Glyn Moody reports
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.
(Score: 3, Insightful) by cafebabe on Friday July 25 2014, @04:04PM
If digital data is not property, does that mean making copies of digital data is not intellectual property infringement?
1702845791×2
(Score: 1, Informative) by Anonymous Coward on Friday July 25 2014, @04:07PM
Yes. It may, however, still be copyright violation.
(Score: 1) by frojack on Friday July 25 2014, @04:30PM
But you've simply used alternative words in your reply, and in doing so, we are no closer to the answer.
The question was:
TFS suggests that the data is not property, and property is a broader category than Intellectual property.
So by simple logic intellectual property stored in digital form becomes NOT property. Boom. There goes copyright.
It's sort of a dangerous ruling, and one that, in a rational legal system, would have to be rolled back to protect copyright.
Logically, It can't be intellectual property for purposes of copyright and NOT intellectual property for any other purpose.
No, you are mistaken. I've always had this sig.
(Score: 2) by bob_super on Friday July 25 2014, @04:35PM
"stored sequence of bytes available to a computer program or operating system... cannot meaningfully be distinguished from pure information"
There go all the EULAs...
(Score: 2, Informative) by Anonymous Coward on Friday July 25 2014, @04:43PM
It's not just different words. It's a different concept.
As the name says, copyright is about the right to copy. Not about owning the text (that would be property) but about the right to make copies of it.
Note that if you are stealing a DVD, then you are sued for stealing the physical item (the DVD the data is stored on), not for stealing its contents (which you couldn't do since it's not property) and not for copyright violation (since you didn't copy).
(Score: 1) by tftp on Friday July 25 2014, @05:03PM
As the name says, copyright is about the right to copy. Not about owning the text (that would be property) but about the right to make copies of it.
How can you enforce your rules (to copy or not to copy) on something that you do not own? What if I tell you that you may not walk on a public street, or breathe public air, or listen to those wild songbirds?
(Score: 0) by Anonymous Coward on Friday July 25 2014, @05:42PM
The rule not to copy is given by law, not by me. However I'm given, by law, the right to allow it to you anyway. The rules are then given in a contract, governed by contract law. They are enforced the very same way as any other contract is enforced. If I make a contract with you that I give you a million dollars if you publicly declaim the alphabet every day, and after receiving the million dollars you refuse to declaim the alphabet, then I can sue you for it. Does that mean I now own the alphabet?
Then you better point me to a law that disallows me to walk on a public street unless getting your permission. There's none? Well, then you cannot forbid it.
Now if every time I meet you on the public street I'd shout "asshole" at you, I'm pretty sure you'd be able to sue me, successfully, despite owning neither the street, nor the word "asshole". But if we previously made a valid contract which says I'm entitled to shout asshole at you every time we meet, then you'll probably have a hard time suing me for it, again without either of us owning the street or the word "asshole".
(Score: 2, Informative) by tftp on Friday July 25 2014, @07:06PM
The rule not to copy is given by law, not by me. However I'm given, by law, the right to allow it to you anyway.
What law prohibits copying? Per Wikipedia [wikipedia.org]:
As one would expect, the law does not prohibit anything. It simply delegates the choice of granting or prohibiting access to the author. Then the author uses a suitable license, or makes up their own, to specifically name those rights (and lack of them.) For example, GPL has a specific, somewhat complicated scheme of denying rights to users who do not follow the license. The law says nothing about prohibiting access to the code if you (distribute && !share_the_changes). This comes from your own license. The law cannot foresee all possible scenarios of denial of access.
(Score: 0) by Anonymous Coward on Friday July 25 2014, @07:37PM
> What law prohibits copying?
(a) Don't be a pedant - context was clearly about "unauthorized copying"
(b) If you are going to be a pedant, cite australian law, not US law.
(c) If you have to cite US law, don't cite the constitution, cite the actual law as in USC title 17
(Score: 0) by Anonymous Coward on Friday July 25 2014, @07:38PM
er, NZ law, not australian law
(Score: 2, Insightful) by Anonymous Coward on Friday July 25 2014, @10:06PM
There was a time (in the USA--don't know about the status of other places) when copyright infringement was A TORT.
The offended party had to take you into a CIVIL court and demand monetary damages.
Since the USA made copyright infringement **a crime** and the cops got started making arrests (a gratis labor force for corporations[1]) and **criminal** courts got involved, the dividing line between "unauthorized use" and "theft" has become blurred in the minds of many.
These decisions -should- draw the line back once again--but I doubt the corporations will let that stand and that they will begin yet another propaganda campaign using the words stealing and theft.
[1] Truly gratis in many cases; many USA-based corporations don't pay ANY taxes in the USA.
-- gewg_
(Score: 1, Informative) by Anonymous Coward on Friday July 25 2014, @05:53PM
Wishful thinking. For the plebs, digital data is not property and subject to search and seizure by the police. For those with money and power, this law does not affect them in any way. So plebs can have their data stolen by police and still be prosecuted for downloading a movie, song, book or whatever. Its Win-Win for them, lose-lose for us. Aint life grand?
(Score: 2) by tathra on Friday July 25 2014, @06:05PM
isn't copyright more about exclusive distribution rights? even without information being "property", there can still be a limited-time monopoly granted on the rights to distribute that information. that would mean that under this ruling, downloading a copyrighted work wouldn't be illegal, but allowing others to download it from you or otherwise distributing it would be.
(Score: 2) by frojack on Friday July 25 2014, @06:27PM
That seems reasonable.
But isn't the act of downloading it also an act of copying? (At least if you knew the download was not legally authorized by the copyright holder.)
Even if we get beyond that technicality, the ruling seems to open a Pandora's box of privacy issues for personal data. I know that every image in my Pictures directory doesn't actually have a copyright statement attached or indicated. So why would the police or anyone else need a warrant to access my computer/phone and copy all my photos?
To my way of thinking, Pure knowledge exists only in brain cells. Once stored to some other medium, and it becomes intellectual property.
No, you are mistaken. I've always had this sig.
(Score: 4, Interesting) by tathra on Friday July 25 2014, @08:36PM
well, yes, but you're not distributing it, just receiving it from an unauthorized distributor. since its not property, they can't hit you with "receiving stolen property" or anything like that, but they could probably still do something like conspiracy charges if they really wanted to nail the downloaders, claiming that the downloaders are conspiring with the unauthorized distributor, because the distributor isnt distributing unless there are people are receiving it. i hope this does end up having unintended consequences, but stuff like going through your cell phone without a warrant is already covered by the 4th, supported by a SCOTUS ruling.
i understand thinking of knowledge as only existing as thought, but i dont agree. the whole point of language is to convey knowledge and information; intellectual property is a legal construct, and that line of thought makes every single word ever spoken or written down intellectual property. the majority would already be in public domain (but only because it predates the 20th century; any new languages or writing systems created now would be somebody's property!), but it just seems to overcomplicate things (could you imagine having to pay a licensing fee just to speak or write in english?). a much better definition, due to simplicity if nothing else, is something close to the current legal definition - "a work or invention that is the result of creativity, such as a manuscript or a design" - basically nothing thats naturally occurring or obvious can be claimed as somebody's intellectual property.
(Score: 0) by Anonymous Coward on Friday July 25 2014, @11:08PM
> I know that every image in my Pictures directory doesn't actually have a copyright statement attached or indicated.
Actually they do. The Berne Convention made copyright implicit, removing the requirement for a copyright notice. Nowadays as soon as something is "fixed" it is automatically copyrighted. Registration of copyright entitles the owner to statutory damages over and above actual damages, but is not necessary. (This whole automatic copyright has caused all kinds of problems with respect to things like orphan works, but that is a topic for another day.)
Here's the way to understand what "intellectual property" means from a legal standpoint. The "property" isn't the content, it is the right to control the content. You can sell your copyright just like you would sell mineral rights to land you own. The legal system has bifurcated the control over something and the thing itself and it is the control part that is considered property. That's how patents and trademarks work too, the property is the legal right to control the ideas in the patent, not the ideas themselves.
(Score: 3, Interesting) by present_arms on Friday July 25 2014, @04:11PM
That has been my take too, So by right you can't "steal" IP or infringe on it. Note it is my personal view that you can't steal anything that's copied digitally. However, I have just thought that if I buy say a tune/e-book/movie from Itune/Amazon/Google et el, then that property isn't mine and therefore can be revoked?
http://trinity.mypclinuxos.com/
(Score: 4, Insightful) by meisterister on Friday July 25 2014, @04:10PM
...until they're strongarmed into changing their decision. There's no way that something like this can last.
(May or may not have been) Posted from my K6-2, Athlon XP, or Pentium I/II/III.
(Score: 2) by Thexalon on Friday July 25 2014, @04:16PM
Well, given that this is about a rugby player, I'm guessing the defendant will be strong-armed very quickly!
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 2, Informative) by frojack on Friday July 25 2014, @04:35PM
You must be new here. Welcome to planet earth.
English law is every bit as obtuse and convoluted and self contradicting as American law, (perhaps more so, they've been at it longer).
Some such contradictions in law can stand for centuries.
No, you are mistaken. I've always had this sig.