Slashdot Mirror
Constitutionality of RIAA Damages Challenged
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award as being violative of due process. In his 32-page brief (PDF), Tenenbaum argues that the award exceeded constitutional due process standards, both under the Court's 1919 decision in St. Louis Railway v. Williams, as well as under its more recent authorities State Farm v. Campbell and BMW v. Gore. Defendant also argues that the Court's application of fair use doctrine was incorrect, that statutory damages should not be imposed against music consumers, and that the Court erred in a key evidentiary ruling."
Duh.
These are a bunch of guys who have a hard time understanding "shall make no law" and "shall not be infringed"
Do you even lift?
These aren't the 'roids you're looking for.
This will be viewed as the proverbial "Turd in the punch-bowl". From what I have been able to infer from reading about these various cases, it is NEVER good to tell the judge that he did something W.. Wr... Wrro..... "WRONG"... (props to the Fonz). I do hope this and the other cases are viewed properly and have all the due backlash inferred,(complete refusal to purchase RIAA material, boycotting, picketing etc. etc. etc.).
I have gained this from musicology: That I refuse Sony BMG music downloads, that others only avoid from fear of the law.
A link to an old slashdot article, and 2 links to legal documents - one of which is 32-pages long!
Now THAT makes for some interesting reading... well, this is definitely one time that I will RTFA!
Every time a defendant does anything in an RIAA trial, slashdot has to report it? He's already sentenced, it's over. This is just more general bleating about how unfair the award is. There's no reason Tenenbaum would get special treatment.. high damages paid to the RIAA have already held up in court and been denied further appeal..
It really shouldn't be news that someone is making an argument in their case. Anyone can make an argument - that doesn't mean it's right. And the standards on due process for damages are pretty wishy-washy. So, while I'm not saying this wouldn't be good news if it were ultimately upheld, it's not really news that someone is bringing it up. 99% of all class actions are arguments made by plaintiffs' lawyers that are garbage, which never go anywhere.
I'd read somewhere that is was capped at $30k per copyright infringement, $150k for distribution of same.
I should think that, if true, the caps are there for rationality and that they're high to discourage infringement - but should never be used as analogous to a sentencing guideline.
Ray, I get the beef (from reading your info) about the judge being wrong in taking the defendant's statement of liability into account - but further, was it right to suggest those limits to the jury, in any case?
Thanks in advance for answering (and only if my question makes sense or is worthy).
Pathological kinda promises Path + Logical - but instead, you get stuck with pathetic.
I'm glad that the Slashdot editors are adamently in support of something that IMO needs to be supported, but how is filing a motion newsworthy in any way? Now, if the court agrees to the motion, that'd be different ... wake me up then. Otherwise, let people publish this sort of "news" to PRNewsWire and their ilk.
!#@%*)anks for hanging up the phone, dear.
Sure, he should pay a fine.
One in the order of, say, $675, not $675000.
see a Text Widget
Grow up and pay the $675,000 fine for sharing 30 songs?
There is a difference between fair use and pirating.
well 750k is kind of a lot. The whole 'making available to lots of people' isn't really premeditated anymore (like it was before the internet) so completely ruining someone isn't the right answer. Though I hope you sleep well at night, knowing YOUR MUSIC WONT WORK IN xx YEARS HAH.
C-C-C-Combo Breaker BREAKER before this gets carried away
It's not the fact that a 'pirate' got punished that is at issue here, it's the fact that the penalty is so large it will probably push the defendant into bankruptcy; it is a penalty significantly larger than the damages suffered by the record companies, and perhaps most importantly, it is a penalty that was designed to punish an entirely different class of pirates (commercial pirates who manufacture and widely distribute copies of music for a nice profit. In that case the profit motive is large, so the deterring punishment should also be large).
Personally, I think people should pay the artists for their work, they should pay the recording industry for their work, and if the music isn't worth 99 cents to them, they shouldn't get the music. But we as a society shouldn't destroy someone financially just for downloading a few songs. The punishment should match the crime, which in this case was small.
Qxe4
that's the damages, folks.
if this is supposed to be a new economy, how come they still want my old fashioned money?
If the punishment for breaking the law is unconstitutional (cruel and unusual, excessive fines, etc) then no, you shouldn't just deal with it. In fact, levying such fines is illegal, and those pushing for them should grow up and deal with it.
Give me Classic Slashdot or give me death!
Shouldn't the fine for everything be exceptionally high?
Seriously if downloading one song can have you paying out, for example, $10,000 then surely speeding which can result in death should have a fine of $100,000 at the very least.
If the government won't do that because it's ridiculous then I want to know why it's not ridiculous that I can be paying that much for downloading a few songs which are, at best, worth $0.99 each.
RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar. Their intent is to cause a "I lost everything, don't do what I did!" example.
That's the argument being made translated into slash-speak... let's see if that holds water.
He offered $500 to Sony, to my knowledge, and they turned him down and have now succeeded in the big bucks.
grow up and pay the fine when you get caught for actually knowingly breaking the law. How about that for a radical idea?
When I speed the fine is $350, when I let a parking meter run out the fine is $30. Were I to get into a fight and punch someone (misdemeanor assault) I'd face 2 weeks in jail and and $500 fine. Were I to steal a car I'd be facing maybe 1 year in jail, but in all likelihood would serve at most a couple months as a first time offender.
These are all reasonable punishments.
We're I to torrent my favorite artists discography (uploading it in the process, and thereby infringing copyright on several tracks), I would be fined... $675,000. Say what now? That's more than my house, cars, and everything in them are worth altogether. LOTS more. How is that reasonable?
I have fuck all sympathy for those who not only pirate music instead, but when they get caught red handed they act like they are being persecuted.
They ARE being persecuted. They commited a non-violent crime, for neglible personal benefit (they gain a few songs which can legally be obtained by borrowing a friends CD, recording them off a radio, or purchased for under a buck each), and which caused no real measurable harm to the copyright owner (at most the infringment in this act deprived them of a few hundred dollars due to lost sales... and that's highly debateable).
So sure I can see it being on par with shoplifting or something... a moderate fine 10 to 100 times in excess of the value of the items infringed to deter people from doing it seems reasonable. A few hundred to a few thousand dollars... sure no problem.
After all its pretty petty offense against society.
Fining them an amount that's greater than the value of their house, cars, and all their possessions seems a bit over the top for downloading a few albums.
Would you also support law that made loitering is a life sentence in maximum security prison? Making a rolling stop instead of coming to a complete stop is punished with hanging?
Why EXACTLY do you support bankrupting an entire family over p2p sharing a Britney Spears album?
Trying to fight RIAA in the courts is a loosing effort. RIAA pay politicians handsomely, and generally gets the laws they want. If they temporarily loose in court, they just pay to have the laws changed, and than they win. The draconian penalties as well as the never expiring rights RIAA enjoy is an amazing perversion.
The only thing that is worse is that this can happen in a democracy, and few care.
If you argue "well, just pay the $0.99 on iTunes and stop whining" you misunderstand culture fundamentally. Humans as a species copy. From infants looking at their parents to musicians, architects, engineers and philosophers listening to others, we refine and produce. This is the essence of human culture. That companies can monopolize this flow is damaging to the progress of mankind.
don't cut it off www.mgmbill.org
Except that punitive damages is one of the select few things you cannot get rid of in bankruptcy. that means that unless this person is well above the median income they will never pay this off in their lifetime and no matter how good a job they get they will be living in poverty for the rest of their life.
On the cover sheet I see at least two obvious mistakes: a phone number with an extra digit, and the name of the law firm is misspelled. I'm sorry, but this smacks of sloppiness. If I were the judge reading this brief, I would be on my guard for other mistakes, including legal ones.
And the judge just told you what that is. Fair use is an affirmative defense against a copyright suit. But it's never given that what you are doing is fair use. There is no such thing as fair use in the actual copyright law ,only in preceding case law. I'm with the guy that says "Pay the 2 bucks" (which is a very funny skit that reminds me so much of this case).
Just in case no one has heard the "Pay the 2 Bucks" skit it goes something like this:
A guy spits on the sidewalk and a cop sees it. He gets a ticket. He's taking to his lawyer and the lawyer says, don't pay it I can get you off. They go to court and it goes completely wrong, the poor guy is thrown in jail. He tells his lawyer next time he sees him to "Pay the 2 bucks". But his lawyer says I can get you out of this just wait. Two days later the guy hears them building a gallows outside his window and he tells his lawyer, boy that guy must have really screwed up huh? and the lawyer says, no that's for you, the guy says in a panic, "Pay the 2 bucks!" but his lawyers laughs it off and says never mind that I can get you out of this...At the pearly gates, the guy spits on the sidewalk and he gets a ticket from a passing angel cop, the guy behind him says, here I'm a lawyer I can get you out of that! but the Guy says OH no you don't that's how I got here. I'm paying the 2 bucks this time!
It was much funnier when it was done by Sid Caesar.
Why bother
Last I heard a punishment was supposed to hurt. But it should also fit the crime. Just because it bankrupts someone doesn't mean it was too big. Right now a $5000 fine could bankrupt me, so the actual size doesn't really matter that much. But yeah when you wiggle on the hook enough it makes the punishment that much harder to take I guess.
Why bother
You must be on crack.
"Humans as a species copy" and "damaging to the progress of mankind" are puerile justifications for this behavior. Not being allowed to rip a CD is going to cause the collapse of civilization exactly how?
People download and distribute music out of greed or convenience. That has nothing to do with the development of Mankind. There are no pre-wired instincts to copy music, movies or art.
I am not in favor of this ridiculous penalty even though the defendant completely screwed up during the trial and offended practically everyone. This law is another example of how the Senate and Congress of the US are purchased by Sony, Disney, Monsanto and others. That's the real issue here...
The middle class is increasingly in chains due to this model and it's only going to get worse.
There is a difference between fair use and pirating.
Yeah. This wasn't fair use. They lost on that one, even though Tenenbaum tried to create a whole new definition of what fair use was that was basically "it's not fair!" Makes you really wonder about the quality of Harvard Law School's IP department...
Personally, I think people should pay the artists for their work, they should pay the recording industry for their work, and if the music isn't worth 99 cents to them, they shouldn't get the music.
So let me begin with: Opinion Alert! The following post is pure speculation and opinion, but done with the utmost sincerity!
I agree with your point, but I'd like to note something that I believe to be true, namely that the only reason we can pay 99 cents for a movie is due to an industry adaptation that has been motivated in a large part by that very piracy. Prior to digital piracy pioneers like Napster, getting a single good song was not really an option. You had to buy an entire pricey CD. Downloading music legally also wasn't an option; you had to go to a store. The music industry created and funded the marketing, hype, publicity, content, and talent necessary to successfully Make Us Want Something, then failed to provide it at any reasonable price.
It is my belief that piracy is many things, among them a consumer movement in reaction to an unnaturally-imbalanced industry. Pirated music has, over the last fifteen years, frequently been a better product than that produced by the music industry. It was downloadable, accessible, and lacked both DRM and license management shenanigans. It was a pure and simple solution to an otherwise unsolvable problem: a consumer movement!
Now, that doesn't make it right or ethical, but it doesn't make it evil either. The recording industry dragged their heels and did their very best (as they still are) to hinder the simple and fair distribution of their product, when that was exactly what consumers wanted. In response, consumers resorted to illegal activity, and most are better off for it.
The Napster of the past is what recording industries should have established years prior. A very significant impetus behind the current state of consumer-oriented legal music sharing like iTunes was (and is) perceived losses due to the piracy front. And look what we have now ... split albums, downloadable content, DRM-free songs ... It's done its share of good and then some. Piracy is forcing a hand that is using its own entrenched power to remain still, and the world is better for it.
Many people out there have pirated a significant share of music, and bought a significant amount as well. As legal avenues open (Amazon MP3 is great!), their usage of piracy has definitely declined. Nobody feels good about depriving someone of their just due, but it isn't always a bad thing to do so. Sometimes an illegal act is the only counterweight that one can provide.
So what is the punishment for exceeding constitutional limits on the punishment meted out?
You see, that's the problem here. Many other punishments have been ruled unconstitutional for being excessive, including fines and jail time all out of proportion. It's blatantly obvious to most people that millions of dollars for sharing music is excessive.
Let's suppose the appeal wins the day and the fine is declared excessive. Do you think any of the RIAA executives are going to be punished for all the previously collected fines? Do you think that's fair? Do you think they perhaps ought to grow up and pay the fine for actually getting caught?
Infuriate left and right
So, apparently there is a levy on blank media in place in various countries, to the tune of 3% (according to wikipedia) in the US. Assuming this is true, and specifically in the US, is it constitutional to charge someone a tax to cover the costs of piracy and then also be able to take them to court for being pirates?! Isn't that double jeopardy? I haven't seen this defense used in any of the cases I've followed and, in fact, it may be based on incorrect understanding of the law (not a lawyer here.)
It's not the fact that a 'pirate' got punished that is at issue here, it's the fact that the penalty is so large it will probably push the defendant into bankruptcy; it is a penalty significantly larger than the damages suffered by the record companies, and perhaps most importantly, it is a penalty that was designed to punish an entirely different class of pirates (commercial pirates who manufacture and widely distribute copies of music for a nice profit. In that case the profit motive is large, so the deterring punishment should also be large).
Partially yes, and partially no. First, it's not necessarily "significantly larger" than the damages suffered by the record companies, because the damages weren't just 99 cents per track - maybe for his downloading, which infringed the right to copy, but not for his uploading, which infringed the right to distribute. 99 cents on iTunes doesn't buy you a license for unlimited duplication distribution, and no one can seriously argue it does.
That said, as you note, the damages were significantly larger than the RIAA should have gotten, because the jury didn't have a proper instruction on the definition of willfulness - which is required for the $150k limit. But, it's not just commercial pirates who are working for profit - Tenenbaum tried that argument, but it had no support in case law or the statute, even if it appeals to our sense of justice.
Rather, the true definition of willfulness is that the infringer acted maliciously or with fraudulent intent. This does cover the commercial pirates, but it also covers the malicious monopolist who willingly forgoes profit in order to crush his competition by widely distributing their copyrighted works. It also protects for-profit infringers who weren't malicious or fraudulent, but had a reasonable belief that their infringement was protected by fair use. The "commercial for profit" definition would reverse these last two - punish the well-meaning-but-wrong commercial infringer, and protect the Snidely Whiplash-mustache-twirler evildoer.
There's also support for the "malicious or with fraudulent intent" definition through the history of the copyright act, as well as the federal patent and trademark acts.
Basically, Tenenbaum should have faced $750-30k per song, not $750-150k per song.
RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar
Bull. Their settlement offer is almost always a few thousand dollars, tops.
IANAL. I did skim part of the brief.
The brief states that between the time Napster came out and iTunes came out, there was no ability for consumers to obtain music legally via download, and that posed a lack of choice for "Digital Natives" who wanted to obtain music that way. The court recognized that period as an "interregnum period" during which I presume (again IANAL) that no one can be successfully prosecuted for copyright infringement for downloading. However because iTunes was encrypted from 2003-2007, the brief argues that the interregnum period should be extended until some time in 2007, when encryption-free digital music was available.
The two main arguments for that are 1) publishers released DRM-free music on CD, so they partially contributed to the proliferation of the recordings on P2P networks and must have been aware of it by 2004, yet continued to sell and promote CDs. (This seems awfully tenuous to me...the publishers were still trying to sell music, and by that point the digital market hadn't quite gotten to the saturation point where they could stop selling CDs, and CDs require DRM-free music), and 2) The brief cites a prior case in which a court recognized that care taken by the plaintiff to "protect" their IP made a fair use defense fail, and that had the plaintiffs failed to protect the IP, fair use defense might have worked. In this case, the brief argues that the plaintiffs did not take enough "care" of their IP because they released them DRM-free on CD, and so fair use defense might work. (To me that seems to be arguing a hypothesis - that the court in the prior case would have ruled differently if the plaintiff had acted differently - rather than arguing a precedent on an actual ruling. Also, the CD format requires DRM-free music, so I'm not sure what sort of choice the publishers had there short of breaking everyone's existing CD players. Digital being a newer format allows for new things like DRM.)
I think that the more pertinent question is: why are we in the position where we have to debate the severity of this punishment?
It's my belief that the punishment is so absurd compared to the offense not because the lawmakers have been lobbied into believing that the music industry suffers a loss, but into the perception that it undermines the very tenets of the capitalist religion. Scarcity must be seen to be maintained lest the "consumer" no longer be held captive.
And there is a difference between sharing mp3 files and pirating.
You are welcome on my lawn.
It is not only ripping a CD. It is the song "Happy birthday", it is "winnie the Pooh", and scientific journals. It is the ink for your printer, and posting your kids latest performance on Youtube. It is the ability to bring a guitar to amateur nights in the local pub, and play music you like.
U2's Bono wants to implement a Chinese style control of the net globally, so you may not have seen anything yet.
I think artists should be paid well, and maybe have, as the law originally gave, a 14 year copyright. Now it is over 100 years. Anyway, if you as an artist don't want to share, just don't sell CD's or put it on the net.
don't cut it off www.mgmbill.org
A few hundred to a few thousand dollars... sure no problem.
I'm sure the very first settlement offer was for a few thousand dollars. Tenembaum made a choice to roll the dice and put it in the hands of a jury.
(I'm not GP, I'm just avoiding a -1 disagree mod)
Much.
You are welcome on my lawn.
"defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award"
Yeah. Good luck with that.
Just like Jammie Thomas before him, Mr. Tenebaum decided to admit that he broke the law and fight a battle based on the the idea that the law is wrong. We saw how well that worked out for both of them. Now, I happen to agree that the law is wrong and that the actual damages suffered by the entire record indusry as a result of "file sharing" is close to zero. However, the chances of convincing the courts that the law is wrong is also somewhere between none and zero.
Ms Thomas, Mr. Tenebaum and their respective attorneys suffer from the same problem. They thought they were going to out-smart the prosecution. Dazzle them with their brilliance and logic. Hit them with a constutional argument that can't be rebutted. And they ran smack into the brick wall of reality.
The sad unfortunate reality is that judges and juries are technologically illiterate. They are easily swayed by words such as "hacker" and "piracy", easily convinced that anyone using a computer may be up to no good and and they are easily convinced that the fine honest upstanding folks of the RIAA are being robbed by evil file-sharers.
It is unfortunate, but the only defense for these cases is DENY DENY DENY. Admit nothing. Deny everything. The RIAA is in error. The information provided by the ISP is wrong or forged by the RIAA. Force them to provide concrete proof of everything. "Innocent until proven guilty" is meaningless if you freely admit that you did exactly that they say you did.
In a digital age, exactly what is the work of the "recording industry"?
It should be re-named the "collection industry" because all they do is collect money from the work of others.
You are welcome on my lawn.
sharing a Britney Spears album
This really isn't helping your argument about the punishment being too harsh.
In my non-lawyer opinion, if awards were overturned in the Gore and Campbell cases under this rationale, there is a far stronger argument to be made here. The behavior of both BMW of NA (was selling slightly repaired cars as "new") and State Farm (had a secret internal scheme to cap payouts) could more reasonably be asserted as reprehensible than that of a music downloader. From a "ratio" standpoint, if you consider the actual damage from illegally downloading a song to be 99 cents as the parent implies, then for the 31 songs involved here, the ratio of punitive to actual is over 20000 to 1, far more than the 1000 to 1 in Gore and 145 to 1 in Campbell. And those were of course awards meant to have punitive effect on gigantic corporations, not to destroy the finances of a single private citizen. From a "comparable misconduct" standard, the $675,000 award is not in the same universe as the penalties for petty larceny if Mr. Tenenbaum had merely shoplifted physical copies of the same music.
"FDA staff reviewers expressed concern about the number of patients who were left out of the study because they died."
But, it's not just commercial pirates who are working for profit - Tenenbaum tried that argument, but it had no support in case law or the statute, even if it appeals to our sense of justice.
The laws were made before even Napster was created. The people creating the laws didn't have file-sharing in mind when they were made, they were thinking of commercial piracy. Whether they actually cover file-sharing or not is more a matter of historical luck (or bad luck) than any sort of well-thought response to this particular issue. Our current copyright law wasn't designed to cover file-sharing.
Basically, Tenenbaum should have faced $750-30k per song, not $750-150k per song.
Legally, that's probably true. Realistically, it's probably a little harsh, since it's something probably 99% of us have done. We don't like to punish people too harshly for things that everyone does, even in cases when we know it's something we shouldn't do.
Qxe4
Was there any evidence offered in this case that anyone's "right to distribute" was infringed because there were songs in this guy's "shared" folder? I get the feeling that there are a lot of logical leaps that have to be made before the preponderance of evidence shows that anyone actually received any songs from this particular guy.
You are welcome on my lawn.
Situation: Company takes code from GPL project, creates a proprietary version of the software, distributes the binary without distributing source. ... making themselves right with the license
Resolution: After lawsuit, company distributes with source code
Situation: Somebody uploads a copy of music they weren't authorized to copy.
Resolution: After lawsuit, the person is made to purchase a license for all the music they uploaded.
I think that seems reasonable.
In a digital age, exactly what is the work of the "recording industry"?
It should be re-named the "collection industry" because all they do is collect money from the work of others.
Distribution costs don't negate production costs. It still costs lots of money to produce an album, whether you distribute it on CD or MP3.
I don't agree with the music industry, but as a musician, I do get pissed off when some people think production is cheap or free. It's not. It takes time, effort, and lots of up front costs. Just because it costs $100/month to distribute them online, it probably cost tens of thousands to produce it, and that's not including the cost of personal instruments.
I'm god, but it's a bit of a drag really...
Sure, he should pay a fine. One in the order of, say, $675, not $675000.
Under Supreme Court guidelines, it should have been more along the line of $30 or $40.
Ray Beckerman +5 Insightful
The damages claimed seem unreasonably high no matter how I see it spun.
Most US people have, at most, 1/4 megabyte/second upload on their home connections (2 megabits/second up). In my experience, compressed songs average approximately 6 megabytes for so-so quality, 8 megabytes for good quality.
Assuming the defendant had their computer sharing 24/7 at absolute maximum speed, every day they would be capable of sharing 3,600 songs (and not use their internet connection for any other purpose). At $1/song, and punitive damages of $675,000, the defendant would have to be uploading for 187.5 days straight at maximum utilization. That's over half a year of not using the computer, no internet outages, no ISP throttling due to uploading, et cetera. That also assumes that there were that many downloads from this single user over such a time.
I'm with the guy that says "Pay the 2 bucks"
One problem is that paying the 2 bucks only gives me the right to listen to the work privately. Where can I "pay the 2 bucks" for, say, Disney's Song of the South? And what store lets me buy the right to use a given work in a video criticizing the work?
A good recording engineer makes all the difference in the world. I suggest looking here if you want to get an idea of the work involved. Usually professionally it involves a team of people. A lot of the new 'sound' created by new groups is in fact created by recording engineers, not by the artists themselves.
A lot of singers can't actually write music very well. Doing a good counterpoint melody or even just not making your song sound bad takes years of experience, so a lot of times the artists will write the melody and lyrics, then they will outsource the harmony (and lyric/melody cleanup) to a group like The Matrix (ok, in reality it's more complicated than that, but it kind of gives you an idea of what they do).
Then there are things like music video production, arranging tours, publicity appearances, and of course collecting money from music sales, as you mentioned. Most artists have no clue how to promote themselves personally, which is part of the reason most end up working with labels.
All of these things could be done by the artist, but they take a lot of experience and time to learn how to do well, and if the artist wants to enlist (and pay) the recording industry to help, that is their choice. I am paying 99 cents either way, so I'll let them decide if it is worth it to them or not.
Qxe4
We should also point out the degree of culpability the consumer actually should be considered to have.
1) Did they create the method by which the music was ripped? No, this is done with available tools for which the cost of entry is negligible or zero, and which has no particularly greater barriers to entry than installing a new text editor.
2) Did they create the method for distribution of the music? No, they neither had any hand in the creation of bittorrent, nor were they hosting a tracker nor otherwise going out of their way to create new infrastructure to ease the distribution. Again, the barrier to entry to gaining access to this method is no higher than downloading any other software.
3) Did they create or do they maintain or manage the media (read: the internet) on which the distribution is taking place? No, they are using someone else's network, which for various reasons isn't well monitored and arguably should not be.
4) Did they create any other tool at all or in any way invest more than trivial effort? No, they did not, in fact what effort was needed to create this system was fairly distributed across a number of other people, and virtually none of the offenders--whether they have been prosecuted yet or not--had any hand in it at all.
I'm not being silly. The effort anyone puts into downloading a torrent--legal or not--is insignificantly small. To try my first slashdot car analogy, if driving with the windows down and the AC on was illegal, they'd be asking the judge to revoke your license, impound your car, repossess your house, and send your kids to child services, even though it just takes the flick of a couple switches to do it, and there are reasons why you'd want to, and all the cars are shipped capable of doing so.
If the record companies don't want us to create so many digital copies, maybe they shouldn't be using technology they know can be copied, and they should just hold more concerts and go back to vinyl or something.
Sure, he should pay a fine.
One in the order of, say, $675, not $675000.
Under Supreme Court guidelines, it should have been more along the line of $30 or $40.
Given the crappiness of what passes for music these days, the ceiling should have been set at a nickel per song -- and wooden ones at that.
Somehow when its time for the CRIA/RIAA to pay up in Canada I doubt they will want to use the same mathematics.
Say all the copyright fans do recognize that those copyrights are government monopolies granted from society for the benefit of society, right? There is no self evident natural right to not have your stuff copied.
Just because it costs $100/month to distribute them online, it probably cost tens of thousands to produce it, and that's not including the cost of personal instruments.
If they're personal instruments (as opposed to ones hired for the sessions) then their cost has got to come out of your profit. Otherwise you wouldn't own them. There's also the expectation that you'll be able to reuse the instruments for multiple recordings, and so the correct thing to do, accounting-wise, is to amortize the cost of the instrument (and any associated loans) over its expected use-life; trying to recover its total value from each recording you make is greedy and your (potential) customers instinctively know it.
(IANAAccountant. Or a lawyer.)
"Little does he know, but there is no 'I' in 'Idiot'!"
Wait a minute.. You propose that releasing source code and buying a license from a monopoly are two punishments on the exact same level?
I'll tell you what, since you obviously (and I'll get a jury to agree) infringed on my copyright of the number #30649052, you need to buy Windows Server 2008 DataCenter licenses for all of your home computers, and all of your friends, relatives, etc. Oh, and you don't actually get to keep any of that software you just bought. Does that sound fair?
FreeBSD.org - The power to serve
The argument involved in bringing up the court cases cited in the summary is that the damage award involved in this RIAA case is unconstitutional, as it violates part of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law;". The decision for BMW of North America, Inc. v. Gore laid out a set of guideposts for whether punitive damage awards are in violation of this clause: 1. The degree of reprehensibility of the defendant's conduct 2. the ratio to the compensatory damages awarded (actual or potential harm inflicted on the plaintiff) 3. Comparison of the punitive damages award and civil or criminal penalties that could be imposed for comparable misconduct. In my non-lawyer opinion, if awards were overturned in the Gore and Campbell cases under this rationale, there is a far stronger argument to be made here. The behavior of both BMW of NA (was selling slightly repaired cars as "new") and State Farm (had a secret internal scheme to cap payouts) could more reasonably be asserted as reprehensible than that of a music downloader. From a "ratio" standpoint, if you consider the actual damage from illegally downloading a song to be 99 cents as the parent implies, then for the 31 songs involved here, the ratio of punitive to actual is over 20000 to 1, far more than the 1000 to 1 in Gore and 145 to 1 in Campbell. And those were of course awards meant to have punitive effect on gigantic corporations, not to destroy the finances of a single private citizen. From a "comparable misconduct" standard, the $675,000 award is not in the same universe as the penalties for petty larceny if Mr. Tenenbaum had merely shoplifted physical copies of the same music.
Very good for a non-lawyer.
Ray Beckerman +5 Insightful
Thank you for so succinctly summing up my feelings on the matter.
Where can I "pay the 2 bucks" for, say, Disney's Song of the South?
Pretty much any movie collectibles show. Wonderful movie.
This sig intentionally left blank.
Given the crappiness of what passes for music these days, the ceiling should have been set at a nickel per song -- and wooden ones at that.
It seems that the real excitement is in indie music.
Ray Beckerman +5 Insightful
Pretty much any movie collectibles show.
It'll be a pirated copy. The last time I went to a flea market, there was one booth with someone selling DVD-R copies of 50 to 94 year old films. He appeared to be blissfully ignorant of the Bono Act.
I totally agree. I recently downloaded Alice In Chains new album before it was officially released, listened to it in the car, enjoyed it, and bought it on release day, then, a few days later, went to see them live using the tickets I'd bought 2 months before I 'illegally' downloaded the album. Whose income stream did I hurt there? Besides my own as the live tickets were expensive, for a band I'd been waiting to see for almost 20 years, were well worth it. Both album and gig were fantastic and I'm quite happy to give money to the band but why should I give a lot of money to lawyers and middlemen when it cost me £1.80 less to buy the cd from amazon than it would have done to download it, without the cover, sleeve notes etc, from the same site?
I wish I could mod this up. Even though I think the op was obviously trolling. No one can be that stupid. It is unreasonable punishment, plain and simple, and proof that our justice system is for sale to the highest bidder.
It is not enough to succeed, others must fail. - Gore Vidal
And what store lets me buy the right to use a given work in a video criticizing the work?
IANAL. IANYourL either. This is not legal advice. ETC.
Once you have the video, you can do that to it (under current case law) without permission provided said video is sufficiently original. What constitutes "sufficiently original" is... variable.
$ make available
copyright violations are not an offense against society. they are an offense against the copyright holders, who turn out to be the publishers, who were the group that copyrights were designed to unempower in the fisrt place. of course this only goes for the US.
RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar
Bull. Their settlement offer is almost always a few thousand dollars, tops.
Wait, they sued someone who could afford that? When did this happen?
$ make available
...the old "he asked for his day in court therefore he should be tortured to death" argument.
Desiring to exercise your legal rights should never be a cause for a punishment. Otherwise then they aren't rights at all.
While you are at it why bother with lawyers and demand letters? Just let the record companies hire armed thugs and ransack people's houses.
A Pirate and a Puritan look the same on a balance sheet.
The laws were made before even Napster was created. The people creating the laws didn't have file-sharing in mind when they were made, they were thinking of commercial piracy.
Yes and no - sure, originally, the laws were created before, but they were amended in 1996 - before Napster, but well after Usenet. And Congress explicitly mentioned computer network file sharing in the 1996 House Report on copyright.
Our current copyright law wasn't designed to cover file-sharing.
Absolutely true... But the area for reform is Congress, not the courts. Fair use isn't a good argument, nor is the unconstitutionality of statutory damages. I mean, really - the Constitution expressly authorizes Congress to mess around with copyright in Article 1, section 8, clause 3. If they do something questionable in that area, there's a strong presumption it's constitutional - specifically, the Court would use the rational basis test... and almost every time they use that test, the law is found to be constitutional.
Basically, Tenenbaum should have faced $750-30k per song, not $750-150k per song.
Legally, that's probably true. Realistically, it's probably a little harsh, since it's something probably 99% of us have done. We don't like to punish people too harshly for things that everyone does, even in cases when we know it's something we shouldn't do.
Well, yeah... but that leaves the $750 per song at the lower limit, which is a harsh smackdown, but not so outrageous that most of us are going to say that it's unconscionable.
Was there any evidence offered in this case that anyone's "right to distribute" was infringed because there were songs in this guy's "shared" folder? I get the feeling that there are a lot of logical leaps that have to be made before the preponderance of evidence shows that anyone actually received any songs from this particular guy.
Yep. The plaintiffs' agent downloaded the songs from his shared folder. That was an infringement of the right to distribute.
And yes, Tenenbaum already argued that the agent was "authorized" to download them by the copyright owner, so it wasn't an act of unauthorized distribution, but that failed - plaintiffs are expressly allowed to use agents... the distribution is at issue, not the end result.
Is there really? What is the difference, for sake of argument? Pirating is X while sharing mp3 files with strangers via bit torrent is Y. What are X and Y and how are they different? The majority of software pirating is exactly the same as sharing mp3s over (name your favorite technology). Are we arguing that only sales should classify as pirating, because honestly the only people that sell are those that want to sell hardcopies and typically fool their customer's into thinking the software is legit. What self respecting nerd has paid for Warez in the last ten years, or ever? Sharing mp3s (or your favorite software) is the same as any other software piracy as so long as we are using the same definition that has been used since ID Software put that huge warning on the front of Doom II.
It'll be a pirated copy.
Sure it would, but I'd feel fully justified in buying/owning/viewing it as there is no legitimate way for me (in the US) to purchase a copy.
The courts agree too. For example, Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 931 (2d Cir. 1994) ("If the work is 'out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it").
http://www.digitalmedialawyerblog.com/2009/12/sony_bmg_v_tenenbaum_judge_pro.html/
This sig intentionally left blank.
From a "ratio" standpoint, if you consider the actual damage from illegally downloading a song to be 99 cents as the parent implies, then...
Very good for a non-lawyer.
Yeah, but that's the problem. That if kinda neglects the whole distribution right infringement. If we focus solely on the single act of downloading by Tenenbaum, then we may point to 99 cents in actual damages... but we ignore the fact that he was also found liable for uploading. Photocopying a book is a far different animal from binding photocopies and distributing them to hundreds or thousands of recipients. Don't forget the "bundle of sticks" of property rights, Ray.
I'm sure the very first settlement offer was for a few thousand dollars. Tenembaum made a choice to roll the dice and put it in the hands of a jury.
Irrelevant. A settlement offer has no bearing whatsoever on whether the statute penalty is fair or not.
If you are accused of speeding, and the penalty is loss of license, car siezed, and a $200,000 fine... is that right? What if they offer you a 'settlement' of $5000. That's not a fair legal system, its legalized blackmail.
Its a system where the prosecution don't even have to try to prove you were speeding. The mere accusation of guilt is all they realistically need to coerce a settlement. The risk of attempting to assert your innocence is too great. This is not a system of "justice".
That's not the purpose of settlements. They were never intended to blackmail people into giving up their right to a trial to avoid ridiculous statutory penalties.
Is there really? What is the difference, for sake of argument? Pirating is X while sharing mp3 files with strangers via bit torrent is Y. What are X and Y and how are they different? The majority of software pirating is exactly the same as sharing mp3s over (name your favorite technology). Are we arguing that only sales should classify as pirating, because honestly the only people that sell are those that want to sell hardcopies and typically fool their customer's into thinking the software is legit. What self respecting nerd has paid for Warez in the last ten years, or ever? Sharing mp3s (or your favorite software) is the same as any other software piracy as so long as we are using the same definition that has been used since ID Software put that huge warning on the front of Doom II.
The difference between sharing MP3 files and pirating is that MP3s are not inherently illegal to possess or share. Unfortunately, you seem to have fallen into the trap of believing that a file format is illegal. Hopefully this real-world example elucidates the difference further.
I share songs I downloaded from Jamendo, songs I am legally permitted to share, and they are in MP3 format. Does that make me a pirate? Is that "the same as any other software piracy as so long as we are using the same definition that has been used since ID Software put that huge warning on the front of Doom II"?
They say a little knowledge is a dangerous thing, but it's not one half so bad as a lot of ignorance. - Terry Pratchett
It isn't the dollar, stupid. Your dollar means little more than the song I pirated yesterday. It's the MILLIONS of dollars from the MILLIONS of customers, each and every day, for the many, many songs that should already be in the public domain. How many songs have you paid a dollar for? How many of them are "Golden Oldies?" Have you paid for anything older than 1995 lately? You fool! Older than 1990? 1980? DUHHHH!!! You were ROBBED!! They had no right to take your dollar, or the billions of other dollars they've taken from idiot little kids this year! Candy from a baby? Yep, that's it, exactly.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
Careful, NYCL.
"Indie" is what "alternative" was in the '90's. Both originally meant homegrown music from independent "mom and pop" record labels until the major labels realize how "cool" it is to be different, then they hijack those phrases and apply them to their mass-produced crap.
I guess the only honest way to say it is "Music of non-RIAA/ASCAP artists".
I've said it before and I'll say it again ...
Think again - unless the following issues are being addressed, piracy will not go away.
Side note: Bad credit and credit cards is what got us into the financial crisis in the first place.
Side note: greed is the other reason that got us all into the financial crisis.
Unless the above issues (and I am sure other people have additional issues) are addressed, piracy will not go away.
Just my .02 us$ worth ...
Technically, you're not being fined. Statutory damages are being assigned. I'm not debating the reasonableness of scale, but fines are intended to act as a deterrent mechanism, whereas statutory damages are intended to remunerate the damaged party for loss of sales, profit, usability, etc. Statutory damages are frequently much larger than fines, which are often in the range of $1,000 to $10,000 depending on the offense, while statutory damages may be based on presumptions of loss.
There is a definite disconnect between the damages that could be done over a network and those done by professional pirates. I'm all in favor of non-commercial penalties. Even a penalty of $20 per work available for sharing would probably deter me. Then again, I go on so rarely these days that the odds of me being found to share are about the same as running into Elvis at the mall.
You can never go home again... but I guess you can shop there.
One is an crime, the other is an activity.
Example: I publish all my photos online under a Creative Commons License (Attribution, Share-Alike, for what it's worth). If you take a copy of a photo and post it on your own site, saying, 'I got this photo from Imagicity, I'm perfectly cool with that. But if - and this happens often enough - you take the photo and you either pretend it's yours or you don't say where you got it, I send you a polite notice saying, 'You're not abiding by the license. Please do so.'
If you keep ignoring me, I'll force you to take it down using whatever legal and technical means are at my disposal. I like sharing my work, but it's not going to generate much work for me if people don't know took the photo in the first place.
So: Both activities consist of sharing someone else's files over the Internet. The second infringes my grant of copyright, the first does not. That's because the infraction consists, not of sharing the file, but of willfully ignoring the terms under which file sharing is allowed.
So-called Content Publishers like to conflate these two acts into one, because it allows them to create exactly the confusion that you're experiencing, which in turn allows them to lobby everyone and his dog, asking to make this behaviour illegal. That would make life much simpler for them, because it would allow them to continue doing business as they always have done.
Unfortunately, actual creators like me prefer to leverage the freely shareable nature of digital file formats in a different way. We encourage people to make the best possible use of technology in order to build recognition and popularity. This is turn creates a market for our work where none existed before.
And that's why I'm willing to spend 15 minutes of my time composing a thoughtful reply to your question, while the *AA and their international cohorts spend millions calling my business model THEFT and PIRACY, all in caps and punctuated by elevenses.
Crumb's Corollary: Never bring a knife to a bun fight.
It doesn't sound like he/she believes a file format is illegal. Making a copy of an mp3 that you are unauthorized to copy (and if it's a song like one in this case then it is unauthorized) is piracy.
That you can still share mp3s in a non-pirating way is a total strawman here. The question raised by this brief is whether activity that is prima facie infringement is saved by a fair use defense. And it is a ridiculous argument. I honestly couldn't believe what I was reading.
He offered $500 to Sony, to my knowledge, and they turned him down and have now succeeded in the big bucks.
Sony needed much more to offset the cost of developing and marketing all their proprietary formats... ATRAC, MiniDiscs, and MemorySticks all took a lot of effort you know.
Essentially, your argument applied in Canada, was used in Canada, and the people won at the Supreme Court. As a result, downloading files for personal use is largely legal in Canada. Uploading of files is still a grey area.
Then some artists pointed out that the Canadian music industry hasn't been properly paying royalties on some of the CDs it has been selling. In fact, they have been selling CDs without a proper contract in place at all. As such, a bunch of the large Canadian record companies are on the hook for billions in liabilities.
Effectively, in Canada, the recording industry has been violating it's own anti-copying laws. Things are very different in Canada, as opposed to the U.S. The recording companies are being chased by the musicians! For non-payment of royalties!!!
And that it comes out of profit doesn't mean you have to adjust downward the amount of profit you expect from your efforts. Wanting to make money doesn't make you greedy.
http://7.media.tumblr.com/4nZBASoSAd79pgh9yEG2ZCPi_500.png
Piracy is stealing stuff on the high seas!
They commited a non-violent crime, for neglible personal benefit (they gain a few songs which can legally be obtained by borrowing a friends CD, recording them off a radio, or purchased for under a buck each), and which caused no real measurable harm to the copyright owner (at most the infringment in this act deprived them of a few hundred dollars due to lost sales... and that's highly debateable).
A few points:
1) If the benefit were negligible, why would they do it? People are aware of the risks. Then, taking those risks into account, consider the benefit derived, and decide whether to pirate or not.
2) You may borrow a friend's CD, but you may not make a copy of it.
3) There is measurable harm. Let's say there were 1000 illegal copies made of Song X. Let's then say 40% of those copies made would have led to purchases of the song on iTunes or something similar. That's $400 of harm, and 40 cents of harm per illegal copy. The percentage doesn't really matter. It's just that you could find a percentage that matters. Finally, we're dealing with punitive damages here. Nevertheless I agree they were excessive. Copyright's job is to incentivize expression. I don't think the amount here optimally does so.
They tried DRM and people flipped shit. The only solution to the problem you outlined is making certain kinds of software illegal. Well, the Supreme Court realllllllly hates this idea. They want to see technological innovation, and concerning yourself with methods and creation of those methods stifles that, undermining the whole point of copyright.
Thank you, though if I had actually taken the time to read the brief before posting instead of just the decisions of the supporting cases, I would have seen that the arguments I made are handled in pretty similar fashion in section II.B.. The ratio of damages is even calculated to produce the same result on p. 13- "Using a purchase price of 99 cents per song and, assuming contrary to fact, that each download represents a lost sale, the ratio of penalty to actual damage in this case is 22,500 to 1." I suppose that's the entire point of referring to those cases though- show that established criteria for unconstitutional damages exists, and then argue that the damages in the Tenenbaum case meet those criteria.
"FDA staff reviewers expressed concern about the number of patients who were left out of the study because they died."
IANAL. IANYourL either. This is not legal advice. ETC.
That's OK. I understand that Internet pseudo-advice is just for having an idea of the legal landscape before hiring a lawyer. A lot of people who respond to Ask Slashdot with "ask a lawyer" fail to understand that the question is really "what should I know to make the most of the first consultation?".
Once you have the video, you can do that to it (under current case law) without permission provided said video is sufficiently original.
That doesn't necessarily stop hosting providers from being complicit in a copyright owner's copyfraud. In May 2009, for instance, YouTube took down a video criticizing The Tetris Company and one of its licensees significantly longer than the DMCA maximum 14 business days after I filed the counter-notice.
What constitutes "sufficiently original" is... variable.
Which underscores the importance of having a good errors and omissions insurance policy to back up your fair use in case of crap like Three Boys Music v. Bolton or Rowling v. RDR Books. The trouble is that it's often cost prohibitive for individuals to get such insurance.
That's all true and largely understandable, even for the record folks.
However, they're still doing what they're doing what they've always done and getting what they've always gotten, only now they think they can sue what amounts to people chosen at random for insane amounts of money. They are choosing to continue to put out songs in media with known vulnerabilities. They know that the consumers can take advantage of these vulnerabilities to get untraceable copies. They know that these copies can be exchanged en masse and anonymously. They are also at this point completely and utterly under no illusion whatsoever that they can track down enough of the people doing the trading to stop it. They probably are also pretty darn aware that the people they are suing into financial oblivion are not the people that they want to get, even if the tactic of suing people was correct. And I believe, cynicism aside, that a lot of the people there don't think it's the right thing to do, but do it anyway.
Frankly I'd string em up for knowing all those facts and still pursuing this campaign, and rewrite the laws to prevent it in the future. And I don't mean I'd bankrupt their company, but I'd figure out exactly who was capable of stopping this and didn't, no matter how far up the chain, and make sure they never ran anything larger than a lemonade stand ever again.
But then, IANAL and IANAJ and IANA Congressman or senator or whatever else.
Not being a lawyer but having an interest in these matters I find it extremely important that precise language is used when discussing such matters as these.
The RIAA and its supporters are particular adept at using generic terms for specific behaviors to muddy the waters and confuse layman such as myself as to just what constitutes copyright infringement.
All too often we see statements such as file sharing files is illegal or downloading music is illegal when in fact neither is the case even with the qualifier copyrighted added.
Time is what keeps everything from happening all at once.
Well it's torches and pitchforks time then.
Help stamp out iliturcy.
To put it precisely in the terms you have described yourself, "X" = "a war-like act committed by a non-state actor, especially robbery or criminal violence committed at sea, on water, or sometimes on shore" and "Y" = "making chunks of digital data which can be translated into sound or video files available via P2P network".
For the sake of "argument" as you say, it seems to me that the use of "pirate" and "piracy" to mean someone who downloads a Metalica song is a little like using "murder" to describe a legal medical procedure which terminates a pregnancy.
It's a word that's meant to demonize, to distract, to inflame and doesn't provide any clarity to the discussion.
At least the anti-abortion people can claim religious dogma as an excuse. The RIAA does it just to try to extract more profit from an obsolete business model.
You are welcome on my lawn.
Precise language should be concern #1. In that vein, I'm not sure what you mean by "even with the qualifier copyright added" here. I'm guessing you mean a qualifier added to music/files to make it "sharing copyrighted files is illegal" and "downloading copyrighted music is illegal."
On the one hand, the fair use defense does exist, making the statement not necessarily true. However, when we are dealing with exact copies, we might as well be talking in terms of infringement.
This is why I presented the question raised as I did. I said, "[t]he question raised by this brief is whether activity that is prima facie infringement is saved by a fair use defense."
A successful infringement action requires two prongs. First, plaintiff must assert and prove by a preponderance of the evidence a prima facie case for some rights (reproduction/distribution/perform/derivative/a few others that aren't directly relevant here). This prong requires a valid copyright, as well as a violation of plaintiff’s exclusive rights. Second, the alleged infringer must not be saved by a procedural shortfall like failing to register, statutory limitations like fair use, or other statutory exceptions.
And so far, they've been holding anybody who makes a copyrighted work available as any downloadable file (over HTTP, FTP, or any flavor of P2P) you're doing so willingly. Nobody's ever been able to prove that they unwillingly installed such file-sharing programs.
****
So why doesn't some bright person out there make a version of bitorrent that only allows downloading or better yet has a "0" setting for upstream speed and connections? Copying is generally only punishable by a fine of the actual value. It's the "distributing" part that is causing all of the problems for these people. Yet to date, I've not seen or heard of one file sharing program that has this option. It doesn't seem like it would take more than a few hours for a half-rate programmer to add, either.
Are the record labels and anybody else who directly benefits from increased sales volume really always getting what they've always gotten? Even a single person downloading an unauthorized copy, when they would have otherwise purchased a copy, decreases sales volume. The big question is whether the net effect of piracy is a positive for the music industry. I would put that burden on the pirates' back, however, and it seems courts agree with this position.
I have a tough time buying into the known vulnerability argument. At some point people should be responsible for their own actions, even if it's easy not to be.
The fundamental problem here is not that of copying, but the matter of justice in proportion to the crime.
Suppose, for example, we take the RIAA's argument at face value: Because she's shared these 19 songs, the RIAA companies will never make another sale from them. According to the RIAA, she owes them for the lost profits they would have made.
Even were this the case, the maximum cost of these 19 songs is the cost the RIAA paid to the artists to produce them. Here's a hint: it's not very much. Elton John once said that he could write a song in 15 minutes; even were he to charge a lawyerly-like rate of $500/hour, that would only be a few thousand dollars of labor. Even at the extreme end, this is two band-years worth of labor, which hardly costs the label a few million dollars.
In terms of actual damages, she probably resulted in no lost sales. Even before filesharing, I grew up in an environment where people simply taped songs off the radio, and bought the occasional LP. The type of people downloading from filesharing networks are the kind who wouldn't have bought the song no matter how much they like it. What the RIAA doesn't understand is that with the exception of the upper-middle and upper classes, most of America has become accustomed to getting their music for free, without paying a dime. If they can't get it for free, they just do without. It is almost never a lost sale.
What disturbs me most is that a jury could be convinced to grant a judgement of a few million dollars against her without any actual proof of infringement. They have no idea how many - if any - downloads actually occurred.
The society for a thought-free internet welcomes you.
How about getting your facts straight?
You would be fined up to $150,000.00 per infringement, assuming you are found to have knowingly and willfully infringed. Assuming you act like you didn't know what you were doing was infringement, the damages could be as little as $200.00.
The fine you listed for letting a parking meter run out is 120 times the actual damages. The speeding fine you listed is an infinitely greater amount than the actual damages assuming one does no physical damage to anything.
In the state of Florida, car theft is a third degree felony. One can get 5 years and $5,000 fine. If one steals a car worth $1,000.00 and one makes $20,000 per year and one gets the maximum, one is fined, in effect $105,000 plus loss of freedom.
In this case, dumbass admitted he willfully infringed on someone else's rights and was found liable for $22,500 per infringement. Had he not admitted to it, the damages would have been much less severe, possibly as little as $1,600.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
My point was that sharing is infringing only under very specific circumstances, and simply downloading may not be infringing at all. The RIAA and its supporters very often conveniently forget phrases such as except for fair use, without permission, unless in the public domain, etc. They twist the language to convince everyone that no content can be experienced without their blessing.
Time is what keeps everything from happening all at once.
Just a nitpick, but people are usually sued for uploading, not downloading. If I upload something to you, then you upload that to a third person, I'm partly responsible for that third person getting the content. Even so, I think it's hard to argue that any individual is responsible for more than a few dozen people getting the content (unless they leaked content that wasn't for sale yet).
Taking that into consideration, perhaps your numbers should be knocked down an order of magnitude or more, but it still leaves a valid point (and perhaps it's a viable legal argument).
Can you point out where they do that exactly? I'd like to parse their language to see if they're actually doing something unconscionable.
That aside, do people go around talking about murder with caveats of self-defense? No, people say "don't murder!"
I haven''t heard of anyone getting a $600k speeding ticked
Words matter. This is not a crime. IANAL, but AFAIK a crime is prosecuted by the state. This is a civil lawsuit between two parties where the judge ruled that the plaintiff had a valid claim and assessed damages as he/she judged appropriately (the damages & ruling are what are being appealed).
In a criminal lawsuit, the prosecution typically has no avenue for appeal in the States (double jeopardy). In civil lawsuits appeals to the decision can be brought by either party.
That aside, do people go around talking about murder with caveats of self-defense? No, people say "don't murder!"
Invalid analogy. If RIAA propaganda materials said 'don't infringe on copyrights!' your analogy would work, but they don't. They say 'don't download music!' which is more akin to saying 'don't drive over 35 miles per hour!,' when in fact that is only illegal in the cases where the speed limit is below that.
The fine should be no more than the fine for shoplifting a cd.
And that it comes out of profit doesn't mean you have to adjust downward the amount of profit you expect from your efforts.
Not sure what parallel universe you're living in, but yes that is exactly what it means. If costs go up, profits go down. Really, it's a mathematical fact: Profits = Revenues - Costs. Costs big, profits small. I don't think I can make this any simpler for you.
Wanting to make money doesn't make you greedy.
Again, that's pretty much exactly what the word means. Well, wanting to make 'excessive' amounts of money, anyway.
You've got some powerful Orwellian newspeak going on in your head.
I am no RIAA supporter, but just a brief look on their website doesn't show that sort of propaganda that you speak of. Can you provide some examples? I'm curious if which side of the aisle this propaganda is coming from. Their site refers to "music theft", "piracy", and "illegally upload[ed] or download[ed] music online." I also see stuff like, "[w]e . . . educate fans about . . . the right ways to acquire [music]." The first thing the site says about the law is that "When you make illegal copies of someone’s creative work, you are stealing and breaking the law."
In fact, they give examples of situations where you could be violating the law. Keyword could. Careful reading is important, especially when dealing with the law. The examples refer to "copyrighted songs" (i.e. not in the public domain. Could this be a valid transmission? Sure. It usually isn't, but all they claim was could) and unauthorized copies or distribution.
Source 1, Source 2
You can even see here that they refer to exceptions. My analogy is not invalid except against the strawman position that the RIAA just says "don't download music!" Point that out and I will eat my words so long as it isn't clear to the ordinarily prudent reader that they are referring to unauthorized uses.
As much as such silliness may be in vogue, no its nothing of the sort.
The present law was written under very different conditions, with very different situations in mind, and political bickering and general incompetence prevents legislative change.
You might want to see a shrink, delusions of persecution are a major sign of schizophrenia.
But does anybody actually think this has a chance in hell? I mean we have already seen that the court doesn't give a flying shit about the constitution, thanks to them allowing congress to keep hitting the snooze alarm when it comes to copyrights. As it is now something written today won't be out of copyright until your grandkids are getting old, so who honestly thinks they are gonna do the right thing?
Sadly the courts, like every other part of our system, is completely broken, probably irretrievably. Too much money and power in the hands of too few have made the whole thing nothing but a sham. Both of my boys are about to turn 18 and both refuse to vote. They simply refuse to play a part in what is now obviously a sham, with one rich corporate suckup VS another. Hell the Pepsi challenge gave us more choice than Repubs vs Dems anymore, as the only difference is whose booty they kiss. In both cases they couldn't give a flying shit about the people, the constitution, or anything else that doesn't line their pockets or make their corporate master happy. Short of revolution I just don't see things getting any better. The entire process is just too corrupt.
ACs don't waste your time replying, your posts are never seen by me.
Wooden Nickelback?
(There is supposed to be a Sarcmark® here, but my $1.99 check hasn't cleared, yet...)
Even a single person downloading an unauthorized copy, when they would have otherwise purchased a copy, decreases sales volume
The mistake that you seem poised to make, and that RIAA trolls make religiously, is equating the two numbers (copies downloaded and sales lost). They are not equal (and any sane economist can explain why inside of 30 seconds). Are SOME sales lost? Of course. But its a hell of a lot less than the number of total downloads.
I go on so rarely these days that the odds of me being found to share are about the same as running into Elvis at the mall.
You'd be surprised how many people claim to have had that happen to them (actually, I'd bet its comparable to the number that have been sued for file sharing).
Not sure what parallel universe you're living in, but yes that is exactly what it means. If costs go up, profits go down. Really, it's a mathematical fact: Profits = Revenues - Costs. Costs big, profits small. I don't think I can make this any simpler for you.
You're missing the point. I'm not describing the relationship between revenue and costs on the income statement. I'm describing the relationship between expected value and your input. That is, if you have personal costs (like personal instruments), you adjust upward what you charge if you don't want to damage your profit.
Hypo: Let's say you want to make $10 per good sold, and can make widgets for $3 with no other expenses. Obviously you would sell it for $13. Now let's say you want to use your own X to make the widget (higher quality perhaps). Well, now it costs you $4, but you still want to make $10 per good sold. Now you have to adjust the price up to $14. So in an accounting sense, the increase in cost of goods sold went up, along with the price, so it comes out of profit because the cost of goods sold increased. However, you don't have to adjust downward the amount of profit you expect ($10/widget).
Wanting to make money doesn't make you greedy.
Again, that's pretty much exactly what the word means. Well, wanting to make 'excessive' amounts of money, anyway.
You've got some powerful Orwellian newspeak going on in your head.
See, your "well ..." is my exact point. You managed to deny my point, concede it, and insult me at the same time. Impressive.
You made my point for me, and somehow think I am wrong. Some sales are lost. The real question is, as I just said, "whether the net effect of piracy is a positive for the music industry." Whether it is "a hell of a lot less than the number of total downloads" is a huge statement that you've not supported in the least. It requires far more context to be meaningful, which is why there's really nothing you could have said to make it better barring an actual fact pattern. In any case, I am certainly not equating copies downloaded and sales lost. In fact, I made this point hours ago in this thread somewhere - not that I'd expect you to have read it.
Just let the record companies hire armed thugs ...
If they can get away with that ...
Which if I sold my car, my video game systems, and the computer I am writing this on, is still about twice the amount of money I have. Welcome to being poor.
That is, if you have personal costs (like personal instruments), you adjust upward what you charge if you don't want to damage your profit.
Wrong, oh so wrong. Someone failed microeconomics. Adjusting your price upward can very well result in LOWER profits, (and nearly always will result in lower revenues, unless you were charging a sub-optimal price to begin with).
In the ideal (mathematically) case you would never raise prices in reaction to a fixed (one-off) cost. To do so would always result in lower revenues (and generally profits, though some special cases are exceptions). In the real world fixed costs are amortized, and are only fixed over a certain domain of units produced, but the general principle is the same: raising prices is almost always the wrong move.
Of course, for variable costs you'd be half-right. Raising prices with variable costs protects per-unit profit, but can still result in lower total profit, and cannot increase total-profit back to where it was before the cost increase (unless you were charging a sub-optimal price to begin with).
(All of that is assuming fixed demand curves).
Your hypothetical example is overly simplistic because it neglects the fact that raising the price results in lower sales (some special monopoly-esque/status purchase cases excepted).
Back to my original point: Costs go up, profits go down. Even if you keep your per unit profit, your profits still fall. The only way to increase profits with rising costs is shifting the demand curve (usually through marketing of some kind).
Sigh. You're not being creative enough. I never said that adjusting price upward cannot result in lower profits. I said that it comes out of profit doesn't mean you have to adjust downward the amount of profit you expect. Your original claim was that it follows necessarily ("their cost has got to come out of your profit"). My hypo gave an admittedly simplistic example of why that is not necessarily true.
Of course the RIAA is not going to say "don't download music!", they are going to say "don't download music that isn't authorized to be downloaded" along with a list of RIAA approved sites to download music from. No where on that I can find on the RIAA's site is of sites where music can be downloaded without authorization yet we both know that such music exists.
At the very least one would think that they would at least provide a database of music that can't be downloaded without authorization. Really, how hard would that be? It's as if they want everyone to assume anything not provided by them or some other **AA is illegal.
Time is what keeps everything from happening all at once.
I knew I'd find it if I looked hard enough...
RIAA ispnotice
Music is protected by copyright. The unauthorized downloading or uploading of music is actionable as copyright infringement, even if not done for profit.
Where in copyright law does it say that downloading is illegal? My friggin' radio downloads music from the air for pete's sake.
Time is what keeps everything from happening all at once.
Music is protected by copyright.
This is true. It's an expressive work.
The unauthorized downloading or uploading of music is actionable as copyright infringement, even if not done for profit.
This is also true. If the DL/UL is unauthorized, it violates one of the exclusive rights under Section 106, subject to Sections 107-122. Downloading, where unauthorized, is a violation of the reproduction right (Section 106(1)). This does not apply to public domain works, because they are not copyrighted. This does not apply to you recording a radio broadcast because of Section 114. Even without Section 114, however, since there are substantial non-infringing uses for your radio that can download broadcasts, the device would be fine (Sony Corp. of America v. Universal City Studios, 464 US 417 (1984))
Now, if you are wondering why the act of downloading a copyrighted work without authorization is illegal, it's because you make a copy when doing so. Even if it's only in your RAM or cache.
Well, I'm glad we can all rest at ease thanks to your say so.
Unfortunately, the present law was changed just about a year ago, so I've no idea what these "very different conditions" you describe are meant to be - this is one area of legistature that is evolving very rapidly indeed.
As for persecution? Not even implied - everyone who is a part of society can be held responsible for this system, so you'd what, have to be persecuting yourself? An ad hominem wrapped in a strawman wrapped in an enigma, no doubt. Well done!
I said that it comes out of profit doesn't mean you have to adjust downward the amount of profit you expect
Yes, and I'm saying that if you want your expectations to conform to reality, you do. Costs go up, total profit falls (some special and limited cases excepted). If you really want to stick to your gun on the question of per-unit profit go ahead, but there's no reason to care about per-unit profit at the expense of total profit.
You just admitted that there are some special and limited cases. My original point was that you were overstating your position.
Also, the hypo used per-unit profit for illustrative purposes, but it was pointing to total profit (i.e. the only change to the equation was CGS and price).
Now, if you are wondering why the act of downloading a copyrighted work without authorization is illegal, it's because you make a copy when doing so. Even if it's only in your RAM or cache.
So how many bits of a song can one store in RAM before it is considered a copyright violation? With today's processors all is needed is enough to play a microsecond or two before loading the next few bits.
Time is what keeps everything from happening all at once.
While it may not seem to be fair, punishing music execs for previously collected fines/settlements would be clearly unfair. This because a certain fine was set in the law, and they acted accordingly. Iow, the collected fines were legal at the time. Remember: this is not about whether this law is fair or not, it is about what this law IS.
Now this appeal may overturn said law, I doubt that would make previously collected fines automatically illegal. Otherwise one would have the problem of a retro-active law: this punishes people for acts that were legal at the time they were done.
I can imagine it may be possible for people that were fined to retroactively try to overturn this fine, and maybe recover some of it. But that's a matter for lawyers to think about.
I maintain that piracy is what the guy down at the car boot sale with the racks of copied DVDs is committing. He is selling unauthorised copies of copyrighted works. Note 'selling'. Sharing is just that - no-one is getting paid to copy and no-one is paying to listen. One is a criminal enterprise, both are something people have been doing for a very long time. Compare the following: A - I invite some friends round to my house and we listen to a CD, B - I invite some friends round to my house and make them pay to listen to a CD. I'm pretty sure B would be illegal, and rightfully so. It's not quite piracy, but it's a similar problem - someone who is not the copyright holder is making a profit from the work. The arguments against file sharing make A unacceptable (I'm not USian, but I thought the NFL and others had tried this already), and that's where they over step the line IMO.
That's actually a really good question. To be fair to RIAA, downloading and streaming have different legal significances, which seem to me to be consistent with the technological differences (i.e. the reason you knew to ask that question). I'm not actually sure where the line is drawn, nor do I have a strong opinion on the policy behind drawing that line, for the reproduction right. However, it's not often an important question since they'll go after unauthorized distributors (Section 106(2)).
That said, if you rip from the stream you will violate the reproduction right if it is unauthorized. Because I don't think I made it clear enough earlier, unauthorized means that a) there is a valid copyright; b) the use is not exempt under Sections 107-122 (U.S.C. Title 17, ftr); c) the use was not exempt by the copyright holder's permission.
Oh, see, I'm just tired and not thinking well enough right now. If the bits are discarded, then no copy is made, and there's no violation of the reproduction right. The line I was referring to would be how much remains before discarding. At some point, if too much remains in the RAM, then there's a copy and a violation.
"why bother with lawyers and demand letters? Just let the record companies hire armed thugs and ransack people's houses."
coz it's cheaper to let tax payer funded thugs do it.
I actually disagree with this - the issue of file sharing is completely different to shop lifting a cd. One is theft, the other is unauthorised distribution - with theft, the right being infringed is property ownership, while with unauthorised distribution the right being infringed is the right to control distribution. A cd as a stolen item will cost maybe $20 maximum, while distribution rights are a significant amount of money.
The fines shouldn't be what they currently are, but they should be more than shoplifting or the $30 or $40 some people are suggesting here.
Guess we are both getting tired. The bottom line is that no matter what lengths the **AA's go to there will always exist the possibility to circumvent their intent.
It really would behoove them to work with those of us who believe that sane copyright law that does not restrict what non-commercial users can do with content is better than no copyright law at all.
Oh, and just add to your brainfreeze consider this...it is possible for computers to load enough bits to play a sound and forward those bits to another machine while loading the next sound without storing anything to disk, and just those few bits to RAM.
The only way to outlaw that would be make all bits illegal.
Time is what keeps everything from happening all at once.
> Just let the record companies hire armed thugs and ransack people's houses.
Please don't give them ideas. One of the **AAs already got away with hiring someone to steal a torrent site's email...
Seems you are confusing copying with plagiarism. I didn't see any mention of plagiarism in the GP.
Pretending that someone else's photo was created by you is plagiarism. It's a crime to plagiarize, but the crime committed is not copyright infringement. Copyright can be used against plagiarists, but that's not the purpose. The applicable law should be something like the statutes covering fraud and misrepresentation.
There's all the difference in the world between transmitting music files and piracy. It's only piracy if those files contain copyrighted works for which the copyright has not yet expired, and only if the copyright owner has not granted permission. The more rabid among copyright extremists seem to have inordinate difficulty in crediting that some music file transfers are not piracy, but such does exist! Might as well claim that all drivers are speeders as claim that all transmissions are piracy.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
I actually don't think that does anything to alter my above analysis. The unauthorized distribution (via streaming) of the authorized copy (wherever the bits start from) is still a candidate for a Section 106(2) violation. The same issue of reproduction persists (has a copy been made for a 106(1) violation?), but that there's another layer does nothing to change the analysis. It does nothing especially because the Supreme Court is not fond at all of people trying circumvent their logic (see the Sony-Napster-Grokster line of cases to see this in action).
Surely whether or not the fines are cruel and unusual or excessive (etc) is subjective opinion? Any punishment past a slap on the wrist and a telling off may be cruel and unusual or excessive to the defendant and their family...
I reiterate...if no copies are stored on disk the only way to stop distribution is to outlaw the sharing of bits, and as evidenced by Plessy even the Supreme Court is capable of admitting it is wrong.
Time is what keeps everything from happening all at once.
God, the solution is simple...if you could get a large enough group of people to follow:
Stop buying music for a few months...
If the record companies don't get money in, they can't pay the RIAA which in turn can't pay the lawyers...
The whole stack of cards comes tumbling down and consumers make a bold choice in how we are treated.
The shops that sell CDs will fold, the online distribution channels will fail.
Once this is done, let the music moguls back in on OUR terms, not theirs!
This is consumerism, it is in our hand, but we don't do it...Why? Because the majority of us are not affected by this (and I mean non-slashdotters by that) and getting them to agree to a boycott is like asking blood from a stone...A movement to trigger a music revolution is the only way this will change, although this is a socialist idea and most of the US/UK would rather shoot themselves first...
Karem
When all is said and done, nothing changes...
That's the worst argument I've ever heard. Killing someone only takes the pull of a trigger. You don't have to be the inventor of the gun. You don't have to design the gun. You don't have to make the gun. You don't have to own the gun. Hell, in some circumstances, you don't even have to physically be the one to pull the trigger.
But all guns are shipped capable of killing. In fact they're pretty much designed to do that. And there are plenty of reasons why you'd want to kill someone, like maybe making stupid-ass excuses for breaking the law.
But in pretty much any jurisdiction in the world, it's decades in jail or the death sentence. Are you saying that, because there's minimal effor involved in killing someone, I should serve next to no time for it?
exactly, and 90% of pirates with a brain take the offer, know they are banged to rights, and pay up. It's the 1% of 'fuck teh riaa' slashdot reading lunatics who consider it an attack on their human rights to be caught infringing copyright who refuse to settle and insist on innocence when everyone c an see their guilt.
Not surprisingly, the courts take a dim view of idiots trying to use the court system as a personal soapbox, and ensure they are fined accordingly.
Every single case you see of huge fines being paid to the RIAA is by people who dumfoundingly insisted on fighting a case they knew was unwinnable, when they were guilty as hell.
I guess idiots never learn.
If the record companies don't want us to create so many digital copies, maybe they shouldn't be using technology they know can be copied, and they should just hold more concerts and go back to vinyl or something.
You never heard of the analogue loop? The cat's out of the bag now.
Brain surgery - it's not rocket science!
Well that's really going to help.
To have a right to do a thing is not at all the same as to be right in doing it
The whole point is that the damages don't have to be proven. You rarely see this, normally in a Court one must prove damages after prevailing on liability. The Media Industry, due to their ownership of Congress, was able to have part two removed. Few other plaintiffs get this "gift". Now, part one was dealt with by using a massive disparity in ability to pay for legal counsel, meaning that even if you had a legit defense, or didn't actually do what they claimed, you still paid the extortion money. "Beautiful Computer you have there....be a shame if anything happened to it". If you can't buy Congress, then you have to prove damages like everyone else. That's a key difference between the punitive damages in BMW v Gore, and RIAA legal extortion. /cynical/
Of Course, in the other cases, it was a corporation paying unrealistic damages to a plaintiff. Here, the big corporate plaintiff is steamrollering little guys. Want to bet which way our current supreme court will go ? /cynical/
It would mean it's yours. As long as you don't breech copyright by, for example, selling a copy and keeping the original, you should be allowed to do what you want with it. And EULA's would be unenforceable unless you're getting something for less-than-cost from agreeing to it.
With the EULA you don't even have the right to use software. If you decompile (not a copyright infringement) you lose rights to it. You can't install it on a new computer and use it. You can lose your rights by BENCHMARKING it. You lose first sale right and right to merchantable quality. You lose the right to a refund and you can lose the right to install AT ALL.
Remember, MS only said they'll release an XP crack for activation. They haven't done so yet.
So with the EULA you don't even get the right to use it. You get contingent right to use.
Was the agent of the plaintiff planning on buying the song and then did not because he had downloaded it from Tenenbaum?
If so, there goes "infringed the right to distribute".
Like I say, a lot of logical leaps have to be made to make this case stick.
You are welcome on my lawn.
speeding fines in finland are based on percentage of your last tax return
so if you are poor, your speeding fine is a pittance. but if you are the chairman of nokia, its over $100K
http://news.bbc.co.uk/2/hi/europe/1759791.stm
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
Was the agent of the plaintiff planning on buying the song and then did not because he had downloaded it from Tenenbaum?
If so, there goes "infringed the right to distribute".
In what way? Fair use doesn't excuse distribution, and never has.
Actually, the MAXIMUM damages -- assuming that every unauthorized download by Tenenbaum was a lost sale, which is definitely not the case -- would be around 35 cents per song, because the wholesale price is around 70 cents, and the expenses, on average, would be 35 cents. So the current award is around 65,000 times the actual damages.
Ray Beckerman +5 Insightful
Just a nitpick, but people are usually sued for uploading, not downloading.
1. They're being sued for both.
2. There's no proof of any uploads.
3. The RIAA relies on the distribution to try to get at uploading, but they have no proof of any distribution.
Ray Beckerman +5 Insightful
The fundamental problem here is not that of copying, but the matter of justice in proportion to the crime.
Your parent argued that copying shouldn't be a crime because it's essential to human nature. If copying isn't a crime, then that's more basic than the proportions of a potential punishment. So the fundamental problem here is that of copying; yours is a secondary.
does anybody actually think this has a chance in hell?
I cannot imagine that the $675,000 verdict will be left standing. If Judge Gertner doesn't knock it out, an appeals court certainly will.
Ray Beckerman +5 Insightful
The mistake that you seem poised to make, and that RIAA trolls make religiously, is equating the two numbers (copies downloaded and sales lost). They are not equal (and any sane economist can explain why inside of 30 seconds). Are SOME sales lost? Of course. But its a hell of a lot less than the number of total downloads.
Correct. And that same point was made the the Court in USA v. Dove, where the judge rejected the RIAA's nonsensical argument that every unauthorized download was tantamount to a lost sale.
Ray Beckerman +5 Insightful
Sorry, I just *had* to... ;)
Technically, you're not being fined.
If it looks like a fine, acts like a fine, and hurts like a fine, it's a fine. The government should not be able to circumvent the constitution (reasonable fines) by redefining terms.
Give me Classic Slashdot or give me death!
I do vote. And unless the guy is REALLY well known to me I don't vote Democrat or Republican anymore. I look for the third party candidates and research and vote for them instead.
We got into this mess by voting Democrat or Republican. It's time for real change. Not a TV spot telling us about change.
Has Comcast disconnected your Internet account? Same here. You can read about it at http://comcastissue.blogspot.com
Also, the hypo used per-unit profit for illustrative purposes, but it was pointing to total profit (i.e. the only change to the equation was CGS and price).
And the hypo is wrong. How many times do I have to say it? Raise prices, sales fall, total profits fall. Anyone who passed algebra can show this. The only time this will not happen is if you were charging a sub-optimal price to begin with (meaning, you could have had higher total profits by raising prices before the cost rose). I'm blue in the face with this one.
You just admitted that there are some special and limited cases. My original point was that you were overstating your position.
None of which apply to a musician who has to buy a guitar. Is he a monopoly holder? No. Does the perceived value of his product rise with price (like wine or sports cars)? No. Was he charging a sub-optimal price? Given the RIAA MBAs setting his price for him, unlikely.
Don't forget Betamax and Blu-Ray. Where would we be today without these amazing innovations? Using VHS and DVD like a bunch of savages, that's where.
"When information is power, privacy is freedom" - Jah-Wren Ryel
I knew I'd find it if I looked hard enough...
RIAA ispnotice
Music is protected by copyright. The unauthorized downloading or uploading of music is actionable as copyright infringement, even if not done for profit.
Where in copyright law does it say that downloading is illegal? My friggin' radio downloads music from the air for pete's sake.
That's because the radio transmission was authorized. The quote you posted specifically mentions unauthorized downloading.
There's also the expectation that you'll be able to reuse the instruments for multiple recordings, and so the correct thing to do, accounting-wise, is to amortize the cost of the instrument (and any associated loans) over its expected use-life; trying to recover its total value from each recording you make is greedy and your (potential) customers instinctively know it
Maybe he pulls a Hendrix-esque instrument burning at the end of each performance.
"When information is power, privacy is freedom" - Jah-Wren Ryel
It's better than the alternative. The process of voting legitimizes the outcome; you're never going to change anything by fighting over which of the pre-selected candidates—neither of which really represents you—should be in charge for the next four years. It doesn't matter who wins the election; you still lose.
The only way out is to de-legitimize the system itself, and the only way to do that is to ignore the ballot entirely. Stop caring about who wins; one politician is just as criminal as the next. Ignore their farcical debates and endless speeches. Stop following their orders. Put an end to the influence which politics holds over your life.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
The only thing those two situations have in common is that they involve some kind of copyright infringement.
But don't take my word for it. A Formula One can safely negotiate 3g+ turns at over 100mph, so your Ford Explorer should be able to as well. They're both cars right? Go try that for me.
"When information is power, privacy is freedom" - Jah-Wren Ryel
There are several ways in which to buy the rights to a piece of a work. Do the research it's not rocket science.
Why bother
Well, of course the law could change. Here it would be more likely a change from Congress, though. The analysis was about the current law and a guess as to what the Supreme Court would do based on precedent.
I still don't think your hypo saves you now, but why don't you develop it a bit further and we can look again? That is, tell me the story with a little more precision as to what's happening.
But what in the world gives you the right to posses a work just because it exists if the creator/owner prefers that you not see it or own it? That's like saying that just because your sword exists I have the right to use it in any way I wish. By your logic I could come over to your house and remodel it at a whim and you could do nothing about it. I just pirated your living room for my own purposes. I could even make it cost prohibitive for you to put it back the way you want it.
Why bother
The fine you listed for letting a parking meter run out is 120 times the actual damages. The speeding fine you listed is an infinitely greater amount than the actual damages assuming one does no physical damage to anything.
Your point? They are both reasonable amounts that your average driver can afford, and both high enough that your average driver will be deterred.
If a parking fine was much less, nobody would EVER pay the meter. Paying the odd fine would be far cheaper. If they could nail you every time the meter ran out, then sure a $5 fine might be sufficient deterrent, but that's not going to happen.
As for speeding what do you propose the fine be? $0.01 is infinitely greater than the actual damages too. So is $10,000,000. Would you prefer jail time, to take away the time you gained by speeding, or to compensate for the 'fun' you had? I figure a few hundred bucks for 'real speeding' is about right. (by 'real speeding' I mean traveling fast relative to normal traffic flow.)
In the state of Florida, car theft is a third degree felony. One can get 5 years and $5,000 fine. If one steals a car worth $1,000.00 and one makes $20,000 per year and one gets the maximum, one is fined, in effect $105,000 plus loss of freedom.
"can get" and "will get" are entirely separate concerns. If I were to steal a car, odds are high I would not face anywhere near the maximum sentence, and even the sentence I ultimately get would likely not have to be served to completion.
Had he not admitted to it, the damages would have been much less severe, possibly as little as $1,600.
But he did willfully infringe those copyrights. Not admitting to that would have been a lie. The issue here is precisely that infringing copyright by downloading and sharing a few songs is simply not a 22,500$ per title crime, EVEN if one does it on purpose.
You say "Sometimes an illegal act is the only counterweight that one can provide."
I've heard that argument before, that the ends justifies the means. Except that in this case there were/are legal ways to get your point of prices being too high, etc.. across to big music. DON'T BUY. That forces them to change their tactics, perhaps even offering music at a reduced price.
It always seems to be that people complain that the above will not work, because others will purchase the product at the big music price, so that they will not change. Well guess what...that means that they have set or are close to a sustainable business price. If the price is not sustainable, because of revenue does not exceed expenditures, then either the company will go out of business, or change their offering, perhaps to a reduced price.
People, you need to work for what you want. In this case work means going without what you want, and persuading others, starting websites, attending rallies, marching on the capital, to get what it is you desire. You know the legal, but time/energy consuming methods to get what you want. And guess what...in the end, after all that work, you may find that you still don't get what you desire, but that is life; you don't get everything you want.
The big question is whether the net effect of piracy is a positive for the music industry.
The BIG question is whether the idea of selling copies in a world where the cost of making copies dropped to zero is worth legally protecting in the first place.
The music industry simply needs to find and shift to a new revenue model; performances, sponsorship, whatever. Copyright, at least insofar as actually making copies is obsolete. You can't have an economy based on charging for something that costs nothing.
I realize music has a cost to make, produce, and promote. But it no longer has a cost to make copies. So a business model centered around recouping the costs of creating music by charging for copies is doomed. People can and will just make their own copies.
If I make elevators and give them away for free, maintain them for free, and then charge for highly trained elevator operators to actually make them go up, down, and ensure passengers are safe and secure... that's a fine business model.
If one day, thanks to technology, the elevator operators duties have been reduced to pushing a simple button and nothing more, then people will push the button themselves and send the operators packing. The elevator company will have to shift to a new model... maybe selling the elevators and charging for maintenance. The music industry is at this point now... making copies has been reduced to the push of a button. And people are rejecting the idea of paying for that because its worthless. Music, like elevators still has a cost to produce... and a new way of paying for it has to be found. But requiring people to pay to make copies is as absurd as requiring modern elevators to have operators.
I used to believe like you Mr. Beckerman, until the court said hitting the snooze alarm on copyrights was okey dokey. If limited time can me "forever minus one day" then pretty much anything in the constitution can mean whatever. After all you don't get much clearer than limited time, and even the most common man wouldn't think centuries equals a limited time, so where does that leave us?
This is why I can't get my boys to vote. It is because it doesn't matter whose face is sitting in the office or on the bench, nothing ever changes. The corps get whatever they desire, the common man gets treated worse each passing year, and if you do try to fight you get the courts saying it is all okay. See warrantless wiretapping, eternal copyrights, DMCA, etc for examples.
So while I would like to have faith in the system, or give the kids a reason to vote, honestly I haven't seen anything but the same old rotten apples, the same old corruption, for decades. What would you say to the youth that think the entire system is nothing but a scam? Because I can't honestly point to anything in decades that the common man actually got ahead when faced with a mega corp. Hell the last one I can think of is old Teddy Roosevelt busting the trusts, what? A hundred years ago? For the past 30 years I can't really think of anything where common sense and decency won against unlimited funds and bribery.
So while I hope you are right I'm betting in the end they will knock it down to a "more reasonable" 400k and that will be the end of it. Either way the corps will win and ultimately We, The People will lose.
ACs don't waste your time replying, your posts are never seen by me.
"Indie" is what "alternative" was in the '90's.
Nope; "indie" is any non-RIAA music. It's short for "independantly produced". Note that the "alternative music" was in fact produced, recorded, and marketed by the major lablels; US started out as "alternative", as did Cheap Trick.
Indie == "non-RIAA".
Free Martian Whores!
USC 17 405 says you are wrong.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
If we look at the distributing right as well, we also have to look at the damages such distribution has done. IE How many copies were distributed by the defendant. For which no proof was given, aside from the single copy downloaded by the RIAA's agent. Which brings us back to damages over a single copy.
but they have no proof of any distribution.
Not even the one copy by MediaSentry?
If we look at the distributing right as well, we also have to look at the damages such distribution has done. IE How many copies were distributed by the defendant. For which no proof was given, aside from the single copy downloaded by the RIAA's agent. Which brings us back to damages over a single copy.
No, it doesn't, because the plaintiff is explicitly not required by the statute to prove damages. If the defendant wants to prove a lack of damages as part of their argument for a lower statutory damage award, that burden is on the defendant.
This is directly in line with at least one justification of statutory damage awards expressly discussed by Congress in the congressional reports when they increased the enhanced damage award for willful infringement: the fact that defendants don't keep records, destroy records, or sometimes keep fraudulent records. As such, it would be inequitable to force the copyright owner to prove damages when the evidence all sits in the infringer's hands - and don't forget, at this point, we're talking about an infringer, not an alleged infringer. Tenenbaum admitted that he committed copyright infringement. His sole defense was to say that any award of damages for his admitted copyright infringement was unfair because the plaintiffs didn't prove damages... but they're not required to, unless they go for actual damages rather than statutory damages. To claim they have to prove actual damages in spite of their decision to opt for statutory damages is to disregard the statute, which expressly says "instead of actual damages and profits". Actual damages and profits are not an element of the case that needs to be proved, although the defendant may wish to prove lack of them to reduce the award of statutory damages or help justify a fair use defense.
In a digital world, the public domain of IP is perfectly competitive. There are no marginal costs, so each copy should be free. Because being free would disincentive people from creating, or creating and sharing, we need to incentivize IP and create a legal structure that stops perfect competition so that creativity will happen. Just looking at it from a cost perspective misses the point of U.S. copyright law in the first place.
does anybody actually think this has a chance in hell?
I cannot imagine that the $675,000 verdict will be left standing. If Judge Gertner doesn't knock it out, an appeals court certainly will.
I think so too, but not over any of the issues raised by Tenenbaum. Rather, it'll be due to the erroneous jury instruction on willfulness.
I still don't think your hypo saves you now, but why don't you develop it a bit further and we can look again? That is, tell me the story with a little more precision as to what's happening.
Are you familiar with volleyball? Think of my hypo as after the ball is served each player only touches it long enough to play one millisecond of sound while sending it off to the next. Latency of course would have to be accounted for, but no single computer would need to store more than a word or two of memory at any instant in time.
Time is what keeps everything from happening all at once.
Where's the original copy coming from? The source of each bit. It has to start somewhere, else we're not dealing with a work that's copyrighted.
Yeah, terribly irresponsible. Write somebody in if you don't like the choices.
You can't really compare criminal fines to civil damages. Stealing a car might get you a couple of months in jail, but if it was a Rolls Royce and you crashed it, you might have to pay $500000 if you have the money.
The value of the items isn't really the issue either, since you could have streamed them to multiple people.
On the other side of the coin, what is the value of the items infringed? You could have items available for download worth $50,000. If you're saying 100x is ok, that is 25 million dollars or something.
I agree these fines are too big, but the arguments used need to be thought out more.
The same place "all" original copies come from...some third world country that doesn't give a dang about enforcing copyrights of course. Really though, what does it matter? Once the cat's out of the bag it's gone.
Time is what keeps everything from happening all at once.
You should reread our exchange. I'm amazed at how far off track you've led the discussion, and embarrassed that I continued on so long.
I am really sorry to embarrass you. We started with the RIAA's imprecise language and moved on to what constitutes downloading and sharing, and currently are at how much is too much. Seems to be pretty par for how such discussions go to me.
Time is what keeps everything from happening all at once.
1) If the benefit were negligible, why would they do it? Neglible means small. The benefit derived from not putting a quarter into a meter and chancing a ticket is small too, but people do it all the time. People are aware of the risks. Then, taking those risks into account, consider the benefit derived, and decide whether to pirate or not. a) People are not all that rational nor are they all that well informed about the actual risks or the absurd penalties. b) Do YOU really claim to know the odds of getting caught downloading a song and fined an absurd amount? If its in the same ballpark as a lightning strike or a lottery win, how much weight does it have on your decision? 2) You may borrow a friend's CD, but you may not make a copy of it. Right, mix tapes are 14 counts of infringment, and anyone whose ever made one for a friend or family member should be find several hundred thousand dollars. Legions of 14 year old girls should be incarcerated. Actually, sarcasm aside, the Audio Home Recording Act (AHRA) of 1992 section 1008 actually explicitly protects "noncommercial copying by consumers provided copies are not for direct or indirect commercial advantage". A senate report explicitly offers examples such as making copies for a family member, or copies for use in a car or portable tape player. I don't think anyone has EVER been charged with making a mix tape, or copying a CD for a friend so there really isn't much application of the law to draw from, but still, there is clearly an argument to be made that doing something like this is, in fact, perfectly ok. 3) There is measurable harm. Let's say there were 1000 illegal copies made of Song X. Let's then say 40% of those copies made would have led to purchases of the song on iTunes or something similar. That's $400 of harm, and 40 cents of harm per illegal copy. Lets further say that 1% of those copies created a fan of that band, who then went to a concert and paid $50 a ticket each (and brought their significant other, bff, whatever...). That's 20 tickets. Total harm -$1000. Net harm -$600. Maybe the record company should be paying me?? Or perhaps 1% of those copies created a fan of that band, who then purchased a T-shirt bearing their logo. Or bought DDR for the PS3 so they could dance to that song. And likely as not, 90% of copies of most songs were listened to once, and then never listened to again. Many were downloaded as a part of a larger compilation, and didn't even get listened to once. I've downloaded entire discographies to get a couple singles or a particular remix. 99% of what was there I either already owned, or couldn't care less about. The percentage doesn't really matter. It's just that you could find a percentage that matters. Agreed. But the percentage might actually be negative, resulting in a net gain for the music industry. Or perhaps the gain and harm balance and its zero. Further, lost dollars doesn't translate to dollars not spent. Odds are those 'lost sale dollars' when into somethign else... people generally have a segment of income for "discretionary spending"... if they don't buy a CD with it, they'll buy something else. So forcing us to pay for each copy of each song simply means some other industries sales will drop. At the societal level, its pretty much a zero sum game. Finally, we're dealing with punitive damages here. Right, but the punishment doesn't fit the crime. And in this case, sharing 50 songs should not be punished as 50 crimes. Statutory damages "per title" is absurd when applied to P2P network sharing. It might make sense when you are bootlegging blu-ray movies at the night markets... but torrenting a copy of Dance Mix 11! is not 20 separate punishable offenses, any more than shoplifting a pack of cigarettes is 20 separate counts of theft. Nevertheless I agree they were excessive. Copyright's job is to incentivize expression. I don't think the amount here optimally does so. Agreed.
1) If the benefit were negligible, why would they do it?
Neglible means small. The benefit derived from not putting a quarter into a meter and chancing a ticket is small too, but people do it all the time.
People are aware of the risks. Then, taking those risks into account, consider the benefit derived, and decide whether to pirate or not.
a) People are not all that rational nor are they all that well informed about the actual risks or the absurd penalties.
b) Do YOU really claim to know the odds of getting caught downloading a song and fined an absurd amount? If its in the same ballpark as a lightning strike or a lottery win, how much weight does it have on your decision?
Negligible means 'so small it can be ignored.' You don't need to know the exact risk. Whether people do an explicit cost-benefit analysis is not the issue. It's that it's implied in behavior. For me, as an example, I don't calculate the exact risk, but abide by heuristics. I don't pirate any music anymore because too many people get caught and the fines are too great. I do, however, stream TV shows when episodes I want to watch are not available on Hulu or whatever network's website. The likelihood of getting caught for this is much less than getting caught with illegal files, or accidentally sharing music I didn't intend to share on a p2p program. From my experience, people are very aware of the RIAA and insane fines.
Actually, sarcasm aside, the Audio Home Recording Act (AHRA) of 1992 section 1008 actually explicitly protects "noncommercial copying by consumers provided copies are not for direct or indirect commercial advantage". A senate report explicitly offers examples such as making copies for a family member, or copies for use in a car or portable tape player. I don't think anyone has EVER been charged with making a mix tape, or copying a CD for a friend so there really isn't much application of the law to draw from, but still, there is clearly an argument to be made that doing something like this is, in fact, perfectly ok.
Actually, that's not what the AHRA says. 17 U.S.C. 1008 provides that "No action may be brought under this title alleging infringement of copyright based on . . . the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."
Copying a CD and disributing it to a person would violate two exlusive rights under Section 106: the reproduction right and distribution right. If you violate either, you are an infringer. If Section 1008 is to save this potential infringer, it must protect against both of these violations. When you distribute to your friend, you are making a public distribution. Section 106(3) says nothing about private distribution, after all, so this would save the family member (I would guess only immediate family, though). But as far as the reproduction right . . .
While the reports do say this is meant to permit copies for a family member or for use in the car, there's no mention of friends. While we can both imagine a court agreeing with family member copies under the actual text (the text is the law, not the history - though the history will be more or less important depending on the judge), can you really imagine this for a friend? On the one hand, you have enjoyment of your purchase in your home (with your family). On the other, you have enjoyment by somebody else outside of your home. While both scenarios are not much different than downloading the same CD from a p2p client, the distinction has to do with the party you are interacting with. It's not as if sharing across a p2p program with your friend will grant you immunity under Section 1008.
One can't get too caught up in what's commercial and noncommercial. The legal significance is probably not all that intuitive if you ask me. And the reason nobody is prosecuted for mix tapes is because, in part, it's too difficult to find instances wher
I would think it would be more effective to either turn in a blank ballot, or do something like write in Mickey Mouse(*). By simply not voting, the assumption is that people are lazy and/or don't care - by taking the time to vote but not actually filling in a valid ballot shows that this is not case. Look at the current situation, the numbers for "didn't vote" has trumped the winning candidate in any election in recent history, yet nothing seems to be changing because of this. Can you imagine what would happen if Mickey Mouse even got 5% of the vote?
(*) see, on topic!
A distribution under 17 USC 106(3) requires a sale or other transfer of ownership, or by rental, lease, or lending. Also it must involve a dissemination of copies to the public.
Ray Beckerman +5 Insightful
"indie" is any non-RIAA music. It's short for "independantly produced". Note that the "alternative music" was in fact produced, recorded, and marketed by the major lablels; US started out as "alternative", as did Cheap Trick. Indie == "non-RIAA".
Correct.
Where it gets tricky for me is a label like Rounder Records, a traditionally independent label which has never been associated with the Big 4 record companies, and which has never been a part of the Big 4's litigation campaign, but which is a dues-paying member of the RIAA.
I'm classifying them as non-indie because their dues are contributing to the RIAA vendetta.
I.e., I go with your definition. indie=non RIAA. period. I attempt to never patronize any company associated with the RIAA, and I go to check at RIAARadar.com.
Ray Beckerman +5 Insightful
But what in the world gives you the right to posses a work just because it exists if the creator/owner prefers that you not see it or own it?
But that's not the case in the GP's arguement. When copies do exist outside of the author's or publisher's physical control, the proverbial genie is already outside of the bottle. Unless they take the time and expense to track down, obtain, and/or destroy every last copy of a work, their preference has no more moral or legal force than anyone else's. Also, most out-of-print books are no longer in print because the either the author or publisher (usually the publisher) doesn't think that printing more is economical. I'm sure there are other cases when an author no longer wishes a book to be available, but other than out-of-date versions of text books and other fact-based materials, these have absolutely no benefit for the public in large (which in the US at least is the fundamental justification for copyright at the first place).
That's like saying that just because your sword exists I have the right to use it in any way I wish. By your logic I could come over to your house and remodel it at a whim and you could do nothing about it. I just pirated your living room for my own purposes. I could even make it cost prohibitive for you to put it back the way you want it.
Because in the case of both the sword and living room there are physical objects that while you are using/redecorating will be unavailable to their rightful owner. If someone created a digital copy of an out-of-print book, that doesn't in any way deprive the original publisher the physical control over original manuscript, printing masters, etc... Of course, you can still argue that doing so would be wrong, but the supposed analogies you gave are entirelly different!
From my experience, people are very aware of the RIAA and insane fines.
In my experience I routinely encounter people who haven't got the slightest idea. I went for a haircut the other day, and saw that the hair dresser was torrenting music, and playing it in the shop as background music. She was only vaguely aware that this wasn't ok (the torrenting), but completely ignorant of the penalties. And she had no idea at all that she needed an additional license to play the music in her shop as background music.
When you distribute to your friend, you are making a public distribution....
I disagree. "My friend" is not the "the public". Otherwise I am also prohibited from having my friends over to watch a movie or PPV event too. I am strictly prohibited from presenting these to the public without a license.
On the one hand, you have enjoyment of your purchase in your home (with your family). On the other, you have enjoyment by somebody else outside of your home.
What if I make a copy for my Mom who doesn't live with me? Or a room-mate who does? What if I play a CD a beach picnic with another couple?
And the reason nobody is prosecuted for mix tapes is because, in part, it's too difficult to find instances where this is happening. What channel would be monitored for finding this?
I agree it would be difficult to "monitor", but opportunities to enforce would still inevitably arise if anyone wanted to try. A guy gets his car impounded for some criminal act and on the seat lies a stack of mix CDs with labels like "Dear xxxx, hope you enjoy this mix, thinking of you... yyyyy"... strong evidence that infringement has occured. (And given that 22 counts of infringement carries a half million dollar or more penalty, you'd think prosecutions would be very interested in pursuing that, or a least waving it around for leverage. And given they'll get at best a revolving door sentence for the drug possession, or burglary they originally nabbed him for... turning them over to the RIAA might well actually be the strongest leverage they have.
In any case all this absurdity goes away if the court recognizes private non-commercial use between friends as 'private use' not 'public use'.
I -think- the courts would agree, and what little information exists seems to agree. For example if you have a wedding reception at a hall, the hall as a commercial venture must have a license for the music played, but if you have that wedding reception at someone's home you don't. And its not a case of "you can get away with not having a license", its a case where "you don't actually need one".
Well that's really going to help.
It might. Bad polling plus low turnout signifies dissatisfaction with the election mechanism, and CAN lead to changes. Given bad turnout and strong evidence for dissatisfaction, interested parties have ammunition when they approach municipal and state level boards with ideas for new voting methods, such as instant runoff voting. If turnout is good OR polling is favorable, body-at-rest local boards can just say, "Ain't broke, doesn't need fixing." Right now, polls are bad across the country; if a few districts start showing signs of disenfranchisement, it has the potential to kick some enhancements up the ladder. It's patently obvious that changes in election policy will never come from the top.
>But what in the world gives you the right to posses a work just because it exists if the creator/owner prefers that you not see it or own it?
Now, let's make the record straight once and forever:
1. I am the owner of any song, not the song's creator. My ancestors invented words "I", "love" and "you" - and all other words and musical tones. It is impossible to create any human art without using something that my ancestors created.
2. Why do I agree that the creator gets money for the work that he creates, but which I do own as soon as he creates it anyway? Simple: "To promote the Progress of Science and useful Arts", see http://en.wikipedia.org/wiki/Copyright_Clause
3. If the creator is not selling the song, his exclusive right to sell the song does not promote the progress of useful arts. Indeed: those songs that are on sale now - are they the progress or the regress? are they useful art or are they useless art? If even a single one of previously created songs is unavailable to the public, then you can't say that newly created songs are better than that old song, right? That means you can't say there is a progress in arts. That means:
4. If the creator is not selling the song, his exclusive right is void.
I am the owner of any song, not the song's creator. My ancestors invented words "I", "love" and "you" - and all other words and musical tones.
By this logic I am the owner of any house created not the builder or architect. Since nature provided the trees for the wood and they are for the taking right? And all lines that can be drawn have been drawn by my ancestors. I own the blue prints and the physical house. Since all houses have been built from components and pieces that were at one time or another built by my ancestors. In fact I own you since your genetic material was created by my ancestors as much as yours. How does it feel to be both prior art and property?
You're argument is ludicrous and false on it's face!
Why bother