Copyright Infringement and Shoplifting Contrasted

awesomeO4001 wrote in to mention a post to Karl Wagenfuehr's blog where he compares and contrasts the penalties for copyright infringement vs. shoplifting. From the post: "...from what I can tell, the penalties laid out for downloading one season of a TV show with BitTorrent are much harsher than if you actually stole a DVD set of the same show from a government store...For stealing the DVD you could face no more than up to 1 year imprisonment and up to a $100,000 fine; for downloading the same material you could face statutory damages of up to $3,300,000, costs and attorney's fees"

Comments

Potential Redistributable Files

[fembots]

Maybe downloading a movie means you own a P2P-friendly file to redistribute it in the future, while stealing a DVD means you're only going to watch it at home.

Obviously owning a physical DVD also allows you to turn it into P2P-friendly files, but that can't be fined yet since it hasn't happened, while the downloader already possesses the file.

Re:Potential Redistributable Files

[de1orean]

damn, took the words out of my mouth.

one could even draw a parallel to using drugs vs. selling them. maybe the powers that be are considering DLing copyrighted materials as "possession with intent to distribute."

Re:Potential Redistributable Files

[Ziviyr]

Your realize that it is verging on trivial to pull playable files from a DVD?

Moreover those files are of much higher quality.

Re:Potential Redistributable Files

[Jane_the_Great]

If you're downloading from a torrent, you're distributing it at the same time you are downloading it.

Re:Potential Redistributable Files

[Anonymous Coward]

But you're only distributing pieces. How many pieces, and what size must they be, before you're actually infringing copyright? A single byte? A percentage?

Re:Potential Redistributable Files

[InitHello]

I beg to differ. Though pointless, it is possible to put the DVD in your drive and make a torrent. Who would want to upload directly from the DVD, I don't know. Nor do I know who would want to download encrypted VOBs. But the possibility remains.

Still, I think the people who write these laws should take a long, hard look at the realities of the situation.

Re:Potential Redistributable Files

[pintpusher]

This implies that you can be fined more for the POTENTIAL of committing further acts of copyright infringement. I don't think that holds up. That's like punishing a murderer for future murders they were thinking about committing.
I read it like this: a store bought DVD has already paid its royalties to the copyright holder, if not directly produced by the copyright holder. The retailer through several levels, has paid the copyright holder for the material and then is reselling a pre-packaged, fully licensed sealed item. A shoplifter is merely stealing this already licensed and legal copy of an item. The shoplifter is not copying, distributing or performing any other COPYRIGHT infringement by merely walking out the door with it.

A downloader however, by mere virtue of the fact that they have MADE A COPY of the material without paying the copyright holder for that privilege has violated the copyright.

Its a different crime.

Now, if the shoplifter rips it and passes on copies of it, then your back to COPYing the work...

WHat happens if you download a copy of something you already own for purposes of backing up the material?

Re:Potential Redistributable Files

[null etc.]

This is the shady part of the law that deals with "intent". "Possession with the intent to distribute". "Assault with the intent to kill".

Unfortunately, because P2P has gotten such a harsh rap, it's easy for a prosecutor to link digital "theft" with the "intent to distribute".

AFAIK, there's no distinction between theft and intent in any existing copyright laws. But I could be wrong. And if it doesn't exist yet, it will soon.

Re:Potential Redistributable Files

[cpt kangarooski]

There's no real threshold. Some courts sometimes find de minimis infringement, other courts say that there's no such thing, based on their reading of the statute. Minor infringements might be fair uses, but there is a multifactor fair use analysis (see 17 USC 107) and while size is a factor, if those are the important parts, the fact that you ignored the unimportant majority isn't going to matter much.

The important thing is that it derive from the copyrightable work. If "Paul Clifford" were copyrighted, and you copied "It was a dark and stormy night" from it, then that's going to be infringing. OTOH, if you independently came up with that line (which, as the works are more and more similar, is harder to be convincing of, where you had access to the plaintiff's work), then there is no infringement.

I would suggest reading the very good essay What Colour Are Your Bits? for more on this.

Re:Potential Redistributable Files

[Anonymous Coward]

Or you can just be a leech like me, modify the BT code to disable outgoing connections completely (or use the max upload speed switch but that only goes down to like 1kbps so you're still uploading)

Re:Potential Redistributable Files

[argmanah]

Obviously owning a physical DVD also allows you to turn it into P2P-friendly files, but that can't be fined yet since it hasn't happened, while the downloader already possesses the file.

Your interpretation is inconsistent. Either you penalize people for the potential to commit the crime or you don't. It's not illegal to own copyrighted material in a P2P friendly format. It's illegal to distribute them.

You're making the arguement that, in the shoplifter's case, he COULD redistribute the movie he stole, but he hasn't yet, so he isn't punished for it.

However, you missed the fact that, in the downloader's case, he COULD redistribute the movie he stole, but he hasn't yet. So why should he be punished for it?

Whether he possesses the work as a file or as a DVD should not matter.

Re:Potential Redistributable Files

[Anonymous Coward]

and while size is a factor, if those are the important parts...

Wait, so size really doesn't matter?

Re:Potential Redistributable Files

[|/|/|||]

You made it clear what the differences are, but the real question is why should the downloader (who violated copyright) be punished more harshly than the thief?

Re:Potential Redistributable Files

[MBraynard]

I think this limits greatly your download ability. And since many BTs are now tracked carefully you could loose access.

Re:Potential Redistributable Files

[Howski]

Mod parent up. This is exactly what the issue is. You must take into account both the theft and the duplication. Stealing the video from the store does not imply duplication, no matter how "trivial" it has become to rip the material from the disc.

Re:Potential Redistributable Files

[GlassHeart]

I would say one bit, actually.

Let's put the question another way. If 1,000 terrorists each transport a tiny fragment of a nuclear bomb into a city and blows it up, which of them is guilty of mass murder?

All of them are, even if one of them just bought a screwdriver from Home Depot. Similarly, because of the ability and intent of reassembling that bit back into a copyrighted work without authorization, you've violated copyright. This doesn't mean that anybody who sends out a 1 bit infringes on every copyrighted work containing a 1 bit. There has to be a clear way of using that bit to infringe copyright, such as a formula or data format to re-generate copyrighted material with it as an input.

(By the way, this is just an intellectual exercise, putting aside my personal feelings about copyright law. I am also not a lawyer, so guilt and innocence here refer to what I think the world should be, not what it is.)

Re:Potential Redistributable Files

[shawn(at)fsu]

tealing a DVD means you're only going to watch it at home
Or you could steal it just to sell it to someone else cheaper than what they buy it for.

Re:Potential Redistributable Files

[composer777]

Unfortunately their pricing model is flawed.

I think the problem is, if I steal a car from GM's factory, how much have I stolen, the retail or wholesale value of the vehicle?

How about intellectual property, have I stolen the costs that it took to make the CD, or the suggested MSRP? Why does the RIAA assume that the MSRP is what is stolen?

With the GM vehicle, we have a greater chance of market competition causing the price to drop down to the cost of the materials + cost of labor. It's not perfect by any means, and barriers to market entry screw things up, but real competition keeps them more honest than the record companies.
The problem with this logic, is that lack of competition with IP causes the price to be higher than it would be in a market where there is direct competition.(i.e. there is only one Windows, and it's made by microsoft, there is only one Radiohead, and only one record company I can get their CD from). Instead, each band, and product, is it's own monopoly, with no direct competition, which is why price fixing is so easy with music and movies.

So, the record company sets the price as high as it can, and since there is no direct competition, the profit margins stay high. What happens when someone "steals" music? They aren't charged for the costs of making the IP, instead they are stuck with fines that are based on artificially high prices.

I'm not sure if anyone dealing with economics has tried to come up with a way of measuring competition in an industry, but if they haven't, they should. The market distortions created by our IP rules are horribly unjust. Why should someone that makes a small amount of IP be rewarded handsomely, while someone that makes a really existing product, have comparatively low profit margins? Why should someone that steals maybe $100 from the real world profit of a record company, and even less than that from the true value of the good itself(if we assume that the value of the good is only as much as the amount paid to the artists and managers), be charged with millions in fines?

Re:Potential Redistributable Files

[TGK]

My question is this. If the rational for this disparity is that the downloader is being punished for the theft and for his distribution of the material while the shoplifter is only being punished for the theft, is there not a fundamental conundrum?

If Alice downloads a file illegaly and then shares it with Bob, Berry, and Bart, she can be punished with the downloader penalties, which include punishment for the illegal distribution of the work (i.e. representing the copying she did as well as the copying she allowed others to do).

What then can Bob, Berry, and Bart be charged with? What if they download directly from Alice without sharing themselves? Alice has allready been convicted of the crime of distributing this data. How can they ALSO be guilty?

Perhaps a paralell is in order. Lets take the case of the shoplifter. If he takes a copy of a DVD from Wal Mart he is punished for it if caught. Should Wal Mart ALSO be punished for failing to secure and protect copywritten materials?

My point is this. If the purpose of copyright is to control the copying and we are to presume that any individual downloading is the one doing the actual copying, then it is clear that the person hosting the file is not at fault. If the person hosting the file is the one doing the copying then the person receiving the file is not at fault. If this were a criminal trial it would be one thing, but as a civil trial the plaintiff has rights only the damage done. The damge in this case works out to the value of the merchendise * the copies made.

If $5,000,000 in stuff is ripped off from Wal Mart every year but they only catch 5 shoplifters are those five liable for $1,000,000 each? Why then are file sharers liable for damages other than those representitive of the fair market value of the files on their systems?

Re:Potential Redistributable Files

[pixelpusher220]

WHat happens if you download a copy of something you already own for purposes of backing up the material?

Downloading material is a grey area for exactly that reason. They can't know if I actually have a license for the material or not.

They aren't suing downloaders, they are suing people who are UPLOADING files. If you just download stuff you're generally free and clear (for the moment). Bitorrent doesn't have that option though, so they are defacto uploading hence the harsher crime.

Re:Potential Redistributable Files

[Divide By Zero]

Still, I think the people who write these laws should take a long, hard look at the realities of the situation.

I think that the assumption you're making, specifically that legislators understand what's going on and how it works, is false.

Re:Potential Redistributable Files

[kkovach]

I had some thoughts along this line as well. You really are only distributing parts of the work (DVD).

What you need to do is to actually keep track of all the bits you distributed, and go to court with them as evidence. That being only 1/2 or 3/4 of the bits that comprise the whole DVD.

Write it to disc, pop it in a DVD player and show the jury exactly what you "shared" with everyone. An unplayable DVD.

Wooooo! You criminal you! :-)

- Kevin

Re:Potential Redistributable Files

[doorbot.com]

Nor do I know who would want to download encrypted VOBs.

Can't you just burn the encrypted VOB to DVD and then watch it as normal? As far as I know, the "encryption" doesn't impede making a duplicate of the DVD, it simply limits who can play it (eg, region coding, CSS key licensing, etc).

Re:Potential Redistributable Files

[Anonymous Coward]

INSIGHTFUL? Sheesh Mods...think...just a little, k?

nothing about POTENTIAL here, uploading means the act of illegal sharing is ALREADY HAPPENING.

Re:Potential Redistributable Files

[cpt kangarooski]

If the rational for this disparity is that the downloader is being punished for the theft and for his distribution of the material while the shoplifter is only being punished for the theft, is there not a fundamental conundrum?

Statutory damages apply regardless of the nature of the infringement. Reproduction alone is not treated differently than reproduction and distribution with regards to this. So that's not the rationale.

If Alice downloads a file illegaly and then shares it with Bob, Berry, and Bart, she can be punished with the downloader penalties, which include punishment for the illegal distribution of the work (i.e. representing the copying she did as well as the copying she allowed others to do).

No, that's incorrect. If you reproduce a copyrighted work, as occurs when you download it without authorization in an infringing manner, then that is one act of infringement by itself. Distributing the work to others, as occurs when you upload it without authorization in an infringing manner, is a seperate act of infringement.

This doesn't matter for statutory damages, since they are computed per work infringed, not per infringement, but they are distinct. For example, you could buy a lawfully made copy of a work, and then distribute the work (e.g. by renting an audio CD) and that would be an infringement without any reproduction.

What then can Bob, Berry, and Bart be charged with?

Criminally, copyright infringement for downloading, if they satisfy the requirements for that. Civilly, I wouldn't say 'charged' but again, downloading copyrighted works without authorization, in an infringing manner, is copyright infringement.

Alice has allready been convicted of the crime of distributing this data. How can they ALSO be guilty?

There is a big distinction between criminal and civil actions (copyright has both civil and criminal penalties, but the civil branch of the law predominates). Anyway, distribution is not the same thing as reproduction -- that's how.

If the purpose of copyright is to control the copying and we are to presume that any individual downloading is the one doing the actual copying, then it is clear that the person hosting the file is not at fault.

Copyright actually deals with a number of different rights. Reproduction is one; distribution is an entirely seperate one. And there are others. See 17 USC 106.

Why then are file sharers liable for damages other than those representitive of the fair market value of the files on their systems?

Because it is felt that those damages are so low that no one would bother to obey the law.

Re:Potential Redistributable Files

[Marvelicious]

Which is also bullshit! That intent to distribute thing has always bugged me. Since when is the potential to commit a crime also a crime? Intent is important in a murder/manslaughter situation, but when we start differentiating in victimless crimes, I start to feel my rights getting stepped on.

Re:Potential Redistributable Files

[NemosomeN]

You overlook the fact that this "P2P Ready file" is legel to make for personal use (but this is not the argument I'm making, so don't nitpick). The reason for the difference is that the law wasn't written with that scenario in mind. Copyright infringement laws were written to target large operations conterfeiting copyrighted material.

Re:Potential Redistributable Files

[cpt kangarooski]

WHat happens if you download a copy of something you already own for purposes of backing up the material?

Downloading material is a grey area for exactly that reason. They can't know if I actually have a license for the material or not.

No, that's incorrect. Downloading a work, even if you own a copy of that work, is typically going to be a copyright infringement. There is no general purpose exception for 'backups' despite what some people might think. Reproducing a copyrighted work without permission, in an infringing manner, is categorically illegal. There are a few exceptions, but nothing that seems helpful to you.

The most you could argue would be fair use, but I think you would have a difficult time of it. As you do correctly note, the person distributing the work to you is going to probably have an impossible time of it -- though there is no difference in how harshly the two infringements are treated generally. Reproduction is just as bad as distribution, and they have the exact same penalties.

Since it is quite rare for works to be licensed -- books, movies, sound recordings, etc. are NOT licensed to ordinary consumers -- there's no real concern over that.

Rather, the reason for going after uploaders more than downloaders is purely practical. If you take down an uploader, then all the people downloading from him either a) stop downloading, b) find a new source, which will be more crowded now and thus less useful, or c) assume the risk of uploading. Basically it's a 'attack the head of the snake' approach. That's why they went after P2P networks before bothering with users -- if Napster had gone down and had not been replaced, uploaders and downloaders alike would find it difficult to do what they want, reducing the number of infringements. To put it another way, think of killing off pests -- it's laborious to kill each individually, but if you get rid of the food supply, they'll all starve in the end. Also it's easier to find uploaders than downloaders.

There is no legal reason for the different treatment, however, and someday they'll be pursuing downloaders just as vigorously as they do uploaders now.

Re:Potential Redistributable Files

[_KiTA_]

WHat happens if you download a copy of something you already own for purposes of backing up the material?

You're violating the DMCA, get shut off from the Internet, fined a ton of money for copyright violations, and your PC gets taken away as "evidence" for a few years.

Re:Potential Redistributable Files

[Anonymous Coward]

You are trying to rationalize laws that are simply the result of corporate pressure. They lobbied harder against file sharing than they did against shoplifting so that is why the punishments differ. It is a new and scary technology and the people in the media spent their college years (if they went) avoiding science classes so they overreact to it. Don't bother trying to analyze it from any economic or ethics perspective.

Re:Potential Redistributable Files

[karnowski]

When using Bittorrent you are actually also distributing as well as downloading it. It's how Bittorrent works. And those that the RIAA/MPAA are prosecuting are those that are sharing the file. They are not going after people who have only downloaded it without sharing it (technically it's very difficult for them to find the download-only people).

So the Shoplifter analogy is wrong. A better analogy would be a person who is standing in a public space and giving out copies of a DVD. The (almost) perfect real-life analogy is the comparison with the people that sell the camcordered copies of movies.

Re:Potential Redistributable Files

[StrongAxe]

Perhaps a paralell is in order. Lets take the case of the shoplifter. If he takes a copy of a DVD from Wal Mart he is punished for it if caught. Should Wal Mart ALSO be punished for failing to secure and protect copywritten materials?

No, because WalMart bought the DVD from the distributor - and this includes an implicit license to the information on that one copy. What they do with that copy (watch it, sell it, give it away, allow it to be stolen, make an wall hanging, etc.) is totally at their discretion.

Re:Potential Redistributable Files

[Anonymous Coward]

The key is stored in a portion of the DVD that most (all?) burners can't write to. So a playing DVD player would basically have to run DeCSS on the VOBs anyway.

Re:Potential Redistributable Files

[pintpusher]

You're dealing with 2 different crimes with two different sets of laws governing their respective penalties. They have different statutes regarding jail times, fines etc.

I'm not saying its RIGHT that they are different levels of punishment, but that the difference exists by virtue of the fact that they are different crimes... capeche?

Re:Potential Redistributable Files

[mikael]

It's also illegal to import DVD's from the USA into France.

TUESDAY DECEMBER 19 2000
French ban on American DVDs

FROM ADAM SAGE IN PARIS

FRENCH authorities have made another attempt to roll back the tide of cultural globalization by banning Digital Video Discs (DVDs) imported from North America.

Specialists say that the Government is facing certain defeat, with fans able to order DVDs of American films via the Internet.

Catherine Tasca, the Culture Minister, has signed a decree making it illegal to import and sell DVDs from the USA or Canada for the six-month period that precedes their release on the French cinema circuit. Supporters of the ban say it will protect French movie houses threatened by the rising number of film-lovers who stay at home to watch the high quality recordings.

They point out that under the present law, DVD versions of American films often go on sale in shops in France before they reach the big screen.

DVDs are selling faster in France than in any other European country, with the total set to reach 13 million this year. Many are imported directly from America before they are officially distributed.

In an editorial yesterday, the newspaper Libération said that fans could order DVDs from the Internet and receive them by post. Soon they would be able to download DVDs directly from the Web, it said. "It is vain to think, as Mme Tasca does, that we can put up regulatory Maginot lines to cut up an increasingly global market."

Re:Potential Redistributable Files

[waxxie]

Well said.

If only the old computer-illiterate judges and old cronies would use the same logic. But alas greed is the deciding factor. BTW, Corporations run the government and pretty much the world. 1984!!

Re:Potential Redistributable Files

[PoopJuggler]

Are you suggesting that we invade Home Depot and confiscate all their screwdrivers?

Re:Potential Redistributable Files

[Chyeld]

Disclaimer: This is an explaination of what I beleive the thought process behind the penalties to be. It is not a explaination of my own opinions.

The real answer is the downloader is punished more harshly than the theif because the downloader enables and encorages more damage than the theif.

You walking into a store and filching a dvd doesn't enable the next guy to do it. And the only loss involved is the dvd. In order to do more damage, you would have to commit another crime.

You downloading on a P2P not only steals a 'sale' but it also enables many other people to steal one as well.

In addition to all of this, the relative ease in which people can steal via the internet vs. a properly secured store, means that the deterents involved need to be greater. People are far less likely to try to steal a DVD from Best Buy than they are to download a moive from the internet. There are only two ways to resolve that issue from the legal standpoint, make it harder to do or make it scarier to do. And the first option is almost impossible without a huge revolution in the structuring of the internet.

Re:Potential Redistributable Files

[zod1025]

Wow, what complete tool of corporate greed.

a) show me where in the Law it says that I can not do as I please with copyrighted material in my possession *for my own private use*.

b) books, movies, sound recordings... that IS what we're talking about here, and there IS real concern over that (ie, fair and private use is being threatened). You are correct, they are NOT normally licensed to ordinary customers. Instead, copies are purchased, and once obtained posession alone is proof of the right to use the work (see, for example, my large bookshelf full of books - how do you know I didn't magically duplicate them from someone else's copy in my SuperDuplicator 2000 drive?)

c) there IS a legal reason for different treatment - that is, Copyright Law is about Distribution rights, and Copyright Infringements are about violations of the right to distribute. Acquisition of the works is not covered by copyright infringement - just infringing distribution. *This* is why they go after uploaders - they have an actual legal case against them - and why they don't go after the downloaders.

I believe it is YOU that is incorrect, and I believe it is YOU that has completely bent over for some faceless corporate entity.

Re:Potential Redistributable Files

[absolutinsanity1]

I have a question I hope the smart folks here can help me out with. Say its possible to (just humor me) write a virtually unlimited number of files to your HDD. The first file will be a 0. The second file will be a 1, the third a 01, the fouth a 10, the fifth a 11, the sixth a 001.....etc etc. EVENTUALLY you will have a file that IS the video file in question. (In fact, wouldn't you have EVERY video, music, picture, etc file that ever could be in existance?) Now that I have the video file on my hdd...do I own it? What if I share it? Hopefully someone can help me out with this....dang questions keep me up at night ;)

Re:Potential Redistributable Files

[Not_Wiggins]

Just to add to what the parent has stated...

IANAL, either... but, I thought the RIAA/MPAA was going after people who distribute materials, not downloaders. The DMCA (http: //www.copyright.gov/legislation/dmca.pdf), makes the point that copying isn't necessarily a violation of fair use. This is why the suits have been filed against people providing the content and not the people downloading it... because downloading is really just another form of copying (which, since you have the rights to make archival backups, is acceptable!).

This is why there different definitions of the criminal act in file sharing: there's a distinction between someone obtaining the content illegally and someone providing it illegally.

Eventually they may go after the downloaders as well, but I would assume that the penalties would be similar to shoplifting. Of course, if you've shop-lifted thousands of dollars of merchandise (as would be overly easy to do with a computer download), then you'll face stiffer penalties simply because of the general volume of the theft.

Re:Potential Redistributable Files

[lukewarmfusion]

"...have I stolen the costs that it took to make the CD, or the suggested MSRP? Why does the RIAA assume that the MSRP is what is stolen?"

You are stealing the cost that it took to create the product overall - recording, production, marketing, packaging, distribution, etc.

I think that's part of the whole thing. When you steal a chair, there is a value to the tangible materials involved. Sure, there's value of time (design, development, production). If you steal a CD, you're also stealing a chunk of money that should be going to cover much more than the physical production of the CD.

Re:Potential Redistributable Files

[Anonymous Coward]

That's like punishing a murderer for future murders they were thinking about committing.

That's a big part of the reason the death penalty is used. If somebody has no likeliehood of rehabilitation, then kill them. Or if they're more likely to steal again, lock them up longer. It's very common.

Re:Potential Redistributable Files

[klparrot]

What they do with that copy (watch it, sell it, give it away, allow it to be stolen, make an wall hanging, etc.) is totally at their discretion.

So you're saying I can purchase a DVD, then put it online to have the content stolen, and that's fine?

Re:Potential Redistributable Files

[fatcatman]

Intent is important in a murder/manslaughter situation

How can there be an intent to commit manslaughter?

Re:Potential Redistributable Files

[mobby_6kl]

> if I steal a car from GM's factory, how much have I stolen, the retail or wholesale value of the vehicle?

Retail value IMO, because otherwise it would have been sold at that price. If it's gone, the dealers can't sell it and nobody sees any money at all. If somebody steals a painting, do you think the value stolen is that of the canvas+paint?

Re:Potential Redistributable Files

[St. Arbirix]

Your realize that it is verging on trivial to pull playable files from a DVD?

Moreover those files are of much higher quality.

Yes and no. DVD ripping is insanely easy, but the shows I download come in high-definition. DVDs can't compete with the quality so why should I buy them?

Re:Potential Redistributable Files

[Anonymous Coward]

There can't be, that is why it is important, he was being brief but meant in the situation where one must differentiate betwix manslaughter and murder.

Re:Potential Redistributable Files

[westlake]

If the purpose of copyright is to control the copying and we are to presume that any individual downloading is the one doing the actual copying, then it is clear that the person hosting the file is not at fault. If the person hosting the file is the one doing the copying then the person receiving the file is not at fault.

The person hosting the file needs a license to distribute and a master copy licensed for distribution, neither of which are sold to consumers through retail outlets.

The person receiving the file knows or should know that he is not acquiring a copy through legitimate channels.

Re:Potential Redistributable Files

[cpt kangarooski]

Actually, like my .sig says, I am a lawyer. I'm licensed to practice in Massachusetts, and copyright is my specialty. But as the .sig also says, I'm not your lawyer, and I do not provide legal advice or enter into attorney-client relationships on /. -- if you want legal advice, go to a lawyer licensed in your jurisdiction who is willing to provide it.

With that clarified and out of the way...

I thought the RIAA/MPAA was going after people who distribute materials, not downloaders

Yes, but only for practical reasons. There is no legal difficulty in going after downloaders. They're just not perceived as being as big of a problem, basically.

The DMCA (http: //www.copyright.gov/legislation/dmca.pdf), makes the point that copying isn't necessarily a violation of fair use.

I don't recall that it says that, but then, that's honestly a nonsensical statement right there.

DMCA is really just a bunch of amendments to copyright law as a whole, virtually all of which is in Title 17 of the US Code. Google for 17 USC and you'll find the entire thing, and can read through it all, with the sections added or changed by the DMCA inserted as appropriate.

But basically, 17 USC 106 sets forth the exclusive rights that compromise copyright, and reproduction is one of them, at 106(1). Distribution is another one, of equal importance, at 106(3).

downloading is really just another form of copying

I would use the term 'reproduction' instead of 'copying' for preference, but yeah, that's basically right. That's why it's typically illegal to reproduce copyrighted works without authorization.

which, since you have the rights to make archival backups, is acceptable!

Sorry, but that's wrong. There is no general purpose exception for backups. But please feel free to find a section of the law that supports your claim. Don't feel bad though -- a lot of people make this mistake. Just be sure to not keep on making it.

This is why there different definitions of the criminal act in file sharing: there's a distinction between someone obtaining the content illegally and someone providing it illegally.

Criminal copyright infringement doesn't make a distinction between reproduction and distribution, actually. You can see the relevant section 17 USC 506.

Plus, we're mostly talking about civil actions, not criminal prosecutions.

Eventually they may go after the downloaders as well, but I would assume that the penalties would be similar to shoplifting.

Nope. Read 17 USC 106(1),(3), then 501, then 504(a),(c). The penalties are exactly the same for uploading and downloading, and are pretty high, really.

Honestly guy -- if you're gonna talk about the law, you'd do better if you actually read it. If there's one thing that bugs the hell out of me, it's people that just make up what they think the law is, or accept that because some guy said the law was such a thing, that it must be so, and who don't check for themselves. I've provided you with citations -- go check up and correct your position accordingly.

Re:Potential Redistributable Files

[ShamusYoung]

Since when is the potential to commit a crime also a crime?

I agree with this in principal, but in reality it is very easy to see the difference between someone who has a couple of ounces of as opposed to the guy who has a whole truckload of the stuff.

Distributing something like heroin is hardly a "victimless crime", and I'd rather they go after those selling the drug than rounding up each and every addict and filling up the prisons with them. Go after the big fish, and it will cut off the supply to the little fish.

Re:Potential Redistributable Files

[killtherat]

Sounds like another group of people trying to make alternatives to their products illegal rather then reviewing obviously bad business strategies.

Why doesn't this surprise me any more?

Re:Potential Redistributable Files

[Zenaku]

I just have to take issue with the whole "stolen sale" thing. It's the most completely unfounded argument that copyright holders make to build a case for the immense damages they claim to be suffering. Suppose an infringer can download a movie at no cost, and does so. That fact does not logically imply that had a free download been unavailable, he would have shelled out 20 bucks for the DVD. More than likely, he would just not watch the film. People don't automatically buy things just because they can't get them for free. By the "stolen sale" philosophy, I should be buying a luxury yacht right now. I would totally take a free yacht if one was available to me, so since there isn't a free one around, I'm certain to buy one, right?

Re:Potential Redistributable Files

[duffbeer703]

And of course all of this is absurd. Rapists face lesser penalties than DVD downloaders.

Re:Potential Redistributable Files

[Anonymous Coward]

How about intellectual property, have I stolen the costs that it took to make the CD, or the suggested MSRP? Why does the RIAA assume that the MSRP is what is stolen?

Legally, copyright infringement is not stealing. It's copyright infringement. Personally I think copyright infringement (when done for personal use only) should carry a lesser penalty than stealing a copy, because no one has lost any money. If you download a song illegaly, all you have done is possibly eliminate a potential sale. If you steal a physical copy, there is a real cost in production and distribution of that particular copy that has been lost.

Re:Potential Redistributable Files

[Macadamizer]

"a) show me where in the Law it says that I can not do as I please with copyrighted material in my possession *for my own private use*."

See 17 USC 106 et seq. There is no general rule in copyright law that allows you to "do what you please" for "your own private use." You may think there is, you may want there to be, you may feel like there should be, but there isn't. There are a few exceptions, like fair use (section 107), making backup copies for software (section 117), and so on, but no law that says "if you are only doing it for your own private use, it's cool."

"You are correct, they are NOT normally licensed to ordinary customers. Instead, copies are purchased, and once obtained posession alone is proof of the right to use the work"

Right to use is the correct term -- but not the right to reproduce, at a minimum, and probably not the right to do any of the other 106 rights either (except the right to distribute the particular copy you purchases).

"there IS a legal reason for different treatment - that is, Copyright Law is about Distribution rights, and Copyright Infringements are about violations of the right to distribute. Acquisition of the works is not covered by copyright infringement - just infringing distribution."

Bull. Copyright law is about protecting the economic interests of the copyright owner -- see Campbell v. Acuff-Rose music for a discussion on fair use rights and the protection of economic interests. Acquisition of the work may very well be copyright infringement -- think about it, if an artist places a photo that they have copyrighed on their website for you to view, but does not give you the right to copy it, but you do anyway, you have just infringed on the artist's rights to control his work, and you have infringed his copyright. It ain't just about distribution.

"I believe it is YOU that is incorrect, and I believe it is YOU that has completely bent over for some faceless corporate entity."

You can believe what you want. I believe that you, and most of the other folks on /. can't, or don't, want to hear the truth. You can try to change the laws, but the laws are what they are, until they are changed, no matter how much you bitch about it, and no matter how many times you tell lawyers -- who know what the law actually is -- that they are "bent over" for the machine...

Re:Potential Redistributable Files

[dirk]

What you have stolen is defined by the worth of the object. And worth is defined by how much someone is willing to pay for it. If we assume that a new care is only worth the cost of materials, then the Mona Lisa is worth nothing, because that is about what is would cost to reproduce even new. An antique may have cost 30 cents to make in 1850, but is that all it is worth now? Certainly not.

A CD sells for $15 or so. Yes, the material may only be worth $2, but the worth is $15, because that is what people will pay for it. Saying a CD isn't worht $15 is obviously wrong, because many people (in fact, I would guess most people) will pay that for it, and that is how you measure worth.

Re:Potential Redistributable Files

[cpt kangarooski]

a) show me where in the Law it says that I can not do as I please with copyrighted material in my possession *for my own private use*.

17 USC 106(1)-(3), 106A, 602, 1201, and 1202 immediately spring to mind. If I took a minute to think about it, I could probably come up with some others.

In some cases there are exceptions, and in some cases those exceptions may hinge on whether or not the otherwise infringing activity remains wholly private, but they don't always. Some infringements, even if done in conjunction with copies in your possession and for your own private use are still infringing. At that point we aren't talking about whether it's illegal or not, because it is; rather, we're only talking about whether or not you'll get caught.

once obtained posession alone is proof of the right to use the work

That's really an overbroad statement. If you obtain possession of child porn, do you have a right to use it? You're probably going to find that you don't.

Copyright Law is about Distribution rights, and Copyright Infringements are about violations of the right to distribute

That's dead wrong. 17 USC 106 is the heart of the copyright law, and it sets forth six equal exclusive rights. ONE of those rights is distribution. But another is reproduction. Copyright law is about both, and more besides. Copyright infringements are defined at 17 USC 501 as being infringements as to ANY of those rights.

I strongly encourage you to read the sections I'm citing you, to check for yourself so that you don't make such foolish statements in the future. I love policy arguments, and discussions about where we should go with copyright, but the law now is what it is now, and there's really not anywhere near enough wiggle room for statements such as yours.

So go check. It's easy to do.

Acquisition of the works is not covered by copyright infringement

True, but reproduction is. If your acquisition involved reproduction, then that's infringing, all else being equal. With regards to downloading, it necessarily involves reproduction.

Your argument doesn't work with regards to computers, because computers reproduce stuff constantly, at a very low level, just to function. If you were talking about picking up a copy of something on the street, and holding it in your hand, then you'd have a more valid point.

Re:Potential Redistributable Files

[Macadamizer]

"If you download a song illegaly, all you have done is possibly eliminate a potential sale.?"

But isn't that a real cost as well? It may be less that, say, a retail cost, but it does have a cost -- it's not zero. So when you have illegally downloaded a song, you have stolen something -- the value of not only a potential sale to you, but to everyone who then shares from you. You have stolen something of economic value, and that's theft, period.

It may be complicated to determine just how much that economic loss is, but it sure isn't zero.

Your analogy is flawed in another way to -- when you talk about the "real cost," you fail to include "lost profits" -- those profits are also stolen when a "tangible" item is stolen. Whin an intangible object, maybe all you have stolen is the lost profits -- but again, it's stealing nonetheless.

Re:Potential Redistributable Files

[abbamouse]

Actually the reason they focus on retail value is that unlawfully copying more than $1000 retail value is necessary to trigger the criminal penalties of the No Electronic Theft Act. The law mandates retail value where such data exists, though courts can use "street value" for unreleased content, etc.

Re:Potential Redistributable Files

[pintpusher]

Its a matter of priorities. Law enforcement has to protect my money above all. Once they get that right, then they can worry about rape and violence and all that other petty shit.

Corporate profits supersede all other considerations.

Re:Potential Redistributable Files

[Chyeld]

I used to live in the same mind space. However as I went along life and learned to realize the difference between the ideals I believed in and the reality which is the world, I came to the discovery that it doesn't matter if you would or would not have purchased it if you hadn't stolen it.

What matters is that you stole it.

Once you've taken the leap from choosing not to have a copy in your possession to having a copy you've left the area where you can complain about the price.

If you were to attempt to argue that you shouldn't be held accountable simply because you wouldn't have 'normally' purchased a copy anyway, then the logical conclusion is that no one would need to pay for anything. After all, why would I pay for something if I could get it for free? And why would anyone pay me for anything if THEY could get it for free?

There are models of government that have and still are attempting that sort of life. It's called Communisim. I'm not part of the generation which beleives that particular word is an evil one, but I do have a healthy suspision when someone raised in a capitalist society starts espousing it's philosophies. That usually doesn't mean that they actually beleive in it, but that they think they should reap all the benefits to such a society while still avoiding any of the negatives of it. Like the ability to own their own things.

Re:Potential Redistributable Files

[kelnos]

Uh, where did you come up with that idea? If you rip the DVD and put it online for the content to be "stolen" as you say, then you're committing copyright infringement by making and distributing an unauthorised copy. COPY, get it?

If you leave the DVD itself out on a table in a coffee shop for someone else to steal, that's fine. Though, because of braindead laws like the DMCA, you're not legally allowed to make a backup of it.

Re:Potential Redistributable Files

[Not_Wiggins]

Given you are a lawyer and I am not, I'll bow to your expertise over my arm-chair knowledge. What I've put out there was from reading opinions on the topic, not the law itself.

Now, given that, I did go back to the document I pseudo-linked to to find the sections that gave me the opinion I stated. Given it is just a summary of the DMCA and not the text of the DMCA itself, I'll qualify my statements as saying it isn't going to be from as authoritative a source as you have available to you. Also, please pre-forgive the use of "copying" over "reproduction," as they seem prefer that word in the pdf.

From the pdf (starting bottom of page 3):

Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of of a copyrighted work. "Copying" is used in this context as a short-hand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act. Consequently, a technological measure that prevents unauthorized distribution or public performance of a work would fall in this second category. ... As to the act of circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second. This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying.

To me, this states that "copying" isn't a violation of the copyright when the copying of work may be fair use under appropriate circumstances.

Where I'd need your guidance in getting the correct answer is in asking: is making an archival backup of material you've licensed a violation of the copyright? Is it illegal for me to make an archival copy of a DVD I bought in the store?

Depending on your answer to that is where I'd have to follow up and ask: since downloading of material is using an electronic means of "copying," if I own a license to the material I'm "copying," is it really a violation of the law? Hence, is the act of downloading copyrighted materials really infringement if I already have the right to access that material?
It seems clear that making a copy and distributing it is always a violation. But just because I downloaded it (instead of making the archival copy from my own disc) isn't necessarily breaking the law... or, is it?

Re:Potential Redistributable Files

[zcat_NZ]

That's the problem with the law. Everybody says "this is common-sense; this is fair; this is what I do, therefore it must be what the law says" and when you tell them they're wrong they don't believe you. Most people in NZ think they have the legal right to rip their own CD's to play on their computer or iPod. They don't, and I'd like to see the law changed but since everybody does it and nobody ever gets arrested for it people won't even believe that it's actually NOT ALLOWED under the law.

What you need is your own website where you can set people right on copyright..

I know of another law-type person (paralegal, actually) who got fed up with arguing about copyright, GPL, etc.. on slashdot and set up her own website to get away from it. Pamela Jones; you might have heard of her :)

Re:Potential Redistributable Files

[jabuzz]

Who said *anything* about ripping? If I insert a DVD that I have purchased into the DVD drive on my server that just so happens to have a some sort of network driver thingy that lets me view my DVD in the living room via my networked media centre, but I have failed to secure my network properly so anyone else connected to the internet can also do the same, where is the copying and where is the deliberate distribution?

Re:Potential Redistributable Files

[Anonymous Coward]

Sorry, but that's wrong. There is no general purpose exception for backups.

And THIS is whats wrong with copyright law. By law, anything we do with anything copyrighted is "infringement", and can be taken to court. Yes, you too can be sued for buying a copy of Brittney Spears' latest album, dropping it in your cd player and having yourself a listen!

But wait! There is a warm fuzzy cloud here to save you, and it's called "Fair Use". Is the "ephemeral" digital copy made by the cd player when you hit play "Fair Use"? Maaaaaaybe. Maaaaaaaaybe not. YOU DON'T KNOW! (was that quote fair use? Who knows! I hope they don't sue me to find out!) Not until someone gets sued for it and a court of law sets precedent one way or another. And then like the oft-threatened Betamax case or the somewhat recent case ruling that music samples must be cleared even if they aren't recognizable or distinguishable, you still don't know, since at any time someone else could sue you anyway in hopes of convincing the court that the old precedent doesn't apply anymore.

Re:Potential Redistributable Files

[Anonymous Coward]

You did notice that the article isn't talking about penalties for downloading, but for uploading.

Re:Potential Redistributable Files

[Lawrence_Bird]

There are really two issues with the 'lost' sale. There
is the 'lost' sale that is simply the theft of the item.
Then there is the 'lost' sale as reported as slippage on
a corporate financial statement. I agree with the first,
but disagree with the latter for the reasons mentioned
earlier - the vast majority of these downloads would
never have been purchased, and there is no physical item
which has gone missing - in a sense they are 'virtual'
sales.

I also think the shoplifter and downloader should be treated
identically until it can be shown that the downloader in
fact redistibuted the item. And proof, not heresay. Using
P2P software to download does not guaranty that you also
shared, there are afterall many freeloaders.

What I do not know is how the legal system treats the
case of a shoplifter who steals an item and then duplicates
said item and redistributes those identical copies for free.

The p2p filesharer should be dealt with in the same manner
as the legal system would treat the above.

Re:Potential Redistributable Files

[Zenaku]

I'm not making any statement about the morality of downloading the file, or saying that everything should be free.

I'm simply tired of the constantly repeated argument that the act of downloading the file is depriving someone of a sale. It simply isn't.

Both physical theft and downloading a copyrighted file without compensation may be crimes, but in the former the damages are measurable and known. In the latter the damages an unmeasurable fraction of that known amount. (Meaning it can only be estimated if you know how many of the downloaders would have paid for the file if they were unable to download it).

Because the damages cannot be measured in the same way, well. . . that's what makes them different crimes! Theft vs. Copyright Violation. I don't really have a big opinion on which should be regarded as deserving the more severe penalty, but the "stolen sale" analogy should be left out of the discussion. It it just bad logic.

Re:Potential Redistributable Files

[Luthair]

I believe he's saying steal it when the factory is still in possession. Before its left the factory I would imagine the factory would only be able to get what they would have otherwise sold it to a dealers for, so not MSRP.

Re:Potential Redistributable Files

[zod1025]

I just looked at the statutes myself. You are correct, 106.1 says that I do not have the right to reproduce a copyrighted work. Fair use (107) does not give it to me.

So you are not necessarily bent over the machine, and I apologize for my hasty, ad hominem attack.

That said, I am baffled and amazed by the attitudes that yourself and so many others demonstrate - seemingly that laws exist for the private benefit of large corporate interests, and the general public should just roll over. You are taking the easy way out, siding with the "big boys", and by association you trample on my inherent and reasonable freedoms sir and I do not like it.

These copyright statutes could be easily fixed to protect the freedoms of the individual (to protect my innate and default rights to do as I please with myself and my possessions) and still protect commercial interests... namely by fixing 106.1 to say "reproduction for commercial benefit" and the rest would fall into place (private backup copies and the act of downloading would no longer be infringements, while uploading would remain so). A nice, big, fat "this applies to commercial purposes only" sticker is what copyright law needs.

So it remains that I will be a flagrant and willful copyright infringer, although I would challenge anyone to tell me that my actions are unreasonable or morally wrong. It is the law that differs from the norm expected, the law differs from the reality of society... thus, the law must be made right or it must be ignored.

I will continue to make my archival backups, to rip my CDs and delete FBI warnings from my DVDs and then watch them in Linux or in unauthorized regions, download rom files for games I own to play in emulators on reverse-engineered hardware, ignore EULA 'agreements', print out copies of my professionally taken pictures, and share books and music with my friends.

I would recommend that you do the same.

Re:Potential Redistributable Files

[Chyeld]

What I do not know is how the legal system treats the case of a shoplifter who steals an item and then duplicates said item and redistributes those identical copies for free.

The p2p filesharer should be dealt with in the same manner as the legal system would treat the above.

The term for such a person is bootlegger or counterfitter. And actually, from what I can tell, the filesharer is treated exactly the same.

Re:Potential Redistributable Files

[Anonymous Coward]

capeche?

We do. You don't. The fact that there are different laws is obvious and not at issue; indeed, it's the foundation of the article. The point people are discussing is the justifiability of the differences.

Re:Potential Redistributable Files

[wannasleep]

In my opinion, there are a few inaccuracies in your analysis:
1) sharing a file is not theft (at least in the US). It is copyright infringment.
2) Downloading a file IS NOT an offense (yet). However, this has not been tested in court
3) Sharing a file IS an offense (you are distributing the file with no authorization from the copyright holder, hence you are infringing its rights)
4) Walmart has already paid for the material. Hence, if you steal from walmart, walmart loses money, the copyright holder does not. Since walmart loses directly money, this is theft. If you then share, you also commit copyright infringment.

Re:Potential Redistributable Files

[Sven The Space Monke]

Placing a monetary value on the loss of a potential sale is dangerous. For instance, if you assume a value of 1% of the retail sale of the item, then that means when I buy a TV, Sony can say I cost them 1% of the value of one of their TVs if I buy a Toshiba instead. If a reviewer writes a negative review of a car causing people to not want to BUY that car, can the manufacuter sue the reviewer for causing the loss of potential sales? Maybe, if they could prove that a person who may have otherwise bought that car decided not to as a result of the review. But can you REALLY prove that they would have bought the car anyway? Not really, not without some time machine. Assuming an actual monetary value for a lost "potential sale" could have legal ramifications way beyond IP infringement issues.

Re:Potential Redistributable Files

[Chryana]

While the fact that someone who downloads from a P2P network participates in the copyright infringement cannot be denied, shoplifting is much more damaging than "only taking one copy".

Let's say someone shoplifts a dvd from a local store. If this was the only copy of the work that was kept on the shelves, the store owner will think, according to his inventory, that he still offers it for sale. The result is that the work stolen may not be offered for sale in that store for months. Nobody buys something that is not for sale. Therefore, many sales of that item will be lost due to one single shoplift.

The discrepancy between stealing and filesharing is way too high. Keep in mind that more people practice filesharing in the United States than the number of people who voted in the 2000 elections. It does not make it right to do copyright infringement, but when large numbers of otherwise honest citizens with no criminal records are called thieves and pirates(including minors and elders), one ought to see if a change in the laws is in order.

Re:Potential Redistributable Files

[cortana]

Great link, thanks for posting it.

Re:Potential Redistributable Files

[Macadamizer]

"For instance, if you assume a value of 1% of the retail sale of the item, then that means when I buy a TV, Sony can say I cost them 1% of the value of one of their TVs if I buy a Toshiba instead."

But that's not an equivalent analogy, because there is no direct connection between you buying a Toshiba and Sony. A better analogy would if someone stole all of the plans to build a Sony TV, built it, and then gave it to you (or sold it to you for less than buying a Sony form the store) -- that would be a closer analogy, and in that case, Sony probably would be justified in receiving some compensation for their lost sales.

In the P2P world, the industry is selling copies of the latest JLo song -- if you obtain a copy of the latest JLo song from an illegal source, then you obviously "wanted" a copy of the song, and therefore it is reasonable to assume that you are a "lost sale." Now, maybe you weren't 100% sure you would have paid for the song, so we don't value the loss at 100% of its value, but it is a quantifiable loss.

Now, if you stole, say a copy of a Britney Spears song, then of course it would be unreasonable for the owner of the JLo song to see that as a "lost sale," because we have no way of knowing what your intentions were vis-a-vis the JLo song.

"If a reviewer writes a negative review of a car causing people to not want to BUY that car, can the manufacuter sue the reviewer for causing the loss of potential sales? Maybe, if they could prove that a person who may have otherwise bought that car decided not to as a result of the review."

There is a cause of action, tortious interference, that might be applicable in a case like this. And the law doesn't require ironclad, 100% proof in civil cases anyway -- "prepoonderance of the evidence" is the standard -- basically, more likely than not. The dealership doesn't have to prove that he was going to buy the car, only that he was more likely than not giong to buy the car.

Re:Potential Redistributable Files

[Anonymous Coward]

An excellent reason why the **AA should be going after downloaders instead of uploaders. The uploaders are just (intentionally or not) making it available. The downloaders are the ones creating a new "copy" of the content on their own hard drive. In fact, in Bittorrent this is often done explicitly. First a duplicate named, but zeroed out file is created on your hard drive and then all the information is filled in.

Re:Potential Redistributable Files

[Lehk228]

when you rip a DVD the VOB's are decrypted as part of the ripping process

Re:Potential Redistributable Files

[mrjb]

So, by current law, what the downloader should do, in order to decrease his punishment, is steal the DVD as well. Like that he can say, "i had the right to the download cause i already owned the stolen DVD". There won't be a paper trail with the purchase date of the DVD.

Re:Potential Redistributable Files

[Valegor]

If $5,000,000 in stuff is ripped off from Wal Mart every year but they only catch 5 shoplifters are those five liable for $1,000,000 each? Why then are file sharers liable for damages other than those representitive of the fair market value of the files on their systems?

The difference is that the person caught shoplifting is not clicking a button and making additional copied of the items he/she has stollen. They are not giving copies out to other individuals. That is why file sharers are liable for more than a shoplifter would be. They are increasing the amount of the product that is out there, thus taking a larger market share. If three people download from them they are then responsible for four copies of the item instead of just one. That is the difference that most people don't seem to see when discussing this subject.

Re:Potential Redistributable Files

[Lehk228]

The person receiving the file knows or should know that he is not acquiring a copy through legitimate channels.

suprisingly many still do not know

Re:Potential Redistributable Files

[cpt kangarooski]

What I've put out there was from reading opinions on the topic, not the law itself.

Sure, but the basic provisions of the law -- 106, 501, 504, the ever-crucial definitions in 101 -- are not that difficult. I don't think you'd find them difficult, and they are the primary sources here, along with the caselaw, which is also not that difficult.

To me, this states that "copying" isn't a violation of the copyright when the copying of work may be fair use under appropriate circumstances.


Basically. Again, you'd've found this easier with the statutes. The way it works is like this:

Everything is legal
Except what's exclusive to the copyright holder per 106.
Except there are limits to what is exclusive, such as fair use, which is in 107.

So, two examples of this at work:

First, reading. Reading -- provided it's just reading and there's nothing else at all going on -- is legal under our first precept. We then check to see if it is specifically made illegal under 106. Since it's not one of the enumerated exclusive rights of the copyright holder, we know that it is not illegal. Our analysis can end there -- reading is not a copyright infringement.

Second, reproduction. Reproduction, again, is legal under our first precept. But is it specifically made illegal by 106? It is. One of the exclusive rights is the right to reproduce the work in copies. So reproduction is illegal. But is there an exception to that, which removes some or all reproduction back out of 106? There are many exceptions, but they are not always applicable; various conditions have to be met for various exceptions to apply. One exception is fair use, at 107. When it applies, it takes conduct that 106 made illegal, and makes it legal. When it doesn't apply, it has no effect, and 106 continues to control.

A lot of the law is like this. There are broad pronouncements, dotted with exceptions, which themselves may be subject to exceptions at times. I'd expect that the programmers here could probably deal with it as a set of nested if then statements, except for that fact that a lot of the time things can be fuzzy because the world isn't as quantifiable as what goes on inside a computer.

One other thing:

"Copying" is used in this context as a short-hand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act.

To me, this states that "copying" isn't a violation of the copyright when the copying of work may be fair use under appropriate circumstances.


See, that's why precise terminology is important. When they said 'copying' there, they mean reproduction, the preparation of derivatives, distribution, and certain public performances and displays, since those are the exclusive rights in 106. You basically just mean reproduction, and you're distinguishing it from distribution later on.

Also, any otherwise infringing conduct -- reproduction, distribution, whatever -- can be a fair use. It depends on the specific circumstances involved, but fair use doesn't apply only to one sort of conduct under 106, and it says so explicitly.

Where I'd need your guidance in getting the correct answer is in asking: is making an archival backup of material you've licensed a violation of the copyright?

Depends on the nature of the material. However, do note that licenses with regards to copyrighted works, in the consumer setting, are extremely rare. When you buy a book, or a CD, or a DVD, you are not licensing anything. There is a good argument that even when you buy software, despite the claimed EULA (which some courts may uphold, and others won't) you're not licensing it either.

So I assume you mean, is it infringing to reproduce a work, where you own a lawfully made copy of the work, and the reproduction is intended for backup purposes.

I'd say that it is illegal, except under a few narrow circumstances. It might be a fair use -- but this

Re:Potential Redistributable Files

[Dun Malg]

"If you download a song illegaly, all you have done is possibly eliminate a potential sale.?"

But isn't that a real cost as well? It may be less that, say, a retail cost, but it does have a cost -- it's not zero. So when you have illegally downloaded a song, you have stolen something -- the value of not only a potential sale to you, but to everyone who then shares from you. You have stolen something of economic value, and that's theft, period.

Actually, that's not "theft, period". Theft is depriving someone of real property without compensation*. Copyright infringement is not theft, period. *(certain non-property crimes, e.g. "theft of services", have "theft" in their name, but "theft" alone can only be a property crime.

It may be complicated to determine just how much that economic loss is, but it sure isn't zero.

"Future sales", or "sales that might have been" are worth exactly squat. I can stand in a public place and exhort people to not shop at WalMart all I want and they can't sue me for "lost sales". It is not merely "complicated" to determine what economic loss might result from said copyright infringement, it's impossible. This is why it's sheer folly to attempt to frame the copyright debate in the same terms as property rights. They are unrelated.

Re:Potential Redistributable Files

[cpt kangarooski]

Copyright law is about protecting the economic interests of the copyright owner

Naw. Copyright law is about protecting the public interest in the promotion of the progress of science. It just does that by the means of, among other things, promoting the economic interests of copyright holders, and then not to excess.

Of course, nowadays, copyright law is about appeasing the various industry groups, but that's not the real objective.

no matter how many times you tell lawyers -- who know what the law actually is -- that they are "bent over" for the machine...

Mm. Plus of course, I'm very much in favor of changing the laws. Copyright law as implemented sucks ass. But were the implementation to be significantly changed, I think it would be really beneficial to everyone.

Re:Potential Redistributable Files

[tritonic]

OK, but what if you set your torrents to stop seeding when they reach a ratio of 1:1? Then, you've only added to the swarm (uploaded) the same number of pieces as you've removed from it (by downloading). So you haven't actually made any more copyrighted data available for downloading (although you've made different data available). This might limit your liability - be interesting to know how this would stand up legally.

Re:Potential Redistributable Files

[cpt kangarooski]

By law, anything we do with anything copyrighted is "infringement", and can be taken to court.

That's a bit of an overstatement. Only a few things are infringing, but they're the things that are usually most interesting or desirable to do with them. Still, many important things are not infringing.

Yes, you too can be sued for buying a copy of Brittney Spears' latest album, dropping it in your cd player and having yourself a listen!

Like that. It's very difficult to set up a scenario where you could be successfully sued for doing that.

Maaaaaaybe. Maaaaaaaaybe not. YOU DON'T KNOW!

Heh.

Re:Potential Redistributable Files

[Minna Kirai]

Alice has allready been convicted of the crime of distributing this data. How can they ALSO be guilty?

Or what if I plant a bomb on an airplane, and you detonate it? If you're convicted of the crime, then how can I ALSO be guilty??

(In reality, law enforcement has no problem with the concept that multiple persons may work together to commit a single offense. And with P2p file sharing, that's the usual way it happens)

Re:Potential Redistributable Files

[Macadamizer]

"Naw. Copyright law is about protecting the public interest in the promotion of the progress of science. It just does that by the means of, among other things, promoting the economic interests of copyright holders, and then not to excess."

Agreed. I was just short-cutting to the practical application...

"Mm. Plus of course, I'm very much in favor of changing the laws. Copyright law as implemented sucks ass. But were the implementation to be significantly changed, I think it would be really beneficial to everyone."

I agree that most of the more recent laws are pretty crazy, but a lot of copyright law I agree with.

I would be all for changing some of the copyright laws, especially since copyright is just a hobby for me -- I make my money in patents...

Re:Potential Redistributable Files

[Minna Kirai]

2) Downloading a file IS NOT an offense (yet). However, this has not been tested in court
3) Sharing a file IS an offense

Both of those are completely false. Be careful about posting ignorant anti-facts like those, or Kangarooski will jump all over you.

Neither downloading nor sharing is an offense- but reproduction (copying) is, and since downloading is a form of copying, it's illegal too. (The same way that impaling people isn't specifically illegal, but falls under ordinary murder)

PS. If you were talking about Canadian law only, then you might be correct, but should've specified the non-USA jurisdiction.

Re:Potential Redistributable Files

[cpt kangarooski]

I just looked at the statutes myself. You are correct, 106.1 says that I do not have the right to reproduce a copyrighted work. Fair use (107) does not give it to me.

Without getting into some fine, but important distinctions there, I'd just point out that any otherwise infringing conduct can be a fair use, but is merely not necessarily a fair use. It depends.

So if you rent a movie and reproduce it, that's probably not a fair use. If the movie is on TV, and you videotape it, it probably is a fair use. They're both reproductions, but the circumstances are different. And in both cases, the right set of circumstances could result in the former being fair and the latter not. It always depends -- that's the thing to remember with fair use.

Other exceptions are usually much more clear, but also quite narrow.

That said, I am baffled and amazed by the attitudes that yourself and so many others demonstrate - seemingly that laws exist for the private benefit of large corporate interests, and the general public should just roll over. You are taking the easy way out, siding with the "big boys", and by association you trample on my inherent and reasonable freedoms sir and I do not like it.

I don't think you've quite grasped my position.

When there is a discussion about what the law currently is, then I won't lie about it. I'll look at the law and take it as I find it.

This doesn't mean that I like it, it just means that I am not going to lie to you about what the law is right this second, just because we'd all prefer it to be something else.

I think copyright law should absolutely serve the public interest, and that it is currently almost entirely garbage. I think that we seriously need to reform copyright law, starting with first principles, and that substantial public-minded reforms are needed (probably to lesser extents, mind) in other areas such as patent, trademark, and trade secret.

Still, those sorts of reforms haven't happened now, and it would be improper to pretend that they have. Plus, I feel that if people are fully informed as to just how awful the law is right now, and how much it fails to accord itself with ordinary expectations, there will be a better chance of fixing it.

A nice, big, fat "this applies to commercial purposes only" sticker is what copyright law needs.

Yeah, actually one of my proposed reforms -- though I admit it feels dangerously overpowered, not that I can think of a good middle ground -- is to make nonactionable or noninfringing any otherwise infringing activity by natural persons, if not for commercial purposes.

But since things are very dismal right now, and the law is so in the hands of the various copyright industries, I don't expect to see this anytime soon, if at all.

I would challenge anyone to tell me that my actions are unreasonable or morally wrong

Generally, I probably wouldn't condemn you. We seem to be on the same page. Of course, I think that lawlessness is a bad thing, even where justified, because it can result in people ignoring laws that are proper and just. Reform is a better solution in this respect than ignoring the law. C.f. prohibition and how comparatively harmless drinking also lent great power to organized crime.

Re:Potential Redistributable Files

[matman]

Great, so the people who have paid nothing for the specific "copy" that you have "stolen" can sue you for millions, but the people who have actually paid something for the particular copy that you have stolen can sue you for thousands.

Re:Potential Redistributable Files

[Macadamizer]

"Actually, that's not "theft, period". Theft is depriving someone of real property without compensation*. Copyright infringement is not theft, period. *(certain non-property crimes, e.g. "theft of services", have "theft" in their name, but "theft" alone can only be a property crime."

Where did you get your JD from? If I hack into your bank account and move a few bits from your account to mine, I haven't taken anything tangible, but I would bet you would think that was theft.

And what's this about compensation? If you take something, it's still theft, even if you later pay for it.

""Future sales", or "sales that might have been" are worth exactly squat."

I guess you've never studied contract law...

"This is why it's sheer folly to attempt to frame the copyright debate in the same terms as property rights. They are unrelated."

No, they are not. Copyright is a property right.

Re:Potential Redistributable Files

[ssimontis]

If your not downloading movies, you really have nothing to worry about. I really don't care about the penalties because I don't download movies in the first place.

Re:Potential Redistributable Files

[GimmeFuel]

Go after the big fish, and it will cut off the supply to the little fish.

Actually, go after the big fish, and more big fish will appear to replace them. If there's a demand, someone will find a way to supply it. Period.

In Why Our Drug Laws have Failed and What We Can Do About It, Superior Court Judge James P. Gray quotes a letter from a fellow judge about arresting every drug dealer they could find in one city (Phoenix), to see how quickly the market filled the gap. They bought drugs from every single dealer they could find, and arrested all 76 they found on one night. Can you guess what happened?

"For a week it was impossible to buy drugs on the streets of Phoenix. The single local drug treatment program was swamped. Addicts who could not get treatment left town to score elsewhere. But on the eighth day, new street pushers began to appear in the city, and before a month had elapsed, it was business-as-usual. We had spent tens of thousands of federal tax dollars, and sent scores of pushers to prison, but there was no lasting effect on the availability or price of illicit drugs."

Arresting the users won't work. Arresting the dealers won't work either. What's left?

The only rational option is legalization. Without an artificially constricted supply, drugs would no longer be insanely profitable, meaning gangs wouldn't be killing each other over drug distribution territories anymore and dealers wouldn't be trying to get people hooked. With drugs subject to the Pure Food and Drug Act of 1906, manufacturers would have to label their products and say how much of what was in it, meaning accidental overdoses would virtually disappear. Drugs wouldn't have to be smuggled in compact, more addictive form anymore, so we'd go back to having cocaine be an ingredient in soft drinks rather than a powder you snort.

And before you reply that legalization would make more people addicts...

Before the early part of the 20th Century, a 12 year old girl could walk into a general store and walk out with as much heroine, cocaine and morphine as she could carry in one arm and a 12-gauge shotgun in the other. If drug legalization would cause widespread addiction now, why didn't it back then?

Re:Potential Redistributable Files

[cpt kangarooski]

I make my money in patents

Well, I work with copyrights, but I can think of a few useful reforms for patents:

I think we can safely ditch business method and software method patents since those fields have done, and likely will do great without them. They're just drags on the public interest.

Examiners need to do a better job; this could be a money issue or a time issue, but whatever the problem these days, they need to do more work.

Damages could probably stand to be reduced a bit -- not to how low they used to be, but we've overcorrected in the past couple of decades from the time when the only patents not invalid were the ones that hadn't been litigated yet.

Already examinable prior art ought to be useable by third parties that are trying to demonstrate invalidity; the PTO won't necessarily do a good enough job IMO. But there would have to be a colorable argument; I'm not suggesting repeatedly wasting the patent holder's time.

Best mode disclosures ought to extend to multiple best modes, known throughout the life of the patent, including by licensees, employers, etc. Right now people put any old crap in there, and it's decades old by the time anyone else can really use it.

I don't know if the PTO gives patent holders reminders for maintenance fees and such -- they don't in trademarks -- but would it be so goddamn hard?

Patents really ought to be published immediately upon filing, and updated as the file is updated. Let applicants decide whether they want to go for trade secrets or patents before filing, not later on.

People who specialize in the field could probably think of some other useful reforms -- perhaps some more important ones. I try to avoid patents if possible since I can't practice there, but these are things that seemed to be good ideas.

Re:Potential Redistributable Files

[argel]

Sorry, but that's wrong. There is no general purpose exception for backups. But please feel free to find a section of the law that supports your claim. Don't feel bad though -- a lot of people make this mistake. Just be sure to not keep on making it.

I thought the Berne Convention allowed for backups? Or does the DMCA trump this? If so then is this a gray area for the courts to decide (CD/DVD rot sure makes for a compelling argument)?

Re:Potential Redistributable Files

[bzipitidoo]

Sometimes I wish they could enforce these laws. If half the nation got slapped with fines and jail time for doing something that most people think is legal but technically isn't, those laws would be repealed within the day.

Just about everyone could be convicted of something. There are so many laws. And so many of those laws are too broad. Some laws, such as "disturbing the peace" and "reckless driving", are catchall sorts so police have a legit reason to deal with any possible situation. They could be abused to yank anyone off the street but they're not meant to be interpreted to such loose extremes and then rigorously enforced. Gets dangerous when people forget the original spirit of that sort of law. Watch out for gung-ho rookie cops all aglow with righteous fervor, anxious to try using a pair of handcuffs for real for the first time.

Re:Potential Redistributable Files

[Lawrence_Bird]

but don't both a bootlegger and counterfitter attempt to
profit from their deed? A filesharer does not.

Re:Potential Redistributable Files

[DarkOx]

"What then can Bob, Berry, and Bart be charged with? What if they download directly from Alice without sharing themselves? Alice has allready been convicted of the crime of distributing this data. How can they ALSO be guilty?"

Ahh, you walked into it. I have been argueing here forever that the digital world needs no separate laws. We need to stop treating crime diferently be that more or less harshly becase a computer is used. A computer is just a tool, no different then a screw driver in the context of crime. What are they guilty of? They are guilty of recieving stolen property. That base is already covered slapping some imagined copyright infringement on them is dumb.

Re:Potential Redistributable Files

[cpt kangarooski]

I thought the Berne Convention allowed for backups?

No, not really. Art. 9 of the Berne Convention states that copyright holders have the exclusive rights to reproduce. It allows for countries to -- if they see fit -- allow for reproduction of works in certain special cases if it doesn't conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

At any rate, it doesn't matter. The US never should've joined the Berne Convention to begin with, since it is unmitigated crap, but even so, we don't really care about it too much. The law -- 17 USC 104 -- basically states that the US is in perfect compliance with it, according to us, and that it has no force in the US, and only our domestic law applies.

If you want to back up copyrighted works without authorization, you need to be within an applicable exception (e.g. 1008, 117), which may be trickier than it seems at first glance, or you need a successful claim of fair use (see 107) which will not always work.

Of course, Congress could always create a general purpose backup exception, but I'm not holding my breath.

Re:Potential Redistributable Files

[zcat_NZ]

"Selective enforcement"

The more laws like this you have the easier it becomes for the police to stop and arrest any person, any time, for some bullshit thing other than the prefectly legal behaviour that's actually bothering them...

People need to keep a close eye on the proliferation of unenforced or rarely enforced laws, they're the most dangerous kind!!

Re:Potential Redistributable Files

[Anonymous Coward]

you could be successfully sued for doing that.

The key word being "successful". Maybe I could hire a lawyer on contingency for a case like this... lawyer gets his money back via countersuit.

Re:Potential Redistributable Files

[Anonymous Coward]

ask the chinese why they banned british imports of oppium in the 1700's. I can tell you it wasn't because legal drugs made china a better place or simply because they hated britain. it has been proven throughout history that legalised drugs such as cocaine and heronine destroy society not promote it.

Re:Potential Redistributable Files

[Y0tsuya]

There's a reason "future sales" and "sales that might have been" don't make it into corporate earning statements anymore. Because like what your parent post says, they mean didly squat to accountants. Perhaps this is a point that IP lawyers and accountants will spar over. Let the games begin!

Re:Potential Redistributable Files

[jp10558]

My biggest question - Are EULAS Licenses or not?

As many courts seem to recently be upholding them as licenses... But you say they are not.

Can a EULA give you the right to a backup copy of software? I remember back around 1996 or so, when I actually tried to read some EULAs several actually said you could make one copy for backup purposes. If a EULA says that, am I breaking copyright law if I then make a backup?

Re:Potential Redistributable Files

[jp10558]

One more thing - if you, as you state, own your copy of a work, why would it be infringement for you to rent out that CD or DVD or book even? Doesn't right of first sale come in here somewhere? No one is copying it, and you own that copy as a physical item - and no one has started saying you can't rent out other physical items yet...

Re:Potential Redistributable Files

[cpt kangarooski]

My biggest question - Are EULAS Licenses or not?

I think the issue is whether they can be enforced or not. And it varies, depending on what court you're in. The trend is probably in favor of EULAs, but it's by no means certain, and details as to the specific EULA matter.

Can a EULA give you the right to a backup copy of software?

If the copyright holder says that you can do something that's otherwise infringing, the permission they give you makes it not infringing. Think of the GPL: it says that you can do all sorts of things, making those things noninfringing (at least as to the people giving the permission). There are strings attached, but there always are.

if you, as you state, own your copy of a work, why would it be infringement for you to rent out that CD or DVD or book even? Doesn't right of first sale come in here somewhere?

If you rent it, that is a distribution. Distribution is prohibited by 17 USC 106(3). However, there may be an applicable exception. 109 contains many exceptions to this, and basically is the codified form of the first sale doctrine. However, while 109 carves some holes into 106(3), it has some holes itself. It's not an infringement to rent a DVD of a copyrighted movie, but it is an infringement to rent a CD of copyrighted music, because 109 says it doesn't apply to music (17 USC 109(b)(1)(A)).

So yeah, Congress has said that some copies can't be rented out -- basically musical phonorecords (CDs, tapes, vinyl, etc.) and computer software other than, in effect, console games.

It's the kind of law that we can attribute directly to the efforts of the record and software industries, with some counter pressure by the video rental industry and the console sector of the software industry.

Re:Potential Redistributable Files

[StrongAxe]

So you're saying I can purchase a DVD, then put it online to have the content stolen, and that's fine?

No. If somebody steals your DVD, there is still one legitimate copy floating around. (The fact that it's in the wrong hands is of no concern to the MPAA). But if somebody downloads the content, there are now more copies than were originally authorized. A copy has been made without the right to do so. Hence copyright infringement.

Re:Potential Redistributable Files

[Anonymous Coward]

>>which, since you have the rights to make archival backups, is acceptable!

>Sorry, but that's wrong. There is no general purpose exception for backups. But please feel free to find a section of the law that supports your claim. Don't feel bad though -- a lot of people make this mistake. Just be sure to not keep on making it.

Actually, 'computer programs' are the only IP explicitly granted archival rights. One could argue that if you watch DVD's on your computer, then the IP on the DVD is a computer program, as it is a 'set of instructions designed to produce a desired result', ie, seeing the movie on your computer. Most likely not a legitimate argument. Also, there is a provision under fair use for reproducing for educational or critical purposes so long as there is no commercial aspects (profit or loss of) to the reproduction, as well as a section for libraries/archives. One could argue that if you make a backup copy of the work, then technically speaking there is no commercial impact, so long as your archival copy is not accessable by anyone (but then again, who would know unless you told, or happen to get searched for a possible distribution/download of a work), but is still technically against the law. You might also call yourself a library or achive, but I don't know how you could convince a court of this, despite the fact that a lot of people have 'libraries' of books in their homes.

I do wonder, after speed-reading the law, about the explicit legalities of ripping a music CD that you own legally to a MP3 file to load into your own personal/portable MP3 player... does this not also constitute a reproduction, since in most cases most copyrighted music is available for sale in digital file format designed for that device?

I believe the fair-use provision needs revisiting... it should allow for format portability by the owner of the 'copy' into whatever format he/she requires in order for them to use the work that they legally purchased... so long as they retain exclusive access to their reproduction (ie, not available for download, or to their friends, etc.) To deny this implies that because the potential of criminal activity exists, we should limit the rights of the individual to prevent the possibility, and also remove the tools that allow it possible(dvd burners, etc.... DVDxcopy is now extinct...) Since these tools have legitimate uses, in some ways to me it is the same as saying "a car has the legitimate use of transportation, but since someone COULD use one to mow down a crowd of people on a sidewalk (usually a crime), we should impose borderline unreasonable restrictions on the tool/device so this cannot happen."

Sorry for rambling, but this topic does raise my ire. Call your congressmen/representatives, and most of all, vote with your wallet. Stop buying/watching their products, and the industry will listen if enough of us do it. If you think about it, in some ways our desire for movies/music is like an addiction, of say, smoking, and most people can kick that habit.

Re:Potential Redistributable Files

[Ziviyr]

DVDs can't compete with the quality so why should I buy them?

I thought the context was getting DVDs for free...

Re:Potential Redistributable Files

[GimmeFuel]

If there really is a valid reason behind drug prohibition, why did Anslinger and his cronies have to lie so much about the effects of drugs when the government was trying to prohibit them in the early 20th century?

If there was a logical reason for drugs to be illegal, Anslinger would just have to go on the radio and say "Drugs should be illegal. Here's why." Instead, he had to go around spreading FUD like "$drug makes $minority rape white women/become unstoppable and go on a killing spree/etc."

Re:Potential Redistributable Files

[laughingcoyote]

In the -worst case- scenario, the risks of filesharing are economic, and in fact there's not even proof that it does economic damage. In essense, copyright laws create an artificial construct (intellectual property), an artificial problem (copyright infringement), and then uses real enforcement (massive monetary damages). Is it any surprise that people are angered when real lives are being destroyed to protect imaginary property?

Contrast that with speeding. It has real risks (a driver at higher speed is more likely to cause a wreck and will cause a worse one if he or she does), to real people (injury or death, in addition to a potential sharp blow to the checkbook.)

And yet, the penalties for that are so low no one follows the law, and enforcement is so spotty that no one figures it'll happen to them anyway. "Deterrent" penalties don't work. (If this is false, please explain to me how murders continue to occur despite the existence of the death penalty.) The punishment should fit the seriousness of the crime, not how seriously pissed off a CEO somewhere is. Copyright infringement is a nonviolent crime which deprives no one of anything other than an imaginary, artificial "right" of control over every copy of a single thought.

Let's not overdramatize here. If you steal my DVD, I don't have it anymore. If you copy it, I still do. Please don't keep trying to twist words and logic to say that the second is worse then the first.

Re:Potential Redistributable Files

[Anonymous Coward]

alas, the elusive DeCSS trojan, in its natural habitat...

Re:Potential Redistributable Files

[Anonymous Coward]

He means the big fish as in Paramount, Fox, etc.... If there are no Friends or Alias, then no one will be downloading them.

I suppose it'd be like genocide of poppy plants...

Re:Potential Redistributable Files

[cpt kangarooski]

Actually, 'computer programs' are the only IP explicitly granted archival rights.

Well, there is also 1008, but it's really pretty limited -- more than most people think at first glance.

Plus there's some other provisions -- portions of 108 -- but they're just not useful for ordinary people.

Also, there is a provision under fair use for reproducing for educational or critical purposes so long as there is no commercial aspects (profit or loss of) to the reproduction,

You're reading 107 incorrectly. There are no categorical fair uses -- the enumerated ones are just examples of the sorts of things Congress would anticipate would be fair uses. There can be unfair educational or critical uses, however. The key is the four part test. And even there, the fair use can be commercial (as is often the case with parodies) provided that the use is fair as a whole. All commercialism does is make it trickier.

I do wonder, after speed-reading the law, about the explicit legalities of ripping a music CD that you own legally to a MP3 file to load into your own personal/portable MP3 player... does this not also constitute a reproduction, since in most cases most copyrighted music is available for sale in digital file format designed for that device?


That is an infringing reproduction -- that it's available in mp3 format or whatever is irrelevant -- but it is likely saved by fair use under the space shifting doctrine that appeared in the Diamond case, and seems to have been accepted by copyright holders, even if it hasn't shown up much in the courts.

I believe the fair-use provision needs revisiting... it should allow for format portability by the owner of the 'copy' into whatever format he/she requires in order for them to use the work that they legally purchased... so long as they retain exclusive access to their reproduction (ie, not available for download, or to their friends, etc.)

Better to create an exception that does that explicitly; fair use is better off if it's vague, since that way it can adapt to new things.

Re:Potential Redistributable Files

[Cliff.Braun]

Posession with intent to sell is a crime. And the distinction is important, posession doesnt matter, with intent it's a felony. Not quite a victimless crime, but a consensual(sp?) one.

Re:Potential Redistributable Files

[lachlan76]

Really? Think of it this way:

1. Stealing a CD - hurts the retailer, who has to replace the CD, giving a profit to the RIAA, with a gain to me. Rest of society is not affected
2. Downloading it and sharing it on P2P (assuming I wouldn't buy it) - No loss to anyone, gain for me, and a small gain for the rest of society

Personally I would prefer that the law would protect society, and not fine people into bankruptcy because they might have caused a loss to a minority, and a definite gain to the majority.

Re:Potential Redistributable Files

[robertjw]

I agree completely. I find it unbelievable how the attitude about drugs have changed in the last 40 years. I watched a show on history channel about the evolution of drug laws in the US. In the 50s it was accepted for housewives to take a hit of speed before their husbands got home so they could be perky and happy. Now we live in a society where you are a total social outcast if you do meth.

On top of that, I have the theory that most people who would be addicted to drugs already are. How much is the social/legal/moral pressure really stopping people from using drugs. They are everywhere, and I now many many college students that use them recreationally. I think many people in this country would be shocked if they new what little Jenny and Johnny are doing at that fancy school Mom and Dad pay all the money for. Everyone thinks that the drug 'problem' is a low-income inner city thing - but the truth is there are a significant number of kids from happy suburban upbringings that are using that monthly check from Daddy to do some Crack.

Re:Potential Redistributable Files

[Kjella]

So I assume you mean, is it infringing to reproduce a work, where you own a lawfully made copy of the work, and the reproduction is intended for backup purposes.
(...)
And that's basically it. None of the others really apply to you. Your best bet is fair use, and that's always fairly risky.

I've read the section on fair use, and it is still not clear to me how they "add up". It is non-commercial (good), the whole work (bad), permanent (bad). It does reduce the market (usually bad) but only by forcing resales, which is kinda like making you buy a new car because a tire is flat (a piece of plastic is scratched/broken), which would flip it to good. So you're at 2-2 and then what?

Plus, when you throw in DVDs, 1201 (which is part of the DMCA) complicates the situation immensely, mostly against you.

I'll just skip this one on back-ups for now...

Access is NOT one of the rights included in copyright. The only way access can be conditioned -- aside from 1201, which again complicates things beyond where I think we want to go here -- is on ownership of the copy itself.

Actually, to put it more non-lawyerish, 1201 has made access one of the exclusive rights of the copyright holder. And to restate the rights:

When they said 'copying' there, they mean reproduction, the preparation of derivatives, distribution, and certain public performances and displays, since those are the exclusive rights in 106.

1201 also makes 106 an absolute when it comes to reproduction, the preparation of derivatives and distribution. Basicly, your simple list of rules have had an interjection:

Everything is legal
Except what's exclusive to the copyright holder per 106.
If 1201 applies, game over. Nothing below applies.
Except there are limits to what is exclusive, such as fair use, which is in 107.

Re:Potential Redistributable Files

[ShamusYoung]

I'm not against the idea that people should be allwed to do whatever they want to with their bodies, AS LONG AS THEY BEAR RESPOSIBILITY FOR WHAT HAPPENS.

This is completely incompatible with public assistance / welfare. If you have leagal drugs AND a welfare system, then people who work will get taxed so that people who don't work can buy drugs. This is a suicidal thing for any nation to do.

Welfare isn't going anywhere anytime soon, so the only choices are having my money wasted fighting drug dealers or having my money wasted paying people to do drugs. At least with the former there is some incentive to go work for a living.

Re:Potential Redistributable Files

[Anonymous Coward]

You didn't read the last paragraph of his post, did you? Did you?

Re:Potential Redistributable Files

[Pofy]

>Once you've taken the leap from choosing not to
>have a copy in your possession to having a copy
>you've left the area where you can complain
>about the price.

>If you were to attempt to argue that you
>shouldn't be held accountable simply because you
>wouldn't have 'normally' purchased a copy
>anyway, then the logical conclusion is that no
>one would need to pay for anything. After all,
>why would I pay for something if I could get it
>for free? And why would anyone pay me for
>anything if THEY could get it for free?

All this is of course pretty irellevant since the laws on theft and copyright infringement really doesn't care about if you would or would not have bought, nor if there was a potential lost sale. It is the act that might or might not be illegal. When it comes to copyright infringement, it is the act of copying that might be illegal. Do note the might. It doesn't matter if someone in the prosess lost a sale or not.

In addition, making someone lose a sale is not illegal in anyway. You can't "steal" a sale either. Nor is having in possession of something you did not pay for. For example, if I lend a book to someone, I also prevented a sale and someone got in their possession a book, still, nothing illegal. I could even seel the person my book instead, still no illegal act has been commited. There are many things in the world you can either pay to get OR get it for free. Getting it for free still doesn't make it illegal in most cases. I don't commit an illegal act if I cut my hair (for free) instead of geting it done by a proffesional for example.

So it is really no point in trying to argue or view the legality of copyright issues based on if someone lose sales, gets something for free or other similar concepts. It is even more pointless to try to claim similarities with stealing based on that you "steal" a sale or other such similar concepts. It turns even worse when some people first find that losing a sale is stealing and then claiming any act, including copying is then illegal since it prevents a sale and that was just found to be stealing which is illegal. That is just turning casuality backwards and that doesn't work.

Re:Potential Redistributable Files

[Pofy]

>Mod parent up. This is exactly what the issue
>is. You must take into account both the theft
>and the duplication. Stealing the video from the
>store does not imply duplication, no matter
>how "trivial" it has become to rip the material
>from the disc.

And duplicating something does not imply stealing no matter how "trivial" it has become to call it that.

So really, what is compared here is the act of stealing something, with the act of creating a new copy of the same thing (and not stealing it, that is instead ot stealing it). The main difference is really who is possibly affected by the two different acts. In one case the store (and not the copyright holder) and in the other case possibly the copyright holder but not the store.

Re:Potential Redistributable Files

[Pofy]

>So when you have illegally downloaded a song,
>you have stolen something -- the value of not
>only a potential sale to you, but to everyone
>who then shares from you.

You can't steal potential sales and such. You can't phone the police and claim someone stole a potential sale. Further, it is not illegal in anyway to make someone lose a sale. For example, me borrowing a book from a friend is also really a potential lost sale, yet it is not illegal. Me sitting down in my friends chair is a potential lost sale since I could have bought a chair of my own for that case instead and so on. What is illegal bout copyright infringement is not the potential lost sale, it is the act of creating a new copy that is in most, but not all, cases illegal, regardless of potential sales lost. So it is really pointless to discuss if an act has a potential lost sale. It is even more poinltes to then try to claim that such a lost sale is "stolen" and then claim that copyright infringement hence is theft.

Re:Potential Redistributable Files

[Pofy]

>Obviously owning a physical DVD also allows you
>to turn it into P2P-friendly files, but that
>can't be fined yet since it hasn't happened,
>while the downloader already possesses the file.

Speaking of owning, owning in itself is not copyright infringement under US law, now is it? (assuming the copy is one created in an infringing way)

Re:Potential Redistributable Files

[Anonymous Coward]

secure and protect copywritten materials

"copyrighted".

Re:Potential Redistributable Files

[thenameisbam]

is it still illegal to DL tv shows if they have been recorded off the Tv and not off a DVD copy like the new seasion of alias?

Re:Potential Redistributable Files

[westlake]

And of course all of this is absurd. Rapists face lesser penalties than DVD downloaders.

You have a problem with the sentencing guidelines or rules for rape, talk to your state government. The feds rarely have jurisdiction in such cases.

Re:Potential Redistributable Files

[cpt kangarooski]

I've read the section on fair use, and it is still not clear to me how they "add up".

It is a non-commercial use (good) but it's also non-transformative (bad). If the work is more factual than creative, that's better than the other way around. Backups involve the entire work, that's bad. But there's no particular negative effect on the market, and that's significantly good.

And of course, fair use is fuzzy, it's not math. The factors don't just get added together to produce an answer, they're supposed to instead be indicative of what's fair or not. Looking at these, it still seems as though backups are generally going to be fair. Of course, YMMV -- which is why the other exceptions are more reliable, if more narrow.

1201 has made access one of the exclusive rights of the copyright holder

Actually, that's the interesting thing. Access circumvention has been held apart from copyright infringement, meaning that it is not in fact part of the copyright, it's just a related right (to borrow some Berne parlance). This is the only way, really, that they can avoid having fair use be a defense to circumvention.

But this has raised the issue of whether 1201 is even constitutional. A similar issue has arisen in the context of 1101 and its counterpart criminal provision, in the Martignon case, and in the trial level the argument worked; we're all eagerly waiting to see what happens next.

Re:Potential Redistributable Files

[Kosi]

Distributing something like heroin is hardly a "victimless crime"

As there is no victim, it can't be anything else.

Drug victims are their own victims and the society's victims, not the victims of the people who sold them the drugs.

If I kill myself with the legal drug alcohol, nobody blames the store that sold me the booze.

Re:Potential Redistributable Files

[klparrot]

Well, I realize it's not legal. I was saying it for argument's sake. But okay, fine, you're saying it's illegal because it's allowing a copy to be made. What if I destroy my DVD as soon as it's downloaded. Then it's more of a move. But I'm sure it would still be illegal. Question is, should it be?

Re:Potential Redistributable Files

[Anonymous Coward]

This would mean that anyone with an MP3 collection, even one entirely made up of recordings they rightfuly own, would be breaking the law.

I own a thousand or so "potentially distributable files". I also own the odd knife (now getting closer to being banned in England), and possibly various other things that I could potentially commit a crime with.

On the original topic though, it would be interesting to compare the punishment for copyright infringement with the punishment for some of the more violant crimes. I think that is where a big disparity lies.

Re:Potential Redistributable Files

[cpt kangarooski]

Let's not overdramatize here. If you steal my DVD, I don't have it anymore. If you copy it, I still do. Please don't keep trying to twist words and logic to say that the second is worse then the first.

I know the difference, and I didn't say that one was worse than the other.

Re:Potential Redistributable Files

[Anonymous Coward]

Even though YOU might not have paid $15 for the CD, what about the people who download it from you? What if some of them would have been glad to pay for it, if you hadn't provided it for free?

Also, this "I wouldn't have bought it anyway" argument is really weak. The fact that P2P even exists alters your perception of recorded music and its value. If you could look into an alternate universe where there is no P2P, and see that you truly would not have bought the CD, then and only then would the argument hold water.

Re:Potential Redistributable Files

[Not_Wiggins]

Thank you for the well-informed and thoughtful response... it is precisely what I was hoping to get from my previous post. 8)
You're going on my "fan" list for certain.

My only gripe about /. is that when one asks real questions, one has a 50/50 shot of being modded a troll... as though questions are meant to provoke anger instead of dialogue.

Thanks again; I think I might crack into 101, 106, 501, 504 and give it a read. 8)

Re:Potential Redistributable Files

[ZeoRanger]

I have a question concerning copyright, though. When you purchase (or shoplift.. let's say acquire) a physical media device - in this case an audio CD, you are reciving a tangible item. You can hold it, feel it, etc. You can also use it as a means of enjoying the intellectual property it contains, which, if I'm understanding things correctly, is what the purchase price of the CD was all about. If I choose to convert the media on that CD into another format, is that allowed under fair use (say I don't like using CD's because they are easily scratched, but I've got a kickin' 8-track player in my car, and a way to transfer these songs to THAT media [because the iPod analogue is overused]) - is it infringement to make a 'copy' of the media for personal use in this instance?

I (possibly mistakenly) was under the impression that it is indeed perfectly legal, falling under the blanket of fair use. I was also under the impression, however, that archival backups were also covered under fair use (I own windows98, but my original CD is scratched all to hell - luckily I burned a backup of the CD for just that reason before the original became a coaster) - I suppose the ideal I'm trying to understand is this: What exactly am I entitled to as a purchaser of someone else's intellectual property - is it the ability to use the work itself, or just the ability to utilize the physical media until such media is destroyed or rendered unusable, and then I should purchase a new 'copy' of said work?

I realize that the agreement is different in each instance, based on the individual licensing of said work, but fundamentally, when I buy a CD, am I buying a piece of plastic, or am I buying the ability to enjoy some music?

Thanks.

-z-

Re:Potential Redistributable Files

[Domo-Sun]

Actually, go after the big fish, and more big fish will appear to replace them. If there's a demand, someone will find a way to supply it. Period... The only rational option is legalization.

Isn't that like saying, "We can't stop murder so we might as well legalize it." or "We have little privacy as it is, we might as well give it all up voluntarily.

Before the early part of the 20th Century, a 12 year old girl could walk into a general store and walk out with as much heroine, cocaine and morphine as she could carry in one arm and a 12-gauge shotgun in the other. If drug legalization would cause widespread addiction now, why didn't it back then?

Before you deny widespread addiction, get your facts straight. It did cause widespread addiction, fool. I don't understand how, with the addiction problem we have now, you expect that legalization will not increase addiction. It will and it did. And that's why public opinion changed towards Opium, Cocaine and speed.

The reason these drugs were legal was that little was known about how addictive they were. The invention of the hypodermic needle, and isolation of the active ingredients, the use in Civil War, WWII and all the other things that popularized drugs also increased put the problem of addiction into the spotlight and swayed opinion. Etc, read the Drug Lecture..

Re:Potential Redistributable Files

[cpt kangarooski]

I have a question concerning copyright, though. When you purchase (or shoplift.. let's say acquire) a physical media device - in this case an audio CD, you are reciving a tangible item.

Let's stick to legal forms of acquisition. Also, the word you're looking for is 'copy.' A tangible medium in which works are fixed is called a copy. The act of fixing a work into another copy is reproduction. Reproduction is one of the exclusive rights of the copyright holder.

You can also use it as a means of enjoying the intellectual property it contains, which, if I'm understanding things correctly, is what the purchase price of the CD was all about.

Basically, yeah. Copyright does not say that you cannot listen to music. You probably can manage a first amendment right to listen to music generally. Of course, obviously you have no right to listen to music where doing so involves mucking with other people's property, i.e. you can't grab my CDs to listen to them, without my permission, because I own the CDs.

So when you buy a CD, what you're doing is acquiring access to them so that you can fully exercise your rights. If I lent you a CD, you'd be okay too. And to demonstrate that there is no licensure by a copyright holder going on here -- as people often incorrectly believe for some reason -- if I buy a CD with a public domain song and sound recording, the copyright holder is not involved in any way at all, but I can still listen to it, etc.

Thus, copyright deals SOLELY with the exclusive rights enumerated in the law. Most of these are at 17 USC 106. Listening -- where nothing else is going on behind the scenes -- is not one of them.

But access to personal property is at the core of the law of property, and is no different for a CD than it is for power tools, or a car, or anything else.

If I choose to convert the media on that CD into another format, is that allowed under fair use (say I don't like using CD's because they are easily scratched, but I've got a kickin' 8-track player in my car, and a way to transfer these songs to THAT media [because the iPod analogue is overused]) - is it infringement to make a 'copy' of the media for personal use in this instance?

'Maybe' is the best I can say. Fair use permits uses that are fair. There is no bright line dividing what is fair from what is not. It depends on the precise circumstances, and we must check anew in every case. Under some circumstances, space shifting as you describe, is probably fair. Under others, it is probably not. The same is true of any kind of fair use -- it always depends, and nothing's for sure.

This is actually a strength of fair use, since it allows for new fair uses to be found. Remember, fair use is about 150 years old. If it were not highly flexible, it wouldn't be useful.

Where you have a specific need, however, a statutory exception is a better choice. This can permit for some activities to be noninfringing, regardless of whether or not it's fair, and with a bright line rule (or at least a better one).

I was also under the impression, however, that archival backups were also covered under fair use (I own windows98, but my original CD is scratched all to hell - luckily I burned a backup of the CD for just that reason before the original became a coaster)

Regarding fair use, see above. As for backups, there are a few highly limited exceptions that are also useful, but only in VERY NARROW CIRCUMSTANCES. The ones that are most likely of interest to you are at 17 USC 117 and 1008. However, I strongly caution you against just reading them lightly. They have important limits that might not stand out, and in fact might be contained in other portions of the law (e.g. how the definitions in 1001 apply to the terms used in 1008, which don't mean what you'd normally think they do). As an everyday matter, they're not all that useful, despite how broad they might seem at first glance. So be careful with those.

What exactly am I entitle

Re:Potential Redistributable Files

[lachlan76]

Well I never buy any music from any artist which I haven't downloaded music from. Most of the things I have downloaded, I've bought a CD of as well. And the others I just don't think are worth the money....and I wouldn't have even known about them at all if not for P2P.

Re:Potential Redistributable Files

[mdwh2]

This is completely incompatible with public assistance / welfare. If you have leagal drugs AND a welfare system, then people who work will get taxed so that people who don't work can buy drugs. This is a suicidal thing for any nation to do.

So what about the vast number of people who have a job and use that money to buy drugs - why should they go to prison?

And what about people on welfare who use the money to buy legal things like cigarettes and alcohol?

Add to the fact that, under the current situation where drugs are illegal, people on welfare still manage to buy drugs, it is clear that having drugs illegal doesn't solve the problem you describe in the slightest.

If you have a problem with people spending their welfare money on things you deem unsuitable, then it's specifically that which should be focused upon.

Re:Potential Redistributable Files

[Dun Malg]

Where did you get your JD from? If I hack into your bank account and move a few bits from your account to mine, I haven't taken anything tangible, but I would bet you would think that was theft.

Without going into the history of currency, the US gold standard in the past, and the like, suffice to say that the bank's accounting system keeps track of the amount of physical money the bank owes you. There is a physical version of that number in the form of printed money. There is no physical equivalent to a digitized copy of a song.

""Future sales", or "sales that might have been" are worth exactly squat."

I guess you've never studied contract law...

Contract law is yet another area of law unto itself, and wholly unrelated to "theft" or "copyright infringement" in this case. Contracts are about agreements. Two people can enter contracts that say anything. "Future sales" and "sales that might have been" can be assigned value through a contract, but such things have no value without agreement. Care to bring up mining rights or some other unrelated issue next?

"This is why it's sheer folly to attempt to frame the copyright debate in the same terms as property rights. They are unrelated."

No, they are not. Copyright is a property right.

No, it's not a property right. It is a government granted monopoly on the performance and/or reproduction of "original works of authorship". Copyright is a means by which something that is fundamentally not property can be treated as if it were property.

Re:Potential Redistributable Files

[Reverend Joe]

sn't that like saying, "We can't stop murder so we might as well legalize it."

Why, yes it is actually.

Setting up laws to keep people from doing something they choose to do of their own volition, because some other people find it morally objectionable and believe that their morality should be applied to everyone else, is, in fact, EXACTLY like outlawing people from doing things that infringe other's rights to continue living and breathing, like rape and murder.

You are very insightful.

It did cause widespread addiction, fool.

Also a good point, because, as we all know, it was the lack of laws that caused the widespread addiction, as evidenced by the fact that, now that we have these wonderful laws, "widespread addiction" is finally a thing of the past.

Rejoice!

Re:Potential Redistributable Files

[Marvelicious]

Wow, i had to think to remeber the original topic... but yeah! Hell of an idea. Wipe out Fox, Sony, Paramount, all of em, and POOF, no more problem! HA HA HA! I love it!

Re:Potential Redistributable Files

[Marvelicious]

I just about crapped myself laughing just now.
BTW: I think you forgot to put the sarcasm tags around you post. This is /. so people will probably take you seriously!

Re:Potential Redistributable Files

[GimmeFuel]

Before you deny widespread addiction, get your facts straight. It did cause widespread addiction, fool.

I do not deny that there were drug addicts when drugs were legal. What you seem to think, however, is the fact that there were drug addicts when drugs were legal implies that the addictions were caused by the availability of drugs. Correlation is not causation.

What you overlook is that there have always been addicts, and there always will be addicts. In fact, rates of drug addiction among the general population are fairly constant whether or not drugs are legal.

So we can have drugs be illegal, and try to deal with all the associated problems. Or we can legalize drugs, see no significant increase in addiction, and reap the benefits of drugs being legal, such as addicts being treated as sick people instead of being jailed as criminals.

Re:Potential Redistributable Files

[InitHello]

I am a fully equipped male, so I should be locked in jail because I have the potential to commit rape... Right...

Re:Potential Redistributable Files

[Reverend Joe]

Ya think?!?

I thought surely the "very insightful" and "rejoice" lines would make it plenty clear to even the most mindless, control-freak, let's-legislate-morality-into-the-U.S.-Code drones (my personal version of morality being the preferred choice to incorporate, of course).

Hey, and how come your post scores TWO just for saying my ONE-scored post was funny?!? Ya Bastid!

Karma is EVERYTHING to me! Maybe you're right about these G.D. slash-dorks, after all .... ;^)

Re:Potential Redistributable Files

[Domo-Sun]

Don't be a drug fanatic with Slothful Induction towards any negative result of drug legalization, Bifurcation, and false statements with your "widespread addiction... didn't happen" comment. If I may paraphrase you: If drugs should be legalized "why are you making up lies to support it."

The causation in drug addiction is the drugs. This has been proven. Legalization of drugs will result in more people using them and therefore, more drug addiction. Period.

Maybe we can keep drugs illegal and treat addicts better. And there will always be addicts, but the last thing we need is more of them. The cost is passed to everyone else to support them.

Re:Potential Redistributable Files

[Marvelicious]

The causation in drug addiction is the drugs.This has been proven.

Well, I guess I was wrong and should eat all my words. Say, good buddy. Would you mind directing me to this indisputable proof you have, so we can all read it and be shown the light?

So, clearly

[Anonymous Coward]

The best option is to steal a CD/DVD, rip it and then share it with friends?

Re:So, clearly

[newbie65536]

No, the best option is to rent a CD/DVD, rip it and then share it with friends.

Re:So, clearly

[Anonymous Coward]

Using a stolen credit card?

Re:So, clearly

[Gabrill]

. . . using change you begged for or found on the corner.

Yeah, but...

[Anonymous Coward]

Yes, but the difference is if you steal from a store, chances are you're only doing so to get something for your enjoyment. On the other hand, most systems for trading such material online also encourage downloaders to upload. This means that you're also likely redistributing the material, which you probably aren't doing if your crime is shoplifting. This is an important difference to consider.

Re:Yeah, but...

[Creepy Crawler]

---On the other hand, most systems for trading such material online also encourage downloaders to upload.

Oh, thats right. These days, youre now responsible for _others_ actions.

Re:Yeah, but...

[Anonymous Coward]

No, that's entirely not what I'm saying. Most people don't even realize they're uploading while they're in the process of downloading. Bittorrent actually requires you to upload if you expect to get decent speeds. My point was that if you're downloading, chances are you're also uploading. That's part of the crime. When have you seen people seen for downloading. Chances are, you haven't, because as far as I know it hasn't happened. The people who are getting sued are the uploaders. And you are responsible for your own actions of distributing copyrighted material illegally.

What part of that don't you understand?

Re:Yeah, but...

[murphyslawyer]

Oh, thats right. These days, youre now responsible for _others_ actions.

Partially, yes, you are. It's called contributory infringement. Look at it this way - "No your honor, I didn't kill Vito, Luigi did it. I just handed him the gun."

Re:Yeah, but...

[squarefish]

This means that you're also likely redistributing the material, which you probably aren't doing if your crime is shoplifting

what are you talking about? people have been stealing things for years for the sole purpose of redistributing (pawning) them to make money from it, or just feeding themselves.
a big difference is that the **AA has already been paid for stolen dvd's because the store bought them before they were ripped off- so they could care less about shoplifting.
on the other hand, p2p users really don't get or care that much about copyright infringement because they see it as *sharing* and don't consider it to be a crime- they are not trying to profit from the theft like the person breaking into homes, cars or storefronts.

these are two very different issues that really need to be looked at together for anyone to begin making any sense of what the proper punishments should be.

Re:Yeah, but...

[Anonymous Coward]

Remember something. If you pawn stolen items off, you're not making copies of them. There's still only a single stolen copy.

Re:Yeah, but...

[Locke2005]

So, why aren't all the gun and ammo manufacturers deemed guilty of contributory murder? Lockpick manufactures held responsible for burgularies? Sorry, just because you provide the tools DOES NOT make you responsible for what somebody else chooses to do with them! (I think this is called the "Wernher Von Braun" defense ;-)

Re:Yeah, but...

[zerocommazero]

I call BS on that last statement!!! "Oh, thats right. These days, youre now responsible for _others_ actions." If you steal something and then offer it for sale or even give it away to someone else, you're accountable. In fact, both of you are! You and everyone else involved knows its illegal. Thats why i rarely d/l popular/fine-able content. And if I do, I certainly don't share it. That's like putting a beacon up and showing everyone that you have pirated material.

Re:Yeah, but...

[murphyslawyer]

So, why aren't all the gun and ammo manufacturers deemed guilty of contributory murder? Lockpick manufactures held responsible for burgularies?

The difference is whether or not you have knowledge of what will happen with your contribution. When you make a file available to download the ONLY possible outcome is that somebody will download it, and despite the promise of P2P apps for legitimate uses, let's face it, right now probably 99% of P2P traffic is infringing use.

The gun analogy isn't a very good one, but lemme try again.

1) Your buddy asks to borrow your gun to go shoot some pumpkins, as he has in the past, but this time he goes and offs his girlfriend. - Probably NOT contributory.

2) Your buddy tells you he just broke up with his girlfriend, and damn, he needs to get some revenge on that bitch, and can he borrow your gun. - You're probably in a spot of trouble.

Please try to remember that these are legal matters open to interpretation by the courts. Intent has a great deal to do with the punishments meted out.

Re:Yeah, but...

[Creepy Crawler]

The quick jab wasnt intended at you specifically, but to the law in general..

As the main article said, you get in "more trouble" to download a song than you would to shoplift it. Sad state of affairs.

Re:Yeah, but...

[Creepy Crawler]

---So, why aren't all the gun and ammo manufacturers deemed guilty of contributory murder?

Wonderful question. Even a lockpick could be ( we're looking at could-be's here.. Thats what the court would probably do) construed to help get around you being locked out of your own possessions or property.

A gun is a machine intended to make inaccurate holes in fleshy objects. Rifles and shotguns at least can be used in hunting sports. Well... handguns arent used normally in hunting. So, they are accessory in murder, right?

*as a note, Im a member of NRA and heavy supporter of 2'nd amendment.

Re:Yeah, but...

[Locke2005]

right now probably 99% of P2P traffic is infringing use. And 99.5% of statistics are complete, made-up bullshit. Until you have facts backed up by scientific studies, you shouldn't be stating that P2P is mostly used copyright infringement. Isn't BitTorrent also used to distribute open source software?

Then Let's Go Shoppin'!

[VE3ECM]

Hell, I'm off to J&R to 'pick up' the latest DVD I was going to d/l...

And you figure, because the tangible good is pressed, not burned or stored in a HDD, it'll last a lot longer...
All this article does is show how unequal punishments are in the Western judicial system.

Re:Then Let's Go Shoppin'!

[Anonymous Coward]

your chances of getting caught, prosecuted and actually serving tiume and paying a fine are much more then d/ling. I would suggest you continue to d/l.

Re:Then Let's Go Shoppin'!

[Anonymous Coward]

I think the penalties are unequal because the difficulty of committing each crime is unequal. It is much easier and quite arguably more safe for a criminal to steal IP online than it is to steal IP offline. Therefore, the deterrents/penalties would also need to be proportionately and respectively unequal. This is another case of someone trying to compare apples to oranges. Not a big surprise from this left-leaning message board.

Re:Then Let's Go Shoppin'!

[Anonymous Coward]

Only if he releases it on P2P. How will the authorities know if he rips his own copy while renting it and just keeps it on his disks?

Besides, half the time those DLs are shit quality.

Re:Then Let's Go Shoppin'!

[IWorkForMorons]

You're right...the punishment should be unequal, because the crimes are illegal. But it's the other way around. Consider that when you shoplift you are actually taking a physical item that the store purchase in order to resell. They are losing real money. Downloading, on the other hand, takes nothing away from anyone. The stores are free to sell they're stuff. Now you could argue that the downloader is "stealing" from the producer, but what's to say the person would have bought it in the first place? I know I have downloaded a lot of things I would never actually buy. But to download and check out, then a lot of times delete afterwards, I won't waste my money. So this 3.3 million that the article talked about is the punishment for *POTENTIAL* lost sales, where as shoplifting is *DEFINATELY* a lost sale. Why should the potential crime be more then the definate crime?

Re:Then Let's Go Shoppin'!

[Anonymous Coward]

Brilliant. Thanks for making the argument for them. If you are willing to at least joke about going shoplifting instead of downloading music or videos, you are basically making yourself look like the fool you really are.

Re:Then Let's Go Shoppin'!

[Anonymous Coward]

Technically, the law is not in place to protect from monetary loss, but instead from IP loss. Wether money is lost or not, the crime has still been comitted and a suitable punishment/deterrent must be in place to help decrease the criminal act. Wether the criminal would have actually purchased the IP or not is irrelevant since the IP was not purchased, the IP was stolen, and the crime was, in fact, comitted.

Differences Abound

[syntap]

When you are downloading the movie via BitTorrent you are also farming it out to multiple other clients. So the anology is more like going into Best Buy with your DVD-burning laptop, sitting there and making copies and handing them to customers, then leaving with your own copy.

Re:Differences Abound

[Anita Coney]

You don't get it. The more severe sentence is true whether you use BitTorrent or simply download them from an FTP server.

The additional penalties have NOTHING to do with the sharing. It's simply because the movie industry has more power and influence with Congress than local retailers. (Which is shocking when you consider that Wal-Mart is a local retailer!)

Re:Differences Abound

[TrippTDF]

I want to see the look on a Best Buy manager's face when he realizes I'm sitting in the corner of his store, burning DVDs on a laptop, and handing them out to people.

Would I get both punishments, then?

Re:Differences Abound

[sosuke]

but there is no way for the to prove you shared any single complete episode, if say you were a leecher you might have only given corrupt data, rendering it useless between you and the downloader

does the law cover partial or incomplete sharing?

Re:Differences Abound

[superpulpsicle]

Good comparison. Except in a store they can catch you physically holding a DVD in your hands. Point you a thief, end of story.

It's very hard to prove you are really holding a giant mpeg on your filesystem.

-Is it really on a filesystem?

-What if it's a shared filesystem on someone else's network?

-What if it's a split in parts. With other files on other networks.

-Wouldn't you also have to break the law and break into someone's PC to see the filesystem too. It's tricky.

Re:Differences Abound

[Anonymous Coward]

When you are downloading the movie via BitTorrent you are also farming it out to multiple other clients.

Maybe you are, but being a total leech, I tend to quit my BT or gnutella client ASAP when finished downloading, and move said files out of shared locations... ;-) so really, it's more like taking a copy from a 'friend' who wants it back, and never giving it back, which isn't so bad, because my 'friend' kept a copy anyway...

Re:Differences Abound

[srjames]

That's because Wal*Mart does not care. They've always had theft, they'll always have theft and they have the shrinkage built directly into the pricing structure.

Re:Differences Abound

[Anita Coney]

I agree. Wal-Mart is not concerned about the loss of one DVD. I used to work security at K-Mart, so I know retail security is a joke.

Re:Differences Abound

[DrEldarion]

Actually, no, you only get the more severe sntence when you're sharing the files, otherwise YOU aren't actually infringing on anything, just the person sharing it is. This is why the RIAA can't just sit there sharing copies of all its songs on Kazaa and then prosecuting anyone who downloads them.

With BT, you're automatically sharing with all other peers, that's why there's a problem there.

Re:Differences Abound

[Lord Kano]

One out of every what, 5 or 10 shoplifters gets caught? One out of every what, 2 million downloaders gets busted? If you break it down by man years of prison time and fines per infraction; downloaders as a whole are getting by a lot cheaper.

It's like a lottery in reverse, this time you DON'T want to be the poor SOB who happens to have the winning (IP) number.

LK

Re:Differences Abound

[enjo13]

Proof please. Find me ONE case in which the RIAA or MPAA has taken anyone to court for simply downloading a DVD or MP3 (without sharing it).

Thanks.

Re:Differences Abound

[Anita Coney]

That's one of the largest myths about copyright. The copyright industry could easily come after you for every infringing song or movie on your hard drive. It'd rather go after sharers, because in a public relations point of view, they seem more culpable.

Downloading a copy of a song you have no right to have IS infringing a copyright. Whether you keep it or not.

Re:Differences Abound

[GlassHeart]

It's simply because the movie industry has more power and influence with Congress than local retailers. (Which is shocking when you consider that Wal-Mart is a local retailer!)

No, the difference is more likely because Wal-Mart can more easily absorb the real cost of occasional shoplifting than the music industry can absorb the potential loss of profits from massive copyright infringement.

Re:Differences Abound

[bigberk]

The additional penalties have NOTHING to do with the sharing. It's simply because the movie industry has more power and influence with Congress than local retailers.

Actually, when the media industry first pitched the changes to copyright law (pre-DMCA) they were shot down by Congress. As a recourse, the IITF in 1995 pushed those copyright law reforms through the United Nations to create the WIPO Copyright treaty. Then the US just ratified this international treaty in 1996 to create the DMCA. It's really not that Congress supported the media industry's crazy demands, but got tricked into ratifying them through a legislative workaround.

recording industry pwns Congress

Re:Differences Abound

[Anita Coney]

Proof?!

TITLE 17 CHAPTER 5 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.

106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies...

The only relevant section between 107 and 122 would be 107. Limitations on exclusive rights: Fair use. As of now, no US court has determined that downloading music without paying is a fair use.

To put it another way under section 106 and 501 it's illegal to make a copy of a copyrighted work. There is no element requiring that you share it. Merely copying it is sufficient.

Anything else?

Re:Differences Abound

[Bodysurf]

"This is why the RIAA can't just sit there sharing copies of all its songs on Kazaa and then prosecuting anyone who downloads them."

The **AA certainly could do this! In civil court, there is no law against entrapment. The **AA could put their stuff up for download, log the people downloading it, then sue them. And it would be totally legal. And the **AA would win. Ask any lawyer.

Re:Differences Abound

[ifwm]

"It's simply because the movie industry has more power and influence"

No, the penalties are different because the crimes are different. No matter you feeling, a DVD is not the same as a file that is downloaded.

That being said, it is still moronic.

Re:Differences Abound

[radish]

Are you sure? I agree that downloading is just as illegal as sharing - no argument there. BUT, if the RIAA themselves put the work up on, say, Kazaa - where is the illegality? I'm downloading it from the copyright owner (or rather a representative of owner) - they put the material up for me to access, therefore they gave implicit permission for me to download it.

That's why they don't try that kind of sting, IMHO, because it wouldn't work.

Re:Differences Abound

[Anonymous Coward]

Surely though, if the **AA was providing the copy for download, as they are acting on the behalf of the copyright holder wouldn't that imply that they couldn't do anything to you, as you received it from someone authorised to do so?

Otherwise couldn't you as a downloadee sue them for letting you download it?

Re:Differences Abound

[radish]

Actually, no, you only get the more severe sntence when you're sharing the files, otherwise YOU aren't actually infringing on anything, just the person sharing it is. This is why the RIAA can't just sit there sharing copies of all its songs on Kazaa and then prosecuting anyone who downloads them.

No, the reason they don't share all their stuff is that if they did so, it would be legal to download from them. They are the copyright holders, so they can legally offer the material for download. Which they did by putting it on Kazaa, so it's all legal.

Downloading from anyone other than the copyright holder (or a representative) is still perfectly illegal.

Re:Differences Abound

[enjo13]

Ok.. I'll try this again:

"Proof please. Find me ONE case in which the RIAA or MPAA has taken anyone to court for simply downloading a DVD or MP3 (without sharing it).

Thanks."

Now actually address the question.

Re:Differences Abound

[log0n]

I don't know which is worse.. shopping at KMart or working at KMart... I kid I kid ;-)

Re:Differences Abound

[Anita Coney]

I've showed you proof. It doesn't matter if anyone has ever been charged or sued or whatever. The statute says what it says. If you copy a copyrighted work without permission, and if fair use does not come into play, you ARE infringing. Thus, if you copy a song from the internet, which you do not have permission to own, and there are no fair use reasons for you to have it, you are infringing.

By citing the statute I've proven my point. I strongly suggest you stop yapping about topics you clearly know nothing about.

Re:Differences Abound

[Anonymous Coward]

I believe the parent commment didn't say that downloading wasn't infringing; rather, he's saying that the uploading is the justification for harsher penalties.

That is, when you steal a DVD from walmart, you are punished for stealing the DVD... when you download something on Kazaa and offer it up to others, you are not only downloading, but also providing - making it analogous to stealing DVDs from walmart, and then going outside to the street to re-sell them. (Well, more acurately giving away, but then you similarly have the crime of trafficing in stolen property, and they can make an argument that a movie available on Bt is fairly obviously not there legally).

Re:Differences Abound

[The Phantom Mensch]

There is also a time sensitivity issue that makes a difference. You can get a BitTorrent of the latest episode of your favorite show within hours after it airs, while you'll have to wait until next season for this year's season DVD set to be published. Having the torrent out so much faster than the publisher can put out the DVD set will kill some potential sales.

But on the other hand, by the time the DVD set is out torrent seeds of episode rips off the air will have become scarce so there will still be a market at the time the DVD ships for an easy way to get the episodes, plus all the DVD extras.

Re:Differences Abound

[Anita Coney]

Yeah, when you download from the internet, you COULD be sharing it also. But as I've pointed out, it does not really matter. Merely making a copy of of copyrighted work without permission is infringing.

Thus, even if you merely download the TV shows off a FTP server, and NEVER share it, you still face a harsher punishment than if you simply stole the actual DVD.

Re:Differences Abound

[cbr2702]

The copyright industry could easily come after you for every infringing song or movie on your hard drive.

How exactly? How do they know that they're on your HD in the first place? And even if they could magically sense it, how do they know they're illegal? I have two albums on my drive that I ripped for convenience and put the origonals away as backup. The origonals were accidentally thrown out, but I retain liscence to the albums (not that I have any proof). Possession of copyrighted work is difficult to criminalize.

Re:Differences Abound

[Squirmy McPhee]

The copyright industry could easily come after you for every infringing song or movie on your hard drive. It'd rather go after sharers, because in a public relations point of view, they seem more culpable.

I believe another reason it would rather go after sharers is because they generally can only sue you for damage to the commercial value of the work you illegally copied. In other words, if you have an illegal copy of a $15 CD on your hard drive, they can only get you for $15. However, if they can show you distributed 1,000 copies of the CD, they can get you for $15,000.

I'm not an attorney, so I could be wrong, but this copyright attorney's web page seems to say roughly the same thing.

Re:Differences Abound

[zod1025]

Interesting. I was not aware of this until I myself did a quick google for the statute.

It seems to me that 106.1 needs to be changed to say "to reproduce the copyrighted work in copies or phonorecords for commercial purposes". This would make the statute fit reality and fit the majority of people's expectations.

The statute as written seems to even remove my right to make a backup copy of a CD I own for my own (archival, say) purposes, which is clearly ludicrous. The change would make simple acts like this, as well as the act of downloading, strictly legal.

Uploading (ie, distributing) copyrighted works would still be infringement, and rightly so. However, according to 109.b.4, it isn't a criminal offense... again, rightly so.

I wonder, was the statute always worded this way?

Re:Differences Abound

[learn fast]

No, they can only do this because it's easier for them to detect people that are sharing than people that are downloading. They can easily go out on the net, download a file from someone, record the ip and check if the file is copyrighted to one of their subsidiaries. They cannot (yet) scan everyone in the world's hard drives.

Re:Differences Abound

[Macadamizer]

No, actually they would have a choice between suing for actual damages -- which, in your case, is the $15 they lost from the one CD -- or statutory damages, which can range from $750 to $30,000 (unless the copyright holder can prove willfullness, then he can get up to $100,000) per work infringed. See 17 USC 504(c) for further details.

Re:Differences Abound

[darthmundt]

If you d/l with Bittorrent, and your ratio never reaches 1.0, then can you be punished for uploading?

Technically, you haven't uploaded anything usable(97% of game ISO isn't going to install).

What do you think?

Re:Differences Abound

[Anonymous Coward]

So sue me!

Re:Differences Abound

[Anonymous Coward]

You're only about half right.

They cannot sue you for CRIMINAL copyright infringement (the NET Act stuff) without something like BitTorrent where you redistribute the content as well (more precisely, you have a "profit motive" in that you, as part of the BT protocol, exchange an infringing work with the expectation of profit--specifically the profit of getting a copyrighted work in return... and yes, you're actually infringing by giving out bits of the very same work you're infringing, but that wouldn't seem to matter from a literal reading of the NET Act).

So because of the "profit" inherent in using BT to get the copyrighted work, you get the criminal penalties (1 year of prison + fines--article summary is WRONG, it left out the 1 year of prison you could get for criminal copyright infringement) and some of the fines. All in all, you're still stuck with statutory civil damages, but there's no prison term unless they can stick you as infringing "for profit."

Remember, with BT, you actually share the parts of the file as you download them with the expectation of getting other bits of the file from others. Because your download speed == upload speed as per the protocol, that's how you get saddled with the criminal charges. Of course, they have to actually convince someone to prosecute these cases, given how lax they've been about proof (charging computer illiterate grandmothers with millions of dollars of infringement) ... well, I know I'd have better things to do were I a DA, given how badly they've done at identifying infringers in the past.

P.S. Some may remember that Linus used this very NET Act to point out that the GPL isn't anti-capitalist, because the GPL envisions the author receiving the rights to derivative works of their creations as a sort of "profit" ... unfortunately, that was added by lobbiests who envisioned going after your average downloader with criminal, instead of merely civil penalties.

For the record, civil penalties do not include prison terms (though I guess you can fail to abide by the terms of a court order and be held in contempt of court, which is another matter entirely), whereas the criminal penalties can and often do include prison time or probation.

Lastly, I should not that IANAL, but I did RTFA, and I have read up on these things (though I'm sure it doesn't substitute for what I'd know had I gone to law school).

Re:Differences Abound

[Anita Coney]

See, 106 does NOT remove the right to make back up copies. Because 106 is limited by 107, which is the Fair Use part of the statute. And furthermore, the Home Recording Act allows us to make copies of our music. That's why we pay a small additional fee on music blank CDs and cassette tapes.

Re:Differences Abound

[Alsee]

retain liscence to the albums

No, you never received any licence in the first place. Just as you don't receive any sort of licence when you buy a book. You own the copy you bought. Media shifting / backup to your computer was not copyright infringment.

-

Re:Differences Abound

[cbr2702]

Sorry; I wasn't thinking clearly. But even so, how would the RIAA know if the copy I had on my computer was fair use or not? In my situation my two albums are fair use, but only I know that. The RIAA would have no way of telling.

Re:Differences Abound

[Anonymous Coward]

I think the difference is that one is civil court vs criminal court. There are no limits on damages in civil court.

The jury in the criminal court simply would not award the greedy industry.

Re:Differences Abound

[Anonymous Coward]

how would the RIAA know if the copy I had on my computer was fair use or not?

They do not need to know. Fair use is a defense, not a right. The RIAA does not need to prove that it is NOT fair use. It is entirely up to YOU to prove that it IS.

In my situation my two albums are fair use, but only I know that.

Technically, nobody knows whether or not they are fair use, not even you... Unless you have already been sued, and you have invoked the fair use defense, and the judge has agreed with you. In a sense, fair use does not even exist until then.

Re:Differences Abound

[cbr2702]

Fair use is a defense, not a right. The RIAA does not need to prove that it is NOT fair use. It is entirely up to YOU to prove that it IS.

If I have a CD, does that mean that the RIAA can sue me and its my burden to justify my possession of it? They can sue me, but they better have a reason to suspect I have it illegitamately.

Technically, nobody knows whether or not they are fair use, not even you... Unless you have already been sued, and you have invoked the fair use defense, and the judge has agreed with you. In a sense, fair use does not even exist until then.

This may be true, but that doesn't mean that the RIAA can sue you just because you might have some music on your computer that they might have standing to sue you over. It is true that they only need "the preponderance of the evidence", but they have no evidence.

Re:Differences Abound

[Alsee]

Legally it's a really ugly situation, but I'll try to explain the issues. Presuming the RIAA somehow gets a hold of your harddrive and brings an infringment lawsuit against you...

It's not about what the RIAA "knows", it's about what the court "knows". If it were a criminal case (and legally you COULD very well face a criminal case in court) the standard would be "proof beyond a reasonable doubt". That's a pretty high hurdle to overcome and you'd probably have no problem getting off merely by stating that your copies are legal. There's no way they could proove otherwise.

But we are primarily looking at a civil case. It goes pretty much as follows. The harddrive is indisputed evidence that copies were created. We are not disputing that you created them. At this point the legal presumption is that any copying is infringing. The presumption is that you lose. The burden is now on you to make an active defense that the copying was fair use. Copying your personal CD's onto your personal computer should easily qualify as fair use (though the RIAA idiots will probably fight it anyway).

At that point the only question is whether you did in fact make those copies from your own CD's. As a civil case the burden of proof is "prepoderance of the evidence". You have to convince the jugde that there is a 51% chance they you're telling the truth, and teh RIAA has to convince the judge that there's a 51% chance you're lying. The judge has to make a wild-ass guess. If he believes you then you win. If he doesn't beleive you then you lose and get to pay the RIAA a minimum of $750 for each copyrighted work. If you're lucky the judge will count each album as one work rather than slapping you with $750 per song. The maximum is $150,000 per copyright, and if you really want to get crazy it may be legally possible to claim TWO copyrights for each song.

The good news is that the judge will probably not appreciate the RIAA wasting the court's valuable time on such a stupid nuciance suit against a non-commercial idividual and he will probably be very reluctant to slap a potentially innocent person with these major damages. So he's likely to give you the benefit of the doubt about you using your own CDs.

But now let me point out how copyright law is REALLY screwed. When you do normal web surfing your computer is downloading all of the webpages and icons and text and images to display them. Copying them onto your harddrive. Lets say that Slashdot was using someone else's copyrighted icons for the topic icons. Every time you view Slashdot YOU are creating infringing copies of those icons. Legally YOU are infringing god-knows how many copyrights every time you surf the web, through no fault of your own. If you are sued you get to make the an affirmative argument that you are an innocent infringer. Lets assume you win this defence, you convince the court that you had no idea the icons were infringing and you made the copies innocently. Guess what? As an innocent infringer the court is allowed to lower the damages to minimum of $200 per copyright infringed.

The law is that you have a positive responsibility not to infringer a copyright, and even if you prove you did so innocently the minimum damages is $200 each for failing that responsibility not to infringe. That is the letter of the law. Of course it is hard to say what a judge what actually do in such a flagrantly unjust situation, he might try to bend the law somehow to avoid that result, but according to the law he supposedly has no choice but to hit you for $200 per icon per copyrighted file. And check your browser cache, there's likely a few thousand files in there.

I welcome anyone else to jump in with corrections or additional points, but I've read the law backwards and forwards and I think that pretty well covers it.

There's a quote, I forget the source: "The only reason we tolerate copyright law is because it is rarely enforced". People simply never actually get sued for the contents of their browser ca

Re:Differences Abound

[Alsee]

If I have a CD, does that mean that the RIAA can sue me and its my burden to justify my possession of it?

Well, someone can file baseless lawsuits. But presumably you mean a suit that will at least survive beyond summary judgement dismissal. In that case the answer is no. Posession of a CD is not copyright infringment. Even if you stole that CD that cannot sue you. It simply is not a copyright matter.

It's not much of a simplification to say that they can only initiate a legitimate lawsuit on the grounds of (1) the creation of new copies, (2) distribution of copies, or (3) public performance. If none of those three things are involved then it is not a copyright matter. Possesion and use do not invoke copy rights.

There's also a tangent DMCA issue with circumventing DRM to get "access", but that doesn't actually have anything to do with copyright infringment. It is also an evil and potentially unconstitutional law. That law has been on the books for 7 years and no court has EVER upheld circumvention crime against anyone. Not a single case. I think we can ignore the entire DMCA mess, it doesn't seem relevant to your question.

but that doesn't mean that the RIAA can sue you just because you might have some music on your computer that they might have standing to sue you over

THERE they can bring lawsuit and at least argue it in court. Copying things onto your harddrive at least raises the question of whether that copying was infringing or not. Someone asked about copying his CDs onto his drive and then losing the originals and getting sued and who has to prove what in court, and I replied with an extensive explanation of how copyright law works. You can read my reply here.

-

Re:Differences Abound

[runderwo]

Downloading a copy of a song you have no right to have IS infringing a copyright. Whether you keep it or not.

Maybe, maybe not. Technically, it depends where the court would consider the reproduction to be taking place. Is it your computer that is creating the reproduction, or is it the server that is serving the file to you (who also happens to be in violation of the distribution privilege)?

What's a "government store"?

[Anonymous Coward]

What's a "government store"?

Re:What's a "government store"?

[exp(pi*sqrt(163))]

It's a place where you buy governments. Like the US.

Re:What's a "government store"?

[Anonymous Coward]

Wow! You're f'ing brilliant. You don't have all your teeth do you?

Re:What's a "government store"?

[Your Pal Dave]

My guess would be something like a PX on a military base. I used to work at a halfway house which had a lot of federal 'clients' who were serving some serious sentences for crimes committed on military bases and Indian reservations. The same crimes in a typical municipality probably would rated a fine and served time at most.

Re:What's a "government store"?

[Anonymous Coward]

Any store owned by a major corporation, because they seem to be making all of the laws these days?

Re:What's a "government store"?

[Anonymous Coward]

Coward! Come out from behind your rock and say that.

Re:What's a "government store"?

[Anonymous Coward]

bureaucrats.

Governments store bureaucrats.
and legislators.

First Post!

[Anonymous Coward]

and for saying an unauthorized word on the radio, its $500,000 *PER* offense! (ie: per word)

Re:First Post!

[standsolid]

hm

i may just be picking at semantics, but this is slashdot...

but where can I find the list of approved words?

what would be the charge

[testednegative]

... if you downloaded a movie which you own because you stole the dvd from a store :S

Re:what would be the charge

[temojen]

If you stole the DVD, you don't own it.

Re:what would be the charge

[Anonymous Coward]

but possession is nine tenths of the law...
seriously tho, who does own a stolen good? surely the best buy you ripped off no longer owns the product, as they have no control over it. maybe they own the right to have it but that's a different story...

Re:what would be the charge

[chris_mahan]

Even if you bought it, you don't own it. You own the media on which it is, and you have a license to view the media in your home. So what was stolen? The media. The license has zero-cost replication. The media bears all the costs.

If you copy the media from bought-DVD to burned-DVD, and destroy (through various means, incuding children) the original, you still only have one media and the exact same license.

Could you not make the media pricing separate from the license? Meaning, if you want to d/l the movie, you are registering a personal viewing license. Is this license transferable? Of course (proven in court). So if I buy a DVD, watch it, then upload it to my friend's PC in New York via FTP, and destroy my original copy, and relinquish the licensed rights to him (I don't want to watch the original crappy movie), why would I be in violation? Why would he be in violation for watching it?

File sharing is not like stealing

[MarkByers]

If you are using P2P software, you are not only downloading, but also uploading, which helps other users infrginge the copyright too. This is far more worrying to the copyright holders than one person stealing one copy. Also it is much easier to get away with downloading so a harsher penalty acts as more of a deterrent.

Re:File sharing is not like stealing

[WickedClean]

Good point, and also the fact that you are getting it online means that somebody else had to put in there, so it is like you are freely getting already stolen goods...sort of like a double whammy.

Re:File sharing is not like stealing

[Ingolfke]

If you are using P2P software, you are not only downloading, but also uploading, which helps other users infrginge the copyright too. This is far more worrying to the copyright holders than one person stealing one copy.

Actually copyright holders don't care if you steal their stuff from stores because they still end up getting paid. The store loses, but not the copyright holder.

Re:File sharing is not like stealing

[Anonymous Coward]

Actually, the store passes the loss onto the consumer who passes their loss back to the copyright holder again by not purchasing as much merchandise as they would have with lower prices all-around. Really, it hurts all parties involved.

Re:File sharing is not like stealing

[A Cheese Danish]

Actually, under most versions of p2p software, there is the ability under "Options" or "Preferences" to turn off your ability to share things.

I'm not too familiar with the protocols that BT uses but I suspect it would also be possible to block the outgoing ports it uses to redistribute the file.

Not saying that it's less criminal, but it seems that most of the lawsuits have come from the ??AA suing people actually distrubuting the files, not from those who just download.

Just so happens that most people don't take this precaution, since it defeats the whole purpose, but it my eyes, it does tend to keep me a bit lower on the scope of evil wrong-doers.

Well...

[Snowbeam]

It does take more resources to find you online than it does to post you picture from the security camera on TV and the web.

Oh wait.... ;-D

Easily explanable

[Rosco P. Coltrane]

For stealing the DVD you could face no more than up to 1 year imprisonment and up to a $100,000 fine; for downloading the same material you could face statutory damages of up to $3,300,000, costs and attorney's fees

It's a question of risk: if you shoplift, you face a much higher chance of getting caught, thanks to CCTV, security guards at the exit, and the silly square bulge in your pants that doesn't look so natural to the cashier. If you download a movie, there isn't remotely as much risk (remember the last time you had an adrenalin rush when clicking on a .torrent link?).

So therefore, the only way to instill fear in the mind of "internet shoplifters" is to up the possible penalty.

Re:Easily explanable

[Anonymous Coward]

So THAT'S why my friend with the square ass always gets away with it!

Re:Easily explanable

[ivan256]

So therefore, the only way to instill fear in the mind of "internet shoplifters"...

The only time quantity of punishment will affect the behavior of somebody breaking the law is when it is accompanied by certainty of punishment.

They can make the punishment for internet copy infringement as large as they like, but they won't reduce the amount of copying that occurs as long as they are only capabale of catching one in a ten million infringers. All raising the penalty in that case does is unfairly punish the few people they do manage to catch.

Re:Easily explanable

[avandesande]

I would bet the costs of catching and gathering evidence on a file-sharer are much higher as well.

Re:Easily explanable

[Rosco P. Coltrane]

The only time quantity of punishment will affect the behavior of somebody breaking the law is when it is accompanied by certainty of punishment.

Not at all: that's the very reason people play the lottery: their chances of winning are nearly naught, but millions play everyday because they reckon the enormous bounty is worth the ridicule odds.

Likewise, that's the reason a big drop was observed at the height of **AA-instigated lawsuits last year: chances of losing at the P2P game (not winning this time :-) are very small indeed, but the stiff penalty puts many people off, just in case they end up losing.

Re:Easily explanable

[redhog]

You do realize that lottery is just a tax on people bad at math, don't you? So higher fines will only work as a detterent to stupid people.

Re:Easily explanable

[NialScorva]

Ah, but there are more stupid people than smart people by a large margin, so if you eliminate the stupid people, then the smart people will realize the odds of them being caught just went up dramaticly.

Because I'm sure it'd work like that in the real world.

Re:Easily explanable

[jxyama]

>All raising the penalty in that case does is unfairly punish the few people they do manage to catch.

(emphasis mine) why is it unfair? if you break the law despite its punishment, then shouldn't you accept the punishment? "but others get away with it" is no excuse for not accepting the consequences.

Re:Easily explanable

[Rosco P. Coltrane]

You do realize that lottery is just a tax on people bad at math, don't you? So higher fines will only work as a detterent to stupid people.

Given the stupid people/smart people ratio, I think the **AAs would be very happy if all stupid people stopped filesharing :-)

And actually, that's really the only thing they're trying to achieve: smart people, or people with lots of computer know-how, would just use obscure under-the-radar P2P apps, or share privately with close circles of friends, but those are a very small minority.

Re:Easily explanable

[thpr]

So therefore, the only way to instill fear in the mind of "internet shoplifters" is to up the possible penalty.

But does "instilling fear" wash with: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."... the 8th amendment to the Constitution?

Re:Easily explanable

[mzwaterski]

If you put a red indian in a blue canoe and send him down the yellow river, how many flapjacks can you fit on the roof of a dog house?

Just because the analogy works for one aspect of something doesn't mean that all aspects of that something must follow. The big difference is that you are talking about a possible chance of reward versus a possible chance of punishment. Worst case scenario of buying 50 lottery tickets is that you are out 50$. Worst case scenario in downloading 50 mp3s is that you are out thousands of dollars. Examining worst case scenarios doesn't produce the same results as risk assessment, but that doesn't mean that the result is derived by stupid methods.

PS: Tell someone that won 20 million dollars in the lottery that they were stupid to buy lottery tickets and see how they respond.

Re:Easily explanable

[moonbender]

Because the punishment should fit the crime? It doesn't get any more obvious.

Re:Easily explanable

[Anonymous Coward]

if you shoplift, you face a much higher chance of getting caught, thanks to CCTV, security guards at the exit, and the silly square bulge in your pants that doesn't look so natural to the cashier.

Har har har-de har. You've never worked in a store, have you? The security guards are generally off sick, the CCTV has no way of telling whether you've paid for goods or not, and the cashiers are well past caring about anything other than how long it is till their next break.

I assure you, only dumb shoplifters have anything to fear. Just remember to rip the security tag off the back of the DVD case before walking out of the door, and you'll be absolutely fine.

Re:Easily explanable

[Anonymous Coward]

if you break the law despite its punishment, then shouldn't you accept the punishment? "but others get away with it" is no excuse for not accepting the consequences.

However, "but more serious crimes are punished more lightly" reveals problems. For example, I think you'd agree that it would be silly to introduce the death penalty for copyright infringement while at the same time abolishing it for murder, right? Even though in that hypothetical situation death would be "the punishment" that you seem to think people "should accept".

The fact is - punishments are not supposed to be arbitrary. There is a reason why minor crimes tend to be punished with fines or community service, and major crimes with jail time or even death. Ultimately, you want to ensure that at every stage, it is in the criminal's best interest not to commit any further crimes. Hence the saying "you may as well be hanged for a sheep as a lamb".

In the specific case of copyright infringement, therefore, disproportionately large fines do NOT end up discouraging infringement. If the punishment for distributing a few files is already so heavy that, to the average person, it appears that being hit with a fine on that scale will bankrupt them for the rest of their lives ANYWAY, then they no longer see any reason not to continue infringing copyright - since the consequences for being caught can't really get any worse.

Whereas, arguably, with a reasonable fine (say $500 per title pirated instead of $100,000), the average infringer - on seeing someone else get nailed for piracy, and hit with a fine that, while very expensive indeed, is still the sort of thing you can imagine one day paying off - will think, hang on, maybe I'd better stop now, while I can still afford to pay my debt to society if they find out what I've done.

That's the theory of how raising penalties can be counter-productive.

Re:Easily explanable

[IronChef]

They can make the punishment for internet copy infringement as large as they like...

Thanks, we will!

- The Management

Re:Easily explanable

[Anonymous Coward]

You can go further back than the Constitution. What about Magna Carta?

"20. For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood."

Our medieval ancestors rose up and forced King John to recognise this basic principle of freedom in 1215. Have we any chance of forcing King George II to recognise the same principle in 2005? Sadly, I fear not.

Re:Easily explanable

[ChrisPee]

If you download a movie, there isn't remotely as much risk (remember the last time you had an adrenalin rush when clicking on a .torrent link?).

Surely you jest!

Your ISP knows about every torrent you download. So does the uploader, and many of download peers. They choose not to forward this information to prosecutors, but there is nothing stopping them from changing their minds.

A more appropriate analogy: the security guard at the shop sees you shove a disc down your pants every week. Luckily for you, he is lazy, and he knows he'll get paid the same whether he grabs you or not.

Re:Easily explanable

[Feztaa]

Pffft, the constitution is SO 1993!

Re:Easily explanable

[Dun Malg]

(emphasis mine) why is it unfair? if you break the law despite its punishment, then shouldn't you accept the punishment?

He means "unfairly" in reference to the degree of punishment, not the fact of punishment at all. In other words, it is unfair that they are punished so harshly.

Re:Easily explanable

[Minna Kirai]

if you break the law despite its punishment, then shouldn't you accept the punishment?

Others have already answered, but I will expand in a few ways.

Suppose the punishment for driving over the speed limit was summary execution (the cop shoots you, right there in the car). That would make people less likely to speed, but it wouldn't be fair. (Unless you're of the opinion that every law is by-definition fair)

A fairer way to punish P2p copyright infringers would be to treat it more like traffic tickets: low punishment, but a much higher chance of being caught. (And remember, traffic tickets are rather inexpensive for the government to hand out, as they don't have a burden of proof unless it's contested)

Re:Easily explanable

[Minna Kirai]

I would bet the costs of catching and gathering evidence on a file-sharer are much higher as well.

They're not. For about $200 worth of programming time, I could write you a script that'll monitor a few major BitTorrent sites and collect thousands of cases of copyright infringement each hour.

True, that system won't collect air-tight evidence, but that doesn't really matter. It's perfectly alright for a society to punish misdemeanors with a small fine and a presumption of guilt, as long as it's easily contestible.

Specifically, if the police mailed off $50 fines to every US citizen they caught taking an obviously-copyrighted file from piratepay.org, that would cut the infringement rate cut the infringement rate tremendously. Even if a suspect can easily beat the charge by just showing up in court, it will be enough in general.

Re:Easily explanable

[dj245]

likewise, that's the reason a big drop was observed at the height of **AA-instigated lawsuits last year:

A big drop in KazAA! users. You'd have to be an idiot to use KazAA these days with the fake files and the adware and such. You'd also have to be an idiot to not realize that people that "dropped" just switched to a different file sharing program.

Re:Easily explanable

[pruss]

At the same time, there should be some principle of justice limiting punishment. Suppose that there was a method of copying materials that you had almost zero chance of getting caught doing. Then by the principle that the penalty has to be inversely proportional to the likelihood of getting caught, you could have incredibly large penalties. Since there comes a point where there is no marginal disutility in a fine (for most people it doesn't matter if they're fined $100 million or $100 billion), in order to proportionately increase the penalty after some point you will have to move into longer and longer jail sentences (or amputations or torture or death). Thus, one would get the absurdity that if there is a method of infringing copyright such that one has, say, only a 1/10^9 chance of getting caught, one might end up in jail for life for copying a $10 CD. Why? Because by the inverse proportionality principle, a penalty would have to have a disutility equal to 10^9 times the utility of $10. For most people, a monetary fine will not achieve that amount of disutility, and hence a sizeable jail sentence would be needed.

Traditionally, the limiting factor on penalties has been the lex talionis: an eye for an eye, a tooth for a tooth. This would, on the face of it, imply that when you steal/copy something worth $10, you should give back the item or destroy your copy, and pay up a $10 fine. This, however, would fail to deter in cases where one is unlikely to be caught. But it's not clear that it's morally acceptable to ratchet up a penalty just to deter (life in jail for parking violations would be unjust, even though it would deter really well). One might be able to ratchet up the fine to some degree beyond the $10 to account for the costs of a law enforcement system (which one has forced to be active in one's case, and so one should be responsible for a portion of its operating budget), damage to public trust, or whatever. But still, there would surely be a limit, and I suspect lower than $1M in the case of stealing/copying a $10 item.

And of course there are methods of infringing on copyright that have such low chance of getting caught. For instance, lock your doors, cover your windows, disconnect your computer from the Internet, copy from a physical CD to your hard drive, put it on a 200mb tape encrypted and steganographed onto a large bunch of jpgs, label the tape "Summer vacation '03 photos", clean out all temp files and erased data space on your hard disk, and make sure you never do anything that will get your data seized by the government. There is always a chance you'll get caught, but the chance is close to nil. Of course playing the music will be hard. :-) It would be absurd to suppose that one should go to jail for life for such an act.

Re:Easily explanable

[LuxFX]

It's a question of risk: if you shoplift, you face a much higher chance of getting caught

I don't think it's so much to do with risk, although that might be what lawmakers tell themselves so they can sleep at night.

The thing is, if you steal a DVD, you steal it from WalMart or Best Buy, not from ABC or Warner Brothers, because the retailer has already purchased it from their supplier, etc.... If you download it, you are stealing it 'directly' from ABC or WB, at least in their eyes. And it's the studios that have the lobbying power, not the retailers.

Re:Easily explanable

[Pofy]

>So therefore, the only way to instill fear in
>the mind of "internet shoplifters" is to up the
>possible penalty.

This doesn't bode well. Me, using a pencil and paper copying a poem from a book I have is next to impossible to find out. The chance of getting cought approchaes zero. So the penalty would approach infinity. At the very least the panlty should start in the billions of dollar.

On the other hand it bodes well for my planned bank robbery. I intend to call the police before hand, not use mask and stare into the cameras and so on. Sure, a huge chance of getting cought, but by your reasoning, the penalty would probably not be more than say $10 or so in fines.

Sounds like a good reasoning to me!

Re:Easily explanable

[ivan256]

why is it unfair?

It's unfair not because they don't deserve to be punised, but because the punishment no longer fits the crime.

back in the day

[Anonymous Coward]

well, they used to chop your hand off for shoplifting...

so maybe the punishment should be taking your computer away!

Yeah, sharing is a good idea

[Anonymous Coward]

Maybe I should go outside and "download" somebody's car...

Re:Yeah, sharing is a good idea

[klang]

As long as you check, that the owner doesn't have a bunch of ripped cd's in the glovecompartment .. you would be facing a sentence for "stealing music" ..

Statutory damages....

[julesh]

My understanding of the situation is that the statutory damages are only available if the file was available for other people to download from you (and it is therefore assumed that they did).

They're not just damages for a single instance of copying, but also for the contribution you made to those other people downloading from you.

Re:Statutory damages....

[cpt kangarooski]

That is incorrect.

The only obstacles to an imposition of statutory damages are at 17 USC 412 and extremely rare cases (they won't apply to anyone here) under 504(c)(2).

Even one single instance of infringement, such as by reproduction, will permit a claim of statutory damages that can be as low as $200 per work, or as high as $150,000 per work. It's fairly simple: just read 17 USC 106(1), 501, and 504(a),(c).

The other people who downloaded from you have also infringed, and if the plaintiff wants damages from them, they can sue for them.

Re:Statutory damages....

[Anonymous Coward]

Let me ask you.

To the best of your knowledge, has anyone ever been sued or prosecuted for downloading for personal use?

Something like:

Billy downloaded brittany's latest album. 10 songs, 150K/song. Billy, you owe use $1.5M.

Re:Statutory damages....

[cpt kangarooski]

Sort of, yes.

I personally don't know of any cases where someone has been sued for themselves downloading.

However, it is illegal to help (in certain ways) someone else download, if that downloading is illegal, and there have been a lot of cases like this. Since it is necessary in such a case to show that downloading is illegal, the same exploration of the law has occurred. If it were legal to download, there could be no liability for helping someone download.

Napster is such a case -- their network and software was only illegal if using it to download and upload was illegal, and if they had a sufficiently close involvement in that illegal downloading and uploading. Napster lost.

So it's basically, 'Billy downloaded the latest album, Napster helped, so Napster owes $1.5 M.'

So my choice is

[the_skywise]

1 year in jail and up to a $100,000 fine.

or no jail time and up to a $3 million fine.

I dunno... I think the latter is still a "lesser" punishment as the judge will probably still put the fine at about $100,000 depending upon the # of downloads.

Re:So my choice is

[nomadic]

After a certain fine the actual number becomes meaningless, as most people will just declare bankruptcy.

Re:So my choice is

[Rude Turnip]

I'll take the "no jail time and up to a $3 million fine" because:

Not catching AIDS from prison rape...priceless.

Re:So my choice is

[Anonymous Coward]

1 year in jail and up to a $100,000 fine.

or no jail time and up to a $3 million fine.


RTFA. You can still get the jail time for infringing.

Re:So my choice is

[CharlieHedlin]

You didn't read carefully enough, the possibility of a year in jail is still there for infringement.

As it is in law, the criminal penalty apears to be about the same, but the infringement comes with the possibility of a huge civil penalty.

Since you can recieve both penalties, the penalty for infringement is much higher.

Re:So my choice is

[1ucius]

Still not quite comparing apples to apples, imho. Federal criminal copyright infringement requires that you reproduce or distribute at least $1000 worth of copyrighted works. 'Physically stealing' the same amount of goods often triggers a 5 year max (e.g., http://www.revisor.leg.state.mn.us/stats/609/52.ht ml)

but

[Quasar1999]

Can I shoplift from a store in my underwear? I think the extra 3.2 million is a convenience fee for being able to commit crime in my parent's basement...

Re:but

[jd]

What's a store doing in your underwear?

Re:but

[Anonymous Coward]

For that much money you shoudln't have to wear underwear.

Re:but

[Hortensia Patel]

Selling bullet-proof pyjamas to elephants?

Re:but

[Jacer]

Well, I'm sure if you did shoplift in your underwear the jury would take pity on your "special" circumstances.

Re:but

[Anonymous Coward]

Sounds like a new excuse to me.

"Oh my God, George, what are you doing in there"

"Just taking a five-finger discount from the store in my underwear."

Re:but

[Anonymous Coward]

> What's a store doing in your underwear?

It's the perfect place for a "flea" market. ;-)

Re:but

[u02sgb]

I'm just pleased to see you...

Re:That's how it should be

[CDOS_CDOS run]

maybe we should consider a tax incentive for those "go-getter" theives!

I guess

[WormholeFiend]

the penalties are commensurate with the impact they want to make in the media.

If you publish a story about a guy who got caught shoplifting, nobody's going to care.

However, make a big splash about a 12 year old girl or a 80+ year old grand-mother and their dog being sued into oblivion, and the story gets everybody going "WTF".

They're obviously going for the shock-therapy/re-education treatment of the masses.

Re:I guess

[Anonymous Coward]

That's going to backfire on them ridiculously, however. Not only is it causing a negative public backlash, but at some point, they're going to sue someone who's more than a tad wacko. They'll realize that their life has been ruined anyways, so they might as well load up with some ammo, roll up to the HQ and start mowing people down.

Re:I guess

[mark-t]

Actually, the differing penalties are an attempt to be commensurate with the risks being taken to perform the crime.

Given two crimes of overall equal signigifance, the easier it is to get away with the crime, in general, the stiffer the penality for the people that are caught, in order to try to balance it out.

Re:I guess

[ScrewMaster]

Hey ... go for it. Let me know how it works out.

Re:I guess

[Anonymous Coward]

It's more like a 12 year old being arrested for shoplifting when she hasn't even been to the mall the store is in.

How about this:

[Anonymous Coward]

Maybe manipulating the magnetic charge of particles on a hard drive platter that I own, or changing the voltage of output pins on a computer that I own SHOULD BE LEGAL. How about that? Seems fair, what with it all being my property.

Oh, but there's this magic kind of "intellectual property" that's allows people to own ideas. Something absurd on its face. Nevermind that unlike real property, IP "rights" go away after a certain amount of time.

Re:How about this:

[Rosco P. Coltrane]

Maybe manipulating the magnetic charge of particles on a hard drive platter that I own, or changing the voltage of output pins on a computer that I own SHOULD BE LEGAL.

Well I don't know, let's see: I have nails in my workshop, I have a bottle of butane under the stove, an alarm clock, batteries, a small light bulb and some gunpowder from the many rifle cartridges in my gun rack. I own them all, maybe connecting the batteries to the alarm clock and the light bulb, smashing the bulb's glass, sticking the filament into gunpowder, installing the whole thing next to the gas bottle and wrapping the whole in nails and duct-tape SHOULD BE LEGAL.

Oh, and I also own a camera. Perhaps rearranging the bits of silver on the film to show naked little boys doing naughty things to my dogs (which I own) SHOULD BE LEGAL.

IT SHOULD BE ALL LEGAL DANGIT!

Re:How about this:

[Anonymous Coward]

Whoever modded this guy insightful isn't so bright really...

Re:How about this:

[Anonymous Coward]

How is this flamebait???

The point is that laws don't necessarily respect your right to do whatever you want just because you own what you break the law with.

Re:How about this:

[houstonbofh]

Oh, and I also own a camera. Perhaps rearranging the bits of silver on the film to show naked little boys doing naughty things to my dogs (which I own) SHOULD BE LEGAL.

You own naked little boys?

Re:How about this:

[lowe0]

Hey, twiddle those particles all you want, as long as you don't hurt anyone else.

Unfortunately for you, the government feels that someone is harmed when you start rearranging those bits into a copy of the bits representing someone else's ideas without their permission, and they've got a valid argument (though there could be equally valid opposing arguments as well). If you don't like that, write your representative and convince them otherwise.

Re:How about this:

[Flaming Foobar]

Oh, but there's this magic kind of "intellectual property" that's allows people to own ideas. Something absurd on its face.

Have you ever done any writing? Composing? Design work? Art? Can I come and erase all of it?

Re:How about this:

[Anonymous Coward]

To quote John Perry Barlow:
"Copyright and intellectual property are the most important issues now. If you don't have something that assures fair use, then you don't have a free society. If all ideas have to be bought, then you have an intellectually regressive system that will assure you have a highly knowledgeable elite and an ignorant mass...[P]ersonally [I] think intellectual property is an oxymoron. Physical objects have a completely different natural economy than intellectual goods. It's a tricky thing to try to own something that remains in your possession even after you give it to many others."

And to quote Roderick T. Long:
"modern electronic communications are simply beginning to make copyright laws unenforceable; or at least, unenforceable by any means short of a government takeover of the Internet -- and such a chilling threat to the future of humankind would clearly be a cure far worse than the disease. Copyright laws, in a world where any individual can instantaneously make thousands of copies of a document and send them out all over the planet, are as obsolete as laws against voyeurs and peeping toms would be in a world where everyone had x-ray vision." ;-)

Re:How about this:

[tepples]

<hypothetical>

Can I come and erase all of it?

Yes, because I've made remote backups in multiple countries.

</hypothetical>

Re:How about this:

[Anonymous Coward]

No. Because its on my hard drive which I own.

If you manage to get a copy of it, feel free to distribute.

Re:How about this:

[Anonymous Coward]

Writing won't do crap. What you need to do is donate more money to the election campaigns of several congressmen and senators than Disney, and others who benefit from the IP-gravy train donate. Oh wait, thats pretty much impossible to do without a government-granted monopoly.

So you next best course of action to recognize IP law for the fraud that it is and refuse to accept the legal=moral or copyright-infringement=theft arguments even in their most implicit forms.

Re:How about this:

[lowe0]

If you're going to do that, it's only fair to also reject the benefits of the system you shun, and only consume content from providers who permit you to use their content under terms that are more palatable to you. For example, use Linux instead of Windows, only listen to music that artists provide to the public domain, etc..

Claiming that intellectual property is invalid and then helping yourself to the fruits of IP owners' labors is utter hypocrisy.

More Mickey Mouse laws

[QuantGuy]

More proof that the entertainment industry has Congress in its pocket.

I'd love to see the RIAA and MPAA prosecuted under the RICO statute. (Wishful thininking, I know.)

Re:More Mickey Mouse laws

[Phil246]

i dont think its limited to the entertainment industry. i firmly believe that there are many many more corporations which have 'yes men' in congress. it stinks, it truely does at just how corrupt american politics have become - and dont make the mistake of believing its restricted to congress only.

Re:More Mickey Mouse laws

[cnj]

I'd love to see the RIAA and MPAA prosecuted under the RICO statute. (Wishful thininking, I know.)

http://www.theregister.co.uk/2004/02/19/mom_sues_r iaa_members/

Re:More Mickey Mouse laws

[thogard]

anyone have any news thats not a year old about this?

Come and get me, copper!

[BarryNorton]

I'm going to steal a DVD... and then upload it! (jk)

Redistribution, Redistribution, Redistribution

[StevisF]

Such high penalties for copyright infringement exist due to people potentially profiting due to redistribution of copyrighted material. They're not going to fine you 33 million for downloading a season of some TV show. However they may if you're making copies of the copyrighted material and selling them.

Re:Redistribution, Redistribution, Redistribution

[MustEatYemen]

A distiction is made between civil and crimial infringement, to cover people selling bootlegs. Under the DMCA, civil is 150k, criminal is 250k. (Can't a person be prosecuted under both, so 400k? max per item. 26 episodes in a season,10400k max?)

Re:Redistribution, Redistribution, Redistribution

[Flaming Foobar]

Such high penalties for copyright infringement exist due to people potentially profiting due to redistribution of copyrighted material.

It's also about scale. At any given moment, there are millions and millions of people downloading films, music, porn whatnot. Participating in huge organized activity is completely different from stealing ONE copy.

So do NOT do either !

[Anonymous Coward]

Duh!

Distributing

[Inkieminstrel]

When you download via a torrent, you are distributing the file. The penalties for illegally and possibly widely distributing copyrighted material are rightfully more harsh than just stealing a $20 item.

The jist of this article has been argued to death.

Re:Distributing

[Anonymous Coward]

really? I block outgoing on my firewall. NO torrent file get's out. I'm in leech mode with a customized app that fixes that silly cap if you dont share.

so tell me again how i am sharing?

Motiviation

[teiresias]

While I agree the punishment seems harsh in contrast to petty crime (stealing), I think the biggest difference is the ability to do that makes the difference.

It takes a different type of motivation to go into a store and steal a DVD. It's much more offical physically stealing something. We've been taught that this is a crime and there are reprecussions.

Whereas with access to a computer, the only person to guilt you is uh...no one? With no one else in your room, no shop keeper, a vague moral lesson going around, it's a lot easier to justify.

A lawmakers response is the only one they know. To ratchet up the punishment and cross their fingers it'll solve the problem.

Is it now automatically illegal ...

[UnderScan]

downloading one season of a TV show with BitTorrent
AFAIK in the USA, downloading a season of a TV show is OK if it was recorded from an over the airwaves broadcast. I feel that over the air broadcast is covered under fair use and timeshifting. Now if I downloaded a season of a TV show that was ripped from DVD or VHS then it is illegal.
Is it now automatically illegal to download a TV show?

Re:Is it now automatically illegal ...

[j0nb0y]

It doesn't matter how the video was recorded, it's still illegal to distribute it over the internet. If you record it yourself, that's perfectly fine. Downloading it from others is not.

Re:Is it now automatically illegal ...

[Anonymous Coward]

AFAIK in the USA, downloading a season of a TV show is OK if it was recorded from an over the airwaves broadcast.

I don't know where you heard that-- probably from the same guy who said "downloading roms you don't own for evaluation purposes is legal if you delete them in 24 hours."

It's not "okay", it just hasn't (AFAIK) been the subject of a lawsuit yet. Possibly because the television industry doesn't have their own MPAA.

Re:Is it now automatically illegal ...

[Anonymous Coward]

Yes, it is illegal, because it is DIGITAL. Hence, protected by the DMCA. Using a VCR to tape The Simpsons, and giving that tape to a neighbor to watch - legal. Recording it on a computer, and giving the file to a neighbor to watch - illegal.

You have to remember, most (older) politicians look at a computer like a deer looks at headlights. Things that are "digital" scare them, and without enough background to instill common sense, they default to listening to the people that matter: Corporate America. Hey - if YOU bought them $400 dinners twice a week they'd care what you think too.

Re:Is it now automatically illegal ...

[Ahnteis]

always was. Not that I don't think it's stupid.

Re:Is it now automatically illegal ...

[j0nb0y]

The DMCA doesn't recognize a difference digital and analog. Using a VCR to do it is still illegal, although you would most likely never be prosecuted for it. Ditto for ripping a show to DVD and giving it to a neighbor. Technically illegal, but it's unlikely anyone will ever be prosecuted for it.

Re:Is it now automatically illegal ...

[j0nb0y]

Make no mistake, if the industry could, they'd stop you from ever being able to record any show, even temporarily.

Soon they'll be able to with the broadcast flag. Sad, but true.

Re:Is it now automatically illegal ...

[fatcatman]

It doesn't matter how the video was recorded, it's still illegal to distribute it over the internet. If you record it yourself, that's perfectly fine. Downloading it from others is not.

So what. The laws are bullshit. Whether I record it off the air, borrow a friend's VHS tape, or download it, the end result is the same. Therefore, both the industry and "my" government that they seem to own can piss off. They can't find me now that I'm sharing via encrypted channels with small groups of trusted friends, and I refuse to feel guilty about it because in my moral opinion I'm not doing anything wrong.

I see nothing wrong with this..

[d_jedi]

It takes a lot more time and effort in order to find and prosecute a P2P pirate than a shoplifter. As well, P2P piracy is a more pressing problem. And furthermore, when you use BT or some other programs, you're not only doing the equivalent of "shoplifting" the DVD, you're also distributing copies of the DVD illegally - which carries a much higher penalty than simple shoplifting in it's own right.

What's the solution? DON'T STEAL/PIRATE MOVIES/BOOKS/SOFTWARE/MUSIC/etc.! It's VERY simple to avoid being caught by these supposedly "unfair" laws!

Re:I see nothing wrong with this..

[Locke2005]

By that same token, it is much harder to find and prosecute speeders than murderers (because there are so many of them), so the penalties for speeding should be much harsher?

I think you're missing the point here. There is really only one law: "Do no harm". All the rest is just codifying liquidated damages or penalties for doing harm. As such, the penalty should be comensurate with the actual damage done, not with the probability of actually getting caught. Unless you honestly beleive that when I cop catches you speeding, you should also have to pay for the thousands of people they didn't catch!

Re:I see nothing wrong with this..

[arkanes]

Punishments that are not commesurate with the crime are stupid, whether the law itself is just or not. I'll also take issue with whether or not p2p is a more pressing problem - shoplifting, which is literal outright theft, costs *billions* every year. It can cripple a small business. The indirect costs, in the form of store security are huge. P2P is simple a) newer b) more high profile. The reason it's high profile is because it's a) new and b) directly affects the companies responsible for deciding what gets pushed in the public eye.

Re:I see nothing wrong with this..

[l4m3z0r]

I see nothing wrong with this....P2P piracy is a more pressing problem.

Except that P2P isn't a real problem just one made up by the RIAA, MPAA to account for theoretical sales that in all likelyhood WOULDN'T HAVE HAPPENED ANYWAY.

For the most part people who steal music would have just went without, P2P has not changed the buying habits for the worse, on the contrary studies show P2P has even elevated sales in some cases.

You should probably take into account that the current MPAA, RIAA situation is bad for consumers(and artists alike) and that this should be considered a valid way for forcing change. The musicians/filmmakers are hurt more by the RIAA/MPAA than P2P users could ever dream of impacting them. My advice, "steal" as much as you want they deserve it.

Re:I see nothing wrong with this..

[mlyle]

Ah, but that doesn't really work well from an economic angle.

I mean, if I rob a bank and net $100,000; and the punishment of me getting caught costs me the equivalent of $150,000; and I have a 50% chance of getting caught, I technically would come out ahead repeatedly robbing banks.

Likewise, the odds of getting caught for shoplifing once are low; no one who is predisposed to shoplift if, when caught shoplifting, they were just charged with something commensurate to the amount they were caught stealing.

So yes, as a matter of developing law, we do factor probability of getting caught, reward experienced by the offender from the illegal behavior, and damage done into penalties. A balance has to be struck, though-- it is unjust for the penalty to be too high in relation to the harm, and when the probability of getting caught is low enough or the reward high enough, it is often ineffective to increase penalties.

Re:I see nothing wrong with this..

[Anonymous Coward]

The problem is, the downloads I can get of music/movies end up being of higher quality than the ones that I can legally purchase at this point. For one thing, no silly restrictions (you have to burn this to a CD before you can rip it back onto your hard drive then stick it into mp3 format and place it on your mp3 player), no DRM saying you can only watch this for 24 hours, better quality, and no forced use of a certain program.

This is like prohibition. Yeah, water is legal, but beer makes me happy, and when congress finally figures out that I'll still drink both and the profit is higher without prohibition, things will change for the better.

Re:I see nothing wrong with this..

[Aneurysm9]

What's the solution? DON'T STEAL/PIRATE MOVIES/BOOKS/SOFTWARE/MUSIC/etc.! It's VERY simple to avoid being caught by these supposedly "unfair" laws!

And if there was a law prohibiting the discussion of anarchy would you simply say, "don't discuss anarchy?" The fact that you can avoid punishment by complying with the law does not change the fact that a law is unfair, arbitrary, and without a basis on which the government can claim the power to act. If I feel that a law is clearly unconstitutional I am going to act as though the law does not exist. If I am charged with violating that law then I have just bought myself the chance to convince a court of what I already believe.

Re:I see nothing wrong with this..

[NaruVonWilkins]

When you shoplift, you're creating a realized loss for the company. When you copy a file, you have no effect on the company's bottom line unless they can show one. Since their sales haven't been dipping, I'm not sure how this law can still exist.

The problem with the example as it stands...

[GPLDAN]

There's a bit of a false dichotomy at work here. The issue as it is presented is not the same at all. And the heart of the problem is bitTorrent itself. Lets use an older P2P protocol like GnuTella or something where you get a copy of Alias but you don't share it back. And you can somehow prove this.

You haven't committed copyright infringement. In the P2P case, you have. As the law sees it, even though in reality you only shared a few bytes of each episode's MPEG.

So, the analogy breaks down. It would be as if when stealing the DVDs from the government owned video shoppe, you somehow passed out copies to friends outside who also wanted to see it as an artifact of the act of stealing. But, somehow, you only gave them a few minutes of the show on the DVD copy. Then, in both cases, you'd be committing copyright infringement + theft and we could compare the crimes correctly.

This seems fairly obvious. IANAL and all that, but I'd have to say this article in attempting to show some sort of sentencing injustice in the system just reveals the ignorance of the author.

Re:The problem with the example as it stands...

[Anonymous Coward]

So, the analogy breaks down. It would be as if when stealing the DVDs from the government owned video shoppe, you somehow passed out copies to friends outside who also wanted to see it as an artifact of the act of stealing. But, somehow, you only gave them a few minutes of the show on the DVD copy. Then, in both cases, you'd be committing copyright infringement + theft and we could compare the crimes correctly.

How about if you steal the DVD and then invite a buch of friends over to watch it? And then when you're done, you pass the DVD on to a friend, who invites a buch of friends to watch, and then pass it on, etc, etc.?

How do you know that that won't happen with the stolen DVD? Think of all the lost sales!

Since you can't know that that won't happen, the law for shoplifting should be made even stronger!

Re:The problem with the example as it stands...

[radish]

Lets use an older P2P protocol like GnuTella or something where you get a copy of Alias but you don't share it back. And you can somehow prove this.

You haven't committed copyright infringement

What? Of course you have. You have an unauthorized copy of a copyrighted work. What's more, you have caused that copy to be created and you have transferred it, probably over state lines. Why do people somehow think that copyright laws only apply to sharers? It doesn't.

Yes but

[Anonymous Coward]

When you shoplift a cd, a large copyright holder still got paid for that cd, and still got to determine the form and media by which that cd was distributed. Only the store is hurt. No one [i]really[/i] cares, the store writes it off as "shrinkage", shrugs and assumes there's nothing they can do about it.

When you download a song off the internet, a large copyright holder loses their ability to control the flow and use of the "intellectual property" they own. This, now, is [i]real[/i] damage.

Remember, in the America of today, objective ethics, social decay, property, and liberty are irrelivant. Whether something is "good" or "bad" is entirely a function or whether or not it increases the power and money of large corporations.

Re:Yes but

[Spy der Mann]

Only the store is hurt.

Yes. However you took from them PHYSICAL property. In this case, the penalty for shoplifting should be MORE than from downloading a pirated file. Of course, the damage in question is less than say, $100 ?

IMHO downloading a pirated file should be fined with not more than the value of the file in question (in this case, the DVD's cost).

So the RIAA and MPAA should go after _ALL_ the people downloading these files. This would result in a greater fear of getting caught, major income for the RIAA, and less pentalties for the infringers.

Re:Yes but

[Anonymous Coward]

If things worked like that, Kazaa would become the world's most popular LEGAL movie store. Download till you drop, and get your bill in the mail the next day. Not that that wouldn't be cool, but I don't think the MPAA would go for it :D

Difference between VCR and P2P???

[Ced_Ex]

As far as I know, you can legally record television programs using your VCR for personal use. So for instance I tape a program that I paid for through "cable" fees so that I can watch later.

Why can't I download that same episode using P2P?

Is it a matter of different technology? Recording is recording.

Re:Difference between VCR and P2P???

[soupdevil]

The same could be said of radio and a tape recorder.

Re:Difference between VCR and P2P???

[jamesoutlaw]

One difference is that by using your VCR to record a program from your own TV is that you are recording the content from a source that has permission from the copyright owner to distribute the content. By downloading the same program from a P2P, you are getting the content from a source that does not necessarily have permission to distribute the content from the copyright holder... and that's illegal.

Re:Difference between VCR and P2P???

[thpr]

Is it a matter of different technology? Recording is recording.

Recording with a VCR is offsetting in time something which you have otherwise legally acquired (the cable company or TV station is a licensed distribtor of the content). Directly from Sony/Betamax: "Any individual may reproduce a copyrighted work for a 'fair use'; the copyright owner does not possess the exclusive right to such a use"... and later "there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works"

Downloading from a P2P network is a copy from another person who is NOT legally distributing the work. It is not fair use, because it involves sharing a full copyrighted work between individuals (some P2P architectures not withstanding) and also may cause nonminimal hard to the potential market for a work (because of the 'free' acquisition, you wouldn't buy a DVD or watch TV and 'pay' via watching advertisements or paying the cable company.)

Re:Difference between VCR and P2P???

[Anonymous Coward]

The bits from your personal DVR have magical faerie dust on them which makes them good bits.

The bits you got off the internet have been rubbing up againts kiddie porn and therfore are evil bits.

And this is surprising?

[Monkelectric]

Look people, the US government does NOT SERVE YOU. It serves the interests of the moneyed and corrupt corporations which support it.

Shopplifting: not a threat to said corporations.
P2P social revolution: threat.

From that perspective, its quite easy to see WHY the penalties are set up the way they are.

Re:And this is surprising?

[Anonymous Coward]

So are you trying to say that something like setting the max fine for copying a single DVD ($250,000), and Bush wanting a $250,000 cap on non-economic damages, from the worst possible medical malpractice is out of whack? What are you, a commie?

Re:And this is surprising?

[Reality Master 101]

Look people, the US government does NOT SERVE YOU. It serves the interests of the moneyed and corrupt corporations which support it.

Um, no. It serves the interest of EVERYONE, including people who own stock in corporations. Do you really think the government should only represent people who don't own any stock?

One of the government's functions is to enforce laws. It is illegal to steal copyrighted material, therefore, they are doing exactly what they should be doing. Your childish "right to steal" that you think you have doesn't exist.

Re:And this is surprising?

[javatips]

It looks your are the first person who had a clue about the real reasons for the disparity.

Fines are not based on how bad the society (people) think the crime is, but about how bad the lobbies (corporations) think the crime is.

Re:And this is surprising?

[Anonymous Coward]

Arguing whether we live in a corporate-run plutocracy is a waste of time. The real argument is the extent of it.

And, it's not the enforcement (executive branch) that makes this story interesting; it's the creation of law (legislative branch).

Re:And this is surprising?

[Anonymous Coward]

Do you really think the government should only represent people who don't own any stock?

No, but it shouldn't only represent people who do own stock either. Which is pretty much how it stands now.

Re:And this is surprising?

[Monkelectric]

So are you trying to say that something like setting the max fine for copying a single DVD ($250,000), and Bush wanting a $250,000 cap on non-economic damages, from the worst possible medical malpractice is out of whack? What are you, a commie?

Thats a good pointa actually, I wanna address that. A friend of mine was literally sentenced to death by an HMO. He had cancer -- they knew about the cancer, and said nothing. He has the documents, and X-rays that proved they knew about it years before it made him sick. The maximum malpractice award he was able to win was $100,000. Basically thats what his life is worth. Thats also what a dvd is worth apparently?

Re:And this is surprising?

[Dana P'Simer]

This is insightful! Give me a break. What "Social Revolution" is brought about by stealling from people?

I think P2P is a great technology and I think that it has the potential to actual facilitate a "Social Revolution" when it comes to the distribution of art. It is already being used by open source developers to distribute thier code. But the artists have to agree to that form of distribution. Just as the OSS developers do. In every case where artists have signed a contract with a record label they are saying that they want to give the record company the right to control distribution of thier music in return for monitary compensation. When a number one popular music group gets that way entirely through P2P distribution, then you will have your "Social Revolution". I actually hope that it happens, but until the artists voluntarily distribute their music that way, it is just stealing.

I write software for a large corperation. I have also contributed code to OSS projects. In each instance, it is I who decide how my code will be distributed. In one case I gave all the rights to my customer in exchange for money. In the other I gave it freely to the community for it's benifit and to improve a tool that I use. My code, my choice. Thier music, thier choice. It is as simple as that.

Re:And this is surprising?

[IthnkImParanoid]

Grandparent did not claim distributing copyrighted material is right; he just responded to the article's evidence of disproportionately harsh punishment for the crime.

Punishment that is disproportionate to the crime committed NEVER serves the interest of everyone in the long run. It can only serve the interest of a select few.

Re:And this is surprising?

[mobby_6kl]

> and corrupt corporations which support it.

WTF?? Oh no, the corporations are out to fuck us all! Come on, they might be evil but it's the government that is corrupt!

Re:And this is surprising?

[Grishnakh]

To borrow a phrase from another post in this thread, this friend of yours should load up on ammo, go to the HMO HQ, and start mowing down people. If you've been sentenced to death, you might as well commit a crime worthy of the sentence.

Re:And this is surprising?

[Tim C]

P2P social revolution

Not that you're biased at all...

Re:And this is surprising?

[Monkelectric]

This is insightful! Give me a break

You don't understand the real implications of P2P, hopefully, the mods do. Companies only have a *PASSING* interest in preventing you from downloading their material for free: Good Movies/Music almost always make money. They know all they have to do to make money is make good products.

What they WANT to protect -- is the distribution channel. I've been able to expose myself to musicians from all over the world and new types of music I couldn't even imagine before. None of this music and none of this creativity was avaliable through the media cartels. Once people realize they can get *BETTER* music directly from artists they like, media companies are over. Thats what scares them about P2P.

Right now its music, but in 10 years, It will be film as well.

Re:And this is surprising?

[crimson30]

> and corrupt corporations which support it.

WTF?? Oh no, the corporations are out to fuck us all! Come on, they might be evil but it's the government that is corrupt!

Aren't the bribers at least as corrupt as the bribed?

Re:And this is surprising?

[Dana P'Simer]

Like I said in my previous post. I think that you are right that P2P has a potential to create a "revolution" in the way art is distributed. The problem is, the artists have to be willing to channel thier art through those avenues. You seem to be saying that reguardless what the artists wishes are, you have a right to take thier art for free and benifit from it. You are the one who does not understand the basic human right to benifit from the fruits of our labors.

Re:And this is surprising?

[Monkelectric]

Its really more of a "2 wrongs doesn't make a right situation". The media companies are demonstrably corrupt and monopolistic, have been convicted of such, and yet our government is in league with them. Do you recall a few years ago when the media companies were convicted of price fixing to the tune of something like 5 billion dollars? And their fine was, 150million-ish? Shouldn't the punnishment for a crime exceed the reward?

At *worst* p2p users *AND* media companies are criminals. But another passenger is disembarking the cluetrain -- in a monopoly market, piracy/theft is the *ONLY* price competition. Why do you think they keep those ink cartridges in the little booth at officemax?

In every revolution laws are broken... Face it, theres no great battles to be fought, my generations revolutions are that of refinement :) That being said, what I do is this: I download *tons* of music, and movies. I buy what I like, delete the rest. A lot of it is indy stuff, a lot isn't. I really don't feel thres anything wrong with this. I have maybe 150 cds I *hate* from when I was a kid -- I bought them becuase I liked one song I heard on the radio (and I didnt even listen to "pop" when I was a kid, I listened to jazz and the local jazz station!). Now granted I have 150 cds I do like quite a bit as well bought when I was a kid. But the point is ... why are things like that? *ANY* product you buy you can return if it doesn't work as advertised, or if it doesn't work at all, or is fradulent, you can return it. You can even return BOOKS. But somehow cds and movies, you can't return them when they are horrible?

The differential is even greater

[juvlaw]

Shoplifting of an item under 500 bucks is a class A misdemeanor governed typically by state statutory code unless it occurs on federal land. Range of punishment is in most states up to 1 year in the county jail and up to a measely 1,000 fine. Restitution can be assessed for the amount of actual loss. When the value of the item taken exceeds 500 dollars it becomes a C felony and the range of punishment bumps up to 7 years and a 5,000 fine, plus restitution for the actual harm. Just my two cents as prosecutor.

Re:The differential is even greater

[Anonymous Coward]

" Shoplifting of an item under 500 bucks is a class A misdemeanor (...) Just my two cents as prosecutor."

Yay thanks! *Goes off to steal a Mac Mini*

Re:The differential is even greater

[snarkh]

So what is your opinion about this differential from your position as a prosecutor?

Re:The differential is even greater

[Anonymous Coward]

His example put the place of the shoplifting in a government store (e.g. federal land) for the sake of a more direct comparison (federal law vs. federal law, not local statutes vs. federal law).

And just to mention it again, since the article summary is wrong, his theory was that downloading via BitTorrent, due to the nature of the protocol, would put you in violation of the NET Act (so that you'd get up to 1 year in prison, NOT no prison term as the summary here suggests).

Re:The differential is even greater

[wombert]

Stealing a $20 DVD from a "government store" would carry the same penalty (for shoplifting) as stealing a $20 pair of shoes from a "government store". But stealing the DVD could theoretically also violate some copyright laws, which I assume would carry a different penalty. I just doubt anyone's ever tried to prosecute a petty shoplifter for copyright infringement when there are larger copyright offenders to pursue.

Re:The differential is even greater

[Pofy]

>But stealing the DVD could theoretically also
>violate some copyright laws, which I assume
>would carry a different penalty.

As far as I know, the right to steal a DVD with the work on is not an exclusive right to the copyright holder. So I fail to see what copyright has to do with stealing a DVD.

I guess this means...

[Anonymous Butthead]

LET THE SHOPLIFTING BEGIN!

Re:I guess this means...

[Anonymous Coward]

Shoplifters of the world, units and take over!

The Irrationality Copyright Law

[mr.newt]

This is just more evidence of the irrationality of copyright law, and particularly the DMCA. Copyright law is, at its roots, defined to create an artificial scarcity so people will continue producing creative works. I know this has been said to death, but no one seems to be listening: if copyright law is no longer serving its purpose (it isn't) then it should be done away with.

Bittorrent

[Anonymous Coward]

While you download with bittorrent you also redistribute. Easily explained. Also theres a smaller chance of getting caught when downloading.

Just thought I'd point out...

[ryanvm]

I just thought I'd point out that if you're using a P2P protocol (e.g. BitTorrent) to download then you're also uploading too. And distributing copyrighted information is rightfully a much more serious act.

(I hope the entitlement kids don't have mod points today. ;-)

Yes, always has been.

[saddino]

over the air broadcast is covered under fair use and timeshifting

Yes, but only for your own personal use. The minute you "share" it with potentially millions of other users, you've thrown your fair use out the window.

Re:Yes, always has been.

[Anonymous Coward]

There are some sun monitoring telescopes/satellites that share their data with potentially millions of users. How is this illegal?

The grand-parent talked about "over the air" stuff which, like the sun's image, becomes part of the electromagnetic background and should be allowed to be recorded and distributed.

Remember at all times

[Anonymous Coward]

The copyright cartels complaining about "file sharing" don't care about money. All they want is control.

Uhhh, no kidding

[Otter]

C'mon, you guys know why this is -- it's the same excuse you always throw around to explain why piracy isn't "stealing".

The cost of duplication of copyrighted goods, particularly in digital form, is trivial. Accordingly, it's a much bigger threat to the legitimate owners than is theft of physical objects, and is punished accordingly.

Re:Uhhh, no kidding

[Anonymous Coward]

Once I buy it or copy it I am the legitimate owner.

I believe in real property rights. Which exist because scarcity is a fundemental attribute of physical things. I don't believe in "Intellectual Property" rights at all, they are purely an anachronism, which, while nobly inspired, have been as thouroughly discredited as the East Indian Tea company as nothing more than a grant of monopoly benefitting the priveleged few.

Bulge?

[Ibag]

"and the silly square bulge in your pants that doesn't look so natural to the cashier"

Its a medical condition, you insensitive clod, and I'll thank you not to stare. This is why I have to spend so much time on the internet downloading...tv shows.

Talk about brazen!

[Thud457]

Bonus points for using one of their demo computers and stealing the blanks from the store!

Hmmm, do they have wireless networking now in-store so the saleguys can sell laptops? Why not just stealthily install kazaa on their machines, and then upload their own inventory one DVD a day? BWAHAHAHAHAHA!!!!

Thud457 does not condone stealing. Or copyright violation. For amusement purposes only. Do not taunt happy fun ball.

Fair use and shoplifting.

[bobdotorg]

Here's a hypothetical:

Person walks into Best Buy, opens a DVD, copies it to their laptop hard drive, leaves Best Buy. Copyright infringement. Sentenced to a Federal Pound Me in the Ass Prison for years.

Person walks into Best Buy with laptop. Shoplifts DVD. Gets caught. Misdemeanor - usually a $500 max fine, 90 days in jail, depending on jurisdiction.

Person walks into Best Buy with laptop. Shoplifts DVD. Doesn't get caught. Gets home and copies DVD to Laptop Hard Drive. Fair use. No penalty. When raided, person says, "Lookie here you MPAA bastards - I own an original copy, fair use."

Person walks into Best Buy with laptop. Shoplifts DVD. Doesn't get caught. Gets home and copies DVD to Laptop Hard Drive. Fair use. Feels remorse for Best Buy shareholders. Returns DVD to Best Buy.

In this final scenario, what, if anything, is the penalty if this person gets raided?

Re:Fair use and shoplifting.

[avandesande]

non of these scenarios are reasonable. any geek trying to shoplift would be immediatly caught.

Re:Fair use and shoplifting.

[Morning $tar]

Person walks into Best Buy with laptop. Shoplifts DVD. Doesn't get caught. Gets home and copies DVD to Laptop Hard Drive. Fair use. No penalty. When raided, person says, "Lookie here you MPAA bastards - I own an original copy, fair use."

Your not protected under fair use since it's not really yours. But they don't know that, so you can sue them for... well, no you can't, your not a mega-millionaire.

Person walks into Best Buy with laptop. Shoplifts DVD. Doesn't get caught. Gets home and copies DVD to Laptop Hard Drive. Fair use. Feels remorse for Best Buy shareholders. Returns DVD to Best Buy.

Your sued to oblivioun. You no longer posses the original copy and hence should've destroyed all copies made.

Re:Fair use and shoplifting.

[nearlygod]

Then what is the point of backups. Since I lost/damaged the original I guess I have to distroy the backup as well?

Re:Fair use and shoplifting.

[Morning $tar]

Then what is the point of backups. Since I lost/damaged the original I guess I have to distroy the backup as well?

If you resell/trade/give away the software/movie/music, then you have to destroy your backups because the original is now being used by someone else. If you just lost it... that's why you have a backup. If you want to sell the original and keep your back up and then by some chance the **AA kicks down your door, by all means, tell them your just lost the original... I don't care. Of course, IANAL and I don't keep up-to-date with current copyright laws, so for all I know it is illegal to make a backup.

Re:Fair use and shoplifting.

[Pofy]

>If you resell/trade/give away the
>software/movie/music, then you have to destroy
>your backups because the original is now being
>used by someone else. If you just lost it...
>that's why you have a backup.

But if someone steal the original from you......I guess ones head just explode trying to figure out if one has to destroy the backup or not...

Defeating legal notices from *AA

[Ced_Ex]

Well, suppose you get a letter stating you have downloaded copyright material and you are being sued to the tune of $$$.

Would it not be cheaper just to run over to the local Walmart and purchase all the stuff that was downloaded? Buying real copies from Walmart to prove prior ownership has got to be way cheaper than paying the fine/legal charges/etc.

This way, you can say that you actually have the copies and you were downloading mp3s, dvds to have backups and different formats.

Re:Defeating legal notices from *AA

[Anonymous Coward]

Three words: receipts have dates.

Re:Defeating legal notices from *AA

[The Rizz]

Three words: receipts have dates.

Six words: I don't have my receipt, jackass.

How dumb do you have to be to keep the receipt and show it to them rather than claim you bought it years ago?

Re:Defeating legal notices from *AA

[Software]

Buying real copies from Walmart to prove prior ownership

So you're going to commit perjury in an attempt to save yourself from copyright infringement?

Re:Defeating legal notices from *AA

[Software]

I looked at one of my older CDs just now, and found a litte "10/90" inscribed on the inner ring. I probably bought the CD around 1990.

Best of luck to the person who says in March 2005, "I downloaded that song in January 2005, sure, but I bought the CD the previous June" when the CD has "02/05" inscribed on it.

Re:Defeating legal notices from *AA

[The Rizz]

That is the date of manufacture, not the date of sale. Few CDs have more than one pressing, so they'd pretty much all have the same date. And even that's based on the assumption that all CDs have this datestamp on them (they don't).

Then, let's consider how much work it would take to go through every single CD you own, and look at every single date... not very likely they'd both - they'd just look at what you own, and take it at face value.

Re:Defeating legal notices from *AA

[Pofy]

>So you're going to commit perjury in an attempt
>to save yourself from copyright infringement?

Are you saying that in US, an accused can commit perjury?

Re:Defeating legal notices from *AA

[Software]

Perjury is lying under oath, so an accused person can commit perjury. In the US, an accused person (aka defendant) has the right to not testify. But if the defendant waives this right and chooses to testify under oath, then he (or she) can commit perjury. Prosecutions for perjury, and especially for perjury commited by defendants, are rare, but the crime occurs just the same.

Re:Defeating legal notices from *AA

[Pofy]

OK, interesting, but what constitues testifying and what constitues presenting, defending and arguing for your case? Is presenting some evidence, denying some statement and so on done under oath?

Lets take an example, you are acused of not having payed a bill. The first (well, one of the first or possible) reply or statement of the defendant would of course be, "I have no agreement to pay any bill with the other person/company)", hence having they actually first have to prove that you have a contract to pay something to start with. If they can show that, one can move on and you would have to prove that you hav payed it in some way.

Would claiming that you don't have (or can't remember or whatever way you express yourself) any contract that you have to pay something be a perjury if you are found to actually have such an agreement?

Distribution vs downloading...

[barfy]

Compare Shoplifting and making copies for anyone who asks, vs. downloading via torrent. That is what is comprable...

Compare shoplifting with simply downloading and not resharing (IE no torrent...) then it is a lot less for downloading..

It is distribution here that is what generates the fines. Not the downloading...

Ridiculous argument

[Locke2005]

Making a bomb should be legal, as long as you detonate on your own property and cause no damage to your neighbors. Harming others with a bomb is illegal just as harming others by beating them with a down pillow is illegal -- it's the harm caused, not the nature of the object that's important! (Yes, a threat to cause harm is also harm.)

You don't legally own the naked little boys, whom are presumably harmed by having naked pictures taken of them. Making pictures of virtual little boys that don't actually exist should be legal, because nobody is actually harmed by it (unless you beleive the unsubstantiated argument that viewing fictional representations of an act increases somebodies proclivity to commit said act.)

In the case of the copyrighted bits, unless downloading said bit actually decreases the probability of you or somebody else paying for those bits, then the copyright holder is not harmed in the least -- no harm, no foul.

Re:Ridiculous argument

[Rosco P. Coltrane]

Yes, a threat to cause harm is also harm.

If you make a bomb, chances are you're not going to use it to pioneer a radical new gardening technique in your backyard. Therefore, you are a threat to cause harm.

Making pictures of virtual little boys that don't actually exist should be legal

Well quite, I believe many japanese animes depict all kinds of devious sexual behaviours, but honestly, do you think pedophiles get off off that? Of course not, they get a kick knowing the photographed scene was once real, and besides, I'm not sure even the latest and greatest image generators can recreate such scenes perfectly. Therefore the point is that little boys the world *are* harmed by people having such photos, because they were used to make them.

In the case of the copyrighted bits, unless downloading said bit actually decreases the probability of you or somebody else paying for those bits, then the copyright holder is not harmed in the least -- no harm, no foul.

I'd agree if it was true, but it's not: if I download Schindler's List, I'm not going to go buy the DVD. You know it, I know it, the MPAA knows it, everybody knows it. Personally, I only download things I can't find at the store, or with great difficulty, like foreign TV shows and documentaries: in my case, no harm done, since nobody can argue my watching a RAI-1 documentary here will hurt the RAI-1's bottom line all the way back to Italy. I never download movies.

Re:Ridiculous argument

[Anonymous Coward]

I'd agree if it was true, but it's not: if I download Schindler's List, I'm not going to go buy the DVD. You know it, I know it, the MPAA knows it, everybody knows it.

Since the arrival of mainstream P2P in 2000, there is not a single CD I have purchased that I did not first download a track or two (or the whole album!) first. And I have purchased, oh, maybe 50-75 CDs in the last 5 years. I buy the CD for the packaging, the quality, the ownership, and to support the artist (as impotent as that last motivation may be, given that I know just about my entire outlay goes to the distributor).

Personally, I only download things I can't find at the store...

"Personally", don't make assumptions about other people's motives. The law shouldn't either.

Re:Ridiculous argument

[fatcatman]

I'd agree if it was true, but it's not: if I download Schindler's List, I'm not going to go buy the DVD. You know it, I know it, the MPAA knows it, everybody knows it.

Not true.

I've downloaded several movies that I'd never heard of, then later went out and bought the DVDs. I used to browse the comedy & sci-fi movie sections of suprnova. Anything with a lot of downloads, I snagged & watched. Many were turned off & deleted after the first 10 minutes. Others were so-so good, I watched them then deleted them. Still others I hung onto - I might watch them again some day, and until I need the hard drive space they can sit there just in case. Note that I would never have bought any of these movies. So nobody is out any money.

Then there are the real gems - the movies I absolutely loved and had to own. Those, I went out and purchased. Why? I wanted the full quality version. I wanted the extras. Mainly I liked the movie enough to keep it around forever and so I bought a real, hard copy.

Quite frankly, in my case suprnova actually made money for the industry. Because without it, I wouldn't have bought many of the 150+ DVDs I own.

Deep Pockets

[tbase]

That's it, I'm uninstalling BitTorrent and buying a trenchcoat with deep pockets.

Re:Deep Pockets

[eshan]

The MPAA has deep pockets. Fight fire with fire, eh?

Netflix or Blockbuster anyone?

[Anonymous Coward]

3 movies/week for $20/month. At this rate in two-three years you can accumulate most if not all that is any good.

Compare this...

[PortHaven]

Compare...selling me low-quality cheesy ringer towns of songs I already own at twice the cost of the actual CD cost.

Then don't give me a license. And tell me that I'm SOL when my phone dies.

Then explain to me why i should give a crap about copyrights and theivery?

Re:Compare this...

[Anonymous Coward]

Then explain to me why i should give a crap about copyrights and theivery?
you accepted the terms of the contract
you're legally bound to abide by those terms

Re:Compare this...

[radish]

You bought it. Caveat emptor.

Re:Compare this...

[Blakey Rat]

Like you didn't know going in that cell phone ringer tones (towns) were a complete and total rip-off? If you think paying $3 for a 30-second clip of tinny-sounding music is a good deal, I got a bridge to sell you, buddy.

Re:Compare this...

[Anonymous Coward]

No actually I copied it off the net.

Venditor emptor.

Re:Compare this...

[AK Marc]

What did he buy? Did he buy the media? A license? Would owning the CD give him the right to put it on his cell phone? Even lawyers can't agree on what the right are, so how should he be expected to know?

Re:Compare this...

[Anonymous Coward]

wow. really glad I AC's that.

trying to get all high falutin and do me some latin!

shudda been:

Caveat Venditor.

Re:Compare this...

[Anonymous Coward]

Why the hell do you want a ring-tone anyway? Seriously, if you're not a woman who keeps her phone in her bag because her pants/skirt don't have pockets, you have no reason to get one of those god-awful ringtones. Put it on vibrate, stick it in your pocket, and leave the rest of us in peace.

Summary

[UES]

Since this topic has been done to death, I thought I might summarize the logic behind some of these laws for easy reference. Note: NOT AN ENDORSEMENT of these laws, merely an explanation

1. Shoplifting: Assumption is ONE copy being boosted. If you steal a truckload, penalties are higher. Value of theft is lost revenue to final vendor- remember that the distributor/rights holder ALREADY got paid when the store bought its wholesale copy. 2. P2P/Torrent: Assumption is that there are LIMITLESS & PERFECT copies available. Thus, super huge penalties because you can make millions of copies in a matter of minutes. 3. Why can't I Torrent my show if I can VCR it: Distributing studio is legal holder of rights (in the USA, your laws may differ). Broadcast networks have legal arrangements regarding how and when they can show programs. You can use a VCR to time-shift sue to court decisions, no court has firmly addressed Torrent Timeshifting yet. Furthermore, you technically need the permission of the rights holder to distribute shows in another medium, since all production/acting contracts determing how and when the show will be distributed and how the people involved will get paid. 4. I'm not stealing anything tangible, therefore it is not theft: Two issues here. First, under current USA law (your law may vary), intellectual property is real and subject to restrictions by the rights holder. Second, rights holders expect to be paid for usage/ownership of a true copy. No one is stopping you from enjoying public domain movies/music/books. There is not a "right" in the USA (your laws may vary) to enjoy copyrighted works without consulting the legal rights of the copyright holder. Which ususally means paying them. 5. Do I own a physical copy of the work or just a license: Compelling argument soon both sides, never fully tested in court, though it may be soon.

Did I leave anything out?

Re:Summary

[ratboy666]

"... rights holders expect to be paid for usage/ownership of a true copy."

Maybe they expect it, but it just isn't law. Copyright is the right to copy a work -- it has nothing to do with use. Of course, copy can (is) twisted to also mean "perform". But, a copy is allowed if necessary to use the material. (and, the "legal" state of the original doesn't come into it).

As to the issue of "physical vs. license" -- unless I entered into a contract, I own the physical work. And, if I *do* enter into a contract, I better get compensation of giving up my rights to the work.

Also, "downloading" being equated to copyright infringement: either the party who made the material available is infringing, or the person who downloaded the material. Can't be both. And, it can't be the downloader (how was she to know that infringement was taking place? If that is argued, Disney et. al. would need to give guarantees to customers that THEIR work doesn't infringe: including indemification).

It's uploading that infringes; or making a work available for download.

Once you HAVE the work, you can do whatever you want with it; within the bounds of law. Interesting that this includes SELLING the work (as long as you didn't copy it).

Now, this is what I want to see tested (or a comment for a member of the bar in some US jurisdiction):

A party puts a song on an FTP site.

B party downloads said song, and burns it to a CD, preparatory to listening to it on her stereo. She then destroys the electronic version.

B likes the song, and sells it (on the CD).

B decides to download/burn/destroy and sell again.

Is B guilty of copyright infringement; or is A?

Ratboy.

Re:Summary

[Anonymous Coward]

Readability? When you press Enter after you've finished each point, it does WONDERS for making people understand what you said, not to mention making it look longer and sounding smarter.

Re:Summary

[UES]

"Maybe they expect it, but it just isn't law."

That's an interesting interpretation. At the very least, contract law would govern duplication/dsitribution of, say, a movie. The Screen Actors Guild would be VERY interested to hear that someone is showing films that their members are owed royalties on without paying said actors. Or, distributing copies of aforementioned work without the pennies dripping down the royalty chain.

"Copyright is the right to copy a work -- it has nothing to do with use."

Not for all types of work. Is it OK to perform a play publicly without compensating the author as long as you don't photocopy the script?

"Of course, copy can (is) twisted to also mean "perform". But, a copy is allowed if necessary to use the material. (and, the "legal" state of the original doesn't come into it)."

Sure it does. Remember the Pamela Anderson Sex Tape? When it was stolen from her house (denial of owner to freely distribute) and put on the net- Lawsuit Time! The damages a court would award would INCLUDE the value of the tons of copies floating around. But, once Tommy and Pam settled for royalties and a cash payment, no trouble with distribution.

"Once you HAVE the work, you can do whatever you want with it;"

Oh, goodness no. Legally, you can't show a DVD to 50 of your closest friends and charge them admission- that's unlicensed public exhibition. Almost never enforced, but still not OK.

You can parody it, but you can't sample it without clearance.

You can't alter or edit it and then resell or redistribute it, like homemade edits of films.

All of these activities are perfectly OK assuming you have proper permission (no money needs to change hands). For example, Lucasfilm says that it's OK to use official Star Wars material in parody/tribute films, as long as you are not making money off it (thay have to defend their trademarks, it's part of trademark law). They even run a contest. Contrast that with the NFL, which has been running a EULA on televised games for years (You know, "You may not rebroadcast this game without the permission of the National Football League")

"Interesting that this includes SELLING the work (as long as you didn't copy it)."

The doctrine of first sale so far has applied to the MEDIA. When you sell your used copy of "The Matrix" you are not transferring the copyright, because you don't own it. Warner Brothers does. They aren't going to know if you backed it up to your hard drive. They care a LOT if you make 1,000 copies. So does Keanu Reeve's lawyer, because he gets PAID for copies sold.

Now, as far as your hypothetical, IANAL, but it seems clear that BOTH A and B have violated copyright. If you ever read EULAs or similar documents, they all state that you are permitted to keep ZERO copies of the material.

Comparison

[Anonymous Coward]

As other posters have pointed out, downloading via bitTorrent also allows you to upload--the crime of distributing has already occured, whereas the stealing of a DVD is a crime, but only for the stealing, there's no distribution.

This is worth repeating, and, I submit, worth analogizing:

It's the same as the difference between being busted with one joint and being busted with a 1-lb. brick of pot to sell. The latter crime has a higher penalty attached to it because it does more harm to society.

That's the logical reason behind it. Whether there is "harm to society" in filesharing of IP enough to warrant criminal/civil liability in law, that is another question.

and one time, at band camp...

[Speare]

This is based on somebody's little rant in a personal blog? Wake me up when CNN actually publishes anything that even remotely resembles introspection on copyright laws. Better yet, write these screeds to congressfolk, not to kitty14@aol readers. The world won't change just because people are bickering around in blogs.

Re:and one time, at band camp...

[Morning $tar]

This is based on somebody's little rant in a personal blog? Wake me up when CNN actually publishes anything that even remotely resembles introspection on copyright laws. Better yet, write these screeds to congressfolk, not to kitty14@aol readers. The world won't change just because people are bickering around in blogs.

Why does it have to be recognized by an 'authoroty' figure to be valid? Remember that "somebody's little rant in a personal blog" that caused a hugh uproar over the way EA treats their employee's?

Re:and one time, at band camp...

[Anonymous Coward]

Has EA changed how they treat their employees?

Re:and one time, at band camp...

[Morning $tar]

Has EA changed how they treat their employees?

I don't know. There is this story about a potential lawsuit that followed in the wake of the blog. The point is that an insignificant blog can bring up an issue that affects a lot of people.

Re:and one time, at band camp...

[Maggott]

Congressfolks will not change. They have their own beliefs and agendas which they are not only committed to mentally, but are entrenched in with existing deals and agreements and compromises. Those who see the problems are already trying to enact change and facing insurmountable resistance; those who don't will never have an incentive to let go of their current ways; not only do some of them honestly believe they're doing the right thing, but they're also backed up by unimaginable financial firepower.

Being a citizen of Utah, I write to Orin "Grease me up, **AA" Hatch just about every year, stating what my views and the views of every Utahn I know are, explaining the rationale behind them and basically asking--in very polite, reasonable language--just what the hell is wrong with him. We can see how much good that has done. Every year I get a form letter back saying "We share your concerns about copyright legislation blah blah blah" right on the back of a news story saying "Sen. Orin Hatch (R-Utah) proposes a U.N. amendment of the Geneva Convention, seeking to classify intellectual property theft as a war crime..."

However, these compromised senators will not be around forever. Today's hotbutton is tomorrow's policy debate. Some of the people janking around on Slashdot today are going into politics tomorrow, so discussing these things here is not quite as useless as you may think.

Something to keep in mind

[mcc]

Nobody has intellectual property "rights". They have intellectual property privileges.

In the U.S. at least personal property rights-- you know, for "real" property-- are assumed to be a simple basic intrinsic right that exists outside of and regardless of the government, as codified by the fifth amendment's explicit observation that no person shall be deprived of life, liberty or property without due process of law.

The execution and distribution rights to the non-property that go by the misnomer "intellectual property rights" are not intrinsic and in fact are granted by the government. This is a big deal. Unlike the intrinsic rights spoken of in the bill of rights-- which are not granted by the government and therefore cannot be limited or taken away by the government-- "IP" ownership is a privilege the government entrusts to certain people with the goal of benefiting the public, as part of Congress's empowerment "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

Just something to think about.

Re:Something to keep in mind

[Anonymous Coward]

>>"IP" ownership is a privilege the government entrusts to certain people with the goal of benefiting the public

Nonsense, execution and distribution rights to intellectual property are secured by the First Amendment. It is the copyright, patent, and other IP laws which limit the ways in which such right can be utilized.

Just Do The Right Thing

[luwain]

Who cares what the penalties are?
If you're an honest person and you don't do the crime, then whatever penalties are irrelevant. I think the real problem is that people are being tried, convicted and punished without due process. The RIAA is wielding power like the IRS, but they are NOT a judicial body or a government agency. As us chessplayers like to say," the threat can be more effective than the execution..." Many people are forced to settle out of court, and more than a few innocent people have been harrassed. In a democracy this shouldn't happen. So the real problem with the overblown penalties is that the threat of such draconian penalties leads to extortion by the RIAA. The penalties don't work that well as a deterrent, millions are still downloading copyrighted material, but they do give the RIAA leverage to pressure money out of people without having to actually prove their case in a court of law.

Re:Just Do The Right Thing

[east coast]

If you're an honest person and you don't do the crime, then whatever penalties are irrelevant.

You really think that's true? You must not be a taxpayer or a victim of a crime...

Re:Just Do The Right Thing

[dr7greenthumb]

If you're an honest person and you don't do the crime, then whatever penalties are irrelevant.

What if I am an honest person that doesn't agree that an act that doesn't financially benefit me nor directly harm an individual is a crime? It's just that the notion of "The Right Thing" is something that widely varies from person to person. This reminds me of people who say that drug testing everyone is fine because if you don't have anything to hide, you won't mind.

Re:Just Do The Right Thing

[Anonymous Coward]

If you're an honest person and you don't do the crime, then whatever penalties are irrelevant.

Define "honest". Is it some kind of failing to not follow a law you consider to be corrupt and unnecessary?

When you steal something, you take something away from somebody. Nobody but a philosopher would argue that that isn't wrong.

When you infringe upon somebody's copyright, you are refusing to follow a law that was made to subsidise creation of original works. Since they clearly don't need subsidising, it's a little hard to argue that only dishonest people would break this law.

FWIW, I agree with copyright, but only on the order of a decade or so length, depending on the medium.

Re:Just Do The Right Thing

[luwain]

My statement "If you're an honest person..." was careless and flippant. Of course the situation warrants deeper thought. Nevertheless, though the notion of "The Right Thing" varies from person to person, what is written as law does not vary until the law is changed or ammended. Perhaps instead of saying "Do the right thing", I should've said "Obey the Law". Now, some laws are BAD. The problem with a Democracy is that the majority can be wrong. The problem with a representative government is that the majority very often elects people not qualified to create some of the laws they impose (especially dealing with technology), or they're just stupid. So, yes, sometimes civil disobedience seems justified to expose bad laws.The person who engages in civil disobedience, though, knows that they will be punished according to the law, unless a jury of their peers also finds the law ridiculous.
Now I don't believe drug testing is fine if you don't have anything to hide, because drug test is invasive and a violation of personal privacy.

Backups

[ari_j]

The thing is that, after you do your time and pay your fine, with the DVDs you won't have anything to watch, while with P2P downloads you will have made a backup to watch. :)

P2P shoplifting

[Anonymous Coward]

Have a 1000 people steal 1000 things from each store and we all meet at Compton to swap them for free.

this is nothing new, punishments don't fit crimes.

[Richthofen80]

Punishments aren't meted out to fit crimes, they are created to compensate for enforceability. It is MUCH easier to enforce shoplifting at a retail store than it is to enforce filesharing copyrights.

The idea behind this is that while punishments are low for shoplifting, the chance of getting caught is high. In the filesharing situation, the chance of getting caught is low, so they try and jack up the punishment to make it that more serious if you do get caught.

Also, it is interesting to note ownership of property at time of theft for these crimes, as a comparison. In shoplifting, the retail chain has paid a distributor, record label, or movie production firm for the merchandise. The theft of a product still benefits those distributors. However the theft of a movie before a retail establishment purchases it means it hits the bottom line of the distributor directly. Personally, I bet the distributors couldn't give a rat's ass whether you shoplifted, since that copy was already paid for, and now the retail store has to buy another copy to replace the one you stole.

But copyright-infringement means that demand for the items on the shelf don't change. IE the retailer doesn't need to reorder another copy to fill the empty shelf.

PS don't take my observation as a support for copyright-infringement. I don't believe it to be right.

Ah yes... so it's my fault

[the_skywise]

The editors misquote the article?

Wal Mart and shoplifting.

[Anonymous Coward]

They care all right. About their bottom line.

They have very specific rules about when a customer is allowed to be searched for stolen goods. They can get sued for wrongfully searching someone.
I have heard from Wal-Mart management (Bentonville, AR corporate management, not a store manager) that they have calculated the loss due to theft vs. the potential loss due to wrongful searches (including lawsuits and lost customers) that would occur, and that under all but the most obvious circumstances, they won't search someone they suspect of shoplifting. A Wal-Mart employee ("associate" in their newspeak) has to clearly witness someone taking something off the shelf and hiding it in their coat/bag/whatever for them to search you.

Compare to other crimes

[Fubar420]

Really, this is no different from marijuana. Just about every state has a harsher penalty for growing / dealing then they do for posession for personal use.

Fair? Maybe, but that not the point.

Committing the crime is one thing. Helping others to do it is considerably more outrageous to the law.

So in the mean time I'm going to amsterdam, who's with?

Apples and oranges?

[HardCase]

There's probably no sinister connection between the penalty for shoplifting and for software piracy - there's probably no connection at all.

It's just the normal disconnect between federal and state laws. You can find all sorts of parallels between them without looking too hard, but that doesn't imply any connection. It's just a case of two different systems working independently of each other.

-h-

Deterrence factor

[Ant2]

One of the purposes of a punishment is that it deters the behavior in question. But the deterrence is limited by the perceived chances of getting caught. Most people think they are less likely to get busted for downloading than shoplifting, therefore to deter each of these behaviors, the punishment should be greater for downloading.

d = deterrence
p = punishment
c = chances of getting caught

d = pc

Re:Deterrence factor

[The Rizz]

By that logic, let's compare littering to a bank robbery.

Littering = Very easy to avoid being found out. It's not like people really notice someone drop something on the ground.
Bank robbery = Security cameras, guards, silent alarms, FBI involvement.

So, by your logic, since it's much, much easier to get caught robbing a bank than littering, you should get a much much stiffer penalty when caught throwing a gum wrapper on the ground.

Shall we say a $500 billion fine, and 4000 years in jail? That should keep your d = pc formula balanced...

Re:Deterrence factor

[Jaime2]

You forgot one factor..... it's not just risk, but the risk/reward relationship. A bank robbery is a high risk activity like shoplifting, but also much higher reward. That's why it has a higher penalty even though you are more likely to get caught.

Shoplifting and bank robbery have been around long enough so that the penalties have settled at an optimum level to provide sufficient deterrence without seeming overly harsh. Time will tell whether downloading laws are tough enough or not.

Re:Deterrence factor

[Ant2]

I never said d was a constant...

Also compare P2P etc. to commercial infringement

[D4C5CE]

Take the case of a small station or cable company retransmitting or "time-shifting" a show (that has already aired a gazillion times before) e.g. in one isolated breach of 17 U.S.C. 111, 501 et seq. - the law itself suggests that the award of damages (if anyone bothered to go to court over the issue at all) would be fairly minimal, and criminal prosecution highly unlikely, given the fact that an umpteenth re-broadcast watched by a few hundred viewers is of almost negligible impact on the rightholder.
On the other hand, demanding entirely overblown surveillance, censorship, damages and punishment, just for going after alleged one-time infringers sometimes not far from the borderline of fair use (excerpts on fan pages being taken down "at lawyerpoint" etc.), and even if the "suspects" happen to be minors, or 83 years old (let alone...deceased!), seems to appear perfectly adequate to many people if one sticks a label like "pirates" on such "bad" guys to mislead observers into believing someone else had actually been disposessed of an irreplacable piece of physical property merely by copying (part of) it.
IIRC there used to be something they called the First Amendment...

Expected Value

[Anonymous Coward]

Assume there is a 1% chance you'll get caught shoplifting. You have an "expected" $1000 penalty.

If you only have a 1 in 10000 chance of getting caught on BitTorrent, you have a $330 expected penalty.

The consequences seem appropriate...

[adlaiff6]

...given the fact that, if you shoplift, you are basically stealing only one copy, contrasted with piracy, in which case you are not only a thief, but an accomplice to potentially thousands more as well.

Disclaimer: The above mentioned is from a purely legal standpoint, and does not necessarily represent the actual opinion of the slashdotter. So no flames. Or lawsuits.

p2p != bit torrent

[Bad Ad]

p2p doesnt just end at bit torrent you know.... bit torrent is the only one that you have to share, other p2p apps you can disable uploading (tho bad for the network, its still doable), so please stop assuming p2p == bit torrent just because its the latest craze.

This Article Isn't Presenting the Facts Accurately

[RmanB17499]

18 USC 641 which it cites as an example to be used for application in a shoplifting casing couldn't apply to almost any situation.

Which government stoare have you been to that sells DVD's?

Also, very importantly, the intent of the law is to help differntiate between different crimes.

If I were to shoplift a fur coat or nice cell phone no copyrigh law could obviously apply in this case. But on the other hand I could shoplift a DVD or computer software and then go further and help pirate it: now I've broken more than one law, obviously. First, I have stolen from the merchant and his or her harm is limited to the $20 in retail sales lost. But my piracy activity takes on another crime in another form: criminal copyright activity.

I think the difference isn't neccesarily the same. If I were an author, publish, programmer I would want me original creative work to be more protected than just one copy that got the "five finger discount." I would see the greater danger to my business, my property, and livelihood in the rampant privacy not in the occassional theft. That's why the crimes are differentiated. Also, the harm to society is worse if on a grand scale my copyright is abused and damanged then if one merchants single copy is lifted.

Shoplifting isn't a violation of Federal law in any case.

Virginia
18.2-96. Petit larceny defined; how punished.

Any person who:

1. Commits larceny from the person of another of money or other thing of value of less than $5, or

2. Commits simple larceny not from the person of another of goods and chattels of the value of less than $200, except as provided in subdivision (iii) of 18.2-95, shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor.

(Code 1950, 18.1-101; 1960, c. 358; 1966, c. 247; 1975, cc. 14, 15; 1980, c. 175; 1992, c. 822.)

And in Virginia:

(a) For Class 1 misdemeanors, confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.

We already have similar laws punishing both sides

[benhocking]

IANAL, but if I sell you stolen goods, then that is a crime. Likewise, if you could reasonably be expected to know the goods were stolen, then that is also a crime (theft by receiving, IIRC).

As for your last paragraph, that's a mighty big if. However, if that were true (in general, not specifically for Wal Mart), then one would indeed expect that the fine should be greater than $1M. The idea is to make the expected value of the crime negative. As any good mathematician could tell you expected value is the sum of the (product of the probability of an outcome by the value of an outcome), summed over all outcomes.

In your example, let's imagine that $100 is stolen by 50,000 shoplifters, yielding that $5M figure. The probability of getting caught is therefore quite low, specifically, 0.0001. So, if every shoplifter were fined $1M, then the expected value of shoplifting would be (0.9999) * 100 + (0.0001) * (-1,000,000) = $99.99 - $100 = -$0.01. So $1M is probably not enough of a fine.

The real difference is in who gets hurt.

[Captoo]

If you shoplift a movie, the store pays for it. The store already bought the movie from a distributor, so the MPAA already has their cut of the pie and they don't care what happens to it. If you download a movie, the MPAA doesn't get the revenue that it feels it deserves.

While the net cost to society is probably about the same either way, people get punished more if they steal from organizations with large legal budgets.

Re:The real difference is in who gets hurt.

[BCW2]

You nailed the root of the problem. This is the best post in the whole thread. It's just simple greed. The **AA's don't want to miss a nickle.

Re:The real difference is in who gets hurt.

[Anonymous Coward]

By that flawed logic, if I copied the DVD from someone who bought it is okay because it has been paid for?

Re:The real difference is in who gets hurt.

[Captoo]

Not at all. The original was paid for, but the copy would not be. It would be the same as downloading it.

Slow news day

[Quiet_Desperation]

I don't think it's any shocking revelation that our system of justice lacks balance and correlation between crime and punishment.

That being said, would anyone really get hit with those penalties. Maybe this is like the old Mark Twain quote: "In the space of one hundred and seventy-six years the Lower Mississippi has shortened itself two hundred and forty-two miles. Therefore ... in the Old Oolitic Silurian Period the Lower Mississippi River was upward of one million three hundred thousand miles long... seven hundred and forty-two years from now the Lower Mississippi will be only a mile and three-quarters long... There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact."

I mean, I ran some of my own numbers. I could send a pack of trained, cybernetic attack wolves to kill Ashlee Simpson in the most horrible and bloody manner possible. The most I'd get is life in prison because, obviously, I am not sane. If I were to download her entire masterwork collection of songs and burn them to CDs to sell, I'd be sentenced to a savage prison world circling a neutron star in the Saggitarius arm of the galaxy. Yes, the government would be required to spend, oh, I dunno... thousands of dollars to develop FTL travel, prisoner hauling spacecraft, and hire like TEN people to develop the prison world just to carry out the punishment currently described by copyright law.

Now, they certainly are not going to do that. At least I don't think so. Probably not. Anyway, I have to get back to tuning the synthetic muscles in the wolf legs.

copying...

[rawg]

What if I have a matter replicator and went into a store and used it to copy the DVD and packaging? Or better yet, just copied it from another source, like a friend? How about if I copied a car? I know, I'll copy it 1000's of times and give them away to anyone who wants them. Then what? Would I be a criminal or a hero? I'm mean, basically it's creating a whole new item from dirt. It's the holy grail.

I still have to figure out this anti-gravity thing first...

I'm not sure thats how it goes.

[tgd]

Shoplifting: crime that is hard to get away with, and has an immediate stigma of being a crime
P2P: equivalent crime that is easy to get away with, and doesn't have the social stigma of being a criminal.

The stigma and threat of being caught and spending jailtime is the demotivator in the former case. In the latter, if you can't change the opinions of these people that their actions aren't crimes, and its easy to not get caught, you have to severely up the penalties to keep the same level of demotivation.

Thats why penalties are the way they are. P2P isn't a threat to the companies, the mass counterfitting of their products is...

Its worth noting that the penalties for traffiking in stolen property is higher than the stealing itself... the same reason penalties in file sharing are higher than the actual theft of the material.

Re:I'm not sure thats how it goes.

[bbc]

"The stigma and threat of being caught and spending jailtime is the demotivator in the former case. In the latter, if you can't change the opinions of these people that their actions aren't crimes, and its easy to not get caught, you have to severely up the penalties to keep the same level of demotivation."

You have a really strange notion of democracy.

When people think something is right, there should not be a law outlawing that thing. If copying and sharing are considered good values, the government should look into facilitating these actions. Instead, the government tries to make them harder. Something's wrong there.

Re:I'm not sure thats how it goes.

[tgd]

You make the assumption that the will of the people is valid on matters of economics. The people, in aggregate, do not have any background in economic theory. They are self-focused, and have a very narrow view about both the way the world really works and the way it has to work for an economy to function.

Imagine the state the US would be in if the will of the ignorant majority was, in fact, what got cast into law.

Re:I'm not sure thats how it goes.

[bbc]

The idea being that the will of the people is what drives democracy, but also that the people sometimes do not know what they want, and generally look for short-term advantages only.

But however you clothe the subject, if the will of the people is not valid on matters of economics, it's not a democracy.

Democracies (or whatever we have that needs to pass for them) generally avoid going the direction of the dumb majority by having all kinds of layers of fat that build inertia into the system.

**AAs want you to pay EVERY TIME you watch

[crovira]

or listen to their crap. Fair use is immaterial. If they could they'd wire your ears and eyes up directly to a meter and change you for every second of your life.

As it is, its hard enough to get away from the ads, promos and all the other schlock.

I'd rather think than be considered as a money pump. Hence, I don't listen, I don't watch... At least not what they'd want me to. I'm ann unplugged-in subversive.

Government Store?

[DarkKnightRadick]

What are those? Are they like PXs on military bases?

Re:Government Store?

[Anonymous Coward]

No, they sell governments. I hear Togo is for sale...

Re:We already have similar laws punishing both sid

[donnyspi]

Why should a shoplifter have to pay for other people's crimes? $1M is wayyy to much of a fine.

It's all about probabilities :-)

[Anonymous Coward]

In order to make events comparable, you have to attribute them probabilities, then you can calculate their expectation (probability*$your_variable).
I'm not going even to try to estimate what's the difference of probability between being caught shoplifting and being sued illegally downloading, but it may be really huge.
In fact, the very difference I can tell you from what we know about these stuff that the variance is much higher in case of downloading.

And as an extra, you may save up to a dozen hits of tonfa if you download instead of shoplifting.

(oh yeah we could also try to "probabilize" that :p)

No the author glosses over it. in the piece

[way2trivial]

and that fact sucks.. DOWNLOADING a file breaks no law.

The fact is, the current wave of P2P apps share as soon as downloading has begun- he assumes too much -in that it therefore always equates downloading with uploading

from the article "Now, while you were downloading, you were simultaneously making available for upload what you already had; this is how BitTorrent works, "
not a wholly accurate statement-

it's the uploading.. if I want to set emule to ZERO upload, I'll download at a rate of .0005 kbs, but I will get the files, and NEVER upload.... and not violate the laws....

his/articles assertion that DOWNLOADING can get you these penalties is not correct.

Re:No the author glosses over it. in the piece

[westlake]

his/articles assertion that DOWNLOADING can get you these penalties is not correct.

In the United States, it is convenient and cost-effective to target the uploader, who will typically be operating on a scale and with the knowledge that he has no legal defense. But the rights holders can pursue the downloader if they chose, and the feds as well, once the offense reaches the statutory criminal threshold. Don't expect much sympathy if you are the leech who gets squashed as an example to others.

Re:No the author glosses over it. in the piece

[Macadamizer]

"DOWNLOADING a file breaks no law."

Not true. The court in Napster clearly pointed out that both downloaders and sharers were direct copyright infringers. The Napster court went further, and noted that downloading files over the internet, even if you otherwise had a license to own the files (like, say, you owned a CD and want to download the files onto your PC instead of ripping them), downloading would STILL be infringing. Napster was distinguished from the two cases that would allow such a use -- the Sony Betamax case, and RIAA v. Diamond -- and said that since the files were out of the users control when they passed over the network, the use of file-sharing to "time-shift" or "space-shift" a file was infringing.

You may not like it, or agree with it, but under current caselaw, downloading is JUST as illegal as sharing.

"if I want to set emule to ZERO upload, I'll download at a rate of .0005 kbs, but I will get the files, and NEVER upload.... and not violate the laws.... "

Again, just not true under current caselaw.

Re:No the author glosses over it. in the piece

[Hoarke42]

If someone were sued for sharing because they were using a BitTorrent download, it would be interesting to see them use in their defense that the copyright holder made it available as a download because when they (**AA) started downloaded from the defendant, other users were then downloading from **AA.

Additionally, the **AA downloading would placing the files on the network out of their control as the parent is saying users do.

Granted, I wouldn't want to base my fortune on this, but still, it'd be interesting to see someone try!

What is fair?

[tepples]

why is it unfair? if you break the law despite its punishment, then shouldn't you accept the punishment?

Is the U.S. implementation of copyright law itself fair? Were the Jim Crow laws fair, despite having been on the books?

Diff industries, Diff attitudes toward theft

[AdmiralWeirdbeard]

I think you're the only person I've noticed so far to point out the key to understanding the disjoint between penlaties for infringement and theft.

In the case of intellectual property violation, you're dealing with a very powerful industry that has not been subject to largescale "theft" of their product before a few years ago. They suddenly see their profits dropping and believe it to be the result of "theft" through filesharing. Their lobbyists go to work, and we get regressive penalties for filesharing.

In the case of theft of the physical DVD, the retailer has already bought the DVD, so the financial burden falls Not on the production house, but on the retailer... and here's the key... WHO DEALS WITH THEFT ALREADY AND HAS DEALT WITH IT FOREVER, AND WILL DEAL WITH IT INTO THE FUTURE. Shoplifting is a part of the overhead, particularly for large retailers, and while they act to decrease it (cameras, security tags, etc) they know that real steps to ERADICATE it would be silly and drive away patrons. (I'm imagining a wal-mart associate following each and every customer around to make sure that they dont steal... or locking ALL wares behind cases.... attack ferrets to chase and ravage children toying with the locks... etc)

Sorry, that was an extended parenthetical, but i think my point is clear. If store were as fanatical in preventing the shoplifting of CD's and DVD's as the RIAA and MPAA are trying to be regarding their intellectual property rights, nobody would shop there, cause nobody likes being treated like a criminal from the off.

Yes, Differences Abound

[Anonymous Coward]

The biggest difference is, in fact, that no one's work is being stolen with a download. In fact, you are paying for the electricity, and you bought the computer, and presumably the software was free or Free.

The simple fact is that there are no victims in downloading information, except those which our outdated economic distribution systems create. There ARE plenty of victims when information is withheld, however.

Why a downloader would still buy the DVD

[tepples]

if I download Schindler's List, I'm not going to go buy the DVD.

DVDs offer several advantages vs. 1-CD or 2-CD DivX rips, such as better picture quality, better playback convenience on a large screen (assuming that the movie was released in your Region), and the DVD extras that are usually omitted.

I only download things I can't find at the store

You mean like Song of the South, which Disney has steadfastly refused to remaster for any modern video format?

Shoplifting law is just old

[Anonymous Coward]

I think the penalty in the shoplifting law is the result of having been made years ago as opposed to the P2P copyright law.

I don't know much about laws but that would seem like a plausible explination. Anyone care to correct me on this?

Re:this is nothing new, punishments don't fit crim

[mbaciarello]

Punishments aren't meted out to fit crimes, they are created to compensate for enforceability.

Yeah, sure, as in massacring a dozen people in Times Square at 4 pm, then saying hello to a nearby bank's CCTV camera, and surrendering to the police.

It's a very enforceable violation of law (many witnesses, clear-cut crime), and you're very likely to get caught for it -- in fact, you turn yourself in to the cops. Are you gonna get just a couple of month, and then you're out on parole? Don't think so.

Crimes are (theoretically) punished according to the impact they cause on victims and society as a whole, those against "life" usually getting the harshest penalties. Apparently, in the United States at this time, IP violation through the Internet is deemed as more dangerous to copyright holders' interests then the theft of a single copy.

That, and the fact that lobbyists have pushed for more "glamourous" laws in order to deter other (potential) criminals, contributed to this apparent paradox. To me, actually, it doesn't look paradoxical at all, though.

Not True!

[barfy]

The **AA's are very pragmatic... They want to make the most money possible out of you. That is different than paying per every view.

They like Radio, they even like small time piracy. What they do not want is full scale alternative distribution.

Sonny Bono Copyright Term Extension Act

[tepples]

No one is stopping you from enjoying public domain movies/music/books.

Bullcrap.

All crimes that include a computer are worse

[FuzzyDustBall]

Hacking = Breaking and entering
DOS = criminal mischief?
Pirateing = Shop lifting

I personaly would like to see what kind of sentence a real world DOS would get. Say you get a chain lock and put it on the front door of convience store. Or better yet in the middle of the night brick up all the doors.

The difference is people are dumb and have been taught by the media (movies and TV) to be afraid of technology. So they are even more afraid of those that can use that technology and terrified by the idea that someone may missuse it.

Several possible rationales

[benhocking]

First of all, as I already explained, you need to make the expected value of shoplifting less than zero. (AKA "crime doesn't pay")

Secondly, if the probability of getting caught is 0.0001, then it is very unlikely you would get caught the first time you shoplifted. Therefore, it is likely you have done this more than once.

Finally, you want to send a message to the other shoplifters. See paragraph 1.

Of course, it makes far more sense to increase the probability of catching shoplifters, which is exactly what is done via surveillance, etc. Keep in mind, I'm just speaking hypothetical, and I suspect that you don't know that language. :)

Naturally, similar logic applies to the actual situation being discussed here. Rather than having disproportionately large fines, increase the probability of catching the perpetrators. However, since this is civil (I believe), the best policy for those doing the suing is to have large fines and a large probability of catching the infringers, but that has less to do with expected values than it does with maximizing profits.

Re:Several possible rationales

[Razor Blades are Not]

Which only works in a perfectly rational world.

1/ If the chances of being caught are that low, the risk/reward to the shoplifter is still high, no matter how good your maths are, because as we all know "It won't happen to to me" is the mantra of the average person. After all, if the death penalty can't be shown to reduce crime, how will a fine ? - You can always declare bankruptcy, you know.
2/ If Walmart actually recouped the fine itself, then it might make sense for them to impose it. As a deterrent it's pathetic, (see 1) but as an economic balance, it might work. However see 3)
3/ The chances of recouping the fine from most shoplifters would approach nil. What happens when the money they owe you doesn't exist ? We don't have debtors prisons anymore. And simply throwing them in jail won't get you your money back anyway, which means this isn't a suitable economic tool either. Walmarts balance sheet doesn't care about how many shoplifters it put in jail.

Finally, the concept of justice isn't one of economics or mathematics. Let us judge the crime, not the company balance-book.

Mathematically impossible to do the right thing

[tepples]

If you're an honest person and you don't do the crime, then whatever penalties are irrelevant.

Is it possible to avoid doing the crime? There exists combinatoric evidence that it's next to impossible to create an original melody.

What about leeches???

[graveyardduckx]

Since they're all pissed off about people distributing music, movies, and software... what about the leeches that turn off their "shared" folders and don't allow people to receive files from them? If someone on kazaa or limewire has all of their shared folders disabled, do they get the same punishment as those who openly share thousands of files?

Re:YHBT

[Anonymous Coward]

Good job, moderators! The parent points out the obvious and gets modded as a troll. Jesus, you guys must be on crack or something.

Re:We already have similar laws punishing both sid

[utlemming]

The idea is to make the expected value of the crime negative.
That is an interesting idea. Making the value of a crime negative, or "not worth-it" is something that I support. But what about the difference between criminal and civil? The copyright laws make it criminial to do certain things. But how negative should the penalty of a crime be so to stop the crime?

In the United States we generally agree that cutting the hand off of a theif is too negative. But fining someone into the ground is not. Fining a $1M is a nice idea in theory, but what good would it accomplish? The person that steals from Wal-mart, generally speaking, is not wealthy enough to buy the items in the first place, and therefore wouldn't have the means to pay in the first place. Placing a regressive fine on those who don't have the money to begin with would benefit society little (if the shoplifter only makes $25K a year, it would take 40 years for the shoplifter to pay the fine; meanwhile the shoplifter has to declare bankrupticy to get out of the judgment, thereby eliminating and circumventing the judgement and the debts of the offendar). $1M is too regressive, as it would ruin the offendar and the fine would never be paid. Rather, fining the offendar on a scale that would allow the offendar to pay, yet make it sufficent to hurt would be better. So in this example our $25K/year shoplifter pays $2,500. Enough to hurt, but not enough to ruin the guy.

But the huge problem that I see with the whole copyright situation is that the punishment is extreme and serves very little purpouse. Why would $3,300,000 be a just punishment? Is the value of the product worth that much? TV shows, movies and music are not valued at insane amounts. Stealing a TV set won't land you a $3M fine. What benefit does fining people into the ground serve the public?

is downloading tv illegal? or just sharing it?

[klparrot]

Is it actually illegal to download a show ripped from a channel that you subscribe to or can receive on an antenna?

Let's say it was the same local affiliate, and they left the commercials in. The person sharing the file would be infringing copyright by making it available to others, but would you be in the clear? After all, what is the difference between that and taping it on a VCR?

Anyone have an answer? The more informed, the better.

Re:is downloading tv illegal? or just sharing it?

[j0nb0y]

Is it actually illegal to download a show ripped from a channel that you subscribe to or can receive on an antenna?

IANAL. This is still illegal. The only way to do it legally is to actually rip it yourself.

The plain and simple truth

[mark-t]

Downloading a work or even putting a song on your hard drive from CD is making a copy of that work.

Under copyright law, you have the right to make copies of a work, FOR PERSONAL USE.

But if you start sharing that copy, then you exceed the bounds of personal use, and are infringing on copyright if you don't have permission from the copyright holder to make copies for other purposes.

You are perfectly welcome to share the original CD or book or whatever, but any copies that you make, you have no rights at all to share, because the only copying rights you have are for personal use (as well as fair use rights, but sharing with family, friends, neighbors, or complete strangers doesn't fall under that category). Recall that that the copyright holder has EXCLUSIVE rights to copy for purposes other than commercial use until he grants such rights to others.

Now that being said, if there is no means for any outside party to discover the infringement, then for all intents and purposes, the infringement never actually occurred. This is completely consistent with other aspects of the legal system, as one cannot be charged with murder for instance unless there is at least overwhelmingly compelling evidence to support that the victim in question is actually dead (a dead body, for example).

So, you _can_ share copies with friends or family, AS LONG AS you keep the circuit along which you do share completely closed to outsiders. This includes even the ability to _observe_ from the outside that the sharing is occuring, not necessarily just the ability to participate in the sharing. Technically speaking, you are still breaking the law even if you do this, but if your closed enough about it, you probably won't face any penalty.

If you find it disconcerting that an action which is illegal should be tolerated if nobody ever knows about it, consider also that if I build an atomic bomb (which I learned how to do in high school), but never do anything with it, as long as it's shielded enough so that any radiation does not affect anything or anyone else (read absolutely nothing more than normal ambient radiation levels absolutely anywhere outside the shielding), there's no reason to expect an impending penalty unless or until somebody else _does_ find out.

Re:The plain and simple truth

[Anonymous Coward]

That's how it works up in CA. Here we have the NET act.

Correction

[Anonymous Coward]

Person walks into Best Buy with laptop. Shoplifts DVD. Doesn't get caught. Gets home and copies DVD to Laptop Hard Drive. Fair use. No penalty. When raided, person says, "Lookie here you MPAA bastards - I own an original copy, fair use."

Correction: Person walks into Best Buy with laptop. Shoplifts DVD. Doesn't get caught. Gets home and copies DVD to Laptop Hard Drive. Violation of the DMCA. When raided, sentenced to a Federal Pound Me in the Ass Prison for years.

Re:We already have similar laws punishing both sid

[jesser]

Your way of computing the expected value of a crime fails to take into account that for most people, utility is not a linear function of money. Would you rather have $100m or a 50% chance at $300m?

/. FUD

[Anonymous Coward]

"from what I can tell, the penalties laid out for downloading one season of a TV show with BitTorrent are much harsher than if you actually stole a DVD set of the same show from a government store"

In practice, people uploading files have been the target of prosecution. This is just more /. FUD

Re:/. FUD

[Anonymous Coward]

No it's not, because by definition BT requires you to upload (or get abysmal download speeds). And thus by 'downloading' a torrent, you are uploading and thus can be sued.

I agree completely

[benhocking]

However, calculating utility is obviously harder to do and harder to explain. Suffice it to say, I made the assumption that the utility of a 99.99% chance of having $100 is higher than the negative utility of a 0.01% chance of losing $1M. (Of course, assuming that one has $1M in the first place.)

HUH!?

[Hard_Code]

"For stealing the DVD you could face no more than up to 1 year imprisonment and up to a $100,000 fine"

What the fuck!? Have we lost all sense of proportionality? Does anybody else think that a cap of 1 year imprisonment and $100,000 is a tad high for stealing a $12 piece of fucking plastic?

VCRs

[Razman]

This article seems to refer to something that is available on DVD at retail outlets.
What of TV shows that are not for sale on DVD.
Lets say "Enterprise" season 4.

Is it illegal to download it for personal viewing?
Without sending any parts of it... some torrents clients you can do that, but the download is proportional to your upload, so it would take a rather long time, but none the less doable.

Is the really any different than me Recording it, from the free in the air tv signals?

For example, local TV station can be picked up with out can cable subscription, and I could then record the show, to which ever medium.

would really be no different than me downloading, never uploading any parts...

Any opinions on this scenario?

Re:VCRs

[Anonymous Coward]

IANAL but was curious about this as well.

Also I wonder about programs broadcast to subscription cable-tv services, i.e. C-SPAN, CNN? Wouldn't these latter cases only be a simple breach of a "terms of use" agreement, if indeed any such agreement was even signed by the subscriber?

US Govrenment MUST show respect for IP

[ChrisPee]

Otherwise, twenty years from now, India and China will run the IT industry, and it will be the Americans sending their children to work in coal mines. (Just joking; there won't be any coal mines left.)

Re:This Article Isn't Presenting the Facts Accurat

[YrWrstNtmr]

Which government stoare have you been to that sells DVD's?

BX/PX/NAVEX at almost every military base in the USA. But in that case, other penalties might come to bear.

Re:That's how it should be

[cbr2702]

Someone plans out a bank robbery, has the balls to go through with it, gets a few grand - they get 20 years.

You've been watching too much Ocean's Eleven

Honestly

[Anonymous Coward]

Why not be honest and do neither? Get active in politics and pass laws that are geared toward the users rights!
That way you can't be held responsible for stealing or infringing, or whatever whatever you call it (unless wrongfully accused).
It will alleviate any guilt related stress.

Or...

[Greyfox]

Rent DVD legally for $2.50. Rip DVD to MythTV 2TB hard drive array. Return DVD the same day to avoid late fees. Watch movie whenever you feel like it. Although, For most movies I'd just as soon watch them a grand total of once at the dollar theater. And I'm not even planning on giving Lucas another dollar of mine.

insensitive clod!!!

[Anonymous Coward]

My penis is square you insensitive clod!!

Non-consistent laws are common

[Anonymous Coward]

In Norway the fines for speeding recently became higher than for committing violence. It's cheaper to be taken with heroine than to drive on a red light. Needless to say, this is causing some debate (norwegian, sorry).

How many ways...

[wombert]

...are there to shoplift in such a way that it becomes a federal offense? WalMart's not going to lobby the U.S. Congress for better shoplifting laws if all offenses will be prosecuted under state laws, and a DVD theft is the same as stealing the equivalent value in breakfast cereal. Perhaps the gap here is the failure to recognize shoplifting of a copyrighted material as a copyright offense - which would mean separate prosecution for the physical theft (state) and the copyright infringement (federal)? And if it's recognized as a federal offense, they may still prioritize the mass offenders (i.e. P2P file-sharers) over those who have one physical copy on the shelf at home.

Re:How many ways...

[Alsee]

the failure to recognize shoplifting of a copyrighted material as a copyright offense

Kind of like the failure to recognize shoplifting of a dildo as a rape offence.

Hmmm, I figure some people will fail to understand my point so I'll explain it. It is NOT a "failure" of any sort that the law does not recognize shoplifting as a copyright offense. The shoplifting of a DVD in no way involves the rights of copy. The copyright holder authorized the creation of that copy and he sold that copy to the store. Legally the copyright holder has absolutely NO property rights in that copy any more. That particular copy is not the store's exclusive property. Someone shoplifting the DVD from the store is stealing the store's property. That theft in no way touches upon the exclusive rights granted to the copyright holder.

The only "failure" would to attempt to turn shoplifting of a DVD into a copyright offense. It would only serve to prodeuce severely broken law.

-

Re:How many ways...

[thogard]

Its a federal office if your shoplifting from a souvenir shop in a federal park (thats run by the gov't), a military store or a US gov't book store or post office. There used to be a sign in the bookstore in Kansas city that said that shop lifting in that store was a federal crime and would result in jail time. The guy at the shop said the sign cut down on their losses a bunch.

You've all missed the best part of the article...

[Anonymous Coward]

This moron said "Fox" lawyers. HA HA! Everybody knows Alias is on ABC!!! (geeky snort)

Criminal vs. civil

[Squirmy McPhee]

I'm no attorney, but it sure seems to me that this is a loaded comparison. Shoplifting is a criminal matter, while copyright violation is (usually) a civil matter. Each is handled by a different set of attorneys under a different set of procedures and governed by a different standard of guilt.

Not to mention that file-sharers are generally accused of "stealing" dozens, hundreds, or thousands of copies of a work. Not only would a shoplifter not likely be able to hide so many DVDs under his jacket, he would probably face charges of larceny or something much more serious than shoplifting. And if restitution were part of the sentence, he'd be facing a fine (theoretically) as large as that paid by file-sharers, plus statutory fines, plus jail time and/or probation.

Re:Criminal vs. civil

[DaveCBio]

I wonder if it would be more appropriate to compare someone stealing a truck full of CDs and DVDs?

Re:This Article Isn't Presenting the Facts Accurat

[stang7423]

Which government stoare have you been to that sells DVD's?

Have you ever been on a military base? They typically have a "Walmart type" store that sells DVDs, music, etc... At least overseas bases have in my experience.

Don't kid yourself.

[billybob]

What, are you joking? You can honestly sit there and tell me that you dont believe this country is run by corporations? You are very naive my friend.

Re:Don't kid yourself.

[Reality Master 101]

You can honestly sit there and tell me that you dont believe this country is run by corporations?

Just out of curiosity, what the hell does that even mean? Do you even know what a corporation is?

Re:Don't kid yourself.

[Anonymous Coward]

Do you even know what a corporation is?

An incarnation of short term profit motive.

Re:Don't kid yourself.

[Reality Master 101]

Try the crucial underpinning of the entire economy.

Re:Don't kid yourself.

[Anonymous Coward]

Try the crucial underpinning of the entire economy.

Only because they have been able to shape the economy to fit them. In other words there is nothing inherent about corps that make them the only possible way to build an economy and it is entirely possible that they are not even a particularly good way to do it either.

Re:Don't kid yourself.

[Reality Master 101]

OK, just out of curiosity, exactly how can an economy be "built" without corporations? Be sure and explain:

1) How new companies are financed

2) How risk can be encouraged without liability protection

3) How it's possible to have companies large enough to make multi-billion dollar investments in new technology (i.e., Boeing, IBM, etc) without corporations

I actually kind of doubt you know what corporations are, but I figured, what the hell. Let's hear your economic theory.

Re:Don't kid yourself.

[Anonymous Coward]

You miss the point entirely.

The point of your questions is the equivalent of saying that the definition of a square is a square. You are mentally stuck in the idea that the way things are today is the only way things could EVER be. I am saying that the corporate structure is not a fundamental law of nature or even of economics.

Re:Don't kid yourself.

[Reality Master 101]

Fine, then give me your alternative that doesn't require any of that. Or is this just mental masturbation that there "has" to be alternative, we just don't know what it is yet?

Sure, you could have an economy without corporations. That problem is that it would be as efficient and forward progressing as a 15th century economy. An economy without corporations is like physics without calculus. Sure, you can have primitive physics without calculus, but you can only go so far.

I suppose it's possible you might be thinking of communism or something, but that is unworkable on any large (or even medium) scale.

Re:Don't kid yourself.

[che.kai-jei]

you're an ass
unfortunately in the corporate led culture of theUSA the propaganda eventually leeds to worship
listen to yourself -- equating the lazy ineffcient, greedy, short sighted corporate mentality with an essential development in mathematics?

An economy without corporations is like physics without calculus.

your point has some merit.
' coroprations have acheived alot in addition to massive, unreal bizarre levsl of profit.'
so what?

it wasnt corporatins that cured polio, put men on the moon.
indeed, in something massive like the apollo missions, corprations where insturmental in fluidly being able to mobilise specialised knowledge.. but the corps did not create tat knowledge. they were just the efficient and appopriate vector.

for isntance, it is pharma-corps who are helping destroy your 'healthcare system' billions sunk into advertising nearly as much as into R&D, much more thah manufacturing!

really who needs to advertise cancer/ aids drugs?
if the didnt then most drugs would be 400% chepaer at the least and would compete based on merit and trial results.

look at GM technology.. alot of it just is not useful/ competitive by any stretch of the imagination. so in your capitalist, corporate utopia these failed projects would die and go away?
yet it is these same white elephants and hobby horses being rammed down our thraots by corporate consensus or govt acquiescence.
why? because the corps over the last 30 years sank trillions of dollars around the world into it and neeed to make back the money squandered, blindly, greedily.. that investment -- they will over time -- their is no doubt the technology is powerful and useful if applied correctly .. but that is not enough... they wnat their moeny know -- from taxpayers.. via wasteful governemnt contracts.

it sounds to me that in your worship, you excuse their excesses and destrcution of your fine and great country.
corporations in an economy are like cattle on a farm [there are alot of diffrent attitudes to farming and some map well in this analogy to real life socio-economic systems - ie communism capitalism], they have ot be managed and regulated, the farmer benefits from their continued existence,wellbeing, effort and cost into maintaining them[eg tax breaks to encourage good responsible behaviour, the costs of aking them to court or fining them for pollution etc] but it seems here in the west
the cattle took over and now produce nothing for the farmer; constantly beat the farnmer's wife for her milk and rape his daughter.
deep down, haoratio alger, you know you shan't win.
you'll never become flithy rich like you dream of; just enough to get by day to day lugging rocks on the work farm for the cattle's entertainment, nothing more.

Insecure wireless

[McFly69]

What if a person has a insecure wireless network and Joe Six-Pack connects to your network and downloads copyright material? Would you be held liable, or Joe would be? Since it was downloaded using your internet connection, would you have to prove Joe downloaded and you do not have copy? But again, if you do not have a copy, upon your system anywhere, how/why can they take legal action against you if there is no hard proof.

As in the example given, shop-lifting and copy right infringement. If you go to a department store (say Walmart) and they video tapes you taking DVD's and placing them into you coat pocket. They could not take legal action until they find it on you. But what if you walked away (in the store) and left the DVD somewhere else where the camera did not see you. Hence you do not have a stolen DVD and you have not done anything wrong and legal action can not be taken against you. Worst they can say, "don't came back here." Same thing with the wireless network; if you do not have the movie on you system (or copies on cd's), how can they take legal acation against you?

dangerous

[Anonymous Coward]

I'm waiting for the first lawyer to figure out that technically there is no difference in stealing a dvd and downloading one as far as copyright is concerned. Both ways you are in possession of an unlicensed copy of copyrighted material. so theoretically the RIAA could go after anyone that steals a CD.

/.ers most ovverrated for intelligence

[Anonymous Coward]

Looking at the posts it's clear no one understands economics. A person uploading a DVD to hundreds of people is a far greater loss to a corporation than someone stealing 1 DVD. Yet there are numer ous modded up comments about corrupt govt and corrupt corporations, despite the fact that the laws make sense.

Amazing!

[GoodNicsTken]

Reading down through the posts on this topic, I'm just amazed most of the /. crowd still doesn't differentiate between copywright infringement and theft.

In the case of theft, someone is deprived of physical property. If someone stole my car, I would be mad about it. That's theft.

However, if somebody could walk up to my Ferrari, use their resources to make a perfect digital copy of my car, get in it and drive away, why would I care?

Think about it, who lost out? Ford on a sale? Perhaps, they spent time designing the car, and didn't charge the first guy enough make money. The person making the copy is using his own materials, just reusing the idea.

It's the business model and copyright laws that are broken here not the act. The ideas behind Linux and GPL will one day spread from computers and make it's way into nearly every product. Then we don't have to worry about silly crap like this.

who gets the money?

[usernotfound]

If 10 people get caught, that's 33 million bucks. 100 people, 330 million bucks. That FAR exceeds the amount of money generated by movie... Who gets this money?!

Is that really proof

[Anonymous Coward]

He asked you for a court case where somebody was successfully prosecuted for downloading, and you responded by showing him proof that is was against the law. He knew that it was against the law, he was pointing out that its never been done before. In fact, I'd venture that more people have been convicted of jaywalking than of downloading music.

That said, I....

Wow. Hold on...

Its the phone. I'll be right back.

Hello.

What? Anita Coney? Yes, she's right here.

Uh huh.

Uh huh.

Okay. I'll tell her.

O.K. Buh-Bye.

Anita, it was your high school. They want their diploma back.

"It is more blessed to give than to receive"
--Paul

I've given you proof that you're wrong. It doesn't matter that my cite had nothing to do with the question, I have give you a true quote, and therefore, it validates my entire argument.

Anita, we're faced with a conundrum here.
If you're a really really hot chick, you can get away with being that dense. But if you're not hot, then you've got to be real smart. Figure it out, because if you are not hot, then please just go hide in a corner.

P.S. Yes, I am! In fact, I just be "be your daddy", if you know what I'm saying.

Re:Is that really proof

[Anita Coney]

I stated that under the law you are infringing copyright whether you merely download or share.

He asked me to prove it.

I did prove it. I specifically provided the statute which holds that mere copying can be infringing.

He also asked for a case. That is irrelevant.

You and he seem to be under the impression that someone has to be charged with a crime or sued with a case before a statute can be considered valid. That is obviously ridiculous. Because how could anyone be charged or be sued THE VERY FIRST TIME?! His defense would merely to ask, "Who else has been sued."

And besides, if a judge in any court in the US asked me to explain how copying is infringing, I'd cite to the same statute I cited to above. That cite would satisfy any judge in any court. If it is could enough proof for a judge, then I think it's more than good enough proof for a Slashdot forum.

Simply put it is irrelevant that the RIAA chooses to not sue mere copiers of illegal music. What only matters that it CAN.

Really? Thanks for the tip!

[Anonymous Coward]

" It doesn't matter how the video was recorded, it's still illegal to distribute it over the internet."

I hadn't heard that 4 million times before on /. Its refreshing to read a fresh point of view. One that had never been considered before.

Thanks muchly!

Ah, you're naive!

[Anonymous Coward]

"It is illegal to steal copyrighted material"

Yes. Stealing copyrighted material is a crime and the police will arrest you and make you pay compenstation. Probably $18 and a stern "do not do that again"

Or if you meant infringe, oh goodness. They can bang you for literally a billion dollars just for downloading crap off the internet.

Because large corporations pay more to congress man than local record stores, therefore, the punishment "fits" the crime.

WRONG! NET Act defines criminal infringement!

[Anonymous Coward]

RTFA--our summary is wrong, you CAN get prison time for criminal copyright infringement under the NET Act. Up to 1 year, in fact.

It made it rather clear, however, that it only counted if you were exchanging the works for profit. However, the NET Act, among other things, makes trading a copyrighted work for the expectation to recieve other copyrighted works in return into "profit" of a sort.

Because he used BitTorrent as his example, you automatically share the content as you download it as a condition of getting it in the first place. Thus, you run afoul of the NET Act, and (in theory) could get 1 year in prison.

Disclaimer: IANAL.

Maybe I'm wrong

[Valegor]

Maybe I'm wrong about this, but to the best of my knowledge there have not been any law suits based on downloading. They are all based on distributing instead. It is those that share who get sued not those that download and never share it.

The parallel between sharing a file and shoplifting fines is just not there. Now if the person who shoplifted the season made copies and gave them away then there would be a parallel to compare fines.

Fun Fact!

[Anonymous Coward]

You know, the producers of the show/cd/whatever you're attempting to get for free actually would tremendously prefer that you steal from a store than download it online. After all, if you steal from a store, then not only does the producer already have the cash the store paid to buy the product and put it on their shelves, but as an added bonus, if it doesn't sell too well and the store decides it doesn't want to keep it any more, that's one less product he has to have returned to him at his own expense! (Many stores, if they are not turning enough profit, will return items to the producer, and the producer must accept those items at his expense, and pay part of the fee the store paid him for those CDs back)

Re:We already have similar laws punishing both sid

[Dun Malg]

The idea is to make the expected value of the crime negative. As any good mathematician could tell you expected value is the sum of the (product of the probability of an outcome by the value of an outcome), summed over all outcomes.

In your example, let's imagine that $100 is stolen by 50,000 shoplifters, yielding that $5M figure. The probability of getting caught is therefore quite low, specifically, 0.0001. So, if every shoplifter were fined $1M, then the expected value of shoplifting would be (0.9999) * 100 + (0.0001) * (-1,000,000) = $99.99 - $100 = -$0.01. So $1M is probably not enough of a fine.

The major flaw in your "negative expected value" theory is that it depends upon the entire affected population being, essentially, fully informed mathematicians. Since this presumption is ludicrous, you cannot use it as a basis to calculate an "adequate deterrence value threshold". There is no magic formula that's going to tell you how big an fine needs to be so long as there are people out there who spend $50 a week on the lottery but put $0 a week away for retirement.

No shit!

[Anonymous Coward]

Due to the way BitTorrent software works, not only are you downloading a copy of the movie, you are sharing it with others even as you download. Of course it would have a higher penalty!

Re:this is nothing new, punishments don't fit crim

[bbc]

"However the theft of a movie before a retail establishment purchases it means it hits the bottom line of the distributor directly."

You cannot "steal" a movie, as it won't be gone after you've taken a copy. Also, there is hardly any proof that file sharing has supplanted sales--the opposite could be argued.

The only "theft" in the area of "intellectual property", is the one caused by the introduction of copyright law. By making copying illegal, many works will perish and thus be stolen from the public that owns them.

Re:This Article Isn't Presenting the Facts Accurat

[bbc]

"If I were an author, publish, programmer I would want me original creative work to be more protected than just one copy that got the "five finger discount.""

Don't worry: copyright law hardly ever "protects" works. To the contrary, thanks to copyright law lots of works perish every year, because it is illegal to copy them. From the work's point of view copying is a healthy activity, as it will help its dissemination.

Risk isn't a deterrent

[Luthair]

Studies have shown that risk isn't a deterrent, people don't believe that they will be caught. RIAA helped deter some people by giving people the impression that they would be caught.

In my opinion physical theft should be considered as a more significant crime as there is actual loss. RIAA deals in a potential loss assuming that any download replaces a purchase and that downloads preclude purchases, both of which studies have shown to be false.

Countries' Differences Abound

[Anonymous Coward]

Depending on the country. Canada and European countries allow personal copying of music through the recordable media levy. However, it's a sham, where they're trying to sue uploaders, ruin P2P with fakes/junk, include DRM in their music, and so forth.

Moreover, going after downloaders is difficult, while uploaders are easy targets and more logical - not public relations. If you think suing 12 year olds and grannies are public relations, think again.

Coming soon to a courthouse near you...

[Junior J. Junior III]

Your Honor, I bought this movie a few years ago. I own the DVD. See? Well, no, it hasn't been released in theaters yet. I still maintain that I bought the DVD years ago, in a store. It's true, I tell ya. I swear on my mother's grave! ...Oh, hi mom, I didn't see you sitting over there.

The defense rests!

Downloading is easy so deterrent has to be strong

[cshay]

It's a real pain to shoplift. You have to go to the store and dodge security cameras. It already has a built in deterrent.

Downloading is easy and without a ruinous penalty hanging over your head, could be very tempting.

Ack! Nasty nasty TYPO!

[Alsee]

I accidentally typed:
That particular copy is not the store's exclusive property.
It should read the opposite:
That particular copy is NOW the store's exclusive property.

-

This is really about politics

[Husgaard]

While Karl Wagenfuehr limited himself to comment on the current US law, I think his unstated message is political (ie. more about how laws should be than about how laws are).

When somebody creates an illegal copy nobody has any indirect loss from it. Copyright holders may argue of an indirect loss due to lost sales, but that argument is contradicted by a lot of scientific research on the correlation between people's illegal copying and their purchases of copyrighted goods. It looks like people doing illegal copies are bying more copyrighted goods - even it they already own illegal copies of what they buy.

OTOH when somebody does shoplifting of a copyrighted good, the shop has a direct loss.

So the basic political argument is: Why should something illegal have a harsher penalty when there is no direct loss compared to when there is a direct loss.

The cheapest crime, the greatest kick: kill a guy

[Neduz]

I'm not kidding, take a car or (illegaly) boosted scooter and go kill someone. Last month, the average fine was 500 euros, and your not allowed to drive a car/motorbike for 1 to 3 months.
Killing one child/old lady (make sure you don't kill anyone related to a rich family, or a family with political influence) is much more thrilling then downloading a hundred movies (or shoplifting a 100 dvd's), and doesn't cause as much trouble.

Disclaimer: Don't try this! Killing, for whatever reason, is wrong.

nothing stolen

[Anonymous Coward]

The contrast is even more alarming when you note that when you dl a movie nothing is being taken [only copied], where as in the DVD example real property has been removed. The DVD is also much better quality than most all (99%) offered for dl.

As others have already pointed out there is nothing "just" in our justice system, but we all knew that after they threw the book at Kevin Mitnick. ...but he was a criminal right? Yeah a criminal with rights, the same rights you now don't have either.

In general I agree...

[benhocking]

But I will go back to the one point you didn't directly address (and the one most tied to reality). If the probability (per incident) of getting caught is low, then those who get caught are probably guilty of more than one incident. As a former manager who caught an employee stealing, I can tell you that thiefs rarely get caught their first time stealing. In the case of the person I caught, she claimed it was the only time she ever stole anything (and threw in a whole guilt trip thing about having a daughter to raise), but the only reason I caught her was because there had been evidence that someone was using a particular trick to steal from us. In order to catch her, I merely placed myself within visual range of where I knew the crime was happening so as to catch her in the act.

Re:In general I agree...

[Anonymous Coward]

thiefs rarely get caught

"thieves".

Re:In general I agree...

[Razor Blades are Not]

You're still calculating based on company losses rather than the proportion of "gain" by the thieves. This is an unjust solution.

For example :
1000 thieves steal 1 million dollars worth of stuff. Lets say each thief steals 10 times (each item is worth $100). Say your chance of catching a thief was only 1 in a million. What should the fine be ?

One thief is caught after he's performed all 10 of his crimes, but you only caught him performing one theft.

If he pays back what he stole that last time, it's $100.
If he pays back what he's stolen altogether it's $1000.
If you use your calculation, it's $1,000,000, because all the thieves together stole that much.

Right ?

It's unjust to weigh the fine based on the economic loss to the company, if only because companies aren't lily-white either (losses can be inflated, especially if there's any expected gain due to restitution, etc).

It's also not just to base your punishment on the expected, average behaviour of all thieves, everywhere. The fact that many thieves commit multiple crimes doesn't mean that every thief does, nor should every thief be punished for the actions of all of them. Nor can one simply average the loss amongst all those who were caught. IF you take your calculation to the next level, soon you'll be leveraging the loss to society as a whole vs any criminal.

How can we expect people to take responsibility for their own actions when they will be punished for the actions of others ? Don't forget - it's not a deterrent, because not everyone is a fully rational agent (for whom such a punishment would be a deterrent).

Economic viewpoint

[hunterx11]

One economic view on crime deterrence is that penalties for crimes should be crafted such that the marginal cost of crime outweighs the marginal benefit. However, this requires that you take into account not only the penalty, but the odds of getting caught. Parking illegally might not be worth getting a parking ticket, but if you get a $100 parking ticket one out of ten times you park illegally, the marginal cost of illegal parking is only really $10, which isn't necessarily too unreasonable. Since the odds of being caught infringing copyright are many, many times less than the odds of being caught shoplifting, the penalty would need to be much higher in order to place the same marginal cost on both shoplifting and copyright infringement. I'm not saying that I agree that this justifies the difference in penalties, but it is worth taking into consideration.

History will see this hair-splitting as silly.

[letdinosaursdie]

Information is made out of electronic ones and zeroes... nothing, air. The sooner we realize that information cannot be stolen but only shared, the sooner we can all get on with innovating and benefitting from the fact that the paradigm has shifted. All this bickering is over laws designed for an era in which the manufacturing of information, in the form of physical artifacts, needed to be protected due to the equipment and distribution costs... wake up folks. You can't manufacture air. The laws designed to promote that manufacture are now barriers, not to dumb people leeching movies, but to creative people seeking to recombine movies, audio, text, etc into new work. The right to make money by restricting others' freedom of information was only invented to protect the industrial process of printing. We don't need to grant that "right" anymore by taking away everyone else's rights. Copyright is becoming the tool of people that are desperately irrelevant right now... as irrelevant as the Catholic Church was becoming when people could read their own copies of the Bible. We have a universal network here... a perfect way to create and distribute culture to one another. Lets abolish the restrictions... I promise you, creativity will not disappear.

Re:We already have similar laws punishing both sid

[Stopher2475]

Now I just have to sell enough heroin to make enough money to pay the fine I got downloading that DVD.

Actual Losses v Artificial ones

[Skrybe]

What gets me is that in the case of shoplifting there is an actual accountable loss - the value of the DVD to the store. In the case of downloading the loss may or may not occur. I'll explain...

I'm reviewing a P2P app so I download a movie from the net to test the performance and functionality. I have no intent to watch it or distribute it, it's just more convenient to download a popular movie because there are lots of sources and it's well spread. I have effectively infringed copyright by downloading the DVD yet I have no intention to watch the movie and it has no bearing whatsoever on whether or not I'd have purchased the movie at all. In this case there'd be no actual loss to the publisher.

Another example would those of us in other countries who are p**sed at the stupid movie release delays and want to see a movie NOW not wait two months for it to be released. We download the movie, watch it and when it is released we buy/rent it anyway. Again there is no actual loss to the publisher. And there are undoubtedly other situations that are similar.

I have no issues with people being punished if they download a movie, but I believe intent needs to be looked at in order to determine whether there is an actual loss. And once that happens the fine is determined appropriately (or waived entirely).

Oh and the first downloader shouldn't be responsible for subsequent downloaders. They should be pursued seperately.

ps: I know the law currently doesn't agree. All I'm doing is stating how I think it would be fairer.

Re:this is nothing new, punishments don't fit crim

[clambake]

Punishments aren't meted out to fit crimes, they are created to compensate for enforceability. It is MUCH easier to enforce shoplifting at a retail store than it is to enforce filesharing copyrights.

The idea behind this is that while punishments are low for shoplifting, the chance of getting caught is high. In the filesharing situation, the chance of getting caught is low, so they try and jack up the punishment to make it that more serious if you do get caught.

There no real logic in that. Why not make ALL punishments equally horrible. Death penalty for any crime by the most painful and excruciating means available. Now it's serious to commit any crime and we live in a better world, right?

Not victimless

[Anonymous Coward]

There are at least two victims here:

The store owner:

The copyright owner:

Whatever your position on the penalties for filesharing, theft is theft. If a penniless man steals bread to feed his children, it is still theft. This is why we have judges and juries, to decide the relative merits of each case.

Re:Not victimless

[Marvelicious]

Stealing a loaf of bread is stealing yes. I deprive the store owner of his loaf. But I still feel that the jury is out on filesharing. Essentially copying a file... I take nothing, but I do create something. Perhaps it should be illegal, but I've never felt "theft" was an accurate tag to put on it.

Sigh. I guess you're hot

[Anonymous Coward]

"it is irrelevant that the RIAA chooses to not sue mere copiers of illegal music. What only matters that it CAN."

Sigh.

You are determined to ignore the point. I respect stubborness, so let me make it simple for you.

1) It is possible for a comet to run into the earth.
2) It is possible for me to win the lottery
3) It is possible that JFK is still alive some place.

These are all possibilities. That is a fact.

Does it matter that these are possibilities? or can I probably dismiss these and say (1) I don't worry even a little about comets (2) I don't waste money on the lottery (3) Stop it. JFK is dead.

Okay. Downloading MP3's is illegal. Nobody has ever been prosecuted or sued for downloading MP3's. Therefore, I'm not going to worry about it.

I suspect you see the difference and are now just being stubborn because you were made fun of. Get over it. I'm just some random person on the internet.

Or, I might be your daddy.

Re:This Article Isn't Presenting the Facts Accurat

[RmanB17499]

To the contrary, thanks to copyright law lots of works perish every year, because it is illegal to copy them. From the work's point of view copying is a healthy activity, as it will help its dissemination. If I waive my right to copy them then you can copy it all you like and then it wouldn't perish as you say. Or maybe I want my copyrighted IP to go away because it was poor.

Re:This Article Isn't Presenting the Facts Accurat

[RmanB17499]

I've thought about those. Some times they are run by a private group on-base like a cooperative. There's a network that does that in many places and they tell the troops that lots of times prices are better than at a Defense Commissary Store. Even if the crime were to occur on base I think that it would be listed as a simple theft and not the charge that the author looked up.

Re:This Article Isn't Presenting the Facts Accurat

[RmanB17499]

Also, if it were to occur on a military base shouldn't it be covered by the Uniform Code of Military Justice and not Title 18 USC?

Re:Sigh. I guess you're hot

[Anita Coney]

If you've agreed all along, then why in the heck did you ask for proof in the first place?!

Basically, you've been proved wrong and you're too much of an idiot to admit it.

Finally!!!

[Anita Coney]

I finally figured out the problem. You're a moron. You're trying to get me to prove that the RIAA has sued or will sue someone for mere copying. But I've never argued anything of the sort. And in fact, if you've paid attention, you would know that I said the exact opposite in an earlier post, i.e., that the RIAA are only going after sharers. I assumed that you wanted me to prove what I HAVE been asserting, i.e., that mere copying is infringing. Not realizing the extent of your stupidity, I proved exactly that. I've never said that RIAA will go after mere copiers. Thus, why in the world would I ever want to prove it?! Next time you might want to pay attention to what people are saying BEFORE posting a response.

Re:This Article Isn't Presenting the Facts Accurat

[bbc]

"If I waive my right to copy them then you can copy it all you like and then it wouldn't perish as you say."

Indeed, but that would require an extra effort on your part. How many authors are willing to do that?

"Or maybe I want my copyrighted IP to go away because it was poor."

I would say most works simply get lost because authors cannot imagine that anyone would want them. And those who actually are able to imagine such a thing probably feel that people should pay for what they want.

The fairest system, it seems (and to be honest, it took me a while to come around to this), is one where works need to be registered to continue receiving copyright protection after a certain time. Unfortunately, such a rule would be against the Berne convention and therefor not rapidly enacted.

Re:This Article Isn't Presenting the Facts Accurat

[RmanB17499]

Thought that authors publishing under the various free and open-source licenses like the GPL and derivatives were espressly waiving many of their rights, but still making sure that when people make changes in the future that it stays open. And with GNU Art and Wikipedia it seems that open-licensing and copyright waiving is becoming a big trend and not just limited to computer fields, either. I would never argue for the compulsory abolish of copyright laws, but I fully support the open and free software communities. Copyright registration may not really be the best solution. My term paper that I produce is a copryight protected piece of intellectual property. Of course, some might say it's a POS and I may never want it to re-surface. As my property that's my choice. To force me to pay a registration fee and register it or else lose protections would force me to either register everything: because perhaps in the future the idea would be valuable?? And still it would really favor large company's with extensive legal department and be a disservice to small time artists, software developers, writers, and others. Ever see how expensive it is to file and renew patents? What if you write a novel and it never takes off until you're 50?

No, I am calculating based on the theives' gain

[benhocking]

You're still calculating based on company losses rather than the proportion of "gain" by the thieves. This is an unjust solution.

Actually, in this hypothetical world, stealing is what is known as a zero-sum game. That means that the gain of the thieves equals the company losses. The fact that your arguments are centered around reality suggests to me that perhaps your understanding this, however, and are actually arguing that this hypothetical world has little to do with the real world. I agree. However, game theory can still inform us, as long as we take its results with a grain of salt.

Obviously, if we fine them $1000, then the risk to the thief is so small compared to his expected gain, that stealing will be a profitable business. In the real world, of course, this means that surveillance will also become profitable and a more reasonable equilibrium will be established. Still, punishing them based on the amount you think they've actually stolen is not a very adequate punishment for the reasons already discussed. (In fact, as others have mentioned, even if we make the expected gain for the criminal zero or only slightly negative, the illogicality that is human psychology will still mean that it is a tempting game for thieves to play.)

Also, I find your concepts of justice interesting. You describe what is unjust, but I see no descriptions of what you think would be just - to ALL parties involved. Justice, in general, is problematic. I'm afraid that I am guilty of being a reductionist, and as such, I am actually more interested in improving society than in meting out justice. (My previous arguments have nothing to do with improving justice or society, they were merely academic exercises addressing the game theory aspects associated with stealing.) So, the question that I ask myself in the real world scenarios are, what will reduce the probability of the crime in the first place, while not causing unneccesary burdens on society? This includes such strategies as pre-emptive elimination of crime. Of course, in my case I'm referring to eliminating the root causes of the crimes (psychological disorders, poverty, etc.) and not eliminating potential criminals before they become criminals. (If you haven't read Don't Shoot the Dog by Karen Pryor, you should!) Obviously, we probably will never eliminate all criminal intentions, so other pre-emptive strategies include (reasonable) surveillance. Finally, we will probably also never eliminate all crimes, so we do need to have logical strategies for dealing with criminals once they have been identified. (Of course, part of the problem is eliminating false positives in this identification process.) These strategies tie back into the first two strategies I mentioned. OK - I've rambled enough.

Re:No, I am calculating based on the theives' gain

[Razor Blades are Not]

Interesting.

Even in the hypothetical world, it's only a zero-sum game when accounting for all participants. But each thief is an independant actor, and they can't be summed. That's the problem. You can't blame one thief for the actions of all, because they don't act in concert.

I agree with your assessment that, in the real world, surveillance will therefore become profitable thus balancing things out.

I guess I was arguing that, by ignoring the other potential balances within the real world, your solution was unrealistic, and furthermore, unworkable.

I don't think you've proven that restitution is a completely inadequate punishment. In fact, public restitution combined with a certain psychological makeup instilled in many cultures seems to work on more people than mere fining ever would. Consider the other 999 thieves who stole $1000 each. The chance that they will be caught (and must pay $1 million) is fairly small. That's an acceptable operating risk, especially considering that they could simply refuse to pay. If they don't have the money, what happens ? Should they be incarcerated for lack of payment ? Should we incarcerate just anyone who cannot pay their debts ? So why bother with the $1million fine, since no thief can pay it, and just go straight to jail with them.. Bingo, you've got many legal systems right now.

I think that the concept of justice is intricately intertwined with improving society. I certainly see no net benefit, economically or socially to your game theory system. Do you not see the burden caused by such a system?
a) Who assesses the economic loss to the company? Upon whom is the burden to prove an overall loss? b) What costs would be involved in proving (beyond a reasonable doubt, or balance of probabilities only?) that a certain loss to the company over a certain period (decade, year, month, week?) was attributed to theft?
c) Under what circumstances might certain thefts be excused? A small child shoplifting a candy-bar is liable for the entire damages caused to the company over an undetermined period ? Is that actually just under any system ?
d) How much of the fine goes to the company? If none of it, then the company doesn't actually recoup anything for it's loss, which is unfair to it. If all of it (barring a small percentage for court costs etc), then at what point do the fines decrease ? I mean, if they catch one criminal every year and lose $1 million dollars each year, which they recoup from that one guy (say), what happens when they catch two criminals ? Does the second guy pay nothing ? Does he pay another million ? Who gets that million? Does he give half of it to the other thief and half to the company ?

Hypothetical and real worlds

[benhocking]

Even in the hypothetical world, it's only a zero-sum game when accounting for all participants.

That would be the definition of a zero-sum game. I'm not sure what you mean by "all participants", however, so I do want to stress that this is a zero-sum game even with a single thief committing a single theft. If the thief gains $1000, the store loses $1000: $1000-$1000=$0. If the thief gets caught and (hypothetically) loses $1M, the store (hypothetically) gains $1M: -$1M+$1M=$0.

Do you not see the burden caused by such a system?

Absolutely. In the real world this is not a good system. However, in the real world, simple restitution is also inadequate, at least for the majority of cases. If the only punishment is restitution, then the thief has two possible outcomes: he might gain $x, or he might lose $0 (+$x-$x). Obviously, in a small enough society it is possible that shame, etc., would mean that the thief is actually losing "value" when he gets caught, but in our modern society, restitution is simply not an adequate punishment. (Obviously, in the case of the child stealing the candy bar, the child would return the candy bar and get some punishment from his/her parents (presumably), so restitution by itself is not the only punishment.)

Re:Hypothetical and real worlds

[Razor Blades are Not]

To illustrate my zero-sum argument :

Company loses $1million, one thief gains $1000. It's not zero sum unless you account for the 999 other thieves. Since the thieves don't usually work together, you can't say that it's zero sum from the perspective of the thief who was caught.

Thief gains $1000, the Company loses $1million (from all the thieves), then the thief loses $1million.

Finally, I don't remember arguing that simple restitution was either just, or adequate, merely that it was more just and more useful than your system.
I'm glad you brought up other 'values' like social standing etc. Intangible values weren't accounted for in your system either. Restitution and variations of public shaming have been shown to work in modern societies, mostly on youths where peer standing is extremely important. However, as a blanket solution, it lacks quite a lot. Petty larceny is one thing, but how do you perform restitution for murder ? What kind of public shaming is sufficient a punishment for rape? It simply isn't.

In any case, this conversation has come a long way from your original post. Nice talking with you.