Wikipedia:Mediation Cabal/Cases/2006-05-21 Dowling v. United States

Mediation Case: 2006-05-21 Dowling v. United States
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Request Information

 * Request made by: Mr2001 01:00, 21 May 2006 (UTC)


 * Where is the issue taking place?
 * Dowling v. United States


 * Who's involved?
 * Myself (Mr2001) and anonymous user 88.101.134.43


 * What's going on?
 * Anonymous user is inserting what I feel is POV language into the article, and has responded on the talk page with personal attacks rather than evidence to support his edits. I believe his edits have been made with the intent and effect of promoting the political view that, despite the court's finding that illegal copies are not stolen goods, they are still "stolen" in some sense. For example, changing "whether copyright infringement could be considered theft of goods" to "... theft of goods in addition to theft of intellectual property rights", when the new addition has no legal basis.


 * [Response: As it says on the discussion page, "anyone with even a cursory knowledge of law can find this. Here's just one, from the Department of Justice's report on "Intellectual Property Theft," issued in 2002: "Criminal intellectual property theft offenses include copyright and trademark infringement and theft of trade secrets." You can find the full report here: http://www.ojp.usdoj.gov/bjs/abstract/ipt02.htm; but there's probably dozens of other easy-to-find legal references to "intellectual property theft" on the Internet.] -- 88.101.134.43 (Talk) 12:49, 21 May 2006


 * What would you like to change about that?
 * I would like to stick to legal facts in this article, or make it clear which parts of the article are legal fact and which are outsiders' interpretations (and in that case, provide a balance of opinion).


 * If you'd prefer we work discreetly, how can we reach you?
 * N/A


 * Would you be willing to be a mediator yourself, and accept a mediation assignment in a different case?


 * This is, following the Categorical Imperative, the idea that you might want to do
 * what you expect others to do. You don't have to, of course, that's why it's a question.


 * Not at this time.

Mediator response
Well, my initial response is that the answer seems to be in the text of the case itself... from 473 U.S. 207 at 217-218:


 * It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "'Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, 'is an infringer of the copyright.' [17 U.S.C.] § 501(a)." Sony Corp., supra, 464 U.S., at 433, 104 S.Ct., at 784. There is no dispute in this case that Dowling's unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal employed by [18 U.S.C.] § 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially like infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. As a result, it fits but awkwardly with the language Congress chose-"stolen, converted or taken by fraud"-to describe the sorts of goods whose interstate shipment § 2314 makes criminal. "And, when interpreting a criminal statute that does not explicitly reach the conduct in question, we are reluctant to base an expansive reading on inferences drawn from subjective and variable 'understandings.'" Williams v. United States, 458 U.S., at 286, 102 S.Ct., at 3092.

(bold emphasis added)

This clearly -- in the words of a majority of justices sitting on the Supreme Court in a case that has not been overruled -- makes the case that "infringement" and "theft" or "theft of copyright" are not the same thing. Is the dispute between the two parties in this case broader than this? -- Joebeone (Talk) 01:45, 23 May 2006 (UTC)


 * Slightly. I have rewritten that sentence based on your response, in a way that I hope the anonymous user will agree with. I have two other examples in mind:
 * First, in the second to last paragraph, the anonymous user wrote: This statement ... has since been interpreted by many advocates of file sharing as a declaration that copyright infringement is not "stealing"--though the Supreme Court has never interpreted it this way, nor has any other court. I believe the bit after the dash is either false (if taken to mean that SCOTUS or another court has interpreted copyright infringement as "stealing", which they have not) or irrelevant and misleading in its omission (if taken simply as noting that the court has not ruled on this colloquial use of the term stealing). I tried rewriting it as follows: --though that isn't a matter of law, and no court has declared it explicitly. The anonymous user, however, insists on including the text as he wrote it.
 * Finally, the last sentence of the article: Nevertheless, debate about this ruling and its implications for file sharing continues to this day among file-sharing advocates. I had written "file-sharing advocates and opponents"; the anonymous user removed "and opponents" with the talk page explanation It's only file-sharing advocates who think that Dowling has "implications." ... Just do a Google search and you'll see. I believe it's incorrect to mention only the advocates, because the advocates are not debating each other; their arguments are directed at file-sharing opponents, so if there's any debating going on, it must involve both groups. Mr2001 07:58, 23 May 2006 (UTC)


 * I'll add that a google search is only useful for telling what is in google's index and to get a rough idea of what is pointing to what in the web. A google search is not a substitute for a reliable, credible and notable source for that information. -- Joebeone (Talk) 18:09, 23 May 2006 (UTC)


 * I'm going to close this case in 24 hours if we don't hear from the anon. -- Joebeone (Talk) 20:58, 31 May 2006 (UTC)


 * Case closed. -- Joebeone (Talk) 21:40, 1 July 2006 (UTC)

Evidence
Please report evidence in this section with for misconduct and  for 3RR violations. If you need help ask a mediator or an advocate. Evidence is of limited use in mediation as the mediator has no authority. Providing some evidence may, however, be useful in making both sides act more civil. Etiquette: Although it's understandably difficult in a heated argument, if the other party is not as civil as you'd like them to be, make sure to be more civil than him or her, not less.

Compromise offers
This section is for listing and discussing compromise offers.

I have rewritten the first paragraph as follows: Dowling v. United States, 473 U.S. 207 (1985) was a United States Supreme Court case deciding on whether copyright infringement could be legally considered theft of goods. (Some copyright advocates consider it theft of intellectual property, using a colloquial definition of the term, but the subject of Dowling was whether laws covering stolen property could be applied to illegally made copies.)

I am eagerly awaiting a compromise offer from the anonymous user. Mr2001 02:51, 25 May 2006 (UTC)


 * I would also like to hear from 88.101.134.43 soon (although that IP address hasn't contributed in days). His reverts appear to be disingenuous.  Given this compromise offer and the text I've quoted in my response, I would think this case is close to being closed.  However, I'm concerned that 88.101.134.43 reverts too quickly without discussing changes with other editors; the history of the Dowling page (which is the majority of 88.101.134.43's recent edits) shows this. There's no reason that both of these ideas can't find there proper place in this page, as long as it doesn't misrepresent the S.Ct. opinion. -- Joebeone (Talk) 20:11, 25 May 2006 (UTC)


 * He has reverted again, removing my compromise language and changing "goods" to "physical goods" a few times throughout the page, without even an edit comment or a remark on the talk page. At what point should I decide that he isn't interested in this mediation channel and try to resolve this through more formal means? Mr2001 22:33, 26 May 2006 (UTC)


 * This looks like the appropriate time. His reverts are clearly contrary to the text of the legal case and out of scope of merely highlighting the other side of this issue.  I would revert it back and move down the list of options in dispute resolution. -- Joebeone (Talk) 20:21, 27 May 2006 (UTC)

Comments by others
It is very difficult to effectively mediate with anonymous users. Have you determined that the other user is willing to paritipate in mediation? -- Joebeone (Talk) 17:42, 21 May 2006 (UTC)


 * Indeed I am. -- 88.101.134.43 (Talk) 12:49, 21 May 2006


 * Great. I've taken this case and am reviewing it now. To improve readibility, could I ask that you sign each edit to thist page with four tildes ( ~ )? That will embed your name and a timestamp to show that you wrote the preceeding text. -- Joebeone (Talk) 03:14, 22 May 2006 (UTC)


 * I have read the page and the mediation dispute. If I understand the dispute correctly (and feel free to correct), an anonymous user edits and reverts the page to promote "the political view that, despite the court's finding that illegal copies are not stolen goods [under 18 U.S.C. 2314], they are still "stolen" in some sense."  The more or less precise legal definition of theft or conversion wherever you look is: you have taken something from someone, and they no longer have the use and enjoyment of the stolen article.  You stole my car; I can't drive my car to work.  You stole my iPod (and all digital music files on it); I can't enjoy my music on my iPod.  You stole my Elvis Presley record; I can't listen to my Elvis Presley record.

But copying is not stealing. Suppose one copies an unauthorized Metallica MP3 off the old Napster. Have I stolen the Metallica song? No. Whoever it was copied from still has their original file on their hard drive, and can enjoy it to their heart's content. No theft occurred. Is it copyright infringement? Absolutely, since Metallica didn't authorize the copying. People call it theft all the time, especially the music industry, but nothing's been taken. It's been copied. The original is still there, and the copying does not damage the original in any way.

I think that's what the Supreme Court's trying to say in Dowling, as quoted by Mr2001 above. That's what Dowling argued: "Hey, I didn't steal all these Elvis bootlegs, I made 'em myself!" In dicta, the Court explained the rationale conversely with respect to patents. For instance, if someone steals your patented weedwhacker, they have committed theft of the weedwhacker, not patent infringement of the weedwhacker. (They didn't use weedwhackers or a specific example.)  The Court looked at 18 U.S.C. 2314 and the legislative history behind 2314 and ruled that there's no way that Congress intended to apply the statute to intangible intellectual property ("Congress acted under its commerce power to assist the States' efforts to foil the 'roving criminal,' whose movement across state lines stymied local law enforcement officials."). Besides, the Court noted, there are already some fairly steep criminal penalties for certain instances of copyright infringement.

The DOJ can take the position that copyright infringement is theft of intellectual property. So can the President, you, me, Jack Valenti, anyone with a blog, etc. But that doesn't legally make it a theft in the eyes of the law. Civil theft, a/k/a conversions claims asserted as a theft of intellectual property, get tossed on a frequent basis. Some folks may equate copyright infringement with theft/conversion, but Dowling pretty much says it's not. I doubt the RIAA, MPAA, et al. who take this stance concern themselves with whether they've nailed the ruling of Dowling; they're trying to convince folks to stop copying their works by labeling them as thieves. If the label sticks, it sticks. But check any lawsuit filed by these organizations and see what they sue individuals for? Copyright infringement. See what they pressure the DOJ into charging someone with - not sure this has been done yet, but rest assured the DOJ isn't going to file an indictment against anyone for violation of 18 U.S.C. 2314.

"This statement ... has since been interpreted by many advocates of file sharing as a declaration that copyright infringement is not "stealing"--though the Supreme Court has never interpreted it this way, nor has any other court." Technically it's correct, except when you get to the double dash. The problem is what is "it"? I interpret "it" to mean one of two things:

(a) The Supreme Court (or any other court) has never said copyright infringement is not stealing.

Not true, per Dowling. And it's a double negative.

(b) The Supreme Court (or any other court) has never said file sharing is not stealing.

Technically true - no court has addressed the issue. But it's misleading. No court has to address the issue - file sharing is generally copyright infringment (it's not if you're sharing works in the public domain), and Dowling makes it clear that copyright infringement isn't stealing. And it's a double negative.

Have I rambled on long enough? I generally support Mr2001 on this one. I don't see a bias in the article, perhaps other than describing one argument as follows: "Unfortunately, the industry's analogy was far from correct." Maybe it's just me, but that sentence (the word "unfortunately" in particular) seems to suggest the author has picked a side. I also think that most file sharing advocates make the second point first and first point second: "Music industry, we disagree with you. First, file sharing isn't stealing.  See Dowling.  Second, copyright law isn't as crystal clear as shoplifting . . . ."  Perhaps maybe "File sharing advocates disagree with this analogy, noting that, unlike theft, copyright infringement does not necessarily deprive copyright holders of the use of their copyrighted materials . . . ."  and then make the first point second.

Perhaps another form of compromise is to slightly rewrite the beginning to say:

Dowling v. United States, 473 U.S. 207 (1985) was a United States Supreme Court case deciding on whether copyright infringement could legally constitute a violation of 18 U.S.C. 2314, the unlawful interstate transportation of $5,000 or more in stolen, converted, or fraudulently taken goods, wares, merchandise, securities or money. (Some copyright advocates claim that copyright infringement constitutes theft of intellectual property, using a colloquial definition of the term, but the subject of Dowling was whether laws prohibiting the tranportation of stolen property across state lines could be applied to the transportation of copyright-infringing copies of Elvis Presley bootleg recordings acorss state lines.)

Just my two cents. BrownHornet21 03:44, 14 June 2006 (UTC)


 * Please note that the "unfortunately" bit was not written by a WP user, but comes as part of a quote from Peter Yu's article in the University of Colorado Law Review. The purpose of that quote is to provide an example for the WP article's claim that "debate about this ruling and its implications for file sharing continues to this day." It seems that this mediation case is closed (or at least the mediator claimed he was going to close it), and the anonymous vandal hasn't been back since May 28. Feel free to continue this discussion on the article talk page. Mr2001 03:47, 15 June 2006 (UTC)
 * AH - now I notice it's a big block quote - my bad! --BrownHornet21 00:12, 16 June 2006 (UTC)

Discussion
I need more evidence to work with here... can I get you to point to specific reverts/edits/etc.? (copy the url of a diff of the two versions and insert it in square brackets below with a note explaining it). -- Joebeone (Talk) 01:01, 23 May 2006 (UTC)