Wednesday, January 23, 2013

Intellectual property and file sharing co-habitation re-think needed

As this ZDNet opinion rightly points out, file sharing and copyright infringement are not synonymous. Kim Dotcom
deserves the protection of New Zealand's legal system; the case against him is muddled, and a rush to extradite him to the U.S. was ill-thought-out. Even if he broke some U.S. laws, Kim Dotcom's mega site may not even be about theft, as the New York Times points out.

In the middle of the 20th century, criminal law reformers were sufficiently annoyed by all of this specialization and ad hoc-ness that they decided to do something about it.

In 1962, the prestigious American Law Institute issued the Model Penal Code, resulting in the confused state of theft law we’re still dealing with today.

In a radical departure from prior law, the code defined “property” to refer to “anything of value.” Henceforth, it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly.

Before long, the code would inform the criminal law that virtually every law student in the country was learning. And when these new lawyers went to work on Capitol Hill, at the Justice Department and elsewhere, they had that approach to theft in mind.

Then technology caught up.

The NYT presents a pretty clear thesis: "...stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre-20th-century economy in mind. Second, we should recognize that the criminal law is least effective — and least legitimate — when it is at odds with widely held moral intuitions."

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