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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.
Let the convicted turn over the proceeds from their crime to the victim. Problem solved.
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.
Gaybies?
flat fine for non profit use sharing. Its enough to make people think twice and not destroy their lives.
Now, if you are selling advertising, or songs making a profit in any way, it should be based on the specific event. Fox using a song in a movie should be fined more then a person who sold a song for a dollar.
Only for distribution, downloading can not be make illegal. You can not expect consumers to be responsible for the crimes of the merchant.
The Kruger Dunning explains most post on
This is the fairest method I can think of:
1. Find out how many people obtained the song from that source
2. Find out that given a set of X people, what percentage would have purchased the song - this is the difficult part, but I'm sure you could aggregate data from online purchasing sites or something. Or even better - grab a bunch of people from the street - give them a pre-decided price, ask them whether the song is worth X dollars.
3. This person pays for the copies of the people would have purchased it otherwise. If its one of those 99 cent songs on itunes, then he probably won't be paying much.
You are aware that this destroys the value of human labor on a massive scale, right?
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.
No possibility to sue, put a small levy on blank media. Problem solved, works good pretty much everywhere in the world it's done.
Om, nomnomnom...
That was a troll? You have got to be kidding! You realize that destroying copyright destroys the value of copyright-protected commercial products and the monetary incentive to create them, don't you?
What, pray tell, is an "illegal download"?
Since everything is copyrighted (with the exception of public domain material) -- everything you download is copyrighted. The Web does not carry "copyright" information (except for some DRM material).
Some jurisdictions do have the concept (or can have) of an "illegal download". Here, child porn would fall into that class (as an example). So would some hate literature. Now, I don't really know what to do if I accidentally downloaded material like that. Erase it? Signs it had been erased would make me guilty... I imagine I would erase and overwrite it. Possibly, turn it in to local law-enforcement (depends on my relationship with law-enforcement at the time, I suppose).
Still, images, text, audio and video are all copyrighted on creation. Pray tell how you can distinguish a music track that may be downloaded (due to viral advertising) and one that may not?
Because of this, the onus must be on the party doing the copying (or distributing).
PLEASE, PLEASE get rid of the "illegal download" meme!
Just another "Cubible(sic) Joe" 2 17 3061
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 $500
they don't do it by pounds
there sure as shit do it by value of goods
my state for example
value of goods- law charged
0-200 dollars of value- it's misdemeanor shoplifting
200-500 fourth degree
500-75 thousand, third degree
shoplift 75 thousand or more, get second degree
every day http://en.wikipedia.org/wiki/Special:Random
I also don't think it's that contentious to claim that parts of our economy are dependent on copyright law.
Yes, parts of our economy are based on valueless commodities. To claim that that's a good thing, should continue, and should be propped up by the government damn well ought to be contentious.
Give me Classic Slashdot or give me death!
Multiply the number of times the song was downloaded from her by the nominal wholesale price of the song in the marketplace.
That's compensatory. It's all the actual revenue the record company lost.
Triple it to get punitive. That's an arbitrary rule that courts use, but it seems reasonable and customary.
This horseshit about tens of thousands of dollars per incident is a ludicrous abuse of the legal system, and constitutes cruel and unusual punishment.
It was generally commissioned by private collectors.
Public consumption of art skyrocketed with the invention of copyright.
Security is mostly a superstition... Avoiding danger is no safer in the long run than outright exposure. - Helen Keller
Who said that anyone has a right to a middle class livelihood? Do copyright holders, by some divine principle, deserve to be in the middle class?
SSC
I am likely late to the game/thread, but this whole situation stinks of big-money shilling. There's no way that this could have continued past 3 appeals and still have come up with 7+ digits in settlement. As far as I'm concerned, this smacks of the Jammie case being a corporate shill in order to further the RIAA/MPAA agenda. Using such an example they can prove that a relatively innocent individual can be found guilty of 5-digit-per-track-$ 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....)
That is the revenue they missed out on, that is what they should get. I understand this isn't a deterrent, but even $5-20 per song is a 500%-2000% penalty. Quite enough in my book.
http://teasphere.wordpress.com - A little spot of tea
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?
Ah, see, here's your problem: that road worker forgot to donate millions of dollars to legislators. A common mistake. Better luck next time.
Justice is about being fair to everyone - not the opposite.
This isn't about justice.
Tort law is about activity that does harm to one party, but does not rise to the level of criminal activity. The law in these sorts of cases is not seeking "justice" in the Old Testament, evil-deeds-must-be-punished way. It's seeking redress for a harm that has been done, not assigning guilt. When Chemical Co. X dumps pollutants into the river in violation of state law and gets sued into making payments to the victims, unless the company was criminally negligent, the goal is to assign a dollar value to the harm and essentially fix the harm. Sometimes a harm is so massive (children born with birth defects, for example) that assigning a monetary value to it seems repugnant, but it's the only practical means of efficiently obtaining resolution.
Generally speaking, plaintiffs don't go after those who can't pay. That's why in an airplane crash or building structural failure or similar event you'll hear about plaintiffs suing everyone they can find. They do so so the harms done to them can be redressed by someone; they don't really care whom. Again, it's not about intent and affixing of moral blame. It's about distributing resources as efficiently as possible, so the aggrieved party can be compensated and future damage can be avoided.
The damages awarded to a successful plaintiff also serve a signaling function to other parties who might be contemplating the same noncriminal but harmful behavior. The goal is not necessarily to enrich the plaintiff (because, as in this case, the plaintiff will never collect the awarded damages), but to show those who might be tempted to follow in the defendant's footsteps that it's a bad idea to do so.
Read the EFF's Fair Use FAQ
I like that idea, but allow me to play Devil's Advocate.
What does "fairly" mean, and who determines translation of that term into actual prices? Price it too high, and the government (or whatever body decides what is fair) is helping Big Media extort consumers. Price it too low, and the government is dragging down profits, thereby dragging down stock prices, thereby adversely affecting all of those organizations and individuals who invested in the various Big Media companies.
Read the EFF's Fair Use FAQ
To test your theory I have just stopped listening to Rihanna. hmmm - I detect no withdrawal symptoms whatsoever.