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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.
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?
Except that breaking an OSS license isn't infringement, because it's not copyrighted; it's a breach of the contract under which the software is licensed, which I imagine would be covered by punitive damages. IANAL, so take with a grain of salt.
To benefit from statutory (as opposed to actual) damages, you have to register your copyrights.
Most open source software, while copyrighted under the Berne Convention, doesn't have a copyright registration certificate emitted by the government, so it's just actual damages.
That's why the RIAA registers their copyrights - instead of actual damages, they can claim statutory damages of $150,000 per copy.
So just to be clear. You support the idea that a white jury could nullify a murder conviction against a white man accused of killing a black man because the members of the jury think it's ok for a white man to kill a black man? Because that's exactly what happened numerous times in the south during the civil rights movement. Jury nullification sounds good on the surface until you turn around and apply it to the ugly situations that you don't want to talk about. And the reality is that those ugly situations are going to be far more common than the just situations.
We shouldn't be nulifying laws in the jury box, it's should be done at the ballot box, if more people took seriously their electoral responsibility and communicated with their elected representatives and worked inside the system these things would change. But when the only ones talking about copyright policy are those groups who benefit most from an authoritarian version then don't be surprised when that's what you get.
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.
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?
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
"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".
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.
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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.
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.
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