Pardon me, but this seems somewhat out of character for you (I think). It seems as if you are justifying virtually any punishment under the sun because it was codified – that no punishment is unjust, especially if the perpetrator knows of the consequences ahead of time.
My confusion doesn’t reside in disagreement over whether or not there was a violation, but whether or not you think proportionality plays a part in a justice system.
Would fining all motorists on interstate highways $100,000 for each mile over the speed limit they travel be a just law? (doubled, of course, for construction zones.) Would you also support such a law if it were remotely (i.e., cameras) enforced?
Should possession of trace amounts of marijuana carry a mandatory sentence of 25 years?
What about mixing paper and plastic recycling? Should that result in forfeiture of your home?
While I don’t think such Draconian examples are wholly indefensible from a political philosophy standpoint, I don’t see them as being outlandishly different from the OP, and I daresay you’ve never struck me as generally taking such extreme positions.
I haven’t been able to find a number, nor an estimate for the number of downloads for an individual song anywhere. My google-foo is becoming weak. At the same time, I am willing to bet the number of total number of downloads for each song that Tanenbaum had up is way more than 20,000 as these were well known artists.
Um, unless my math is bad, 20,000 downloads of a song at $1 per song is more than $10,000. It is $20,000. The jury awarded 22,500 per infringement. So that comes out to a little more than a buck for each download using my (hypothetical) 20,000 number.
Does anyone know how long he had the music up? Since we can’t seem to find an exact (or guesstimate) number of downloads that Tanenbaum is responsible for maybe we could hack a number together from the amount of time he made the songs available.
Side note, if we could find a) the number of downloads for a particular song on KaZaA and b) the number of seeders, we could then get a decent guess.
The record company’s profit, which is the measure of their damages, is not $1 per song. But if you prefer, we can call it $1, but then I’ll cancel my generous offer of 100% purchasing rate of the downloaders, since a more realistic estimate would be in the single percents. The point being that the real number is going to be considerably below 20k
This is not a criminal sanction. This is the defendant being required to compensate the plaintiffs for civil damages. Plaintiff’s damages are difficult to quantify, but they include more than just lost sales. The statute provides a range, and the jury returned a verdict within that range.
Note that there is no limit to the amount of damage Plaintiff may suffer, and that plaintiff has the proverbial snowball’s chance in hell of actually collecting. Defendant has already announced his intent to file bankruptcy if the appeal fails.
You might be mistaken, when throwing around words like ‘stole’ or ‘thieves’. I agree with you however, there is no moral ambiguity: Copyright is amoral.
I think the defendant infringed copyright. I don’t believe he wholly deprived the owner of the use of any of the songs he downloaded.
[copied from Wikipedia]
interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: … ‘an infringer of the copyright.’ …
The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.
—Dowling v. United States, 473 U.S. 207, pp. 217–218
He was shown to have distributed 20,000 copies? Or at least one copy? (Download by the rights holder’s agent).
If I’m stopped (rightly) for speeding would it be reasonable for the cop to surmise that since I drove this way to work each day I probably sped on other days too and issue 100 tickets?
Not trying to defend this guy here – he admitted the infringement – but pulling hypothetical numbers from the air doesn’t seem all that helpful either.
But the more well known the artist, the more likely it is that other people on a given P2P network will also be sharing a given track, and the less likely any given person looking to download it will download it from you.
Not that 20,000 is an unbelivable number, but honestly, without at least some statistical analysis of how Kazaa and the like tend to work, I’d basically find any number from 1-100,000 belivable.
But isn’t your analogy closer to saying that the municipality cannot assess you a fine or insurance surcharge higher than the ACTUAL loss they suffered from your particular incident of speeding? Instead they give you a $100 ticket, and jack up your insurance by $200 per year.
But if the artists are that well-known, then the number of users sharing the songs would be large, as well. He wouldn’t be the only person sharing them so his personal number of uploads would not necessarily be that much higher than it would for a lesser known artist. Additionally, let’s say that he did upload a certain song to 1,000 users. Even assuming that 50% of those are total leechers (as in, they download it and log off without sharing), that would make the next search for that song come up with 501 matches. The likelihood that he would be the next download source would become exponentially smaller with each upload.
I find it hard to believe that he uploaded each track 20,000 times under any scenario. Uploading 30 songs 20,000 times at an average file size of, say, 4 mb, that means that he uploaded (according to my possibly bad math) 2.4 terrabites of data. I don’t buy it.
Your premise is based on a red herring. If my dog poops in the neighbor’s lawn would $40,000 per instance be a just award?
Also how do you respond to the fact the RIAA has known mass pirate in the lead of their organization (Sony BMG) and did nothing to punish Sony? Clearly this is one “thief” (in your words) suing someone for the same crime.
Sony BMG, one of the biggest heads of the RIAA, released millions malware infested Music CDs that, in addition to opening huge security holes in people’s computers without their consent, contained pirated software. I say again Sony has committed mass piracy.
File sharing software takes a “bite” out of each available download, and assembles the result on the downloaders computer. Typically, that is. The more popular a piece of music, or video, whatever, the more and more likely that there is not one source, but many.
Conversely, a lot of these guys share music that is not particularly popular, trying to be the guy who discovers the Next Thing. (Not a band name.) In that case, then, the downloaded music is much more likely to reside on only a few sources, perhaps even just one.
But in that instance, the artist are thrilled to have any such free publicity and “buzz”.
A figure of 20,000 downloads is completely ludicrous, given that the average number of times any given file will be downloaded from any given Kazaa user is exactly 1. Granted, there’s still a fairly large variance in that number, but it’s not nearly large enough for me to believe that anyone has shared 20,000 copies of anything, anywhere, at any time since the founding of Kazaa.
Which is inflammatory and provocative, and unnecessarily so. It’s the sort of language that the RIAA and MPAA have been using in their anti-file sharing crusades, to try to dumb the issue down so that Ma and Pa who never used the internet beyond e-mail and CNN.com (or eBay) would see this as amazingly grave and pull the plug on their kids’ internet connections and have a long serious talk about Thou Shalt Not Steal. But it’s not realistic. It’s a rhetorical tool. It has no place in a reasonable debate.
“File sharing” is a euphemism for getting music without paying for it. That equates to theft no matter how you spin it. The downloaders have no right to the material they download. Pay, or no play. They have no right to distribute other people’s work, either. That’s giving away something that they don’t own.
This is a bit philosophical, and TG, IANAL, but to me it matters a lot that they are “sharing”, not selling. There is no profit motive here, there is a lack of malice.
And as I noted before, a lot of these people are sharing files/songs of bands that are not at all popular, in a “look what I found in Akron!” spirit. I applaud that spirit, think its healthy. Without actually transmitting the music discovered, the effect is ruined. And, of course, the unknown musicians would like little better than expanding a fan base they cannot otherwise reach.
This is not my first experience with things that are good but marginally illegal. I’ll get over it.
It doesn’t equate to theft except colloquially, or if your a copyright supporter.
Some file sharing is copyright infringement. Some is not. Its simply the act of exchanging data in discrete units called files. Sometimes its copyrighted material, sometimes its not. Calling copyright infringement “theft” is analogous to calling speeding “reckless endangerment”. But it’s okay to call copyright infringers thieves, right? So, you think that people who use trial software just one extra day should be liable too? What about people who take photographs of famous buildings without the owners permission? I mean they are not allowed to share the beauty of the architecture without paying an viewing fee, right? What about teachers who read books to students or parents who read books to children? That’s a big no no they’re letting the children have all these words for free!
hey sparky, you a musician? I am. You’re full of talk about the record companies as owners but seemingly have nothing to say about the actual creators of music. Ever had to sign record company contracts? I thought not. And there is little difference between them so shopping around (we tried) isn’t really getting you anywhere.
See, I have to make a living from music. You don’t. You’ve never had to watch while a record company takes most of your potential income in various fees and ‘costs’. I’ll take the so-called music thieves over the legal thieves of the record companies any day of the week (and in fact as soon as our contract expires we’ll be doing just that). If ‘illegal’ downloads were to constitute 75% of our distribution we’d still be better off than we are now. And there are intangible rewards, like exposure, to be gained from so-called illegal downloads.
This might be different for a big name band but for people like us who are just making a living, reaching as many people as we can, the only thieves in sight are the record companies
The point being that the real number is going to be considerably below 20k
