Of course, the thief could always sue, but even that's a hard sell.
I cannot for the life of me imagine that the US judiciary is that unprofessional.
If you want the video taken down, it would be more direct to go after YouTube. In this case, the individual isn't really the "publisher," YouTube is. You probably wouldn't even need to sue YouTube, you could probably go through the "inappropriate content" channel.
Suppose a 14year old girl stole some underwear - the store then videos her in her bedroom in the underwear and puts it on TV as an ad campaign. Still acceptable in the USA?
No jury will ever side with the thief for what is essentially mischief.
Whether you think it's right or wrong, a jury isn't ever going to give the thief any leniency here. I believe in some European countries there are professional juries? Perhaps Germany?
We don't have that here. It's just people off the street and they have no legal training and they go with their gut feeling quite often and they DEFINITELY will in a case this simple.
If the thief's apartment was burned down or he was murdered or got beat up or something like that as a result of the notoriety, then there may be a case. But not because of some public humiliation or something related to privacy matters.
This is just the way juries work in the US.
So yes, abstractly, a thief should not have to give up their rights, but on the other hand, it's a thief -- and there's a particular concrete US ethos that influences mine and the jury's thinking about this. We wonder why we should care about the rights of this particular person who chose to steal other people's possessions.
In other words, cry me a river. :-)
The fact that the thief knows that the computer is stolen property and is not rightfully his makes a big difference. For example, if he bought the computer for $250 he might be suspicious that it was stolen (otherwise why such a good deal?), but it is theoretically possible in that situation to give him the benefit of the doubt. Of course, that's not the case here.
Jury nullification. US Juries can find in opposition to the facts, the evidence, the law, the judge's instructions, etc.
In short, if you put a case in front of a US jury, with a clearly documented violation of a clearly worded law, you may still find the jury returning a verdict of 'not guilty'. And that's just the way it is.
Even camera don't have to be started remotely. Hey, my camera is always rolling and sending stream to remote server. That's my laptop and that's how I'm using it.
There was no remote activation, there was no spying, there was no nothing. The perp recorded himself, and two month later as Mark was checking his backups he realized the stolen machine was still backuping itself.
Another thought: suppose the thief sold the laptop immediately, and the person recorded is guilty of buying a used laptop.
What it would come down to is reasonable expectation of privacy, but considering the admission that the laptop was stolen, most judges would throw this whole thing out if privacy was the legal argument. Any thief would know that a person whose property was stolen would probably go looking for it.
Mark's first amendment rights to publish data that is recorded on his property trumps the alleged thief's expectation of privacy.
The other issue that could come into play is copyright, but again, Mark is the owner of the property. Photographers who shoot photos on company equipment don't have the copyright of those photos; the publisher does, unless there is a specific contract between the author and the publisher granting the publisher (or the author) reproduction licenses.
Lastly, others have mentioned libel/slander. There's one flaw in this argument: Nowhere in the video description does it a) explicitly accuse the person of being the thief (so if he was found not guilty, the accused has no case there) and do so with malice or b) even make fun of the guy's dancing (which is a statement of opinion and wouldn't hold up in court).
I assume that this was illegal even though the laptop was the school's property
First, the <em>school</em> district <a href="http://www.boingboing.net/2010/02/17/school-used-student.htm... something like 50,000+ photos of minors</a> in their homes and then used what they found in those photos to accuse the minor who sued of doing drugs. The issue question in this case is about who was doing the recording. In this case, it was the school. In Mark's case, the accused knowingly recorded himself (though he didn't know he was also sending that data back to the Laptop's owner).
Secondly, the school's problem was with the scope of what they were recording and where. In your office, your employer can tape you without your knowledge while you're at your desk or at the water cooler, but they can't record you in the bathroom, where you have a reasonable expectation of privacy . You'd certainly have a somewhat subjective expectation in your home, too, even if you were using your work computer. (e.g. The courts would find it reasonable to monitor your Facebook usage on a work computer outside of work hours, but would not find it reasonable to photograph you inside your home from that same computer.)
Lastly, there's the human element of the courts. A judge and jury are almost always going to be less sympathetic toward a school district that should have known better than they would be toward a plaintiff who admittedly took someone's laptop and recorded themselves on it.
Just as an example, if you take a photo of me with your camera and I explicitly tell you to not publish the photo you are not allowed to [0], even if the photo is stored on your own drive. I can’t force you to delete the photo, you are free to keep it and show it to your friends but you are definitely not allowed to publish it.
[0] There are certain narrow exceptions in the respective German law but they don’t apply in this case.
Kunsturheberrechtsgesetzes (KunstUhrG) §22, first sentence: „Bildnisse dürfen nur mit Einwilligung des Abgebildeten verbreitet oder öffentlich zur Schau gestellt werden.“ (Rough translation: “Images can only be published with consent of the depicted.”)
Here’s the whole text (German): http://dejure.org/gesetze/KunstUrhG/22.html
§23 lists all the exceptions:
1. Photos with some sort of historic meaning.
2. Whenever the depicted persons are merely incidental to the actual subject.
3. Photos of gatherings, demonstrations and similar such events.
4. Basically, if it’s art.
Settled.
For example, if we are in a public park, and I take your picture even against your explicit wishes, as long as I do not make any commercial profit off of it, I am pretty much free to publish it in any way I want (flicr, etc.).
If I want to sell it or profit from it in some way, you certainly have some rights. But, basically, if you are in a public place you have no privacy rights against someone taking a picture of you and publishing it.