Illegal Copying is not Theft

A US court has ruled that software is not property to support a charge of theft of property. The purported theft involved an unauthorized download from a server. This should put a damper on inflammatory comments that illegal copying is theft or piracy. It isn’t. It’s illegal copying/violation of copyright. The so-called thief was doing 8 years in jail. He has been freed as a result of the ruling.

Under US law, violation of copyright is not a crime unless commercial use is made of the copy or the value is more than $1K. Even when it is a crime, illegal copying is limited to 1, 5 or 10 years for different levels of severity and this guy was likely in the 1 year category.

see US courts rule Goldman Sachs software isn’t property

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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36 Responses to Illegal Copying is not Theft

  1. Ivan says:

    Can anyone say with a straight face that they will let anything go without appealing until they get a verdict that doesn’t land in their favor?

    Should read: Can anyone say with a straight face that they will let anything go without appealing until they get a verdict that lands in their favor?

  2. Ivan says:

    Excuse me Mr. Ham, but when you say: GPL cases commonly use Contract Law and Trade secrets laws. Not copyright law

    The US Courts have already disagreed with you and applied copyright law.

    Anyway, my original post still stands. These are the people that turned a huge profit on selling mortgages they knew would never be paid off to other banks around the world.

    Can anyone say with a straight face that they will let anything go without appealing until they get a verdict that doesn’t land in their favor?

  3. Clarence Moon says:

    In fact it proves everything I said

    I guess your dictionary was not up to the challenge, Mr. Oiaohm! The matter is of no real importance in your circumstances anyway. Surely your persistent ignorance of IP matters does not affect you and so cannot bring any harm. Even the academic aspect of it all is probably useless to you.

  4. Clarence Moon says:

    This is the law

    Indeed it is, Mr. Pogson, and I am happy to see that you recognize that. The only caution is that delay of filing a copyright registration until faced with filing a lawsuit leaves you open to lots of issues regarding the true ownership of the work. If you bothered to investigate it, you will have noticed this in regard to the SFLC suits filed against the router manufacturers. Their inability to obtain a clean filing due to the challenge from Bruce Perens and perhaps others figured substantially in the SFLC having to finally abandon these suits.

  5. Clarence Moon keeps repeating the lie, “The work itself is unprotected until you register it.”

    This is the law:
    “At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection.”

  6. Clarence Moon says:

    What do you think “action” means in the law?

    In the case of “no action…shall be instituted until…” it means you cannot sue for damages or injunctive relief regarding the work until you register your copyright. In the case of “action…under section 106A “, I would suggest you read section 106A yourself, but that action is limited to not allowing the infringer to use your name in connection to the work. The work itself is unprotected until you register it. Of course you can register it at virtually anytime, if you can show ownership, but the problem with many FOSS programs is the sad fact that they cannot do that without encountering excessive expense and being subject to challenge from many sources who have participated in the creation of the work.

    Look up the issues regarding Bruce Parens who was the original author of BusyBox and who is not supporting the SFLC’s efforts to persecute the router manufacturers who didn’t post the BusyBox source. All of these cases that were challenged in court were dismissed with predjudice when the facts were brought out.

  7. oiaohm says:

    Clarence Moon Simple you an idiot this time you need to really read the first page of the document you have attempted to use.

    Yes all patents start life as a trade secret but not all trade secrets can become patents.

    You are writing a new document that has not been published or released yet. Someone leaks that to who they should not. You have two options copyright or trade secret law.

    Trade secret cases can be held in closed court with no records released due to possible exposure of trade secret. Copyright case the fact you are working on the work will be released.
    You could say all copyright works start out as Trade secrets until they are published as well.

    In fact you did not read the document you presented.

    “Trade secrets, unlike patents, can be licensed forever. The right to obtain royalties for a patent ends upon the expiration of a patent.3 In contrast, the “trade secret” licensee can be obligated to continue paying royalties for the trade secret license even if the information has entered the public domain. This fundamental principle was enunciated in the famous Listerine case.”

    Listerine case is the key one why GPL protected code can be a trade secret. That the information is on the public record does not change trade secret enforcement. So just because GPL is public record does not alter its enforcement as a trade secret protection document.

    Here is the big one.
    “There are no subject matter constraints imposed on trade secret protection so long as the information provides a competitive advantage derived from the secrecy of the information. Both technical and nontechnical information can be protected. The
    gamut of trade secret protection extends from formulas, processes, research and development, quality control, processes, and methods to financial and strategic information including pricing and customer information.”

    There are no limits on what a trade secret can protect yes this include source code, copyrighted works…. Anything yes in fact anything can be protected by a Trade secret as long as require conditions are met.

    In fact Clarence Moon other than the document you pulled being comparing trade secret to patent. Not the document comparing trade secret to copyright.

    It backing everything I have said on the first page. There are more sections in that document that back exactly what I said and prove you are a complete idiot.

    That document clearly tells you that trade secrets cover other things that cannot be patented. Yes trade secrets cover source code of applications.

    Basically everything covered by copyright and patents plus more is covered by trade secrets as long as there is a secrecy part and financial gain possible.

    No one shall not release this document to the following people on a document and the document is now protected by trade secret as well as copyright. It might be a public domain document but since that is written on it giving it to a person listed not to receive it is a breach of trade secret if there is some financial advantage to those parties.

    The marines one is funny. UK does not define the term in the Australian mil. The french meaning does. History warped fact first admiral of the Australian Royal feet. Guess what nationality. Not British because at that time the British was hated by the Australians not USA either. Australia follows the French because of who the first admiral was. Yes an experience French man was the best we could get hands on who would not be hated by the Australian people who had suffered under the UK red coats. So Royal Marines from the UK have nothing todo with the Australian use of the word Marine. Since our navy was not UK or USA design. Yes French design Navy is the Australian Navy when it first formed. Simple fact you are looking in the wrong places completely so finding the wrong things.

    This also explains you incompetence now you were 100 percent sure that document disproved me that you never read it. In fact it proves everything I said.

  8. You keep ignoring the matter that the authour of the work has copyright protection without registration. That means an injunction can be obtained from a court by the authour without registration.
    ” Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), [1] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

    What do you think “action” means in the law?

  9. oiaohm says:

    And the australian process of registration of a copyright work is post it to yourself to be date stamped inside a sealed envelopes.

    This produces an exact date of production placed by a third party witness.

    Now in case of court dispute prior dated envelope containing the work must be presented.

    There is some confusing caused by second method of enforcement GPL users. Yes using trade secret method there is no requirement for the registration for copyright step at all since you are not using the copyright laws.

    “injunction to prevent me from claiming that I wrote it”
    That kills your enforcement of copyright until you can prove you did write it.

    Yes other path avoids this as well.

    Australia copyright is automatically granted to author until signed away.

    Authors of GPL its optional to use copyright law.

  10. Clarence Moon says:

    When it comes to copyright, trade secret and patents I know my stuff. Clarence moon. Since these are basically the same in Australia as the USA.

    Tell it to the Marines, Mr. Oiaohm! You are just as familiar with them, as I recall.

    Do yourself a favor and get out your English to Australian dictionary and try to get through this brief treatise and come back here an explain how it is that you are full of misinformation.

  11. Clarence Moon says:

    Such registration is not a condition of copyright protection.

    But it is a condition for filing a suit, Mr. Pogson. Obviously you are not even a lawyer. Why are you insisting that you can be a judge?

    As a hint, 17 U.S.C. § 411(a) provides that:

    “no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

    Also:

    “Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin”

    While you are at it, look into just why most FOSS software is not registered. It is not because they cannot afford the $85 bucks to register a work. It is because the mongrelized nature of most works authorship prevents any clear assignment of the copyright to an individual or organization. Their history is too cloudy with too many contributors and not enough paperwork.

  12. Title 17 Chapter 5 sec 502:“(a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.
    (b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk’s office.”

    Title 17 Sec 402:“(a) Registration Permissive.— At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection.

  13. Clarence Moon says:

    Authours do not have to register to sue

    Since you are referencing US law, I will point out that section 106A, as noted, only refers to the right of an author to a) sue to prevent someone from claiming authorship or b) impute that the author created a work that the author disowns. In order to sue for any other cause, for example unauthorized copying of a work, the copyright must be registered.

    As far as 106A goes, I can steal your work and sell millions of copies and all you can do, without registering the work, is get an injunction to prevent me from claiming that I wrote it. All that does is preserve your name on the work. That has no real effect on a software issue, I think. No one really knows who actually wrote a program, nor do they care.

  14. oiaohm says:

    Clarence Moon
    “Trade secret is essentially an alternative to a patent”
    You are a moron. You have no clue what a trade secret is.

    A trade secret is halfway between patent and copyright is the closest rough description. Does not do many thing that a patent or copyright does. Enforcement requirements are different vastly so.

    When you sign NDA or Privacy agreements breach of those comes under breach of trade secrets.

    Trade secret does not have a life span like copyright or patents do. Does not have requirement to be author or inventor or holder to enforce

    Trade secret just to be an effected party to sue. So your private documents get leaked from storage someone the owner of the storage can go after the person who did it, You can and anyone else effected can also sue. So someone storing there documents there who documents have not leaked yet can sue to ensure better production of their documents because yours leaked so their trade secrets are at risk.

    The major difference between Trade secret to patents and copyright is effected parties bit. That more people can sue you.

    Lot of Copyleft licenses just happens to fit the requirements of a trade secret protection. Where Microsoft EULA don’t. There are some copyleft that don’t.

    Yes trade secret requires showing the secret in the case of applications is showing the source code that is the secret how the application works. Also there must be limiting conditions that prevent usage if the conditions are not agreed this includes blocking the right to ship to other parties. If you read copyleft like GPL you don’t have the right to ship on if you don’t agree to GPL. So technically GPL programs are a secret that everyone can agree to see.

    BSD and Apache Licenses are not protected by Trade Secret law.

    Trade secrets cover many things that copyright and patents don’t. I can have a trade secret that a process my mail a particular way. Now another business processes there mail the same way off the same document they are not infringing on my trade secret.

    Now if they are processing there mail that way because they accessed without my permission my procedures manual or prior staff it is a breach of trade secrets.

    Trade secrets don’t grant exclusive usage of a idea or like copyright prevent sections being copied or reused from works as long as the trade secret requirements are maintained.

    So yes unlike a copyright a Trade Secret you are free to rework if authorised to see the Secret.

    Unlike a patent a Trade Secret does not grant exclusive usage or a require to pay per usage.

    Trade secrets are a fair nastier section of law to breach than copyright. Since every effected party has the right to take a bit out of you.

    Does this explain why GPL cases more often than not settle out of court in the USA. Losing a GPL case in the USA could equal having to pay all developers and users of that product due to Trade Secret laws since you messed with their shared Trade Secret.

    Not even Microsoft has enough money to pay out GPL enforced by trade secret.

    Quite a critical section of law if you want to protect your privacy.

    Clarence Moon yes it one of the funny facts that a copyleft is closer to a trade secret laws than what it is to copyright.

    Does this does also explain why enforcement under copyright happens in Germany. Germany has weaker trade secret laws. USA enforcing GPL you use Trade secret because its very much release the source code or die. After legal assessment USA party will fold if they have any sanity. Copyright enforcement not why companies fear GPL in the USA its trade secret enforcement.

    China trade secret and copyright laws are fairly weak.

    Yes trade secrets law is why you are not seeing GPL enforcement cases in the USA that much.

    When it comes to copyright, trade secret and patents I know my stuff. Clarence moon. Since these are basically the same in Australia as the USA.

  15. aikiwolfie says:

    LOL the softies that troll this blog really do have their panties in a twist.

    1) The judge never ruled copyright was invalid. Just that infringement doesn’t equate to theft. Which is what copyright maximalists have been trying to assert for decades now.

    2) FOSS code does indeed change hands in return for money. The “Free” in FOSS refers to “Freedom”. The ability to look at the source code, change it as needed and distribute it. It does not refer to a monetary value.

  16. That’s not the law. Authours do not have to register to sue. Folks who buy the copyright and sue others do.

    “Except for an action brought for a violation of the rights of the author under section 106A “.

  17. Clarence Moon says:

    Authours always have rights…

    Certainly, Mr. Pogson, but they cannot file a suit for infringement of their copyright unless they register that copyright and no one has registered the copyright for Linux as of now.

  18. “Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), [1] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

    Authours always have rights granted by the constitution/God/Nature. That prempts making money.

  19. Clarence Moon says:

    It is hard to keep one’s composure when reading the insane missives that ooze from the Oiaohm keyboard!

    I have failed to find any point in Oiaohm’s Treatise on Trade Secrets, since a trade secret is essentially an alternative to a patent and has nothing to do with the issue presented by Mr. Pogson’s blog post, but perhaps I have been blinded by the insanity of trying to declare any trade secret maintenance obligation for a GPL program that requires public disclosure of the source.

    In any case, just to tilt at the windmill of trying to educate Oiaohm in legal matters, I offer this synopsis.

  20. Clarence Moon says:

    One does not require a copyright filing to obtain an injunction.

    I fear that your degree in copyright law must have come from the Oiaohm School of Fiction and Fantasy, Mr. Pogson! It may not be recognized in the USA.

    Without doing massive research to produce a proper brief, I submit this quick and dirty Google hit.

    We concluded that Plaintiff’s work met the definition of a “United States work” under 17 U.S.C. § 101(1)(C) and that, pursuant to 17 U.S.C. § 411(a), Plaintiff was required to register AJE prior to suing for we found that Plaintiff had not satisfied a statutory condition precedent to initiating this infringement lawsuit. Accordingly, since Plaintiff could not initiate or maintain this action, we granted summary judgment for Defendants.

  21. oiaohm says:

    Trade secret breach charge does not have to come from a Author. Just has to come from another user of the Trade secret who is being effected by you actions of not obeying the trade secret limits.

    Trade secret you see the source code you have a limitation defined in the.

    “(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
    (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use”

    These two sections are critical. Notice the Limit its use. Copyleft clearly states you are not allowed to use particular ways if you don’t agree to its terms.

    This is where Copyleft becomes a contract. A voluntary contract in a trade secret action.

    This is why GPL and other copyleft licenses should be handled careful. Legal enforcement technically can come from any other user of the product not just the author.

    Copyright case you have to have a author support.

    Trade secret method does not apply to closed source programs. Because you never got to see the secret how the closed source program works.

    Most of these FOSS cases go away before going to court because legal parties work out if they come into conformance trade secret charge cannot be gone forward with.

    Yes a trade secret charge can hit harder but if you get informed of a trade secret breach and come into conformance the charge ends if you have not got to court yet. Copyright charge can still go forward if you come into conformance before getting to court.

    Trade secret also does not have a X year limit either. Trade secret is a Trade secret forever as long as it clauses to protect it exist.

    Yes technically a copyleft license is a NDA.

    Never underestimate how far RMS planned ahead. Copyleft was designed to out last the limit of copyright.

  22. One does not require a copyright filing to obtain an injunction. Only the copyright holder has the right to copy or to permit others to copy. Courts respect that. The copyright holder is the creator of the work in many cases. One does not even need to prove ownership to file a copyright as was seen in the case of SCOG v world. SCOG filed copyright for UNIX code they did not own or create.

  23. Clarence Moon says:

    Simple

    Not all that simple, Mr. Pogson. If you follow the GPL, there is certainly no problem. The question is, what happens when you do not follow it and copy it anyway, ignoring the license issue?

    If someone were to register the Linux copyright and then sue an infringer to obtain an injunction to stop their use of it in commerce, then the distribution might be blocked. But would the courts actually issue such an injunction for something that had no commercial price attached anyway? Even if they did, what might be a penalty assessed for the prior infringement?

    That has not happened in US courts as of today. I personally doubt that it ever will happen since there is no one to benefit at all from such an action. I would expect that there have been instances of surreptitious re-use of FOSS code without attribution or disclosure, but it hasn’t been detected or prosecuted by the FOSS author. Further, if something like Linux has not had any actual copyright filing made, then what opportunity is there for lesser things?

  24. You betcha FLOSS is involved in interstate commerce. See the web. GNU/Linux is networked OS. Commerce for $0 for permission and $100 per machine per annum for service all matters. One would have a contract for the service related to FLOSS. Copying in violation of GPL (distribution without providing source code, for example) still has “default” penalties unrelated to commerce, $x per copy. Even when no money is involved copyright still allows injunctive relief which can cost the violator big bucks. That’s why the GPL is rarely tested in court, injunctions are likely.

  25. The GPL is a licence, permission, not a contract. If you have the code, you have permission to copy. Simple.

  26. oiaohm says:

    Ivan GPL cases commonly use Contract Law and Trade secrets laws. Not copyright law anyhow in the USA. So no copyright law no problem.

    Really copyright laws are last resort in the USA because they are fairly much toothless with too many loop holes.
    “U.T.S.A. § 1.2
    “Misappropriation” means:
    (ii) disclosure or use of a trade secret of another without express or implied consent by a person who
    (A) used improper means to acquire knowledge of the trade secret; or
    (B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was
    (I) derived from or through a person who had utilized improper means to acquire it;
    (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
    (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

    (C) before a material change of his [or her] position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.”

    This section is used mostly for enforcing GPL. Since if you don’t agree to GPL you have not been granted any right to use the Trade secret that is GPL source code.

    IVAN is not like Copyright law is that important to copyleft licenses.

    ” U.T.S.A. § 1.4
    “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
    (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
    (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

    Yes a define of a trade secret is nice and open.

    Under the circumstances loop hole is great. So all GPL software is a trade secret. Since its not reasonable under the circumstances of GPL not to release the source code so the secrecy bit is basically null and voided.

    Of course this does not help you if you are trying to protect a music video.

    Mostly for copyleft licenses using copyright law in the USA is worthless. For applications there is just another law that works perfectly.

    So it comes down to the contract law application of the copyleft and the trades secret usage.

    Also breach of trade secret has higher fines and penlities and a faster legal process with less options to get out.

    theft of property is different to Theft of trade secret or volition of copyright.

    Fun part copyleft licenses come under trade secret and copyright so you can use what ever law is better in whatever country to enforce it.

    trade secret takes you into the contract terms in the copyleft document for people wanting to get out. No agree to copyleft complete breach of trade secret.

    Ivan that is the fun part software is mostly protected by two laws. So losing one is not a major problem.

  27. Clarence Moon says:

    there is nothing stopping anyone…

    I had much the same sort of thought on this. Particularly where it was noted that “…(the) code was not a product designed for interstate or foreign commerce”.

    What does the court consider “commerce”? My own, unthinking, opinion is that it relates to something changing hands for money. FOSS generally does not do this, so the laws do not apply on a practical level. You can perhaps violate a copyright on something that is free, but you only owe a penalty of what the author might have lost in terms of income and so you owe nothing. And that would be at the binary level.

    At the source level, per the issues in this case, it would be even less actionable to copy such source without paying any heed to the GPL or whatever license might apply.

  28. Copyright law still applies. Theft does not unless the guy steals physical medium like a truckload of CDs. In the particular example, the guy made a copy of software which is not theft but illegal copying. The owner of the copyright lost no object in the process, but did lose some control over information. You cannot steal information.

  29. Ivan says:

    Ivan most likely the same since copyright infringement is written in the USA law books as an existing crime.

    Be careful, you just might get what you ask for.

    If source code is no longer protected by copyright, there is nothing stopping anyone from distributing binaries of GPL’d code without access to source.

  30. oiaohm says:

    Bilbophile the important thing is that the US Constitution also defines what is property. It does not include Writings and Discoveries.

    So by US Constitution Software is not property. The pages of a book is property the ink in the book is property what is written in the ink is not property.

    For it to be stolen something has to be physically stolen. Illegal coping falls under the section Bilbophile pulled out.

    Yep all those advertising that copyright infrignement is stealing is wrong.

    Failing to pay your rent on time is not stealing. Failing to pay you loan on time is not stealing.

    Lot of things we can do wrong where someone else is owed money is not stealing.

    Of course the question is how many other cases around the world have been done under the wrong change.

    You cannot bring a stealing charge against someone in Australia for copyright infringement. You have to change them correctly.

    Main reason why MS and others want to go stealing in the usa is that would allow them to avoid “copyright infringement” restrictions of must be over $1000.00 to charge. Also that a person in court can also dispute value of what they have as well to try to get off that they did not illegally copy more than the value of $1000.00.

    Yes copyright infringement has now got a lot harder.

    FOSS has had issues in the USA with enforcement having to prove that infringement was greater than $1000.00.

  31. Ernie Ball did the right thing by severing relations with M$. If I were running a business there would be a sign on the door excluding M$ and agents. I would block M$.com at the firewall. I would inform all employees that it was their duty to refuse calls from M$ or “partners” and report such occurrences. M$ is just a source of inefficiency in any business. A licence from M$ is giving them permission to intrude. Such nonsense…

  32. Software patents surely don’t promote progress. In fact, they hold back progress. I don’t think the writers of the constitution figured there would be any way that preserving the copyright of dead people promoted the arts…

  33. Bilbophile says:

    The US Constitution states that: “[The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

    “Exclusive Rights” are hardly property rights.

  34. So the Business Software Alliance campaign is based on a lie… What a surprise! Should Ernie Ball sue?

  35. oiaohm says:

    Ivan most likely the same since copyright infringement is written in the USA law books as an existing crime. With restrictions that don’t apply to thief.

    So I would say lawyer placing the thief charge was incompetent.

    This could cause a little issue for how much software is worth. Since if a person can claim the cheapest sale price Microsoft does the total will not reach $1000 dollars.

  36. Ivan says:

    *yawn*

    Let us know what the appeals court says.

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