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According to the Q&A information at Why is stealing from an employer a criminal act when stealing from an employee is a civil act?, an employer declining to give an employee a paycheck is a civil offense, not a criminal one. However, if a friend hires someone to fix something in their house, but after the repairs are done, the friend refuses to pay, this would likely fall under theft of service. What is the difference between the two scenarios?

Also, how does this extend to Internet usage and services. For example, if I play a movie from a streaming service and screen-share on Zoom, I would be committing civil copyright infringement (if it is not fair use), but if I give other people my login credentials for the streaming service, it would be theft of service, I think, depending on the jurisdiction (http://nashvilleattorneynow.com/criminal-defense/nashville-criminal-attorney-explains-theft-tennessee-netflix-password-sharing/). Is there a clear distinction between the civil and criminal offenses in cases like this, what is that distinction, and why is that?

Also, how does this distinction affect the outcome for a person liable/guilty of either?

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if a friend hires someone to fix something in their house, but after the repairs are done, the friend refuses to pay, this would likely fall under theft of service.

This is incorrect.

The most common distinction is intent. (The federal Canadian criminal code provision for theft (Section 332) requires intent to commit the crime, although "false pretenses" (Section 362) is probably a better match within the Canadian criminal code to theft of services and also requires a showing of intent).

If breaching a promise to pay that the person making the promise to pay intended to be honor when the promise was made fails to pay (e.g. due to poor budgeting or losing a job) this is a breach of contract.

Similarly, if someone accidentally attaches the wrong cable line to their TV and gets the premium package rather than the regular one, but didn't realize that fact, the cable company might have a claim for negligence or for unjust enrichment, but this would not constitute theft.

In contrast, obtaining services knowing at the outset that you do not intend to honor your promise yet deceiving the service provider with your promise is theft. Theft (in the context of a theft of services) is intentionally obtaining services by deceit with an intent not to pay for them at the time that they are obtained.

Proving this intent is usually prohibitively difficult and no something that law enforcement will choose to press charges regarding, but with very clear evidence (e.g. an audiotape of the person making a promise to pay bragging immediately before or after making the promise to pay about how he never intends to pay in the first place, or in a case with a pattern of conduct involving many service providers on multiple occasions), charges can be pressed and a conviction can be won.

Also, to be clear, it has nothing to do, per se, with the power relationships of the parties. If an employer picks up a bunch of day laborers telling them that they will be paid an agreed rate at the end of the day for the work they are made to do, and the employer not only doesn't pay them at the end of the day but didn't intend to do so in the first place and perhaps has a practice of picking up day laborers and then refusing to pay them without good cause, that is theft of services a.k.a. wage theft.

if I play a movie from a streaming service and screen-share on Zoom, I would be committing civil copyright infringement (if it is not fair use), but if I give other people my login credentials for the streaming service, it would be theft of service, I think, depending on the jurisdiction

This isn't a good analogy as it implicates copyright law which is quite different from other bodies of law.

Some acts are both civil and criminal copyright violations. But criminal copyright violations are generally not a theft of services.

In Canada, the typical criminal copyright violation involves the sale or rental of the copyright protected material to third parties for money.

how does this distinction affect the outcome for a person liable/guilty of either?

Civil law violations are a basis to bring a lawsuit against someone who breaches the law in a civil manner for money damages sufficient to compensate the person bringing the lawsuit for the damages that they have suffered.

Theft is a criminal offense. The prosecutor's office decides whether or not to bring charges and if it does bring charges does so (in Canada) in the name of the Crown, at the government's expense under criminal procedure rather than the civil procedure applicable to lawsuits. The victim is usually a witness and is usually consulted, but is not a party to a criminal case. If a conviction is obtained for a criminal offense, the penalty is usually some combination of incarceration, a fine, probation and community service, as authorized by statute, with court costs and restitution to the victim tacked on as an afterthought. The measure of what is owed as restitution is typically more grudging than the measure of the damages that can be awarded in a civil lawsuit.

The two remedies are not mutually exclusive. Someone who is prosecuted for committing a crime can also be sued if the evidence supports both civil and criminal claims. Someone who is sued can also be prosecuted if the evidence supports both civil and criminal claims.

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  • I am not sure if intent is necessary. According to legalmatch.com/law-library/article/theft-of-services.html, theft of services can occur "[w]hen the parties have a miscommunication, such as if a company believes that a customer is already paying for the service and the customer thinks that they are being charged automatically." Jun 8 at 22:04
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    @joseph-parsons I am not aware of any jurisdictions that punish unintentional theft and I've never seen that prosecuted as a crime. I don't deny that some jurisdiction might have a strict liability theft of services statute, but that would be highly unusual. No authority supports that article and I believe that it is inaccurate. FWIW, I've been a lawyer for 25 years and graduated cum laude from a top ten law school, while the author has meager legal credentials and doesn't even affirmatively claim admission to practice in any jurisdiction.
    – ohwilleke
    Jun 8 at 22:15
  • How could intent be even proven in most cases? For example, if someone leaves a restaurant, hotel, or taxi without paying, proving intent would be difficult, it seems. Jun 9 at 22:00
  • @joseph-parsons This is why theft of services cases are so uncommon in circumstances like that. There are many hundreds, if not thousands of breach of contract cases for unpaid services for every one theft of services prosecution.
    – ohwilleke
    Jun 9 at 22:34
  • According to the legal definition of theft of services found here for a state statue, "Absconding without paying for hotel, restaurant, or other services for which compensation is customarily paid immediately upon the receiving of them is prima facie evidence that the services were obtained by deception." In fact, based off of the statute, theft of services can be done for computers with "reckless disregard" rather than intent. Jun 14 at 2:58

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