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

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: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?

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.

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.