Copying Deprives the Owner of Property

This past Tuesday, the Second Circuit held that the government’s indefinite retention of computer files copied pursuant to a warrant became an unreasonable seizure under the Fourth Amendment at some point.1 In the case, three hard drives belonging to the defendant had been copied by the government for later offsite inspection, and it took the government thirteen months to disaggregate the responsive from the nonresponsive files. One-and-a-half years after that, the government obtained another warrant to search the hard drive images again, and it found evidence that it used successfully to prosecute the defendant.

The narrow question on appeal was “whether the Fourth Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations.”2 This determination, of course, turned on reasonableness.3 The Second Circuit held that the indefinite retention at issue was an unreasonable seizure, thus violating the Fourth Amendment rights of the defendant:

We conclude that the unauthorized seizure and retention of these documents was unreasonable. The Government had no warrant authorizing the seizure of [the defendant’s] personal records in 2003. By December 2004, these documents had been separated from those relevant to the investigation of [the defendant’s clients].

Nevertheless, the Government continued to retain them for another year-and-a-half until it finally developed probable cause to search and seize them in 2006. Without some independent basis for its retention of those documents in the interim, the Government clearly violated [the defendant’s] Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.4

Professor Orin Kerr, a leading expert in computer law and the Fourth Amendment who generally holds conservative views, called it “a hugely important case” because it means “individuals have a right to the deletion or return of non-responsive computer files.” That’s the rule now, at least in the Second Circuit. Some copyleft-types have celebrated the Second Circuit’s opinion as well. For example, Hanni Fakhoury, an EFF staff attorney, tweeted this:

(In case you can’t read it, Fakhoury’s tweet says, “2nd Circuit rules 4th Amendment prohibits government from indefinitely retaining computer files for future use,” and it includes a link to the opinion.)

I think they’re all correct to get behind this decision because the indefinite retention of nonresponsive files approaches too closely a general warrant—the very evil the Fourth Amendment was established to condemn.5 However, while I’m sure copyleft-types like the Second Circuit’s conclusions, it’s a little surprising that they’re not condemning its reasoning as to why copying files is a seizure in the first place.

The Second Circuit explained:

The Government’s retention of copies of [the defendant’s] personal computer records for two-and-a-half years deprived [the defendant] of exclusive control over those files for an unreasonable amount of time. . . . This was a meaningful interference with [the defendant’s] possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment.

See Soldal v. Cook Cnty., 506 U.S. 56, 62-64, 68 (1992) (explaining that a seizure occurs when one’s property rights are violated . . .); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (“The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.”).6

Thus, the reason the government’s copying of the defendant’s hard drives was a seizure was because it “deprived [the defendant] of exclusive control over those files,” and it was “a meaningful interference with [the defendant’s] possessory rights in those files.” Moreover, the copying violated the defendant’s “property rights” and “power to exclude.” I think the Second Circuit nails it: Copying someone’s files does indeed deprive the owner of his property. This holds true whether it’s the government’s copying of someone’s hard drives pursuant to a warrant or whether it’s a private party copying a copyrighted work.

The oft-repeated refrains from the copyleft are familiar. For example, Peter Miller claims:

[I]ntellectual property is not property at all, because it is infinitely reproducible. If it is copied from me, I still retain the original.

And Matthew Yglesias declares:

[W]hen you steal something of mine (be it my book, my iPad, my shoes, my money, my immersion blender or whatever), I don’t have it anymore. If you copy something that you’re not allowed to copy without my permission, that’s a very different issue.

The argument is typically two-fold: First, copyright is not property because it’s intangible, and second, copying does not deprive the owner of anything. Both of these premises are severely flawed. Property is not limited to only tangible objects. For example, the Model Penal Code defines “property” broadly to include “anything of value, including . . . intangible personal property.”7 It is a common mistake for laymen to think that the word “property” refers only to tangible things. Lawyers, however, use the word “property” to refer to the rights an owner holds against others vis-à-vis a given thing, whether that thing is tangible or not.

As the Supreme Court of Washington noted in 1901:

[P]roperty . . . consists not in tangible things themselves, but in certain rights in and appurtenant to those things, [and] it follows that, when a person is deprived of any of those rights, he is to that extent deprived of his property.8

Or as the Appellate Division of the Supreme Court of New York put it in 1911:

[P]roperty . . . is intended to embrace every species of valuable right and interest[,] and whatever tends in any degree, no matter how small, to deprive one of that right, or interest, deprives him of his property.9

Depriving an owner of his property means interfering with that owner’s intangible rights in his property. It does not necessarily mean taking something tangible from the owner, and it matters not whether the owner can still use his property. As the Second Circuit noted, while copying the defendant’s hard drives did not deprive him of possession, it was nevertheless a deprivation of his intangible rights in the hard drives because it deprived him of his exclusive rights to control his own files. Nothing tangible was taken from the defendant, yet the defendant’s property rights were still violated.

Copyright, like property law generally, gives its owner certain exclusive rights, that is, rights to exclude others from using his property. When someone uses that property without permission, it deprives the owner of his exclusive rights to assign use-privileges to others. There is a deprivation of property because “property” refers to those exclusive rights. Whether the owner still possesses the property is beside the point. The same reasoning employed by the Second Circuit as to why the defendant’s property rights were violated when his hard drives were copied applies with equal force to why infringement of a copyright is a deprivation of the copyright owner’s property rights. This makes the copyleft’s festivity of the Second Circuit’s opinion quite notable, for it rests on premises the copyleft typically reject.

Follow me on Twitter: @devlinhartline

© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

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  1. See United States v. Ganias, Case No. 12-240-cr, 2014 U.S. App. LEXIS 11222 (2d Cir. June 17, 2014). 
  2. Id. at 29. 
  3. See U.S. Const. amend. IV (Lexis 2014) (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 
  4. Ganias, 2014 U.S. App. LEXIS 11222 at 30-31. (bracketed text and paragraph break added). 
  5. See, e.g., Payton v. New York, 445 U.S. 573, 583 (1980) (“It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”). 
  6. Ganias, 2014 U.S. App. LEXIS 11222 at 29-30 (some citations omitted) (bracketed text and paragraph break added). 
  7. Model Penal Code § 223.0(6) (Lexis 2014). Copyright is intangible personal property, or as we say in Louisiana, it’s incorporeal movable property. 
  8. State v. Superior Court of King Cnty., 26 Wash. 278, 287 (1901) (internal quotations and citations omitted) (bracketed text added).  
  9. People ex rel. Short v. Warden of City Prison, 145 A.D. 861, 863 (1911) (bracketed text added).