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.