It takes a lawyer to tell a good lie

And, on the op-ed pages of the New York Times, Rutgers law prof Stuart Green tells a whopper.

Riffing on the government's recent action against file-sharing site Megaupload, Green says that downloading pirated music isn't "theft."

He goes on to say that perhaps it could be called ... "misappropriation" or something similarly mild.

His argumentation to get to this point is laughable, starting here:

When Industrial Age Bob and Joe started inventing less tangible things, like electricity, stocks, bonds and licenses, however, things got more complicated. What Bob took, Joe, in some sense, still had. So the law adjusted in ad hoc and at times inconsistent ways. Specialized doctrines were developed to cover the misappropriation of services (like a ride on a train), semi-tangibles (like the gas for streetlights) and true intangibles (like business goodwill).  

So, natural gas, or coal gas or whatever before it, is only semi-tangible? News to plenty a chemist, I'm sure. Beyond that, in the guise of libel or slander, there'd been civil statutes against taking business goodwill, at least in narrow circumstances, long ago.

But here's where Green goes straight into a mix of circular plus fatuous:

If Cyber Bob illegally downloads Digital Joe’s song from the Internet, it’s crucial to recognize that, in most cases, Joe hasn’t lost anything. Yes, one might try to argue that people who use intellectual property without paying for it steal the money they would have owed had they bought it lawfully. But there are two basic problems with this contention. First, we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property. Second, the argument assumes the conclusion that is being argued for — that it is theft. 

Tosh.

The "first" argument could be used in some way, to justify all sorts of other theft. Beyond that, related to a different type of intellectual property, 40 years ago, when I was a kid, bookstores and supermarkets and drugstores already had "no loitering" signs on the magazine racks. The second is setting up his straw man, for when he goes on in the column to call it less than theft.

But ...

I have no doubt that, if he uploaded his law papers to the cloud, or offered them for sale in ebook form, and somebody hacked and downloaded them for free, the word "theft" would immediately come to his lips.

And, therefore, I wonder: Just how many songs has Mr. Green illegally downloaded himself? And, I wonder further: Is the RIAA wondering the same first wonder as I am?

He's right to protest the draconian solution to the problem, namely PIPA or its disguised cousin, SOPA. But, to claim that what's happening is not theft is an entirely different issue than that of how we should address this and try to stop it. Ultimately, a Stuart Green comes off looking as laughable as the RIAA.