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IS CLIMBING BOOTY “THEFT BY FINDING”?

Original Post
Chris Topher · · Unknown Hometown · Joined Dec 2013 · Points: 5

IS CLIMBING BOOTY “THEFT BY FINDING”?

[The following is a straight copy and paste of something I posted on Qurank (a Queensland (Australia) online climbing forum), and on a couple of Queensland Facebook climbing groups. It's short. I'd be grateful for comments on it, and your ideas on what happens, and what you think ought to happen, in the US and Canada, in relation to gear "bootoed" from sport routes and humble trad routes. The CAPITALS are not shout-outs, they are just headings for formatting online. I don't think I'm a member of Super Topo, or I'd post there too. Enjoy.]

What follows brings to an end all this non-lawyer will do by way of light legal research on what is “abandonment” at law (as opposed to crag lore). At the end, there’s a simple remedy within what I understand is the legal framework.

“Projects” are not considered here, as once you’ve read this, the application of the law to project gear is pretty self-evident.

SUMMARY

If you “booty” a piece of gear, you will most likely have committed (albeit perhaps unwittingly) “theft by finding”; and if found out and a complaint is made by the owner, you may face criminal charges. (Whether or not the police follow up on that is moot.)

THE LAW

For detail, refer to the 8 page section headed “Abandonment and choses in possession”, in Part A of the 42 page paper titled Abandonment, Copyright And Orp.haned Works: What Does It Mean To Take The Proprietary Nature Of Intellectual Property Rights Seriously?, published in the Melbourne University Law Review, Vol 35 (FYI, a chose in possession is the legal term given to all the items of our climbing kit).

That paper was authored by:
Emily Hudson – (BSc (Hons), LLB (Hons), LLM, PhD (Melb); Career Development Fellow in Intellectual Property Law, University of Oxford; Junior Research Fellow, St Peter’s College; Academic Member, Oxford Intellectual Property Research Centre) and
Robert Burrell – (LLB (Hons), LLM (KCL), PG Dip (UTS), PhD (Griffith); from 1 July 2012, Winthrop Professor of Law, The University of Western Australia.).

For present purposes, I think it is uncontroversial to state that the authors conclude abandonment (of ownership) is possible; abandonment arises in cases where an owner discards property with the intention of forgoing any future claim to it; ‘intention’ is to be judged objectively; and context is relevant.

In their analysis of the law of abandonment of choses in possession, the authors referred to case law from as far back as 1614 (Haynes’s Case (1614) 12 Co Rep 113; 77 ER 1389) and to the magnum opus of Oliver Wendell Holmes Jr, The Common Law (Little, Brown and Co, 1881), through to the more recent cases in Queensland and the UK of (respectively) Re Jigrose Pty Ltd [1994] 1 Qd R 382 and Robot Arenas Ltd v Waterfield [2010] EWHC 115 (QB).

I did not research any statute that may affect that common law.

IN A NUTSHELL, WHAT’S IT ALL MEAN?

This much of the law seems clear from the paper (although, I reiterate that I did not research any statute, whether federal, state, or local):
• ‘value’ can be relevant. So we can compromise in the case of a $10 nut…even if only, purely, for the sake of compromise;
• ‘context’ is obviously relevant. So a cam that’s been stuck in Federation Peak for a year (to go to one extreme) has been ‘abandoned’ at law;
• If you do not ‘abandon’ your chose in possession (piece of personal property), you retain your right of ownership, even though the piece is in possession of another person, and so you have a lawful claim to it from that other person;
• ‘intention to discard’ is essential to ‘abandonment’. The law is clear…simply finding a piece does not mean it has been ‘abandoned’. Equally clearly under the law, in our context, is that one does not need to post on Qurank or elsewhere that they intend to retrieve a cam or Micro-traxion…although I submit that posting as much online would make it abundantly clear to even the naysayers;
• ‘intention’ must be determined objectively, not subjectively;
• ‘law’ trumps ‘lore’…every time.

WHAT’S A SIMPLE REMEDY?

• Whatever you leave in the cliff, post online if you want it back or intend to retrieve it;
• Mark your pieces, even if only with electrical tape (mine’s green and yellow striped, BTW). Along with your post, that’ll be more than enough to establish the connection between you and the gear;
• Be reasonable…post online within (say) 3 days;
• While the law is clear, but unless you post online, and only for the sake of those who scream “Tradition!! Crag ethic!! OMG!...the sky is falling down!!”, a $10 nut is fair game…unless you post online;
• Be reasonable with regards to time allowed for retrieval…some people have work and family commitments and so can’t always get back to a crag in under a month;
• Be advised…if the above happens, and you still take and keep the piece, at law you have taken something that is neither ‘lost’ nor ‘abandoned’, with the intent of keeping it or selling it, and so you will have committed theft by finding (like it or not);
• So, retrieve it and post it online for its owner (or for you to keep, if there is no response after (say) 1 month)…OR…leave it where it is, for someone else to do so. Dead simple?

IS THE ABOVE LEGAL SUMMARY CORRECT, AND/OR IS THERE A MORE COMMONSENSE APPROACH TO DOING THE RIGHT THING WITHIN THE CONFINES OF THE LAW?

Remembering the distinction between ‘lore’ and ‘law’, if you find other legal analyses, or have a legal opinion to the contrary, please post it up.

If the above is a good enough summary of the law, but if you have a better remedy to offer, lets hear it…if for no other reason than (for example) taking a $150 Dragon cam that isn’t ‘abandoned’, is…theft.

All comments welcome. Send to Agfox on Qurank, and/or Chris Topher Williams on Facebook, or just respond here.

Kind regards,
Chris

K Weber · · Unknown Hometown · Joined Jun 2011 · Points: 15

If I find something then I will be keeping it.

This thread is ridiculous.

Mathias · · Loveland, CO · Joined Jun 2014 · Points: 306

Is it littering to leave gear behind?

Anonymous · · Unknown Hometown · Joined unknown · Points: 0

It is simple if you pay the littering fine, i will give the gear back to you. If not than i consider it abandoned and will keep it... your choice.

I have climbed more than one route just to get gear that was left on it!

Muscrat · · Unknown Hometown · Joined Oct 2011 · Points: 3,625

I call BS.
When i find gear, i post on MP L&F.
ALWAYS
If it is from unforeseen emergency, medical, weather, whathaveyou, i pay the post to get it back to owner. (Nice if you reimburse postage). If you bailed; too hard, scared, benighted (knowingly), mom called and it was time for dinner, whatever.....
IT'S BOOTY!!!
(Fill in here with piratical shout) BOOOOOOTY!!!!

will ar · · Vermont · Joined Jan 2010 · Points: 290

Is it just me or did the OP try to cite an article on intellectual property to support his view on bootied climbing gear?

Kristen Fiore · · Burlington, VT · Joined Sep 2014 · Points: 3,383
Mathias wrote:Is it littering to leave gear behind?
Exactly.
Kent Richards · · Unknown Hometown · Joined Jan 2009 · Points: 81

Firstly, the references are all about Australia law. I've heard that laws differ from country to country :-).

Chris Topher wrote:‘intention to discard’ is essential to ‘abandonment’
To play the Devil's advocate:

While this may be true, one could argue that the choice to use gear without ensuring sufficient skill, time, or other resources for retrieving it can be construed as "intent".

If the finder had the skill, equipment, and time to retrieve the gear, this proves that such skill, equipment, and time are attainable, that therefore the original owner willfully neglected to attain it and thus didn't really intend to retrieve the gear...
Buff Johnson · · Unknown Hometown · Joined Dec 2005 · Points: 1,145

Anyone ever notice that there's never a shot of lorazepam around when you run into a lawyer?

Chris Topher · · Unknown Hometown · Joined Dec 2013 · Points: 5

Thanks. No surprises with the comments so far.

Just to clarify a few things to assist the discussion though (numbered for ease of reference)...
1) for "will ar" ...the 40+ page article contains an 8 page section on what constitutes 'abandonment' of a 'chose in possession'...that's a piece of climbing gear. The authors did that to see what if anything they could draw from the common law of abandonment of choses in possession (i.e. stuff like climbing gear) for the focus of their paper...abandonment of copyright (being a chose in action).
2) Where I was not clear is...the question that it seems most people agree is the nub of the moral issue is (at least those who have commented in Oz so far)...WHEN is gear 'abandoned'. If the gear is 'abandoned', then fair enough...it's up for grabs by anyone. This article clearly indicates that, in Australia and other Commonwealth countries, there are certain things that have to happen before an item of personal property is, at law, abandoned.
2) the issue is not what is "booty".
3) I am not trying to assert we should take climbers to court over a stolen/bootied nut or cam. Rather, I am only setting out what some very learned authors seem to consider is the legal position in relation to what is 'abandonment'; and I then point out that bootying gear that is not 'abandoned' may be tantamount to theft...like it or not.
4) I then propose a simple remedy for the booty grievances we see surface from time to time.
5) I ain't so naive as to think this will subvert the dominant paradigm. I just had nothing better to do for 6 or 7 hours of my life...too tired from climbing...not from bootying.

Chris Topher · · Unknown Hometown · Joined Dec 2013 · Points: 5

and anyway...how come you people over there aren't asleep?

BBQ · · Unknown Hometown · Joined Apr 2009 · Points: 554

My two cents: If I have to bail and leave gear behind because the pitch is too hard, or too dangerous, or it rains, or whatever, and someone else finds it and keeps it for themselves they are more than welcome to it. I make more than enough money to replace the gear. It was the price of admission and my life is worth more than some stupid quickdraw, cam or nut. Steal my gear and do whatever it takes to help yourself sleep at night. I don't care.

With that said, I do sport climb and occasionally leave lots of quickdraws on routes that I am working and plan to return to very soon after I placed the gear. Most climbers realize that this project gear is not to be messed with and those that do are pricks who will burn in hell for their booty transgressions.

Muscrat · · Unknown Hometown · Joined Oct 2011 · Points: 3,625
B. Climbin' wrote:My two cents: If I have to bail and leave gear behind because the pitch is too hard, or too dangerous, or it rains, or whatever, and someone else finds it and keeps it for themselves they are more than welcome to it. I make more than enough money to replace the gear. It was the price of admission and my life is worth more than some stupid quickdraw, cam or nut. Steal my gear and do whatever it takes to help yourself sleep at night. I don't care. With that said, I do sport climb and occasionally leave lots of quickdraws on routes that I am working and plan to return to very soon after I placed the gear. Most climbers realize that this project gear is not to be messed with and those that do are pricks who will burn in hell for their booty transgressions.
+1, sport is a different...sport. See the draws, leave the draws. See a bail biner, hey, if you can get it, Booty.
Why are we talking about this, anyway?
Allen Sanderson · · On the road to perdition · Joined Jul 2007 · Points: 1,203

FWIW in the US most if not all states have laws regarding finding property. In a nutshell one is to turn over the property to a local authority, if it is not claimed after a set period of time, it is then finders, keepers.

Here is an example that got a bit out of hand but shows what can happen:

stltoday.com/news/local/cri…


Missouri statutes require the finder of any money, good or personal property valued at more than $10 to report it to a judge within 10 days, but the law is not commonly known or practiced.


And do not try to get a reward either:

thesmokinggun.com/buster/ip…

Mathias · · Loveland, CO · Joined Jun 2014 · Points: 306

Interesting how you're using case law from Australia and the UK. I used to live in the UK and was once told that property left in public areas was not considered abandoned until certain criteria had been met. However, in practice, when anything of value was left unattended, you could expect it to be gone by the time you returned.

Oh, and this is America. We don't live under the rule of the British government here, the case law does not apply, common sense DOES.

Edited: Although, I personally would consider an attempt to get found gear back to the owner, depending on the situation and value of the gear. If I find a rack of cams, for example, I'd try to find the owner. If it's one cam that I pry out of the placement and no one is on the route above me, I'm probably not going to bother. But I don't expect to get MY gear back if I leave it because it "too much effort to retrieve", or if I have to bail cos the routes too hard.

Bill Kirby · · Keene New York · Joined Jul 2012 · Points: 480

I've always been the one trying to get someone's gear back to them no matter what the reason they left it there. I say booty if some police or lawyer tells me the decision's not up to me.

Dankasaurus · · Lyons, CO · Joined Jul 2012 · Points: 85

The law of the sea applies.

budman · · Moab,UT · Joined Mar 2008 · Points: 11

Your a lawyer that littered and I'm cleaning it up and recycling it.

KyleT · · Lakewood, CO · Joined Jul 2014 · Points: 5

Interesting how many folks are willing to apply their own perspective as to the intent of the person who left the item. It seems from the discussion so far, it's okay to take someones gear if you perceive they were not worthy of it in the first place, or that they might not come back for it (ie they bailed, or the route was too hard, or it was time for dinner). This concept of its "okay" depending on circumstances is a strange perspective to take given that if I took your car, or what is in your savings account and said, well I did not think you were using it, or that you might not come back for it, that would be considered wrong.

The discussion about project draws is a great point. Given that the intent of the person who left their draws is entirely up to me as the person looking upon the unattended gear, I could say that perhaps the person who left them, simply bailed, or the route was too hard or that it was time for dinner and then it would be okay to take them, which clearly it is not.

It seems clear that taking something that is not yours is wrong, so perhaps when you find something while climbing that is not yours you should consider leaving it alone. Justifying your actions by assuming you know what process took place that caused that piece of gear to be left behind is a rationalization.

Trevor. · · Boise, ID · Joined Apr 2012 · Points: 830

My rule is if you know whose it is, it's not booty. Otherwise, keep that shit! Project draws being an obvious exception.

TSluiter · · Holland, VT · Joined May 2013 · Points: 314
KyleT wrote:Interesting how many folks are willing to apply their own perspective as to the intent of the person who left the item.
Agreed. I think the best course of action is to collect the gear if possible, and then post to MP/CL in the lost and found section. To assume you know what happened is a bit of an overreach.

Anyway, it seems that allowing the chance for the party to get their stuff back is the moral (and probably legal as OP noticed) thing to do in every case. I wouldn't treat it different than any other lost item I found.

Except for dope I guess, I would probably just smoke it if it was quality. (I had once left some in the Flat Irons, hiked back up to find a group burning it down. Wasn't mad, joined em for the session and got, well most of, my stuff back.)
Guideline #1: Don't be a jerk.

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