In a ruling today it was decided that, under the US National Stolen Property Act (NSPA), electronic code cannot be a stolen good because it cannot be physically obtained. Wired reports that the written decision was handed down today from the US Court of Appeals, overturning a lower court's ruling that sentenced a Goldman Sachs programmer to an eight-year prison stint for downloading some of the firm's stock-trading source code. According to the judges, the programmer, named Sergey Aleynikov, could not be guilty under either the NSPA or the Economic Espionage Act of 1996 (EEA), both of which were used by US prosecutors in a 2010 trial to imprison Aleynikov.
Since Aleynikov neither obtained "physical control" over the code nor "deprived [Goldman] of its use," he could not have offended the NSPA. Additionally, since the code Aleynikov downloaded wasn't "produced for" or "placed in" interstate or foreign commerce, his actions could not be a violation of the EEA. While the decision — on its face — does imply that electronic code is not physical property, it's important to remember that the judges ruled that the particular acts used to prosecute Aleynikov cannot be interpreted to cover the theft of code. In a concurring opinion, judge Guido Calabresi said "it is hard for me to conclude that Congress, in this law, actually meant to exempt the kind of behavior in which Aleynikov engaged," and he hopes that it will "return to the issue" and clarify what is criminal and what is not.