Tenenbaum Appeal Heard: Is It OK to Make Someone Pay $675K for 30 Songs?
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One of the judges immediately jumps in and says that Congress could have made an exception, but didn't. Harrow points out that perhaps it didn't because the result would naturally be absurd: the idea that someone sitting at home, listening to music, would suddenly be liable for billions of dollars, doesn't make any sense.
Even worse, the RIAA has not (to my knowledge) provided any evidence that Tenenbaum actually distributed the works, only that he made them available by participating in a BitTorrent swarm.
The third hunter sued the first two for his medical expenses. The first two each raised the defense that there was no proof that they were the one that shot the third. They each maintained that they were the one that hit the bird.
They were both found liable. One had actually shot the third. The other, by taking a reckless shot in that direction at the same time, had made it so that the identity of the shooter could not be determined, thus creating the situation that made it so blame could not be accurately assigned.
It seems to me that putting a copyrighted work up on P2P without authorization from the copyright owner is similar. You are doing something that can only serve one of two purposes: (1) to directly infringe copyright, or (2) to obscure who is directly infringing copyright.
Arguably, copyright law could be read as covering this. 17 USC 106, the section that lists the exclusive rights of the copyright holder, says the copyright holder has the exclusive rights to do those things and to authorize those things. I wonder if one could argue that when you put a file up on P2P without permission, you are authorizing the distribution of the file, and so violating the exclusive right of the copyright owner to authorize distribution (regardless of whether or not anyone actually grabs the file from you)?
The problem here isn't the blame, it's the fact that the maximum possible damage the defendant inflicted (price of song x no of downloads) is still much lower then the prescribed penalty - probably order of magnitudes lower.
I'll concede you that point if you'll let me impose mandatory monitoring of all Internet use sufficient that everyone else who subsequently shared the file can also be caught and fairly prosecuted.
Otherwise, the viral nature of infringement does matter, and trying to cap the damage in absolute terms as you have done here is no more realistic than trying to claim the astronomical sums based on a loss of hypothetical sales that Big Media keep arguing.
Edit: I think this raises a larger question: in the modern technology-enabled world, where large-scale crimes can be committed in a distributed fashion and in most cases there is no kingpin to take down, what is the law to do, and what are the people to do, since each individual person is causing very little of the total damage? I don't think holding the members of an organization responsible for the crimes of other members of the organization works in this case, since there is no organization.
I don't think it is fair to dismiss the viral nature so lightly. For example, it is not completely unreasonable to consider in law that the first person to share material is ultimately responsible for everyone who subsequently copies it, since without their action, the other copies would not have been possible. By the same argument, it is not completely unreasonable to hold each person in the network responsible for the future distribution that occurs based on the sharing they did.
Now, that might not be very practical, if you have to demonstrate the number of copies that were ultimately made base on a single original. Moreover, in some cases, it might lead to large damages awards, which we might or might not consider sensible given the relative power of the parties involved and the nature and consequences of the illegal act.
On the flip side, the bottom line is that the copyright holder is the one who is not breaking the law in these cases, and if you don't provide a practically effective way for them to enforce their rights under the law, then the innocent party is losing out. (I am not contending that Big Media are saints or that they should not be held accountable for any legally or ethically dubious practices they might adopt. I just think that is a separate debate.)
> I think this raises a larger question: in the modern technology-enabled world, where large-scale crimes can be committed in a distributed fashion and in most cases there is no kingpin to take down, what is the law to do, and what are the people to do, since each individual person is causing very little of the total damage?
Exactly. It is a difficult question. I just don't personally buy the theory that the wronged party, who typically has practical access to redress only via civil lawsuits that probably cannot be cost-effectively brought under many western legal systems today, should be the one that loses out.
I think the presumption should be that the network are collectively liable for the actual damage caused, that in the absence of ability to read minds it is reasonable to assume one actual (not hypothetical) copy has a value equivalent to the cheapest legitimate purchase price, and that the proportion of the cost paid by any individual member of the network should be such that a copyright holder can expect to regain their actual losses (but no more than that) through reasonable legal means.
That basically means that if you infringe but it is possible for the copyright holder to trace the consequences with reasonable effort, you will personally only be responsible for the damages that can be proven attributable to your own sharing, which will probably be a significant deterrent but won't be bankrupting most people with the kinds of silly awards we see today. On the other hand, if you actively choose not only to break the law but to do so via an anonymising network that can cause unknown damage with the intent of concealing your own and your accomplices' identities, then if you're the guy they catch, it sucks to be you.
I keep wanting to use "their" instead of "its", mixing the US and non-US notions of whether a corporation is a singular or plural noun.
In my ideal dreamworld, copyright would be updated to reflect the way the world really works today, which I think essentially means a much shorter duration for copyright protection, but with a genuine effort to make it practically enforceable during that period, and toning down some of the blanket laws that mean services that exist primarily to help copyright infringement can effectively hide behind some cheap legal shield to cover their asses.
This isn't justice, it's war. And makes people feel even more justified in cheating, since the moral factor all but disappears.
Should I start counting by how much I'd get sued? It's over a third of a trillion going by this court.
I don't seed, seeders will hate this, anti-piraters may like this. I have no reason to do it, unlimited, p2p-allowing internet. This is my third music library from p2p (and first backed-up).
Hacking a system to create artificial value is not the answer, especially when producing music is becoming cheaper and cheaper.
Copyright isn't useful because it creates artificial value, it's useful because it lets a work with a high production cost be distributed for a low per-copy cost, amortising the initial costs over many consumers. Without some sort of model that allows this, we would be back in the dark ages where magnificent works were produced only by artists with rich patrons.
Copyright was created as an incentive to create. Personally I believe that if there were no copyright law, musicians would still create.
I don't think anyone would argue that in the absence of copyright, nobody would make music any more. However, that doesn't tell us whether the same quantity and/or quality of music would be made, nor, ultimately, whether the same number of people would get as much enjoyment from listening to music as they do today.
No-one is forcing musicians to rely on copyright. If production costs are so low and giving away their work for free really generates increased overall income via secondary effects, then it is remarkable how little evidence there seems to be of professional musicians choosing that alternative strategy.
In the case of pirated music, using this kind of fines is much more immoral then the punished act itself - in the opinion of most of us.
Conversation #2: Is it ethical to sue $exorbitant for pirating music?
Why does conversation #1 always turn into conversation #2?
If you own a six-sided die, you obviously have the right to place it in any of its six natural states.
If you own a hard disk, it has 2^N states, where N is the capacity in bits. You have the right to place the disk in any of those states.
According to this line of thought, any regulation which deprives the property owner of the right to place his property in one of its natural states is an infringement of property rights.
That being said, there is no way to own music. A musician owns a copyright. He has to choose if it's worth the effort to enforce that copyright or think of a way to thrive despite piracy.
How do I ethically justify speeding? Jaywalking? Throwing metal cans into the garbage instead of recycling? Serving alcohol to minors?
The answer to all of these is that I don't.
I simply don't give a shit.
> From my perspective, a musician put forth a lot of effort and cost into creating a piece of music.
And, sure, it would be nice if this musician were rewarded for his efforts--if it became a financially viable operation--and if he (or aspiring musicians who know of his example) were encouraged to make more good music. However (according to my view), once he puts his music into digital files and someone puts it on the internet (which is more likely the more popular his music gets), he has no legal way to compel anyone who downloads it to pay him for it. At this point, I'd say, "Yup. So he'll have to be somewhat creative (or get good at performing live or something) if he wants to make much money as a musician."
Yes, it's possible that few people will pay him, and he'll be forced to go out of business (at least partially) as a musician. Sure, that'd be unfortunate (assuming his music was good), but that's the way it is. You may say, "This is unacceptable! There needs to be a legal fix for this situation." I say no; if you looked around and thought for a while, you'd see that situations like this are really not so unusual.
Suppose I'm a student at a school and I'm a member of some club (math club, if it makes a difference), and I come up with a fundraising idea: host a dance on the Friday after exams for the academic quarter are over, provide food, and sell tickets. And it's a success: the math club makes a good profit, and we expect to do even better next time. But, now, when the next quarter rolls around, a different club with more advertising capability sets up their own dance and attracts most of our attendees away. Their dance is an even bigger success, our second dance turns out a loss, and we in the math club have no reason to expect the same thing won't happen again next time, so we discontinue our dances. Now that other club makes a profit and we get nothing; had I realized beforehand that this would have happened, I might not have bothered.
This is unfortunate, isn't it? But I don't think even the most hardcore pro-copyright, pro-patent advocate would claim that I or the math club had the right to a share of the other club's profits, nor that they were infringing on anything that could be called my "intellectual property". Our only recourse would be this: we could go to the other club, say, "Hey, you guys are benefiting a lot from what was our idea, and we're getting nothing; you really should cut us in on some of that," and if they said, "No, fuck you," then we could spread the story and smear them as ungrateful jerks (which they would be). Also, threatening to smear them as such might induce them to pay up. But legal action? No.
Suppose Apple spends a large amount of time and money on research and development, and it concludes that a) PC's are going to be displaced by tablet computers and b) a tablet computer should optimally have a x b x c dimensions. Then other companies simply trust Apple's judgment; they cut their PC R&D budgets, start developing tablets, and make them approximately the same size. Their products are successful, and they suffer little when PC's do eventually decline. Again, no one could claim this is intellectual property violation even under today's laws. But these other companies are benefiting from Apple's hard work, and Apple has no way to demand (and get) compensation.
And suppose I set up a big museum, and it's very successful and brings in a lot of visitors. Many of these visitors buy food at shops next to my museum. I have brought the owners of these shops a lot of customers that they wouldn't otherwise have gotten; they are benefiting from my hard work, and I have no way to make them pay for it. (This can't be intellectual property--it doesn't even have to do with ideas.)
So there are cases where someone can do a bunch of work and make something good, and other people benefit a lot and the original person gets very little in return, and yet this person has no legal recourse to make his beneficiaries pay him. These situations happen. They'd be less likely to happen as the people in a society become more prosperous, generous, and civilized--which suggests what I consider to be the proper solution.[1] On the other hand, trying to patch over these situations by fucking with the legal system is asking for all kinds of trouble (and we're getting it). I'd hate to see the legal system that resulted when someone patched over every case I listed above.
[1] In the math club example, if the people in the second club were nicer--or if the main body of students had a strong sense of fairness that would be offended by ungrateful jerkishness, and the second club cared about their image--then the problem would be solved.
Now don't take this to mean that my beliefs are utopian and therefore irrelevant. I've said that the default situation--that there are cases where people make great things and benefit many others but get little in return--is unfortunate, but a fact of life. Clearly I don't think the world is perfect or humans are perfect; nor do I expect them to become perfect in the near future. I said that things would become better, that unfortunate situations would become less common or less unfortunate, to the extent that civilization advanced and humans became more generous. I consider this an excellent reason to want to improve the human condition, to make everyone more wealthy.
(Oh, and, if someone goes around claiming that people who pirate copyrighted stuff are "criminals", "thieves", "depraved"--or, for that matter, on the same level as actual pirates who board ships, kill people or take hostages, and steal or wreck the stuff on the ship; or if someone goes around attempting (sometimes successfully) to use the legal system to extract or extort huge amounts of money from "pirates"; then I'm most certainly not going to feel like an ungrateful jerk if I fail to compensate them for downloading something they made.)
Here's an interesting link on numerical ranges in nanotech patents:
http://www.elkfife.com/view_article.php?id=9
(Warning: EU != US)
I find this position absolutely fascinating. It sounds like you are a fan of hers. Why won't you pay? Is it a protest of sorts?