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Technology has advanced much more rapidly than the law, leaving courts to grapple with the application of traditional principles of law to new forms of technology. An interesting example is a case earlier this year in which the Supreme Court of New Hampshire was called upon to decide whether the scanning of intimate photographs into a computer without permission constituted receipt of stolen property when the original photographs were returned. In The State of New Hampshire v. Robert W. Nelson, these facts were set out: In early 2001, Robert Nelson, a landlord, entered an apartment of his tenants — with their permission — to install a ceiling fan. But when the couple left the apartment, Nelson entered their bedroom, and — without their permission — took several intimate photographs of the female tenant which were lying on the top of a dresser. Nelson then took the photographs to his nearby apartment, where he scanned them into his computer. Later, he returned the photographs to their original location. Several months later, the tenants learned what happened and they contacted the police. Nelson admitted to the police what he had done with the photographs. New Hampshire charged Nelson with receipt of stolen property, specifically with 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 �” “Property” is defined by New Hampshire law as “anything of value.” Nelson ultimately was convicted for receipt of stolen property, and he appealed. On appeal, he principally argued that the scanned photographic images did not constitute property and that he did not deprive the female owner of her photographs, the supposed property at issue. The New Hampshire Supreme Court worked with traditional principles of state law to reach the conclusion that Nelson did in fact receive stolen property by scanning the photographic images of the female tenant onto his computer. The court first held that the photographic images did constitute property for purposes of the law. The court so held by finding that the images had “value.” They had value, according to the court, because they were “private and intimate.” The court next held that the scanning of the photographic images did constitute the taking the property of another, even though the original photographs were returned. Although Nelson argued that the computer scanned images and the original photographs were “separate and distinct things,” the court held that “the scanning of the images of the photographs did not change the stolen nature of those images.” According to the court, Nelson “simply used computer technology to, in essence, duplicate the images captured on the photographs, and thereby change the medium on which the images appeared”; “though the medium changed from photographic paper to computer, the photographic images themselves remained �property of another.’” As a consequence, Nelson “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.” In further rejecting Nelson’s argument that he was innocent because he returned the original photographs, the court cited traditional New Hampshire law which holds that the rights associated with property ownership include the rights to possession, use and enjoyment. From there, the court went further and held that “integral to ownership, therefore, is the right to exclude others from possessing, using and enjoying a particular item of property.” Thus, as the owner of the photographs, the female tenant, and presumably the male tenant, were allowed to enjoy them, but Nelson was not, even though he was permitted to enter the couple’s apartment and the photographs were available on top of a dresser. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to these columns, please send him an e-mail with “Subscribe” in the subject line.

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