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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"
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.
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.
If you had super powers, would you use them for good, or for awesome?
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.
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
hm
i may just be picking at semantics, but this is slashdot...
but where can I find the list of approved words?
WTPOUAWYHTTOTWPA
What's the point of using acronyms when you have to type out the whole phrase anyways?
[javac] 100 errors
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.
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.
If someone says he and his monkey have nothing to hide, they almost certainly do.
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.
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.
Ben Hocking
Need a professional organizer?
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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?
man, I feel like mold.
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.
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.
It's nothing but crumpled porno and Ayn Rand.
Soon they'll be able to with the broadcast flag. Sad, but true.
If you had super powers, would you use them for good, or for awesome?
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.
//www.copyright.gov/legislation/dmca.pdf), makes the point that copying isn't necessarily a violation of fair use.
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:
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
"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*."
/. 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...
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
"That's not even wrong..." -- Wolfgang Pauli
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:
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
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.