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

[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

[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

[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?

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

[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.

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.

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: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!)

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.

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.

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.

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.

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.

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?