Can software be stolen? (Was: Re: FAST)

Peter Groves <petergroves[_at_]compuserve.com> wrote:
>
> But software _can_ surely be stolen. OK, that's not what FAST are
> mostly concerned with, but if software is goods presumably theft is
> possible.

Peter raises an interesting philosophical question here-is software goods?

I'm not sure. The media on which it is stored does, and we commonly refer to this media as software, but strictly, what makes software soft is the fact that you can't hold it in your hand. If you can hold it in your hand, its hardware. Holding a copy stored on CD-ROM is possessing only the media and not the results of the efforts of whoever put what is on the CD there.

Therefore theft can only be of the CD and not what is stored on the CD. There can be no theft of data in England (_Oxford v. Moss_ [1979] Crim LR 119) or the US [_Ward v. SC of California_ (1972) 3 CLSR 206 (Cal) at least under (codified) common law]. Therefore theft of software is only possible if software is the media and not merely what is stored on the media. Any thoughts?

-- 
| Tim Arnold-Moore, LL.B., B.Sc. (Hons)
| Postal address:  Multimedia Database Systems, RMIT
|                  GPO Box 2476V
|                  Melbourne 3001
|                  AUSTRALIA
| Tel: 		+61 3 9925 4116
| Fax: 		+61 3 9925 4098
|	simul iustus et peccator
<tja[_at_]mds.rmit.edu.au>