The copyright wars continue to produce surprising and contradictory results.
Prosecutors in New Zealand have argued that the FBI didn't steal evidence from New Zealand police by cloning the contents of seven hard drives owned by MegaUpload founder Kim Dotcom because the files on them were not physical.
The argument won't have a direct impact on U.S. courts, but does show how difficult a time courts have making a direct connection between unsanctioned copying and actual theft.
The Recording Industry Association of America (RIAA) faces a similar threat of blowback from its efforts to get Google and Bing to block content pirates from their search results.
RIAA CEO Cary Sherman argued before Congress yesterday that the recording industry will suffer without more laws to protect their interests, despite studies showing music and video producers suffer less from content piracy than retailers do from shoplifting.
Google and Bing, which have not responded but show no signs of wanting to cooperate, should change their search criteria to push file lockers such as The Pirate Bay (TPB) and isoHunt far enough down in the results that users won't click on illegal file-sharing links.
"Whether a site is authorized or unauthorized to make copyrighted works available to the public should be a significant indicator in determining ranking of the result, with unauthorized sites having lower rankings than authorized sites," according to Sherman's written statement.
That would be just great, according to a responding post from The Pirate Bay, most notorious of the sites accused of content piracy, which praised the proposal as a way to differentiate TPB from other search engines.
"Right now about 10% of our traffic comes from these competiting search engines," according to a statement posted on The Pirate Bay (TPB). "With that ban in …users will go directly to us and use our search instead…It's really hard to compete with Google, but if they can't index media search engines like us, we'll be the dominant player in the end."
That's not likely to deter the RIAA's efforts to squelch searches for illegal downloads.
Accusations that it illegally exported the contents of seven hard drives owned by MegaUpload isn't likely to deter the FBI either, of course.
Lawyers for MegaUpload founder Kim Dotcom made the accusation yesterday, claiming both the New Zealand police and FBI were guilty of theft or negligence by allowing the cloned drives out of the country after New Zealand police arrested Dotcom as part of an FBI-directed investigation.
According to Dotcom's lawyer, two FBI agents cloned the drives March 20 and FedExed them back to the U.S. before New Zealand authorities were aware they'd done it.
Prosecutors, in danger of having part of their evidence in the case thrown out, argued that sending copies of files out of the country didn't violate any laws because digital files are not physical, none of the data were made unavailable by the transfer and no physical evidence was taken.
The question is an abstruse point of order dependent on the rules of evidence in New Zealand courts, but goes to the heart of the conflict over copyright protection and the prosecution of those accused of violating it.
There are solid legal reasons to argue that copying digital data without destroying or removing it doesn't constitute "theft" at all, according to Rutgers Law School Professor Stuart Green, an expert on laws on theft.
In an op-ed published March 30 in the New York Times, Green argued that U.S. and British law, on which much of U.S. law is based, has traditionally treated the theft of objects differently than the theft of services or other things that can't be touched.
In 1962, legal think-tank the American Law Institute tried to resolve the issue by defining theft as taking "anything of value" within a suggested framework called the Model Penal Code.
Since then both physical and non-physical valuables have been treated as interchangeable, though they clearly are not. The FBI clearly took seven hard drives worth of data out of New ZealAand, but the NZ police didn't lose any of their own evidence as a result.
Avoiding more ad hoc prosecutions and confusing rulings form courts faced with data-theft cases requires a meaningful recast of what it means to steal "things of value" without physical substance.
That change will affect not only the copyright wars, but also conflicts over patents, trademarks and other intellectual property, all of which pose questions more complicated than those prosecutors in several countries are willing to address in the MegaUpload case or that the RIAA is willing to address at all.
Those eminences would prefer that those they accuse simply hold still and allow themselves to be punished, even without going through the steps considered prerequisite for prosecuting anyone for stealing anything:
- A clear test of what it means to violate copyrights or ownership of digital content;
- Clear definitions of who is doing the infringing when one person stores a file in the cloud and another downloads, or even reads it; and
- How proven rules of evidence can be applied to "stolen" files that appear never to have gone anywhere or been exploited for commercial purposes by someone other than their creator.
Reflexively it's easy to say that both MegaUpload and the FBI acted improperly by copying, moving and benefiting from the digital files in the case.
Applying concrete, anal/retentive analysis to the specifics makes that much less clear, however, leaving other individuals and companies in danger of being similarly accused, without a solid, defensible set of criteria they could use ahead of time to decide whether or not they were breaking the law.
In some circles that may not be a big deal. In those populated by those who like to be called the Right Honorable or Esquire, though (legislators and lawyers) it's a fundamental requirement on which everything else is built.
Overall it would be better to actually have one, especially if the FBI and RIAA are going to be pushing so hard for the prosecution of those who violate it (or don't).
Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.