Patents and copyrights are quite dissimilar, save for their underlying rationales.
However to register the copyright, and obtain the legal benefits that come with it, costs about $30. This is one case where I think lowering copyright registration fees would be beneficul to the the mid-size and little guy.
As a copyright lawyer, I completely disagree. In fact, I think that we should raise the bar by requiring more and stricter formalities, and offer very little, very brief protection for works which have not be properly registered.
This is because while the bar to copyrightability can be relatively low in the overall scheme of things (you should see what you have to go through to get a patent), if there is no bar, then copyrights will be granted to works which do not deserve them.
Copyrights harm the public in order to provide a greater benefit to the public. So long as the net outcome is beneficial, it's okay. Granting copyrights willy-nilly is not a good way to ensure a beneficial result; works which would have been created, disseminated, and used without any additional encouragement by the government do not need this encouragement. After all, why should the public accept being harmed where that harm will not be outweighed by a benefit? They're benefiting for free, in the cases of works which need no incentive.
Setting a bar in the form of copyright formalities is a way to seperate the wheat from the chaff, in this case, to seperate out works where the author is willing to take a relatively small step in order to get a copyright, and works where he doesn't care.
Seriously: if you wrote a book, and thought you'd never make more than $30 from it in its entire copyright term, would the copyright really have provided an incentive to you to create it? If you thought it would make a million dollars, however, the $30 would be a trivial investment that only an idiot wouldn't make.
Right now, too many things are being copyrighted. Your/. posts, for example are copyrighted. But why? Does that really benefit the public? Does it benefit you? I think that the answer is no, and therefore there's no reason to grant you a copyright automatically.
So long as the formalities are minor but present, they serve a useful function in effectively restricting copyrights to authors that are willing to be serious about their work. They don't harm the little guy.
Personally, the formalities I'd like to see are these: * Filing fee (mainly just to cover costs of the Copyright Office) * Formally filing for copyright * Deposit of best copies * Deposit of supplemental information if required by Copyright Office in order for future users to be able to make meaningful use of the work (e.g. source code for software, but likely not manuscripts for books) * Including copyright notice in copies * Renewals every few years to maintain the copyright, so that if the author eventually stops caring about preserving a monopoly, the public can benefit rapidly. This would tend to solve the abandonware and orphaned works problem, as well as prevent copyright from lasting too long for works with an inherently short lifespan (e.g. t-shirts for New Year's Eve 2000).
Look, there are limits on one's ability to work around a patent in that not only is doing the exact same thing as described in the patent is infringing, but so is doing substantially the same thing, in substantially the same way. Someone who specializes in patent law could probably tell you how great of a difference you'd need, but the sorts of working around being described here certainly seem to be flirting with being equivalents.
You certainly live on an interesting planet. I wonder why you left it to come to ours.
Litigants had to argue for their inventions to be patentable before there could be any ruling. And the literal text of the Patent Act does require that patents be granted for eligible software, business methods, etc. just as the Copyright Act requires copyrights to be granted for eligible user interfaces (although the statute is utterly vague about the exception for the utility doctrine, so the courts can't be blamed for trying to guess as what Congress meant by it; no one else knows either). It's judges that are following the statutes written by Congress that brought us to this point, such as the rather conservative Federal Circuit.
In any case, conservative judges frequently wriggle around the literal text of laws just as much as anyone else. If they didn't, they would have held long ago that copyrights on anything other than writings (paintings aren't writings, for example) are unconstitutional. And that's but one example. What you're arguing for is literalism, and there are virtually no literalist judges, because people recognize that the laws are not written so clearly as to make that an acceptable judicial philosophy. We have judges so as to have humans making important decisions and interpretations, rather than just blindly following rules. To argue against the use of their faculties is to argue against the concept of judges entirely. That's pretty foolish.
people are considered guilty in a legal sense when proven "beyond reasonable doubt" that they are guilty
That is true, but only in a criminal trial.
There are two kinds of cases: civil and criminal. Anyone can be the plaintiff in a civil suit, but only the government can be the prosecutor in a criminal suit. Laws can make offenses punishable civilly, criminally, or both. A civil litigant sues in order to get money from the defendant, or to get injunctive relief such as a court order requiring the defendant to do things or not do things, as appropriate. The government prosecutes criminals in order to punish and rehabilitate them by means of fines, imprisonment, forced labor, etc. and to protect the public from them. In a civil suit, the issue is whether the defendant is or is not liable; guilt is not a concept relevant to such cases. It is only in a criminal trial that the issue is whether the defendant is guilty or not.
And, importantly, in a civil suit, the typical standard of proof is 'a preponderance of the evidence' (which means if something is more likely than not, it is true). In a criminal trial, the typical standard of proof is 'beyond a reasonable doubt' (which means if there are no reasonable alternatives to something, it is true). N.b. that in both cases, mere possible alternatives are not good enough. They have to be probable alternatives civilly, or at least reasonable alternatives criminally.
There is a big difference between civil and criminal cases. But both exist, and you would do well to realize that.
Not much. It would not be likely that the city itself downloaded this stuff, so they'd win their case (unless some sort of secondary liability theory worked against them and the 11th Amendment wasn't useful for them, which I'd have to think about).
This is really just about probability.
If you own a car, and you are almost always the one who drives it, then when that car is in a hit and run and the victim sues, he has a good case against you, since it was probably you that did it. If you habitually let other people borrow the car, to the point where other people (en masse) drive it more than you do, then it probably would not have been you, and the plaintiff will have a much harder time suing you.
WAPs are the same way: if the owner is the primary user, then we can assume that things done on it are probably done by the owner. If other people are the primary user, then we can't. For ordinary home WAPs, the owner as primary user is a safe bet. For WAPs set up in public areas for public use, it was likely someone else.
Mere slight possibilities that it was someone else are insufficient. We're looking for who probably did it (51% or more), not who possibly did it (49% or less).
No, it appears that a plaintiff, Paramount, is suing the defendant. That means it's a civil trial. They likely got an ex parte court order to seize the evidence so that it could not be tampered with (e.g. by deleting the files). This court order was then executed by the police, but that doesn't make it a criminal matter. Paramount could've just as easily used hired goons.
Besides, it's virtually always the federal government that brings criminal cases for copyright infringement; they would not involve local police, but would instead use the FBI or Secret Service.
Where did you see mention of warrants? The article and post only mention seizure.
Lastly, what's with the sic? It is indeed criminal trials that use that standard. I used the word correctly, as a contraction, not a possessive. Perhaps this will help you out.
I thought that large scale copyright infringement was indeed a criminal offense, where does it change from being civil offense only to criminal?
It doesn't change; that would be silly.
Rather, some minor infringement is only civil, and then above a certain threshold, it becomes both a civil and criminal offense (much in the same way that going around hitting people with a stick is both kinds of offense).
The thresholds are:
1) Willful infringement of a copyright for commercial advantage or financial gain (including the gain of anything of value, such as trading for copies of other works, in particular warez trading boards)
2) Making or distributing copies of 1 or more works in a 180-day period, where the sum total retail value of all of the works in the period is over $1,000.
There are some other ones as well, but these are the main ones. And frankly, these thresholds are not all that high.
if the law is both civil and criminal, shouldn't the companies then be required to prove actual damages instead of statutory ones? (In a criminal case that is.)
Only the government can bring and prosecute a criminal case. And they aren't interested in damages, which is good, since they can't get any. Instead, they can get fines and jail time for the defendant.
Really it's not the police, it's the plaintiff. The police are just the agents being used to ensure that the evidence is safeguarded for the case (for both sides) and not altered in the time period between when the defendant is notified of the case and when the request is made for him to hand them over as evidence for inspection.
And if there really is no trace whatsoever, not even with forensic inspection of the disc, and the defendant isn't the sort of skilled user that could still get around that, if they likely wouldn't be sophisticated enough to download, or wouldn't want to, then you're right, A probably didn't do it. Barring something so clear cut, it could go either way, depending on the circumstances. This is what juries are for -- to decide these things.
Really, unless you can catch someone red-handed in the act of downloading (ie a police bust a guy whose computer is in the middle of uploading some infringing material), there is just too much uncertainty to deliver anything but not guilty.
No. First we are not talking about guilt or innocence. We are talking about whether they are liable or not liable. Second, certainty is not required. We're talking about the preponderance of the evidence standard: if it is even marginally more likely that A did it, then that's enough. There can still be significant uncertainties as to whether or not he did it, it just has to be most likely that it was him. A 51% likelihood is enough. The higher standards are not relevant in civil infringement cases.
Heroine, eh? Well, I would certainly be surprised to find a heroine in anyone's luggage, especially since you don't really see people with luggage large enough for your average-sized heroine these days. Carryons are quite popular.
Well, bear in mind that there are two different sorts of things here.
A civil case is about money or injunctive relief (i.e. having the court order someone to do or not do something). These cases are brought by other people, businesses, etc. For example, if you hit me, I can sue you so as to get money from you to pay for the harm you caused me.
A criminal case is about imprisonment, generally. These cases are only brought by the government, which has the discretion as to when it will or will not prosecute. For example, if you hit me, the government could try to have you put in jail for it. However, they would not try to also have you pay me for the harm you caused.
The US is pretty friendly to plaintiffs in civil suits with regards to jurisdiction, standards, awards, etc. However, we are very protective of defendants in criminal cases, in that we are willing to give them free lawyers, juries, require the government to prove the defendant broke the law beyond a reasonable doubt, etc.
And as others pointed out, there is far from universal support for the death penalty. I myself oppose it completely, and I think it is unconstitutional.
Everybody here seems to be saying: "Well, I believe he did it, he should hang". Nobody seems to think how ludicrous it is to pursue ordinary citizens for these kind of punative damages.
They're not punitive damages; those are not available in copyright cases. However, I agree that a) ordinary people should not generally be able to run afoul of copyright law, by reducing the scope of what's illegal so that it isn't the kind of thing people often engage in, and b) that the statutory damages are excessive.
I imagine a lot of people here are more familiar with the tradition of awarding genuine DAMAGES, i.e. compensation for DAMAGE done, for civil wrongs.
And these are indeed damages. There are no punitive awards in copyright. However, Congress has set up a system of statutorially defined damages because they favor copyright holders above infringers, and want to offer the former an easy to use system to calculate damages. Working out actual profits and damages is relatively difficult and is felt to be inadequate to protect copyright holders sufficiently.
For example, if A made one unlawfully made copy of one CD, a suit by RIAA for the retail price of a CD, even plus costs and reasonable fees, is too minimal to be worth pursuing. OTOH, if A can get away with it by being judgment proof, RIAA can be nickeled and dimed to death. Congress does not care for that, so they provide more effective remedies against A.
It is quite similar to worker's comp, in which employees who are injured on the job can get pre-set amounts of damages awarded to them, rather than wasting court time litigating each and every case. The general concept of statutory damages is pretty well entrenched. Even I don't have a serious problem with the idea. I might dislike the amounts, or who they are applied to, but I don't think we could have an effective system without them. Given that they have long been a mainstay of the copyright system (e.g. the 1790 Copyright Act had statuory penalties of 50 cents per sheet, IIRC) I don't think they're going anywhere.
The idea of punishing people for things determined on the balance of probabilities is deeply repugnant.
I disagree, although civil suits are really more about redressing harms.
By civilised standards, if the intention is to punish then this should be made a crime with all the safeguards for the accused that that entails.
No. Not everything wrong should be criminalized; copyright infringement is a good example. Additionally, victims cannot cause their wrongdoers to be prosecuted, and so should not lose the opportunity to discourage wrongdoers from future wrongdoing, in cases where ordinary redress is insufficient deterrence.
As a lawyer, I imagine you already appreciate how appallingly bad your legal system is.
No, I don't. I think that the system is generally pretty good. There are specific areas of law that I would like to see improved, but generally I like the civil/criminal divisions, the allocations of burdens, the requirements of advocates for each side with a neutral judge, binding precedents, common and statutory law, and so on.
Quite true - but here we are talking about ignorance of the technology, not the law.
Reread the earlier post:
Are you trying to tell me that the courts expect Joe Sixpack and Jane Boxwine to understand the civil and criminal implications of buying a Linksys router at Best Buy and just plugging it in?
It's not illegal to have an open WAP. However, there may be legal consequences that stem from this course of conduct. And to the extent that there are, it doesn't matter whether or not you knew that there were.
Still this is beside the point: the main issue is that when you have an open WAP, it is easy for people to mistake you for a third party downloader and for you to be unable to practically escape this case of mistaken identity. Plus, that even assumes there is a third party downloader; there are those who will run an open WAP so as to blame an imaginary third party for the things they are actually doing.
The legal system expects everyone to abide by the law. If they do not, ignorance of the law is no defense.
In a case where A sets up an open WAP, and B uses it in an illegal fashion, then the appropriate defendant is B; A hasn't done anything wrong. However, where enough evidence points to A as more likely being the culprit than B, A is the one that is liable for what has happened. This is because as far as the courts can figure out, A actually did it. Remember, the courts aren't perfect and they aren't psychic. Sometimes they punish the wrong person.
So yes, if you have an open WAP, you are exposing yourself to liability because it generally appears that traffic to that WAP from the ISP is your traffic, and not someone else's. You certainly are not protecting yourself; that comes from locking it down so that the only person using it is yourself, and you then don't break the law.
I think your confidence in the decision of factfinders in civil trials is utterly misplaced. They have to do the best with what they have, and the standard is low, and quite friendly to the plaintiff. A mere 51% chance that it was the WAP owner and not someone else, and that's sufficent.
No, that's a situation where it would be a criminal matter, and the higher standard would apply. In any case, my post was not about my point of view -- it was about the reality of how these civil copyright cases work. Perhaps there is a flaw in it, but that is a flaw in the system, and not merely in my reporting on it.
What makes you think that the numbers are the product of something else? Why can't it be arbitrary?
In fact, statutory damages for copyright infringement in the US are arbitrary. They range from $750 - $30,000 ordinarily, rarely go as low as $200, and can fairly easily go as high as $150,000. And that's per work infringed, not the number of infringements (i.e. make a million copies of a movie, and it only counts once; make one copy each of two movies, and it counts twice).
Even where only the minimum amount (almost inevitably $750 per work) is claimed by the plaintiff, multiplying this by a large number of works (e.g. 100 songs is $75,000) can still be very significant to individuals.
Regarding proof, this is a civil case, not a criminal one. While the plaintiff (not prosecutor) has to prove that the defendant infringed, he merely has to show that it is more likely than not that the defendant infringed. Open WAPs aside, the person who uses your WAP most is likely to be you, especially if you don't show that it was in fact someone else, that the files were never on your system, etc. I'm plenty sympathetic here, but honestly, I think the odds are at least marginally in favor of the perpetrator not being a third party, and that's all it takes to satisfy the relevant standard.
There really is no such concept in civil copyright infringement cases. Remember, the standard of proof is a preponderance of the evidence. So long as it is even slightly more likely than not that the person with the WAP did it, as opposed to some mysterious other person, that is sufficient proof that he did do it. It's criminal trials prosecuted by the government that use the higher standard of beyond a reasonable doubt. That is not the standard used here.
Additionally, courts are aware that defendants may engage in behavior, knowing what the outcome is likely to be. Willful blindness, such as you suggest, is pretty obvious and does not help people get off the hook.
It's possible that you are thinking of the legal system as a mechanism that is not intelligent, and can be gotten around through cleverness. That is not the case. People are involved in the system at every step, and often they are more clever than you, and have a dim view of amateurs trying to manipulate them. Basically, if you would see through such a ploy, or if you think other intelligent people would, you should expect that your opponents in a legal battle would.
What's funny about your condescending post is that I'm Jewish and know a tiny something about the Torah.
Typically when people talk about the Torah, they mean the books in a sefer Torah or chumash; Christian Old Testaments include other materials, as does the Tanakh. I will grant that sometimes it's used in a more expansive sense, to cover both the written and oral law, however.
Still, even if you want to deal with the Tanakh, many Christians have added materials to their Old Testaments which are not in the Tanakh. Catholics, for example have added several books. Therefore it's impossible for their Old Testaments to be considered subsets of the Torah. Even where the books are the same, they may be reorganized and combined or split up such that they are not really the same as the Tanakh. The lack of a standard Old Testament amongst Christians makes absolute statements such as the earlier person's incorrect.
It would've been nice if you had checked that out and known something about what you posted before you did so.
Still, just the lyrics is not the entire song. You aren't including the notes, the tempo, the instruments, etc.
As noted elsethread, copyright law is quite specific in saying that the lyrics are covered.
Lyrics are copyrightable subject matter, but the relevant issue with regards to fair use is how much, and how important, a portion of the overall work was used. Lyrics can be a work all by themselves, but when written together with their accompanying music, they're often considered to be a single work. Therefore, just using the lyrics would be just using a part of the work, not all of it.
certainly you could make a pretty good argument on the "transformative" criterion
Not unless you're creating a new work out of them. For example, if you took the lyrics to a song, and choreographed them as interpretive dance, that would be a transformative use. Just putting them on a web page is not transformative.
and to qualify as fair use, you need to meet all the criteria they set.
Absolutely wrong. All that is required is that the use be fair. Defendants are not required to 'win' on all four factors, nor do they, typically. In fact, you could win on just one (most likely that there is no impact on the market for the work), as the analysis is one of equity, not mechanically adding up the factors and deciding in favor of whoever has the most on their side.
Fair use covers quoting small portions of a work, not "quoting" the whole thing.
That is incorrect. Fair use permits any otherwise infringing act, so long as it is fair. While one of the four factors typically used to determine whether a use is fair or not has to do with "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" it is not determinative by itself. All the factors play a part, and the question is whether the use is ultimately fair or not. It is entirely possible to have a fair use that involves reproducing an entire work. For example, when time shifting or space shifting are fair uses, they involve reproducing the entire work.
While you're correct that a product designed to search for lyrics probably isn't covered under Fair Use, that's only because it doesn't need to be -- it would only need to be covered under fair use if it copied at least some of the lyrics, and that doesn't seem to be the case here at all. Here, it seems to be purely a matter of helping people to find lyrics -- which they might then copy, and it might then be illegal; but they might not copy them, and even if they do, it might well be legal (e.g. on songs that no longer fall under copyright).
Again, incorrect. There are several forms of third party liability under copyright law, where one party can be held responsible for the infringements of another, due to the former's involvement. This is how Napster, for example, was liable for infringement and shut down; because it was responsible for helping its users to infringe, even though Napster too essentially only produced some technology. You should read the Napster and Grokster cases for more on third party liability with regards to copyright.
Slashdot Mirror
Patents and copyrights are quite dissimilar, save for their underlying rationales.
/. posts, for example are copyrighted. But why? Does that really benefit the public? Does it benefit you? I think that the answer is no, and therefore there's no reason to grant you a copyright automatically.
However to register the copyright, and obtain the legal benefits that come with it, costs about $30. This is one case where I think lowering copyright registration fees would be beneficul to the the mid-size and little guy.
As a copyright lawyer, I completely disagree. In fact, I think that we should raise the bar by requiring more and stricter formalities, and offer very little, very brief protection for works which have not be properly registered.
This is because while the bar to copyrightability can be relatively low in the overall scheme of things (you should see what you have to go through to get a patent), if there is no bar, then copyrights will be granted to works which do not deserve them.
Copyrights harm the public in order to provide a greater benefit to the public. So long as the net outcome is beneficial, it's okay. Granting copyrights willy-nilly is not a good way to ensure a beneficial result; works which would have been created, disseminated, and used without any additional encouragement by the government do not need this encouragement. After all, why should the public accept being harmed where that harm will not be outweighed by a benefit? They're benefiting for free, in the cases of works which need no incentive.
Setting a bar in the form of copyright formalities is a way to seperate the wheat from the chaff, in this case, to seperate out works where the author is willing to take a relatively small step in order to get a copyright, and works where he doesn't care.
Seriously: if you wrote a book, and thought you'd never make more than $30 from it in its entire copyright term, would the copyright really have provided an incentive to you to create it? If you thought it would make a million dollars, however, the $30 would be a trivial investment that only an idiot wouldn't make.
Right now, too many things are being copyrighted. Your
So long as the formalities are minor but present, they serve a useful function in effectively restricting copyrights to authors that are willing to be serious about their work. They don't harm the little guy.
Personally, the formalities I'd like to see are these:
* Filing fee (mainly just to cover costs of the Copyright Office)
* Formally filing for copyright
* Deposit of best copies
* Deposit of supplemental information if required by Copyright Office in order for future users to be able to make meaningful use of the work (e.g. source code for software, but likely not manuscripts for books)
* Including copyright notice in copies
* Renewals every few years to maintain the copyright, so that if the author eventually stops caring about preserving a monopoly, the public can benefit rapidly. This would tend to solve the abandonware and orphaned works problem, as well as prevent copyright from lasting too long for works with an inherently short lifespan (e.g. t-shirts for New Year's Eve 2000).
Look, there are limits on one's ability to work around a patent in that not only is doing the exact same thing as described in the patent is infringing, but so is doing substantially the same thing, in substantially the same way. Someone who specializes in patent law could probably tell you how great of a difference you'd need, but the sorts of working around being described here certainly seem to be flirting with being equivalents.
You certainly live on an interesting planet. I wonder why you left it to come to ours.
Litigants had to argue for their inventions to be patentable before there could be any ruling. And the literal text of the Patent Act does require that patents be granted for eligible software, business methods, etc. just as the Copyright Act requires copyrights to be granted for eligible user interfaces (although the statute is utterly vague about the exception for the utility doctrine, so the courts can't be blamed for trying to guess as what Congress meant by it; no one else knows either). It's judges that are following the statutes written by Congress that brought us to this point, such as the rather conservative Federal Circuit.
In any case, conservative judges frequently wriggle around the literal text of laws just as much as anyone else. If they didn't, they would have held long ago that copyrights on anything other than writings (paintings aren't writings, for example) are unconstitutional. And that's but one example. What you're arguing for is literalism, and there are virtually no literalist judges, because people recognize that the laws are not written so clearly as to make that an acceptable judicial philosophy. We have judges so as to have humans making important decisions and interpretations, rather than just blindly following rules. To argue against the use of their faculties is to argue against the concept of judges entirely. That's pretty foolish.
I don't think that would work, due to the doctrine of equivalents in US patent law.
people are considered guilty in a legal sense when proven "beyond reasonable doubt" that they are guilty
That is true, but only in a criminal trial.
There are two kinds of cases: civil and criminal. Anyone can be the plaintiff in a civil suit, but only the government can be the prosecutor in a criminal suit. Laws can make offenses punishable civilly, criminally, or both. A civil litigant sues in order to get money from the defendant, or to get injunctive relief such as a court order requiring the defendant to do things or not do things, as appropriate. The government prosecutes criminals in order to punish and rehabilitate them by means of fines, imprisonment, forced labor, etc. and to protect the public from them. In a civil suit, the issue is whether the defendant is or is not liable; guilt is not a concept relevant to such cases. It is only in a criminal trial that the issue is whether the defendant is guilty or not.
And, importantly, in a civil suit, the typical standard of proof is 'a preponderance of the evidence' (which means if something is more likely than not, it is true). In a criminal trial, the typical standard of proof is 'beyond a reasonable doubt' (which means if there are no reasonable alternatives to something, it is true). N.b. that in both cases, mere possible alternatives are not good enough. They have to be probable alternatives civilly, or at least reasonable alternatives criminally.
There is a big difference between civil and criminal cases. But both exist, and you would do well to realize that.
Not much. It would not be likely that the city itself downloaded this stuff, so they'd win their case (unless some sort of secondary liability theory worked against them and the 11th Amendment wasn't useful for them, which I'd have to think about).
This is really just about probability.
If you own a car, and you are almost always the one who drives it, then when that car is in a hit and run and the victim sues, he has a good case against you, since it was probably you that did it. If you habitually let other people borrow the car, to the point where other people (en masse) drive it more than you do, then it probably would not have been you, and the plaintiff will have a much harder time suing you.
WAPs are the same way: if the owner is the primary user, then we can assume that things done on it are probably done by the owner. If other people are the primary user, then we can't. For ordinary home WAPs, the owner as primary user is a safe bet. For WAPs set up in public areas for public use, it was likely someone else.
Mere slight possibilities that it was someone else are insufficient. We're looking for who probably did it (51% or more), not who possibly did it (49% or less).
No, it appears that a plaintiff, Paramount, is suing the defendant. That means it's a civil trial. They likely got an ex parte court order to seize the evidence so that it could not be tampered with (e.g. by deleting the files). This court order was then executed by the police, but that doesn't make it a criminal matter. Paramount could've just as easily used hired goons.
Besides, it's virtually always the federal government that brings criminal cases for copyright infringement; they would not involve local police, but would instead use the FBI or Secret Service.
Where did you see mention of warrants? The article and post only mention seizure.
Lastly, what's with the sic? It is indeed criminal trials that use that standard. I used the word correctly, as a contraction, not a possessive. Perhaps this will help you out.
I thought that large scale copyright infringement was indeed a criminal offense, where does it change from being civil offense only to criminal?
It doesn't change; that would be silly.
Rather, some minor infringement is only civil, and then above a certain threshold, it becomes both a civil and criminal offense (much in the same way that going around hitting people with a stick is both kinds of offense).
The thresholds are:
1) Willful infringement of a copyright for commercial advantage or financial gain (including the gain of anything of value, such as trading for copies of other works, in particular warez trading boards)
2) Making or distributing copies of 1 or more works in a 180-day period, where the sum total retail value of all of the works in the period is over $1,000.
There are some other ones as well, but these are the main ones. And frankly, these thresholds are not all that high.
if the law is both civil and criminal, shouldn't the companies then be required to prove actual damages instead of statutory ones? (In a criminal case that is.)
Only the government can bring and prosecute a criminal case. And they aren't interested in damages, which is good, since they can't get any. Instead, they can get fines and jail time for the defendant.
Really it's not the police, it's the plaintiff. The police are just the agents being used to ensure that the evidence is safeguarded for the case (for both sides) and not altered in the time period between when the defendant is notified of the case and when the request is made for him to hand them over as evidence for inspection.
And if there really is no trace whatsoever, not even with forensic inspection of the disc, and the defendant isn't the sort of skilled user that could still get around that, if they likely wouldn't be sophisticated enough to download, or wouldn't want to, then you're right, A probably didn't do it. Barring something so clear cut, it could go either way, depending on the circumstances. This is what juries are for -- to decide these things.
Really, unless you can catch someone red-handed in the act of downloading (ie a police bust a guy whose computer is in the middle of uploading some infringing material), there is just too much uncertainty to deliver anything but not guilty.
No. First we are not talking about guilt or innocence. We are talking about whether they are liable or not liable. Second, certainty is not required. We're talking about the preponderance of the evidence standard: if it is even marginally more likely that A did it, then that's enough. There can still be significant uncertainties as to whether or not he did it, it just has to be most likely that it was him. A 51% likelihood is enough. The higher standards are not relevant in civil infringement cases.
Heroine, eh? Well, I would certainly be surprised to find a heroine in anyone's luggage, especially since you don't really see people with luggage large enough for your average-sized heroine these days. Carryons are quite popular.
Well, bear in mind that there are two different sorts of things here.
A civil case is about money or injunctive relief (i.e. having the court order someone to do or not do something). These cases are brought by other people, businesses, etc. For example, if you hit me, I can sue you so as to get money from you to pay for the harm you caused me.
A criminal case is about imprisonment, generally. These cases are only brought by the government, which has the discretion as to when it will or will not prosecute. For example, if you hit me, the government could try to have you put in jail for it. However, they would not try to also have you pay me for the harm you caused.
The US is pretty friendly to plaintiffs in civil suits with regards to jurisdiction, standards, awards, etc. However, we are very protective of defendants in criminal cases, in that we are willing to give them free lawyers, juries, require the government to prove the defendant broke the law beyond a reasonable doubt, etc.
And as others pointed out, there is far from universal support for the death penalty. I myself oppose it completely, and I think it is unconstitutional.
Everybody here seems to be saying: "Well, I believe he did it, he should hang". Nobody seems to think how ludicrous it is to pursue ordinary citizens for these kind of punative damages.
They're not punitive damages; those are not available in copyright cases. However, I agree that a) ordinary people should not generally be able to run afoul of copyright law, by reducing the scope of what's illegal so that it isn't the kind of thing people often engage in, and b) that the statutory damages are excessive.
I imagine a lot of people here are more familiar with the tradition of awarding genuine DAMAGES, i.e. compensation for DAMAGE done, for civil wrongs.
And these are indeed damages. There are no punitive awards in copyright. However, Congress has set up a system of statutorially defined damages because they favor copyright holders above infringers, and want to offer the former an easy to use system to calculate damages. Working out actual profits and damages is relatively difficult and is felt to be inadequate to protect copyright holders sufficiently.
For example, if A made one unlawfully made copy of one CD, a suit by RIAA for the retail price of a CD, even plus costs and reasonable fees, is too minimal to be worth pursuing. OTOH, if A can get away with it by being judgment proof, RIAA can be nickeled and dimed to death. Congress does not care for that, so they provide more effective remedies against A.
It is quite similar to worker's comp, in which employees who are injured on the job can get pre-set amounts of damages awarded to them, rather than wasting court time litigating each and every case. The general concept of statutory damages is pretty well entrenched. Even I don't have a serious problem with the idea. I might dislike the amounts, or who they are applied to, but I don't think we could have an effective system without them. Given that they have long been a mainstay of the copyright system (e.g. the 1790 Copyright Act had statuory penalties of 50 cents per sheet, IIRC) I don't think they're going anywhere.
The idea of punishing people for things determined on the balance of probabilities is deeply repugnant.
I disagree, although civil suits are really more about redressing harms.
By civilised standards, if the intention is to punish then this should be made a crime with all the safeguards for the accused that that entails.
No. Not everything wrong should be criminalized; copyright infringement is a good example. Additionally, victims cannot cause their wrongdoers to be prosecuted, and so should not lose the opportunity to discourage wrongdoers from future wrongdoing, in cases where ordinary redress is insufficient deterrence.
As a lawyer, I imagine you already appreciate how appallingly bad your legal system is.
No, I don't. I think that the system is generally pretty good. There are specific areas of law that I would like to see improved, but generally I like the civil/criminal divisions, the allocations of burdens, the requirements of advocates for each side with a neutral judge, binding precedents, common and statutory law, and so on.
Reread the earlier post:
It's not illegal to have an open WAP. However, there may be legal consequences that stem from this course of conduct. And to the extent that there are, it doesn't matter whether or not you knew that there were.
Still this is beside the point: the main issue is that when you have an open WAP, it is easy for people to mistake you for a third party downloader and for you to be unable to practically escape this case of mistaken identity. Plus, that even assumes there is a third party downloader; there are those who will run an open WAP so as to blame an imaginary third party for the things they are actually doing.
Ah, it must be amateur attorney hour again.
The legal system expects everyone to abide by the law. If they do not, ignorance of the law is no defense.
In a case where A sets up an open WAP, and B uses it in an illegal fashion, then the appropriate defendant is B; A hasn't done anything wrong. However, where enough evidence points to A as more likely being the culprit than B, A is the one that is liable for what has happened. This is because as far as the courts can figure out, A actually did it. Remember, the courts aren't perfect and they aren't psychic. Sometimes they punish the wrong person.
So yes, if you have an open WAP, you are exposing yourself to liability because it generally appears that traffic to that WAP from the ISP is your traffic, and not someone else's. You certainly are not protecting yourself; that comes from locking it down so that the only person using it is yourself, and you then don't break the law.
I think your confidence in the decision of factfinders in civil trials is utterly misplaced. They have to do the best with what they have, and the standard is low, and quite friendly to the plaintiff. A mere 51% chance that it was the WAP owner and not someone else, and that's sufficent.
No, that's a situation where it would be a criminal matter, and the higher standard would apply. In any case, my post was not about my point of view -- it was about the reality of how these civil copyright cases work. Perhaps there is a flaw in it, but that is a flaw in the system, and not merely in my reporting on it.
What makes you think that the numbers are the product of something else? Why can't it be arbitrary?
In fact, statutory damages for copyright infringement in the US are arbitrary. They range from $750 - $30,000 ordinarily, rarely go as low as $200, and can fairly easily go as high as $150,000. And that's per work infringed, not the number of infringements (i.e. make a million copies of a movie, and it only counts once; make one copy each of two movies, and it counts twice).
Even where only the minimum amount (almost inevitably $750 per work) is claimed by the plaintiff, multiplying this by a large number of works (e.g. 100 songs is $75,000) can still be very significant to individuals.
Regarding proof, this is a civil case, not a criminal one. While the plaintiff (not prosecutor) has to prove that the defendant infringed, he merely has to show that it is more likely than not that the defendant infringed. Open WAPs aside, the person who uses your WAP most is likely to be you, especially if you don't show that it was in fact someone else, that the files were never on your system, etc. I'm plenty sympathetic here, but honestly, I think the odds are at least marginally in favor of the perpetrator not being a third party, and that's all it takes to satisfy the relevant standard.
There really is no such concept in civil copyright infringement cases. Remember, the standard of proof is a preponderance of the evidence. So long as it is even slightly more likely than not that the person with the WAP did it, as opposed to some mysterious other person, that is sufficient proof that he did do it. It's criminal trials prosecuted by the government that use the higher standard of beyond a reasonable doubt. That is not the standard used here.
Additionally, courts are aware that defendants may engage in behavior, knowing what the outcome is likely to be. Willful blindness, such as you suggest, is pretty obvious and does not help people get off the hook.
It's possible that you are thinking of the legal system as a mechanism that is not intelligent, and can be gotten around through cleverness. That is not the case. People are involved in the system at every step, and often they are more clever than you, and have a dim view of amateurs trying to manipulate them. Basically, if you would see through such a ploy, or if you think other intelligent people would, you should expect that your opponents in a legal battle would.
But it's quite easy to place ads for Fruity Oaty Bars.
What's funny about your condescending post is that I'm Jewish and know a tiny something about the Torah.
Typically when people talk about the Torah, they mean the books in a sefer Torah or chumash; Christian Old Testaments include other materials, as does the Tanakh. I will grant that sometimes it's used in a more expansive sense, to cover both the written and oral law, however.
Still, even if you want to deal with the Tanakh, many Christians have added materials to their Old Testaments which are not in the Tanakh. Catholics, for example have added several books. Therefore it's impossible for their Old Testaments to be considered subsets of the Torah. Even where the books are the same, they may be reorganized and combined or split up such that they are not really the same as the Tanakh. The lack of a standard Old Testament amongst Christians makes absolute statements such as the earlier person's incorrect.
It would've been nice if you had checked that out and known something about what you posted before you did so.
No reason he couldn't be both.
You have to take into account that the Old Testament is a subset of the Torah
No it's not.
Kusanagi is perhaps too complex. Have you read the second Ghost in the Shell manga? It's bizarre.
It doesn't seem to scan right. But maybe it would in the original German. Anyone want to check?
As noted elsethread, copyright law is quite specific in saying that the lyrics are covered.
Lyrics are copyrightable subject matter, but the relevant issue with regards to fair use is how much, and how important, a portion of the overall work was used. Lyrics can be a work all by themselves, but when written together with their accompanying music, they're often considered to be a single work. Therefore, just using the lyrics would be just using a part of the work, not all of it.
certainly you could make a pretty good argument on the "transformative" criterion
Not unless you're creating a new work out of them. For example, if you took the lyrics to a song, and choreographed them as interpretive dance, that would be a transformative use. Just putting them on a web page is not transformative.
and to qualify as fair use, you need to meet all the criteria they set.
Absolutely wrong. All that is required is that the use be fair. Defendants are not required to 'win' on all four factors, nor do they, typically. In fact, you could win on just one (most likely that there is no impact on the market for the work), as the analysis is one of equity, not mechanically adding up the factors and deciding in favor of whoever has the most on their side.
Fair use covers quoting small portions of a work, not "quoting" the whole thing.
That is incorrect. Fair use permits any otherwise infringing act, so long as it is fair. While one of the four factors typically used to determine whether a use is fair or not has to do with "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" it is not determinative by itself. All the factors play a part, and the question is whether the use is ultimately fair or not. It is entirely possible to have a fair use that involves reproducing an entire work. For example, when time shifting or space shifting are fair uses, they involve reproducing the entire work.
While you're correct that a product designed to search for lyrics probably isn't covered under Fair Use, that's only because it doesn't need to be -- it would only need to be covered under fair use if it copied at least some of the lyrics, and that doesn't seem to be the case here at all. Here, it seems to be purely a matter of helping people to find lyrics -- which they might then copy, and it might then be illegal; but they might not copy them, and even if they do, it might well be legal (e.g. on songs that no longer fall under copyright).
Again, incorrect. There are several forms of third party liability under copyright law, where one party can be held responsible for the infringements of another, due to the former's involvement. This is how Napster, for example, was liable for infringement and shut down; because it was responsible for helping its users to infringe, even though Napster too essentially only produced some technology. You should read the Napster and Grokster cases for more on third party liability with regards to copyright.