Chief Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit, in an opinion released Wednesday that explains why the 2010 conviction of a programmer accused of downloading code from Goldman Sachs — shortly before he left for another job — was overturned in February. The court said Sergey Aleynikov was wrongly convicted of theft because code is not physical property, and that the Economic Espionage Act did not apply because the code was not used in interstate commerce. The ruling could have far-reaching effects. “Prosecutors brought this case to send a message about economic espionage in the information age. This is a major setback,” Joel Reidenberg, a professor at Fordham University School of Law, told Reuters. In a concurring opinion, Circuit Judge Guido Calabresi wrote that he hoped Congress would revisit the Economic Espionage Act and update its language: “[I]t is hard for me to conclude that Congress, in this law, actually meant to exempt the kind of behavior in which Aleynikov engaged.”
“We decline to stretch or update statutory words of plain and ordinary meaning in order to better accommodate the digital age.