Talk:Dowling v. United States (1985)

"Physical", a matter of law, and continuing debate

The last several conflicting edits between myself and user 88.101.134.43 have concerned these points. I believe the net effect of his edits is to subtly slant this article in favor of the philosophical/political position that copyright infringement is "stealing" in some significant sense. Rather than simply reverting again, I'll bring the discussion here:

I believe the constant references to "theft of physical goods" are misleading. The term "physical" does not appear in the relevant laws, and if goods are physical by definition, the phrase is redundant.

[Response: Good grief! You've been posting back and forth about the Dowling decision, and you haven't even read it. Here's what it says: "[The statute] seems clearly to contemplate a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods." Apparently, the net effect of your edits is to "subtly slant" the viewer into thinking that you had actually read the decision.]

Yes, that's from the decision, not from the law. Mr2001 09:27, 15 May 2006 (UTC)

[Response: Um...the decision IS the law. That's why it's called "case law". Is there even a point in having a legal discussion with someone who doesn't understand that?]

I have to say that despite his inappropriate tone, I agree with Anon here: if you don't know that a SC decision is law or that all goods are physical then you shouldn't be editing articles on SC decisions. That's basic first semester law school stuff. Kidradical

"[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." It has never been interpreted either way, because it is not a matter of law. The question of law is settled: making an illegal copy is not theft, it's copyright infringement.

[Response: By your own statements, you defeat the very argument that you're trying to make: If it "has never been interpreted either way," then how can it be that "the question of law is settled"? Besides, trying to argue that "it has never been interpreted either way" as a means to prove your interpretation is like saying that the court has never ruled either way on whether invisible unicorns live on the Moon, so therefore it must be judicially viable to suggest that invisible unicorns live on the Moon. Contrast that with saying, "the court has never ruled that invisible unicorns live on the Moon, as invisible unicorn advocates have suggested."

I'm not suggesting that anything is "judicially viable", nor am I trying to prove any interpretation; I'm only trying to correct the reasoning in that statement. When someone asks "is copyright infringement stealing?", the question can be taken (at least) two different ways: Legally, as in "is an infringer committing the crime known as stealing (or theft, larceny, etc.) and are illegal copies considered 'stolen' under the relevant laws", or philosophically, as in "is infringement the type of behavior generally thought of as stealing".

The former is settled, partly by the decision in Dowling that unauthorized copies are not "stolen goods", and partly by the fact that the laws covering copyright infringement do not classify it as theft or stealing (not even "theft of intellectual property", so I will be removing that phrase once again). The latter is not a question of law, and cannot be settled by the Supreme Court or any other court. Mr2001 09:27, 15 May 2006 (UTC)

"Nevertheless, debate about this ruling and its implications for file sharing continues to this day among file-sharing advocates and opponents." I wrote "and opponents"; the anonymous user deleted that phrase. I have never seen one file-sharing advocate debate the implications of Dowling with other file-sharing advocates, only with opponents, and it seems odd to think that the only debate on this topic is strictly between advocates. Mr2001 23:39, 4 May 2006 (UTC)

[Response: It's only file-sharing advocates who think that Dowling has "implications." Really, no kidding: Just do a Google search and you'll see.]

That may be. The word "among", however, suggests internal disagreement the way you've phrased it. Are you seriously trying to say that some file sharing advocates believe Dowling has implications for file sharing, other file sharing advocates believe it doesn't, and file sharing opponents have never considered the issue nor discussed it with advocates? Mr2001 09:27, 15 May 2006 (UTC)

Once again, if you're conceding that Anon "may be" right, then why argue the point? Kidradical

"Theft of intellectual property rights"

I have removed this phrase, which the same anonymous user inserted, because it is not a legal term; there is no such crime as "theft of intellectual property", and copyright infringement is not considered "theft" under any (US) law. Kindly refrain from inserting such biased language into this article. Mr2001 19:27, 20 May 2006 (UTC)

[Response: How is it that you know what is or is not a "legal term" when you don't even know what case law is? (See above.) I'm a senior lecturer of media law, and trust me, you're not doing anyone's understanding of this case any service with your edits...]

Heh. I'm afraid your ad hominem doesn't cover up the fact that you have no source for this claim. Either cite a source for this supposed "theft of intellectual property rights"--go ahead, find just one case where copyright infringement has been declared "theft"--or stop inserting POV language into this article. Reverting once more. Mr2001 00:55, 21 May 2006 (UTC)

[Response: Reverted back. And, for the record, how is it that you've randomly accused someone of engaging in a scheme to "subtly slant" an article, and then acted as the victim of an ad hominem attack?

[And if you need a source for "theft of intellectual property rights," 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. Perhaps if you spent less time feigning expertise by trying to invoke phrases like "settled law" and more time actually reading up on the subject, you might both learn something and help others do so as well.]

Sure, you can find plenty of people referring to such crimes as "theft". Similarly, you can find people referring to various acts as "hate crimes" or "war crimes" or "rape" even when the acts aren't legally categorized as such, and "intellectual property theft" is no different. The DOJ is not a court and it does not write laws; its opinion as to whether copyright infringement is "theft" has no more legal weight than yours or mine. The fact remains that there is no such crime as "intellectual property theft", and the laws that do cover theft don't apply to copyright infringement. If you'd like to make clear that "intellectual property theft" refers to a (controversial) opinion, rather than any crime or legal category of acts, go right ahead. Mr2001 00:33, 23 May 2006 (UTC)

Let me put it this way: suppose you pored over Dowling tomorrow and discovered tiny, hidden print at the end saying "Oh, by the way, we also find that copyright infringement is theft of intellectual property rights." Would any cases be decided differently in the future based on this new discovery? Would any past cases be found to have been decided incorrectly? No, because the term has no meaning other than a political one. Such a declaration would be as irrelevant to actual violations of the law as "We find that ice cream is delicious." Mr2001 00:46, 23 May 2006 (UTC)

Agreed, under US law there is no such term as "theft of intellectual property rights". I even asked a final year law degree student who is doing his thesis on US law :D -- Tmorton166 (Errant Emote)  ^talk 12:14, 21 May 2006 (UTC)

[Response: Wow, a law student. Now THERE's a reliable source of expertise! And he's doing it on "US law"--whoah! just one year, or all 230? <g>]

Please be civil (WP:CIVIL). It will help the moderation of this dispute and is official wikipedia policy. -- Joebeone (Talk) 01:04, 23 May 2006 (UTC)

Also, 88.101.134.43, be conscious of not owning articles (WP:OWN): "You agreed to allow others to modify your work here. So let them." -- Joebeone (Talk) 22:10, 23 May 2006 (UTC)

Seconding the motion to be civil here. But it should be noted that there's all kinds of "theft of intellectual property" in US law--trade secrets, patent infringement, etc. etc. It's really not even a question.

Mediation

I have applied to the cabal for mediation: Wikipedia:Mediation_Cabal/Cases/2006-05-21_Dowling_v._United_States. Mr2001 01:23, 21 May 2006 (UTC)

Look, anonymous, if you say you're willing to go through mediation, then how about actually doing it? How about trying to come up with some compromise language, like I did and you "reverted"? How about not adding even more POV language when you claim you're reverting? Mr2001 02:45, 25 May 2006 (UTC)

It seems you aren't reading or participating in the mediation cabal page, anonymous. I cannot assume good faith on your part when you revert without comment and without paying the slightest heed to our mediator. Mr2001 22:35, 26 May 2006 (UTC)

RfC

Normally, we see RfC before something goes to mediation; I see here someone wants both....eeek. Anon: you would do much better to get an account, log in, and sign your posts: it does wonders for credibility. 2001 - the phrase "Some copyright advocates consider it theft of intellectual property" is weasel-worded - some??? if you are a copyright advocate, you consider it at least theft of IP; that's almost by definition. Regardless, a statement like that would need a citation. I am not up on this particular case, but I would suggest that in terms of settling a dispute on WP, comp[romise is not always the best answer. Example: I say 2+2=7, you change it to 2+2=4, we get into a revert war. Now is the proper solution here to end up at 2+2=4 or 'compromise' and publish it as 2+2=5.5 ??? It may well be that what one party thinks is POV is actually the truth/correct answer. And sometimes, the correct answer is not the one you want it to be.....Bridesmill 00:43, 27 May 2006 (UTC)

I agree about the weasel wording. Frankly, I don't think a statement about "theft of intellectual property" belongs in this article at all, since it has little if any relation to the matter in hand in Dowling - the legal definition of "stolen". I don't think removing "some" would be an improvement, though, without evidence that all copyright advocates equate infringement to theft. One can advocate laws against unauthorized copying without believing such copying is equivalent to theft.

I also agree with your point about compromise in general, but I don't think this is one of those either-or cases. The problem here is that terms such as "theft" and "stolen" mean one thing legally, and often mean something else outside the courtroom. It's factually incorrect to claim that infringement is considered "theft of intellectual property" by any court, but if Anonymous wants this article to mention that some people do consider it such (without any legal weight behind their opinion), I'm not opposed to that, as long as the article is clear on the difference between those philosophical/political beliefs and the actual law. Mr2001 01:54, 27 May 2006 (UTC)

Almost by definition, 'all copyright advocates consider it at least theft of intellectual property - if they didn't they would not be advoicates of copyright. Some consider it more than theft of IP & would go so far as to consider the IP to be a material good. Methinks you are trying to weasel your way out of what Dowling says.Bridesmill 03:28, 27 May 2006 (UTC)

That's not true. One can believe in and support copyright without confounding copyright infringement with theft. --ElKevbo 03:36, 27 May 2006 (UTC)

Bridesmill is way of the mark with this reasoning. I consider myself a "copyright advocate", yet I emphatically do not consider copyright infringement to be "theft of intellectual property". Why? Because such a phrase is factually incorrect. Copyright infringement and theft cannot be equated; they are two separate concepts, hence their incorporation into two separate titles of the US Code. Theft deprives the owner of the thing concerned the ability to make use it entirely. Copyright infringement does not do this. Instead, copyright infringement attacks the ability of copyright holders to exercise certain exclusive rights afforded to them by law (generally, the right of reproduction and the right of distribution). Infringing on a person's copyright does not deprive the copyright holder of the work in question; it tramples on their right to exclusively control that work's reproduction and distribution. If you want a realistic parallel, copyright infringement is much more akin to the concept of trespass: trespassers do not take land away from owners, they infringe upon landowners' rights to exclusively control who can be present on the land. -- Hux 12:19, 19 November 2006 (UTC)

Eeek. If you do not consider infringement of copyright as theft (of at least intellectuial property), then what is the value of copyright in the first place?Bridesmill 03:55, 27 May 2006 (UTC)

I don't think it necessary or even a good idea to try to equate copyright with physical property. I have no problem separating the two concepts and violations related to the two concepts. Theft physically deprives someone of a physical object. Copyright infringement violates someone's state-given rights to copy, distribute, and use an idea. They're both crimes but they're different. --ElKevbo 04:01, 27 May 2006 (UTC)

I believe it's a perfectly legitimate viewpoint to say that "I don't think it necessary or even a good idea to try to equate copyright with physical property." But that's exactly the point: It's a viewpoint, and is therefore POV, not factual statement. Kidradical

IMO you might as well ask "if you don't consider rape as murder, then what is the value of laws against rape in the first place?" They're different actions with different consequences and different reasons to oppose them. Someone might support copyright because they feel it's necessary for running an effective business around the production of intellectual works (and they consider the widespread production of such works a goal), for example, rather than because of any moral beliefs about the ownership of property. Mr2001 11:51, 29 May 2006 (UTC)

Bridesmill said: "If you do not consider infringement of copyright as theft...then what is the value of copyright in the first place?" Your question suggests you don't really understand what copyright is and what it is for. The value of copyright as a concept is a function of its purpose: "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (US Constitution, section 8, clause 8). In other words, its purpose is to encourage more creative works to be produced and (eventually) pass into the public domain. Given that the ultimate beneficiary of copyright law is intended to be society as a whole, the best possible copyright law would be that which guarantees the maximization of both the production of works and the free use of those works by the public. That is "the value of copyright". -- Hux 12:19, 19 November 2006 (UTC)

But you're ignoring how it promotes such things: it does so by giving authors property rights in the works they create. When the law protects against those properties from being stolen, it encourages authors to create more works. Kidradical

Correction: when the law protects against people infringing on authors' exclusive rights it encourages those authors to create more works. (Copyright law does not protect against works being stolen. In fact, no law does because works, not being physical objects and not being owned by anyone, cannot be stolen.) And I'm not ignoring how copyright law promotes such production - I simply outlined the purpose of copyright and why that purpose is a good thing. The means by which the purpose is achieved (i.e. giving authors certain exclusive rights for a limited time) is both ancillary to that point and implied by the general "copyright is a good thing" tone of my response. -- Hux 20:10, 12 December 2006 (UTC)

PS Could you could sign your posts properly (using four tildes) so that your timestamp is recorded? Thanks. -- Hux 20:10, 12 December 2006 (UTC)

Here is where we may need to be careful in terms of US law & other laws & legal interpretations versus linguistic definitions - theft refers to unlawful taking of property; not of necessity physical property. This I believe is part of what Dowling is struggling with: Intellectual property theft is copyright infringement and is theft. Whether it is physical theft or not is debatable, but it is intellectual property theft. I wouldn't go near trying to call copyright vios as theft of physical property; although I supposew some people make that argument and in some cases it does/might apply.Bridesmill 15:15, 27 May 2006 (UTC)

The text in Dowling specifically notes that the Copyright title in US law (which is what is applicable in the case of Dowling, of course) recognizes that taking of intellectual property is not theft, but something different that the Title calls "infringement" of one of the exclusive rights. -- Joebeone (Talk) 20:55, 27 May 2006 (UTC)

All those conclusions are debatable, because whether an act constitutes "unlawful taking of property" depends on your definitions of "taking" and "property". A copyright opponent might argue that "taking" refers to taking something away from its rightful owner, not simply to obtaining [a copy of] that thing, and property doesn't properly refer to nonphysical things anyway. Mr2001 11:51, 29 May 2006 (UTC)

The issue seems to be stale or old, but I will add that copyright infringement is not theft either under the common English meaning or the legal meaning. Theft of something requires a transfer so that the victim no longer has possession of the thing stolen; duplication cannot be theft. —Centrx→talk • 02:38, 23 July 2006 (UTC)

Actually, that's the definition of larceny, not theft. There's all sorts of theft under U.S. law that don't require depriving "possession of the thing stolen" -- theft of trade secrets, as just one example (see 18 U.S.C. 1832 "Theft of Trade Secrets") --Kidradical

Three points: Firstly (and somewhat pedantically), larceny and theft are not two different things - larceny is a subset of theft that concerns itself specifically with tangible, personal property. Secondly, US copyright law occupies a completely different title in the US code (Title 17) than theft (a subsection of Title 18). Lastly, and most significantly, this really isn't the place to get into a big debate about whether or not copyright infringement can be legally equated with theft. -- Hux 13:30, 13 March 2007 (UTC)

What is "it"? Copyright infringment?

"Some copyright advocates consider it theft of intellectual property" in the first paragraph? BrownHornet21 03:06, 14 June 2006 (UTC)

Yes, "it" refers to copyright infringement. I thought that would be clear from context: "X was a case deciding on whether Y could be legally considered Z. Some people consider it W [which is similar to Z], but that's a separate issue." Feel free to clarify the paragraph if you think it's necessary, though. Mr2001 07:24, 16 June 2006 (UTC)

Kidradical's recent changes

I assert that Kidradical's recent changes are misleading and incorrect. To state that the case was about whether the defendant's actions "could be legally considered theft of physical goods in addition to theft of intellectual property" is incorrect. The Supreme Court held that "interference with copyright does not easily equate with theft" and thus to state that there was "theft" of intellectual property is grammatically and legally incorrect. Kidradical's changes beg the very question this case attempted to answer (and answered in the negative). --ElKevbo 22:17, 11 December 2006 (UTC)

Agreed. I also re-edited that paragraph to attempt to make it clearer and remove ambiguity. Thoughts? -- Hux 20:18, 12 December 2006 (UTC)

On second thought, the sentence in parentheses shouldn't even be in the opening paragraph, plus it's very weasel wordy. I've removed it and added the sentiment it was conveying into the "significance of the case" section. Hopefully I've succeeded in removing the emotive language that was causing the earlier disputes. -- Hux 19:02, 13 December 2006 (UTC)

How common is the use of the term 'theft' to describe intellectual property theft?

Clearly, the fact that the word 'theft' is still used today legal professionals for copyright infringement, despite the judgement is relevant.

I would argue that 'IP Theft' is commonly used amongst legal professionals. Clearly, however, I have to provide justification for that. (My earlier phrasing was quite correctly changed to simply 'some' legal professionals.)

However, how many references do I need to give before I can consider that I've made the point?

Clearly, the Department of Justice uses the term in almost every discussion they take part in involving intellectual property violations. (I gave one reference). For example, would I need to give 10, 100, 1000, before I can reasonably say that the DoJ uses the term commonly?

How many attributions do I need to give before I can reasonably say that it is commonly used ?

(The fact that it may be an incorrect use is fascinating, but doesn't change the fact that it 'theft' is still commonly used by IP Lawyers) 150.101.206.3 14:53, 28 February 2007 (UTC)

Don't worry - solved the problem now. The 16,000 member organisation AIPLA is a professional association for IP Lawyers. Since they uses the term 'theft' - I can clearly say that it is a common term .. even if it may be incorrect)

150.101.206.3 15:19, 28 February 2007 (UTC)

You can't say that it's a common term. Find someone else reputable and knowledgeable who has said it and cite them. To do otherwise is original research and that's not what we do here. --ElKevbo 15:42, 28 February 2007 (UTC)

The main point that is being missed here is that this comment, while potentially relevant to a general discussion of copyright law, is not relevant to this specific case. Worse, its presence conveys a propagandistic implication, which is very inappropriate for an article whose purpose is simply to describe the Dowling case. And that's before we even begin to discuss whether or not it's actually accurate. For these reasons I'm removing it. -- Hux 20:16, 5 March 2007 (UTC)

Kidradical's reversion of my reversion

Kidradical: Please do not indulge in an Edit War by reverting a reversion. We appear to have a disagreement about the accuracy of the comment in the "Significance of the case" section, so let's try to come up with something we both agree with.

As I implied in my reversion comment, "It has particular relevance in debates concerning file sharing", is not a POV comment. It is a statement of fact: the Dowling case has relevance to that debate whatever one's opinion on file sharing might be because, as the text states, "it is one of the few times that a Supreme Court case has directly discussed whether or not copyright infringement can be seen as theft for the purposes of prosecuting someone under a theft-related statute", thus it is not POV.

I'm afraid your logic is broken: The mere existence of a debate over whether something is relevant is not somehow the same as a conclusion that it actually is relevant. (By that reasoning, everything would automatically be relevant to everything.) To conclude that something is relevant is subjective (and thus POV); to simply state that one side believes that it's relevant is objective (and thus non-POV).

And the fact that it's "one of the few times" that the SCourt has addressed the issue under a specific federal statute makes it relevant only to that statute; whether the Justices will someday take that and apply it -- as file sharing advocates hope they will -- to all sorts of other situations, statutes, cases, etc. etc. (or, not, for that matter) is something that's up to the Court, not up to you or me or the file sharing advocates or anyone else.

In fact, the Court actually could have done this in its original ruling (issuing a broad decision rather than one based solely on the limits of the statute), and instead chose not to do it. Instead, it said that the prosecutor had applied the wrong statute, since the Copyright Act already contained criminal provisions for such acts and that the legislators who wrote the new statute had not intended it to take over the place of the old law.

You can chose to read into that fact (or not) to try to augure how the SCourt might view the attempt at applying the Dowling ruling to the broader field of intellectual property cases; but at the very least the most accurate thing that can be said is that the Court has never adopted the position advanced by the file sharing advocates, and nor has any Justice even argued that idea in a dissent. -- Kidradical

I agree, however, that "tends to support" is POV so we should try to come up with something better. How replacing everything after the first sentence in that section with this:

As such it has particular relevance in debates concerning file sharing, in which participants commonly discuss whether copyright infringement can be seen as a form of theft (both in terms of strict legality as well as colloquial definitions of the word). Debaters who argue that copyright infringement is distinct from theft often cite the Dowling court's finding that the plaintiff's bootlegged records could not be regarded as stolen property in order to support their position.

Sorry, but what you state as the court's finding is actually not the court's finding. The court ruled that the statute governing the interstate transportation of stolen property could not be used to prosecute copyright cases. (For a far more technical argument than you might be prepared for, contrast the Copyright clause with the Interstate Commerce clause, which are different parts of the Constitution.)

Why are you dissatisfied with the way it's currently written? If you agree that "tends to support" is POV, why not simply identify the people (file sharing advocates) who hold the POV? -- Kidradical

If you find this acceptable then please post saying so and/or make the edit. If not, please suggest an alternative.

If, after one week, you haven't given your opinion I'll assume you're not bothered either way and I'll change the text to reflect the above. Thanks. -- Hux 10:45, 17 March 2007 (UTC)

Kidradical: I have to say that I'm really having a hard time understanding your objection to the "relevance" issue. There exists an argument over whether or not copyright infringement can be equated with theft, this case addresses that concept, therefore this case is relevant to that argument. In all seriousness, what am I missing here?

No worries, Hux. You're making a mistake that is actually fairly typical among non-lawyers when they attempt (with good intentions) to legally analyze a court ruling. One common mistake is that laymen don't understand that, for the most part, rulings that interpret a statute apply only to that specific statute, and not to the rest of the body of American case law. (Unless the court specifically says otherwise, which is actually quite uncommon -- for example, a decision about parental notification that declares "all abortion is illegal").

The reason for this limited scope is that when a court analyzes a statute (as opposed to a precept of common law) it must parse the statute's specific language, examine the actual intent of the legislators who passed the law, etc. etc. etc. -- factors that will likely be different for every statute that a court looks at. (A statute also usually has an entire section devoted to defining what the specific words in its text mean; and therefore, the exact same word can be -- and often is -- defined completely differently in various statutes.)

For example, in this case, the Court ruled that the prosecutor couldn't use this interstate traffic law to prosecute a copyright infringement case; because the Copyright Act already contains a criminal provision and, looking at the intent of the legislators, there's no evidence that they wanted to use the new law to replace that section of the old law. The prosecutor was basically reaching to try to use the new law, probably because it had stronger penalties or a longer statute of limitations, and the Court said he couldn't take it that far; he'd have to rely on the criminal provisions that were already in the Copyright Act. -- Kidradical

You said: "Sorry, but what you state as the court's finding is actually not the court's finding." I find this objection equally odd. The court's ruling states that "[t]he phonorecords in question were not "stolen, converted or taken by fraud" for purposes of [section] 2314." That being the case, how does my stating that "the plaintiff's bootlegged records could not be regarded as stolen property" not jive with this? It's a straightforward paraphrase of the complete quote that appears earlier in the article.

And here is exactly the example of the problem I just described. Look at your "paraphrase" and then look at the Court's ruling. What are you leaving out? Bingo: "for purposes of [section] 2314." This isn't just some legal mumbo-jumbo designed to make your eyes glaze over; this is as much an essential part of the ruling as the rest of the sentence. Or, put another way: imagine that you tell your daughter she can stay out until 11 p.m. on Friday nights; instead, she stays out to 11 p.m. on Monday night, claiming that you told her she could stay out until 11. What would you say to her about her argument? -- Kidradical

You ask why I'm dissatisfied with the text as it currently stands. Here's why:

• "File sharing advocates" is a problematic phrase because it is ambiguous. Taken literally, it refers to people who support all forms of file-sharing, however its intention in this article is to refer only to those who support file-sharing that is infringing in nature.
• The phrase, "File sharing advocates argue that it has particular relevance", is factually incorrect - it is not only advocates of infringing file-sharing who argue this.

Well, okay, but now you're devolving into semantics; if you don't want to call them "file sharing advocates", then find another term to describe them. But whatever term that is, the article still must identify them as holding the POV that the decision is relevant, rather than the article itself holding the POV that the decision is relevant.

However, I would caution against using the term "advocates of infringing file-sharing", since I don't think they believe that what they are doing is infringing -- which is one of the reasons that they keep trying to cite cases like Dowling. Either way, it's not the word that I used to describe them... but, if you do feel the need to add that word in to render the sentence inaccurate, then maybe you need to reconsider whether it's really inaccurate after all.

And, just while we're at it, the whole "taken literally" approach is really only a bit of silliness: "taken literally," the phrase "pro-choice" means that you're in favor of all forms of choice; "pro-life" means you're in favor of all forms of life, and so on. -- Kidradical

Finally, as I said, I opened this discussion in the spirit of compromise. In order for such a compromise to be reached we both need to present suggestions for improvements to the section under contention in order to come to an agreement. Instead of simply criticizing my suggestions in order to dismiss them, why not bring a suggestion of your own to the table? -- Hux 19:04, 23 March 2007 (UTC)

Well, I don't think a compromise is in order, because that's not how interpretation of case law works. If the Supreme Court ruled that 2+2=4, and someone claimed that it ruled 2+2=6, would a compromise of 2+2=5 be the best solution? -- Kidradical

Kidradical: Firstly, if there is contention then Wikipedia policy demands that those in disagreement attempt to reach a consensus, which necessarily involves all parties accepting that what is currently written is subject to change. If such a policy did not exist then Wikipedia would quickly become a useless site full of edit wars by people demanding that their text remain no matter what. (The temperament of a Zax is of no use to this site!) I see from your contributions that you've only been around here for a few months so it's entirely possible that you're unaware of this. If so, I urge you to take a look at "Wikipedia:Resolving disputes", since that page forms the policy under which both of us are working here.

Secondly, with respect, your legal argument above is inaccurate with regard to the issue of precedent and thus our disagreement over relevance. If I'm reading you correctly, you are asserting that Dowling has no relevance in file sharing discussions that deal with the "copyright infringement = theft" contention because the precedent being set applies to future cases involving that specific statute only.

Well, it's not my contention, it's the Court's contention -- and you even quote the exact sentence in which the Court says it ("for purposes of [section] 2314."). I think your original statement was simply the result of oversight -- which is why you inadvertently omitted it when you paraphrased the sentence (see above) -- but eventually this discussion will begin to raise the question about why you feel so determined to argue the point. It's not a matter of "consensus" or Wikipedia policy whether the Court wrote that sentence. It is, as they say, right there in black and white.

This assertion entirely overlooks the importance of dicta in appellate rulings which, while not binding on lower courts, are still accorded some precedential weight. The general comment that copyrighted works are not the same thing as stolen property runs throughout the Dowling opinion, sets precedent as dicta, and can thus be cited by other courts when considering cases that do not concern themselves solely with that one statute. That being the case, it clearly does have some relevance in file-sharing debates that touch on whether or not copyright infringement can be equated with theft under the law.

First things first, a discussion of the dicta concept is inapposite, since the ruling isn't dicta. (The Court was presented with the question of whether transportation of pirated copies could be prosecuted under a law governing interstate trafficking of stolen property. The Court said: "No.")

But the reason that you raise the subject of dicta is the same reason that you make your other mistakes in attempting to interpret the ruling, such as glazing over key parts of the holding without recognizing them: though it may be frustrating to hear, you don't really understand the meaning of the language that's being used. For example, under American law, you can't really advance a phrase like "the importance of dicta" -- because dicta, by definition, is not "important". Dicta could be cut out of a ruling and have no effect whatsoever on the underlying case being decided; that's WHY it's called dicta.

To try to argue the "precedential [sic] weight" of dicta is actually entering bull-in-a-china-shop territory; dicta doesn't have precedental weight, because dicta is the opposite of precedent. The Court's statements that bear on the question in the case are precedent; the statements that don't are dicta. The very last thing that you'd want to do here is to claim that your argument about relevance is based on dicta.

But, as I said, the whole subject is inapposite, because the sentence in question isn't dicta. It's the actual holding of the case on the question before the Court. It just doesn't say what you'd like it to. -- Kidradical

I maintain that my suggested text above is superior to your edit, both in terms of accuracy and usefulness for the article. Having said that I am entirely open to any suggestion that might improve it still further and urge you to work with me on this in order to find an agreeable solution. -- Hux 07:07, 27 March 2007 (UTC)

Kidradical: Throughout this discussion you've repeatedly misunderstood what I've been getting at and sidetracked into avenues that have nothing to do with what I've been trying to say. This could be due to a failure on my part to express my points clearly or a comprehension issue on yours. Most likely it's a little of both, so I will try to more clearly outline where I'm coming from.

My "relevance" point is simply this: there is a general discussion over whether copyright infringement can be equated with theft. This case deals with that discussion, therefore it is relevant to it. It's that simple. Arguing that it's not relevant because the ruling only applies to the specific statute at issue does not change that because the case's relevance is not based solely on a rigid, legal analysis. It is relevant because it provides that discussion with an idea of what the judiciary is thinking on this topic. You clearly agree with this reasoning because you've posted quotes from other SCOTUS cases that serve exactly the same purpose, that have similar - which is to say very little - weight in terms of precedent. Further, you cite the titles of an Act of Congress and a Department of Justice report, which obviously have no relevance to judicial opinion or precedent at all. Additionally, even if Dowling sets no precedent whatsoever on whether copyright infringement can generally be considered a type of theft, it is still relevant to that discussion if only because participants routinely cite it.

Secondly, I've mentioned a couple of times that "file-sharing advocates" are not the only people who assert the relevance of Dowling to the "copyright infringement = theft" debate and that the term is thus inappropriate in the context in which it is being used. This is precisely the reason why I structured my original edit that sparked this discussion in such a way that it avoided assigning the "relevance" argument to any one group; it is simply relevant to the discussion in general.

Hopefully you can now see where I'm coming from and agree with the basic points I'm trying to make, so I'm going to try to edit the article and see if I can come up with a factually accurate, unambiguous, non-POV version that we can both be happy with. -- Hux 17:06, 11 April 2007 (UTC)

I've gone back and read some of the earlier versions of this page, as well posted the rulings of some related cases for those who are still confused by this case, so that should probably put the matter to rest. Kidradical 12:10, 5 April 2007 (UTC)

Actually, we now have a more serious problem: your edits have changed the "Significance..." section from one that originally simply noted the relevance of Dowling to the "copyright infringement = theft" debate, to one that now attempts to prove, specifically, that those who cite it as evidence that the two cannot be equated are wrong, and more generally, that such infringement can be equated with theft. This is POV, obviously, but more importantly it's misplaced: this is an article describing one SCOTUS case. General discussion on whether copyright infringement equals theft belongs elsewhere. -- Hux 17:21, 11 April 2007 (UTC)

The "Significance of the case" section

I've re-edited this section so that it is, I hope, strictly NPOV. Regarding the second paragraph, I searched all the cases that have cited Dowling and have found none that do so with regard to any general equation of copyright infringement and theft. If I missed any then please update the article as this information would certainly be relevant. -- Hux 18:07, 11 April 2007 (UTC)

tagged for WP:OR

Although reluctant to wade into this apparently tulmultuous matter, after reviewing discussion on this talk page and the relevant WP project page, one nagging question remains. Has anyone substantiated any of the "theft and file sharing" analysis with a cite to any outside reliable source? Viewpoints on both "sides" of this matter have been vigorously debated here, but what seems to be missing is a rationale explaining why any of this analysis survives scrutiny under WP:OR. I may have missed something along the way, so comments and clarification are encouraged and welcome. dr.ef.tymac 22:33, 1 May 2007 (UTC)

I've restored the citations that somehow had been deleted along the way. Cheers. Kidradical

And I've reverted it. As has already been discussed ad nauseum, this article is not the place to insert one's personal opinion about whether or not citing this case in file-sharing debates is legally accurate. We simply need to mention that the case is often cited in such debates and leave it at that. Anything else is POV. -- Hux 04:52, 30 May 2007 (UTC)

Hux, Wikipedia policy expressly forbids engaging in a reversion war. These are exactly the citations that were just requested above. And, for the record, they're not my POV; they're the Supreme Court's POV. That's what a case citation is all about.

Please don't continue make reversions simply because they cite cases that disagree with your POV, or this article is once again going to head to mediation. Kidradical 05:03, 30 May 2007 (UTC)

Please don't mischaracterize my actions - that is dishonest. I'm restoring the article because you keep trying to insert clear POV commentary, i.e. you're attempting to show, via SCOTUS citation, that file-sharing is the same thing as theft and that those who cite Dowling in file-sharing debates are doing so in error. The poster above did not ask for citations to back up any argument that file-sharing is or is not theft. Rather, what was requested was evidence of the claims the article makes, i.e. that people actually do cite the case in file-sharing debates. I will add those citations now and that should be the end of this discussion.

However, if you continue to insert POV into this article then I will continue to restore it and I will absolutely be taking it up with the admins. -- Hux 05:25, 30 May 2007 (UTC)

While it's entirely possible that I'm misreading WP:OR, or making a poor assumption, I don't see how the OR tag applies to the section. What's being described there is not a specific position, theory, analysis, etc., that would ordinarily require a reference. It's just an observation of the fact that the case is discussed in file-sharing debates, that's all. If that kind of observation qualifies as OR then practically every second sentence on the site is going to require an OR tag! (I'm exaggerating, obviously, but you get the point I hope.)

Could you perhaps expand on what you said above because I have the feeling I may be missing something obvious here. ;) - Hux 14:26, 2 May 2007 (UTC)

It's relatively mundane, but everything (except the first sentence) in that section is precisely the kind of analysis that should be supported by at least one cite to a reliable source. The first sentence is a matter that can readily be substantiated by reliance on a citator and a reasonably competent familiarity with the cited case itself. The rest of it, however, requires the application of novel legal reasoning, and it is not enough to attribute that reasoning to "unnamed participants in the file sharing debate" (See e.g., WP:Weasel, WP:SYN).

We could indulge the interpretation that "we're just observing the fact that the case has been discussed quite a bit in context X" ... but that interpretation is not authoritative. We could also say the case has been discussed by fans of Elvis, by short-wave radio hobbyists, and by people on this Wikipedia discussion page. So what?

Anyway, as mentioned previously, this is mundane because finding a law review article to substantiate that section will be a piece of cake, so who wants to volunteer to cite one. dr.ef.tymac 13:34, 9 May 2007 (UTC)