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Comment by tptacek | Hacker News Reader

Again: just because the Internet makes a tort insanely easy to commit does not make it any less of a tort.

The cognitive dissonance here is between the casual ease (and apparent innocuousness) of file sharing vs. the actual reality of unauthorized distribution.

It doesn't seem like it should be possible for some poor soul to wind up incurring 60k of damages just for clicking a button to trade "free" music. But it is. Just about every government in western civilization has considered this issue, and from what I can see, the verdict has been unanimous. "Easy for a lower-middle class mom to wind up in hock to the RIAA for five figures? Not the RIAA's problem. Don't trade copyrighted music."

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I think your analysis is off. It's not a matter of the ease of committing the crime, it's a matter of the punishment fitting the crime. Clicking a mouse is no more work than pulling a pistol's trigger, but we have completely different expectations for the implications of those two actions.

Western societies have had the idea of proportionality between a crime and its punishment for over 3,000 years[1]. The reason this ruling is so shocking is that the punishment is in no way proportional to the crime, regardless of the ease of committing it. Thomas-Rasset was convicted of creating copies of 24 songs. The issue is not how easy this was to do; even if she had to tediously carve the tracks into vinyl records with a fork, her punishment would be no less shocking. The magnitude of this crime does not fit a punishment of millions of dollars, or even tens of thousands, because the harm to the victim of the crime is so slight.

[1] http://en.wikipedia.org/wiki/Code_of_Hammurabi

If I went out and copied 24 DVDs and gave them to random people I would be appalled if someone came after me suing for 54k. So no, I don't have any cognitive dissonance on the matter. It's just a ridiculous tort and a ridiculous award.

I think you find the tort "ridiculous" because it's so easy to do and so hard to stop, not because you fundamentally don't believe companies shouldn't be able to price their products as they see fit or to enforce their own property rights. I don't know, I can't read your mind, that's just my opinion.

After all, you're commenting on a message board for startups, almost all of which rely heavily on IP and copyright law to survive.

I find it ridiculous because they are blaming an epidemic (somewhat caused by their own actions) on an individual's ignorance of computers (likely). She is not being sued for downloading music, she is being sued for sharing (to which she probably was ignorant to). The 54k in damages (or 2M? who knows) that they want to collect is not because some mother accidentally (or not) shared some files. Also, it can be said that they are not protecting their IP very well if she and one other person is being sued out of the likely 50 million or more people that are downloading music illegally (or have at some point).

No, I think the reason many people (myself included) find this absurd is precisely because we don't think companies should be able to enforce whatever draconian property rights scheme they choose. Whether it makes sense or not to believe that,and what its possible economic implications is a different issue. And the fact that every court in western civilization seems to think otherwise, doesn't actually affect the way I feel about it.

I'm not sure that the cognitive dissonance is in the ease of committing the tort, rather, I suspect that "intellectual property" doesn't really fit most (non-technical) people's concept of what ought to be tortable. For most non-technical people (my mom, for example), having a thing implies the right to share it. When we treat a song or a piece of software or a movie as a "thing" we feed into this conception. Of course we, as technical people, know that it isn't really a thing. That in fact it's a licensing agreement granting you the limited ability to use information in certain ways. But that idea is complex, and not really well understood by most people (even technical people), and so we abstract it as "a thing" (intellectual property).

So when some poor soul winds up incurring 60k of damages just for clicking a button to trade "free" music of course this comes as a surprise. All of a sudden their mental model of "things" has broken down with no real warning that the level of damage could hit such extremes so quickly or that a harm was even being committed.

If we lived in a just society, the law would be re-evaluated to fit the ideas of right and wrong commonly held by the people (including content creators of course). Instead we will attempt to force a lossy abstraction on everyone and accept the inevitable unjust consequences.

There are lots of things where "having" it doesn't imply the right to share it. Two examples: a rental car, a Blockbuster DVD.

I submit that it's not the law that needs to change. Rental-like terms (or per-user licensing) are perfectly reasonable.

The issue is, people don't like per-user licensing.

They have a legitimate response, which is to boycott the industry, and a totally illegitimate response, which is to attempt to coercively redefine the contract using technology.

The illegitimate response is doing a bunch of bad things:

* It's getting people sued for tens of thousands of dollars.

* It's promoting heavy-handed DRM schemes.

* It's dragging ISPs into content-monitoring regimes.

* It's reconfiguring content from license purchase to streaming rentals.

* It's migrating content from open formats (red book audio) to proprietary ones.

* It's distorting the market for lawful online purchase by forcing it to compete with unlawful free clones.

I don't think we really disagree all that much. I think the problem is really that content publishers have been dishonest about what they're selling. When I "buy" a DVD what have I actually bought? What does my mom think I've bought? This difference is I think what fuels the gasps of shock and horror at the size of the damages when it inevitably goes to court. The rental car on the other hand, isn't sold as a bait-and-switch.

Where we differ however, is that I don't see attempting to coercively redefine the contract as any less legitimate. If the law is an ass, especially if the law is an ass and has been completely captured by moneyed interests, then disobeying the law en masse until the weight of numbers brings the law into disrepute seems far more likely to push change (at least in this case) than passively boycotting.

(FWIW I also believe in jury nullification, which should give you an idea where I stand in the push and pull of rule-of-law vs will-of-the-people)

By using technology to put the power to coercively redefine the contract in the hands of the people, the content controller/producers are put in a squeeze. People don't have to pay them any more (which hits them in the wallet) - to fight that they will have to spend ever increasing amounts of money to buy laws and DRM technology. As they do so they will increasingly damage the economic and legal systems they depend upon by becoming ever more draconian, causing ever more collateral damage, with predictable consequences. It seems to me like a case of classic asymmetric warfare, and why they'll lose (or end up so changed from the fight that they'll wish they had).

Not to be nitpicky, but I do think there is a substantial difference between trading and sharing. I realize you're just paraphrasing rather than speaking legally.

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