RE: How does copyright work?

[Exapno_Mapcase]

@kaltes

I do not like that, in part 2, discussion of criminal prosecution seems to be poorly researched.

Oh, and if anybody else was as confused as I was by this, kaltes means part 3.

[Gfactor]

A good source on intellectual property crimes: Criminal Division | Computer Crime and Intellectual Property Section (CCIPS) | United States Department of Justice

[Gfactor]

@Exapno Mapcase

Most of the staff reports have been concerned with print cases, which do have a long history in law, rather than file sharing cases. Maybe they’ll get to those later.

Here is what the 7th Circuit said about filesharing and fair use in BMG Music v. Gonzalez cited in part 2 (I can quote freely from the opinion because it is a work of the federal government, and therefore not subject to copyright):

As she tells the tale, downloading on a try-before-you-buy basis is good advertising for copyright proprietors, expanding the value of their inventory. The Supreme Court thought otherwise in Grokster, with considerable empirical support. As file sharing has increased over the last four years, the sales of recorded music have dropped by approximately 30%. Perhaps other economic factors contributed, but the events likely are related. Music downloaded for free from the Internet is a close substitute for purchased music; many people are bound to keep the downloaded files without buying originals. That is exactly what Gonzalez did for at least 30 songs. It is no surprise, therefore, that the only appellate decision on point has held that downloading copyrighted songs cannot be defended as fair use, whether or not the recipient plans to buy songs she likes well enough to spring for. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014-19 (9th Cir. 2001). *See also UMG Recordings, Inc. v. MP3.com, Inc., * 92 F. Supp. 2d 349 (S.D.N.Y.2000) (holding that downloads are not fair use even if the downloader already owns one purchased copy).

Although BMG Music sought damages for only the 30 songs that Gonzalez concedes she has never purchased, all 1,000+ of her downloads violated the statute. All created copies of an entire work. All undermined the means by which authors seek to profit. Gonzalez proceeds as if the authors’ only interest were in selling compact discs containing collections of works. Not so; there is also a market in ways to introduce potential consumers to music.

Think of radio. Authors and publishers collect royalties on the broadcast of recorded music, even though these broadcasts may boost sales. See Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 99 S. Ct. 1551, 60 L. Ed. 2d 1 (1979) (discussing the licenses available from performing rights societies for radio and television broadcasts). Downloads from peer-to-peer networks such as KaZaA compete with licensed broadcasts and hence undermine the income available to authors. This is true even if a particular person never buys recorded media. Cf. United States v. Slater, 348 F.3d 666 (7th Cir. 2003). Many radio stations stream their content over the Internet, paying a fee for the right to do so. Gonzalez could have listened to this streaming music to sample songs for purchase; had she done so, the authors would have received royalties from the broadcasters (and reduced the risk that files saved to disk would diminish the urge to pay for the music in the end).

Licensed Internet sellers, such as the iTunes Music Store, offer samples–but again they pay authors a fee for the right to do so, and the teasers are just a portion of the original. Other intermediaries (not only Yahoo! Music Unlimited and Real Rhapsody but also the revived Napster, with a new business model) offer licensed access to large collections of music; customers may rent the whole library by the month or year, sample them all, and purchase any songs they want to keep. New technologies, such as SNOCAP, enable authorized trials over peer-to-peer systems. *See * Saul Hansell, Putting the Napster Genie Back in the Bottle, New York Times (Nov. 20, 2005); *see also * http://www.snocap.com.

Authorized previews share the feature of evanescence: if a listener decides not to buy (or stops paying the rental fee), no copy remains behind. With all of these means available to consumers who want to choose where to spend their money, downloading full copies of copyrighted material without compensation to authors cannot be deemed “fair use.” Copyright law lets authors make their own decisions about how best to promote their works; copiers such as Gonzalez cannot ask courts (and juries) to second-guess the market and call wholesale copying “fair use” if they think that authors err in understanding their own economic interests or that Congress erred in granting authors the rights in the copyright statute. Nor can she defend by observing that other persons were greater offenders; Gonzalez’s theme that she obtained “only 30” (or “only 1,300”) copyrighted songs is no more relevant than a thief’s contention that he shoplifted “only 30” compact discs, planning to listen to them at home and pay later for any he liked.

430 F.3d 888, 2005 U.S. App. LEXIS 26903, 77 U.S.P.Q.2D (BNA) 1312, Copy. L. Rep. (CCH) P29,102 (2005) (emphasis added), cert. denied, 126 S. Ct. 2032, 164 L. Ed. 2d 782, 2006 U.S. LEXIS 3915, 74 U.S.L.W. 3639 (2006).

We are still considering a part 5, and are open to suggestions.

BTW, on the topic of statutory damages, the *Gonzalez * court affirmed the lower court’s decision to grant summary judgment to the plaintiff, including the damage award because the award was based on the minimum statutory damages permissible):

BMG Music elected to seek statutory damages under 17 U.S.C. § 504(c)(1) instead of proving actual injury. This section provides that the author’s entitlement, per infringed work, is “a sum of not less than 750 or more than 30,000 as the court considers just.” But if an “infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $ 200.” 17 U.S.C. § 504(c)(2). Gonzalez asked the district court to reduce the award under this proviso, but the judge concluded that § 402(d) bars any reduction in the minimum award. This subsection provides: “If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages”. It is undisputed that BMG Music gave copyright notice as required–“on the surface of the phonorecord, or on the phonorecord label or container” ( § 402(c)). It is likewise undisputed that Gonzalez had “access” to records and compact disks bearing the proper notice. She downloaded data rather than discs, and the data lacked copyright notices, but the statutory question is whether “access” to legitimate works was available rather than whether infringers earlier in the chain attached copyright notices to the pirated works. Gonzalez readily could have learned, had she inquired, that the music was under copyright.

If BMG Music had requested more than 750 per work, then Gonzalez would have been entitled to a trial. See *Feltner v. Columbia Pictures Television, Inc.*, 523 U.S. 340, 118 S. Ct. 1279, 140 L. Ed. 2d 438 (1998). What number between 750 and 30,000 is "just" recompense is a question for the jury, unless both sides agree to decision by the court. But BMG Music was content with 750 per song, which the district judge awarded on summary judgment. Gonzalez contends that this was improper: Feltner, she contends, holds that a jury must decide whether even the statutory minimum award will be allowed.

Feltner holds that a claim for statutory damages under § 504(c) is a suit at law to which the seventh amendment applies. This does not mean, however, that a jury must resolve every dispute. When there are no disputes of material fact, the court may enter summary judgment without transgressing the Constitution. See Fidelity & Deposit Co. v. United States, 187 U.S. 315, 23 S. Ct. 120, 47 L. Ed. 194 (1902). See also Galloway v. United States, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458 (1943); Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 51 S. Ct. 513, 75 L. Ed. 1188 (1931). While acknowledging this proposition, Gonzalez insists that copyright cases are different. She relies entirely on a single passage from Feltner: “The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner.” 523 U.S. at 353 (emphasis in original). Gonzalez maintains that by adding “if any” the Court allowed a jury to send an author home empty handed, even if the statute makes $ 750 the minimum. In other words, she contends that Feltner creates a system of jury nullification unique to copyright litigation.

The Justices did not purport to give defendants in copyright cases the right to ask jurors to return verdicts in the teeth of the law. The sentence we have quoted is a general description of the jury’s role, which the Court drew from seventeenth-century English jurisprudence. That’s hardly a plausible source for a rule unique to American copyright law. In Feltner neither side had sought summary judgment. We read Feltner as establishing no more (and no less) than that cases under § 504(c) are normal civil actions subject to the normal allocation of functions between judge and jury. When there is a material dispute of fact to be resolved or discretion to be exercised in selecting a financial award, then either side is entitled to a jury; if there is no material dispute and a rule of law eliminates discretion in selecting the remedy, then summary judgment is permissible. *See Segrets, Inc. v. Gillman Knitwear Co., * 207 F.3d 56, 65 n.7 (1st Cir. 2000).

Gonzalez says that the ninth circuit understood Feltner differently on remand, but that’s mistaken. A jury trial was held–for there were material factual disputes–and the jury returned a verdict of 31.68 million in statutory damages (or 72,000 per infringed work, an award made possible by the jury’s conclusion that infringement had been wilful). The defendant, ruing its Pyrrhic victory in the Supreme Court (the judge’s original award, which the Court vacated, had been $ 8.8 million), maintained that § 504(c) is unconstitutional, and that only actual damages may be awarded, because § 504(c) does not provide for a jury trial. The court of appeals rejected that contention, noting that after the Supreme Court’s decision a jury trial had been held. *See Columbia Pictures Industries, Inc. v. Krypton Broadcasting of Birmingham, Inc., * 259 F.3d 1186, 1192-93 (9th Cir. 2001). Whether a jury resolves the dispute because of statutory language or because of the seventh amendment is all the same to the litigants. It is not possible to find, in a decision affirming a jury’s verdict, a rule of law that a jury is required even when there are no factual disputes to resolve and no discretion to exercise.

As for the injunction [The District Court had enjoined her from downloading recordings owned by the Recording Companies]: Gonzalez contends that this should be vacated because she has learned her lesson, has dropped her broadband access to the Internet, and is unlikely to download copyrighted material again. A private party’s discontinuation of unlawful conduct does not make the dispute moot, however. An injunction remains appropriate to ensure that the misconduct does not recur as soon as the case ends. *See United States v. W.T. Grant Co., * 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). The district court did not abuse its discretion in awarding prospective relief.

*Id. * (Emphasis added.)

Again, I am able to quote so much from the case because it is a work of the federal government, which is not subject to copyright protection.

[Exapno_Mapcase]

Thank you for those quotes.

kaltes obviously sided against those black-hearted villains, the RIAA and MPAA, in the previous post, which is an unfortunately popular and populist stance online.

That the RIAA was both legally and morally correct is manifest. The protest that “it’s so easy to steal, and I want it for nothing” is not much of a defense in either case, but it is equally rampant.

Similarly we see even here on the Dope people arguing that copyright infringement isn’t theft, isn’t stealing, isn’t a crime. They argue that they rather than the creators should have final say on the dispositions of works. They even argue that this is somehow up for discussion!

It’s a sad state of affairs, but one can hope that these copyright columns can pound home some simple truths about the law.

[Gfactor]

@Exapno Mapcase

Thank you for those quotes.

A pleasure. Two more things. First, here are the
district court: http://msl1.mit.edu/furdlog/docs/bmg_gonzalez.pdf and
7th Circuit opinions: http://www.ca7.uscourts.gov/tmp/Y41CPYVK.pdf

Second, here is a discussion of the case on Patry’s blog: The Patry Copyright Blog: BMG v. Cecilia Gonzalez

[RiverRunner]

Heaven help me – I agree with EM.

(Actually, now that I think about it, that happens fairly often. Aiieee!!)

I have never understood how reasonable people can conclude that taking the product of someone else’s work, time, and talent without permission or recompense is anything other than theft.

RR

@Exapno Mapcase

Similarly we see even here on the Dope people arguing that copyright infringement isn’t theft, isn’t stealing, isn’t a crime. They argue that they rather than the creators should have final say on the dispositions of works. They even argue that this is somehow up for discussion!

It’s a sad state of affairs, but one can hope that these copyright columns can pound home some simple truths about the law.

[kaltes]

@Exapno Mapcase

Their research appears to be quite a bit better than yours.

#1. Im not writing articles for the SD, I am merely commenting on an aspect of the reasearch that was a lot less robust and informative than it otherwise could have been.

#2. My information was/is correct. My criticism that no reasoning or significance is given for the author’s examples is valid. It leaves the reader with no idea of what is and is not illegal.

@Exapno Mapcase

Do you mean 17 USC section 502(b)?

I think it is obvious from the context that I meant 17 USC sec. 506(a)(2), since I referred to it as the “criminal provisions”.

@Exapno Mapcase

kaltes obviously sided against those black-hearted villains, the RIAA and MPAA, in the previous post, which is an unfortunately popular and populist stance online.

So you paint me as a zealot merely because I point out that the reality of consequences for copyright infringement is at odds with the “on paper” consequences discussed in the SD article? It is common knowledge that nearly all non-commercial copyright infringers face no consequences for their infringement. Then you have the RIAA and MPAA who have a financial stake in infringement spending a lot of money on advertising to exaggerate the consequences of infringement and condemn it as being morally, in addition to being legally, wrong. This is not bias on my part, this is fact.

I don’t work for the EFF. I don’t have a horse in this race, I just know bullsh*t when I see it, and the RIAA/MPAA heap massive quantities of it in order to try to mitigate what they feel their damages are from massive online peer to peer file sharing. Maybe you think the ends justifies the means, but that is irrelevant to this criticism of mine. I was very disappointed by part 3 of the series because this is the STRAIGHT DOPE, and I did not feel that part three was anything more than a regurgitation of what you’d hear from a RIAA/MPAA spokesperson. The reality is that copyright infringement is not a crime, and that there have been very few token criminal prosecutions of not-for-profit infrimgement under the NET Act, and none of these involved the activities that MANY SD readers undoubtedly engage in and care about: participation in peer-to-peer file sharing.

So my point is, part 3 is not the Straight Dope. It was probably a good faith effort, but unfortunately it comes across as tilting heavily to the RIAA/MPAA copyright enforcement perspective.

@Exapno Mapcase

That the RIAA was both legally and morally correct is manifest.

And of course here you reveal YOUR rather extreme bias…

The RIAA and MPAA write and lobby for the laws, so the laws favor their interests, but these entities routinely overreach in their characterization of the law and attempts at self-help enforcement. Examples have been documented for years. One noteworthy example where the RIAA lost was when it butted heads with Verizon when Verizon refused to play cop for the RIAA by handing over massive amounts of private account information for alleged p2p users. The copyright holders routinely try to force other companies to do their enforcement for them on the other company’s dime. Ebay and Amazon.com have also had to fight off similar efforts, and now Myspace is being sued.

As far as the RIAA being ‘morally’ correct, this is an absurd statement. Morals are not the issue. The RIAA represents companies that are motivated by profit. There is nothing wrong with that, as these companies are responsible to their investors, but they aren’t trying to get old ladies and teenagers thrown in jail for some higher moral purpose. Similarly, people who engage in p2p file sharing might live very morally upright lives, or not. Regardless of what one thinks of file sharing, I think only the most unreasonable enforcement zealots would dare claim that it is an act of moral turpitude.

@Exapno Mapcase

Similarly we see even here on the Dope people arguing that copyright infringement isn’t theft, isn’t stealing, isn’t a crime.

#1. It is not theft, it is infringement.

#2. It is not “stealing”. Stealing is a crime that involves personal property. Intellectual property can not be stolen, just infringed upon.

#3. Even the RIAA et al. have pushed the term ‘piracy’ since at least they can admit that the words stealing, theft, etc aren’t appropriate legal terms.

#4. Copyright infringement is not a crime per se. It has been criminalized only under certain situations when various criteria have been met. In addition, the vast majority of infringers are p2p file sharers, and to my knowledge not a single such person has ever been convicted of a crime under the NET act.

@Exapno Mapcase

They argue that they rather than the creators should have final say on the dispositions of works.

That is melodramatic and false. The tension in copyright law is not over whether the “creators” have control: they don’t. The copyright owner has control, regardless of that person’s status as creator. The RIAA members don’t create anything, they distribute and own the rights to the creations of others.

The tension is not whether the owners have control, it is how absolute the law will allow this control to be. Throwing old ladies and teenagers into jail for downloading britney spears? That’s too far. The power to force every other company to spend money to enforce YOUR rights? That’s right out. Forcing a tax on the makers of blank CDs to ‘compensate’ you since some of those CDs will be used for infringement? That’s ok. Balancing is done by weighing the interests of the copyright owners against that of everyone else. The copyright owners do not have absolute power.

@Exapno Mapcase

It’s a sad state of affairs, but one can hope that these copyright columns can pound home some simple truths about the law.

You mean, you hope the SD will carry water for the RIAA? No offense, but whether you agree with the ENDS or not (and you clearly do), the RIAA’s public approach to legal ‘education’ regarding infringement is blatant propaganda. Maybe it is propaganda for a good cause, as you argue, but it is not even remotely the STRAIGHT DOPE, which is what people come to this site for.

The reality is that only a tiny fraction of p2p infringers in the US ever get sued, and none of them to my knowledge have ever been put in jail. Outside the United States, the RIAA/MPAA members are almost laughably impotent when it comes to enforcement. Most countries in the world permit rampant commercial piracy, and even the most modern countries who normally support copyright owners against commecial piracy, have spurned them in their efforts to crack down on p2p users.

[Exapno_Mapcase]

I think I’ll continue to disagree with everything you say.

I’m a creator. I own all of my copyrights. I do have a horse in this race. I may be biased but I’ve also studied the subject for decades. You’re wrong in the law and you’re wrong on the facts. Infringement is a crime. It is theft. It is loss of control. It is money out of my pocket.

You cannot side with the thieves and against the creators and then say it’s not a moral issue. I say it’s a crime, and I say the hell with it.

[DSYoungEsq]

@kaltes

The reality is that only a tiny fraction of p2p infringers in the US ever get sued, and none of them to my knowledge have ever been put in jail. Outside the United States, the RIAA/MPAA members are almost laughably impotent when it comes to enforcement. Most countries in the world permit rampant commercial piracy, and even the most modern countries who normally support copyright owners against commecial piracy, have spurned them in their efforts to crack down on p2p users.

To assert that otherwise amoral actions should be allowed because it is difficult to properly penalize them is a poor application of social theory. By the same theory, we should never bother with those who cheat on their income taxes, we should never punish the very infinitismally small percentage of speeding drivers we actually catch, and we should refuse to care about provision of alchohol to underage drinkers, who will undoubtedly get their hands on the stuff regardless of how intensely we try to prevent it.

Violation of the law is amoral. Knowing violation of the law is doubly amoral. Argue against the law on the basis of whether the actions it proscribes should be considered criminal, or subject to redress via lawsuit. Do not argue that it should be allowes simply because “everyone does it and it’s silly to try and stop them.”

[Gfactor]

I was going to address kaltes’s arguments, but **Exapno ** and **DS ** have done a fine job. I will say that I can’t think of a single example of a Straight Dope column or staff report that advocates criminal conduct simply because it hasn’t been prosecuted yet. Prosecution is only one consequence of violating the law, so it wouldn’t be smart to make such an argument. I’ve certainly never advised a client, “hey, this violates a criminal statute, but I think the statute is bad policy–go ahead and commit a crime.” And I doubt I’d be permitted to make such an argument here, even if I wanted to; to do so with an actual client would be unethical. See, *e.g., * MRPC 1.2(d):

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

legal ethics

Oh, and by the way, while 17 USC § 506 spells out the copyright crimes, the federal criminal code section that deals with the consequences of committing them is 18 U.S.C. § 2319, which is conveniently kept in the Chapter 18. Chapter 18 is called “Stolen Property.”

[Gfactor]

@Gfactor

Oh, and by the way, while 17 USC § 506 spells out the copyright crimes, the federal criminal code section that deals with the consequences of committing them is 18 U.S.C. § 2319, which is conveniently kept in the Chapter 18. Chapter 18 is called “Stolen Property.”

Chapter 113–not 18. Sorry.

[Gfactor]

@kaltes

I do not like that, in part 2, discussion of criminal prosecution seems to be poorly researched. It is almost as if you merely asked someone at the RIAA to tell you about it.

Ok. I have a few minutes to spare. Let’s take a look at your claims now.

You’ve never said the RIAA has the law wrong. Perhaps that’s why it looks the same.

The only criminal provision for infringement is found in the No Electronic Theft (NET) ACT.

Nope. The NET Act became law in 1997. It amended the copyright law, and parts of Title 18 to “close a loophole” (before that, the prosecution had to show that the defendant had infringed willfully and for purposes of commercial advantage or private financial gain). *E.g., * Dowling v. U.S., 473 U.S. 207; 105 S. Ct. 3127; 87 L. Ed. 2d 152; 1985 U.S. LEXIS 88; 53 U.S.L.W. 4978; 226 U.S.P.Q. (BNA) 529 (1985). For those with short attention spans, *Dowling * predated the NET Act by 12 years. See also, U.S. v. Rose, 1966 U.S. Dist. LEXIS 7214; 149 U.S.P.Q. (BNA) 820 (S.D.N.Y. 1966) (charging jury in criminal infringement case); United States v. Taxe, 380 F. Supp. 1010; 1974 U.S. Dist. LEXIS 7190; 184 U.S.P.Q. (BNA) 5 (C.D. Ca. 1974); U.S. v. Bily, 406 F. Supp. 726; 1975 U.S. Dist. LEXIS 15308; 188 U.S.P.Q. (BNA) 344; 191 U.S.P.Q. (BNA) 717 (E.D. Pa. 1975). All of these cases predate the 1976 Act. The 1909 act had a criminal infringement provision.

This provision requires infringement of a retail value of more than $1,000.

“Or for purposes of commercial advantage or private financial gain.” 17 U.S.C. § 506(a)(1). The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works. 17 U.S.C. § 101. Also, you’ve missed two other categories: 18 U.S.C. § 2319A (also in the chapter of the federal criminal code titled “Stolen Property,” says:

Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain—
(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation;
(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance; or
(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States;
shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both, or if the offense is a second or subsequent offense, shall be imprisoned for not more than 10 years or fined in the amount set forth in this title, or both.

And the recent FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005, Public Law 109-9, 119 STAT. 218 creates a section2319B of Title 18, Chapter 113. That section makes it a crime to:

without the authorization of the copyright owner, knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under title 17, or any part thereof, from a performance of such work in a motion picture exhibition facility

It also adds a section (C) to 17 U.S.C. 506(1) which makes it a crime to willfully infinge a copyright if the infringement was committed:

by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

Neither the NET Act or this restriction are in the article.

@Part 3

Finally, it’s a crime to infringe:

a copyright willfully either—
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.

While we didn’t mention the NET Act by name, we got (2) in there.

There is no explaination [sic] for why the 100 x $10 has any significance.

Ed (he edits the staff reports) and I have an ongoing debate about this. I always assume the readers are brain-damaged (cynical guy that I am). So I will spell out that $100 X 10 is $1000, the very sum mentioned a few sentences before the one you complain about. Ed (the eternal optimist) claims that our average reader actually has some short term memory left, and can sometimes even remember ideas between paragraphs. It’s a debate I wish I’d lost. . .

The reader is left with the impression that the most important factor is that the infringement is “willful”.

I’m pretty sure you are one of the few who were left with that impression. On the other hand:

This kind of deliberate obfuscation is exactly what the RIAA does when it makes technically-correct-but-actually-deceptive fearmongering statements.

I think this is the sort of statement that might lead **Exapno Mapcase ** or others to see you as a “zealot,” as you put it. Deliberate obfuscation? Fearmongering?

But let’s get to the heart of why this is sloppy research: To my knowledge the criminal provisions in 17 USC section 502(2), which is what applies to file sharing, has not been enforced. There are a few token cases, but those involved things like mass software piracy, which is usually taken more seriously than peer-to-peer music sharing.

So it hasn’t been enforced, except for those few times that it was? This makes it non-criminal somehow? I don’t get it.

Even when Ashcroft was around, he knew that throwing good citizens in jail for downloading britney spears was a terrible idea. The RIAA leaned on him to make examples of some people, and he refused. Don’t you think if a law is unenforced against the file sharers, that belongs in a discussion of the consequences of file sharing/infringement?

Nope. Not if I’m explaining what the law is.

That is the kind of issue to research since it is something the SD readers would really care about. “The truth about the consequences of copyright infringement” would make for a good article, and would open a lot of eyes.

Articles with titles that begin "The Truth about . . . " usually prove to give anything but.

I also think it is wrong to simply state the 30k and 150k numbers with no discussion of ACTUAL awards.

Why?

Other experienced attorneys in this field have told me that actual awards are on the low end of that scale.

This sounds like some of that obfuscation we were talking about earlier. “Actual awards are on the low end of the scale?” Which one? The one for actual damages? Statutory damages (after *Gonzalez * this is likely because many plaintiffs will seek summary judgment for the minimum ($750) instead of spending money on a trial, but so what? They don’t have to. Statutory damages are expressed in the statute as we described it.

Most of the copyright enforcement business is really about scaring people into settlements, not going to trial, because it just isnt [sic] worth it financially to spend more on your lawyers to take some person to trial than you’ll get from any judgment.

Really? What is the average award for defendants in copyright cases? How is this different from any other kind of litigation?

In addition, there are MAJOR problems that the RIAA and MPAA have in proving up their cases when it comes to file sharing. It would also have been nice to know what the results have been with the many thousands of RIAA civil suits. Bear in mind the RIAA cherry picked those people to sue from millions of possible targets. I havent [sic] followed those cases for a while so i dont know whats happened with them.

*Gonzalez * is one of the first. She lost. Didn’t get a jury trial. Was enjoined from copying anymore, and is lucky she wasn’t criminally prosecuted. The Court of Appeals said the result was ok, and the Supreme Court denied certiorari.

It is common knowledge that nearly all non-commercial copyright infringers face no consequences for their infringement.

That does not make their conduct legal.

I just know bullsh*t when I see it

I’m sorry, where was it again? The association that represents the holders of copyrights is enforcing the holders’ rights, but you think they should settle down and take a more laid back approach? Is that it? How is what they say wrong?

So do we get an apology for when you said it was “deliberate obfuscation . . . fearmongering statements”?

#1. It is not theft, it is infringement.

#2. It is not “stealing”. Stealing is a crime that involves personal property. Intellectual property can not be stolen, just infringed upon.

This is the sort of claim that we usually see in those articles whose titles begin with "The Truth about . . . "

Stealing is whatever Congress says it is–ditto theft. The DOJ guide that I cited earlier picks up on your distinction and turns it on its head:
“Stealing”

Infringement is often referred to as a form of theft. For example, 18 U.S.C. § 2319 is located in a chapter of the criminal code entitled, “Stolen Property.”** Yet infringement is distinct from common-law theft, and requires no showing that the defendant “stole” or deprived another person of a physical copy of a work. Making additional copies of a book, movie, or other work may constitute infringement, even if the defendant obtained his original source for additional copies lawfully. Likewise, although publicly distributing copies that were stolen from the copyright owner could constitute infringement, it is not always necessary to show that copies were “stolen” in order to show infringing distribution**.

(Emphasis added.)

To the extent copyright crimes do not meet the common law definition of “theft,” it is because the prosecution does not have to show a physical taking. Yes, intellectual property is easy to steal. Nobody really needs a manual on how to do it. But convenience does not make it ok. Kinda reminds me of the time I came home and found a guy parked in my parking space. I had him towed (parking was hard to find–that’s why I paid for a reserved spot). He later came to my apartment to complain about the towing. His argument? “You weren’t using the spot.” This simply misunderstands American property law. In most cases I can do pretty much whatever I want with my property. I can put it in a box and not let anyone touch it, I can share it, I can sell it, or I can keep you from using it–even if I’m not using it either–even if it’s really really easy to take. You might argue that this is not the most efficient way to set up a regime of property ownership. Given the right proposal, I might even agree with you.

For example, you could argue that the idea behind copyright law is “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” and that a better system would permit sharing of protected works under some circumstances. But that doesn’t make it legal under the current system–that’s an argument for legislative change.

That is melodramatic and false. The tension in copyright law is not over whether the “creators” have control: they don’t. The copyright owner has control, regardless of that person’s status as creator. The RIAA members don’t create anything, they distribute and own the rights to the creations of others.

File-sharers are neither creators nor copyright owners of the works they share. It’s really not their business what arrangements are made by the author of a work for its distribution. If you want to permit file sharing of a work that you have created, there isn’t a thing stopping you. Go for it, but don’t sell the exclusive rights to somebody else first, when you sell the rights, you give up control. The good news is you don’t have to sell. You can publish it yourself and make it free to the world.

The reality is that only a tiny fraction of p2p infringers in the US ever get sued, and none of them to my knowledge have ever been put in jail. Outside the United States, the RIAA/MPAA members are almost laughably impotent when it comes to enforcement. Most countries in the world permit rampant commercial piracy, and even the most modern countries who normally support copyright owners against commecial [sic] piracy, have spurned them in their efforts to crack down on p2p users.

It seems we’ve come full circle. You wanted us to tell everyone to go ahead and infringe because they will probably suffer no consequences, right? And because we didn’t that made us “fearmongers.” Thanks for sharing.

[kaltes]

@DSYoungEsq

To assert that otherwise amoral actions should be allowed because it is difficult to properly penalize them is a poor application of social theory. By the same theory, we should never bother with those who cheat on their income taxes, we should never punish the very infinitismally small percentage of speeding drivers we actually catch, and we should refuse to care about provision of alchohol to underage drinkers, who will undoubtedly get their hands on the stuff regardless of how intensely we try to prevent it.

Violation of the law is amoral. Knowing violation of the law is doubly amoral. Argue against the law on the basis of whether the actions it proscribes should be considered criminal, or subject to redress via lawsuit. Do not argue that it should be allowes simply because “everyone does it and it’s silly to try and stop them.”

Well I hope you enjoyed bludgeoning your straw man, because I never made any claim that infringement should be allowed because it is difficult to punish. I support copyright laws, with the exception of one part of the NET Act, with the exception of part of the DMCA, and with the exception of statutory damages for infringers. I think copyright owners should have to show actual damages. Give them treble damages even, but if you can’t show any damage, then you shouldn’t be able to possibly get a large recovery.

Also, Im not talking about social theory, Im talking about reality. People are using an awful lot of ‘shoulds’, it sounds more like a college class than the straight dope.

Violating the law is not necessarily amoral. I’m pretty sure Martin Luther King would disagree with you when he was sitting in the Birmingham jail. There are countless historical examples of the law being wrong, not the person who violated it. In addition, copyright law is a “malum prohibitum” law, it is not derived from natural law. It is not a matter of inherent immorality. It is a construct that society has devised to promote the interests of creative persons and reward them for their creations.

[kaltes]

@Gfactor

I will say that I can’t think of a single example of a Straight Dope column or staff report that advocates criminal conduct simply because it hasn’t been prosecuted yet.

Since when did accurately discussing the nature of copyright enforcement and the consequences of infringement become an advocacy of “criminal conduct”?

I merely pointed out that the current state of the article, which is more propaganda than fact, differs greatly from the reality. The STRAIGHT DOPE is here as a means for people to get, you know, the straight dope, not to be fed propaganda. As I said before, whether you feel it is right or wrong, RIAA/MPAA advertising is blatant propaganda, designed to discourage primarily p2p infringement.

@Gfactor

Prosecution is only one consequence of violating the law, so it wouldn’t be smart to make such an argument.

Your garden variety non-commercial copyright infringement is no more a violation of the law than breaching a contract. It exposes you to potentially being sued in civil court, nothing more. It is a private dispute, not a criminal act.

As for breaching contracts, businesses do it all the time. Attorneys even sometimes legally and ethically advise clients that a contract should be breached. It is rarely in the client’s interests to do so, but when it is appropriate, it is a valid course of action.

@Gfactor

I’ve certainly never advised a client, “hey, this violates a criminal statute, but I think the statute is bad policy–go ahead and commit a crime.” And I doubt I’d be permitted to make such an argument here, even if I wanted to; to do so with an actual client would be unethical. See, e.g., MRPC 1.2(d):

What complete and total nonsense, predicated on the false assumption that copyright infringement is a criminal act. It is not.

It would be obviously unethical to suggest that a client should committ a crime. Your hubris is that you have equated a realistic, honest discussion of the consequences of copyright infringement with advocating a crime. You are arguing that telling the truth is unethical, what an absurd statement.

@Gfactor

Oh, and by the way, while 17 USC § 506 spells out the copyright crimes, the federal criminal code section that deals with the consequences of committing them is 18 U.S.C. § 2319, which is conveniently kept in the Chapter 18. Chapter 18 is called “Stolen Property.”

I think you know how thin that argument is. The statute you cite accurately uses the term INFRINGEMENT instead of using the improper terms “stealing” or “theft”. Nothing is stolen when it comes to copyright infringement, only copied. Whether the somewhat recently enacted NET Act provisions are placed alongside statutes dealing with chop shops or bank robberies makes no difference.

Copyright is a creation of the government to promote the development of creative works. This is a public policy consideration, but it is not the only consideration. If copyright owners become too predatory in their enforcement, the public’s interest in being free from such tactics begins to outweigh the interests of the copyright holders.

[kaltes]

@Gfactor

It seems we’ve come full circle. You wanted us to tell everyone to go ahead and infringe because they will probably suffer no consequences, right? And because we didn’t that made us “fearmongers.” Thanks for sharing.

I never advocated infringement, only an honest discussion of the consequences. You are unwilling to be honest because you would rather act as an advocate against infringement by exaggerating the consequences. Yes, it is fearmongering to tell the readers of the Straight Dope that they will be thrown in jail for using p2p networks (for example), when you can’t find that a single p2p user (someone like the SD readers) has ever been thrown in jail for it. By refusing to discuss anything other than the unenforced or very rarely enforced laws, bought and paid for by copyright owner lobbyists and interest groups, you are presenting a biased and inaccurate perspective. That is not the straight dope.

[Exapno_Mapcase]

@kaltes

Violating the law is not necessarily amoral. I’m pretty sure Martin Luther King would disagree with you when he was sitting in the Birmingham jail.

He would also disagree with your notion that civil disobedience is anything other than a protest which is deliberately designed to end in formal state punishment.

You lose all moral authority when you suggest that infringement is not a crime and that it should not be punished. That is the opposite of what civil disobedience means.

To be consistent, you should be loudly shouting to all and sundry that copyright infringement is a criminal act and that all who commit that crime should go to jail. That’s the way to get the law changed.

As it stands, it seems to me that you are doing your side a disservice.

[Gfactor]

@kaltes

Since when did accurately discussing the nature of copyright enforcement and the consequences of infringement become an advocacy of “criminal conduct”?

Sorry it’s taken me so long to get back to you. I’m sorry to report that I found your arguments so insubstantial that this response took an extremely low priority. I realize that your guest posting priviliges have expired, so I’ll try to be somewhat gentle. Also, if you’d like to respond, you can email me, my email is in my profile.

Here goes. You are really hung up on this infringement is not a crime. But you didn’t bother responding to the part of my post that pointed out that you don’t seem to know much about copyright crimes.

I merely pointed out that the current state of the article, which is more propaganda than fact,

But you didn’t point out any factual errors. And by the way, isn’t your argument propaganda? Look up the word, dude, I don’t think it means what you think it does.

As I said before, whether you feel it is right or wrong, RIAA/MPAA advertising is blatant propaganda, designed to discourage primarily p2p infringement.

Again, I suggest you familiarize yourself with the meanings of the bigger words before you use them. Also, a little support is useful when making argumentative claims like this. They’re claiming that you shouldn’t violate people’s legal rights. You don’t like the legal rights they assert. Therefore, it’s propaganda?

Your garden variety non-commercial copyright infringement is no more a violation of the law than breaching a contract. It exposes you to potentially being sued in civil court, nothing more. It is a private dispute, not a criminal act.

1. You don’t seem to really know what you are talking about. What “garden variety” are you selling?

2. How is it like breach of contract? I’m assuming you haven’t negotiated a license with the copyright holder. So you are invading their property rights–more like a tort (if you know what that is). And there’s a difference between contract law and tort law. Intentional or willful torts can give rise to punitive damages.

As for breaching contracts, businesses do it all the time. Attorneys even sometimes legally and ethically advise clients that a contract should be breached. It is rarely in the client’s interests to do so, but when it is appropriate, it is a valid course of action.

Again, you are stuck on the idea that copyright infringement is not stealing. Most experts in the area, and many courts disagree with your analysis. But let’s assume you are right–it’s sui generis. In the next breath it becomes like breach of contract? How? Where are the similarities there? Again, no offense, but you clearly aren’t a lawyer, and have a primitive understanding of legal principles in general. I’m sorry, but I find your analysis fundamentally confused. Here is why. Like tort law, copyright law punishes willful violations more than accidental ones.

In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

If a client asked me if it was a good idea to violate someone’s copyright on purpose, I’d say no way. Best case scenario is you’ll get hit with an award of statutory damages for innocent infringement (assuming you commit perjury and don’t go to prison for that), which is $200 per violation–it’s a lot cheaper to buy even a rare recording. And of course, if you testify honestly (perjury being a crime, I can’t advise a client to do it), you’re on the hook for up to . . . $150,000 per violation. Even if the award comes in much lower, it still does not make economic sense to do it, and if the plaintiff catches you running your mouth about how it’s a minor thing to do it on a message board (civil cases have this thing called discovery, see) you’re more than likely going to come off to the jury like an arrogant jerk, and get hit big time. And that’s not even considering the possible criminal penalties.

While we are at it, if the government decides to investigate you for criminal violations, they can get these things called search warrants. They’ll search your house and find your weed, and your bootleg dvds, and the kiddie porn you “accidentally” downloaded from that file sharing network. They might decide to forgive your downloading every song Hall & Oates ever recorded, but by that point, it’ll be irrelevant.

What complete and total nonsense, predicated on the false assumption that copyright infringement is a criminal act. It is not.

Saying it louder or more times doesn’t make it any more true.

I think you know how thin that argument is. The statute you cite accurately uses the term INFRINGEMENT instead of using the improper terms “stealing” or “theft”. Nothing is stolen when it comes to copyright infringement, only copied.

How about theft of service? Identity theft? The No Electronic **Theft **Act (this one is your favorite, I know)?

Whether the somewhat recently enacted NET Act provisions are placed alongside statutes dealing with chop shops or bank robberies makes no difference.

Apparently the only thing that matters is what you think, right?

By refusing to discuss anything other than the unenforced or very rarely enforced laws

It’s a four-part article. We talked about lots of other stuff, you just weren’t paying attention. Besides,

Whether the somewhat recently enacted NET Act provisions

If it’s recently enacted, how relevant is it that it hasn’t been enforced yet. And all we have is your opinion that it hasn’t. By focusing on statistics you don’t know and limiting discussion to one section of the statute, you mark yourself as a one-trick pony.

As you can see here (http://www.usdoj.gov/criminal/cybercrime/usamarch2001_1.htm), the decision to prosecute is complicated, and only partly determined by the size of the offense. Prosecutors consider things like:

1. The Nature and Seriousness of the Offense
2. The Deterrent Effect of Prosecution
3. The Individual’s Culpability in Connection with the Offense
4. The Individual’s History with Respect to Criminal Activity
5. The Individual’s Willingness to Cooperate in the Investigation or Prosecution of Others
6. The Probable Sentence or Other Consequences if the Person is Convicted
7. The Adequacy of a Noncriminal Alternative in an IP Case

If a client asked me to discuss the criminal consequences of willful infringement, I’d need to check out things like whether he’s been bragging about how the consequences of infringment were minor on message boards, how many copies the feds would find when they searched, whether he’d also been circumventing encrytption mechanisms, among other things, and then, in passing, I might say that a few copies will probably not put him in prison, but if he’s filesharing, that probably counts as commercial advantage or private financial gain under the statute, which means even one copy is a violation, and the fact that there may have been few prosecutions won’t be a defense if he gets charged.

[willydj1]

Where are parts 2-4? I can only find part 1 in the archives!

[Irishman]

At a minimum, can we get links to the other columns added to this one?

Posting them in the OP of this thread would also be nice.

[Acsenray]

Try sending a message to an admin. It’s likely no one is monitoring this thread.