Should we not punish people who drive at excess speed on empty roads, or embezzlers who steal money but later return it, or drug dealers who sell only to moderate users?
Digital media to some extent, and the public internet to a greater extent, broke copyright. To your point, it makes sense to prevent someone from trying to start a business using a bunch of stolen creative work, but this person's behavior was not to seek profit.
Anyway, those first two examples are very good to demonstrate your point (I don't want to get into it because it's off-topic but I don't think the drug dealer example works as well as the other two). I do find myself thinking that punishment is still deserved in those cases for exactly the reason you suggest.
[0] Specifically talking about the sharing of data, not how the data was initially acquired to be shared ("hacked" Netflix employee credentials). This person is not being prosecuted for how the data was initially copied, only for continuing to copy it.
e.g. in English law, the offense of "indecent exposure" (i.e. showing your genitals in public) used to require that this cause "obstruction, annoyance or danger" to at least one person - it was a result crime.
The law was subsequently changed because I guess they decided it wasn't really necessary to have the prosecution carry the burden of proof on that; so it became a conduct crime.
It seems to me that I fundamentally disagree with this idea of a conduct crime. Prosecutors should be expected to prove the harm that was caused by the actions for which a person is having criminal charges pressed against them. (I don't know of anything like this in American law; per my understanding, if you do the thing that's written down as not to do, you did bad.) If it's expected that it will be obvious what the harm is, then it can be expected that proving it (or convincing a judge of it) will be easy.
Anyway, maybe I'll be able to come up with a counter example but I'm coming up blank currently.
IMO: No.
Do you think at least some of the content that was shared would have been purchased otherwise? We can't measure the impact directly but it's odd to assume that pirating content somehow does not affect the wellbeing of creators and other participants of the market.
I can say anecdotally with 100% confidence that when I can't easily find a freely available copy of a movie to watch online I pay for it.
There are probably other reasons but I would be really surprised if my behavior was an exception. I can pay for movies but it's more convenient not to (sometimes).
I already pay for Netflix, Prime Video, Disney+ and Apple TV+, but their content libraries are smaller outside the US by some margin.
I pirate HBO and other services since there is no legal pathway to stream it where I live, and I’m not forking out to get it from whichever shitty local service bought the rights.
Happy to pay once they actually offer it worldwide as a first party option!
1. Last Sunday I streamed a movie called Stutz (2022) for free instead of purchasing it from Netflix. That's a loss of $16 for the industry (1 month subscription, but I am not interested in anything else from their catalog).
Someone was distributing that movie for free because the movie did not have value in a market.
If an artist digitally releases a music album for free - it's worthless? Meaning it has no value? Let's break this down. If I construct a physical object and sell it - it has worth because you can hold it in your hands. If I record an album and release it digitally - it's worthless, despite costing me 100x more than the physical object I created. And despite you appreciating the music 100x more than my physical object. So what defines value? Then physical aspect only? I guess that's a theory, doesn't help to navigate the world increasingly dominated by intangible things, but okay.
That is my intended meaning, though it doesn't need to be released for free, only digitally. If the album is a series of mp3 files in a zip archive why would one pay for it when they could just get a perfect copy from their friend (who got it from a friend, who got it from a friend, who got it ...)?
I do know the answer to this question: kindness (Patreon and similar). I don't know market forces to be particularly kind, however.
In the economic pricing models, free is counted separately as any other kind of pricing.
This debate has been settled for more than a decade, major copyright holder conglomerates have tried their best and poured a lot of money to try to demonstrate losses and they have failed.