"INTERNET LAW BOOK REVIEWS" PROVIDED BY - Rob Jerrard LLB LLM (London)
Harvard University Press
Harvard University Press Books Reviewed in 2011
Thirteen Ways to Steal a Bicycle
Theft Law in the Information Age
Publishers: Harvard University Press
Publication Date: June 2012
Publisher's Title Information
Theft claims more victims and causes greater economic injury than any other criminal offense. Yet theft law is enigmatic, and fundamental questions about what should count as stealing remain unresolvedespecially misappropriations of intellectual property, information, ideas, identities, and virtual property.
In Thirteen Ways to Steal a Bicycle, Stuart Green assesses our current legal framework at a time when our economy increasingly commodifies intangibles and when the means of committing theft and fraud grow ever more sophisticated. Was it theft for the editor of a technology blog to buy a prototype iPhone he allegedly knew had been lost by an Apple engineer in a Silicon Valley bar? Was it theft for doctors to use a patient's tissue without permission in order to harvest a valuable cell line? For an Internet activist to publish tens of thousands of State Department documents on his Web site?
In this full-scale critique, Green reveals that the last major reforms in Anglophone theft law, which took place almost fifty years ago, flattened moral distinctions, so that the same punishments are now assigned to vastly different offenses. Unreflective of community attitudes toward theft, which favor gradations in blameworthiness according to what is stolen and under what circumstances, and uninfluenced by advancements in criminal law theory, theft law cries out for another reformationand soon.
1. Theft Law Adrift
2. The Gist of Theft
3. Theft as a Crime
4. Property in Theft Law
Reviews to date
“Groundbreaking in every sense, Thirteen Ways to Steal a Bicycle lays the foundation for the serious study of the law of theft. No one will be able to write on the subject of property offenses without learning from Stuart Green's book.”Markus Dubber, University of Toronto
“Thirteen Ways to Steal a Bicycle is a tour de forceas wonderful as its title and as fascinating as its subject. Theft law is strange and this book tries to explain that strangenesswhy it matters so much just exactly how something is stolen, by robbery, larceny, fraud, or other means; why only certain things are considered capable of being stolen; why the theft of electricity, sexual services, or glory are so problematic. This is a work of first-class scholarship, in addition to being just plain fun to read.”Leo Katz, University of Pennsylvania
“Theft law, that vital but under examined part of our jurisprudence, gets its best contemporary treatment from Stuart Green. This book is at once a comprehensive treatise, a pedagogic tool, and a provocative argument of both moral philosophy and social policy. Especially as we focus increasingly on intangible property, Green's book guides us to a fresh inquiry into what ways of taking thingsand what things are takenshould lead to criminal condemnation. It will dominate discussions of theft in the coming years.”Robert Weisberg, Stanford University
It is important to note that this is an American book; that is it covers the Theft laws of the USA.
That said it makes interesting reading and could be part of the reading list of anyone in the UK studying or writing a paper on some aspect of our own Theft Law which is now based on the Theft Act 1968. Of course it did not start there. I started my legal training in 1968 just as the Larceny Act was no more. As the Author says in the Introduction, 'At the beginning of the century, reformers on both sides of the Atlantic had become convinced that the common law of theft was badly in need of revision. A series of judicial decisions, legislative enactments, and so-called historical accidents had created a piecemeal collection of seemingly arbitrary, overly technical, loophole-ridden legal rules. The reformers were determined to scrap the old law of theft and essentially start over. In the Model Penal Code, the English Theft Act 1968, the Canadian Criminal Code, and the law of several Australian statutes, they did away with supposedly archaic distinctions, such as those between larceny, embezzlement, and false pretenses, and replaced them with a streamlined and consolidated offense of theft. They also 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 indiscriminately included tangible personal property, real property, services, and intangibles.'
The Author argues that, in making such changes, the theft law reformers threw out the baby with the bathwater. He of course gives his reasons. I suggest to accompany this book UK readers obtain a copy of Criminal Law Revision Committee Eighth Report Theft and Related Offences Cmnd 2977 HMSO the object of which was:-
" to consider, with a view to providing a simpler and more effective system of law, what alterations in the criminal law are desirable with reference to larceny and kindred offences and to such other acts involving fraud or dishonesty as, in the opinion of the committee, could conveniently be dealt with in legislation giving effect to the committee's recommendations on the law of larceny."
After reviewing the subject the sub-committee decided, for reasons which they gave, that in order to provide the " simpler and more effective system of law " called for by the terms of reference it would be necessary to make far-reaching changes in the present law. They also decided that the changes could not satisfactorily be made by amendments to the present law but that a completely new law was required. They then at a series of meetings worked out a scheme for the purpose.
That was the start in the UK, this book looks deeper into other Jurisdictions.
Justifying Intellectual Property
Author: Robert P Merges
Publishers: Harvard University Press
Publication Date: 2011
Publisher's Title Information
Why should a property interest exist in an intangible item? In recent years, arguments over intellectual property have often divided proponentswho emphasize the importance of providing incentives for producers of creative works from skeptics who emphasize the need for free and open access to knowledge.
In a wide-ranging and ambitious analysis, Robert P. Merges establishes a sophisticated rationale for the most vital form of modern property: IP rights. His insightful new book answers the many critics who contend that these rights are inefficient, unfair, and theoretically incoherent. But Merges' vigorous defense of IP is also a call for appropriate legal constraints and boundaries: IP rights are real, but they come with real limits.
Drawing on Kant, Locke, and Rawls as well as contemporary scholars, Merges crafts an original theory to explain why IP rights make sense as a reward for effort and as a way to encourage individuals to strive. He also provides a novel explanation of why awarding IP rights to creative people is fair for everyone else in society, by contributing to a just distribution of resources. Merges argues convincingly that IP rights are based on a solid ethical foundation, andwhen subject to fair limitsthese rights are an indispensable part of a well-functioning society.
Reviews to date
“In this book, which promises to be a landmark in the field, Merges presents a wide-ranging and highly insightful synthesis of three strands of property-related philosophy in order to provide a grounding for mid-level principles of intellectual property.”Henry E. Smith, Harvard Law School
For more information about the book go to the Publisher's Website at:-
Part of Preface
Several years ago I told my esteemed and experienced Berkeley colleague Jesse Choper that I was beginning work on this book. After he heard a bit about my plans, his response was this: "Oh, I get it. Taking a Big Swing, are you?" Now as I look back on the whole projectprefaces having the invariably paradoxical quality of being written at the end, but appearing at the beginningI can see that he was right. I had reached a point where I needed to disrupt the scholarly rhythm I had fallen into: a staccato series of law review articles, punctuated by casebook revisions, with the occasional "think piece" woven into the mix. I wanted to take on something bigger, more sustained; to go back to the dugout, pick up a bigger bat, and swing from the heels. This book is the result of that fateful, and very foolish, decision.
So up I strode, ready to take a big hack at some tough issues in my primary field of study, intellectual property (IP). I wanted to defend IP rights against a host of charges leveled in recent years: that IP was no longer necessary in the digital age; that the field is an incoherent tangle of made-up rationales and half-baked theories; that IP, whatever it is, is not really property at all. But I wanted to do more than simply defend the IP edifice as it stands. I wanted to suggest some ways that this area of law could be trimmed and tailored to better serve its main purpose, which for me has always been protecting creative works as a way of honoring and rewarding creative people. And so the tide of this book has a double meaning. I want to justify IP rights, in the sense of defending them from various critiques; but I also want to justify it in the sense of justifying a margin, or a line of typeto straighten it out, neaten it up, make it a bit more orderly.
Here is how I plan to go about it. I will talk mainly about three things: (1) ideas on property held by important philosophers, both old (Locke and Kant), and not-so-old (John Rawls, Robert Nozick, Jeremy Waldron); (1) close examination of these ideas with the specifics of IP chiefly in mind; and (3) ways these ideas might help in understanding the future of property rights in our increasingly digitized and networked world.
Carrying this out has taken longer than I planned and been harder than I thought. But it has also been something I can only describe as very close to fun. It is an odd idea of fun to get up several hours before the rest of the family, pour a cup of coffee, and anguish over just exactly what some complex text is trying to say to me, or what I really think about some gnarly tangle of a conundrum, orworst of all!how to set those thoughts into a series of words and a string of sentences that hang together in a semblance of sense and order. The challenge is something like crossing a wide, raging river that howls along at spring flood, with only a vague notion that there may be a few submerged stepping stones to hold you upright. If that sounds like an outing most sane people would gladly avoid, I am sure you are right. As for my own part, I found it irresistible.