Comment by grellas | Hacker News Reader

Comment by grellas | Hacker News Reader

VEVO Execs Must Face Criminal Charges For Copyright Infringement

Criminal charges are a serious business and I don't think it promotes healthy debate to sling around loose statements suggesting that they be pursued recklessly by the authorities, no matter how unattractive the party involved in the wrongdoing. No self-respecting prosecutor would even consider bringing charges where only a one-time incident is involved and where the alleged perpetrator claims (as here) that the incident was inadvertent (however lacking in credibility this may be, it is a classic "plausible deniability" excuse). Do we really want our government devoting substantial resources toward trying to prove guilt beyond a reasonable doubt in such a case? And does anyone seriously want this to be the standard by which criminal prosecutions for alleged copyright infringement are brought?

Since I would assume the answer to these questions is no, then the only point of this piece is to use an absurdly overstated headline to draw attention to itself.

I am against hypocrisy as much as the next guy, and I have no particular sympathy for the musical labels (or even for the sort of glitzy events at which this incident occurred), but it does not advance the cause of attaining sane copyright legislation to make "off with his head" demands that have no basis in reality.

Music industry hypocrisy is fair game for advocating against draconian copyright enforcement and in itself makes for a potent argument. The effect is much diluted, however, when the argument cannot be taken seriously. If instead this is not intended to be taken seriously but is rather a form of street theater intended to dramatize a point, then it is (in my view) just lame and ineffective.

This is a case of infringement by which the copyright holder can choose to take civil action or not as suits its purposes. If a cost-benefit legal analysis suggests that little damage in fact occurred and that the incident is non-recurring or plausibly explainable, then there is likely nothing worth pursuing. What the incident boils down to, then, is a horrible embarrassment for the music industry execs involved and, at the level, it does carry a sting. The rest is fluff.

> No self-respecting prosecutor would even consider bringing charges where only a one-time incident is involved and where the alleged perpetrator claims (as here) that the incident was inadvertent

Do we live in the same United States?

Intentional infringement = criminal penalties. Sorry, but that's the rule of law, i.e., the very bed they made for themselves. Everyone knows the Superbowl is proprietary. The NFL says so during the broadcast.

That seems like an awfully arbitrary statement to make, especially when copyright infringement is largely a civil issue. Not to mention that grellas is an attorney, so I assume he knows what he's talking about. As I understand it, criminal charges are only warranted when the copyrighted material is sold commercially.

http://www.copyright.gov/title17/92chap5.html#506

From what I recall, sunchild is an attorney too. Your reference doesn't back up what you say; it's not restricted to material sold commercially. Merely for "purposes of commercial advantage" is sufficient.

Quoting from here: http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...

"Emphasis should be placed on the word "purpose," because it is not necessary to prove that any profit was realized. See United States v. Taxe, 380 F. Supp. 1010, 1018 (C.D.Cal. 1974), aff'd, 540 F.2d 961 (9th Cir. 1976), cert. denied, 429 U.S. 1040 (1977). The drafting committee's purpose in retaining this requirement has been to exclude from criminal liability those individuals who willfully infringe copyrights solely for their own personal use. H.R. Rep. No. 997, 102 Cong., 2d Sess. 5 (1992). Evidence of discrete monetary transactions (i.e., the selling of infringing goods for a particular price) provides the clearest evidence of financial gain, but such direct evidence should not be a prerequisite to prosecution. Such a stringent requirement would ignore the plain wording of the statute, which requires only the showing of commercial or financial purpose."

For the record, I think criminal penalties for copyright infringement is bad policy. Whatever public interest there was in copyright protection has long since been overwhelmed by private interests that belong in civil courts.

It's not a civil issue at all (in the USA). It should be. But the IP industry has convinced government to do their policing and enforcement. One infringement is up to 5yrs and/or $250,000. It's, of course, up to judge to determine sentence. But, they should be prosecuted and forced to pay for defense just like all other IP industry victims.

It's both civil and criminal in the US. The vast majority of copyright cases happen in civil court.

IAAL, too. Does that mean you'll just assume I know what I'm talking about? I've been practicing technology law for a decade and a half in New York. You'll have to excuse me if I find your attitude a little insulting...

Section 506 doesn't say "sold commercially". It says for commercial or private gain. Any lawyer worth his salt could argue that showing the game at a private promotional event for a company falls under the statute. Much more spurious arguments have been made.

I would like you to explain your rationale for respondeat superior in a case like this, ie the idea that the executives should be charged because of the misdeeds of a subcontractor or junior staffer. It seems to me that the problem here is the difficulty of establishing that Vevo execs said 'throw a party, and make sure it has the superbowl but not in a way we have to pay for, heh heh.' How would you show, as a prosecutor, that it wasn't simply corner-cutting by the event services firm? (I don't know for sure if the event services were contracted out, but that's how these things are usually done.)

Sounds like an issue for the judge/jury. That's what trials are for. The standard is willful infringement, and that would need to be proved for any criminal defendants. There are also tests for whether the distribution rises to the criminal level (e.g., over a period of 180 days or of materials that have not yet been released, and so on). The question isn't whether the criminal charges would stick, but whether there is a public policy and a rule of law that supports bringing them in the first place.

I'm having a really hard time getting 'distribution' from having it on a screen at a party. Infringement yes, hypocrisy yes, civil suit yes, but criminal liability? Well, it's kind of moot. I'll agree with you that it's a mark of how broken the copyright laws are that we are even attempting to have a serious discussion about criminal liability in this incident.

Section 506 says distribution means: "...by making it available on a computer network accessible to members of the public..."

Oddly enough, that would seem to capture broadcasting a stream, even though they probably were thinking of file sharing when they added that language. Equally odd is that if the broadcast had been in an analog format, it wouldn't seem to pass that test.

An interesting argument, though you could attack both the meaning of broadcast when the scope was purely local, and of accessibility to the public, assuming a VIP party was invite-only and/or that the feed was view-only rather than offering interactive terminals. But it's certainly no more strained than some of the claims that have been raised in industry-driven prosecutions.

Apologies if I came off as snippy yesterday. The strident tone of the uncrunched.com link didn't sit well with me, so I read the thread with a rather jaundiced eye.

> where the alleged perpetrator claims (as here) that the incident was inadvertent

This incident is similar to cases where people are accused of Copyright Infringement by the labels, because their Wifi was unsecured. So, if I leave my Wifi open, and someone pirates <insert popular song here>, that's illegal, but if VEVO leaves their computer open, (which in my opinion is worse than leaving your Wifi open, but this is just opinion) and someone streams the Superbowl (popular sports event), that's fine?

I fail to see why Vevo should get a pass. If the RIAA/MPAA feel it to be valid to pursue people with unproven downloads or a single download, the same should apply to Vevo.

Because two wrongs don't make a right?

It's not about "two wrongs don't make a right". It's about equal treatment.

If the precedent is set that the law is applied equally, there would be less incentive to pass stupid laws. That is one of the problems today where there is so much special interest at play that there is effectively now a system where "this applies to you but not me" is prevalent.

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