Criminal codes of various states and the Model Penal Code define theft as taking an object belonging to someone else.
Which is *exactly* why it is not theft. You are COPYING an object which belongs to someone else, not TAKING it.
TAKING it would require that the original owner no longer had the object.
This case was a civil proceeding brought under US Code title 17 sections 101, 106, and 501-505. The damages requested and received were based off of section 504 (c)(1), which covers *civil* proceedings with remedy clauses for actual and statutory damages. Additional judgments requested by the plaintiffs were an injunction against further action under section 502, and legal fees under section 505.
http://www.ilrweb.com/viewILRPDF.asp?filename=virgin_thomas_070917PltffsStatementofCase
Section 504 of the US Code title 17 (Copyright) states:
"(c) Statutory Damages. -
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work."
http://www.copyright.gov/title17/92chap5.html#504
Title 17, Section 506 handles the rules for Criminal Infringement (again, STILL NOT THEFT), and had any charge in this case been from this section, only (a)(1)(A) would have pertained (since the 24 songs do not total more than $1000, and they had already been made commercially available by the copyright holder) - willful infringement for the purposes of 'private financial gain'. In this case, 'private financial gain' would have consisted of the tit-for-tat trading of other copyrighted works in exchange for the 24 songs that she made available. This section references Chapt 18, section 2319 (Criminal Infringement of a Copyright) for remedy, and there is not a single reference to either of these sections in any of the court documents, available at recordingindustryvspeople:
http://recordingindustryvspeople.bl...-of-litigation-documents.html#Virgin_v_Thomas
If criminal proceedings had been brought, then the Jury instruction problem RE:"making available=infringement" would have never come up, as in criminal willful infringement must be shown in the determination of liability. As per section 506: "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement." The issue of willful infringement was addressed for the sake of damages only, but not for the sake of determination of liability showing yet again that the case proceedings were purely civil in nature.
http://www.copyright.gov/title17/92chap5.html#506
While there can be criminal proceedings associated with copyright infringement, there were none in this case. Either way, it is not 'theft' - copyright infringement is NEVER theft, by the definitions of the two terms. This is not just fancy lawyer speak - this is the legal definition of two distinct actions. The rules are different for theft, the laws are different for theft. IT IS NOT THEFT.
