Plagiarism, Norms, and the Limits of Theft Law: Some ... - English

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J-GREEN2 12/18/02 10:48 AM 212 HASTINGS LAW JOURNAL [Vol. 54 Despite the breadth of such definitions, however, some courts have been reluctant to treat at least certain kinds of intangibles as a “thing of value.” 187 For example, in a leading Canadian case, Stewart v. The Queen, the court was called upon to interpret Section 283(1) of the Criminal Code, which makes it a crime to take or convert “anything whether animate or inanimate” with the requisite intent. 188 While acknowledging that the term “anything” should be construed broadly to refer to intangible things such as bank credit, the court declined to apply the statute in a case in which a defendant was prosecuted for attempting to obtain confidential payroll information about a hotel’s employees by paying one of the employees to copy the information without actually taking any physical object. The court reasoned that rights to confidential information should not be regarded as property for purposes of Section 283(1) because such rights are more akin to fiduciary obligations than proprietary interests. 189 Why are courts reluctant to treat intangibles as property for purposes of theft law? In a very important sense, all “property” is intangible, since, as noted above, the term denotes nothing more than a bundle of rights, a legal construct. Yet, at an intuitive level, people do distinguish between property rights that inhere in physical objects and those that inhere in intangibles. Consider Ian McEwan’s marvelous novel, Atonement, of which I happen to own a copy. My ownership of this particular volume means that I have the right to exclude others from using it, to transfer ownership to someone else, whether by sale or gift, or even to destroy it. If I loan it to a friend and it comes back with the pages torn and dog-eared, my copy is worth less than when it was new. If I give it away or sell it, I no longer own it. We can say that my rights are in 187. See, e.g., Stewart v. Queen, [1988] 1 S.C.R. 963, discussed infra note 188 and accompanying text. Of course, not every jurisdiction has adopted an MPC-type definition of property. Some continue to define property as it was defined at common law. See, e.g., People v. Davis, 561 N.E.2d 165 (Ill. App. Ct. 1990); Commonwealth v. Rivers, 583 N.E.2d 867 (Mass. App. Ct. 1991); Bruhn v. Commonwealth, 544 S.E.2d 895 (Va. Ct. App. 1986). 188. 1 S.C.R. 963, 967 (Can. 1988). For commentary on the Stewart case as it worked its way up the appellate process, see R. Grant Hammond, Theft of Information, 100 LAW Q. REV. 252 (1984); Franklin R. Moskoff, The Theft of Thoughts: The Realities of 1984, 27 CRIM. L. Q. 226 (1984–85); Arnold S. Weinrib, Information and Property, 38 U. TORONTO L.J. 117 (1988). 189. The question, what is a “thing of value,” also arises in the context of bribery law. See 18 U.S.C. § 201 (2000); 1 SARAH N. WELLING ET AL., FEDERAL CRIMINAL LAW AND RELATED ACTIONS: CRIMES, FORFEITURE, THE FALSE CLAIMS ACT AND RICO §7.3, at 206–09 (1998).
J-GREEN2 12/18/02 10:48 AM November 2002] PLAGIARISM AND THEFT 213 “tangible property” because the copy of the book that I own is a tangible thing. The property rights that McEwan himself has as a result of copyright law are very different. That body of law gives McEwan (or his publisher) the right to make copies of the book or have it turned into a film. The thing in which McEwan’s rights inhere—presumably, the words that comprise his novel—is much less tangible than my copy of his book. So we say that his rights are in property that is “intangible.” 190 Is there any reason we should prefer to protect property rights that inhere in a physical object over property rights that inhere in something that is intangible? 191 Some commentators have suggested that only the owner of tangible goods suffers a loss because only the owner of tangible goods loses actual use of a good. 192 But this is clearly wrong. If I make unauthorized copies of McEwan’s book, it seems obvious that I am depriving McEwan of royalties that he otherwise would have earned. A better argument may be that, in some cases, the theft of intangible property will be harder to prove than the theft of tangible property. If you steal my copy of Atonement, you now possess it; there is a physical taking that can be proved; the theft is, in Fletcher’s 190. For a discussion of possible differences between tangible and intangible property, see Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1548–49 (1993); I. Trotter Hardy, Not So Different: Tangible, Intangible, Digital, and Analog Works and Their Comparison for Copyright Purposes, 26 U. DAYTON L. REV. 211 (2001); Moohr, supra note 176, at 693; Raymond T. Nimmer & Patricia Ann Krauthaus, Information as a Commodity: New Imperatives of Commercial Law, 55 LAW & CONTEMP. PROBS. 103, 104–06 (1992). 191. In fact, there may be an argument that there is even more reason to apply property rights to intangibles than to tangibles. Certain kinds of intangibles, such as information, suffer from what has been called a “collective goods” problem. Collective goods are goods from which it is difficult to exclude consumption by non-purchasers. Because of such difficulties, producers of such goods are prevented from obtaining the full benefits of production. Decreased incentives to produce are likely to result in underproduction of the resource. Granting producers of intangibles such as information property-like legal rights in their product is one means of ensuring that incentives to produce such goods are preserved. See Kimberly D. Krawiec, Fairness, Efficiency, and Insider Trading: Deconstructing the Coin of the Realm in the Information Age, 95 NW. U. L. REV. 443, 451– 58 (2001). 192. See, e.g., Neel Chatterjee, Should Trade Secret Appropriation Be Criminalized?, 19 HASTINGS COMM. & ENT. L.J. 853, 867–68 (1997) (“[B]ecause of the intangible nature of trade secrets, the taking of a trade secret does not necessarily resemble the taking of a computer or other tangible item and does not require the same overt acts. No actual physical taking is necessary for the taking of a trade secret. . . . In a sense, the owner of the trade secret has lost nothing.”).
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