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Comment by seertaak | Hacker News Reader

To be fair, I think the original settlement proposed was around USD 10,000 certainly more than your proposal, but a far cry from the USD 1.9MM the court awarded her.

In any case, your arithmetic seems to me to measure the wrong thing. The problem is not that she downloaded the songs. The problem is that she made them available for downloading. If all she had done was burned 24 tracks from a friend's collection and listened to that in her car and gotten caught, then your calculation makes sense. But each time someone downloaded the songs she made available, that person no longer need to buy the album from the artist. That's why two dollars per track, IMHO, is far from being a fair figure from damages. It's the viral aspect which makes P2P different, from, say, copying cassettes like we did when we were kids.

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Again, if we're talking crime, you have to have an intent to commit that crime. If she wanted to listen, she gets punished for it. If she shares unintentionally (which is likely the case as most p2p applications share everything you download), then punish her a little more on top of it but don't treat her like she's some organized bootlegging ring.

Not every crime requires intent; criminal action can occur purely through negligence--you don't have to have or prove criminal intent to get a ticket for running a stop sign or in order to get a parking ticket.

http://en.wikipedia.org/wiki/Mens_rea

http://en.wikipedia.org/wiki/Strict_liability_(criminal)

For most minor and petty crimes (such as my examples in another comment; parking violations, drunk driving, etc.), mens rea is unneeded (in the US, at any rate). The question of what degree of mens rea is relevant for intellectual property theft is both open and relevant; simply saying that, for example, it should should require mens rea because larceny (theft) does ignores the fundamental differences between the two.

EDIT: Two clarifying points. First, there is legal language describing the mens rea necessary in intellectual property theft; however, there is not a significant body of case law interpreting exactly what it means. Second, the reason that you can't just copy the mens rea of larceny is that intent to commit larceny is the intent to deprive the rightful owner of the object, which is clearly not a factor in intellectual property theft.

Agreed. I posted that hastily. I think your posts shed some light on the situation even further, in that usually when you don't need mens rea we're talking of minor or petty crimes.

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