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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?
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.
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.
jury selection ensures only the most idiotic housewives/unemployed/dullards/rednecks will serve. if you have a brain and can think for yourself, they don't want you. if you dare let on you know about jury nullification, they kick you out.
they want jurys to be dumb.
and we get the justice system that we 'encourage' via this.
not really a surprise. judges tell the juries that the judge is the only one to interpret the laws; but that's just not true at all.
still, given how tends to get allowed to sit on the jury, I'm not sure JN is all that helpful. but I still find it offensive that the US justice system allows JN but won't allow it to be mentioned!
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"It is now safe to switch off your computer."
If you RTFA, the judge concludes that the jury based the 1.3 million actual damages on loss of revenue. The judge basically ruled that the loss of revenue was not proven to be caused by the illegal download.
This doesn't apply to the RIAA because as has been stated in other comments, if the copyright is registered, the penalty is no longer limited to actual damages.
3x is what everyone else gets, why not say 3x at least and at most.
I once had a van full of electronics installation gear, which, while parked, was plowed into by a drunk driver in a rainstorm (water damaged most of the tools and contents before the mess could be cleaned up). I had to take the matter to court and prove he was over the legal alcohol limit to drive, before I could get punitive damages. Just to qualify for that 3x multiple, I had to prove extra circumstances applied, and those extra circumstances amounted to a criminal level of guilt, as it would be in a criminal case, not just simple responsibility as in a civil case. (Note, technically I still didn't have to meet the reasonable doubt test for the drunk driver to be considered responsible in a civil case, but I did have to show somebody, whether a full court actually prosecuting him or just a cop making out an accident report and bothering to do a breathalizer test and subsequent arrest, had determined his responsibility exceeded simple responsibility before I could qualify for punitive damages).
So why does a special privilege exist, letting the software creator seek damages many times higher than 3x? Why does somebody like me have to prove criminal negligence, or other fully criminal level of responsibility, while various copyright holders have a special private law that means they only have to prove a lesser standard such as'willfulness', and why does 'willfulness' sometimes multiply the already ultra-high damages by 5x, not just 3x?
I want a special law like these guys get - one that lets me really discourage people who through illegal acts, damage my property. Of course, all I was trying to discourage was a drunk who blew 0.31 on a breathalizer and was estimated to have been driving 60 MPH in a quiet residential neighborhood, at the time school was just letting out, and who had 9 priors, and who somehow still had enough money to buy another car after the last accident and seemed to think he could just pay for simple damages and keep it up forever. But the courts in their infinite wisdom have decided that needs less discouragement than that hideous and abominable crime of pirating software.
Who is John Cabal?
So why does a special privilege exist, letting the software creator seek damages many times higher than 3x? Why does somebody like me have to prove criminal negligence, or other fully criminal level of responsibility, while various copyright holders have a special private law that means they only have to prove a lesser standard such as'willfulness', and why does 'willfulness' sometimes multiply the already ultra-high damages by 5x, not just 3x?
It's called the "Golden Rule". As in, "Them what has the gold, makes the rules."
They paid good money for that law.
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
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.
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.
Please, please take the time to (re)educate yourself regarding the function and purpose of individual jurors. Although many people believe as you do that:
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.
...this is most emphatically NOT the truth.
If you'll visit the FIJA website (Fully Informed Jury Association), it is explained in plain and easily understandable language why a jury has the right and duty to sit in judgment of the law as well as the/any disputed facts.
That said, do not tell the judge or lawyers that you have this knowledge. Otherwise you risk getting sidelined from the process, put under a bench warrant which makes you unable to sit on a jury or inform any other jurors of their rights and duties. I know this because it happened to me.
"...there are some things that can beat smartness and foresight. Awkwardness and stupidity can." ~ Mark Twain
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...
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.
It's the big out-in-the-open secret - everyone knows about jury nullification, but the first rule of jury nullification is you don't talk about jury nullification.
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?
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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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.
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.
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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.
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.
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