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Comment by emmett | Hacker News Reader

The fact that it is widely practiced is a defense. For the same reason that people would rightly object to a $675,000 tort judgment for speeding, or jaywalking, or smoking marijuana.

Are they crimes? Certainly. But because they're widespread, generally unenforced, mostly "victimless", people are outraged that they'd have such high penalties. If you applied that judgment fairly you'd probably bankrupt 3/4s of America, if not more, which would be bad. Any law that you don't want enforced in the general case is a bad law that's going to generate outrage when it is enforced.

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I think your last sentence is on the right track. To paraphrase Kant, if theoretically the RIAA could receive compensation to the tune of 150k/per infringement from every single U.S. citizen that has ever shared a copyrighted song, would that be just?

Torts and crimes aren't the same thing. There is, for instance, no such thing as a "victimless tort".

Explain. If I burn a copy of a CD I own for shits, that is formally an act of copyright infringement. Who is victimized by this act?

I understand that tort by definition is compensation for injury, but if that injury as defined by the law does not actually harm a party, it fits my definition of "victimless".

Statutory damages for copyright infringement have historically been in lieu of actual damages when such were hard to prove, and IIRC earlier versions of the copyright act explicitly said that statutory awards are not to be construed as punitive. It's hard to argue that these awards are anything but punitive.

People aren't getting sued for burning a copy of CDs that they own just for shits. That may in fact be all they've done, but what's being claimed is that they're copying and distributing content.

sadly, the proof of distribution is almost always very circumstantial.

I'm only arguing against the blanket statement that there is no such thing as victimless tort.

As for the distribution issue, unless there are actual damages I still don't think the copyright owner is a victim.

That's like saying that you are a victim if someone walks across your property without permission. They may not be legally able to do that (in the US), but if the act does not affect you in any way, you can not justifiably claim to be a victim.

A listener not paying for something they weren't going to pay for anyway is a victimless tort when the record label doesn't actually lose any money.

Cory Doctorow puts it best in explaining why he Creative Commons licences his books:

> Most people who download the book don't end up buying it, but they wouldn't have bought it in any event, so I haven't lost any sales, I've just won an audience.

http://www.forbes.com/2006/11/30/cory-doctorow-copyright-tec...

Someone is harming the music industry, but it's not the listeners. It's the RIAA.

While we could argue the first sentence, it's not germane to the discussion. People are getting sued for distribution, not for personal use.

But it's mostly about distributing it to people who wouldn't buy it anyway. If they want to claim a file copied to 100 users prevented 100 sales, they must have a reasonable evidence indicating those 100 downloaders are capable and willing to buy every song they download, which is probably not the case.

Most downloaders I know of are more collectors and explorers than anything else. By making numerous copies of artistic works, some of them very obscure, they could as well be providing a valuable data preservation service for future generations.

Just imagine if a generation manages to completely DRM works of art just to discover they lost their keys and the programs required to reconstruct those works... Without proper context, they will look like random noise to future archeologists.

I agree artists deserve adequate rewards for their works. Perhaps a compromise should be reached. It seems copyright has been abused and extended far too much, to a point where it creates more harm than good.

The nature of peer-to-peer networks is that personal use is distribution. Treating file sharing as equivalent to mass-producing unlicensed DVDs contributes to the public's outrage.

I'm not sure why you chose to pick on a single word in my comment above which is clearly not relevant to the main point. You have failed to address my main main point, which I'll restate here:

People are outraged by this for a perfectly good reason. The penalty seems too large for the deed. This is not simply a case of those-entitled-kids thinking that they deserve to be able to steal music for free; this is a reasonable response where someone is being bankrupted for the moral equivalent of speeding.

My point is that the penalty sounds large for the "deed" in large part because the "deed" is so incredibly easy to do.

People had almost exactly the same complaints about sentencing during the Sun Devil era of computer security; hackers were just exploring, hadn't intended any harm, and surely hadn't cost millions in damages. Public opinion settled in the other direction.

It's really easy to shoplift too - just like shopping without waiting in line. I don't see any reason to think the ease of doing something makes people forgive it. Maybe that's a small contributing factor? Seems unlikely to me, since there are so many "easy" crimes that are not forgiven.

It seems much more likely to me that it provokes outrage to penalize highly because it's widespread and laws against it are mostly unenforced. And if that's the case, the analogy with computer hacking is invalid, because only a tiny minority of Americans would even know how to crack a computer.

Other widespread, generally unpenalized acts-for-which-you-might-be-penalized-by-the-courts (hereafter "acts")[1] provoke outrage when they are enforced with heavy penalties, Other easy-to-commit acts are heavily penalized and provoke no outrage. Therefore, it seems to me your analogy is suspect.

1) Better than "deeds"? You threw scare quotes on that word for some reason. I'd rather just call them crimes, but I don't want to provoke an argument over the word.

I don't think the ease of downloading files is at all comparable to the ease of shoplifting.

You're right. Downloading is much easier. Shoplifting requires one to:

1. Get out of the house

2. Remove an actual product from a physical store, so the loss will be physically noticed

3. Defeat the RFID tags on the merchandise (most stuff worth shoplifting is tagged)

4. Walk past the store greeters without looking suspicious (something an average mostly-honest person would struggle with)

"Public opinion settled in the other direction."

And we all know public opinion is never wrong.

It's really easy to share copyrighted files. It's easier, in fact, than downloading them. Both are so easy people overconsume. They download more music than they will ever hear - music they would never buy if they had to incur the cost.

More interestingly, how do plaintifs prove the sharer allowed the copy of the whole file? It's easy to imagine any downloader got the files from a number of different sources, each effectively sharing a tiny part of the file.

Thinking about it... Couldn't the protocols not advertise the parts of the file the sharer has, but, instead, receive a list of wanted parts from the downloader and respond with some, but perhaps not every, part of the file? What would happen to these lawsuits if nobody ever shared the whole file with anyone?

This relates to an idea I had: create a "fair use" file sharing network, by posting carefully-chosen 10 to 30 second "review" clips of songs on various web sites, then distribute a tool (script, program, whatever) that can locate the pieces and reassemble them.

I think the "careful chooser of segments" tool risks defeating your defense based on fair use because it embodies an intention to deliver the complete work.

For that to work what you would need is an annotation protocol reviewers would adhere to (hash, start-end) that could allow a downloader to locate the missing pieces. The locator tool would also have to be designed in such a way not to ruin the fair-use defense too.

This is not a trivial problem and, I must add, we are talking about a tool designed to violate copyright laws and to get away with it.

It would be much wiser to direct our efforts towards a more rational copyright system instead of trying to break the law.

The idea was borne more of intellectual curiosity than an actual desire to implement a new way of breaking copyright. I agree that the best approach is a revamped copyright system that promotes the progress of science and the useful arts while accounting for the modern reality of near-zero-cost distribution.

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