Theft is a very forced metaphor for software piracy

[noname2200]

I agree with the proposed course of action. That said, the author has made some mistakes and oversights.

First, he wrote "(A) trespasser has done no harm, he can only be forced to quit the property in order to restore full use to the owner."

This is factually incorrect. In addition to being evicted (by an officer of the state: more on the import of that later), a trespasser can (and often is) forced to pay punitive damages, even if he or she caused absolutely no harm to the property owner.

The case that sticks out in my mind is that of a moving company who asked a property owner for permission to cross a corner of his land in order to avoid driving a half-mile around on a narrow road. The owner repeatedly refused, but the company drove across a small chunk of his land anyways.

Zero damage was caused by this, but the property owner won one dollar in nominal damages...and five-hundred grand in punitive damages. Society already recognizes that stiff penalties can be appropriate for violating another's property rights. "No harm, no foul" does NOT apply to trespass actions.

Second, I propose that unjust enrichment, rather than trespass, is probably the better way to gauge this situation. Unjust enrichment doesn't care how much harm the plaintiff suffered because of the defendant: it asked what benefit the defendant received from his wrongful action. Since software piracy usually does not cause the copyright holder harm (at least not in any provable way), it seems this would make things easier for the copyright holder to proceed, since all he needs to prove is that the pirate received a wrongful benefit. Applying punitive damages to this cause of action would make it worth prosecuting, since the actual benefit to the pirate is usually much less than the copyright holder's legal bills would be. On the other hand, many European countries have a "loser pays" approach...

He does raise an interesting point about how criminalizing this makes the state, rather than the copyright holder, bear the burden of investigation and detention. The funny part is that this isn't that much different than how the trespass system works (contrary to the assertion he made; you tell the cops someone is trespassing on your land, and THEY take it from there), but such is not the case in unjust enrichment cases.

Shoot, now I've written a long, dry essay. It looks like I'm already starting to get in school mode. By this time next month my posts will be completely indecipherable.