Digital thieves/Die (englische) Sprache des Urheberrechts

The Guardian recently had an article entitled Digital thieves swipe your photos – and profit from them.

Pedantic readers were having none of this theft terminology. Hence yesterday’s technology blog post: What’s the right way to talk about copyright stuff?

The aggrieved reader wrote (in part):

“I only read the heading and subheadings of this. For god’s sake, at least use the correct terminology. The photographs in question simply are not being stolen. They’re being copied. No thieves in existence there, but copiers. Illegal copiers I’m sure (whether it’s a good idea for so many things to be illegal to copy or not is another issue). You’re not helping us nor yourselves by perpetuating this kind of BS. The party who initially has possession of the item in one case no longer has the item, and in the other, does. That’s a big difference. That’s why we have different words with very different meanings to describe the two fundamentally different situations. But you’ve got them mixed up. And helped other people get them mixed up too.”

There is an attempt to fight a rearguard action from the legal point of view, but after all, a bit of polemic must surely be permitted, and the latter would be the better argument.

Comment by the author, Charles Arthur:

@ParkyDR @nickholmes: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.”

Surely the property here is intellectual property, which courts have construed as existing in the same way that physical property does.

The “permanent deprivation” is of the opportunity to sell it (or prevent it being sold).

The Theft Act says that property ‘includes money and all other property, real or personal, including things in action and other intangible property’ – but the things in action have to be capable of appropriation.

(Dietl: chose in action (einklagbares) Forderungsrecht; obligatorischer Anspruch (der Gegenstand einer Klage sein kann); unkörperlicher Rechtsgegenstand (Wechsel, Sparguthaben, Patente, Urheberrecht, Versicherungspolice, Rente etc))

Comment by AlexC:

As a former copyright lawyer, I think “theft” is *technically* the wrong word. But then most people don’t understand the technical meaning of “theft”, so what does it really matter?

As a matter of general practice, the term “copyright theft” has been around for quite a while – e.g. at the cinema you will see anti-piracy adverts from a group called the Federation Against Copyright Theft (“FACT”).

The legal offence of copyright infringement and the legal offence of theft are so analagous that they fall within the same linguistic term “theft” in piracy-type situations.

Now, for some real fun, we could consider whether the tort of copyright infringement is analagous with the tort of conversion…

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