UK Court Says Information Stored Electronically Is Not 'Property'

from the for-intellectual-property-read-intellectual-monopoly dept

Wed, Mar 26th 2014 11:01am — Glyn Moody

More and more of our activities take place in the digital rather than analog realm. But what exactly is the legal status of that digital stuff as it flows around the Internet, or sits inside databases? A recent judgment in the UK provides important guidance:

Information stored electronically does not constitute property which someone can exercise possession of, judges in the UK have ruled.

The Court of Appeal rejected arguments to the contrary and refused to interpret existing laws in a manner which would, it admitted, "have the beneficial effect of extending the protection of property rights in a way that would take account of recent technological developments".

The judges said that whilst it is possible to exert control over electronic information it is not possible to gain possession of it. The distinction was drawn in a case concerning a dispute between a publisher and an IT supplier.

The details of that case can be read in the useful post on Out-law.com quoted above. The basic facts are as follows. The publisher Datateam Business Media Limited wanted to outsource the management of its subscriber database. The company Your Response Ltd took on the job, but the publisher became dissatisfied with its services, and sought to terminate the contract. In the following dispute over the payment of fees, Your Response Ltd claimed possession of the database -- hence the court case. The analysis of one of the judges is interesting: "An electronic database consists of structured information," Lord Justice Floyd said. "Although information may give rise to intellectual property rights, such as database right and copyright, the law has been reluctant to treat information itself as property. When information is created and recorded there are sharp distinctions between the information itself, the physical medium on which the information is recorded and the rights to which the information gives rise. Whilst the physical medium and the rights are treated as property, the information itself has never been."
That's an important statement that touches on many aspects of the online world, not least digital copyright. It confirms that the property of "intellectual property" is of monopoly rights, not of the information in the creative work. And since that information cannot be possessed, it therefore cannot be stolen, despite what copyright maximalists would have us believe.

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Filed Under: digital, information, property, uk

57 Comments

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silverscarcat (profile), 26 Mar 2014 @ 10:56am

So, to sum up...
Whenever I ask "what's being stolen?", the answer is nothing?

...

Awesome.
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Anonymous Coward, 26 Mar 2014 @ 11:06am

The idea of "intellectual property" has always been a stupid one. An idea can't be "property", and no idea is truly unique to be owned by a single person. It's almost always a remix of previous ideas and knowledge.
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Bt Garner (profile), 26 Mar 2014 @ 11:10am

Well, there goes *my* MP3 Collection.
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Anonymous Coward, 26 Mar 2014 @ 11:14am

And on the topic of classified documents
They cannot be "stolen", only copied. And thusly, any political pundit claiming that someone needs to "return" the "stolen" documents immediately needs to shut the fuck up.

Reminds me of reading about some luddite claiming that he sent an email to someone and they need to send it back to him because it was mistakenly sent to the wrong person.
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Ninja (profile), 26 Mar 2014 @ 11:18am

I do like it. But it also has some bad implications. If I buy a digital file then it is not my property. If that is the case we need to shift to stating the RIGHT to do whatever you please with the digital file was bought. Or it'll be open to abuses such as Amazon or other digital retailers removing something you paid for.

Other than that, one major score for file sharing too ;)
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Anonymous Coward, 26 Mar 2014 @ 11:18am

did that ruling just destroy the basic concept and arguments for the copyright industries?
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Mark Heseltine, 26 Mar 2014 @ 11:19am

Re: So, to sum up...
"the physical medium and the rights are treated as property"

I don't think this impacts copyright..

It may impact who owns your personal data.
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Anonymous Coward, 26 Mar 2014 @ 11:20am

Re:
turn the argument right around, the file on your harddrive might not be *your* property, but it is also not *their* property.
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KoD (profile), 26 Mar 2014 @ 11:20am

I think this is a tad narrow. I mean certainly some form of data must be considered as being owned. If I take possession of your Bitcoin wallet without your permission and burn through all of your crypto currency, certainly I have stolen from you. But what can be stolen that isn't property? Maybe my definition of theft is too narrow, but to me it implies property. Maybe only non-reproducible digital goods are property (like your Bitcoins I stole)?

This concept certainly warrants more thought than I just gave it, but my initial reaction was that this is a slippery slope considering that an increasing amount of our valuables are Bytes of data on our HDDs.
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avideogameplayer, 26 Mar 2014 @ 11:23am

Re:
Implying that these companies haven't been doing it for years...
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Anonymous Coward, 26 Mar 2014 @ 11:25am

Re:
the answer is right there:

"The judges said that whilst it is possible to exert control over electronic information it is not possible to gain possession of it"

in your bitcoin example, nobody possess it, but you exert control of it.

Theft *is* narrowly defined to apply to physical objects.
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Anonymous Coward, 26 Mar 2014 @ 11:35am

Maybe I'm just being paranoid, But if this ruling were in the US I would be very worried about how it would affect 4th amendment protections.
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Anonymous Coward, 26 Mar 2014 @ 11:39am

Re:
Even the you download are not property, your hard-drive is. Plus they already do whatever you please with the files that are bought thought claws in their terms of service agreement and copyright licenses.
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Anonymous Coward, 26 Mar 2014 @ 11:39am

Re:
If that did happen then the UK may well end up on the USTR 301 report for damaging copyright laws and will remain placed on the report until they bring more tougher copyright laws into law.
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TasMot (profile), 26 Mar 2014 @ 11:40am

Copyright industries are going to try to control stuff even more
It means that what you bought and paid for (as in a digital file) the copyright industries are going to claim "control" of forever, even if it is on "your" media. Of course, I'll bet there is going to be a huge "ah-ha" when a case comes to court and they say you "stole" it by copying it off to some other media. However; just about everywhere, the copyright industries are collecting "you must be a thief" taxes on ALL digital media (well except paper tape I guess, oops shouldn't have said that). So, you must be making an authorized copy since you already paid for copyrighted material to be on that media.
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Anonymous Coward, 26 Mar 2014 @ 11:40am

Secret Documents
I realize this case is in the UK, but if the same logic applied to the US then Edward Snowden has done nothing wrong.

He did not 'steal' anything only copied electronic data and works produced by the government are not copyrightable thus they have no claim of intellectual or property rights on the information.

Maybe some day the governments will realize that information wants to be free and if revealing information embarrass them then maybe they should not be performing embarrassing acts in the first place....
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Ole Juul (profile), 26 Mar 2014 @ 11:41am

Re: And on the topic of classified documents
David tried that concept with his overdue account:
http://www.27bslash6.com/overdue.html
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Anonymous Coward, 26 Mar 2014 @ 11:45am

Well, maybe the copyright industry needs to get off the internet.

Since digital info isn't property, guess what? File sharing isn't theft either. So what are you buying when you buy a song or movie? You're buying something like air apparently.
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Rikuo (profile), 26 Mar 2014 @ 11:52am

Re:
So unless I'm being completely stupid (not outside the realm of possibility) doesn't this ruling automatically mean that any digital storefronts operating out of the UK now have to scrub the word "Buy" from their websites?
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Anonymous Anonymous Coward, 26 Mar 2014 @ 11:52am

Re: Copyright industries are going to try to control stuff even more
Oh, oh, paper tape brings back memories, and strange thoughts. Can anyone imagine say a blue ray HD movie stored on paper tape? Anyone got the equipment to play that back?
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Baldaur Regis (profile), 26 Mar 2014 @ 11:53am

Re:
Interestingly, the US IRS says Bitcoins ARE property and would be subject to a capital gains tax.
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Anonymous Anonymous Coward, 26 Mar 2014 @ 11:56am

Re: Re:
And replace it with what, lease, rent, borrow, absorb but don't retain?
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Anonymous Coward, 26 Mar 2014 @ 12:00pm

Re:
Seems to me the thing you are paying for is a convenient download. As the first AC said, it isn't their property either, so it's the service of supplying it that you are buying.
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DannyB (profile), 26 Mar 2014 @ 12:18pm

Re:
Yep, this ruling made your mp3 collection disappear in a puff of smoke.

Just like when a 'thief' who 'steals' your mp3 collection means you no longer have a copy.
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Anonymous Coward, 26 Mar 2014 @ 12:19pm

Re: Re:
interestingly, if you look close enough, money in a bank account wouldn't be property either, since it only exists in a database.
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DannyB (profile), 26 Mar 2014 @ 12:23pm

Re: And on the topic of classified documents
The luddite you speak of reminds me of someone showing their friend the fax machine in the 1980's.

teacher: "Here is how you receive a fax. . . . then you tear it off here."

learner: Okay

teacher: "Now here is how you send a fax. But remember to only use good quality paper for your original that you put into the fax machine."

learner: "But then, how can *they* get away with using such cheap, flimsy paper that came out of our fax machine?"
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DannyB (profile), 26 Mar 2014 @ 12:26pm

Re:
Why would your concern be limited to the US? Would not other countries feel free to paw through your digital information looking for whatever they find amusing, embarrassing or illegal?
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John Fenderson (profile), 26 Mar 2014 @ 12:46pm

Re: Re: Re:
"License"
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Anonymous Coward, 26 Mar 2014 @ 12:47pm

'since that information cannot be possessed, it therefore cannot be stolen, despite what copyright maximalists would have us believe'

that being the case, why do all the powers that be allow the entertainment industries and others user the phrase that 'their property has been stolen'? more to the point, if information (ideas) cant be classed as possessed, how come those same industries mentioned above can still sue the ass off of as many people as they can get named on a court document?
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John Fenderson (profile), 26 Mar 2014 @ 12:50pm

Re:
I don't see how it would have much of an effect, really. The fourth amendment doesn't mention "property" as such. It mentions being safe from unreasonable search and seizure of "persons, houses, papers, and effects". That's broader than property right off the bat.
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John Fenderson (profile), 26 Mar 2014 @ 12:51pm

Re: Re: Copyright industries are going to try to control stuff even more
I have the equipment to read (and punch) paper tape. Punch cards, too.
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Anonymous Coward, 26 Mar 2014 @ 1:10pm

Re: And on the topic of classified documents
Uh, what? They totally can be stolen. If there is a paper envelope with classified documents, and someone grabs it and runs, they have just been stolen. No copying has taken place. And it totally makes sense to request that the thief returns the stolen documents, too.

When it stops making sense is when copies (electronic or otherwise) are involved.
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Anonymous Coward, 26 Mar 2014 @ 1:16pm

Re: Re:
> Why would your concern be limited to the US?

I'm not the OP, but I'd guess it's because he's talking about the fourth amendment to the US constitution. Since the ruling is not in the US, it has no effect on the US law.
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Anonymous Coward, 26 Mar 2014 @ 1:19pm

Re: Re: And on the topic of classified documents
I can't remember the last time I read someone claiming that physical documents were stolen.
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Jay (profile), 26 Mar 2014 @ 1:30pm

Re: Re:
Weird... We tax bitcoins more than we tax stocks...
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Jay (profile), 26 Mar 2014 @ 1:36pm

Re: Secret Documents
Actually, take that argument even further.

The government is the reflection of its people. So the government's records are the public's.

What Snowden did was release public documents from their long lasting archive, just like a librarian will archive books of historic merit.

Even though the government is embarrassed, Snowden completed the job that they would not. And that makes it all the more telling that the people are the least informed on what their government is doing.
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Anonymous Coward, 26 Mar 2014 @ 1:47pm

Re:
The phrase "intellectual property" got invented because law school profs got tired of saying "patents, trademarks, and copyrights". And from there, the false analogies to personal property sprang forth.
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Anonymous Coward, 26 Mar 2014 @ 2:47pm

Re: Re: Re: Copyright industries are going to try to control stuff even more
Would your floor with stand the weight of paper or cards needed for a copy of a blue ray? Would your house be large enough?
(Both paper tape and punched card are less efficient as a storage medium than the printed page, its just that they enabled mechanical processing)
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Anonymous Coward, 26 Mar 2014 @ 3:35pm

As always IP = imaginary property.
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That One Guy (profile), 26 Mar 2014 @ 3:53pm

Re: Re: Re: Re:
And you can bet they'll fight tooth and nail against being forced to do so, because if people are told right from the start that the purchase they just made isn't actually a purchase like any other transaction, but a license where they are strictly limited as to what they can do with the file in question, people will naturally start asking 'Then why am I paying the same amount I would for the physical version?', and demand the price drop to reflect the differences.
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TasMot (profile), 26 Mar 2014 @ 3:57pm

Re: Re: Re: Re: Copyright industries are going to try to control stuff even more
Since you asked I looked. A carrying case with 2000 cards weighed 6.6kg (see here http://www.staff.ncl.ac.uk/roger.broughton/museum/iomedia/pc.htm). Assuming the actual case was about 1 kg of the weight, that would translate to roughly 200 oz. per 2000 cards or 100 oz per 1000 cards or .01 oz. per card. Now a current standard dual layer Blu-ray disk holds 50 GB or 50,000,000,000 bytes (I checked this Blu-ray disk use hardware decimal bytes not base 2 or GiB measurement). So, 50 GB onto 80 byte Hollerith cards would be 625,000,000 cards. At .01 oz per card is 6,250,000 oz. or 390,625 lbs. So, not only would the floors in your house not hold the weight, the stack of cards would be bigger than most peoples houses (Bill Gates might be the exception here). I believe that many cards would be about 9.7 or just round up to 10 truck loads at 40,000 lbs. per truck which is the typical max carrying weight of a tractor trailer (the truck and trailer take up the other 40,000 lbs).
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Anonymous Anonymous Coward, 26 Mar 2014 @ 4:16pm

Re: Re: Re: Re: Re: Copyright industries are going to try to control stuff even more
What about playback? Paper tape might be continuous, loading card might distract from the show. :)
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Anonymous Coward, 26 Mar 2014 @ 5:34pm

Re:
"why do all the powers that be allow the entertainment industries and others use the phrase that 'their property has been stolen'?"

1/ Influence

2/ Most people would rather die than think: many do. (Bertrand Russell)
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Daemon_ZOGG, 26 Mar 2014 @ 6:15pm

UK Court Says Information Stored Electronically Is Not 'Property'
Load your encrypted OS and files into a virtual RAM-drive (duh, within the RAM memory) from an external drive. Once loaded, move the external drive somewhere offsite to a location that doesn't connect to you or your name. Leave your machine running 24-7. If the machine looses power, the data is gone. And the most important part.. Stop using micro$0ft products! They have helped law enforcement develope tools to get into your system, past the encryption, while it's still powered on. And since the NSA and the UK gov share data......
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Atkray (profile), 26 Mar 2014 @ 8:04pm

Re: Re: Re:
Bitcoin has no lobbyists.
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Quinn Wilde, 26 Mar 2014 @ 11:25pm

Property
No, you see Garner *has* spotted an important issue with this ruling. The MP3s on his own computer won't disappear if someone 'steals' them, certainly.

But it does mean that the MP3's that Garner has bought from Apple, from Microsoft, from Amazon, and so forth are not his property.

Another battle going on right now is over the right to inherit what has rightfully been paid for by your legal predecessor, be it parent, spouse, etc in the event of their death.

The idea that this is Garner's property, to be inherited by heirs at some future stage has always been something the granters of 'licences, not ownwership' in big copyright have always been keen to avoid.

This ruling may help them in that regard.
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Francis Davey (profile), 27 Mar 2014 @ 4:21am

copyright is property
The whole "copyright isn't property" is a very US argument and not really applicable in English law. Let's not re-invent history.

Patents have been a form of property since long before they were awarded for "inventions". Forms of Royal monopoly - such as market, fair and harbourage rights - were forms of property long ago. English law has recognised some very odd things as property. Eg, an advowson (a right to nominate a Church of England priest to a benefice) is one of the oldest forms of real property and they are still owned and inheritable.

So: the idea of "intellectual property" wasn't invented to make life for law tutors easier.

Copyright is property: (a) because the 1988 Act says it is - and if Parliament says it is property it is; (b) it quacks like property.

If you don't like copyright much (and I don't) this is a stilly place to have the fight. English law doesn't recognise things as property because they are morally or naturally good things for people to own, it does so because law says so usually (but not always) because powerful people have lobbied to make it so.

Copyright isn't a possessory form of property - it is a chose in action not a chose in possession as we would technically say. So you can't steal it - just as you can't steal money in a bank account which is another example of a chose in action (see R v Preddy where the House of Lords nailed this point down). Anyone who suggests you can steal copyright or that copyright infringement is a bit like theft, is legally ignorant at best.

In this case the main question was whether there could be a lien over the information in a database. A lien is a possessory right so of course you can't. Stupid thing to argue. The court also thought there were no property rights in information per se, which may be true but it isn't all that helpful.

Eg, in the EU we do recognise a property right in collection of information of certain kinds (known as databases). While you can't own it, if someone extracts data from your protected database you may well be able to sue them. If they say "well you can't own information" your response could be "just so". Your claim is to ownership of a right not the data, but that distinction is rather too nice for most people.

This case seems to me to be a straightforward one of the Court of Appeal refusing to stray from well understood principles of property law.

Those principles do also make "ownership" of ebooks problematic and that is a serious issue but this is not a case that really has much impact on that.
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Ninja (profile), 27 Mar 2014 @ 4:23am

Re: Re:
Buy the right to download?

I like the idea others exposed though, that once inside my hdd it's mine to do whatever because the hdd itself is my property. Sounds very reasonable.
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I'm_Having_None_Of_It, 27 Mar 2014 @ 6:56am

Re: Re: Re: Re:
We spell it with a C in the UK, John.

http://www.oed.com/search?searchType=dictionary&q=licence&_searchBtn=Search
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I'm_Having_None_Of_It, 27 Mar 2014 @ 6:59am

Re: Re:
Naturally. Five minutes later they will all be Very Sorry and say it was all a mistake.
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I'm_Having_None_Of_It, 27 Mar 2014 @ 7:03am

Re: copyright is property
Patents have been a form of property since long before they were awarded for "inventions". Forms of Royal monopoly - such as market, fair and harbourage rights - were forms of property long ago. English law has recognised some very odd things as property. Eg, an advowson (a right to nominate a Church of England priest to a benefice) is one of the oldest forms of real property and they are still owned and inheritable.

Please can you provide a citation for this?
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plaguehush, 27 Mar 2014 @ 8:35am

Re: Re: So, to sum up...
"It may impact who owns your personal data."

It won't. The Data Protection Act is quite clear that *your* personally identifiable data is always *yours*, while it remains in a state where it can be used to identify you (you have no rights over anonymised data *about* you).

Any company that holds data that could personally identify you is holding that data on your behalf, and at your grace. You have rights to see it, and you have rights to force them to remove it.

This is why the Government's Care.Data program, which claims that you lose your rights to your personally identifiable data once uploaded, is illegal in the eyes of the DPA.
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Anonymous Coward, 27 Mar 2014 @ 9:02am

Re:
It also makes the child pornography laws against possession unenforceable. This judge has directly said that you can not possess it if it's in a digital form.

This ruling will not stand. Which is a good thing. People who sell digital goods need to be forced to give full property rights to people who buy their goods. That means consumers are allowed to sell the things they purchased used, that sellers are not allowed to come along and forbid access, etc.

Every industry in history has tried to pull this shit, digital businesspeople are no different. And every industry has failed. They don't get to just collect money without ever actually conveying any property rights to buyers.
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John Fenderson (profile), 27 Mar 2014 @ 9:07am

Re: Re: Re: So, to sum up...
"*your* personally identifiable data"

How do they define PII? I ask because how it's defined by most companies and the US government is ludicrous and excludes lots of data that can be used to identify you personally (the IMEI of your phone, etc.)
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John Fenderson (profile), 27 Mar 2014 @ 9:09am

Re: Re: Re: Re: Re:
Yes, I'm well aware of that, thanks. But I speak American.
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John Fenderson (profile), 27 Mar 2014 @ 9:11am

Re: Re: Re: Re: Copyright industries are going to try to control stuff even more
It would, actually, since my floor consists of a concrete slab with flooring on top of it.
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GEMont (profile), 28 Mar 2014 @ 12:44pm

query...
So.... does this mean that Hacking - ie., electronically entering and copying private files from someone else's computer hard drive - is no longer a crime because the owner of the hard drive cannot own the files thereon and the hacker who has copies of them cannot own them either, but like the hard drive owner, only hold them temporarily... or have I misread the whole thing??
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