Slashdot Mirror
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.
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
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!
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.
not based on a per-song basis. charge what the songs cost on a retail (or equiv) basis. there shold NOT BE A MULTIPLIER EFFECT going on.
that's the problem people keep missing.
remove this multiplier crap. that does not work and there is no 'pay a higher pentalty' for having an album's worth of songs vs just 1.
if the act is wrong, punish the act.
they don't lock you up for shoplifting based on how many POUNDS of material you stole. or what its square yardage is. why are people so willing to accept the per-song penalty multiplier?
songs cost what they cost (lets save that for another debate). if I 'stole' 10 songs and they go for a dollar each, that's $100. and yes, for a regular person, that's a lot of money and will make them think twice about doing this again (or rather, getting caught). but it will NOT ruin them for life with lawyer bills and riaa bills.
no multiplier for songs. get that solved right off.
the actual penalty is a fixed amount. I don't care what that is, but at least its the same amount and one that can at least be rationally discussed.
--
"It is now safe to switch off your computer."
What if I make $100 per song selling your songs, and you lose $500 in sales because I undersold you? Still $50/song then?
So someone who accidentally shares their music library for a couple days...
Should not be in court at all, since there is no intent to commit a crime or violate copyright.
Is showing an explicit intent to both violate copyright by copying AND distributing, and since it is torrent, is probably profiting in some other way (getting files in exchange that he would otherwise have to pay for).
50k?
It does not matter what anyone comes up with. Truly. The fact is, even without the current Great Depression we are in, that the average amount of savings and assets that people have is FAR less than what any judgement will award, even one that may be considered fair like 50k. Additionally, garnishments (which means more resources used by the RIAA to setup) are determined by judges, not the RIAA. So that 1.5 million dollar judgment can sit there for next 2,500 years being paid off at $50 per month because that is what the judge feels you can reasonably pay.
For the vast majority of people though this means bankruptcy. To my knowledge, very few types of debt and judgments are not exempt from bankruptcy. With the MAFIAA's death grip on congress that most certainly can change though, but will still ultimately be unproductive.
Bankruptcy is not necessarily the end of the world either. It will hurt your credit for sure, but you cannot be forced to pay them off with a credit card, and you can choose what debt to pay on an ongoing basis the last time I checked. So even during and after bankruptcy you can continue paying your credit card bill or your car payment without penalty.
People can cash their paychecks directly for cash, prepay credit card balances, set up automatic payments to utilities the day after their ACH deposit is made, prepay utilities, etc. There are dozens of different ways to escape judgments.
Ironically, the rich are even better at it, and less likely to be hit with a copyright infringement judgment. Why torrent, and file share, and all that nonsense when you can spend hundred or thousands of dollars per month at $1 per track buying music through easy to use, virus free, interfaces? Stupid child gets their rich parents hit with a judgment? Good luck. Deep pockets are more often that not very well protected pockets. The RIAA would probably get a settlement for 5k-10k, but 1.5 million from somebody truly rich? Doubtful.
What I find so funny about this, is that the average RIAA target is probably being nudged towards bankruptcy anyways with all the bullshit going on right now.
The discussion on /. usually steers towards what is fair and right, but I don't see pragmatism. Unless the fine itself is less than $1,000 it might as well be $1 billion.
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 $500
they don't do it by pounds
there sure as shit do it by value of goods
my state for example
value of goods- law charged
0-200 dollars of value- it's misdemeanor shoplifting
200-500 fourth degree
500-75 thousand, third degree
shoplift 75 thousand or more, get second degree
every day http://en.wikipedia.org/wiki/Special:Random
Multiply the number of times the song was downloaded from her by the nominal wholesale price of the song in the marketplace.
That's compensatory. It's all the actual revenue the record company lost.
Triple it to get punitive. That's an arbitrary rule that courts use, but it seems reasonable and customary.
This horseshit about tens of thousands of dollars per incident is a ludicrous abuse of the legal system, and constitutes cruel and unusual punishment.
I am likely late to the game/thread, but this whole situation stinks of big-money shilling. There's no way that this could have continued past 3 appeals and still have come up with 7+ digits in settlement. As far as I'm concerned, this smacks of the Jammie case being a corporate shill in order to further the RIAA/MPAA agenda. Using such an example they can prove that a relatively innocent individual can be found guilty of 5-digit-per-track-$ 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....)
This is the main point. Copyright infringement is not a crime. Repeat after me: "Copyright infringement is not a crime". It is a civil matter.
There should be no automatic court imposed penalty because it is not a crime. It is a civil matter. If the complainant wishes to sue for punitive damages then they can. Otherwise, the court should award based on damages. How those damages are calculated is dependent upon the suit.
The problem here is that the RIAA's team of lawyers successfully argued that their damages were in the $1.5 million range. I don't agree with them. Many people don't agree with them. But the court decided otherwise. It's too bad.
Should we have a cap on damages? Hell no! Why would we? If you burn down my house, but you are an otherwise nice person I should still be able to sue you to replace my house. Even if you did it by accident. Burning down my house by accident is not a crime. I'm not punishing you. I'm trying to replace my house.
Copyright infringement that is done by accident can also create damages. You *should* be able to sue for those damages. If I am an author and send a book to a publisher then I can reasonably expect to be paid. If in some incredible fluke of the universe the publisher distributed my book by accident but didn't receive any money for it, I *should* be able to sue them -- even though it was an accident. There shouldn't be one law for businesses and another for ordinary people; even if those ordinary people are very nice people.
It is reasonable to assume that someone seeding a file for a few hours does less damage than someone seeding at high speed for a year. IIRC though, the RIAA has argued that the distribution of one file is equivalent to the distribution of multiple copies -- because then others can further distribute the files. This is a ridiculous argument -- I can be held responsible for my own actions, but not for the actions of others. I think this is the basis for the huge award and it is just as wrong as having a cap on the award.
Arguing for a cap on penalties runs right into the arms of the RIAA. They *want* to make copyright infringement a crime so that they don't have to pursue damages themselves. They can sick the police on people instead. Creating a fine based system enables their logic.
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