Gaius, Theft, and IP Infringement

In a recent Federalist Society lecture series on Roman Law, Richard Epstein in one lecture (see below) discusses how the famous Roman jurist Gaius treats the concept of theft.

In essence Gaius rejects nominalism in favor of realism and observes that something that is not theft cannot be made theft by legislatively labeling it as such. I think the passage Epstein is referring to is this section of his Institutes:

§ 194. On account of the enactment that a discovery in such a search is manifest theft, some writers say that manifest theft is of two kinds, statutory or actual: statutory being that of which we have just been speaking, actual being that kind of manifest theft which has been previously explained. But in truth, the only mode of manifest theft is the actual one, for law cannot turn a not manifest thief into a manifest thief, any more than it can turn a man who is not a thief into a thief; or make an adulterer or homicide out of a man who has not killed or committed adultery. What a statute can accomplish is this, that a person shall be subject to a penalty just as if he had committed theft, adultery, or homicide, although he have not committed any of those offences.

In fact, this is what patent and copyright do: they in effect treat actions that are not trespass or theft—that is, copying—as if they are, and penalize them as such. As I noted in my post “Stop calling patent and copyright “property”; stop calling copying “theft” and “piracy,”” even the Supreme Court recognizes that copying is not actually theft, even though the law penalizes it as if it is, when it wrote “interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: ‘[…] an infringer of the copyright.'”

Ironically, Epstein favors IP law (KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished)—that is, in using legislation to treat something that is not theft as if it is. I think Gaius would not approve!