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Considering a Fair Penalty For Illegal File-sharing
An anonymous reader writes with this excerpt, following up on yesterday's announcement of the 1.5 million dollar verdict against Jammie Thomas: "This week a federal jury handed down the verdict in the third file-sharing trial against a Minnesota mother of four who has been fighting against the charges brought by the RIAA since 2005. Understandably, a lot of people are outraged by this verdict and while reading through comments about the fine on some online forums, I saw some interesting opinions on how these fines should be assessed. The point that $62,500 per song is excessively high seems to be something that everyone can agree on, but what actually is fair seems to be a big point of contention."
No monetary figure will be fair. Choosing any amount will allow those rich enough to simply ignore the law.
The only fair way to make it is if anyone (person, organisation or company) commits copyright infringement they are
financially ruined and bankrupted. That is the only way such a law can be equally fair to everyone. Yes its unfair but
it is equally unfair to everyone and not just the poorer people.
Maximum of $50/song with a maximum total cap of $50,000. And there should be a sliding scale based on the actual amount of data transferred. So someone who accidentally shares their music library for a couple days doesn't get the same penalty as someone who seeds torrents on their company's 100mbit tube for a year.
That is pretty much how much they cost when buying from Amazon or iTunes. Seems perfectly reasonable to me.
The fairest penalty is no penalty. We need to end the war on sharing by legalizing noncommercial copyright infringement. I know this is not a popular view. But this stalemate can't last forever. One side has to win. Either piracy or anti-piracy will win.
Given a choice between the two, I choose piracy. Because if anti-piracy wins, the resultant changes to internet policy and enforcement would be something straight out of dystopian science fiction. All data transmitted across the internet would have to be monitored and checked for copyright violations. It would require aggressive internet filtering and surveillance on a scale that makes the Great Firewall of China look like child's play. 1984 was not supposed to be a guidebook...
Moreover, there's plenty of evidence that it's possible to run a content business on the internet without charging per digital download. Plenty of people do it. In short: yes, you can compete with free.
Legalize file sharing by legalizing noncommercial copyright infringement. It's the only way.
You're right, I wouldn't steal a car. But if it were possible, I sure as hell would download one!
For adults doing it for personal use who can't be bothered to pay for what they buy:
I would go with a civil penalty of 1x the retail cost of the songs, along with a no-jail-time misdemeanor criminal penalty at the discretion of the prosecutor for 2nd time offenders and those who are clearly doing it as a means of civil disobedience. Criminal charges would only work if prosecutors were protected from pressure from the record companies. Otherwise the criminal justice system becomes an arm of the recording industry, which is far worse than the current practice of suing people into bankruptcy. Civil disobedience only works if there is a price to be paid and you are willing to pay it.
For adults who knowingly leave their computers open for anyone to copy an substantial number of songs and who aren't extremely naive, I'd probably start with a no- or weekends-only-jail-time misdemeanor offense plus stick them with a civil-penalty bill for any downloads by people who were outside the reach of the courts. I wouldn't throw someone in jail unless the actual civil damages - at about $1 song/download not counting the exclusions below - were well into the 5 figures. I would not bill them for downloads by others who downloaded them only for the purpose of sharing them or downloads by police or plaintiffs, as those clearly do not represent lost sales by any stretch of the imagination.
For those who make their "warez" available on a commercial scale, I'd up the ante to a jail-time misdemeanor and possible forfeiture of their computers on the first offense.
In any case, the record companies shouldn't get any more than if the person bought all the songs on the open market, plus reasonable attorney's fees. In other words, they wouldn't make any profit.
For teenagers and very young adults I'd probably go with a more creative approach: Write an essay on the history of copyright law and its positive and negative effects on the creative arts, and garnish a reasonable portion of their wages for a year or until the civil judgment is paid off whichever comes first. Only in rare cases - usually ones where parents actively encouraged the copying knowing it was illegal - would I make the parents pay the bill.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
I should point out that I am an American citizen and have served on juries before. My comments are specific to the US legal system and may not be applicable to that of Canada, the UK, and other countries.
Having served on a couple of US juries I can assure you all that juries can contain people who are technologically illiterate. The last time I served on a jury, which was 5 years ago, I was shocked when 3 or 4 guys on the jury basically got into a contest to see who could claim to be the stupidest when it came to technology. I have never seen anything like this in my life, but these guys took turns trying to top each other and convince everyone on the jury that they were the stupidest person there was when it came to technology. There were exactly 2 people out of 13 (1 was an alternate) who had an IT background and I was one of those.
So on top of having people with weak to non-existent technology skills you may run into these people who see the world in black and white and want to punish evil doers. We had one of those on my jury. They tend to always be biased against defendants and want to apply the harshest sentence possible. I've read about this woman's various trials and she has had very poor lawyers and on top of that, jurors reported that they were sure she had lied in court and was completely guilty of the charges. I think she's a nut job who thinks she can beat the charges. So considering all of that, I can't say I'm surprised she got screwed with a fine she can never pay. Her life will be ruined as even thought the RIAA knows they'll never get the full amount, they can garnish her wages forever.
My suggestion would to be to
1) Estimate how much the average person spends per year on the type of entertainment infringed on as a percentage of income.
5.4% of income is spent on entertainment, and 3.4% of entertainment budget is on music. So 5.4*3.4 = .2% of total income is spent on music.
http://www.visualeconomics.com/how-the-average-us-consumer-spends-their-paycheck/
http://blog.nielsen.com/nielsenwire/consumer/video-games-score-5-of-u-s-household-entertainment-budget/
Then take that number times the individuals income. So say 25,000 for the average individual.
25,000*.002= 50$
So that is the base amount for that individual. Now that can be multiplied times a penalty factor for willful infringement, etc.
The fine for DUI is less and that is with all the fess added together.
even hitting a road worker in a work zone is a MAX fine of like $10,000 so how can file sharing HAVE A FINE THIS HIGH?
Hell you can shop lift cd's and pay like a max fine of $500
they don't do it by pounds
there sure as shit do it by value of goods
my state for example
value of goods- law charged
0-200 dollars of value- it's misdemeanor shoplifting
200-500 fourth degree
500-75 thousand, third degree
shoplift 75 thousand or more, get second degree
every day http://en.wikipedia.org/wiki/Special:Random
by merchant, I mean anyone financially profiting in the sale good or services.
Yeah, my wording could have been better. My point is, if Best buy broke a contract with Sony, Sony can't come into your house and take your TV away.
In this case, the merchant is the person profiting from distributing material they don't have the right to.
FYI:
MERCHANT, n. One engaged in a commercial pursuit. A commercial pursuit is one in which the thing pursued is a dollar.
The Kruger Dunning explains most post on
Multiply the number of times the song was downloaded from her by the nominal wholesale price of the song in the marketplace.
That's compensatory. It's all the actual revenue the record company lost.
Triple it to get punitive. That's an arbitrary rule that courts use, but it seems reasonable and customary.
This horseshit about tens of thousands of dollars per incident is a ludicrous abuse of the legal system, and constitutes cruel and unusual punishment.
That's pretty fair, if a bit complicated. But even if the jury and judge came to the decision that *every* person who got their copy of the song from her would have bought it if she personally hadn't been seeding it and decided to make her penalty 99 cents for every song she seeded times the number of uploads, that would still be far more reasonable than the bullshit they handed her.
Even if we take the "low" fine of $54,000, that's $2,250 per song. So what, she uploaded each song over 2000 times? What crap. I understand that some of the fine is more than just compensation, it's also deterrent, but shit, man that's just ridiculous.
On the bright side, I have a habit of downloading something "illegally" every time I let something like this get under my skin, so, off to the torrentz!
Free the Quark 3 from asymptotic confinement! Bring your charm! Don't get down! All colours and flavours welcome!
This very special kind of insanity is only possible in America - and I urge you to consider why it is so.
I am likely late to the game/thread, but this whole situation stinks of big-money shilling. There's no way that this could have continued past 3 appeals and still have come up with 7+ digits in settlement. As far as I'm concerned, this smacks of the Jammie case being a corporate shill in order to further the RIAA/MPAA agenda. Using such an example they can prove that a relatively innocent individual can be found guilty of 5-digit-per-track-$ infringeemnt, while still appearing to have undergone 'due process'.
It stinks, it's rotten, and it smells.
I'm not sure why anyone is buying this?!
(well, outside of corporate US funded media / astroturfing / shills that is....)
It should be like speeding, sure most speeders don't get caught, but the occasional few who do face a penalty offsets the possible damage done to road infrastructure, insurance companies, and human life/lives/suffering that is incurred by disobeying the law. I think the damages done by sharing a song should be higher $50-100 per song x number of songs, which would offset the lack of policing force that the music company has to find those violating their copyright. Also if someone running a site which has been serving copyrighted material is caught then a stiffer penalty should be dispensed because the crime is heavier, like drinking and driving would result in loss of driving privilege, fine, and possible jail time. But lets be reasonable $65,000/song is atrocious, after all lets also consider the fact that the music companies denied users the convenience of purchasing legit copies online (especially the access to a diverse library of music) for over a decade thus contributing to this horrible mess of piracy in the first place, in essence they gave the "black market" the opportunity to thrive and did jack all to offer the growing online community any better alternative, except bitch and wine and hit people with these disgusting lawsuits. There has to be some give and take on this issue, especially where the music companies (not to mention movie and game companies) are concerned. With smaller penalties they'd probably find it easier to enact more lawsuits, win them and by doing so curb the amount of piracy people are willing to risk. If you are more likely to get caught it is more likely that people will generally pirate less, no?
My property is on a curve and my trees are hit about every 5 years by people that lose control. Some are drunk. My trees are harmed, some have been taken out. I miss them. A drunk driver in a truck took out a 150 yr old oak tree that cannot be replaced. What "fine" did he pay? Nothing. He didn't have anything and was bankrupt, but he could afford to get drunk.
What is a "fair" fine for that? I'm not the only one to miss that tree. The bird, the squirrels, and other creatures miss it much more than I.