In 1962, the prestigious American Law Institute issued the Model Penal Code, resulting in the confused state of theft law we’re still dealing with today.
In a radical departure from prior law, the code defined “property” to refer to “anything of value.” Henceforth, it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly.
Before long, the code would inform the criminal law that virtually every law student in the country was learning. And when these new lawyers went to work on Capitol Hill, at the Justice Department and elsewhere, they had that approach to theft in mind.
Green is already in trouble when he starts bending the word “intangible” all out of shape to include things that are manifestly physical (a train ride, natural gas), so it’s not at all surprising that he’s in the weeds when he talks about computer files. A computer file is certainly quite physical, to the point where, if one were willing to work at it sufficiently, one could pin down exactly where each bit of it was. What makes these files uniquely problematic is that, unlike other media, one must make a copy of the thing to use it at all, because that’s the way computers work. If you go to Youtube, for instance, when you play a video there will be a local copy of it on your machine, and you can get (for Firefox, at least) an add-on which will allow you to save that copy where clearing the browser cache won’t destroy it. And since copying is the basis of everything, it’s trivial for people to take whatever they want without compensating anyone, except that people rig up contrivances (such as license keys) to prevent unauthorized copies from working.
People, deep down, do understand that they are stealing music and videos and the like through file sharing. But eventually the soul gets worn down from all the rationalizing, and the cupidity of the major media distributors makes that rationalization all that much easier. We do need to work out better as a society exactly what the dimensions of this kind of ownership ought to be, but the notion that there’s no theft going on is a unsupportable rationalization.
I can’t wait to read his article on identity theft.
I am Spartacus!