Since cybercrime laws lag behind technology, lawyers are constantly seeking creative ways to stretch old laws to fit new crimes, such as the latest - comparing the movie-sharing app Popcorn Time to a burglar’s tool in order to press criminal charges.
Lawyers for an Adam Sandler movie are arguing that Popcorn Time performs the same function as burglars’ tools in order “to commit or facilitate … a theft by physical taking,” language used in an old Oregon law about traditional burglary.
The lawyers say Popcorn Time lets users violate the movie’s copyrights by enabling downloads of pirated copies, and so they are suing for the civil crime of copyright infringement.
But they are also suggesting that by merely having copies of Popcorn Time on their computers, users are violating an Oregon criminal law that makes it illegal to possess burglar tools. Popcorn Time is similar to burglary tools, they say, because its only purpose is to commit thefts, and that the app itself fits the legal definition of burglary tool: “For purposes of this section, “burglary tool or theft device” means ... [any] instrument or other article adapted or designed for committing or facilitating a ... theft by a physical taking,” the law reads.
The suit is being brought by Cobbler Nevada LLC, which owns rights to the movie “The Cobbler”. They want to sue 11 Oregon people, identified only as John Does, whom they say have violated the copyright, and that includes bringing the misdemeanor charge of possessing burglary-tools.
The lawyers themselves admit this might be a stretch. “It is acknowledged that the transfer of data, storing of the physical data locally on a hard drive and facilitation and redistribution of the stolen data to others may or may not be a 'physical taking' under Oregon law”, the suit says. But they are still willing to give it a try.
Their task is complicated by the fact that they don’t know the real names of the 11 John Does, although part of the lawsuit seeks them from their ISP Comcast. Cobble Nevada LLC says it has traced use of copies of “The Cobbler” to IP addresses controlled by Comcast, and it wants the company to provide the names of the customers associated with those addresses.
Popcorn Time’s Web site describes the app as a “smart movies and TV Shows player. We are not holding any illegal materials with copyrighting.” Its FAQ says, in part, “Is this legal? Depends on where you're from, really. Once again: we're using torrents, so if you really care, you'd better google what the legal situation around these protocols where you live.”
It’s not the first time lawyers filing court action in cyber cases have stretched pre-Internet laws so they could apply them to cybercrime cases. For example, Microsoft pioneered several legal innovations to shut down botnets over the past five years, including a claim that a law allowing seizure of knockoff handbags from their manufacturers could be applied to take over command-and-control servers.
Its claim was that under an old law called the Lanham Act the use of Microsoft software and hence its copyright meant that Microsoft could seize the offending servers. A court agreed, and Microsoft used that authority to shut down servers used to support the Rustock botnet.
In a different case, Microsoft asserted that it had standing to ask permission to shut down an entire domain in order to get at the Kelihos botnet. The argument was that use of the domain violated the registrant’s agreement not to carry on criminal activity. Since the registrant was performing criminal acts and it was harming Microsoft, then Microsoft could take back the domain.