Federal Prosecutor Claims That Copyright Infringement 'Discourages Smart People From Doing Innovative Things'

from the that's-the-well-thought-out-quote? dept

Just about two years ago, we wrote about the DOJ seizing three websites that were allegedly set up to let people download cracked versions of fee-based Android apps. As in the past, we were somewhat troubled by the government's willingness to seize websites without any form of adversarial hearing. As far as we can tell, such actions clearly violate the First Amendment as per the ruling in Fort Wayne Books v. Indiana. Either way, two years later, the government has finally gotten around to indicting some of the folks behind the three sites: Appbucket, Applanet and SnappzMarket. It's entirely possible that those indicted did break the law, though the fact that in all three cases the feds first got some of the other participants to take a plea deal in which they supply evidence against the others and that most of them were only charged with one or two counts on things like "conspiracy to commit criminal copyright infringement" suggests a fairly weak case. This is a DOJ that we're used to seeing pile on dozens of charges.

But, what caught my attention is the ridiculous rhetoric from the DOJ in announcing these indictments. The most bizarre and stupid line has to go to US Attorney Sally Quillian Yates of the Northern District of Georgia:
“Copyright infringement discourages smart people from doing innovative things,” said U.S. Attorney Yates. “This problem is especially acute when it comes to rapidly developing technologies, like apps for smart phones, and these defendants are now being held accountable for the intellectual property they stole.”
Note that this isn't just a random quote in an interview. This is the quote that Yates put in the press announcement, meaning that multiple people vetted this and thought it was appropriate. First off, I'm curious: which "smart people" have been "discouraged" from "doing innovative things" because of copyright infringement? Does Yates honestly believe that some brilliant app developer out there had an idea for an app and said... "nah, if I make that, people will just infringe, so screw it." There may be a reasonable argument that some developers may not make as much money as they otherwise might have -- and that leads to fewer resources to focus on development. But the idea that it scares people off from actually doing work is... simply not true.

And even if the statement were true, is that really the yardstick we want to measure things by? Because I can also show plenty of cases where copyright infringement has actually encouraged smart people to do innovative things. The creation of important peer to peer technology was built on the back of the desire of some to infringe. The amount of creative and innovative work based on infringement is pretty damn high. If we're going to get into a pissing contest over whether infringement inspires or discourages innovation, US Attorney Yates is going to lose badly. Very badly.

Also, what "intellectual property" did they "steal?" This is a US attorney, and as far as I can tell, none of the indictments involve anything relating to any statutes on theft. Furthermore, nothing seems to involve them taking the copyrights away from original owners. At most, it appears that these individuals set up sites for the sharing of infringing copies of apps. If you're talking about "theft" of "intellectual property" you kinda have to be talking about someone taking someone else's copyright (or patent or trademark), otherwise you're saying things that are simply inaccurate.

Next up, we have "Special Agent in Charge J. Britt Johnson of the FBI’s Atlanta Field Office."
“Today’s federal indictments are the direct result of an extensive and thorough federal investigation into three groups of individuals aggressively engaged in and profiting from the theft of intellectual property,” said Special Agent in Charge Johnson. “While copyright infringement is the direct theft of the hard work of others in the form of research and development expended, it can also negatively impact incentives for further or future development of those ideas or applications. The FBI will continue to provide significant investigative resources toward such groups engaged in such wholesale pirating or copyright violations as seen here.”
Copyright infringement is "the direct theft of the hard work of others." How do you "steal" the hard work of others? And where in the indictment is anything having to do with actual theft, rather than copyright infringement?

It's troubling that the DOJ seems to have taken the copyright industry's bogus language of "theft" and "stealing" and falsely applied it to issues related to infringement. Even if these individuals broke the law, you'd hope that the DOJ would at least accurately portray the indictment and charges against the individuals, rather than making plainly ridiculous claims. The problem, though, is that this is what happens after a generation of entertainment industry execs spew misleading garbage about how infringement is "theft." A bunch of DOJ folks who don't understand intellectual property just act as if this is the same thing, even though it isn't even close.

Filed Under: android, apps, britt johnson, copyright, criminal copyright, doj, domain seizures, fbi, sally quillian yates, theft
Companies: appbucket, applanet, snappzmarket


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  1. This comment has been flagged by the community. Click here to show it
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    Ja Rule, 23 Jul 2014 @ 8:44am

    You're out of your element, Mike

    Mike, you ignorant slut.

    There are legitimate questions re: the degree to which copyright/copyleft approaches encourage innovation, so why do numbskulls like you feel the need to push strawman arguments aimed at the lowest common denominator rather than actually wading with arguments based on facts? Especially when your article is an attack on the other side for making...unsupported statements?!

    I'm not sure if you are stupid, intentionally misleading your readers, or just trying to show your 6th grade English teacher that you WILL make something of yourself despite your ignorance of basic grammar, but this is both a crappy sentence AND evidence that you probably don't know a whole lot about how copyright works: "Furthermore, nothing seems to involve them taking the copyrights away from original owners."

    If you read the indictments, you'd know that the defendants actively distributed cracked copies of apps, and those apps (which are protected by copyright) were created by people who did not authorize them to do that. The indictments are straightforward. These people weren't creating fan fiction, or derivative works, or engaging in any other legally protected activities, but you've read them and know that, right? That's why you called it out in your article...oh wait...your reaction to the news wasn't thoughtful, it was a knee-jerk.

    The "it's not theft" argument is at best an honest mistake about the meaning of theft and at worst is an excuse based on some Robin Hood-fueled delusion about correcting a perceived injustice. Since you'd rather waste time with a semantic argument about what "theft" is in order to (I'm guessing) defend any act of infringement, let's talk about theft.

    Theft is the wrongful taking of someone else's property. In other words, if the owner of the property has not given you permission to have/use the property, you are wrongfully taking it. This is a concept that 3 year old children understand, and regardless of whether the property at issue is your neighbor's bike or a copy of something that has been recorded in a digital medium, it is wrong to take someone else's property if the owner hasn't given you permission to do so. On the contrary, if the owner has authorized others to take the property (by freely licensing it for any use, for example) then taking it is not theft because you have their permission. Harm does not appear in the definition of the word "theft," and there is also no requirement that the taking be permanent. Accordingly, because copyright infringement - by definition - involves an act of "wrongful taking" of someone else's intellectual property, it is 100% accurate to call it "theft."

    You've never been a prosecutor, so you really aren't in a position to evaluate the relative strength of a criminal case. To paraphrase your own article, even if you did know a little bit about the law, one would hope that the you would at least accurately portray the acts of wrongfully taking that formed the basis of these indictments rather than making plainly ridiculous claims about what is and isn't theft. The problem, though, is that this is what happens after a generation of consumers have gotten comfortable with taking digital content without paying for it spew misleading, self-serving, delusional garbage about how copyright infringement is not "theft." With sentence construction skills like this, it's no wonder the WSJ and Wired hold you in such high regard!

    Again, copyright law can be extremely complex and there is plenty of gray area...but in situations like this, where people in the US are breaking US law and wrongfully appropriating the property of others, the case against them is going to be pretty black and white. Regardless of whether you call it "theft" or "infringement," it's illegal, and defending it with a semantic argument about what is and isn't "theft" is the basest form of pandering.

    I'm going back to TorrentFreak now. I might disagree with them on the issues, but at least those guys know how to compose a sentence.

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