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Introduction: Symposium on Thirteen Ways to Steal a Bicycle

STUART P. GREEN*

hat is the optimal level of specificity for defining criminal offenses? How should we divide and classify crimes so that they accurately represent a given criminal act s distinctive features whether it is wrongfulness, harmfulness, deterrability, or detectability while at the same time avoiding the kind of over -particularity that leads to needless confusion and problems in administering justice? Nowhere are these issues more difficult or contested than in connection with the law of theft owing to the extraordinary diversity in how rights in property are formulated, the peculiar twists and turns of legal history and law reform, and the sheer ingenuity that offenders use to infringe such rights. The proper level of offense specificity in theft law is a key theme dealt with in my recent book, Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age. It is also a theme that, to one degree or another, has engaged the attention of the distinguished group of commentators gathered by the New England Law Review for a symposium on the book: Susan Brenner, David Gray and Chelsea Jones, Peter Karol, Mary Sigler, and Ken Simons. I am tremendously grateful to these contributors for their thoughtful comments on this and a multitude of other topics dealt with in the book. My goals in this Introduction are to set the stage for the contributions that follow, offer an admittedly selective rebuttal to at least some of the arguments offered, and, I hope, stimulate interest in the further study and reform of the law of theft.

* Distinguished Professor of Law and Nathan Jacobs S cholar, Rutgers S chool of LawNewark. I am most grateful to the editors of the New England Law Review , and especially former editor-in-chief William Wynne, for organizing and editing this sympo sium. In addition to the contributors whose works are discussed in the text, I would also like to thank Judge Gary Katzmann and Professor Alex S teel for participating in the live symposium on Thirteen Ways to Steal a Bicycle held at New England S chool of Law | Boston on March 18, 2013.

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I. Theft at Common Law The history of common law theft, as described in the book, reflected a steady expansion on two axes: (1) the means by which theft could be committed; and (2) the types of property that could be stolen. 1 In the earliest common law period, dating back to the twelfth century, theft law was limited to larceny and robbery. Starting in the mid-eighteenth century, as manufacturing and commerce expanded and the economy evolved, the legal and business communities recognized that theft law needed to do more than simply punish takings that were violent or stealthy. Over the next century and a half, theft law was expanded to include the offenses of burglary, extortion, larceny by trick, false pretenses, finding and failing to return lost property, embezzlement, receiving stolen property, theft by housebreaking, blackmail, and looting. All of these were viewed as more or less distinct crimes, with distinct labels, elements, defenses, and punishments. In addition to expanding the means by which theft could be committed, Anglo-American courts and legislatures also expanded the range of kinds of thing that could be stolen. At early common law, the subject of larceny was limited to tangible personal property, such as cash, jewelry, furniture, and other merchandise. The requirement of asportation excluded from the protection of theft law things at two ends of the property continuum: at one end, real property; at the other, intangible property such as choses -inaction, stocks, and bonds. The rules concerning the theft of animals, whether domestic or wild, were particularly complex. Over time, most of these doctrines evolved. Initially, courts simply redefined larceny to include theft of things not previously covered. Later, Parliament, Congress, and the state legislatures enacted specialized statutes with specified penalties. Once again, the punishments and procedural rules varied. Starting in the late nineteenth century, however, considerable skepticism about the common law of theft began to appear. Influential commentators in both the United States and England contended that the law of theft characterized as it was by esoteric concepts like breaking bulk, asportation, trespassory caption, animus furandi, fructus industrials, mansuetae naturae, and ferae naturae, as well as elusive distinctions between possession, title, and custody, and between larceny by trick and false pretenses was simply too complex for prosecutors, judges, juries, and the public at large to understand.2 And, these concepts were not merely

1 The text in this section is drawn from S TUART P. G REEN, T HIRTEEN WAYS TO S TEAL A BICYCLE : THEFT LAW IN THE INFORMATION A GE 9 16 (2012). 2

See, e.g., Commonwealth v. Ryan, 30 N.E. 364, 364 65 (Mass. 1892); 3 SIR JAMES FITZJAMES

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confusing. It was said that they allowed defendants to escape conviction unfairly by arguing that their conduct fell into the gap between offenses; or that rather than committing the form of theft charged, or stealing the type of property alleged, they had actually committed a different form of theft or stolen a different form of property. By the mid-twentieth century, the reformers finally had their opportunity to rewrite the law. In the United States, theft reform became a primary goal of the American Law Institute, in drafting its Model Penal Code, first promulgated in 1962, while in England, theft reform became an early goal of the Criminal Law Revision Committee, the precursor to the Law Commission of England and Wales, which drafted what would become the Theft Act of 1968. Both efforts led to criminal codes that eliminated supposedly archaic distinctions such as those between larceny, embezzlement, and false pretenses, and replaced them with a more-or-less consolidated offense of theft, incorporating what had previously been the separate common law theft offenses, while at the same time retaining robbery, burglary, and writing bad checks as distinct offenses. 3 In addition, they jettisoned age-old distinctions concerning the types of things that could be stolen, and in their place formulated an all-encompassing definition of property that embraced tangible personal property, real property, services, and intangibles. II. Reconstructing the Law of Theft Despite, or perhaps because of, the radical nature of changes made by mid-twentieth century criminal law reformers, scholars have had relatively little to say about the law of theft. English, Canadian, and Australian scholars have been content mainly to explicate the workings of the law and to criticize specific provisions. American scholars have been even more reticent. Virtually no one has questioned the basic assumption that the reformed law of theft is, overall, an improvement over what preceded it. In my book, I sought to challenge these orthodoxies. My argument was

S TEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 143 (1883) available at http://ia600307.us.archive.org/27/items/historyofcrimina03step/historyofcrimina03step.pdf; Herbert Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REV. 1097, 1112 13 (1952). 3 The Model Penal Codes version of consolidation was particularly broad. It included, within the scope of theft, the following offenses: theft by unlawful taking; theft by deception; theft by extortion; theft of lost or mislaid property; receiving stolen property; theft by failure to make required disposition of funds received; and unauthorized use of automobile and other vehicles. M ODEL P ENAL CODE 223.0 et seq. The version of consolidation adopted in England, Canada, and Australia was slightly less extreme.

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not for a return to the law of theft in effect at the time of Blackstone or Hale: I agree that the common law of theft had serious flaws and needed to be reformed. Rather, I contended that the reformers followed the wrong path to reform. In rewriting the law of theft, they threw out the good with the bad. In eradicating morally irrelevant concepts such as asportation, breaking bulk, and trespassory caption, along with esoteric legal fictions such as the distinctions between possession, title, and custody, r eformers also did away with morally salient distinctions such as those among theft by stealth (larceny), theft by deception (false pretenses), and theft by coercion (extortion). Moreover, while seeking to avoid problematic concepts such as ferae naturae (wild animals), mansuetae naturae (domesticated animals), and fructus industrials (crops to which a tenant is entitled), the reformers inadvertently formulated a definition of property that has proved to be inadequate to a modern information- and intellectual property-based economy. The result of all of these reforms has been a codified law of theft divested of much of its moral content, inconsistent with community intuitions, and potentially unfair to prospective defendants. The critique of contemporary theft law offered in the book rests in part on what has been called the principle of fair labeling: the idea that offenses should be divided and labeled so as to reflect widely held distinctions in the nature and magnitude of blameworthiness. 4 And, in order to ascertain what ordinary people actually think, I conducted, with a collaborator, social psychologist Matthew Kugler, an empirical study designed to measure peoples attitudes. The study (which asked subjects to distinguish among various scenarios involving the theft of a bicycle) indicates that people do make sharp blameworthiness-based distinctions as to both the means by which theft is committed and the kinds of property stolen. Following this critique of consolidation, the book then offers a fullscale, ground-up normative theory of theft law. It explores the moral elements that inform the act of theft in all its various forms, and the complex relationship that the law of theft bears to the law of property. It surveys the myriad ways in which theft law overlaps with the civil law of conversion, trespass to chattel, and fraud; and the difference between theft and breach of contract. And it examines a collection of potentially problematic, borderline forms of theft and theft -related conduct, which the Model Penal Code treats as functionally equivalent to, and interchangeable

4 See A NDREW A SHWORTH, P RINCIPLES OF CRIMINAL LAW 89 90 (4th ed. 2003). For a critique of the concept of fair labeling, see James Chalmers and Fiona Leverick, Fair Labelling in Criminal Law, 71 M OD. L. REV . 217, 239 41 (2008).

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with, larceny, but which, I argue, are deserving of more individualized consideration. Included here is a discussion of de minimis thefts (including shoplifting and employee thefts), failing to return lost or misdelivered property, receiving stolen property, committing fraud by false promise or passing a bad check, and extortion where the defendant threatens to do an unwanted but lawful act unless paid. I conclude that much of this conduc t should be decriminalized or subject to lesser penalties than other, core theft offenses, such as larceny, false pretenses, and embezzlement. The books final chapter considers whether and in what way theft law should apply to various forms of property. It begins with the claim that, for some good or service to count as property for purposes of theft, it must meet two necessary and sufficient conditions: first, it must be commodifiable, meaning that it is capable of being bought and sold; and, second, it must be rivalrous, meaning that consumption of it by one consumer will prevent simultaneous consumption by others. Rivalrousness, in turn, entails that the thief s misappropriation of the owner s property will constitute a zero sum game, loosely defined: th e victim/owner must lose all or substantially all of what the thief gains. These principles are then applied to contexts involving the misappropriation of a range of things posing problems with respect to commodifiability or rivalrousness, or both. These include the misappropriation of human beings, body parts and tissue, sex, credit (such as by a plagiarist or Medal of Honor imposter), electricity, cable television, Wi-Fi, public and private services, information, identities, intellectual property (copyright, patent, trademark, and trade secrets), and virtual property (such as Internet domain names and property generated in online computer role playing games). The Department of Justice and entertainment industries have consistently maintained that the illegal downloading of intangibles such as music and movies on the Internet is morally equivalent toindeed, is a species of theft. In response, I argue that, in typical cases, misappropriation of intangibles fails to reflect the zero sum dynamic that is char acteristic of theft (though there are some extreme cases in which infringement of intangibles effects so significant a deprivation of the owner s property rights that it does amount to theft). The book concludes with a checklist of eight principles I hope future scholars and legislators will want to take into account when engaged in theft law reform. III. My Critics I am fortunate to have received commentary from a collection of fair minded and insightful critics. Yet, as intelligent as their criticism was, its drift somewhat surprised me. Most criminal law scholars, if they have

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thought about it at all, seem to have assumed that the old common law of theft was so arcane, cumbersome, and loophole-ridden, as to be without redeeming qualities. The idea that there might be something in the common law to prefer to the modern, consolidated law of theft should seem fairly heretical. Thus, I would have expected not only that some of the commentators would have offered a defense of the modern consolidated law of theft, but that they would have found my attempt at normatively reconstructing theft law too nuanced, and too finely grained, to stand up in the real world. As it turned out, the contributors rather than disparaging the common law, or defending the stripped down approach of modern consolidated theft law mostly agreed that my critique did not go far enough (Ken Simons was a notable exception here). They wanted to see theft statutes that are more, not less, specialized, and an account of theft s moral content that was even more complex than the one I offered. While I cannot hope to respond to everything my critics say, I do address many of their most interesting points. IV. Sigler: A Question of Character Mary Sigler, in her thoughtful and astute contribution to the symposium, has bones to pick with several aspects of my analysis, including: (1) the supposed ad hocness of my reliance on a mixed theory of punishment (which takes into account both consequentialist and non consequentialist considerations); and (2) my alleged inconsistency in relying on community opinion when it supports my views, and trying to explain it away when it does not.5 As interesting as these critiques are, however, I intend to focus my attention here on an argument of Sigler s that relates more closely to the question of offense specificity. Sigler s argument runs something like this: Owing in part to its late twentieth century revival, vir tue (or character) theory can now plausibly claim to be the third major stream of Western moral theory, along with Utilitarianism and Kantianism. To the extent that my account of looting incorporates a consideration of looters motives (or, possibly, their character more on this below), she approves. But she thinks I was inconsistent in failing to deal with offenders motives or character in my discussion of offenses like embezzlement and finding and failing to return lost property.6 She therefore proposes to show how greater and more
5 Mary S igler, Restoring the Moral La ndscape: Character and Blame in Stuart Greens Thirteen Ways to Steal a Bicycle , 47 NEW ENG. L. REV . 911, 912-13 (2013). 6 For similar reasons, S igler is also critical of my account of receiv ing stolen property and theft of intellectual property.

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consistent attention to questions of character can serve to inform our assessment of the relative severity of certain types of theft in establishing a grading scheme.7 At the outset, I think a distinction needs to be made between motive (which, on my view, is relevant to offense grading) and character (which, I believe, is not). Motive typically relates to the moral character of an actor on a particular occasion. Character, by contrast, concerns a person s behavior over time. Thus, when I talk about good looters and bad looters, I am not talking about character in the sense of durable moral qualities. The fact that the offender has behaved the same or differently on other occasions is not relevant, in my view, for purposes of the criminal law (except, arguably, in the special case of recidivists). 8 Rather, I am interested in the looter s motives at the moment he commits the crime. Whether what Sigler really is interested in is character, or just motive, her larger point is that, having offered a fairly nuanced, motive-sensitive portrait of different kinds of looting, I missed the opportunity to do so in other contexts.9 Consider, for example, embezzlement, which is normally treated as a less severe form of theft than seemingly comparable offenses, such as extortion and burglary.10 Sigler says that I ought to have taken the opportunity to refute the current grading scheme and launched a genuine critique, which would have more fully taken into account the moral significance of breach of trust. Her point is well taken. My discussion of embezzlement does indeed put more effort into explaining why the offense is not graded more seriously than it is, rather than explaining why it should be graded more seriously. Given the significant role that breach of trust and betrayal seem to play in embezzlement, I think there is a plausible argument that it should be regarded as comparable in seriousness to theft offenses like extortion or even simple robbery. Were I to revise the book, I believe I would have more to say about this disloyalty aspect of embezzlement. Sigler is also critical of my treatment of the offenses of failing to return lost or misdelivered property and receiving stolen goods. I cite the example of a 2010 case involving an iPhone prototype that an Apple engineer lost in a bar. The phone was found by another man, Hogan, who, rather than trying to find the rightful owner, sold it to it to a tech gadget website for $5,000. According to Sigler, Hogan s motives, in capitaliz[ing] on the

S igler, supra note 5, at 918. See S tuart P. Green, Why Its a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533, 1595 96 (1997).
8 9 10

S igler, supra note 5, at 918-19. Id. at 922.

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owner s misfortune and turn[ing] a profit, are indistinguishable from the motives of the bad looters whom [I] was keen to punish, and she faults me for failing to recognize this.11 I don t disagree that Hogan s motives were in some respects similar to those of my bad looters. But Im not sure what to do with this observation. There are any number of reasons why someone might fail to return an iPhone found in a bar: The finder might be too lazy to look for the phones owner; he might fail to return it out of some misguided paternalistic motive (say, hes concerned about the addictive quality of such devices); he might fear that the owner will somehow blame him for its loss; and so on. Any of these and countless other considerations would be relevant in assessing the individual finder s moral blameworthiness. But given how offender- and context-specific such considerations are, it s hard to see how they could be taken into account by the criminal law other than on an individualized basis at sentencing. The point I was trying to make in distinguishing between good and bad looters was different. I was not trying to assess the blameworthiness of any particular looter in any particular set of circumstan ces. Rather, I was arguing that, contrary to the way it is typically treated under contemporary domestic law, looting should be regarded as a distinct species of theft conceptually on par with embezzlement, extortion, and false pretenses. And I was arguing that the reason looting should be treated as a distinct crime has to do, in part, with the wide gulf between one subclass of looting that I called good and another that I called bad. I don t think the same can be said of failing to return lost propert y. V. Brenner: Theft, Cyber-Style Like Sigler, Susan Brenner also believes that my account of theft could use some supplementation.12 She seeks to do so by discussing three interesting and problematic cases of computer -related crime. In each case, she asks whether the offender s act is properly regarded as theft, and, if so, what special considerations might apply. In Brenner s first case, the offenders used a sophisticated Trojan horse program to bypass a banks security measures, access its computer system, and make unauthorized wire transfers from bank depositors to their own accounts outside the United States. Brenner and I agree that this case unproblematically conforms to the classic zero sum theft paradigm: the defendants took money from their victims bank accounts, which the
Id. at 923. S usan W. Brenner, Bits, Bytes, and Bicycles: Theft and Cyber Theft , 47 NEW ENG. L. REV . 817, 817-19 (2013).
12 11

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victims then no longer had. What distinguishes the case from more conventional forms of bank theft, she says, is that offenders can operate outside the United States in virtual anonymity; there is no real crime scene to be searched; evidence is scattered across multiple locations.13 Moreover, she says, the potential rewards are often much higher than for conventional bank theft. Is she right? Should the remote, non-violent theft of depositors funds from a bank by means of a Trojan horse program be a separate, more serious, criminal offense than conventional in-person non-violent bank theft? Let us assume that a cyber bank thief operating outside the territorial limits of the United States is significantly harder to detect and apprehend than a domestic bank thief. Does it follow that we should make the penalty for remote cyber-thievery significantly higher as well? For instrumentalists like Brenner, applying higher sanctions in such cases is unproblematic. But for mixed theorists like mewho believe that moral desert must act as a side constraint on whatever other rationale exists for imposing criminal sanctions (such as deterrence)there is a potential problem: unless the remote cyber-thief is also significantly more blameworthy than the conventional thief, the punishment would be disproportionate. So, is remote cyber bank theft more blameworthy than conventional bank theft? If cyber theft really is harder to detect or apprehend, would that fact by itself make the offender more culpable? It s possible, but an argument explaining the link between difficulty of apprehension and blameworthiness would need to be articulated, and Brenner does not address the issue. What about the claim that remote cyber bank theft results in larger gains for offenders? The link to blameworthiness here is more straightforward: I would agree that, other things being equal, the more money an offender steals (or at least intends to steal I tend toward agnosticism on the moral luck issue), the more punishment he deserves. But, without more data, I would be reluctant simply to assume that cyber thieves invariably steal more money than conventional thieves. Rather than use the amount of money stolen as a categorical justification for creating a separate offense, I would be inclined to have it considered as an individualized factor at sentencing. Brenner s second problematic case involves a computer security engineer, Schwartz, who after being fired by the computer firm where he worked, found a way to access the firm s computer system without authorization and download a file containing the passwords of other employees.14 His motive, apparently, was to show the firm how its security

13 14

Id. at 827. Id. at 828-32.

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system had deteriorated since he had left its employ, rather than to obtain any financial benefit. He was charged under Oregon law with unlawfully accessing a computer network for the purpose of committing theft. Brenner surmises that this case would not constitute theft on my view. For me, as noted above, in order for a thing to b e property subject to theft, it must satisfy two necessary and sufficient conditions: it must be rivalrous, and it must be commodifiable. And Brenner says that, even if I were willing to concede that the rivalrousness condition was satisfied (because, in taking the passwords, Schwarz denied his former firm the basic value of the resource), I would still hold that the commodifiability requirement was not met. And the reason Brenner thinks I would reach that conclusion is because she attributes to me the view that a thing is property for purposes of theft only if it has or generates what she calls inherent financial value.15 I think Brenner misunderstands my conception of commodifiability. In my view, economic value is always instrumental, rather than intrinsic: the economic value of a thing is simply what the market will bear. The real question, then, is whether the passwords Schwarz accessed could have been bought or sold, not whether he himself had an economic motive in accessing them. And because the answer to that hypothetical question seems to be yes, I would say that the passwords were commodifiable, and that their misappropriation could potentially constitute theft. (Whether computer passwords are also rivalrous is a separate and, I think, more difficult, issue.) In Brenner s third case, the Defendant, Brown, assumed the identity of two victims, created Facebook pages for each of them (unbeknownst to them), and proceeded to have virtual sex with third parties through these fake profiles.16 Brown was charged with stalking and harassment, but Brenner thinks a more appropriate charge would have been theft more specifically, a kind of identity theft.17 In this, she says she disagrees with my own view of identity theft. Had Brown assumed another s identify for the purpose of obtaining money or property fraudulently, I would have no problem calling that theft by deception. But where, as here, Brown assumed another s identity merely to harass or embarrass that person, that would not be theft on my view. Brenner has a different take. I believe, she says, that my identity my name does have . . . value and should qualify for protection under the

15 16 17

Id. at 847. Id. at 838-41. Id. at 841.

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law of theft.18 As support, she cites a passage from Shakespeare s Othello: Who steals my purse steals trash; tis something, nothing; Twas mine, tis his, and has been slave to thousands. But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.19 In my view, Brenner misunderstands both Shakespeare and the nature of theft. What Iago is saying here is not that misusing another s good name is like stealing another s purse, but that it is quite unlike it. The two acts are qualitatively different: Theft causes economic harm, while defamation causes a reputational one. According to Iago, having one s reputation besmirched is quite different from (worse in fact than) having one s property taken. To speak of X s stealing V s good name should therefore be understood as a metaphorical use of the term, like saying that a murderer stole his victim s life, or that a rapist stole his victim s dignity. (Another curious metaphor used in this context is when we talk about Ds assassination of V s character.) All of these are blameworthy acts, and each deserves to be condemned, but none involves theft (or assassination) in the legal sense of the term, because none involves an infringement of proprietary interests (or a homicide), as the case may be. Similarly, we can refer metaphorically to X s theft of V s reputation if we like, but we should not understand it literally as a form of theft. VI. Gray and Jones: The Virtues of Specialization David Gray and Chelsea Jones, in their lively and erudit e piece, note what they regard as a paradox of sorts in my discussion of theft codification.20 On the one hand, I endorse the idea that theft statutes should be specialized with respect to moral content that we should distinguish, for example, between theft by deceit, theft by coercion, receiving stolen property, and failing to return lost property. On the other hand, I am skeptical of another type of specialized theft and fraud statute that has proliferated under American law, which distinguishes on the basis of: (1) particular kinds of property stolen (e.g., motor vehicles, firearms, or antiquities with special historical or cultural significance), (2) specific industries or legal procedures involved (such as theft or fraud related to health care, banking, accounting, and bankruptcy)21, (3) types of victim

Brenner, supra note 12, at 853. Id. (quoting WILLIAM SHAKESPEARE, O THELLO act 3, sc. 3, available at http://shakespeare. mit.edu /othello/othello.3.3.html).
19 20 David Gray & Chelsea Jones, In Defense of Specialized Theft Statutes, 47 NEW E NG. L. REV . 861, 863 (2013). 21

18

See, e.g., 18 U.S .C. 1347 (2006) (criminalizing health care fraud); 18 U.S .C. 1344

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targeted (such as the federal government, Native American Indian tribes, museums, and employee pension funds)22, or (4) instrumentalities used (such as the mail, wire communications, computers, or credit cards).23 Gray and Jones argue that there may be good reasons for adopting this second kind of specialized theft statute that I do not acknowledge. Further, they argue that specialized theft statutes concerning matters such as unauthorized downloading and r etail commerce serve to highlight underappreciated norms internal to important social enterprises. 24 As our social practices have diversified, expanded, and become more anonymous, say Gray and Jones, so too have we come to depend on respect for norms that once were secondary, unworthy of note, or even incomprehensible to our common law forbears. 25 [S]pecialized theft statutes, and contests around them, have a unique role to play in this changing world because they highlight these new social practices and public interests in defending their normative preconditions. 26 Gray and Jones are certainly correct that how we classify and define criminal offenses can affect the way the underlying act is perceived. A good example (mine, not theirs) is provided by t he offense of carjacking. Until approximately 1992, using a gun to steal a car from its driver was viewed as just another instance of armed or aggravated robbery. But, after 1992, when Congress passed a specialized statute, it seems likely that people did begin to think of carjacking as a distinct offense.27 Was this a good thing? Im not so sure. On the one hand, it probably made people more aware of carjackings distinctive dangers. On the other hand, treating carjacking as a specialized offense seems to have had the perverse effect of encouraging copycats (at least initially), 28 and it may well have created a

(criminalizing bank fraud); 18 U.S .C. 157 (criminalizing bankruptcy fraud); 18 U.S .C. 1520 (criminalizing the destruction of corporate audit records). See, e.g., 18 U.S .C. 641 (criminalizing the theft of federal money or property); 18 U.S .C. 664 (criminalizing the theft from employee pension funds); 18 U.S .C. 668 (criminalizing the theft of major artwork from museums); 18 U.S .C. 1163 (criminalizing the theft from Indian tribal organizations).
23 See, e.g. , 18 U.S .C. 1341 (criminalizing mail fraud); 18 U.S .C. 1343 (criminalizing wire fraud); 18 U.S .C. 1030 (criminalizing computer fraud). 22

Gray & Jones, supra note 20, at 864. Id. at 882. 26 Id. 27 18 U.S .C. 2119. 28 See BUREAU OF JUSTICE S TATISTICS , NATIONAL CRIME V ICTIMIZATION S URVEY: CARJACKING, 1993-2002 1 (2004), available at http://www.bjs.gov/content/pub/pdf/c02.pdf; Michael G. Cherbonneau and Heith Copes, Media Construction of Carjacking: A Content Analysis of Newspaper Articles From 1993-2002 , 26 J. OF CRIME & JUST. 1 (2003).
25

24

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conceptual opening for Louisiana s controversial shoot the carjacker law.29 In considering whether specialized offense labeling is justified, I argue that we should consider three basic issues: First, does such specialization reflect any relevant difference in the blameworthiness of the underlying conduct? Second, are there are other considerations involving matters such as detection, proof, or deter rencethat justify specialized treatment for certain kinds of theft? Third, are there significant potential downsides to such specificity, such as that they make the statutory scheme too complex or confusing for the public, lawyers, or judges to understand; or give prosecutors too much power to stack charges and thereby charge disproportionately?30 The kinds of specialized theft schemes that I am most critical of are ones like those found in California, which make it a crime to steal farm animals, avocados, artichokes, dogs, gold dust, amalgam, and quicksilver; and in Louisiana, which makes it a crime not only to commit theft and theft of goods, but also theft of animals, livestock, crawfish, alligators, oilfield geological surveys, timber, petroleum products, firearms, motor vehicle fuel, utility services, and anhydrous ammonia. 31 How do these kinds of statutes fare on my tripartite test? As far as I can tell, they reflect no genuine difference in terms of blameworthiness. Other things being equal, stealing a thousand dollars worth of avocados seems to be no more or less blameworthy than stealing a thousand dollars worth of timber. This is not to say that one could not imagine a case for why stealing, say, a live animal was more blameworthy than stealing a n inanimate object (taking into account issues of animal rights and animal cruelty); or why stealing potentially dangerous things like anhydrous ammonia, firearms, or alligators might be more deserving of punishment than stealing relatively harmless things, like artichokes. But there is something undeniably arbitrary about singling out only certain kinds of dangerous materials or certain kinds of animals for special treatment a tendency which makes one suspect that what these statutes are really about is self-interested lobbying on the part of interested industry groups. As for the second set of factors, it s quite possible that amalgam and quicksilver are easier to conceal than live animals or timber, and that their

29 See generally S tuart P. Green, Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles, 1999 U. ILL . L. REV . 1 (1999). 30

THE INFORMATION A GE . G REEN, supra

31

The discussion here is drawn from THIRTEEN WAYS TO S TEAL A BICYCLE : THEFT LAW IN note 1, 34-36. Id. at 33-35.

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theft is therefore harder to detect. And perhaps theft of utility services really is harder (or easier) to detect or deter than theft of motor vehicle fuel. The burden, in any event, should be on those who advocate for specialization to show exactly why it is justified, especially in light of a significant potential downsidein particular, the danger of disproportionate offense stacking, as exemplified by the possibility that a thief in Louisiana who steals a single cow can be prosecuted, and punished, for three separate offenses: theft of goods, theft of animals, and theft of livestock. Gray and Jones, for their part, have nothing to say about these particular specialized theft schemes, and I would be surprised if they would want to defend them. Instead, they argue for the benefits of specialized theft statutes in two other areas retail theft and intellectual property theft which, they say, highlight what they regard as two important functions of specialized theft statutes: First, specialized theft statutes serve an important expressive and educative function in cases where common intuitions frequently fail to recognize or give sufficient weight to legitimate property interests affected by a theft. Second, even where those interests may be patent, specialized theft statutes defend unique property norms that are internal to particular social, political, or economic enterprise.32 I agree that these factors are well worth considering, though, interestingly, the attempt to re-label illegal downloading as theft with which Gray and Jones are concerned is not, as they imply, a form of specialization, but exactly its opposite. Rather than taking the general offense of theft and breaking it up into more specialized offenses (such as embezzlement, false pretenses, and illegal downloading), they and the DOJ and entertainment industry want to take a specialized offense (illegal downloading) and place it under the general umbrella of theft. So what exactly are we to make of this attempt at rebranding? Gray and Jones begin their discussion by offering a concise history of changing attitudes regarding illegal downloading and file sharing from the Supreme Court s Dowling case in 1985 (which represents a fairly clear assertion of the proposition that copying intellectual property is not theft), through the electronic billboard era of the mid-1990s, the enactment of key federal statutes like the No Electronic Theft Act of 1997 and the Digital Millennium Copyright Act in 1998, the Napster file-sharing era beginning in 1999, and the RIAA-launched litigation and public relations effort of the early 2000s. There can be little doubt, they say, that these efforts to target unlawful downloading have expressive value and have had
32

Gray & Jones, supra note 20, at 880.

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educative effects.33 Indeed, as the empirical study Kugler and I did shows, a surprisingly large proportion of people (59 percent) now view unlawful downloading as at least as wrongful as stealing tangible property. [G]iven the casual attitude that many people seem to have toward downloading songs and movies from the Internet, buying pirated movies and music from subway vendors, or copying software from their friends, Gray and Jones say, we would have expected a vast majority of respondents in [the] study to report that downloading the electronic book was less bad than stealing a physical book.34 Instead, the results of the study described in the book were much more mixed. Although there is no precisely analogous earlier study from which the degree of such a shift can be measured, I agree with Gray and Jones that there probably has been a marked shift in public intuitions toward regarding illegal downloading as a form of cyber theft that is on par with traditional larceny.35 For better or worse, it seems likely that more people today believe that illegal downloading really is stealing than did s ome ten or twenty years ago. Assuming that the attempt to re-label downloading as theft has indeed enjoyed some success with the general public, we still need to ask if the attempt has been justified. Here, Gray and Jones and I part ways. They would define theft much more broadly than I do: In our view, they say, theft should encompass any criminal interference with property rights the respect for which is sufficiently central to a socially significant enterprise as to make protecting them a legitim ate matter of public interest.36 As I understand this definition, it would encompass, in addition to theft itself, offenses as diverse as trespass, arson, illegal downloading, fraud, blackmail, and receiving stolen property. This is in contrast to my own, much narrower, definition, which requires a particularly substantial interference with an owner s property rights, including, often, though not always, the right of possession. Theft, on my view, involves not just a temporary violation of the owner s right to exclude others from using the property, but also a more permanent violation of the owner s right to use it himself.37 The rationale for their definition, Gray and Jones say, is to be found in Kant. Invoking a familiar formulation of the categorical imperative, they say that theft is immoral in a society that recognizes the concept of

33 34 35 36 37

Id. at 876. Id. at 871. Id. at 878. Id. at 881. G REEN, supra note 1, at 74.

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ownership because the maxim I take that which is not mine cannot be universalized without contradicting the very concept of ownership upon which the maxim itself depends.38 Fair enough. But why can t something closely analogous be said about trespass, receiving stolen property, and even illegal downloading? For example, trespass is immoral in a society that recognizes the concept of ownership because the maxim I use another s property which is not mine [without his permission] cannot be universalized without contradicting the very concept of ownership upon which the maxim itself depends. I agree that Kant can help us see why theft (and the violation of property right s more generally) is morally wrong indeed, my book cites an earlier work of Gray s discussing Kant for just that proposition 39but I fail to see how Kant is helpful in deciding what specifically should count as theft, as opposed to other property offenses, which seems to be just the point they are relying on him for here. At best, reference to Kant in this context begs the question as to whether illegal downloading should be treated as theft. Gray and Jones also argue that my approach leads me to be skeptical about specialized statutes applying to organized retail theft (a species of shoplifting).40 They note that respondents in the Green/Kugler study rated the hypothetical involving receiving stolen goods as the least serious form of theft. Gray and Jones seem to think that people need to be reeducated on this issue. They cite evidence for why receiving stolen property is an important cog in the wheel of massive retail theft. And they say that specialized retail theft statutes, like that in Pennsylvania, serve an important expressive and educative function by highlighting both the importance of retail commerce in contemporary society and the impact of shoplifting and abetting shoplifting on that enterprise. 41 I am not at all opposed to the idea that retail theft might be a sufficiently discrete category of criminal conduct, with enough social and economic significance to merit its own statutory label, separate from other forms of theft.42 I am skeptical, however, that retail theft statutes like that in Pennsylvania really have the expressive and social significance that Gray and Jones claim for them. It seems to me that not all theft labeling or relabeling is equal. When Congress enacts a new statute meant to apply to

Gray & Jones, supra note 20, at 880. G REEN, supra note 1, at 325 n.41 (citing David Gray, Punishment as Suffering , 63 V AND. L. REV . 1619, 1661 63 (2010)).
39

38

Gray & Jones, supra note 20, at 883. Id. at 884. 42 As I explain in the book, many of the victims of retail theft in fact prefer to treat it as a distinct offense. G REEN, supra note 1, at 167 68.
41

40

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carjacking or electronic theft, especially when combined with heavy media coverage and public relations campaigns, that may well hav e a significant impact on the public consciousness, When state legislatures pass their own more localized, less highly publicized statutes, the expressive and educative impact is likely to be more modest. VII. Simons: The vice of complexity Kenneth Simons offers a broad-ranging, highly detailed, and characteristically incisive reading of my book. 43 His contribution raises many more issues than I am able to deal with here. Interestingly, he is the only commentator to make what I would have predicted would be the main criticism of the booknamely, that the picture of theft that it describes is unnecessarily complex and impractical. In addition, he expresses skepticism about my reliance on lay intuitions to justify or criticize criminal law doctrines and suggests that a theft provision based on my how-to-draft-a-theft-statute guide might not actually look that different from the scheme we currently have under the Model Penal Code. These are both reasonable points, but they largely turn on matters of judgment. Readers will ultimately have to make up their own minds about how significant the empirical findings really are and how different my proposal is from the status quo. Rather than address these issues, I would instead like to respond to several smaller point s on which the disagreement between Simons and me is sharper. The first concerns the significance of fair labeling. Simons claims that my concerns about the principle are exaggerated, at least in the context of theft law.44 Fair labeling is important, he says,
whe n the state fails to provide accurate and unde rstandable labe ls to distinguish criminal from noncriminal be havior or to ide ntify more or le ss serious crimes. It is also important whe n the state is not care ful in e mploying a labe l that is e spe cia lly stigmatizing (such as rape or murde r). But it is more difficult to se e the value of a fair labe ling principle whe n all it accomplishes is a much more nuanced de scription of a varie ty of crime s within a single family that all de se rve the same punishme nt, and all are known to be criminal.45

In fact, I believe that theft law labeling implicates exactly the kinds of concern that Simons mentions: it really does involve the distinction

43 See Kenneth W. S imons, Is Complexity a Virtue? Reconsidering Theft Crimes, 47 NEW E NG. L. REV . 927 (2013). 44 45

Id. at 932. Id.

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between criminal and noncriminal behavior; 46 it really does distinguish between more and less serious crimes; and it really does involve a highly stigmatizing label ( theft ). Second, criminal law labeling has an important expressive function, of the sort discussed by Gray and Jones. 47 Third, even apart from any real-world impact of labeling, there is something to be said for the idea that a legitimate function of criminal law theory is to try to make the criminal law, in both its special and general parts, more clearly and rationally labeled. Simons is also skeptical of my treatment of misappropriations involving what I call semi-tangibles, such as electricity, Wi-Fi, and cable television transmissions. My view is that such misappropriations should be regarded as theft only in the relatively unusual circumstance in which the offender s actions have the effect of degrading the resource. Simons disagrees: The fact that the economic effect is trivial in a particular instance of taking cable service for free, he says, does not seem dispositive, given the reality that if many people act similarly, the economic effects will be quite significant.48 Free riding, Simons says, is more justifiably treated as theft than I allow.49 He then offers an example of free riding involving tangible property: Y owns a pond that he uses to feed his animals. Z takes some water from the pond to feed his animals. Even if Z takes so little water that it does not affect Y s ability to feed his animals, Z has committed theft. One rationale is the cumulative effect: if many others copied Z s behavior, Y would be unable to feed his animals; but, even if that is unlikely to occur, Zs act is still theft. It is still theft even if Z would not otherwise have paid for the water. The rough zero-sum paradigm that Green insists characterizes theft does not apply here; and I believe there are many other theft scenarios where the thiefs gain does not correspond even roughly to a similar loss by the owner.50 I have several problems with Simons analysis here. The reason I believe unauthorized use of semi-tangibles does not typically constitute theft is not that the economic effect is trivial, but rather that the victim has (in many cases) literally lost nothing. For example, in the normal case, a person whose Wi-Fi signal is used without her permission simply cannot be said to have lost anything. Unless it is used, the signal essentially dissipates; from a legal perspective, we can say that it has been abandoned.

46 47 48 49 50

See generally G REEN, supra note 1, at 132 202. See supra Part VI. S imons, supra note 43, at 943. Id. Id. at 943-44.

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And what about the argument that what the Wi-Fi provider is really losing is sales? As argued in the book, my view is that we should allow the lost sales claim only where proof is strong that, but for her taking it for free, the offender would have purchased the good or servicea claim that, I suspect, would normally be hard to sustain. As for the pond case, I do not see why Simons maintains that Z s gain does not correspond to Y s loss. Admittedly, there would be difficult problems of proof: most ponds are sufficiently permeable that accurate measurement would be highly challenging. But, from a theoretical standpoint, it seems correct to say that if Z takes a liter of water from Y s pond, Y no longer has it, and that the zero sum paradigm is satisfied. The fact that Z values the water more than Y, or vice versa , is not relevant under my construct. The term free riding refers to cases in which someone benefits from a resource without incurring the full costs of the benefit. In one sense, thieves are free riders, though the term is typically used for cases in wh ich the actor s use of the resource is lawful. When many free riders, acting independently, deplete a resource, we call this a tragedy of the commons. 51 Free riding is a problem that is most typically addressed through civil regulation, rather than by the criminal law. Indeed, the criminal law is especially ill-suited to dealing with cumulative small harms caused by numerous actors acting independently and significant only in the aggregate. In general, we reserve the criminal law for cases in which the harm caused by an individual offender is sufficiently weighty. Finally, Simons is critical of how the empirical study was carried out especially of how some of the hypotheticals were worded. I will not quarrel with most of his critique, and I affirmatively agr ee with his warning that [i]f legislators or other scholars intend to use [the] results of the study in drafting legislation or conducting research, the study should be refined and repeated, so that the results are more reliable and more meaningful. 52 I would not want it any other way. I do, however, want to pick up on a point he makes about the comparison between stealing a $50 tangible test preparation book and sneaking into a $50 test preparation lecture. Sixty seven percent of respondents in our study said that stealing the book was more blameworthy than sneaking into the hall (when the hall was full), while only 7 percent said the converse, and 22 percent said there was no difference. In the book, I attribute the popularity of the first response to the fact that a book is a rivalrous good, while a live lecture arguably is not.
51 52

See Garrett Hardin, The Tragedy of the Commons, S CIENCE Dec. 1968, at 1243, 1243 48. S imons, supra note 43, at 935.

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Simons has a different explanation: he says that many people would consider a book (in any form, tangible or intangible) more valuable than a lecture, because once the lecture is over, it has little use. The equivalent $50 cost of the book and lecture might not represent equivalent value to the user.53 I disagree with Simons explanation for why lectures are valued less. If anything, live performances tend to be valued more: the cost of admission to sporting events, Broadway shows, and lectures (say, in the famous series at the 92d Street Y in New York) is almost always greater than the cost of a tangible book. In the empirical study, of course, we assumed that both the cost and the content of the book and lecture were equivalent. But now, prompted by Simons, I believe that books and live lectures differ in more than just tangibility. Lectures involve an intimate performance by a flesh and-blood person, whose voice, gestures, and demeanor may convey content and meaning that cannot be conveyed in a book. A lecturer may be available to answer questions in a way that book authors rarely are. A lecture can provide opportunities for attendees to compare notes, something normally not available to readers of books. Lectures also involve costs that books do not: the lecturer receives a fee and expenses; the lecture hall must be kept clean and in good repair, well-lit, and heated or cooled. The study did not control for any of these differences, and I now believe that it should have. VII. Karol: The Downloading Is Theft Claim Goes to Trial Peter Karol, whose interests are primarily in intellectual property law, rather than in the criminal law, offers a distinctive and useful perspective on the infringement-is-a-form-of-theft claim that my book seeks to debunk.54 Karols focus is the civil copyright infringement trial of one Joel Tennenbaum, a high school and then-college student who downloaded thirty songs from the Internet and placed them in a publicly-accessible shared folder on his computer.55 Tennenbaum was sued civilly, found liable by a jury, and had a damages award of $675,000 entered against him.56 Karol tells us that the Tennenbaum case was one of several thousand lawsuits brought, beginning in 2003, by copyright -owning record

Id. Peter J. Karol, Hey, He Stole My Copyright! Putting Theft on Trial in the Tennenbaum Copyright Case, 47 NEW ENG. L. REV . 887 (2013).
54 55 S ony BMG Music Entmt v. Tenenbaum, 660 F.3d 487, 490 91 (1st Cir. 2011), cert. denied , 132 S .Ct. 2431 (U.S . 2012). 56

53

Id. at 490.

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companies against individual peer -to-peer (P2P) file-sharers. According to the industry, these lawsuits were intended to have an educational purpose, and as such, were part of a larger public relations campaign to convince the general public that illegal downloading is just another form of theft.57 Unlike most individuals who received cease-and-desist letters from plaintiffs, however, Tennenbaum continued to infringe the copyrights, and essentially contested the lawsuit. The suit against him became something of a test case. And though it was a civil action, the plaintiffs case-in-chief was dominated by the rhetoric of theft familiar from the Motion Picture Association of America s (MPAA) 2004 You wouldn t steal a car public relations campaign. For example, in his closing argument, plaintiffs counsel argued: Simply wanting something in a more convenient form doesn t give you the permission to take it . . . . You might think you might like a piece of jewelry, but you can t go in the store and simply take it and walk out . . . . [M]ovies and picture and things that we all enjoy on the Internet, if those are copyright protected, they have the same protections . . . . The law makes no distinction. You can t take them.58 In response, defense counsel (led by Harvard Law Professor Charles Nesson) did their best to convince the jury that only tangible things can be stolen and that illegally downloading music from the In ternet does not constitute real theft. Tennenbaum, they argued, had at most engaged in a minor violation of civil copyright law. Karol believes that Tennenbaum s counsel had it right, and that illegal downloading, in the normal case, should not be viewed as a form of theft. He and I agree about this. But the fact remains that the jury did return a decisive judgment in favor of the plaintiffs, and Karol believes that whatever theoretical flaws there might be in the theft narrative and Tenenbaum outcome, the trial provides confirmation that the industry s long campaign to promote the file-sharer-as-thief metaphor gained traction with the public.59 So, while Karol himself (unlike Gray and Jones) rejects the view that illegal downloading really is just another form of theft, he seems to believe (along with Gray and Jones) that the public at least may be coming around to exactly that view. Karol does a nice job of demonstrating how the downloading-as-theft trope informed the plaintiffs case. Nevertheless, I have a few concerns about his claim that the entertainment industry may be winning the

Karol, supra 54, at 889. Id. at 899, (quoting Transcript of Jury Trial Day 5 at 81-82, S ony BMG Music Entmt v. Tenenbaum, 721 F. S upp. 2d 85 (D. Mass. 2010) (No. 1:07 -c v-11446)).
58 59

57

Id. at 889.

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ideological war. First, despite the size of the jury s award, it is important to remember that this was in fact a civil case; and, at the end of the day, there is a significant difference between a judgment for plaintiffs in a civil case and a guilty verdict in a criminal theft case. If we really wanted to know the extent to which the public accepts the viability of the downloading-astheft equivalence, we would need to look for it in cases that involve actual charges of theft. Second, given the black box nature of jury verdicts, we can never be certain about exactly why juries do what they do. According to Karol s account, Tennenbaum was a pretty unappealing character; th e jury s verdict may have been as large as it was partly because they did not like him personally. The only way to know for sure whether jurors really accepted plaintiffs downloading-as-theft argument would be to interview them and ask them if they did. Third, I would be hesitant to draw any conclusions about wider social trends from a single case. One would need to consider the results in other cases in which plaintiffs attorneys have emphasized the downloading-astheft equivalence. Consider the case of Robert Choi and Barley Forsman, decided at about the time Thirteen Ways to Steal a Bicycle was going to press.60 Choi and Forsman were employees of Specialized, a leading bicycle company, who left the firm to start their own bicycle firm, Volagi. 61 Specialized sued them, alleging that they had stolen trade secrets and breached their employment contract. Specifically, Specialized alleged that Choi and Forsman had, without the company s permission, used: (1) elements of its frame design; and (2) the names of bicycle shops with which Specialized did business. Choi and Forsman, for their part, apparently admitted that they had used Specialized s database of bike stores without its permission,62 but argued that they had come up with the frame design on their own. As in the Tennenbaum case, the plaintiffs lawyers emphasized the allegedly theftuous nature of the defendants conduct. Yet this time, the tactic was much less successful. In early 2012, the trade secrets claim was dismissed by the trial judge, and on the r emaining breach of contract claim, the jury awarded nominal damages against Choi (but not

60 Howard Mintz, War of the road bikes, S AN JOSE M ERCURY NEWS (Jan. 2, 2012, 7:04 PM), http://www.mercurynews.com/rss/ci_19662131?source=rss. I thank Tom Field for bringing the case to my attentio n. 61 Lennard Zinn, An expensive dollar: Volagi owes Specialized $1, VELO NEWS (Jan. 13, 2012), http://velonews.competitor.com/2012/01/news/an-expensive-dollar-volagi-owes-specialized1_203443. 62 Barley Forsman, Setting the Record Straight (Jan. https://www.facebook.com/volagi/posts/355322411151386 .

4,

2012,

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Forsman) of just one dollar. Does the fact that the jury award in the Volagi case was so minimal prove that the public has not accepted the idea that intangible proprietary bicycle designs and customer lists can be stolen in the same way that tangible bikes themselves can be stolen? Surely not. My sense of the case is that the facts simply did not support the allegations made. For one thing, the work Choi and Forsman had done for Specialized did not involve designing bike frames (instead, they were involved in bike accessory design). It is therefore quite possible that they never even had access to the trade secrets they were alleged to have stolen. Moreover, entrepreneurs Choi and Forsman playing the role of David to Specialized s Goliath seem to have been considerably more sympathetic figures than Tennenbaum. To determine the extent to which lay people really have accepted the idea that intangibles can be stolen, we would need a much larger sample than the occasional trial permits. * * * My hope in writing Thirteen Ways to Steal a Bicycle was to revive interest in theft law as a subject of serious academic study and, ultimately, of law reform. The excellent contributions to this symposium have not only taken me up on my invitation, but have advanced the conversation in significant ways. As a scholarly author, I could not have asked for a nything more.