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cwilliams
Trad climber
Brisbane
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Topic Author's Original Post - Jul 7, 2015 - 11:09pm PT
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I posted the following on Mountain Project, but wasn't sure of which was the more widely read site, so I'm posting it on both. A better title, to more accurately reflect the intent, perhaps should be "when is climbing gear "abandoned"?"
Anyhoo, the following is a straight copy and paste of my OP on MP. I've included the link here http://www.mountainproject.com/v/is-climbing-booty-theft-by-finding/110710527__1
Enjoy.
PS on MP, I am (obviously) "Chris Topher"...I tried to change my name here to match but couldn't.
"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 Orphaned 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."
Kind regards,
Chris"
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apogee
climber
Technically expert, safe belayer, can lead if easy
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"All comments welcome."
Here's one:
You leave it, you left it.
In other words....
Booty = Booty
It's not that complicated.
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tornado
climber
lawrence kansas
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nerd.
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Reilly
Mountain climber
The Other Monrovia- CA
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It's a moot point if they're goners.
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yosguns
climber
San Mateo, California
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cwilliams, thanks for the post!
I don't think you're giving enough credibility to the strength of the informal system of norms that climbers use to self-regulate. Rules of abandonment and "choses (nice French word, eh?) in possession" may not apply in practice if the "taker" were able to demonstrate an equally consistently applied system of norms within the climbing community.
Food for thought, though neither theory has been tested... Nor should either be. Part of the beauty of climbing is its coexistence with formal regulation. The practice of climbing will lose a large part of its appeal the day someone decides to test these rules in court. That person, well, he or she, in my opinion, would only care to see how the "law" came down if s/he didn't get it.
Allyson
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scooter
climber
fist clamp
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Ha. Please abandon or leave all the gear you would like in Yosemite. Preferably on routes such as Royal Arches, Cathedral Peak, Matthes Crest. Formations such as Lembert Dome and please leave about one dozen quick draws on any sport route under .12. It would greatly help the Yosemite climbing community.
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tradmanclimbs
Ice climber
Pomfert VT
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Stashed gear is Not booty. the only gear that is booty is gear that is abandoned due to incompetence and or being forced to retreet from the climb due to a lack of skill or courage. Yes folks, smokeing a shitload of weed and forgetting to clean the anchor is incompetence.
gear left from a rescue is Not Booty. the booty game is supposed to be fun. if someone gets hurt it's not fun anymore and everyone should come together to help out. that means getting everyones gear sorted and returned after its all done. Sh#t left in the parking lot is not booty.
Basicly if your 2nd can't clean that pink tricam and you do not take the time to rappell down and get it yourself it is booty for the next local who solos up there to clean it:)
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patrick compton
Trad climber
van
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Nothing better than taking stuff and making it yours.
convenience biners on sport routes are great for my vintage biner collection. thatll learn em sportos!
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mcreel
climber
Barcelona
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I don't know the answer, but the question is way too long.
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Captain...or Skully
climber
Boise, ID
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I guess cwilliams wants his pink tricam back. Good luck with that.
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Prod
Trad climber
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I don't know the answer, but the question is way too long.
Agreed.
Tradmanclimbs pretty much summed up what I consider "Booty".
Prod.
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clinker
Trad climber
Santa Cruz, California
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Define booty.
Kim Kardashian Goes "Rock Climbing" in Sexy Swimsuit
"Kim Kardashian: entrepreneur, fashion designer, reality show standout . . . extreme sports aficionado?
The E! star-turned-thrill-seeker, 31, showed off her rock climbing skills -- and those world famous curves -- on Twitter Tuesday when she posted sexy swimsuit shots from a recent photo shoot."
Finders keepers.
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Big Mike
Trad climber
BC
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[Click to View YouTube Video]
If by your own incompetence you chose a route that was too difficult for you to complete in any manner and you leave gear to retreat, you have abandoned said gear. It is up to you, to retrieve said gear before anyone else gets to it.
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Flip Flop
climber
Earth Planet, Universe
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We have laws against leaving waste. Perhaps instead of intellectual property laws you might choose salvage laws. When your ship goes down and you abandon ship what does the law say?
Then again, my dumbass hillbilly cousin got his third strike by bootying some fishing poles and then trying to sell them back to the owners for a finders fee. He got 10 more years before he could get out. Poor f*#ker has spent most of his life in jail for being a Florida Waterbilly.
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jmacrosoft
Sport climber
Atlanta, GA
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Back when I was AD Marines, we had a saying: "Gear adrift is gear a-gift".
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Rankin
Social climber
Greensboro, North Carolina
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The pertinent is issue is whether an original owner may leave a stuck piece of gear or quickdraws on a project and expect to maintain legal ownership of the property.. In short, the intent of the original owner as to the placement of the property determines who is the rightful owner. If property is deemed to be truly abandoned, the original owner has no legal claim to it.
In the case of a stuck piece of gear, the property is left because it cannot physically be retrieved by the original owner, and as such there is little to no certainty that a potential subsequent possessor of the property could expect an original owner to return. For this reason, the original owner would have no legal claims to the property.
If the property in question were quickdraws left on a project, the analysis is trickier depending on the length of time the draws are left and the frequency of use by the original owner. If they are left for a great period of time and original owner doesn't use the draws anymore, then it becomes clear that there is no intent to return for retrieval, even if the draws are just comprised of nylon dog bones. But if the draws are still in great shape, with little signs of sun bleaching or other weathering and the original owner is still using them, then he/she has a rightful claim to the draws.
Continuing on with this line of reasoning, the removal of bolts and the taking of hangers if perfectly legal in terms of property law, unless there are extenuating contracts or limits on land use in place by a real property owner that houses the personal property in question. Bolts and permadraws are almost always left with the intent that they will not be retrieved by an original owner. Of course, in the case of Fixe Triplexes, it is more complicated as these are often placed, then removed in favor of glue-ins once the bolt placement is deemed acceptable, and the bolts re-used to establish a new route.
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Brokedownclimber
Trad climber
Douglas, WY
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Another legal consideration I was made aware of by a lawyer-climbing partner is the concept of "custom and practice." This has legitimate legal standing, so at the crags where "finders-keepers" is the norm, don't expect to get a piece of gear back by whining to a judge...
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ddriver
Trad climber
SLC, UT
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Too many words OP.
If you leave gear you cannot recover you in effect have made a decision to forfeit your claim on said gear. I've lost gear and I've won gear following this principle and have no qualms either way.
And posting online for someone to recover your stuck gear is the lamest of lame.
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Gnome Ofthe Diabase
climber
Out Of Bed
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That we all have an answer that sounds the same, is telling.
The decision to try to return found gear is up to the individual.
The practice of trying to return a found piece of gear or (a whole rack) has led to this confusion.
As niece as it is in the community of a climbing zone, where by asking for help in retrieving stuck or left in place gear, does not give one the right to, is not enough to demand, your gear back.
If you leave it unattended, lost or forgotten, the worlds scavengers feel that it is fair game .
Like it or not.
Big Mike, puts it more sweetly,
But. . .
What the guy who uses king Crimson's graphic, for his avatar, the post above this,
ddriver,said.
Also the baddest mofo from Vermont
(that, is the tradmanclimbs from 'French Fry' - pomfret, Vermont )
Tradman broke it all down for you.
Or
the answer to your question is NO.
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