13 Ways to Steal a Bicycle, But How Many to Steal a Song?

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3 Responses

  1. Matt says:

    I haven’t read Stuart’s book yet (though I hope to) but if I had to guess, I’d assume that the “no de minimis exception” bit interacts with the other requirements above. In our first case, the loss is de minimis _and_ the item is nonrivalrous. In your stealing a dollar case, the second condition is quite clearly not met. That seems to at least be a plausible important difference. I would want to treat Stuart’s examples 2 and 3 as exceptions to the normal rule, not as instances of it. Because that’s so, _and_ because the loss is de minimis, case 1 seems reasonably exempted from the typical way of treating theft. Therefore, there’s no good reason to think that cases like 1 above are likely to harm the norm against “normal” stealing.

    (Here’s a real-world example: When I was in the Peace Corps, I would sometimes buy pirated copies of movies to show the classes I taught. I could afford to buy the pirated movies, but could not afford to by the “legitimate” copies. [Nor, for that matter, could the vast majority of the population in that country, which explained why there was such a large market for pirated copies. Better price discrimination tactics would have helped the movie companies here, but they were apparently not smart enough to know that.] So, the real choice was to buy the pirated copy or not to buy it at all. This has made me 0% more likely to, say, steal an individual DVD, even if there were a perfect chance to do, and the owner would not notice- say it was from a huge DVD warehouse with poor inventory control. I don’t think I’m exceptional here. This seems to indicate that Stuart’s case 1 doesn’t have the problems we have with allowing de minimis takings of rivalrous property. [Note how I would not have thought of stealing the physical copy of the movie from the seller, even if I thought I could get away with it.])

  2. Irina Manta says:

    Thanks, Matt. I understand what you mean, but I have a few concerns. First, while the use of IP-protected goods is often nonrivalrous, that is not always the case (as I have especially discussed in my article “Hedonic Trademarks”, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2125252). Let’s assume, however, that most cases of song downloads do not give rise to that issue. The question in that case becomes why the nonrivalrous nature of such IP should exempt its illegal taking from receiving the theft label given the usual principle that even a de minimis taking is theft. What is special about nonrivalrousness in the theft context when, as far as the owner of an IP-protected good is concerned, the deprivation of value is the real harm? At the very least, does that make such IP infringement meaningfully different from vandalism?

    To be clear, I am not saying that the nonrivalrous nature of IP is irrelevant in every theoretical context, but it is not obvious to me why it is so relevant to the theft discussion that it creates this exemption from the theft label in de minimis cases.

    I won’t go into your Peace Corps example too much so I can keep my comment on the shorter side, but I would need to know more about the specifics before deciding that companies are “not smart enough” to engage in price discrimination here. There could be many economic reasons for that, such as the issue of grey markets (cf. the Kirtsaeng case).

  3. Stuart Green says:

    My thanks to Irina for her thoughtful review of my book, and to her and Matt for their stimulating exchange here. Irina wonders why I would extend theft liability to an individual who stole a de minimis amount of tangible property, but not to an individual who illegally downloaded for his own use a single digital copy of a book. Irina imagines a case in which a thousand people each take a dollar from a man’s wallet. Why, she asks, is each taking a theft on my view, while it’s not theft when a thousand people individually download a song or text illegally from the Internet?

    Matt – who hasn’t yet read the book! – is nevertheless prescient in anticipating my response. Under my approach, cases in which the misappropriation of intangibles constitutes theft are indeed the exception to the general rule of non-liability. That’s not so with de minimis thefts of tangible goods like dollar bills. My reasons for exempting most de minimis thefts from prosecution are pragmatic and equitable. By contrast, my reasons for exempting misappropriation of intangibles are conceptual: before we can call something theft on my view, the owner must actually be deprived of the thing stolen, and that happens only rarely when the property misappropriate is intangible.

    Matt’s intuitions regarding his experience in the Peace Corps are more or less consistent with my own, though he’s added to the mix some additional issues about theft and social justice. Why is or isn’t it okay to steal from the rich and give to the poor? That’s an issue I deal with elsewhere in the book . . . .