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Content Theft is Not Really Theft

Fusion X posts the following question to Pornlaw on : If this is outside the acceptable “public information” range and falls into paid consulting, I’ll understand 🙂

I’m not clear on how the DMCA can supercede every other law on the books when it comes to using stolen content.

Obviously, copyright is the big issue that everyone focuses on. But isn’t the theft itself a different issue?

Can’t you go after someone for the simple act of stealing the content in the first place? It would seem that you could file criminal charges for theft, as opposed to a copyright violation. If a site was charging to view the stolen material would that change anything?

One other area that hasn’t been explored much, at least that I’ve seen, is filing complaints with the FTC over unfair competition. Wouldn’t that be a potentially viable route? Of course, the arguement would be that by using stolen and unlicensed content, they are competing unfairly. Would the DMCA somehow supercede the other existing laws and regs?

Thanks for your time!

Pornlaw replies:Not at all — this is a general question. I would be happy to answer.

Content theft is not really theft. One of the elements of theft is that you, the person whom the item was stolen from, have lost the use and enjoyment of the item taken. If someone copies your content, you still have the original and you can still do something with it. In civil law we call theft conversion but it is hard to convert digital images.

If someone steals a print of a photograph from a museum we have theft.

It doesnt make sense to us either. In another thread I talked about a celebrity we represent that had a DVD copy of her digital wedding pics stolen out of her suitcase at the airport and then sold to a magazine. I wanted to claim conversion in the complaint as well but after some research it was clear we would lose on a Rule 12(b)(6) Motion to Dismiss.

Doesnt mean this area of law will not change with technology but for now its a hard case to make at least here in California and in the 9th Circuit under a theory of copyright. Also you have to keep in mind that federal law trumps and preempts state law. And usually anything having to do with or sounds like copyright is and thus the federal judge will dismiss all other causes of action and simply proceed with just copyright.


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