Yet Another Court Rules That Digital Data Is Not Property
from the pure-information dept
Back in March, we reported on an interesting case where a UK court ruled that information stored electronically is not property. Now senior judges in New Zealand have agreed (found via @superglaze), as the Lexology site explains:Jonathan Dixon, the Queenstown bouncer who accessed CCTV footage of the England Rugby Captain in a bar during the 2011 Rugby World Cup, appealed his conviction for dishonestly obtaining property on the basis that the digital data did not come under the definition of 'property' in the Crimes Act. The New Zealand Court of Appeal yesterday agreed (but substituted his conviction with one of dishonestly obtaining a benefit).Lexology goes on to explain:
The accepted legal position is that confidential information is not property, but protected by the law from abuse, as a matter of 'conscience' arising from the circumstances in which the information was obtained. The New Zealand Court of Appeal considered that a computer file's "stored sequence of bytes available to a computer program or operating system… cannot meaningfully be distinguished from pure information", and therefore was not 'property' for the purposes of the Crimes Act.Although two court cases do not make a definitive answer, it's significant that they were in different, albeit related, jurisdictions, and that the judges based their decisions on very different legislation. It certainly adds fuel to the already heated debate about whether it is possible in any sense to "steal" digital files containing copyright material.
Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: digital data, new zealand, property
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
Breach of copyright is breach of copyright, not theft. Therefore it is likely that this ruling will have no effect on breach of copyright claims. Just as in the case referred to here where the Judge changed the conviction to "dishonestly obtaining a benefit" (btw - how can a judge after the fact change a charge? Aren't you tried on the charges presented in court by the prosecution, and it's bad luck for them if they don't charge you with something else that you might have been convicted of with that evidence? How can an appeal change the charges you were found guilty on?), there are charges other than theft that can be levied.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
I'm not sure about that anymore... with all of the maximalism and indefinite extensions, isn't it possibly theft from society of the public domain?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Silver lining!
Now... since all Music and Video are in a "DATA" format... download away folks! Its NOT PROPERTY!
Lets see how far this can go with these idiots!
[ link to this | view in chronology ]
Re: Silver lining!
[ link to this | view in chronology ]
Re: Silver lining!
Now... since all Music and Video are in a "DATA" format... download away folks! Its NOT PROPERTY!
That doesn't mean it's not copyrighted.
[ link to this | view in chronology ]
I don't see the connection between a UK court and a New Zealand court. The UK court has to answer to EU rulings and the New Zealand court doesn't. I do like the fact both courts reaffirmed that a production is not property. This should help keep copyright in its proper place.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
It is hard to bring criminal charges for theft when it is not property.
Good luck with your extradition order there US.
[ link to this | view in chronology ]
Re: Re: Re:
Without the aiding and abetting criminal copyright infringement the rest of the conspiracy charges disappear but without the conspiracy to commit money laundry and conspiracy to commit racketeering there is no legal basis to extradite from NZ to the USA (direct copyright infringement is not an offence in the extradition treaty between the countries).
Conspiracy to commit copyright infringement I don't think has every been tried before in a prosecution with the Dotcom defence referring to it as 3rd party copyright infringement as a made up law that doesn't exist on the books. The aiding and abetting criminal copyright infringement charges are also a perversion of how aiding and abetting laws have historically been applied and given the laws have never been applied in this way in the past it's virtually impossible to show Dotcom et.al. possessed a criminal mind necessary for the prosecution when they believed the DMCA Safe Harbor provisions protected them form liability.
That is why the DOJ appears to be hell bent on tying up all Dotcom's assets so he can not pay for a suitable legal challenge for the new application of laws the DOJ dreamed up in this case. The NZ courts have taken a more balanced approach and let Dotcom resources to challenge the legal validity of the process to date. This is probably due to the lack of revolving doors between the NZ Court system and the media industries to date ;-)
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Essentially, the NZ court would have to overrule this latest judgement to consider the content of Kim's hard drives to be property.
Another aside: Do you think that this ruling would mean that data stored, say on your phone, is subject to privacy laws? It's not specifically private property, so what is it?
[ link to this | view in chronology ]
Re: Re: Re:
The Act involved in the Courts order forbidding the NZ police from removing evidence and handing it over to another jurisdiction is an entirely separate matter and has more to do with Evidence than 'property' in it's tangible AND unfungible form. So there is no need to overrule a criminality decision on definitions within the Crimes Act at all.
The 'evidence' was removed and passed on contemptuously and that as kiwibob stated is not something any party really wants to do to any court. Especially the USA in New Zealand since no matter what the political climate at moment might be the NZ courts have a LONG memory and are not beholden in the same way to the government as the US courts/judges are in America.
As for your privacy question. Privacy isn't really to do with the intangible data (or non-property) it is more to do with the identifiable information itself and how that data can be used. It's more a subjective test than objective as the definition of property has now been defined in this matter.
[ link to this | view in chronology ]
Re: Re: Re: Re:
If it is not property, then collecting it (the digital material) without a warrant should be acceptable, because it's not anyone's property.
The privacy part is just spin test. If data on your phone is not property (such a document would be your property), how can privacy by violated? If someone uses tools to obtain the data from your phone, have they actually broken any real laws? Is the data "taken" property as in theft, or would the entire case hinge solely on proving the unwanted access?
I'm just trying to wrap my mind around the concept to see how they might apply.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Why must something involve taking property to be a privacy violation? That seems like a complete non sequitur. For example, listening in to someone's private phone call could be a violation of privacy without taking any property.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
You make little to no sense in that privacy laws are not property laws. Your private data is still private, even if it isn't property. Obtaining that information without the consent of the person holding that data, or a legal mandate, is still a violation of privacy. Theft never really entered into the equation.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
240 Obtaining by deception or causing loss by deception
(1)Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a)obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b)in incurring any debt or liability, obtains credit; or
(c)induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d)causes loss to any other person.
(2)In this section, deception means—
(a)a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
(i)knows that it is false in a material particular; or
(ii)is reckless as to whether it is false in a material particular; or
(b)an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c)a fraudulent device, trick, or stratagem used with intent to deceive any person.
[ link to this | view in chronology ]
Re: Re:
Want to take bets on the labels ever being charged with a crime like this?
[ link to this | view in chronology ]
Re: Re:
Now to get that sort of wording into the Criminal Code in Australia.. HA!
Oh and gotta love the mens rae wriggle room in 2(a)(ii) *eyeroll*
[ link to this | view in chronology ]
[ link to this | view in chronology ]
A little help, please.
What is "pure information"? Is it a legal term of art? Please no snark in replies, I'd like a serious answer.
[ link to this | view in chronology ]
Awesome
[ link to this | view in chronology ]
I agree copying digital files isn't theft. Unless the original files are destroyed in the process. In which case someone is being deprived of ownership through the destruction of their copy of the files.
So unless the Chinese are destroying files after they copy them from US companies back to mainland China. The only thing they're guilty of is unauthorized access to "intellectual data". They're not guilty of theft. Intellectual data is not property.
[ link to this | view in chronology ]
Ownership
[ link to this | view in chronology ]
Re: Ownership
[ link to this | view in chronology ]