Daily Development for Tuesday, February 24, 2004 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu WORDS AND PHRASES; "PROPERTY:" In the context of a criminal statute prohibiting the "knowing retention" of property, a digital image scanned from a stolen photograph constitutes "property" stolen from the party owning the photograph. State v. Nelson, 2004 WL 315193 (N.H. 2/20/04) Defendant landlord entered his tenants' apartment with their permission to install a ceiling fan. When the couple left, the defendant entered their bedroom and, without permission, took possession of several intimate photographs of the female tenant, which he found on top of a dresser. He brought the pictures to his nearby apartment, scanned them into his computer, and then returned them to their original location. Several months later, the tenants learned of the defendant's actions and reported the matter to the police. The defendant admitted what he had done when the police confronted him. The State subsequently charged the defendant by information, alleging that he "commit[ed] the crime of Receiving Stolen Property in that he knowingly retained seven (7) photographic images, the property of [the tenant], knowing or believing that said images had been stolen, with a purpose to deprive [the tenant] thereof . . . ." The defendant moved to dismiss the charge, raising a number of challenges to the charge that he violated the statute in copying the pictures. First, the defendant contended contending that the computer-scanned photographic images were not "property" as defined under the theft statute, RSA 637:2 (1996), and therefore that the State could not prove the remaining elements of the crime. He further contended that the State's evidence, as a matter of law, did not establish either that the images he retained on his computer constituted "property of another," or that he had a "purpose to deprive" the owner of the photographic images. The defendant's arguments challenge the application and interpretation of the theft statute to uncontested facts. Receipt of stolen property occurs when: A person . . . receives, retains, or disposes of the property of another knowing that it has been stolen, or believing that it has probably been stolen, with a purpose to deprive the owner thereof. The court acknowledged that, to secure a conviction, the State had to prove that a defendant possessed property of another which he knew was stolen or believed was probably stolen, and that he did so with the purpose to deprive the rightful owner of its possession. As to whether the computer-scanned photographic images, as distinguished from the photographs themselves, the court set forth the definition of property within the criminal statutes. "Property" means: "anything of value, including real estate, tangible and intangible personal property, captured or domestic animals and birds, written instruments or other writings representing or embodying rights concerning real or personal property, labor, services, or otherwise containing any thing of value to the owner, commodities of a public utility nature such as telecommunications, gas, electricity, steam, or water, and trade secrets, meaning the whole or any portion of any scientific or technical information, design, process, procedure, formula or invention which the owner thereof intends to be available only to persons selected by him." With respect to "value," the trial court concluded that ". . . [T]he images have commercial or market value as they would have some value if they were sold on the internet or otherwise. Even if the images did not have commercial or market value, they certainly have value to the owner, whoever that may be." In fact, the defendant did not expressly claim that the images had not value. As the images scanned into the defendant's computer were private and intimate and were taken from the tenants' bedroom, a place the defendant was neither invited nor privileged to enter, the court concluded that the defendant could not contend that the photographic images did not constitute "property" under the theft statute. The defendant next argued that the scanned images on his computer could not, as a matter of law, constitute "property of another." Although he conceded that the original photographs from which he scanned the images belonged to another, he contended that the images recovered from his computer belonged to him because he created them in his own home and on his own computer. Thus, he maintained, the "[original] photographs and the images on [his] computer hard drive are two very different, separate and distinct things." The court disageed. It stated that defendant was charged and convicted of retaining stolen photographic images. His conduct in scanning the images on the photographs did not change the stolen nature of those images. The defendant simply used computer technology to, in essence, duplicate the images captured in the photographs, and thereby change the medium on which the images appeared. Though the medium changed from photographic paper to a computer, the photographic images themselves remained "property of another." He gained no lawful proprietary or possessory interest in the images simply by using his own equipment in his own residence to reproduce images captured on photographs he admittedly took without permission. The facts of this case certainly allow for the conclusion that the defendant retained property, i.e., photographic images scanned and stored on his computer, "in which [a] person other than [the defendant] ha[d] an interest which [he was] not privileged to infringe. The defendant further contended that the evidence presented by the State could not, as a matter of law, prove that he had a "purpose to deprive" his tenant of the photographic images he scanned onto his computer. "Purpose to deprive" means, in relevant part, "to have the conscious object . . . [t]o withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost." The defendant argued that because he returned the original photographs containing the same images, his tenant was able to continue to make use of the images, and thus he could not have had the intent to deprive her of the economic value, or of the use and benefit of the images. Again, we find no merit in the defendant's position. The court rejected this argument as well. It stated that the rights associated with property ownership include the rights to possession, use, and enjoyment. Integral to ownership, therefore, is the right to exclude others from possessing, using and enjoying a particular item of property. Thus, the owner of the photographs at issue had the right to select who would have access to view them. Though the defendant returned the original photographs, he kept a computer reproduction of the captured images, without permission, and it is these images he was convicted of unlawfully retaining. Therefore, the evidence was sufficient as a matter of law to support the conclusion that the defendant harbored a conscious object "[t]o withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost." Comment 1: The court cited no outside authority or commentary on these issues, and the editor, frankly, has no idea whether these kinds of concepts have been discussed before. Certainly, jurisprudential discussions of the concept of property must have taken into account the question of the copied image. Nevertheless, the circumstances make the case interesting, and it is short, sweet, and may become influential on contexts other than criminal law. Comment 2: Note that there is not one word about intellectual property rights here. Nor is there any issue concern breach of privacy, since we are trying to define a crime. Is it possible that this case will provide a new basis for claims that might have been made on those other bases. Comment 3: The suggestion is that the image, and not the picture, is the "property." Does this mean that if someone just takes a snapshot of another, without approval, that is the taking of the subject's "property?" Can we argue that the subject shouldn't have walked about in public without expecting to have a picture taken, and therefore consented? Assuming that is not the case, then what if the picture then appears on 5 million computer screens, and is stored in 10% of the receiving computers. Are all those folks criminals in New Hampshire, at least if they are aware that the picture was taken without consent? Do we wind up with some freedom of expression issues here? Many scholars have argued for expansions of the traditional notion of "property" to many things that have not traditionally been so viewed - from rights to government welfare benefits to the chemical composition of one's DNA to rights to one's own personality or "personhood." Forget about whether these interests ought to be protected. Maybe they should be. But is it wise to lump everything together under a traditional concept that identified rather traditional and easily identifiable relationships to traditional and easily differentiated physical things? Maybe. Editor is jest askin'. Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. 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