05 July 2008

I Didn't Call It Piracy
It's Computer Fraud
IP & p2p Part 1

A couple days back, I linked to an article about a person getting convicted in federal court for being part of a ring that uploaded 700+ movies for bit torrent download and I commented on the problems with use of bit torrent to get intellectual property free of cost. This prompted a reply from John David Galt, which has prompted me to further propound upon this matter.
The real purpose of RIAA and MPAA and their efforts is to protect big established media companies from competition from independent artists and from smaller media companies that actually want to give artists their due. See Carly Simon's "sharecroppers" article in Salon.

The moguls who have gotten rich by violating artists' moral right to profit from their works should not be allowed to continue posing as defenders of those rights against a huge horde of imaginary boogeymen. (Oh, and the word for the alleged threat is "infringement", NOT "piracy".)
To begin on a lighter note, I'd like to point out that neither I nor the article linked to called the act "piracy." However, I suspect that there might be a reason that this appellation has persisted:

Just sayin'

Back to more serious consideration, in Virginia I don't think we'd call this "infringement", we'd call it computer fraud.
§ 18.2-152.3. Computer fraud; penalty.

Any person who uses a computer or computer network, without authority and:

1. Obtains property or services by false pretenses;

2. Embezzles or commits larceny; or

3. Converts the property of another;

is guilty of the crime of computer fraud.

If the value of the property or services obtained is $200 or more, the crime of computer fraud shall be punishable as a Class 5 felony (up to ten years). Where the value of the property or services obtained is less than $200, the crime of computer fraud shall be punishable as a Class 1 misdemeanor (up to 12 months).
The without authority is pretty easily established - your contract with your internet provider almost assuredly does not authorize you to download copyrighted materials and the copyright holder has not authorized you to get the property in this fashion, without paying for it. Subsection 1 does not fit. I don't see any false pretense in someone downloading something from Limewire or Bearshare (or others); they download with the intent to watch/keep. Subsection 2 does not fit. Under Virginia's common law, larceny includes a taking of property with the intent to permanently deprive the owner of possession of that property. That leaves us with subsection 3: conversion. Conversion is generally a concept dealt with in civil actions, wherein it often serves as roughly the equivalent of of larceny. However, it is not exactly the same and does not always include the elements of larceny. For instance, it does not require that the defendant take the property. See Commonwealth v. Chilton Malting Company, 1930, 154 Va. 28 (Citing favorably, Aschermann Philip Best Brewing Co., 45 Wis. 266 - leaving a door open so ice melted was conversion). Another definition is "treating another's goods as one's own." With this in mind, I think that in Virginia p2p users are guilty of computer fraud. Of course, most all of these cases would be misdemeanors and the difficulties of putting such a case together would probably keep many localities from pursuing this kind of charge. Still, I think I've established that, for my purposes it's computer fraud.

1 comment:

Anonymous said...

I LOVE the pic of the PIRATE ship and the title PIRATE Bay... but argument that there's no PIRACY!