Can You Steal Computer Programs & Data?

Yesterday, I put up a humorous post about the "theft" of $5 million dollars worth of computer information masquerading as art. Or, perhaps, it actually is art (all art is a variation of the Emperor's New Clothes). Anyway, the point is that shortly after I put the post up, I got an anonymous email fussing at me

"Copyright infringement is not theft. Look it up."

Okay. I'm always a sucker for a research question.

Under Virginia law computer theft crimes are in Title 18.2 - Crimes and Offenses Generally, Chapter 5 - Crimes Against Property, Article 7.1 - Computer Crimes. Of course, nobody refers to the statutes in that manner, so if you're looking them up just start at § 18.2-152.1.

At first blush, the pertinent statute would appear to be 18.2-152.8 which states as follows

For purposes of §§ [Grand Larceny], [Petit Larceny], [Receiving Stolen Goods], and [Embezzlement], personal property subject to embezzlement, larceny, or receiving stolen goods shall include:

. . .

2. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:

a. Tangible or intangible;

b. In a format readable by humans or by a computer;

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human

Of course, there will always be the problem in a larceny case that larcenies require the "taking with an intent to permanently deprive" an item from the owner. Thus, the more pertinent crime is probably found in the Computer Fraud statute § 18.2-152.3:

Any person who uses a computer or computer network, without authority and:

. . .

3. Converts the property of another;

is guilty of the crime of computer fraud.

Conversion is usually a civil action, but it has been pressed into service here because it does not require larceny's "taking with intent to permanently deprive." Instead, it is the use of the property of another, without permission, for one's own benefit and inconsistent with the owner's rights. And, of course, property is defined for us under § 18.2-152.2 as

3. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:

a. Tangible or intangible;

b. In a format readable by humans or by a computer;

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human

The reason you don't see prosecutions under this statute is fairly simple. It's difficult to prosecute this sort of crime because of the dispersion of the parties involved. In other words, it ain't local. If a kid at Pitcairn College downloads 50 songs illegally, the actual property owners (whether they be record companies or artists) are going to be scattered around the United States and abroad. It is going to be difficult to get them to all come to Virginia to prosecute a misdemeanor. Thus ownership becomes difficult to prove. Value could also be difficult to prove ($200 or greater is a felony). Is a cruddy 32 kilobit per second mp3 download the same value as the uncompressed CD?

However, when you've got someone admitting to illegally downloading $5 million dollars worth of data illegally, you really don't have all those difficulties. They've admitted the illegal act and the value. It doesn't get much easier to prosecute than that.