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Repeat Infringers Can Be Mere Downloaders, Court Rules (torrentfreak.com)
A 10-year-old copyright case has prompted an interesting opinion from a US appeals court. In determining the nature of a "repeat infringer" (which service providers must terminate to retain safe harbor), the court found these could be people who simply download infringing content for personal use. The case was filed by recording labels EMI and Capitol against the since long defunct music service MP3Tunes nearly a decade ago. The site allowed, among other things, the ability to store MP3 files and then play it remotely on other devices. The site also allowed users to search for MP3 files online and add them to MP3Tunes service. This is what the recording labels had a problem with, and they sued the site and the owner. TorrentFreak adds: The case went to appeal and yesterday the 2nd Circuit Court of Appeals handed down an opinion that should attract the attention of service providers and Internet users alike. The most interesting points from a wider perspective cover the parameters which define so-called 'repeat infringers.' [...] Noting that the District Court in the MP3Tunes case had also defined a 'repeat infringer' as a user who posts or uploads infringing content "to the Internet for the world to experience or copy", the Court of Appeals adds that the same court determined that a mere downloader of infringing content could not be defined as a repeat infringer "that internet services providers are obligated to ban from their websites." According to the Court of Appeal, that definition was too narrow. "We reject this definition of a 'repeat infringer,' which finds no support in the text, structure, or legislative history of the DMCA. Starting with the text, we note that the DMCA does not itself define 'repeat infringers'," the opinion reads. Noting that 'repeat' means to do something "again or repeatedly" while an 'infringer' is "[s]omeone who interferes with one of the exclusive rights of a copyright," the Court of Appeals goes on to broaden the scope significantly. [...] The notion that the term 'repeat infringer' can now be applied to anyone who knowingly (or unknowingly) downloads infringing content on multiple occasions is likely to set pulses racing. How it will play out in practical real-world scenarios will remain to be seen, but it's certainly food for thought.
and if I shoplift a rack full of CD's it's just one change of shoplifting.
Just wait until they find infringing content on a server that supports HTTP byte-range requests. Just using a download manager to get a single file could be 10-15 counts.
[Fascism Intensifies]
When you give government all these powers to do all this social-engineering and other crap, you can expect that they will be corrupted and conspire against the people with those with wealth and power in the private sector. It's human nature and why the founders did not want the government having the sort of scope and power it does today. The results speak for themselves.
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
First, technically, it's difficult to identify a leecher or someone who only downloads - due to the nature of file transfers and how the various protocols work, you can easily discover uploaders and download complete copies from them (e.g. by finding Napster hosts, bittorrent seeders, etc., and then blocking transfers from everyone except your 'target'). To discover a leecher, however, you have to be a seeder or host and wait for them to download the file from you. And with so many other seeders out there for any file, that doesn't happen often.
Second, even if you did manage to get someone to download the file from you, if you're the copyright owner or acting on the copyright owner's behalf, you put the file online for public distribution! So the downloader can easily argue that they have at least an implied license from you, and they actually obtained a legal copy. Ooops.
Third, even if somehow you get over those two hurdles, a leecher actually can use the "a download only costs 99 cents, so the actual damages due to my infringement are tiny" argument to mitigate the label's giant statutory damage request. This doesn't work for uploaders who are distributing copies, as a distribution license typically costs tens or hundreds of thousands of dollars, depending on the work (Michael Jackson paid about $45k each for the distribution licenses for several hundred Beatles songs back in the 1980s, for example). But a mere downloader isn't distributing to anyone.
And finally, though it would be illegal and unethical, if you were accused of downloading something, you could rush out and buy a copy of it with cash, and then claim you were just legally format shifting (albeit by proxy). Maybe your proxy that you got it from is liable for infringement due to their distribution, but if you can legally rip your own CDs for archival purposes, then simply using someone else's drive (and computer, and network connection) to do it shouldn't create liability for you.
So, yeah, could a label go after a mere downloader for infringement? Absolutely, and that's always been true. Are they going to do so, and potentially spend millions knowing they're going to run into those four potentially insurmountable barriers? Hell, no. Not when moviebuff6969 is seeding 50 films on bittorrent.
Disclaimer: I am an IP lawyer, but I'm not your IP lawyer. This is not legal advice, but is purely for (my own) entertainment purposes.
Because copyright law is bunch of crude analogies hacked together that used the physical encodings of information as a proxy for a creator's financial interests in a work. It worked great in the age of print when mainly you were talking about books which were cheap to mass produce but expensive to copy.
But today, conceptualizing an author's rights to a work as a monopoly on copying leads to nonsensical results. Suppose I download a song to the same computer twice, as can easily happen. Technically because the thing I did wrong was copying, I infringed *twice*; however it hardly does twice the harm to the author's interests. On the other hand if I copy that song once but listen to it a thousand times, you could reasonably argue I'm doing more harm to the author's interest than if I downloaded it a thousand times but *never* listened to it.
It's all just a way to get content creators paid; a ridiculously complex and arcane way, but it's familiar because it's traditional. You can't expect it to make sense, especially by trying to draw subtly different analogies.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Copyright isn't stealing. Since property rights are the rights to control a scarce resource, they cannot apply to "creative" works since they are not source. It would make no sense to have property law if there was unlimited land with identical value. If I took a fruit from a fruit vendor but the basket had infinite fruit, he cannot claim I have done anything wrong.
Copyright law itself is a violation of property rights. It tells people that they cannot use their pen and paper to write a copy of someone else's work. It forbids people from writing certain data to their hard disks.
For a more complete explanation of why property rights for "creative" work makes no sense, see: The Case Against IP: A Concise Guide or Against Intellectual Property (73-page Book).
"No man's life, liberty, or property are safe while the legislature is in session." -- Judge Gideon J. Tucker
Abandonware and right to repair need to fixed as well.
Hell there have been places that have bought out the rights IP of some place and then they go after people who are selling repair parts / shunting down websites with free repair guides. Some even want people to pay aging for software that own just to be able to run it in a VM on newer hardware.
The entire reason Jammie Thomas-Rasset was ordered to pay $222,000 was because she purportedly uploaded 24 songs to thousands of people. She was distributing the songs without a license from the copyright holder - something Copyright law expressly prohibits. In other words, by using copyright law crafted to stop wholesale copyright infringement, Capitol Records cast Ms. Thomas-Rasset as the mastermind of a bootleg music business and won a judgement of $222,000 against her. That judgment effectively indemnifies people who downloaded music from her uploads. She paid for the crime, not her "customers". When you shut down a counterfeit CD ring, you do not then go after the people who bought the illegitimate CDs.
If you throw all that out the window and instead argue that it's the act of downloading a song which is infringement (which current copyright law does not support), then this becomes really easy. Each downloader becomes liable for a single copy (the one they downloaded). And an appropriate fine would be, say, 3x or 5x the cost of buying the song from a legitimate source. So about $3-$5 per song. Frankly I think that's a much more sensible approach to copyright enforcement than ruining people's lives and depriving them of Internet service because they shared some music files.
But I suspect the *AA is going to want their cake and eat it too, and want to assess hundred-thousand dollar judgments against downloaders as well. This is a slimy and illogical (should be illegal) tactic of turning n crimes into n^2 crimes. If 10 people share a file and each copyright violation costs $100, then there are a total of 9 illegal copies made, and the total damages should be $900. But by the *AA's nonsensical reasoning, each person is responsible for 9 counts of copyright violation, so each person should pay $900, resulting in $10,000 in damages awarded. The math simply doesn't add up - they'd be getting $10,000 in court awards when the law has determined that they've only suffered $900 in damages.
You can't have it both ways. Either one person is liable for all the copyright infringement and you can ruin them financially. Or each person is responsible for a single copyright infringement (the file they downloaded) and you can only fine them a few times what it would've cost to buy the file legitimately.