for pure originality, which the last century of copyright policy makers hav used as their foundation, disregards the inherently derivative nature of most creation. Let’s get old school and think of ideas like fire rather than rocks.
Re: Thomas Jefferson ++
It’s simple. Thomas Jefferson was a terrorist.
The explanations are wasted. Those who call it theft don’t do it because they are confused, they do it because it invokes stronger emotions than infringement. Others use the word share for the same reason.
An old tactic
But there’s simply no good reason at all for officials to use such language when it comes to copying, because copyright laws are entirely unrelated and have a totally different purpose than laws against stealing.
The answer is simple (and someone may have said it already.
The reason people do obscure this is because when you want the masses (or the people in power) to think something is bad the quickest (but obviously dishonest) way to do it is to associate it with something that’s already understood to be bad.
Wasn’t there an article a while back here about how some politician was trying to say that piracy of movies was somehow related to child porn or something like that?
Politicians even do it amongst themselves when election time comes around. Wait until next year during campaign times. You’ll see a few “(name of opponent) is soft on (issue that most people agree is wrong and should be punished swifty). Do you really want him/her in office?” type ads running.
The industry have no problem defining anything they don’t like as theft.So if a teenager downloading an mp3 is theft so why aren’t these actions also considered as theft?
– passing profits through a “double irish” to evade taxes
– purposely misleading our politicians with bogus figures to get laws that will cost the economy and tax payers millions.
– lying to our judges and juries to convince them into awarding millions of dollars in damages.
– failing to pay collected levies to deserving artists for many years.
– lobbying foreign government with the help of the state department to pass laws that will cost their local industry millions.
–
Greg Maxwell has posted a torrent of JSTOR papers.
Can’t stop the signal.
OMG! could I be accused of genocide?
I totally annihilated a lot of races over the years!
Illegal copying is Stealing
Wow, what a bunch of pontification to support a silly concept. What the attorney said us 100% correct. You are basically using the tangible vs. intangible argument here which IS absurd. If you work for a week and someone just doesn’t pay you, and your work does not create something tangible, then did they steal from you? I say yes. You say no, that it isn’t “technically” stealing. I don’t care what you call it. As far as I am concerned, the thing that you claim they are doing “trying to create sympathy from the public by using the word” is exactly what you are trying to do by trying to avoid the word. Something that has a value has been obtained by someone who did not pay for it properly. That is stealing. I just love all the people who just want so desperately to actually justify being able to obtain anything they want for free as long as it is digital. If I wrote a book and I want people to pay for it, I want them to pay for it no matter how they read it; from paper, from a screen, etc. If you get to read it without paying me, you ripped me off and I don’t care what word you use. If you agree with that, then stop saying copying is not stealing.