Ask Congress.
As the Court stated, they were bound by precedent, but that “if it [Congress] detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”
I, for one, would have thought you would praise a judicial decision that defers to the legislature and uses judicial restraint. But, hey, YMMV.
That definition doesn’t say anything about what you give a flying fig about, just the intent. If you take $100, generally you intend to keep it and send it for yourself, but if your intent was clearly to take it temporarily, show it off to your friends, then return it, then what you did wouldn’t qualify as theft under the traditional definition. Joyriding vs auto theft is a better example, if you intend to take a car and use it to make a getaway from a robbery or just drive it for fun, then leave it for the owner to recover, you have done something different than if you take the car and keep it for your long term use or to chop up for parts to sell, and generally will be considered guilty of a different crime.
There’s at least centuries and (while I don’t feel like researching Latin, Greek, or Arabic words to be sure) probably millennia of tradition behind that definition. If you think it doesn’t pass even cursory examination, there’s really nothing anyone can do to help you make sense of this situation that is actually not at all confusing.
Does the fact that the salvage company was working on a state contract change anything? I work for a defense contractor. Even though I don’t work for the government directly, at the end of the day I fill out a time card, and my employer bills the federal government for the hours I put in. Any software I write while working on a federal contract ultimately becomes property of the federal government, since it was paid for with government funds. If I work on something that’s unrelated to a federal contract, then the company pays me for that time out of their own pocket, and the company maintains control of what I create.
I don’t know if it works any differently with state versus federal contracts, but I would guess it would work more or less the same way. If the salvage company passed the cost of hiring the videographer on to the state, then ultimately he was paid with state funds and any video he produced while working for them would likely become state property. If the salvage company paid the videographer out of their own pocket and didn’t charge the state anything for it, then he probably maintains the copyright, if that’s how contracts typically work in the video industry.
I’m not a lawyer, so I couldn’t say. It depends on what the contract says. Work for hire clauses are certainly not uncommon. The wire services, for instance, are pretty much all work for hire. If you want to try to negotiate that, they’ll find someone else. It’s a ripoff, but they give you access to events you normally wouldn’t have, so it’s a business calculation as to whether you want to accept those terms.
What the terms were in this particular situation, I assume is spelled out in the contract the videographer had with the salvage company.
I’m not sure how the contracts typically work, but there was no dispute in this case that the Plaintiff owned the copyright to these photographs. In 2013, the state paid him $15,000 as a settlement. Then it infringed again, but this time decided it was not going to pay which led to the lawsuit.
I find the thread fascinating. Great discussion. Restores any faith in SDMB.
I’m asking this only for clarity, while I understand the distinction you’re making, I’ve never heard of that happening in real life. If I understand you correctly: if someone “took” my bicycle from my yard and rode it to their house, they wouldn’t be charged with theft? They’d be charged with some other crime because otherwise the govt would have prove they were planning to permanently deprive me of the use of my bike, i.e. the person could just say, “I only took the bike because I didn’t feel like walking home, I was going to return it later.”
If what you’re saying is true, very few people would ever be charged with theft. I don’t understand. Sticking with reality here, what would they be charged with?
I first heard of this case through the Planet Money podcast. I thought it was an interesting episode.
The “intent to permanently deprive” that is necessary to prove “Theft” is, in a vast majority of cases, evidenced by the facts around the taking. Concealing property on your person when shoplifting. Breaking into a house to take itesms. Using fraud or deceptive practices to obtain money. Immediately selling the stolen goods for money. Most of the times, there is some kind of action that is indicative of the intent to “permanently deprive”.
Here’s something that happened to my kid to illustrate and it fits with your example. We rode bikes to the library (leaving them outside and unlocked), when we came out one of my kids’ bikes was gone. It was found the next day on someone’s front lawn. Some lazy teenager who lived in the house decided he wanted to ride it home. His statement of intent, the fact the bike wasn’t hidden at the house, the other bikes were still there, and the fact it was only a couple of blocks, all indicated that the intent of the taking wasn’t to “permanently deprive”, but rather to just “borrow” it. Had the bike been pawned or hidden in the back, or if a lock was cut through, there would be more evidence of the intent to permanently deprive.
And, since all elements of a crime need to be proven “beyond a reasonable doubt”, there must be evidence presented that the person taking it had the “intent to permanently deprive”. Sometimes that evidence is there, but sometimes it is not.
Did the justices wear eye patches when they heard ARGH-uments?
To be clear, this isn’t something I just came up with, take a look at the links below (joyriding in cars is the most common example of ‘intent to keep’):
Exactly what someone gets charged with varies a lot by jurisdiction. The first link indicates that Canada still uses ‘theft’ as a charge for traditional theft, but a lot of US jurisdictions don’t keep the word ‘theft’ around and instead use ‘larceny’ or some other term, and make the distinction somewhat differently. In general, the intent to keep property is often inferred from the circumstances of the crime - if I take cash from you and spend it, take your bike and pawn it, or take your bike and lock it up inside of my house, it’s pretty easy for a prosecutor to convince a jury that there’s no reasonable doubt that you were planning to keep the property.
And remember that proof is only ‘beyond a reasonable doubt’ (or whatever the phrasing is in Canada) to a jury, not ‘absolutely 100% impossible that it could be anything else’ and definitely not ‘the defendant has to agree’. Also in some cases a statute will lay out that certain actions automatically imply intent - this is most common for drug laws, where simple possession of a certain quantity is considered to show intent to sell/distribute the drug, but I’ve seen it before for property crimes.
Where theft (or some other crime that requires intent to keep) would be harder or impossible to make stick would be if there was some indication that you didn’t intend to keep the bike. For example, if you took it home but left it sitting in your front yard, or drove it to a store but left it in the street when you were done, or you have
credible witnesses who say that the owner had loaned you the bike for similar purposes many times before.
Was sovereign immunity the argument made by the state, or did SCOTUS come up with that on their own?
If the state came up with it, are there any hints available as to why they didn’t resort to it the first time?
North Carolina asserted it was immune from this lawsuit: “North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States.” Ruling in Allen v. Cooper
Not in the court opinion. My guess was it was easier and less costly, but it could also have been they didn’t think they could have won or the attorney in charge had a huge breakfast and wanted a nap instead of arguing about it.
“As an initial matter, the concrete evidence of States infringing copyrights (even ignoring whether those acts violate due process) is scarcely more impressive than what the Florida Prepaid Court saw. Despite undertaking an exhaustive search, Oman came up with only a dozen possible examples of state infringement.”
“The bill’s House and Senate sponsors got the point. The former admitted that “there have not been any significant number” of copyright violations by States. Id., at 48 (Rep. Kastenmeier). And the latter conceded he could not currently see “a big problem.”” From the opinion