Theft???

I had a bit of an epiphany today while visiting my second office. What is the definition of theft?

In my mind, before looking it up, theft occus when something of value (generally property) is unlawfully transferred from one entity to another. That is to say, Person A has something that the Person B used to have, and Person B no longer has what they used to have, and Person B did not grant permission for Person A to obtain the property of Person B.

Transferrence ["conversion"] must be a requirement for theft, right?

A quick bit of reading on the Internets and I have a very clear legal definition of theft in English Law: (emphasis mine)

In English law, theft was codified into a statutory offence in the Theft Act 1968 which defines it as:
"A person is guilty of theft, if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it". (Section 1)

According to the sentence codifing theft, there are five elements which must be present for the label of "theft" to apply: (sections 2 - 6)

The five elements of the offence are defined sequentially in the Act:

• Section 2 dishonesty;


• Section 3 "appropriation" which occurs when the defendant wrongfully asserts the rights of ownership over the property. This can be by physical taking, but it will also include many different situations (i.e. a failure to return or omission) in which a person may have lawfully come into possession of the property and then keeps or uses the property in an unauthorised way;


• Section 4 "property" includes all personalty, i.e. land itself cannot be stolen but anything severed from the land (with the exception of wild flowers) can be stolen, as can intangible property such as a chose in action; however it seems that the term does not extend to all intangible property, as information (Oxford v. Moss) and trade secrets (R v. Absolom, The Times, 14 September 1983) have been held not to fall within the Section 4 definition of property.


• Section 5 "belonging to another" requires a distinction to be made between
  ownership, possession and control:
  • ownership is where a person is not legally accountable to anyone else for the use of the property:
  • possession is where a person is only because it had been physically removed but there were two issues to be decided:
  • did the car "belong to another"? The garage had a lien i.e. a "proprietary right or interest" in the car as security for the unpaid bill and this gave the garage a better right than the owner to possess the car at the relevant time.
  • what was the relevance of Turner's belief that he could not steal his own property? The defence of mistake of law) only applies if the defendant honestly believes that he has a right in law to act in the given way. Generalised and non-specific beliefs about what the law might
    permit are not a defence.


• Section 6 "with the intent to permanently deprive the other of it" is sufficiently flexible to include situations where the property is later returned. For example, suppose that B, a keen football fan, has bought a ticket for the next home match. T takes the ticket, watches the match and then returns the ticket to B. In this instance, all that T returns is a piece of paper. Its value as a licence to enter the stadium on a particular day has been ermanently lost. Hence, T steals the ticket. Similarly, if T takes a valuable antique but later repents and returns the goods, T has committed the actus reus with the mens rea. The fact that T's conscience forces a change of mind is relevant only for sentencing.

The article goes on to discuss US law regarding theft, and basically says that the states generally prosecute crimes of theft, except in cases of intrastate commerce and "certain narrow categories of theft which directly affect federal agencies."

What is my point? The MPAA claims that "Pirates" are "Theives" and they are "Stealing" movies. They run ads at the beginning of feature films in theaters that claim that downloading is stealing (implies theft) but is it really?

I'm not saying that you SHOULD download movies, I'm not saying there isn't anything wrong with it, I'm just saying that someone needs to explain Theft to the movie industry. Especially for the UK. Let's examine what we need to have in order to classify the obtaining of copyrighted works via an illicit channel--

Section 2:

"dishonesty"

This probably applies. I think we can agree that watching a movie with no compensation to the entity that funded and/or produced the movie would be a bit dishonest. But we need to meet all five criteria. Section 3:

" 'appropriation' which occurs when the defendant wrongfully asserts the rights of ownership over the property."

I don't believe anyone downloading a copy of a motion picture is attempting to assert any rights of ownership. Besides- when you buy a DVD you don't "own" the motion picture, you simply have purchased a restricted-use license to view the movie. Even when legally obtaining a movie, you aren't asserting any rights of ownership, so I do not believe that one could argue that a downloader is asserting any rights of ownership.

Section 4:

"property"

I don't believe you can claim that a digital copy of a motion picture (ones and zeros on a digital storage medium) represents property- it does not leave one place and move to another. If trade secrets are not property, then neither are ones and zeros in a particular order. Assume it is property, if you like. We still have to meet all five requirements.

Section 5:

"belonging to another"

This one is complicated and tricky. I don't think it applies but you may, so I'll give it to you. On to Section 6:

"with the intent to permanently deprive the other of it"

I don't think you can possibly believe that someone having a copy of a motion picture deprives the content owner of it. There isn't any way to argue that section six has been satisfied.

Downloading a movie without paying for it may violate a copyright law, but it can not constitue Theft by the legal definition and thus downloaders may be called "Pirates" but not "Theives."

Did you "steal" that movie? Probably not.

(IANAL)