Re: including e-mail story in my book

On 7/15/98, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Tue, 14 Jul 1998, Thomas Workman <tworkman[_at_]erols.com> wrote:
> >
> > Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
> > >
> > > On 7/11/98, Rick O'Keefe <fredrick[_at_]tech-center.com> wrote:
> > > >
> > > > Barring legal cases which are pertinent, I would say that use of
> > > > stolen goods is a crime.
> > >
> > > The choice of words here is extremely unfortunate, as the subject
> > > matter of copyright can be infringed but not "stolen,"
> >
> > This is usually, but not always the case. I have a case right now in
> > which the copyrighted goods were "stolen". The thief took the one and
> > only copy of electronic goods and deleted the version on the rightful
> > owners machine. I believe that constitutes theft, and on the civil
> > side, a conversion.
>
> I think Dan is closer to being correct. The subject matter of copyright,
> the work of authorship, is a metaphysical thing and cannot be stolen. To
> really nitpick, it is not the work that is infringed; it is the copyright
> (a metametaphysical thing that covers another metaphysical thing) itself
> that is infringed.
>
> What has happened in your case is that a material object, a copy of the
> work, was stolen. The copy of the work and the work itself are two
> different things. The copy of the work, the copyright in the work and
> the work itself are three different things.
>
> In sum, we have three things here:
>
> The work itself, which is not material, and can neither be
> infringed nor stolen;
> the copyright in the work, which is not material, and can
> be infringed but not stolen; and
> copies of the work, which is material, and which can be
> stolen but not infringed.
>
> This is, I concede, extreme nitpicking, but the distinctions may be
> important important, I think, for certain analyses in extreme cases. For
> example, I think that, in a fair use analysis, it's worth distinguishing
> between the market for the work (which is in section 107(4)) and the
> market for copies of the work (which is not in 107 at all).

Forgive me if this has been brought up in this thread already, but the relationship between stolen goods and copyrights was discussed by the Supreme Court in DOWLING v. UNITED STATES, 473 U.S. 207 (1985), where they basically said its two different types of theories. The case involved an attempt to prosecute an Elvis Presley bootlegger for the transportation of stolen goods across state lines. The court dismissed the case saying the while he infringed the copyrights, that was not "theft".

The case can be found online at <http://laws.findlaw.com/US/473/207.html>.

Rob Jones
<rjones[_at_]robjob.com> Received on Thu Jul 16 1998 - 15:30:53 GMT