I knew I shouldn’t have used a car analogy. 
All I was getting at was that in the absence of hard data on the number of copies distributed then the only number that can be reasonably worked from is the one copy that the agent of the copyright holder downloaded to prove infringement.
Any other numbers are WAGs.
True, and “pirating” is somehow seen as flamboyant and romantic, rather than a reference to blood-thirsty murderers and rapists. But…
…the other side of this argument aren’t above using bad analogies and hyperbole to spin things in their own direction.
I’m sure you must get the same sort of “You wouldn’t steal a car…” type anti-copyright infringement messages there as we do, and while I think we (collectively) do agree that stealing a car is wrong… if you asked people however (should they have Star Trek replicator technology available to them) whether they would / should replicate that Maserati while leaving the original on the side of the road I do think you’d get a rather wider range of answers.
All true, and no argument.
I would ask however (and recognizing that this has no direct effect on the copyright status of this or that latest popular music single) if just perhaps the continually expanding extent of copyright might be making even reasonable people more likely to be scofflaws?
n/m, misunderstood a post.
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I totally agree with and endorse this post, as a recording musician and songwriter myself.
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So I guess this means that file-sharing isn’t fair use, then? Well, I didn’t really expect for this to go through.
I’m still curious how the punishment in these cases is supposed to fit the crime, though. In and of itself, file sharing doesn’t necessarily create damages for the rightsholders – lots of bands have embraced it, and come out on top. It’s ultimately the outdated business model pursued by the record companies that means they incur losses because of it (and I’m not entirely sure even there how big those losses are – is there anything in the way of a well-supported number somebody could point me to?).
Besides, one shouldn’t forget that nobody actually makes anybody download anything just by making it available, so using some hypothetical number of downloads to support the punishment strikes me as a bit spurious at best – once it’s out there, it doesn’t make any difference how often it’s downloaded. In a way, the net is just another public place – if I left my record collection somewhere out in a park or something, next to a CD-copying station and a stack of blanks, I’m probably responsible for a breach of copyright, but I’m not responsible for those people who decide to take up the chance to themselves commit an illegal act by actually making copies.
I also find it hard to delineate where the illegal act begins – let’s say I store digital copies of my music on my PC (I’m allowed to do that, right?). Now, I set it up as a server, because I need remote access to some data on it, for whatever reason. In theory, even if it’s password protected, somebody could probably now hack it and download my music; heck, in theory, somebody could probably do that if it’s not set up as a server, using some trojan to set up a back door or whatever it is those crazy kids do. Would I then be guilty, because I allowed somebody else to commit an illegal act, availing themselves of my digitized music? Would I be guilty if I hadn’t installed adequate password protection? And when, exactly, would my actions become amoral?
Or perhaps I share the password with somebody who also needs access to some data on it. Am I guilty if they download some of my music as well? Am I guilty even if they don’t? What if they don’t download anything, put pass the password around? The net effect isn’t greatly different from uploading stuff to a file-sharing network: it’s up for grabs. So, in the end, how does enabling the illegal act of downloading via peer-to-peer really differ from enabling the illegal act of hacking into my computer and downloading the music directly?
One might argue that it’s the intent that differs – I certainly don’t intend for anybody to hack my computer when I go online, but sharing things via peer-to-peer implies clear intent to have it downloaded. However, this seems somewhat hard to prove, and can it really be just the difference in mental stance that makes the difference between a criminal and a law-abiding citizen? I am right now online with a large collection of digital music on my hard drive. As far as I know, it’s possible for somebody to hack into my system and download this music, unlikely as that might be. I’m aware of this possibility. Now, I change my stance, and explicitly intent for some enterprising hacker to crack my system and steal my music. Have I just become a criminal through this change in intent?
One might also say that it’s the ease of availability that differs in both cases. A lot of people are able to competently use a file-sharing program, but not many people possess the l33t hax0r1ng 5k1llz to break into another’s system. Alright, so let’s say I publish a how-to guide, or write a piece of software able to complete the task*. Or let’s say somebody else does this. Where’s the blame, both moral and legal, then?
I’m not, by the way, trying to find a defence for file sharing – my contrived scenarios hardly have any real applicability; I’m just trying to see the line, and to do this, one must try to figure out the extreme cases.
Another point that I think merits some discussion is in how far anything can be illegal if a majority of the population does it (I don’t think that’s the case with P2P-filesharing, but if we generalise to copyright infringement, it might be – who these days has never watched an illegally copied movie, or possessed a burned CD? A radio-recorded tape, even?). If it truly were the majority that governs the state, this naively implies that what the majority does is what’s legal, since they could always pass a law to that effect. Now I know the problems with such an extremely direct democracy, and I’m not proposing something like that as an actual form of government – but even in a representative democracy, if the two positions that were offered were pro- vs. anti-filesharing, and if that were the only dividing issue, it’s clear that the pro-position would win out. So, is the simple fact that this position isn’t offered, or overridden by other concerns, grounds enough to morally justify the illegality of filesharing? (Working, of course, with the unsupported assumption that it is in fact a majority that indulges in some form of copyright infringement, and that this majority has an interest in legalizing it, which isn’t a given, of course – even if almost everybody speeds, that doesn’t mean that almost everybody would be for the abolishment of speeding laws.)
But still, to me that seems to be an unsettled question – I don’t know of any place that’s ever put the issue to a majority vote.
In any case, it seems to me to be a far more complicated matter than just calling it theft; personally, I believe the business model proposed by the record companies has simply failed to adapt to the change in possibilities, and what we’re experiencing now are just the dying throes, the flailing about and grasping at straws of an outmoded system.
*In fact, why not do that? Create a P2P-worm that is completely benign, except for seeking out digital music collections on infected PCs and opening them up for remote download. What would be the legal status of something like that – surely, you can’t be guilty for having an infected PC?
Does “Fuck the RIAA” ring a bell? It’s a common refrain in any music-industry-related thread on other forums, at least.
And, as you have mentioned, the defendant has already expressed his intent to file bankruptcy. That money won’t get paid. If they’d gone for a lesser amount, he might not have been able to do so- which would have resulted in the Music Industry getting its money AND the defendant being “punished”… but with such an exorbitant amount, neither will happen. All that happens is the RIAA ends up looking like a greedy, bullying corporation. It doesn’t deter anyone from stealing their music, all it does is make them look evil. It makes a mockery of the system.
Those zeroes sure do make for a good headline, though. But that’s all it is. Now, I guess it could be argued that publicity is all they’re seeking- but I don’t think they’re getting the publicity they really want. If I were them, I’d be doing my level best to look like the injured party. With such a massive penalty, though, the defendant is the one who’s looking injured.
You’re blaming the victim. The bad guys here are the illegal downloaders. No amount of spin is going to change that.
And the judgment is not a penalty, fine, or punishment. It is compensation to the victim for the wrongfuil acts of the illegal downloader.
Well, if it is theft then why isn’t he being criminally prosecuted? Theft is a crime. In Massachusetts shoplifting less than $100 in items gets you a $250 fine for a first offense (he stole $30 worth of music).
Also, say you stole two CDs from a music store (about $30 worth of music). How much do you think the store can sue you for civilly for that? IANAL and have no idea myself but I would be shocked if they could even get $500 for that (and guessing even that number is high). If you stole two CDs and got a judgment against you for $675,000 would you find that remotely reasonable?
But he distributes them you might say thus compounding the crime.
Ok. Is it not incumbent upon the people you stole from to show how much that illegal distribution actually hurt them? If you stole a CD from a store and the store says you then copied those CDs and gave them away thus depriving them of sales can they just make up a number? They do not know if you distributed one or 10,000 copies. But hey, may as well assume 10,000 copies to make more money right? Why not a million?
It is not that this guy shouldn’t get punished. It is the punishment that is wholly out of proportion to what he did. As near as I can tell no one is remotely suggesting actual damages came anywhere near $675,000 (much less the possible $4,500,000 it could have been by statute).
The point here is if he provided just one download per song (x30 songs) he is potentially on the hook for $4.5 million. That makes sense to you?
And yet in other contexts, non-owners get to make choices about other people’s work all the time.
Copyright isn’t intended to be about blindly protecting the interests of the owner. It’s intended to facilitate the creation of new works. This does of course entail some very important protections for the creator, but sometimes it also entails limitations on the creator’s rights. These sorts of exceptions are an established part of copyright law. More useful changes can be made. It’s possible that the music industry would on the whole be better served by more flexible file-sharing rules instead of having these sorts of ridiculous judgments that are entirely divorced from the actual situation the industry is now facing.
Oak, it must be freezing down in hell today, because I agree with your position 100%. As to those musicians, some who have posted here, who would like their work to be disseminated as broadly as possible, more power to you. If you’re new or an up-and-comer that might be a wise strategy. And you may do whatever you’d like with your intellectual property. But Oak is right, these people are stealing something that does not belong to them. They are thieves. And the penalty has to be strong enough to make them not want to do it again.
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Actually the likes of Kazaa is a P2P (peer-to-peer) network. On those sites you download a whole file from one other source.
You are thinking of a torrent which assembles a whole file from little bits from lots of sources. It is unclear how traceable torrents are. The RIAA/MPAA bought out the likes of Bit Torrent and uTorrent and some others. There was some suggestion that those programs have some data collection capabilities. Not sure how much they can follow that. Not to mention if I give you just a little bit of a file does that amount to “fair use” just like I can quote a little bit of copyrighted text here without infringement? Novel legal idea I suppose but an interesting thought.
Laws in the computer age still have a lot of catching up to do.
Exactly. This is why the RIAA’s argument that downloaders are “stealing” from their favorite artists has never held much weight with me. The record companies have been at the forefront of robbing musicians ever since the dawn of the recording industry. Read a biography of any of the early rock pioneers (and even many contemporary acts), and you’ll soon learn that the easiest way to make a buck in the music industry is to become to become a music executive.
I’m curious (do not know the answer to this):
When the RIAA wins a judgment, and presuming they actually get paid, does money from that judgment get disbursed to the musicians whose music was stolen? How do they decide who gets what? Without knowing if that Nirvana song was downloaded 20,000 times or 10 times versus the Metallica song that was downloaded 50,000 times or once how do they divvy it up? Or does the RIAA just keep all the money they make from this?
Of course they do! Natually, certain fees are witheld. Lawyers, paralegals, messengers, Kinko’s, more lawyers, lawyers for Kinko’s, stress relief treatments at the Shanghai Rub 'n Tug…
The good part is the check delivered can be cashed at McDonalds!
The record companies ‘robbing’ the artists, and copyright infringement are two separate problems, though. The injustices of the former don’t justify the latter.
I’m not saying it justifies copyright infringement. I’m just saying that “downloaders are stealing from artists” is a rather hypocritical argument to make, and one that’s not going to hold much water for anyone who knows even a little bit about how the music industry works.
What the hell, Oak? I am, in no way, blaming the victim here. Where did you even get that?
They aren’t going to be compensated. He’s going to file bankruptcy, remember? Has there been a single judgment in this sort of situation where the defendant hasn’t filed bankruptcy? The final result of them going for such a huge dollar amount is that the defendant files bankruptcy- the RIAA is out the court costs, doesn’t get compensated for the piracy of their music, and *still *gets just that much more bad press. If they went for more realistic judgments, maybe they’d actually get some of the money they “lost” when the songs were shared.
I’m not touching on the legality or illegality of filesharing. All I’m doing is pointing out that the ridiculous awards they’re trying to get aren’t doing them, or their cause, any good whatsoever.
Even if the kid couldn’t declare bankruptcy, he still couldn’t pay half a million dollars in fines. He’s a kid. He doesn’t have half a million dollars, and he never will have half a million dollars.
If we declare that this fine isn’t dischargable during bankruptcy (and often fines of this nature aren’t), all that means is that the kid will never be able to buy a house, or work in the above-ground economy. Are we going to garnish his wages for the next 100 years to pay off that half million?
The argument that he’s a thief who deserves what he gets is ludicrous. If he’s a thief, why wasn’t he arrested? Why wasn’t he put in jail?
He’s not a thief. He’s a copyright violator. That’s not the same thing. See, the difference is that one is theft, and the other is violation of copyright. He committed no crime.
The ridiculous part is that he was only fined for sharing 30 songs. But of course, he actually shared thousands. So his fine of $650,000 is only a fraction of what he could have been fined, under the law. So why didn’t the RIAA pursue him for every song he made available for download? Because that would be ridiculous. Did he really cause tens of millions of dollars in losses to the RIAA? No. Did he cause tens of millions of dollars in losses to Nirvana and Nine Inch Nails? No. Fact is, he didn’t cause any demonstrable losses at all. But that doesn’t matter, because the RIAA didn’t have to demonstrate any losses, the mere fact that he made copyrighted material available for download is enough. Even if no one downloaded a thing from him, he would still face the fines.
If we had a statutory fine for stealing CDs of $150,000 per CD, and some kid stole 30 CDs, would a $4,500,000 fine seem reasonable? After all, it doesn’t matter what the value of the material stolen was. The shop he stole from doesn’t have to demonstrate that the CDs were worth anything. Just that they were stolen.
So we have these situations where the RIAA sues broke-ass kids for millions of dollars, despite the fact that these kids didn’t cause anything close to millions of dollars in damages, and despite the fact that they really could have sued for hundreds of millions of dollars, and despite the fact that even if the fine can’t be discharged by bankruptcy these kids will never be able to pay fines of millions of dollars, because they’ll never make that much during their entire lifetime.
The theory that harsh punishments of a few high-profile victims will deter copyright violation is ludicrous also. All it does is restrict uploading to the judgement-proof. Kids, activists, guys in Russia, China, and India, and so on. There’s no way to track downloaders.
Inconsistent harsh punishment has little deterrent effect. Consistent mild punishment would–if it was even 10% likely that you’d be caught and fined $100 for uploading thousands of songs, almost no one would do it. But instead we have a system of “making an example” of people.
This is like trying to enforce speeding laws by picking 100 people a year and fining them $1,000,000 for every mile an hour over the speeding limit they were, and ignoring everyone else. Since speeding is endemic and only a few people get caught, and it doesn’t matter how much you speed since if you get caught you’re ruined no matter what. But since there’s only a 1 in a million chance of getting caught, everyone figures it isn’t worth worrying about.
Such an enforcement scheme is immoral because it doesn’t work to create the result you claim to intend, and it is wildly disproportionate to the amount of harm the violators cause.
Back 30 years ago this enforcement model for copyright violation worked well. The only people who would set up a record-pressing factory and distribute unauthorized copies were people who wanted to sell those copies. Because record pressing (or print pressing) required a relatively large capitol investment no one would do it for free. And the only way to make a profit was to try to sell those things through the regular distribution channels, which meant that a violator was very likely to be caught. And since only a printer or a record company would be doing such a thing, and because those publishers had rights to copyrighted materials of their own, every publisher had an interest in enforcing copyright. And even if a few people made low-quality duplicates at home, the number were very small.
And so our copyright system made a rough sense. It was enforceable, it was proportional, everyone had an interest in seeing it continue, and it advanced the useful arts and sciences as it was intended.
But now technology has turned that higgledy-piggledy. The marginal cost to copy and distribute electronic files is essentially zero. And so people will do so with no expectation of profit. It doesn’t take thousands of dollars of equipment and thousands of dollars of materials and a large supply chain. It just takes a computer with a hard drive and a modem.
So the enforcement mechanisms that worked well against commercial publishers don’t work at all against kids in their Mom’s basements. And they will never work, no matter how aggressively they are pursued. Copyright law is broken, fatally and permanently. Our current system is done and finished.
The purpose of copyright and other intellectual property laws is to advance the useful arts and sciences. We did this by granting to creators exclusive rights to their creations for a limited time. What happens when technology changes such that this method is no longer the best way to advance the useful arts and sciences?
It means we need a new method for rewarding creators that isn’t impossible to enforce. What that system should be is difficult to know. But any system that relies on restricting the copying of electronic files is doomed to failure. It cannot work and will not work. So we need something else. Feel free to make suggestions.
He was not fined. A jury awarded damages to the victim. The award is a judgment, and can be discharged in bankruptcy.
An excellent post, Lemur, and I agree completely. Distributing somebody else’s copyrighted material without their consent is wrong, but these ridiculous penalties serve no purpose except to reduce general respect for the RIAA and copyright law in general. As you said, inconsistent harsh punishment is no deterrent. When most of an entire generation breaks the law casually and thinks nothing of it, what can the ultimate consequence be?
I don’t really know what could succeed in the long run except perhaps a more widely distributed, less centralized system which puts the artists closer to the people who support them. It’s only a vague idea, but I think it at least touches on the heart of the matter: in the modern world, distribution is easy – for everybody – and there’s a lot less room for dinosaurs like enormous record labels. Basically what they’re doing right now is fighting as hard as they can to sustain an obsolete business model.