SOPA — the proposed Stop Online Piracy Act, and its cousins and substitutes — has been all over the news recently. Proponents rely heavily on rhetorical appeals to the idea that the US must act aggressively to stop “theft” of intellectual property by “rogue” website operators. That “theft” business has been endlessly and repeatedly critiqued by analysts of modern IP; “it’s not theft,” goes the typical rebuttal, “because we’re talking about public goods.” You just can’t steal an intangible! Courts have generally been impervious to this sort of claim, perhaps because it sounds so wonky. Surely something wrong is happening? Why not call it ”theft”? While critics of SOPA and related developments have struggled to produce a compelling vision of why, exactly, an open and most unregulated Internet is a great thing, one hopes that the “theft” meme might start to crumble a bit simply by virtue of its own over-extension. It was interesting, therefore, to read in yesterday’s NYTimes an account of a court following precisely that script — though not, I hasten to add, in an IP context.
The New York Court of ‘Appeals, the state’s highest court, recently reversed the conviction of one Joseph Hightower for petit larceny — that is, for theft. Hightower had been convicted under the following New York statute (the quotation is from the court’s opinion). A person is guilty of larceny if
with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 ) and “[a] person is guilty of petit larceny when he steals property” (Penal Law § 155.25). Property is “any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation” and an owner is “any person who has a right to possession thereof superior to that of the taker, obtainer or withholder” (Penal Law § 155.00 ,  ).
Hightower bought an unlimited MetroCard and offered to swipe the card (granting access to New York City’s subways) to riders in exchange for an unspecified amount of money per rider. Presumably the “fare” charged was less than the price of a single-ride ticket.
How is this not larceny? According to the court, the defendant deprived the New York City Transit Authority (NYCTA) of nothing. The NYCTA voluntarily sold an unlimited access MetroCard for the standard price. It never acquired a possessory interest in anything else — such as money paid by other subway riders — that Hightower obtained instead.
Hightower may have been guilty of other crimes, under New York law. The court specifically noted that it was not ruling on the possibility that Hightower may have been guilty of “theft” of services, or the unauthorized sale of transit services, neither of which were the basis for his conviction.