THIRTEEN WAYS TO STEAL A BICYCLE: THEFT LAW IN THE INFORMATION AGE, by Stuart P. Green. Cambridge, MA: Harvard University Press, 2012. 400pp. Cloth $45.00. ISBN 978-0-674-04731-0.
FROM GUTENBERG TO THE INTERNET: FREE SPEECH, ADVANCING TECHNOLOGY, AND THE IMPLICATIONS FOR DEMOCRACY, by Russell L. Weaver. Durham, NC: Carolina Academic Press, 2013. 254pp. Paper: $35.00. ISBN 978-1-59460-972-5
Reviewed by Roger A. Shiner, Department of Philosophy, University of British Columbia Okanagan and Okanagan College
These two books by Stuart Green and Russell Weaver are very different books, with a small but important area of overlap. Each is concerned about the challenge to established norms in their area of legal expertise presented by information technology, especially the Internet. Green is a leading scholar in the philosophy of the criminal law. His early article on mala prohibita (Green 1997) is still required reading, and then there are two recent books – Green 2006 and the present volume. Weaver is a noted constitutional law scholar, especially in the area of the First Amendment, with practical service also as an adviser in developing constitutions. I will deal with Green’s book first.
Thirteen Ways is one of the most interesting and imaginative books I have ever read. The topic of theft is given a thorough theoretical discussion, with doctrinal learning as the infrastructure. The topic is addressed historically: Green’s argument depends crucially on a reading of the history of the law of theft. The discussion is comparative: although Green focuses mainly on U.S. law and the Model Penal Code, he also discusses extensively the U.K. law of theft, with references also to the law of many other both common law and civil law jurisdictions. The discussion is practical, with a final chapter laying out in some detail Green’s preferred reforms of the law of theft. The discussion is also empirical: Green relies extensively on the results of surveys conducted by himself and Matthew Kugler on people’s perceptions of differences in kind and in seriousness of different ways of illegally ending up with someone else’s property. The result is a book of extraordinary richness, and the usual cautions about the inadequacy of a reviewer’s summary most certainly apply.
The “thirteen ways” conceit is not merely an issue of style. Green identifies thirteen different ways in which bicycles (which are apparently stolen more than a million times per year in the U.S.: p.x) and bicycle-related property can be acquired in violation of the owner’s property right in the bicycle, ranging all the way from relieving someone of their bicycle at the point of a gun (aggravated or armed robbery) to receiving stolen property not knowing it to be stolen. The central theme of the book is that these different forms of (shall we say) dishonest acquisition represent real moral differences in both culpability of [*650] the agent and kind and quantum of harm/damage done. The differences Green sees are also clearly seen by the subjects of a study that Green and Kugler conducted (pp.57-68).
The synergy between the reality of these moral differences and the historical dimension of the book is laid out in Chapter 1. Historically the development of the law of theft has been the development of an ever more complex array of different kinds of theft, and, especially in a territory with multiple coordinate jurisdictions such as the United States, the result is much local variation based on contingent historical and contextual factors. Conventions and customs concerning sentencing were equally varied. There began to develop towards the end of the nineteenth century a sense that things were going too far. Differences between offences started to appear more apparent than real: seemingly guilty offenders were being freed by being able to argue that they were being charged with the wrong offence; sentencing variations led to problems of legitimacy. The impetus to reform the law of theft by consolidation became irresistible by the middle of the twentieth century. The two main outcomes of reform Green discusses are the Model Penal Code in the U.S. and the 1968 Theft Act in the U.K. Both of these initiatives greatly reduced the forms of theft with the aim of better operationalizing the legal protection of property. The thesis Green defends at length in the book is that the result of consolidation is “a flattening in the moral landscape of theft law” (p.31). Cases of theft are not all alike: the old categories represented real moral differences – differences that can be captured, Green argues, only at the level of the definition of offences, not at the level of differential sentencing for ostensibly the same offence.
Chapters 2 and 3 substantiate this central claim. They constitute a “normative reconstruction” (p.70) of theft law rather than a doctrinal exposition. The moral content of criminal offences Green divides into harmfulness, mens rea, and moral wrongfulness. This structure is applied to theft in Chapter 2, “The Gist of Theft”. The harmfulness of theft lies in harm to property interests of one kind or another: this “harm” is further specified in terms of kind of interest, mode of appropriation, quantum of harm. The mens rea is traditionally an intent to deprive, though there is an issue of whether to include “permanently”. The wrongfulness of theft is primarily the deprivation of property rights itself and secondarily the deceit, coercion, breach of trust and so on that accompanies the deprivation. Both are discussed at length.
Chapter 3 focuses on theft as a crime. Violations of property interests are regularly and familiarly considered civil wrongs and dealt with by forms of civil law process: what justifies the state in deploying the “heavy artillery” (p.132) of the criminal law against those who violate property rights? Green’s thesis is that this question cannot be satisfactorily answered without giving due weight to the differences between specific forms of theft: it is not possible to justify the criminalization of some general concept of theft. Green first makes some general remarks about the moral preconditions for justified criminalization and then goes on to apply these remarks to numerous different forms of theft. These general remarks are the least satisfactory [*651] part of the book philosophically. Green begins in the correct place, with the well known account of the preconditions for criminalization developed by Sandra Marshall and Antony Duff (Marshall and Duff 1998). Their claim is that, to be justifiably criminalized, an act must count as a “public wrong”, wrongs in which the state is properly interested even though the harm or wrong is done to a particular individual or individuals. They appeal to an underlying idea of a liberal political community in which wrongs done to a member of the community are properly of concern to the whole community. Having mentioned this view, Green then quickly discards it on the ground – the inaccurate ground, in my view – that the view cannot explain why so many kinds of conduct are subject to both civil and criminal penalties. I will return to the issue later. Green’s own approach, although picking up the general idea of “is properly declared wrong by the community”, is to ask, Does the state have a substantial interest in preventing theft-caused harm? He points out (pp.148ff.) that theft costs property owners billions of dollars in the U.S. each year in direct costs, and has multitudinous indirect costs as well. It would thus seem obvious that the state has an interest in preventing such harm. However, as Green argues, whether criminalization is the best approach to dealing with such harm is ultimately going to be a matter of the empirical effectiveness of the criminal sanction in deterring theft. These calculations will be complex and contextual – another reason for resisting consolidation in the law of theft.
The final chapter, Chapter 4, finally gets to the subtitle’s “information age”. All the examples discussed so far have been theft of tangible goods. Increasingly, though, from the late nineteenth century on, both morality and law have acknowledged that intangible goods also can be stolen. Chapter 4 turns to intangible goods. Green’s thesis is that whether something counts as property for the purposes of theft law is going to depend on the four criteria of commodifiability, rivalrousness, excludability and zero-sumness. Paradigmatically, property that can be stolen should have all four characteristics, but these are concepts with fuzzy edges. The chapter discusses a range of goods: those that are questionably commodified; so-called semi-intangibles such as cable television transmissions, Wi-Fi and various services; bona fide intangibles such as certain kinds of information, identities, and then (finally and at length) intellectual property.
The section on intellectual property is careful and reasoned: the concerns I shall eventually express are of a more abstract kind. As Green points out, the rhetoric of theft with respect to intellectual property is strong. Both governments and the entertainment industry urge frequently and loudly that law-infringing appropriation of intellectual property is theft; downloading and piracy are stealing, and so on. Social norms, however, do not accord with the rhetoric, as we all know from our own experience and as Green’s empirical study confirms. Moreover, in its 1985 Dowling decision the U.S. Supreme Court ruled that copyright infringement is not theft. The key issue for Green, and rightly so, is whether the kind of property at stake in law-infringing appropriation of intellectual [*652] property meets the conditions his theoretical analysis has laid down for being the subject of the criminal offence of theft. Clearly, IP is commodifiable, and it is legally excludable even if not physically excludable. The difficulties come in considering whether IP is rivalrous and subject to zero-sum exchange.
Green takes copyright first. Intuitively, much material that is subject to copyright in the digital age is not rivalrous or subject to zero-sum. When the copy of a song, or movie, or computer program is downloaded in infringement of copyright the original copyright holder still “has” (Green’s scare-quotes, p.256) the song, movie or program. However, Green argues, the copyright owner has, or potentially has, lost something of value – the price the downloader would have paid to acquire the item of intellectual property in question. Perhaps in the case of one single individual downloader, this loss is negligible. But if the downloaded material is then posted to a website where thousands of other individuals can download it, then the economic deprivation to the copyright holder is considerable, taking the property misappropriated into the realm of a rivalrous and zero-sum loss. Thus now we do have a case conceptually speaking of genuine theft. The difference of scale makes a difference of kind.
Green goes on to treat other forms of intellectual property similarly. Misappropriation of a patent to the point where all value of the patent to the original inventor and patent-holder is lost qualifies as a form of theft, as would a case of extreme and intentional genericide in the case of a trademark, or a breach of a trade secret that rendered the IP kept secret valueless. Domain names, Green thinks, are unproblematically rivalrous – only one entity can own a domain name at a time: so misappropriation of a domain name is clearly theft. Virtual property in an on-line role-playing game also meets the theoretical conditions for being a form of property subject to theft: however, in Green’s view it is too insubstantial (the game can be shut down any time) really to be property.
In the end, Green argues (pp.267-69), the practical or policy question of whether these forms of misappropriation of intellectual property should be criminalized as theft is importantly different from the conceptual question of whether they conceptually could be criminalized as theft. He gives a number of reasons why we should think very hard before we take the step of criminalization if we are to be morally justified in actually doing so, even if threshold conditions for morally justified criminalization are met. Social norms, as noted, are out of step with the idea that appropriation of IP in violation of intellectual property law is truly theft. Fine-grained distinctions between kinds of misappropriation and kinds of IP are central to the normative issue of whether they should be subject to criminalization, and fine-grained distinctions are questionably justiciable. There is a valid alternative enforcement model through civil law processes. And, I might add, there are the issues others discuss in detail although they are merely alluded to by Green, of the relation of intellectual property law to constitutional guarantees of freedom of expression and the role that criminalization should play in calculation of the balance between [*653] encouraging and stifling creativity and innovation through intellectual property rights.
It is clear that Green’s account of theft and intellectual property is fundamentally consequentialist, and he acknowledges as much (pp.250-52). Recall that Green’s framing of the foundations of the law of theft, although picking up the general idea of “is properly declared wrong by the community”, is to ask, Does the state have a substantial interest in preventing theft-caused harm? We see that idea at play in the account of intellectual property – if the economic harm done by a misappropriation of intellectual property reaches a certain magnitude, then the misappropriation is properly called theft, because the state has a substantial interest in preventing that kind of harm. In the last paragraph of the discussion of criminalization, Green returns again to the Marshall/Duff idea that a pre-condition for an act to be criminalized is that it constitutes a “public wrong”. Green assumes that his story about a substantial state interest in prevention of the harm meets Marshall and Duff’s “public wrong” condition. He misunderstands their view, it seems to me. On Green’s view, the harmfulness of theft comes about because we have created a framework of property laws, and in particular of intellectual property laws, that makes certain kinds of act harmful, thus opening the way to their criminalization. However, the Marshall/Duff account is intended to repudiate such consequentialist justifications for criminalization. For them, the criminal law is not a consequentialist institution. Rather it is an institution that aims to call potential offenders to account before the community and if appropriate hold them liable for breaches of those bonds of respect and trust between citizens that hold together a liberal political community. The conventional character of intellectual property laws preempts criminalization of their breaches. Green is correct to see intellectual property laws as rooted in consequentialist values. However, the Court in Dowling was also correct: breaches of those laws do not constitute the crime of theft. Governments have given in to the political and economic power of the entertainment industry to criminalize such breaches by other means – the Digital Millennium Copyright Act, for example, or the Canadian Copyright Act of 2012. But they lack moral justification for doing so.
Weaver’s book, FROM GUTENBERG TO THE INTERNET: FREE SPEECH, ADVANCING TECHNOLOGY, AND THE IMPLICATIONS FOR DEMOCRACY, is different in both style and scope. Weaver begins from the familiar position that there is a fundamental link between democracy and freedom of expression: democracy needs freedom of expression in order to flourish, and the health of democracies can be judged by depth of their commitment to freedom of expression. He discusses the role played by the press and other media in acting as gatekeepers (or perhaps in Edwin Baker’s more vivid image, “sluices”) for the flow of information that constitutes the exercise of free expression. He discusses how the internet has challenged and even side-lined this traditional role for the traditional media, a tendency resulting from the increasing dependency of traditional media on advertising, thus prejudicing their role as independent gatekeepers, but one also exacerbated by the growth of the [*654] Internet. He ruminates on the implications of all this for democracy – how it affects political campaigns, how it influences government decision-making. He discusses the potential for the Internet to promote democracy – the Arab Spring, for example – but also the opportunities for governments to restrict expression by regulating or censoring the Internet, and the opportunities for private agents to control the Internet.
All this is very sensible, and Weaver lays out the issues well. However, the problem is: this is not news. Discussion along these lines has been going on within and without the academy almost since the birth of the Internet. In particular, in the academy, Edwin Baker has been arguing these same points for some time, and with a much greater degree of conceptual sophistication – first briefly in (Baker 1989, Chapter 11) and then at length in (Baker 1994; Baker 2007) (for an introduction to these two books, see (Shiner 1995; Shiner and Weaver 2008). Where Weaver outscores Baker is in the relentless thoroughness of the documentation of the claims made (a 220-page book has 1997 footnotes: we know this because they are numbered consecutively from the beginning of the book to the end), and in particular for the sources consulted. As befits a book on freedom of expression and the Internet, Weaver and his “three magnificent research assistants” (acknowledgments, p.ix) have scoured the internet, especially the blogosphere, as well as traditional media for evidence to support their argument. All the same the argument itself is not original.
Weaver’s analysis also falls victim to the flow of events. Even though the book has a publication date of 2013, political change has its own momentum. We know now what Weaver could not have known when he wrote the book – that the burgeoning of the Arab Spring and an Internet-driven movement towards democracy has met severe roadblocks. In Egypt, democracy is once again under siege. The governing Ennahda party in Tunisia is drifting towards repression of the media. In Libya the democratic government faces insurgencies from various well-armed groups, including former supporters of the Gaddafi regime. Yemen is the site of a full-scale struggle for control between supporters of democracy and the Al-Qaeda movement. Whatever role information technology and the Internet may have played in the original spreading of pro-democracy politics in the Middle East, it is clear now that the Internet by itself does not guarantee freedom of expression. As Deborah Johnson (2009) for one has long urged, the Internet is neither inherently democratic nor inherently undemocratic. It is what it is – a worldwide infrastructure for worldwide communication. Political power does not give way before the Internet: it uses the Internet.
I have not said anything with respect to Weaver’s book about intellectual property. That is because, despite his recognition that the enemies of freedom of expression are found among corporations as much as among governments, Weaver does not mention intellectual property, and that seems to me a real opportunity missed. The potential for intellectual property rights to conflict with rights of free expression is well known, notwithstanding the commitment of both copyright and patent to the impossibility of making [*655] intellectual property out of ideas and mental steps. Those same media corporations who seemed to be fostering democracy and freedom of expression by making material available on the Internet are now interfering with freedom of expression by concealing everything behind paywalls. Familiarly, in the academic area, publishers of journals and books try to exercise ever more rigorous control over their intellectual property to protect their revenue streams. Even material seemingly made available for free is in fact made available at the price of collecting data that can be sold to commercial organizations who bombard the unsuspecting with advertisements. The optimist of course thinks that all this turbulence will settle down in a state of greater openness, more freedom of expression and more democracy. I find it hard to be optimistic when what is at stake is corporate power.
I cannot end this discussion of Weaver’s book without making one final point. With due acknowledgment to England’s Guardian newspaper, I adopt the role of their Professor Pedanticus. Throughout the book the term “media” is used with the third person singular conjugation – the media does ... , the media has ... , the media intends ... , and so forth. To my surprise I find myself happily now using “access” as a verb and “hopefully” as an adverb, when once I would avoid these usages like the plague. But “media” as a singular noun? I really hope this does not get established. It has none of the conversational advantages of “to access” or “hopefully”. It is just a grammatical mistake: to treat what is a count noun (like “the sheep in the field” or “the people on the street”) as if it were a mass noun (“the number of books”, “the spaghetti on the plate”). The usage moreover is insulting to our friends in the fourth (and if you like fifth) estate, whose creative individuality resists being lumped together as an undifferentiated mass of media.
The main conclusions one can draw from seeing these books as a pair are as a result of the differences between the books rather banal. There is no question that the familiar normative values and principles in terms of which we think of both the law of theft and freedom of expression do not have in mind either digital intellectual property or digitally mediated expression. The development of digital information technology and its rapid overwhelming of our life as persons and as citizens has outrun those values and principles as traditionally conceived. Where we will all end up no one knows. I cannot imagine a world in which the world my children are growing up in is as baffling to them as is the world in which I grew up, with no personal computers, no internet, rotary phones, vinyl records and the like. The best hope to avoid the human tragedy that the discarding of those traditional values and principles would be lies in scholars like Green and Weaver, who represent the voice of reason and enlightenment in a turbulent and darkening world.
Baker, C. Edwin. 1989. HUMAN LIBERTY AND FREEDOM OF SPEECH. New York: Oxford University Press.
Baker, C. Edwin. 1994. ADVERTISING AND A DEMOCRATIC PRESS. Princeton, NJ: Princeton University Press. [*656]
Baker, C. Edwin. 2007. MEDIA CONCENTRATION AND DEMOCRACY: WHY OWNERSHIP MATTERS. Communication, Society and Politics. New York: Cambridge University Press.
Green, Stuart P. 1997. “Why It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses.” EMORY LAW JOURNAL 46:1533–615.
Green, Stuart P. 2006. LYING, CHEATING AND STEALING: A MORAL THEORY OF WHITE-COLLAR CRIME. Oxford: Oxford University Press.
Johnson, Deborah. 2009. COMPUTER ETHICS. 4th edn. Upper Saddle River, NJ: Prenctice-Hall.
Marshall, S.E., and R.A. Duff. 1998. “Criminalization and Sharing Wrongs.” CANADIAN JOURNAL OF LAW AND JURISPRUDENCE 11:7–22.
Shiner, Roger A. 1995. “Advertising and Free Expression.” UNIVERSITY OF TORONTO LAW JOURNAL 45:179–204.
Shiner, Roger A., and Sara L. Weaver. 2008. “Media Concentration, Freedom of Expression and Democracy’.” CANADIAN JOURNAL OF COMMUNICATION 33:545–49.
DOWLING V UNITED STATES 473 US 207 1985.
Copyright 2013 by the Author, Roger A. Shiner