A common recurring theme in the comments here on TorrentFreak is that P2P file-sharing is 'stealing'. While such sentiments are often expressed by the industry lobby groups, it's completely at odds with the law. It could also be the very LAST thing those bodies want.

We get a lot of comments on articles from people saying things like “Yeah, it’s stealing. Just embrace it already” or “Good excuse to steal right?.”

There are editorials in mainstream newspapers that say “Such theft costs the copyright- or trademark-holders billions of dollars each year.”

Even Vice President Biden said last year that “Piracy is theft, clean and simple, it’s smash and grab.” But you’d think a long-time lawyer and member of the Senate Judiciary would know to read the law.

The fact is that if copyright infringement was theft, then it would be treated as theft, dealt with as theft, and ‘copyright infringement’ wouldn’t exist at all. Nevertheless, the claims are often made. We’ve dealt with this topic before three years ago, focusing on UK law. So let’s take an example of a US case and see what would happen if it were tried as theft, instead of copyright infringement. The most obvious case is that of the RIAA against Jammie Thomas.

Civil trial

We all know the process. A John Doe suit is filed (over 200,000 of them in the US so far), usually amalgamated into a group for easy processing (although it is legality questionable). This then goes to discovery, where the identity is uncovered. At this point the suit is dropped and a direct appeal for ‘settlement‘ is made. If no settlement is reached then the civil lawsuit process can be started.

In the Thomas case the civil lawsuit was filed April 2006, and has now gone on for several years; the latest activity just this last week. Civil law (17 U.S.C. § 504) provides for both actual damages AND statutory damages from $200 to $30,000 for non-willful infringement and $750-$150,000 for wilful infringement – per infringement. In three trials, juries have set the per-track damages figure for Thomas-Rasset at $9,250, $80,000 and $62,500 while the courts have twice reduced it to $2,250 per track, which the RIAA is appealing, AGAIN.

The case has now been ongoing for over 5 years, not counting the original John Doe complaint, and it has occupied hundreds if not thousands of man-hours defending it. These hours cost money, and in a civil case that means finding a lawyer willing to take it on pro bono.

At first, Thomas-Rasset retained Brian Toder as her attorney, and later switched to Kiwi Camara. The much shorter Capitol v Foster case had attorney costs of over $68,000 awarded after the RIAA dropped the case, while Atlantic v Anderson (dropped by the RIAA after 3 years) ended up with over $100,000 in costs awarded by the court.

As with all such cases the verdict is based on ‘balance of the probabilities’ or ‘preponderance of the evidence’. Quite a contrast to a criminal case.

Criminal Trial

Were copyright infringement is ‘stealing’, this would be the process Thomas-Rasset would undergo.

An investigation would be made by the police (rather than a private company, hired by the complainant). As infringement is ‘theft’ she would be dealt with under Minnesota state law, specifically Minnesota Statute §609.52. She would be arrested, charged, and taken to court. If she could not afford a lawyer, one would be provided for her. Odds are, she would be dealt with in a matter of weeks, if not days.

The theft statute values goods at the cost to buy, so the 24 tracks would each be valued at $0.99 – the cost on iTunes – for a total of $23.76. If we take the worst case scenario though, and assume a whole CD per track at $20 per CD, that still brings the total value of the theft to $480. As the value is below $500, the maximum penalty available is stipulated as follows:

In all other cases where the value of the property or services stolen is $500 or less, to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both.

The trial would be judged, not on ‘balance of the probabilities’ as with a civil trial, but ‘beyond reasonable doubt’. Based on the evidence submitted in the trials so far, such a case would fail, as Ms Thomas-Rassett has never been proved to be personally responsible, only her connection and computer.

That means?

Of course, if it were just a choice of a civil suit or a criminal theft trial, then it’s clear why a civil trial is prefered, even if it is a money sink. Yet, there’s one last obstacle: The Supreme Court of the US.

In 1985, the Court ruled in Dowling v United States that copyright infringement is not theft, even when dealing with physical objects, such as vinyl records.

While industry bodies might still want to claim it’s still theft there is one simple fact that’s clear. In treating it as theft the benefit would be to the alleged infringer. A higher evidence standard, an independent investigation, legal counsel provided free for the alleged infringer, and vastly smaller penalties.

The infringement=theft argument has only one thing going for it, and that’s its emotional impact. In reality, it’s the very LAST thing they want, which is why new laws, like Protect IP and others have been pushed for many years. And again, we reiterate that we’ve dealt with the US here, laws for other countries are different, as we’ve seen twice in the past week in Sweden, yet it’s still copyright infringement there, not theft.

If you’re confused about it still, maybe this song will help you tell the difference.