All proof boils down to “more likely than not.”
Having a first hand witness still only means that it’s more likely than not that the witness isn’t blaming the defendent for his own reasons, having a fingerprint still only means that it’s more likely than not that the defendent was there during the crime and not because he happened by a few hours previous for unrelated reasons., etc.
It all boils down to multiplying the odds of every single bit of evidence together.
Each time Home Depot provides a chainsaw to a customer, they’re depriving Ace Hardware of some money. Each time someone installs Linux instead of Windows, they’re depriving Microsoft of some money. What kind of punishment would you suggest for those heinous crimes?
:dubious:
Each time I don’t give you my wallet, I’m depriving you of money. When I steal your wallet I’m also depriving you of money. These are both true statements, but to suggest that there’s any sort of moral link between them is, quite simply, stupid.
Yes, that’s exactly my point.
If you decide not to buy a widget from me for $1 because someone else offered you one for free, that’s not the same as taking $1 out of my pocket. The latter makes me poorer; the former leaves me untouched. The post I quoted said, “Do not think it is different than her reaching into their pocket and lifting that money”, but it is different.
The internet porn industry has managed to flourish, despite rampant copyright infringement of their work, and without the industry staging a huge publiclity campaign by randomly suing people. Does the RIAA truly need to be dicks in order for their industry to survive?
Of course it does. Part of his argument is that the chances of her IP address being spoofed is vanishingly small. However, that is a statistical fallacy as illustrated by my car example.
I have a legal question for Bricker: In light of STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. v. CAMPBELL (2003) how can the RIAA continue to collect these huge judgements?
In that case, the Supremes held that a $145 million dollar punitive damage judgement where compensitory damages were 1 million violates the due process clause. The ratio there was 145 to 1. How can a 10,000 to 1 ratio not be considered grossly excessive?
It isn’t different. In any case what you’re talking about is whether the person did or didn’t have the right to appropriate the goods as per all legality. Anything else is theft.
If I am Home Depot and I start stealing chainsaws to enable myself to sell them for one cent a piece, then I’m stealing. If I’m Home Depot and I steal the chainsaws to give away for free, I’m still stealing. I’m stealing customers from Ace Hardware in a vernacular sense not a legal one, but that’s not what I Whack-a-Mole were talking about. The actual theft was, quite obviously, the initial theft of the chainsaws. Home Depot had no right to those chainsaws and yet it took them for it’s own personal use.
To expand on my last post…
Music isn’t a single product; it’s two products: Type 1 is a product that can be sold and distributed, and type 2 is a product that can be consumed. Conversion of a type 2 into a type 1 is the same as stealing chainsaws to sell them. You had no right to do that by all legality.
On the other hand, if you’re Home Depot and you build your own identical chainsaws to give away for free, you’re not stealing. See the difference?
That aspect is exactly what’s missing from the real-life situation with the music files. They were never taken away from anyone.
That’s strange, because to take a music file that you can play and change it into one that you can distribute requires no effort, and in fact it involves no changes to the product at all: it’s the same file. What makes you think this “conversion” actually exists?
Also…
Well, no, that’s not what I was talking about. I was talking about declining to give money to someone vs. actually taking money away from them. As you said yourself, even though both acts might be construed as depriving someone of money, “to suggest that there’s any sort of moral link between them is, quite simply, stupid.”
That depends on if any particular parts are patented and whether one could argue trademark violation if the product was fraudulently being sold as the original.
As I followed up with, the files aren’t the property. The rights are the property.
If I own a copy of Steven King’s The Stand, selling my copy of the book to a used book store is entirely different from telling a Hollywood producer that I own the movie rights to the book, and proceeding to sell those rights.
You might read through this paper on plagiarism and see if you disagree with the author on whether plagiarism constitutes theft by the standards of criminal law–which is a lot more difficult to argue for than copyright infringement.
It takes me no massive effort to convert myself into Steven King, either. The ease of transformation has little to do with my entitlement to Steven King’s property.
I never suggested that someone was depriving someone of money, I said it was depriving of them of their rights to the usage of their own property (which would most likely be for monetary gain, to be certain, but that’s irrelevant.)
Do you mean in this particular verdict or do you mean eventually upon appeal? If the first, then I think the following jury instruction sheds some light (from my link above):
I will admit that I know almost nothing about law; I don’t even have a collection of misinformed anecdotes based on TV law shows. But I assume that statutory damages are fundamentally different than punitive damages. Wouldn’t statutory damages be a type of compensitory damages – when the exact compensation is difficult to determine?
First, please remember that my strength is in criminal law; I may stick a cautious toe into the waters of the civil arena from time to time on basic concepts, but the tougher the issue, the less likely I am to have useful or relevant insight, and the more grateful I am to defer to one of my brethern at the bar who possess a more in-depth understanding of the civil side of things.
Having said that, I am willing to hazard a guess.
State Farm v. Campbell addresses punitive damages, and makes a specific distinction between punitive and compensatory damages. The court points out that punitive damages are not intended to compensate actual losses – they are punishment, aimed at deterrence and retribution. The court analogizes them to a criminal penalty – their purpose is to punish the tortfeasor.
Because they are analgous to a criminal penalty, the court looked to broad principles of due process analysis to say, in effect, that a punishment that is orders of magnitude beyond the actual loss caused by the tortfeasor’s conduct is impermissible.
Here, in the RIAA case, the penalty is not punitive. It’s compensatory. Granted, it’s compensatory not because the company proved they suffered that amount in damage, but because the law sets a range for the award. The thinking here is that specific damages would be impossible to prove; they would be so highly speculative as to make the requirement to prove them an effective barrier against ever collecting any damages. We see the same idea in contract law with liquidated damages – an agreement ahead of time that a breach of the contract means you’ve caused X dollars in damages. This relieves the other party from having to prove specific damages under impossible situations. Let’s say I hire you to do the plumbing for my new gym. You fail to meet the schedule and I can’t open as planned; I lose six weeks of operating time. It would be ridiculous to try to make me prove that I would have made such-and-so profit during that time. But it’s equally ridiculous to say that because I can’t prove specific damages, you’re off the hook for ANY damages. The solution is a contract that spells out specific liquidated damages if you breach.
So in short, this case differs from the State Farm rule because punitive damages are not at issue here.
It seems clear to me that these statutory damages are intended to be punitive even if they are not labeled as such. I can see no realistic scenerio where they are losing even 100 dollars per song, let alone $9,000. Can Congress simply label it compensatory and the judicial review on excessiveness is foreclosed?
So, now “stealing” refers to anything that violates any law? I don’t think so.
You’re right… falsely claiming that you own those rights is fraud. That’s another element missing from the real-world example of file sharing, where no one claims to be the artist/author, or their representative, or to have any legal rights which they don’t actually have. Both of the acts you described are entirely different from printing additional copies of the book and offering them to other people who know exactly what they are, which would be analogous to sharing music.
The rights aren’t “stolen” either - the file sharer doesn’t become the new copyright holder, nor does the downloader. That copyright still belongs to whoever had it before.
I might, if I can be convinced that plagiarism, a form of fraud, is relevant to file sharing, which doesn’t involve fraud.
Let me recap, then, because one of us seems to be misunderstanding something.
Me: The post I quoted said, “Do not think it is different than her reaching into their pocket and lifting that money”, but it is different.
You: It isn’t different.
That’s not suggesting that someone is depriving someone of money?
As for depriving them of their rights to the usage of their own property… first, you said the rights are the property, so what does that even mean?
Second, assuming that “property” refers to the song here, they aren’t deprived of the rights to use it. They can still use the song in exactly the same ways as they could before it was shared. They might have a hard time selling copies to people who already have copies, but then, it’s also hard to sell most other things to people who already have them.
If you check part 3, section ii of the paper on plagiarism, one of the key items of property is commodifiability. That is to say, anything which can reasonably be bought and sold is commodifiable.
In the modern world, you can buy movie rights, you can buy publication rights, advertising rights, etc. Each of these rights is a “product”. It’s true that claiming one of these rights as your own doesn’t (theoretically) deprive the actual owner to use and sell those rights. But in real life terms, if everyone could do that then there would be no value to the rights. I wouldn’t need Steven King’s permission to make a movie so why would I even include him in any sort of consideration? He might give me the movie rights for free, certainly, but at the same time he might require that he has script approval or that he gets a part in the movie or something–which is a hastle. In net effect, allowing people to claim a right that is held by another person does rob the person of that right. Where it used to have worth, it now doesn’t have any worth. That worth might not be quantifiable, but it’s certainly been robbed.
RE the chainsaw/Home Depot discussion…
If a way were found to duplicate a $200 chainsaw at a cost of less than one penny, and the duplication process could be done by anyone with no training in a few seconds, the situation would change significantly.
Not legally or ethically, but practically. Trying to enforce illegal duplication of chainsaws would be impossible and the only thing Home Depot could do would be prosecute a very few parties in show trials, hoping they could scare others into submission with high fines.
Which leads me to the conclusion that modern technology requires a revamping of copyright laws, maybe even discarding them altogether. The problem isn’t going away, just becoming a black market and a situation where “everybody does it” and record companies are spending more money on enforcement than making new recordings.
You can’t dump copyrights. They were invented for the purpose of allowing people to profit–and thereby to have a motive to create things for other people.
And like I said, it’s just as easy to ignore copyright to make a movie without the rights. You just go ahead and do it, and all you had to do was dish out $4 for the paperback–less than your average CD. The ease of breaking the law isn’t the issue. The issue is in tracking down the infringers. Once proper logging is added to the internet routers in the world, not only will file sharing disappear but so will spam and other nuisances.
Or do you think that because of the ease of spamming the world, we should cease working on methods to stop spambots of all sorts?