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

[|/|/|||]

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

[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.

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.

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...

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.)

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.

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.

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.