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Actual Damages For 1 Download = Cost of a 1 License
NewYorkCountryLawyer writes "In Real View v 20-20 Technologies, it was held that the actual copyright infringement damages for a single unauthorized download of a computer program was the lost license fee that would have been charged. The judge, in the District Court of Massachusetts, granted remittitur, reducing the jury's verdict from $1,370,590.00 to $4200 unless the plaintiff seeks a new trial. Something tells me the plaintiff will seek a new trial."
may or may not exist, if you even think a loss of hypothetical profit is damaging in the first place.
Sudden outbreaks of common sense?? If this is forbearance to 2012, BRING ON THE FUTURE!
There's a spot in User Info for World of Warcraft account names? Really?
Not sure I agree with that one as it's basically saying "steal the software until you get caught and then just pay what you'd have paid in the first place." I don't agree with the ridiculous million dollar charges, but perhaps 3x at least?
Does this mean that there is no cost to infringing on an open source license? If that's true, then there is no penalty to breaking an OSS license. This worries me.
Wait, I'm no expert on what goes on in a court room, but a jury actually came to a unanimous decision that $1,370,590 should be awarded for this case until the judge stepped in and reduced it?
If 10,000 people share a file, and you charge one person for "making available" 10,000 copies, then you cannot penalize those 9,999 other people. Either 10,000 people "made available" 1 file each, or 1 person "made available" 10,000 copies and the other 9,999 are innocent.
The way the studios have been arguing it, they'd be collecting fines on n^n copyright violations when only n copyright violations occurred.
Maybe downing should be the same way price + fine or price X times.
My understanding is that the jury's job is to decide any facts that are in dispute, such as whether someone did something. A judge decides matters of law, such as whether that something is illegal. I suspect in this case that the judge determined that the jury's verdict included matters of law, and therefore were outside the jury's scope.
re: "Something tells me the plaintiff will seek a new trial"
The judgement was from September 21st, and gave 20-20 until 29th to accept or seek the new trial.
Given that this is now 3 months ago, what did they actually do?
I know if the software was 4 grand and i pirated it, they did NOT lose a sale. It might even lead to a commercial sale down the road as i could honestly recommend it to a client or co-worker.
That sort of situation should be accounted for and non-profit piracy should not be prosecuted.
---- Booth was a patriot ----
"Something tells me the plaintiff will seek a new trial"... ...and what "tells" you that, apart from the nasty little Aspergic voice in your head?
This is pure, bigoted speculation, designed to whip the Slashdot basement-dwellers into a frenzy of greedy conjecture about "the death of copyright", and other favourite topics.
Will all the people who download infringing content, when the person sharing it ends up having to pay their license fees, receive the same support they would as if the downloaders had bought a licensed copy directly from the original provider of the content?
File under 'M' for 'Manic ranting'
I thought CC0 and other "dedication to the public domain" licenses constituted an abandonment of copyright. But software distributed under a copyleft license certainly doesn't have an abandoned copyright.
What is the rationale behind $1,370,590.00 ?
I don't have the time or patience to read all the legal gibberish, wondering if someone can elude me if:
a) The defendant took an unauthorized copy, and distributed it,
b) The defendant took an unauthorized copy, used it, and also distributed it,
c) The defendant took an unauthorized copy, and allowed others to retrieve it [and eventually used it]
Is "to make available" the same as "to distribute" ?
I don't think anyone was ever arguing that a downloader should pay hundreds of thousands of dollars in penalties for one download. On the other hand, uploaders are distributing the material to thousands of other people, and that's where you get hundreds of thousands of dollars in damages.
it's worth pointing out in this case what the reason was that prompted the jury to award such a high award in the first place.
Both of the plaintiff and the defendant in this case are software development companies. In both cases, they produce CAD software for home and home design use. In this particular case, the particular software packages in question were those for kitchen design.
Real view were developing a freeware CAD package which would be supported by premium-priced furniture, appliance and decoration add-ons. In contrast, 20-20, which was already a major player in this market, sold a fully featured package for $4200.
The infringement in this case was that real view had illegally downloaded a pirate copy of 20-20's flagship product, and then used that as part of their development process for their own product. In particular, they effectively cloned the GUI and a number of other features, so that users who had previously used 20-20's product could switch to the new real view product without retraining.
These companies (or at least whichever threw the first legal punch) seem to prefer to battle it out in courts rather than the marketplace. There is also a lawsuit between them about look and feel. Just taking a wild stab here, but this "unauthorized download" may have been just one company being unsuccessful at being able to purchase their competitor's product (so that they could get some ideas to copy), and downloaded a pirated copy instead.
The decision sounds somewhat reasonable. Forcing the infringer to become fully-compliant with licensing, at the standard going rate for licensing appears to be a good idea. It should have the nice side effect of reducing some of the ridiculous fees that the lawyers are looking for (which are far in excess of the defendant's ability to pay), reduce the number of these incidents (as it's no longer immensely profitable to run a law firm based off of this design), and force businesses to look at their models (in much the same way that Steam has helped reduced game piracy, perhaps a tweak on the business model might reduce this variation of piracy).
At the end of the day, you can't take money from someone who has none. *shrugs*
I am John Hurt.
Which has nothing to do with illegal file sharing and everything to do with industrial espionage. 20-20 couldn't prove that Real View stole actual code or reused it in a similar manner which was the crux of their case for loss. On top of that they refused to establish a factual loss due to competition that the product time that they went head-to-head over. I understand the judge setting aside the original verdict's value and I assume 20-20 will appeal but they need to bring something more than what they assume is obvious to the trial. Their expert testimony was lackluster and saying development costs "millions and millions" when you are a seriously established company and have records is just pathetic...
http://prokitchensoftware.com/ for reference as to what they stole. if you're running a business, you know presumably how the game is played. part of that game is licenced software, albeit many companies skirt this reality. its nice to see boris and leo (actual names of defendants) sticking up for sensibility in copyright, but as business owners i have no pity. the law exists for all business owners and arguably they would have done the exact same thing had someone plagiarized or stolen a kitchen design from them. if the defendants are reading, might i suggest giving open source drafting and design tools a whirl? gimp, blender, inkscape, Kerkythea and sketchboard are alternatives, although it means you'll not have an automated nail or screw calculator. if you're that large a firm, buy the software or support a project and request the features.
Good people go to bed earlier.
What about the cost of their hurt feelings?
1. Write a program, and offer it for a price
2. Have it shared on a torrent site
3. Sue
Do you have any evidence that any of those pirates would have paid for a license? And that's the crux of the matter.
No, the actual crux is the rule of law. If a law is broken there should be a punishment. What should that be in the case of software piracy? The cost of the software is a reasonable attempt at proportionality. Plus fines often have two components, the actual damages and the punitive damages. The later being purely to discourage such behavior. Perhaps the cost of a license should be considered punitive not actual, it matters only to accountants not the person whose pocket it comes out of.
None of the above should be interpreted to mean that our laws in this area are not antiquated, or flawed, and in need of an update. I'm just arguing that fining the infringer the cost of a license seems far more reasonable than some other methods of coming up with a number.
Hmm, stealing one thing by downloading it, or buying 7 PS3s and then 7 iPhones... decisions, decisions...
Excellent .
I wanted a program for Android and my friend offered to pay it with his credit card.
We tried and the information was either wrong for the page or incomplete.
We tried with another card. No luck...
I made a google search, the first result leaded to a link. In less than one minute I had the software running on my device...
The infringement in this case was that real view had illegally downloaded a pirate copy of 20-20's flagship product, and then used that as part of their development process for their own product. In particular, they effectively cloned the GUI and a number of other features, so that users who had previously used 20-20's product could switch to the new real view product without retraining.
Unless they have a design patent on the UI (like Apple has for many things), they don't have any legal standing. Of course, that's totally irrelevant to a copyright case anyways, unless they actually took the icons from 20-20's product.
A lot of the people downloading music illegally are probably living paycheck to paycheck. If you tell one of them they owe someone 1 billion dollars they can just laugh and go declare bankruptcy. The size of the number short circuits anything else. If you give them a number that's actually potentially within their means, say the cost of a Honda... say the cost of... THEIR... Honda... it feels like a much more real punishment. It's also a number not so easily dismissed by a bankruptcy court. It's probably also about 14 minutes worth of time from the RIAA lawyers, but that's really the RIAA's problem.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
The plaintiff lost a potential $4200 sale. That's the extent of their damages and that's what they should receive. If the law (or the court) deems it necessary to impose punitive damages, that's OK. But the plaintiff shouldn't see any part of those (other than compensation for attorney's fees, etc.) Punishment is an issue of public policy and its the public that should receive the benefit.
Have gnu, will travel.
Like it or not, protection of a work is needed to keep the creative process going.
That is false, was false and will keep being false.
That is true, was true, and will keep being true. The argument is over what level of protection, for which works, and for how long. If there was no protection, intermediaries wouldn't bother paying the authors at all.
Why don't statutory damages apply?
No, the actual crux is the rule of law.
"The rule of law" doesn't exist in this country. In order to have the rule of law, the law (as a whole) needs to apply to everyone, up to and including (ESPECIALLY) the government.
This is, plainly, not the case.
I like RMS, and I'm a huge fan of Free Software. I use Free Software, and unlike most of you armchair "does it run Linux" lazyasses, I actually WRITE Free Software. Moreover, I also prefer to say "Free Software" than "open source", and I believe that GNU/Linux is perhaps a bit redundant but certainly a fair way to describe many Linux-based systems. I value Free Software because it fosters the free exchange of ideas, facilitates innovation, saves on wasted effort, and with the GPL, it prevents corporations from "stealing" the code and profiting from it without sharing in the same way they acquired it. It's awesome, really.
But this philosophy that intellectual property doesn't exist is absolutely bullshit pedaled by people too stupid or lazy to have or appreciate an original idea.
Indeed, this philosophy and the GPL stand in direct contradiction. On the one hand, if you download software in violation of its licensing terms, then you haven't done anything wrong, because all you did was copy. Fine. But if you lock up GPL'd code in voilation of ITS licence, then you've done something awful? It's the same fucking thing!
Whether or not you believe that something "intellectual" can be "property," what you have in both cases is someone (or some aggregate entity) produced some software code (or another kind of work) and chose to license it in a certain way. What's the difference? Are they any different just because one decided to lable their stuff as "Free" (based on some narrow definition of Free)? I don't think so.
Part of the problem is that most of the people whining about this are looking for a free handout. They don't contribute anything themselves (except useless rhetoric, perhaps), but they suffer from the modern entitlement complex that makes them think that everyone else should work so that they don't have to. It's just the same as people who live their whole lives on welfare without EVER trying to get a job and contribute properly to society. IMHO, nothing entitles them to anything except to starve to death if they won't work. And the fact that they DEMAND that I pay taxes so that they don't have to lift a finger makes me loathe them completely. It's one thing if you CAN'T work. I'll gladly pay taxes to assist people who DID work, but were rendered incapable by injury. But for those who REFUSE to work and want to bitch at me because I don't want to share my paycheck with their stupid asses, they're a complete waste of oxygen.
The fact is, in order to create a useful, interesting piece of software, you have to learn and think critically, and spend a whole hell of a lot of time and effort and sometimes money writing code and testing and debugging. GOOD software is not free (gratis) to produce. So when someone does develop software (or some other artistic work), it is no longer merely an idea. It is no longer MERELY intellectual. Although you can copy it easily, it embodies a great deal of effort, which makes if tangible, and within some reasoable bounds, they should have the right to control how that tangible is disseminated.
Although YOU, as a freeloader, may be unable to appreciate the effort involved in creating an intellectual work, that doesn't nevertheless give you the right to steal it. Ignorance and stupidity are NOT valid excuses for violating someone else's rights. Just because YOU have never had an original thought doesn't mean that original thoughts roll off of other people entirely effort-free.
The basic idea is that to create something of value, you have to expend effort. (Although effort doesn't necessarily produce something of value.) Of course, since you've never exerted any effort, you won't understand that, but some other people will. If you were to break that relationship, then people would have no incentive to create works of intellectual property, and then you'd have nothing to freeload off of. I think that might be a Catch 22.
By actually expending effort and creating something of value, an individual is entitled to some
Actually, German authors made more money than British authors when Brits had copyright and Germans had no effective system. They also wrote more books, and the public had more books. Basically, in Germany, authors got paid bigger advances and their strategy was high volume, low margin. Getting to the market first was very important for them. In Britain, authors got smaller advances, and would depend upon royalties which would rarely if ever materialise, just like today. Books were more of a luxury item in that setting.
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Because for that 4200 they should have given support and had to do a whole lot of administration. Those costs were never made, were they?
I was promised a flying car. Where is my flying car?
This is the reason i switched to GNU/Linux with it's open source software years ago. It's moral.
It's legal. Sharing is encouraged. When i try to turn people on to this stuff, you can't give it away.
It's as if they like stealing better than using free stuff. Go figure.
"That is true, was true, and will keep being true"
That's so blatantly false that only the utmost ignorant or a damn lier would stand for it.
The written History of Humankind covers no less than 5000 years; intellectual property is a 500 year old concept at most, so for no less than 90% of History the "creative process" has kept going quite good without such "protections".
Besides, if your reasoning was correct, then intermediaries would have never paid authors before copyright existed. You may be surprised, but they actually did. So the author getting money from his work is not dependent on the existence of copyright. It never was, and it never will be. What's even more: an author can now eschew all those intermediaries and reach the public directly. And people actually pay. It may not be a great amount, but it helps people make do if they are good enough.
Of course, there is the historical comment above mine to take into account. It's funny when facts contradict your theories, isn't it?
I think tort law would cover the problem, nicely. Treble damages. If some guy is found with a library of pirated material, worth a thousand dollars, then he pays three thousand dollars. So - if someone actually went through all my stuff, and discovered all the stuff I've pirated, then I might be liable for - ohhhh - $150.
If they could examine the records of everything I've ever downloaded, and charge me for stuff I've since deleted, then I might be liable for a ballpark figure of $2 - 3,000.
And, if the world were suddenly to act that rational, I might even find myself agreeing with the law. Winning "settlements" of millions against working class people simply makes no sense, unless those working class people were financially profiting from the software, music, movies, or whatever.
"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
The rule is that you have to prove your damages to be awarded them. Unless they can prove that they've been damaged, I see absolutely no reason why they should be given a penny that other industries wouldn't get under similar circumstances.
Satan is getting out his snow shoes as we speak.
Great Intellect...
Check out Autodesk Home Styler, which is a little hosted Flash-based CAD package for home layout. Autodesk sold a kitchen design program over 10 years ago. There wasn't much volume in that, so now they have a free one, subsidized by having a library of items from major manufacturers.
It's a nice example of what Flash can really do.
If there was no protection, intermediaries wouldn't bother paying the authors at all.
Was Euripedes compensated for his work? Yes, he was, long before artificial copyrights were invented. No protection correlates well with creators being held in high regard and being well compensated, rather than the opposite you assert. Lots of authors died in poverty with the copyright only benefiting a corporation after their death. If there was no protection for them, they'd have been better off, not worse off. Copyright helps corporations, not creators.
Learn to love Alaska
The rule is that you have to prove your damages to be awarded them. Unless they can prove that they've been damaged, I see absolutely no reason why they should be given a penny that other industries wouldn't get under similar circumstances.
That wouldn't be hard at all. Remember, "prove" in civil cases is preponderance of the evidence, not beyond a reasonable doubt. If you're using the software without paying for it, you'd have to be pretty good at showing that you wouldn't be able to pay for it to tilt the case back in your favor.
The poster was complaining about semantics, not ideology.
Preventing you from obtaining something that you do not already have is not "stealing." In some cases it is still legally and morally wrong, but "stealing" is the wrong word.
"Stealing" is taking something from you that you do already have, and by that taking preventing you from using it.
So you can steal a car, but you cannot steal an idea. And making a copy of something I already have does not qualify as "stealing" anything from you, even if it is still illegal and punishable.
The legal definition of theft is clear, and copyright infringement is something entirely different.
"That is true, was true, and will keep being true"
That's so blatantly false that only the utmost ignorant or a damn lier would stand for it.
The written History of Humankind covers no less than 5000 years; intellectual property is a 500 year old concept at most, so for no less than 90% of History the "creative process" has kept going quite good without such "protections".
Excuse me! The photographs of cave paintings you took on your last vacation infringes on the copyrights of my great,great,great,great,great,great,great,great,great,great,great,great,great,great,great,great,great grandfather. Pay up now before I sick my lawyers in you.
Any insufficiently advanced magic is indistinguishable from technology.
I forgot to mention that without copyright there will be no incentive for said ancestor to create more cave paintings.
Any insufficiently advanced magic is indistinguishable from technology.
...was making the SW easy enough to install and use that someone could download it and start using it. Oracle never makes that mistake, which is why you can download anything you want directly from otn. They know you're going to call eventually...
In the case of infringement, actual damages are hard to prove (they're often speculative.. .how many lost sales?), so the law provides for statutory damages (if the copyright was registered appropriately.. no registration, no stat damages). This is no different than liquidated damages clauses in contracts (i.e. you stop paying your cell bill, we agree to charge you $X for the remainder of the contract and call it done, since we don't know what your actual usage would have been).
You, as a defendant, could argue that the stat damages are too high (example: if the copyright holder were giving away the material for free) and that it would be unjust enrichment or something like that, but that's going to be an uphill road for sure. The whole point of statutory damages is that you don't have to argue about speculative future stuff.
Basically, in Germany, authors got paid bigger advances and their strategy was high volume, low margin. Getting to the market first was very important for them.
Why would a modern publisher pay an author an advance without a copyright? Getting to market first isn't much of an advantage if the book can be scanned and the .epub is available on Mobilism later that week. Also, the author could turn around and sell his work without giving the publisher a cut.
Well, the creative process 500 years ago largely depended on either being wealthy enough not to have to support yourself via your creations or having a wealthy patron to pay the bills. What percentage of today's authors/inventors could continue to create full time under that model or a donation model? Also, a lot of works today don't rely on just a few man-years of labor. Drugs come out of a several hundred million dollar development/approval process and an equal amount of opportunity cost. Who foots the bill for that if Dr. Reddy can put put out a generic equivalent the same day your drug is approved?
Yes, but you don't automatically get the money just because the jury found that the software was infringed upon. Using the software isn't what gets you an award, it's the distribution bit. You would have to convince the jury that your damages happened to be the same as the sticker price and that's going to take some doing. The sticker price is what the customer pays, it's not necessarily going to be what you pocket unless you're not paying taxes and have no overhead.
What the ideal model for a modern author isn't all that clear. We've shoved copyright onto most of the world, so the best business model may have not yet arisen yet. It's quite likely that there wouldn't be a publisher at all in said model. The importance of publishers was due to the high costs needed to get a book to a wide audience, while that is far easier to do today.
This is my signature. There are many like it, but this one is mine.
Yep, publishers can take advantage of authors. Authors can (and do) self publish instead. Yet the authors that command the largest audiences have (so far) stuck with publishers. How do you feel about a self-published author's copyright? But books and songs are a small part of the market. The company that writes a piece of software gets most of the revenue, bestbuy got ~20% a few years ago and probably less today. Pharma companies (loathe them or hate them) keep most of the revenue from their patented drug sales; wholesalers keep a larger % from generics.
The Method of Calculating Copyright Infringement Damages:
1) Multiply # of illegal downloads by the last 4 digits of Defendant's telephone number for value A.
2) Divide value A by Defendant's Age for value B.
3) Multiply value B by 1000 for value C.
4) Multiply Defendant's weight by Defendant's Zip Code for value D. (For Zip codes that use a combination of numbers and letters, convert to Base-10 depending on the letter's position in the alphabet, then divide by a factor of 100)
5) Add values C and D together. The result is the total damages the Defendant has caused.
6) Sue the Defendant into eternal debt.
7) Cite previous court cases to support the damages claim.
8) Sing a paraphrased line from "Sixteen Tons": "When Saint Peter calls his name tell him he can't go, because he owes his soul to the Company Store....."
Knowing Google's lust for data collection, the Soviet Union is still alive and well inside the psyche of Sergey Brin....
How do you feel about a self-published author's copyright?
If his work is good enough I won't need to worry about that author's copyright: I will buy it. Actually, I already have: I've spend over 50 euros this Christmas buying copyrighted items. Of course having those items reasonably priced has helped a lot (see the $2.37M or so that the last Humble Indie Bundle has collected).
It can be argued that humanity under copyright laws has been far more creative than without copyright laws.
The creative explosion that has happened in the last 60 years may, or may not, have had something to do with copyright.
Bad argument.
Great masterpieces like the ones made by Michaelangelo will be made regardless of copyright. The law (or lack thereof) cannot stifle the truly great geniuses.
I'm not much of a visual arts fellow, so I cant speak about scupture or painting; but if you argue say Music, I posit that Masterpieces such as Zeppelin's "Stairway to Heaven" or Eric Clapton's "Layla" are every bit as worthy of the title of "Masterpiece" as anything Mozart or Chopin has done.
So great Art will be accomplished regardless of the legal system, but what about "Good Art", you know, the stuff that's better than average, but not quite as good as the masters? Example: Wheel of Time series.
Would the Wheel of Time series be written in a world without copyright? It's an absolute certainty that The Lord of the Rings and Narnia would be written, but I am not so sure that without an assurance of compensation that Jordan would have (or could have... he'd have to get a real job if Eye of the World was copied ad nausium) written such an expansive and engaging series.
My point is that copyright isn't set up to protect the truly great Art and achievements, but rather copyright protects the Mediocre to Good art, that we all enjoy on a daily basis.
Much of the advancement of civilization came before the invention of copyright. Many of the most important historical arts and sciences were done when the creator knew there was no copyright (in fact, most was done where the creator would not have had the copyright - Michaengelo's works were primarily work for hire where the de Medicis would have owned the copyright, not the creator). So anyone who can read a simple history book knows you are provably wrong (and those with an advanced understanding of history know history proves the opposite of your assertion).
Do you really want to compare how good the modern system is for fostering creativity compared to pre copyright/patent? The previous system didn't support many creators, mostly those who were independently wealthy or managed to find a patron. Also, paying Michelangelo and his assistants was relatively cheap. How many patrons of the arts today are willing to put a hundred million dollars into financing a movie or a video game, sheerly for the bump to their reputation and a copy of the finished work to put on the mantel? Much of the advancement of civilization came before copyright and patents, but most of the development of technology and the arts happened under (and was funded by) patents and copyrights. Pretty much all of modern medicine. Almost all of the books and songs ever written. Most of the tools, machines, and materials ever invented. Yes, people were creative before patents and copyrights, but not very many people got the chance to do it full time, because (for many reasons) there wasn't much money to be made off of creators, so no one paid them to be creative.
How do you feel about a self-published author's copyright?
If his work is good enough I won't need to worry about that author's copyright: I will buy it. Actually, I already have: I've spend over 50 euros this Christmas buying copyrighted items. Of course having those items reasonably priced has helped a lot (see the $2.37M or so that the last Humble Indie Bundle has collected).
So you're OK with copying self-published works as well. Would you have a problem with people taking games from the Humble bundle and selling them as their own work? How about someone's self published book that you didn't like?
Do you really want to compare how good the modern system is for fostering creativity compared to pre copyright/patent?
This is difficult to do, however, since you'll also have to account for differences attributable to unrelated factors such as literacy rates (it's hard to write for a mass audience if they can't read), publishing technologies (expensive scribes and expensive paper vs. cheap printing and wood pulp paper), whether there is a significant amount of leisure time (possibly with inexpensive sources of natural light so that there's something better to do during it than sleep), state censorship, etc.
So sure, modern medicine came about under a patent regime, but patents date back to 1474, while modern medicine probably dates back to, oh, Jenner, who did his groundbreaking work on vaccination in 1796. And we still had all sorts of nonsense -- patent medicines, in fact! -- well into the 20th century, and we've still got all kinds of 'nutritional supplement' snake oil out there. Again, you can't give the credit simply to the existence of a patent system. It may have helped (or not -- and note also that the strength of patents waxes and wanes as the courts see fit; for much of the 20th century, patents were not all that enforceable, and thus not all that valuable or useful) but it's only a factor, and probably not even the most important one.
With regard to creative works, I'd say that the most important factor for the flourishing of creativity in recent history has been freedom of the press.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
If a law is broken there should be a punishment.
Sounds like something a computer would say. This is the kind of stupid over-generalized nonsense that the zero-tolerance people espouse, with disastrous consequence. Stop trying to control the universe. If a punishment is needed so be it, but not every law that is broken needs a punishment. Not every law that is written even needs to be a law.
Yes, it certainly can be argued that way but I happen to prefer, say, Cervantes to Clancy or Monteverdi to Beyonce any day of the week.
I quite prefer Jordan to Cervantes and Zeppelin to Monteverdi.
In that case the law in broken when you are convicted. Until then I can download all I want
So if every song ever made is available in youtube, and I can download a youtube song as an MP3 ... then how did I pirate the music ?
You didn't. On Youtube, much of what you see are derivative works. Dancing babies, weddings, street dances, etc, are derivative, in that something new was created, using something from the original work.
On the other hand, Vevo seems to be a licensed distributor of soundtracks and videos on Youtube. And, there seems to be an assumption that when I click on the link, I'll view it one time, and one time only. Like most people, I save the video if I like it. Seems reasonable to me.
"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
As much as I fucking hate pirates and everything they stand for, I have no problems agreeing with your proposal. The only problem is that, while you can reduce the punishment of pirates to something more reasonable, you can't improve on the ratio of pirates that are caught or the certainty of their guilt.
I don't see how the Slashdot/anti-copyright crowd is going to be any more accepting of the same investigative methods just because the punishment is more reasonable.
If you could guarantee that, along with the reduction in punitive damages for piracy, there could be millions more convictions, better accuracy in identifying guilty parties, and orders of magnitude less cost per each conviction (ie. court and lawyer fees), only then would it work. Without it, the treble-licence-cost money won't cover the cost to discover and identify pirates, and to double check that they have the right person (confirming IP addresses, MAC addresses, checking confiscated storage drives etc).
As it is, I see the ridiculous damages costs primarily as deterrents, to counter the fact that there are millions more pirates who aren't being caught. And despite all the attention being paid to these few unlucky individuals, anti-copyright zealots still complain that no one can be sure of their guilt, IP address != a person etc. Improve the rate at which pirates can feasibly be convicted, and convict with enough accuracy to please the anti-copyright zealots (which, I'm sorry to say, is probably impossible, even if the pirates confessed), then we can talk about the practicality of reducing the fines.
You have to prove the damages within reason.
If someone pirates a piece of software, it's reasonable to assume they did so because they really needed to use that software. After all, if they could easily have used a cheaper/free alternative, they wouldn't have pirated it (assuming pirates are logical, rational beings; being criminals, they're obviously not. But it's the courts that have to be rational, not the criminal). Therefore, it's reasonable to assume they would have otherwise bought the software licence.
To believe otherwise (as your post suggests) is to make ridiculous assumptions and force copyright holders to prove a negative. It's like saying you can't prosecute a bunch of vandals who threw Molotov cocktails at your house and burnt it down, because you couldn't prove that you weren't going to burn it down the next day in a cooking accident anyway.
... whatever the theft deprived the owner of. That can include the inconvenience of not having the car when the owner needs to make a beer and pizza run. It includes the damage to the car (if it gets returned). If never returned, then it is the whole replacement cost. It's the same for stealing any other tangible property.
For software, music, or movies, there is NOTHING that the DOWNLOADING of prevents except for the potential loss of business from that ONE downloader ... or more if they then share it with others. But even if Alice downloads something and then shares it with Bob, the loss of potentially selling this to Bob can at best be split between Alice and Bob. It makes no sense to claim the full loss against Alice who share it with Bob, and to also claim the full loss against Bob for downloading it from Alice.
And this overlooks the notion that not everyone would buy it if that was the only choice. Lots of people have downloaded many MILLIONS of dollars worth of content and software, so there's no way in hell that can be considered anywhere near a million dollars in loss.
If the content (and software) industry wants to sell these things to me ... a BSD/Linux user ... then they need to be marketing it to me and my part of the market (BSD/Linux users), with copies/versions that work on my BSD or Linux computers. If it can't work on my computer, then I'm not in the market they target. If it happens to be that the pirate copy DOES work, but THEIR copy won't, it's still the same ... they never INTENDED to sell to me, so there is ZERO loss if I don't buy it and just download it instead.
NewYorkCountryLawyer might grin, though, if he were to see the demand for admissions I would serve on THEM if they sued me. There would be items like "Admit that plaintiff has not marketed a Linux compatible version to the Linux market that defendant is in". :-)
now we need to go OSS in diesel cars
The earth is 4.6 billion years old, not 5000.
Just make reasonable F***ing licensing cost and sales would be up and piracy down.
Copyright infringement devalues a product, and therefore it is stealing.
Right now, Da Vinci's Mona Lisa is in the millions. If it could be duplicated 100%, then the world would be filled with Mona Lisa paintings, and the value of the painting would become near zero.
What was taken was VALUE. Copyright infringement devalues a product.
When people were creating stuff and there was no copyright, they either had another profession or where sponsored by kings or leaders.
In addition, creation at that time was a solo process, mostly.
Nowdays, many hundreds of people work full time on each video games and movie. If they lose that income due to piracy, they would be unemployed.
See "take" is the word you don't understand.
If you still _have_ "it" whatever "it" may be, then it hasn't been "taken" from you.
I am serious, please go read up at http://dictionary.die.net/take and contemplate.
Now go read http://dictionary.die.net/copy and contemplate.
Copying is not taking, it's copying.
In the absence of "take" there is no "theft".
I know, ideas this simple can be hard to fathom.
So yes, if I _took_ those bits and bytes from you I would have engaged in theft. But you still have them, so I didn't take them. I copied them. This is a different thing. If words have any meaning in law (that hyperbole of course, the the specific meaning of words is the entire exercise of law) then copying cannot be theft.
See how take and copy are different?
So now, if your position is honest, we are in complete agreement. If I took from you it would be theft, but I copied from you so it was not.
As to your "identity theft" argument, in that case, the act of copying your vital details is not the crime, you give those away all the time. The acto of "stealing your identity" is the crime. In that case I would be taking "your good name" by using it to its detriment and leaving it damaged. i.e. by using your credit up, by selling off your hard-earned reputation to by 74 big-screen televisions and leaving you on the hook, I actually took something from you. You were factually deprived, and likely you will have to expend time to straighten things out and people will want to attach your money to regain their own because they think I was you.
If I "stole your identity" and did great works with it, enriching the poor and feeding the hungry, you probably woudn't consider it "identity theft" unless it maid your syndicate bosses suspect you weren't the criminial they needed.
See, in terms of trading on someone else's name, the definition of "to use up" is widely variable because the the inherent "loss" or "deprivation" is very subjective.
But "lost money" is very objective, so for my copying to in any way "deprive" you of your money, you needs _must_ be able to demonstrate that my act "used up" and therefor "deprived" you of money to claim monitary loss from theft. In the cases where some guy was selling bootlegs on the street, his gain is measurable loss maybe.
No such loss is in evidence when some 13 year old is watching a grainy hand-held-camera-in-a-theater version of random aneme flick over eDonkey.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
... So - if someone actually went through all my stuff, and discovered all the stuff I've pirated, then I might be liable for - ohhhh - $150.
If they could examine the records of everything I've ever downloaded, and charge me for stuff I've since deleted, then I might be liable for a ballpark figure of $2 - 3,000.
And, if the world were suddenly to act that rational, I might even find myself agreeing with the law....
The issue I see here is that if this law would be in effect, 95% of all people can be considered criminal. I think almost everyone has somewhere somehow a piece of movie, mp3 or software that he didn't pay for. If 95% of a population is criminal according to a law, then that law must be wrong, not the population.
"At issue here is the jury's award of $1,370,590 in damages
to 20-20 arising from Real View's illegal download of 20-20
Design version 6.1, which Real View then relied upon in
developing its competing software. "
That's not some kid downloading autoCAD for his science project. It's more related to espionage and software patents.
I do not believe in karma. "Funny"=-6. Do good and forbid evil. Yours, Oft-Offtopic Flamebaiting Troll.
So, you're saying that because it's hard to enforce the law (laws bought and paid for by "rights holders"), that justifies draconian punishments? That, because there are a million pirates not caught for every pirate caught, then the one who is caught should pay for the million others?
Makes a twisted kind of sense, I guess. Since there are millions more speeders who get away with speeding, than there are people caught speeding, the courts should impose penalties of tens of millions of dollars on people caught ten mile over the speed limit.
Yeah, I'm sure we can all get on board with that.
"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
See, there's the problem. Piracy should never have been made a criminal matter. It's properly a civil matter. Enforcement isn't the province of ICE. It is the responsibility of the copyright holder. The matter is properly dealt with in civil court. What we have today is simply insane.
"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
for no less than 90% of History the "creative process" has kept going quite good without such "protections".
For 90% of history we didn't have mortgages, property taxes, or otherwise had to compensate somebody else just for the privilege of existing. Living off the grid is essentially illegal.
I can't be depriving anyone of taxes while benefiting from the system if I wouldn't have paid them anyway, right?
No, the actual crux is the rule of law.
No, the actual crux is whether that law is ethical or not. The simple fact that something is a law does not mean that the law is ethical or moral. Dogmatic following of the law is no different than dogmatic following of a religious mandate. If they were to suddenly make privacy illegal would you go along because the law said so. Would you have insisted that Rosa Parks go to the back of the bus because the law said so.
Would you have a problem with people taking games from the Humble bundle and selling them as their own work? How about someone's self published book that you didn't like?
Nice, you start mixing economics and authorship. I consider authorship something to be preserved, but authorship doesn't bring money to your table. Doing a good work does: when I develop software for an organization i get paid for the software itself, not for being its author. Of course you may argue that both are conjoined, but that won't happen if I'm hired to maintain someone else's software... and I will still get paid for my work. But I get paid once, not a thousand, a million times.
Even more: a company I worked for keeps selling the software I developed, making a profit on it and my authorship isn't recognized. As authorship is already not being recognized and already being profited from, what's your point about it?
Oh, and yes, I'm alright with copying self-published works too. But perhaps private copy being a right in my country colours my view of the issue.
The rule of law requires the law to be respectable. It ceased to be so when it became for sale for the highest bidder. Trying to substitute fear for respect simply makes the law from disrespectable to outright despicable, making breaking and helping others break it at every opportunity not only acceptable but in fact a moral duty.
None of this is exactly news, but I guess that those with an authoritarian bent simply can't accept that there are limits to every form of power.
Forget magic. Any technology distinguishable from divine power is insufficiently advanced.
.... just when I thought that all judges were complete morons... Who would have thought... (Okay - so it isn't really sane, since most people wouldn't have bought the sh*t they will download, but it's a lot better than the ludicrous numbers they usually spout...)
"Well, the creative process 500 years ago largely depended on either being wealthy enough not to have to support yourself via your creations or having a wealthy patron to pay the bills"
Tell that to Homer, Cervantes or Shakespeare.
On the other hand, today it's still exactly the same. Where it took a pharaoh to rise a pyramid now it takes a Sony executive to rise a pop star. Of course the motivations are different but my position stays the same: creativity flourished without the modern kind of "artist protection" (which is not even that: even a superficial analysis shows that it is "big entertaiment corporations' protection") so modern-style "artist protection" is not a must but a current condition.
"Also, a lot of works today don't rely on just a few man-years of labor."
Neither did building a pyramid or Roma's Colisseum.
"Drugs come out of a several hundred million dollar development/approval process"
Drug companies work the way they work *because* of current conditions (which is no wonder), conditions they themselves have heavily contributed to make up (again, no wonder once someone considers 'qui prodes') which is far to mean that's the only way it could work (hint: the XIX century Germany was the modern chemical industry father and world leader under quite disadvantageous patent/copyright environment by modern standards but they pursued their interests *even* in the face of that).
"The earth is 4.6 billion years old, not 5000."
Good luck finding a Trylobites memories from those days (and those would just be about 650 m.y.o, not 4.6 aeons).
"When people were creating stuff and there was no copyright, they either had another profession or where sponsored by kings or leaders."
So what? Are you implying that Sony sponsoring has nothing to do with Beyonce's success? Or is it that you think that Bach being a mere church organist badly affected his production?
"In addition, creation at that time was a solo process, mostly."
The dean of Rome's St Peter's basilica would probably dissent. Or you can ask Shakespeare about how badly he needed a theater company backing him to meet ends.
"Nowdays, many hundreds of people work full time on each video games and movie. If they lose that income due to piracy, they would be unemployed."
Of course they would. Under current conditions. So what?
The invention of the refrigerator would unemploy all those ice sellers oh, noes, let's forbid fridges!
"I quite prefer Jordan to Cervantes and Zeppelin to Monteverdi."
Your choice. But even then, the mere existance of Monteverdi obviously probes that there's no necessity of "modern artist protection" for art to exist.
On the other hand, "modern artist protection" (which is in fact "big entertainmet corporations' protection") can be shown to adversely impact artists. Do you think is per chance that the end of the era of great simphonic composers coincides with the raise of the recording companies?
I seem to remember Jesus copying the loaves and fishes and distributing them, putting hardworking bakers and fishermen out of work. But the story is told as an example that sharing is good.
What? Are you seriously arguing that damages should be calculated from what one is able to pay?
A small scenario:
Person A is using a pirated copy of Microsoft Office.
Person B is using Libre Office.
Person C is using a pen and paper.
All of them have real jobs, and as such, none of them are able to show that they aren't able to pay retail price for Microsoft Office.
All three paid the same amount of money to Microsoft (i.e. zero).
All three are able to use Microsoft Office, and need to do the same office-type work. As such, they are all three potential customers. The lost potential sales is three Microsoft Office licenses.
Please explain to me, how A, B and C being able to pay for MS Office licenses is going to prove anything about how much actual damage to Microsoft that A has caused by downloading a pirated copy of Microsoft Office, rather than using one of the other solutions like B and C.
So if I pirate a DVD player program, play legally owned DVDs with it, you are going to sue me to take away my happiness for the X amount of hours I spent using the software? I'm not even going to bother asking how you determine the value of X, assuming the crack prevented the program from phoning home.
Believe it or not, this is a solved problem. How do you reimburse people for damages that usually can't be undone ? This problem was solved, oh about 2000BC (it's used in old testament texts) : It's why damages are awarded in money. You're supposed to provide the damaged party an amount in money equivalent for the suffered loss. So if you pay somebody $5 for watching your car and he drives it off a cliff, he doesn't buy you a new car. Rather he pays you in dollars for your loss, as determined by a neutral third party, the judge. How much if your rich fiancee was in the car at the time ? Determined by the judge.
For both of your X'es, if not known (through some legal means, like someone testifying), the judge will simply let both parties give their opinion on the matter, and pick one (why pick one ? To make it more likely that both parties say something reasonable. If you say 0 as a defendant, or $100 billion as a plaintiff, you get stuck with whatever the other party pins on you. Get it ?).
I realize these things are probably not going to satisfy you. But let's face it, I don't think you'd settle for anything other than "steal away" (I think steal is justified here, since you're more than likely to have the same opinion on things like vendor contracts (like cell phone), employment contracts, actually hacking to bypass a payment on a site, ... Essentially that you know perfectly well it's wrong, and don't care about your own legal obligations. Needless to say, that won't fly in court (three guesses why).
In fact I think this is the whole problem : you think that just because you can you should be allowed to.
Nice, you start mixing economics and authorship. I consider authorship something to be preserved, but authorship doesn't bring money to your table. Doing a good work does: when I develop software for an organization i get paid for the software itself, not for being its author. Of course you may argue that both are conjoined, but that won't happen if I'm hired to maintain someone else's software... and I will still get paid for my work. But I get paid once, not a thousand, a million times.
Even more: a company I worked for keeps selling the software I developed, making a profit on it and my authorship isn't recognized. As authorship is already not being recognized and already being profited from, what's your point about it?
Copyright and the market mix economics and authorship - I'm just bringing it up. Without copyright, there's no rule against stripping the author's name from a work. As it stands, GPL and other licenses that preserve authorship without preserving distribution rights are built off of copyright/patent laws.
Why should all copyright laws and creation/compensation models be tailored to your work-for-hire model? Authorship may not be a big deal for you, but is certainly a big deal for anyone whose career depends on reputation with a mass audience. And while you may get paid once, many authors do get paid by the number of copies sold. The issue of authors being ripped off by distributors isn't a copyright issue, it's a contract issue. Until you create an even more restrictive copyright system than the current one, one that mandates a certain percentage of the gross goes back to the actual human authors of a work, it will remain a contract issue. Do you want even more restrictive copyright/patent laws? I support minimum wage laws, I'd like to see them replaced with living wage laws, but I don't see minimum percentage laws for copyright as being workable. My country recognizes the right* to make a private (archival) copy. Like a lot of other rights in the USA, the attached asterix has been taking a bigger and bigger bite out of the "right" over the past decade. My idea of an ideal copyright would be 20 years for free, with up to another 20 years available for a nominal annual fee or a small % of the gross, whichever is greater.
Copyright and the market mix economics and authorship - I'm just bringing it up.
Oh, but the market didn't create copyright. The British Crown did, to keep printers checked. That it taxed the right to copy was a nice side-effect that quickly outgrew its mandate and turned into a lobby that managed to keep it going when the Crown found no more use for it.
As has already been said, Germany had more works created without copyright than Britain with it, in the same period. The breakaway North American colonies hurried to abolish copyright, thus making all continental production a free-for-all. That they later reinstated it says more about their printers' lobby power than their respect for it.
Contracts, as you say, keep being leonine, so little has changed with copyright. The entities persecuting copying aren't author guilds but industry associations, which clearly outlines who are the ones really not winning money over this whole deal. Of course there are weird chimeras like Spain's SGAE which include both editors and authors, but certainly you will see the senselessness of a union that includes both employers and employees: it really is a union of employers with employees thrown just to hide the fact.
But you are worried about stealing the authorship of a work, so I will show you an example of how it works: say you are a japanese manga artist who writes a successful manga series. In fact, it is so successful that it spawns anime recreations and sequels. And, suddenly, someone produces a a movie that is suspiciously like yours, which isn't too surprising since they learned coloring techniques from you when you were creating the manga. Do you get royalties or even acknowledgement? No, you don't, and if you dare speak you will probably get hammered with lawyers. So much for copyright protection.
No, the actual crux is the rule of law. If a law is broken there should be a punishment. What should that be in the case of software piracy?
Being forced to pay for a $2400 software license that you would have never paid for in the first place? The company is $2400 richer than if the piracy had never taken place, and the defendant is $2400 poorer. Lawyer's fees excepted, where the individual always loses to the corporation.
What I am attempting to communicate is that when people created art for free, it was not an occupation that their survival depended on.
Your examples rather reenforce my view than change it. Shakespeare needed a theater company? that's what I am talking about: he could not live solely on his works.
No, the actual crux is the rule of law. If a law is broken there should be a punishment. What should that be in the case of software piracy?
Being forced to pay for a $2400 software license that you would have never paid for in the first place? The company is $2400 richer than if the piracy had never taken place, and the defendant is $2400 poorer. Lawyer's fees excepted, where the individual always loses to the corporation.
If you do not want to enrich the corporation do not use the corporation's software, licensed or pirated.
"What I am attempting to communicate is that when people created art for free, it was not an occupation that their survival depended on."
And my point is that this is absolutly false. A *lot* of people had their earnings depending on their artistic acumen.
And, in the end, my point again is that I don't give a damn.
Real artists will pursue their vocation even on the face of the most extreme situations, as History already demonstrates (Cervantes, the brightest novelist of whole History, happening to be an excelent example, if you take the time to learn about his biography), so there's no need for society to pay for any stimulus, much less in advance.
"Shakespeare needed a theater company? that's what I am talking about: he could not live solely on his works."
He certainly made a live from his works. The point is that he didn't make a live enterily on his own, which is exactly what almost anybody else does (or do you earn your feed just by your own?) *and* he didn't manage to work for a year and live from that credit for the rest of his life and then 70 years after his death (arguably, did Shakespeare lived today, he would have written "Romeo and Juilet", lived from the benefits for the rest of his life and never thought about writting "Kind Lear"... after all, what for?).