First I've ever heard ...
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| Author | Content |
|---|---|
| DarrenR114 Oct 11, 2007 8:58 AM EDT |
... of a court suing anyone. This blog entry is so poorly written that it's incoherent. If you're going to stir up a bunch of people's emotions with fear mongering, you should at least learn to communicate well. |
| thenixedreport Oct 11, 2007 9:06 AM EDT |
My apologies. I'll take a look at it and correct the grammar issues. |
| thenixedreport Oct 11, 2007 9:13 AM EDT |
Oh crud... I'm going to ask them to edit a portion of it too..... when he mentioned hackers, I almost banged my head against the wall. Doh! Dude! Hackers don't that sort of thing! |
| Inhibit Oct 11, 2007 9:24 AM EDT |
That one's really a matter of semantics. While I'd consider what I do with code hacking (in the rough-and-ready whacking a chair leg to make it roughly even sense) a "hacker" could encompass any of the current uses of the word. Your server could, in fact, be used by hackers who broke into it via a trojan or other puled-on malware even though they're not likely to be hackers in the rough-and-ready coding sense. I'd say the lack of any sources combined with OMG NOES THEYRE IN MY BOXES style writing is somewhat more damaging to this "article". |
| bigg Oct 11, 2007 9:27 AM EDT |
I don't know that this is 100% accurate. From what I read about the case (admittedly, not everything that was written, there was a LOT written about it) her defense was that she had a wireless network wide open for anyone else to use. That would be independent of her OS. Also, Linux is more secure, but definitely not completely secure. The points are largely correct, but there seems to be some overstatements in the post. If I had any reason to believe her story, I would donate a small amount of money to help her. It seems to me that she disregarded the law and got penalized. I just don't feel sorry for those who are actually sharing music and get caught. Not that there are no problems with the RIAA's actions, but I have little time for those who ignore copyright law. |
| tuxchick Oct 11, 2007 9:38 AM EDT |
The amount of damages awarded is insane. It's hard to tell what happened because news reports are so incomplete, but it sure sounds like a 'tard jury from here, and perhaps a botched defense. |
| thenixedreport Oct 11, 2007 10:05 AM EDT |
I've heard of the vulnerability concerning IE7 and how a certain worm can practically turn a desktop into a proxy server (very frightening), and the fact that Microsoft allows unlicensed (pirated) copies to run it now as indicated by that article from Yahoo News (UK), that tends to give one pause for thought. The problem from what I hear is lack of evidence of piracy as well (and basing evidence on a screen name is not necessarily a good thing as multiple people may come up with the same name..... I've had to make other choices for usernames myself in the past when the error was given that it was already taken). Linux-based systems aren't vulnerable to this worm either (and from what I heard, it was frightening due to a script kiddy managing to put together something that was actually dangerous.....). Either way, I'll be able to find out more this weekend, so stay tuned. ;) |
| pcatiprodotnet Oct 11, 2007 5:23 PM EDT |
The jury really felt she really did it on purpose. They also felt the award was excessive, but they had no other choice. Often judges forbid the defense from reminding the jury of one of their legal rights: Jury Nullification ( see http://en.wikipedia.org/wiki/Jury_nullification and http://www.foxnews.com/story/0,2933,163877,00.html ). Unfortunately, the vast majority of Americans are unaware of this legal right. -pc |
| tuxchick Oct 11, 2007 5:28 PM EDT |
Shouldn't the plaintiffs be required to prove actual damages? The phrase "making available" has been used a lot, meaning they didn't really prove infringement, but just that the files were there on her computer all ready to be infringed, so even if there wasn't actual infringement there could have been. The judge should have set aside the award on the spot. That amount is just plain crackers. |
| Bob_Robertson Oct 12, 2007 12:40 PM EDT |
> Shouldn't the plaintiffs be required to prove actual damages? What, you think you're living in Libertopia? Edit: Try http://www.fija.org/ the Fully Informed Jury Association, too. |
| tuxchick Oct 12, 2007 12:51 PM EDT |
> What, you think you're living in Libertopia? Actually it feels like Bizarro World :) |
| dinotrac Oct 12, 2007 1:36 PM EDT |
> Shouldn't the plaintiffs be required to prove actual damages? That is one of two different formulations under copyright law. The other is called statutory damages and is available for those cases where actual damages are not easily proven or are not adequately compensatory. The choice goes to the plaintiff. |
| hkwint Oct 12, 2007 2:11 PM EDT |
Quoting:The choice goes to the plaintiff. Does that mean the plaintiff decides whether 'damages are not easily proven' or not? I mean, judging about what can be proven or not seems like a task of the judge/jury to me? |
| dinotrac Oct 12, 2007 2:43 PM EDT |
>Does that mean the plaintiff decides whether 'damages are not easily proven' or not? Plaintiff doesn't have to decide that, though, as a practical matter, many do because they want to see which damages will be greater. Plaintiff chooses between actual and statutory and don't have to explain their choice to anyone. Even in the choice of statutory damages, a case must be made for the size of the award, but it will have more to do with the number of infringing incidents, egregiousness of the infringement instead of damages suffered. |
| tuxchick Oct 12, 2007 2:47 PM EDT |
As far as egregiousness goes, "making available" seems weak. |
| dinotrac Oct 12, 2007 2:49 PM EDT |
>"making available" seems weak. Not weak in the least. Very strong, very egregious, in fact. If you are an instrument for widespread infringement, you are liable for many instances. Ouchie. |
| tuxchick Oct 12, 2007 3:02 PM EDT |
Dino, that sounds just plain nuts. "Making available" is not infringing. Leaving a book lying around for random visitors to your home to copy pages on your kewl multifunction laser printer is "making available." Carelessly loaning CDs or DVDs to friends who maybe have the know-how to copy them is "making available." The only reason these cases even get a hearing is because most of the parties involved view computers and the Internet as fearsome devils, instead of understandable technologies. "Making available" is a ridiculously low bar; I never thought of "well, maybe something bad COULD have happened" as a valid legal concept. People are supposed to be held accountable for what they do, not for maybes and might-have-beens. |
| dinotrac Oct 12, 2007 3:41 PM EDT |
Sorry, TC, but "making available" is what they got Napster for. Essentially, it's a notion of contributory infringement. And, you might want to look into the facts of the case. It's not just a matter of running windows or not knowing what she was doing. Kazaa was run on her computer. Kazaa was run from her userid. They jury did not believe that she knew nothing about it. She may well have been an innocent victim, but the jury didn't believe that. |
| tuxchick Oct 12, 2007 4:27 PM EDT |
Yes, it seems clear she was not all innocent and pure. So I shall confine my railing to the amount the jury awarded to the MAFIAA. |
| pat Oct 13, 2007 4:35 AM EDT |
Carla Schroder said: "a 'tard jury" I just don't know what to say to this. Do you really think it is ok to use this euphemism to describe people? I find it offensive. |
| dinotrac Oct 13, 2007 4:53 AM EDT |
>I find it offensive. Note to Carla - Uh oh! Live by the sword, die by the sword. |
| jdixon Oct 13, 2007 6:35 AM EDT |
> So I shall confine my railing to the amount the jury awarded to the MAFIAA. TC, 5 will get you 10 that the jury was told by the judge what range the fine had to be in, and was given no choice about reducing the fine to a lower amount. Of course, the jury is completely free to ignore anything the judge tells them and do what they want, but few jurors know this. |
| Bob_Robertson Oct 13, 2007 6:53 AM EDT |
> "Making available" is a ridiculously low bar... Speak of the RIAA... http://ars.userfriendly.org/cartoons/?id=20071012 |
| thenixedreport Oct 13, 2007 12:20 PM EDT |
Hey guys. I said I'd find out more, and I did. Stay tuned as some misconceptions may very well be cleared up. |
| tuxchick Oct 13, 2007 2:52 PM EDT |
Well pat, you do have a point. The dictionary definition of 'retard' is long, with several different meanings, but I'm sure most folks think of mentally retarded people first. So using it as a slam is unkind. So...who has suggestions for a replacement word that means "stupid, uncaring, and a waste of space"? "Darl" would work great, except that as a topical reference it will lose its punch eventually. "The Darl jury." Not bad. jdixon, apparently the jury had almost total discretion on the size of the award, and used the scientific "whoever is the most stubborn wins" method to figure it out: http://blog.wired.com/27bstroke6/riaa_trial/index.html It appears that Ms. Thomas succeeded in making the jury hate her to the point of ignoring fairness and common sense. |
| hkwint Oct 13, 2007 3:14 PM EDT |
Can you people please stop using words that don't show up in my English dictionary, or otherwise tell me what egregious means? |
| jdixon Oct 13, 2007 3:36 PM EDT |
> or otherwise tell me what egregious means? From dictionary.com: 1. extraordinary in some bad way; glaring; flagrant: an egregious mistake; an egregious liar. 2. Archaic. distinguished or eminent. |
| jdixon Oct 13, 2007 3:58 PM EDT |
> ...apparently the jury had almost total discretion on the size of the award... OK. Well, wrong again. I see I'm still not up to Dino's standard. :) > It appears that Ms. Thomas succeeded in making the jury hate her to the point of ignoring fairness and common sense. Unless she was representing herself, that's incompetent counsel. I'd say her lawyers blew it. |
| dinotrac Oct 13, 2007 5:55 PM EDT |
> It appears that Ms. Thomas succeeded in making the jury hate her to the point of ignoring fairness and common sense. Actually, the jury award is very much in keeping with statutory damages and the type of offenses -- it was about $9,000 per item, which isn't that much money in the scheme of things. The problem is that they got her for 24 -- and could have gotten her for hundreds more. Like or not, copyright law is intended to discourage infringement. The problem is this day and age is that computers and the internet make it possible to infringe on a grand scale. And...before you go feeling too terribly sorry for her, don't forget that she turned down an opportunity to settle for a far smaller sum. |
| tuxchick Oct 13, 2007 6:07 PM EDT |
Dino, what about making the punishment fit the crime? This entire case is a joke. The plaintiffs didn't prove anything of substance, and the jury took the defendant to the cleaners. This is completely wrong from start to finish. I think anyone who finds anything defensible about this verdict is either having too much fun playing devil's advocate, or very mixed up. |
| dinotrac Oct 14, 2007 1:20 AM EDT |
>This is completely wrong from start to finish. That's your outrage talking. You are not looking at this rationally - which is different from right or wrong. From what I've been able to see -- and I'll admit that I'm not privy to the real facts, just a few reported bits, this gal made a mistake. She ignored legal advice, ignored a rather gentle settlement offer, and went to court when she knew she was in the wrong. It looks great on The Practice, but sucks in real life. This gal didn't have the resources to fight a fight where the other side is both big and legally right. If only she had actually been innocent. As to the plaintiffs not proving anything of substance...what do you mean "of substance"? They proved -- to the satisfaction of the jury -- 24 cases of egregious infringement. That is something of substance. And, a little sympathy for the jury: 1. The defense didn't present a case, so they had to make any decisions based on the plaintiff's case 2. Given all of the TV commercials about illegal downloads being theft, it's hard to see the defendant as an innocent victim. She might not want to say so (Oh my gosh!!! You mean there are people who lie?), but she had to know she was breaking the law. People bandy "jury nullification" about, but nullification is actually a complete breakdown of the legal system. Jurors generally wish to fulfill their duty and try to do a proper job. Nullification should be very rare -- limited to clear injustice and abuse of the system. Face it...on the reports that I've seen, they had a scofflaw. |
| gus3 Oct 14, 2007 3:34 AM EDT |
Comment from SANS fellow Chuck Boeckman about this case:Quoting:It would be trivial to demonstrate to a jury how simple it would be to compromise a computer and distribute music from a remote location without the user ever knowing what happened. This is an absolutely awful precedent that makes no sense at all.It would be trivial to demonstrate. I would even wager that one or two of the jurors have compromised systems that are being used to distribute copyrighted materials illegally, without their knowledge. dino: A settlement will be (not simply "might be") construed as an implicit admission of guilt, no matter what the specific terms of the agreement. Think Michael Jackson. I certainly would not "settle" for that. Furthermore, the claim of "egregious" is a prosecutory device for the original complaint, added with the hope that it will increase the chances of a trial. The original SCO complaint against IBM is riddled with such accusations of willful animosity. Take it with a 1kg grain of salt. |
| pat Oct 14, 2007 5:13 AM EDT |
"Well pat, you do have a point. The dictionary definition of 'retard' is long, with several different meanings, but I'm sure most folks think of mentally retarded people first. So using it as a slam is unkind. So...who has suggestions for a replacement word that means "stupid, uncaring, and a waste of space"? "Darl" would work great, except that as a topical reference it will lose its punch eventually. "The Darl jury." Not bad." I question the whole need to include a negative adjective to describe the jury in the first place. They are only doing there job and even if you disagree you should disagree with the result not with the process or the people. Blog posts like this can be used to give Linux Users a bad name, I see no PROOF that there is such a trojan program that shares files on a Windows PC. As a matter of fact, searching for "windows virus that shares files" in google gives this result "http://onecare.live.com/site/en-us/article/share_files_safely.htm". The only virus here is Windows itself, everyone on the count of 3, MICROSOFT ENABLES FILE SHARING. We should be asking why the RIAA isn't suing Microsoft if they make it so easy to share files instead of engaging in conspiracy theories like this blog post. |
| Bob_Robertson Oct 14, 2007 7:34 AM EDT |
> People bandy "jury nullification" about, but nullification is actually a complete breakdown of the legal system. Jurors generally wish to fulfill their duty and try to do a proper job. Nullification should be very rare -- limited to clear injustice and abuse of the system. I completely disagree with the first sentence, and agree with the last. Jury Nullification is a complete vindication of the legal system. It provides a peaceful outlet for "community standards" when all the rest of the legal system has failed. Laura Kribo deserves a medal and a coin struck in her honor. Unfortunately, it requires one thing to work: An informed population. Jury Stacking, known by its less infamous name "voir dire", is designed to weed out anyone who might have a clue, who might decide that the punishment does not fit the crime, who might decide to ignore the instructions of the judge and vote their conscience. "Jury Nullification" is kind of a non-sense term anyway. The law is not nullified by the jury saying "no", any more than murder is now legal since the O.J. trial. There is no judicial precedence set, just one less person punished beyond the "community standard". |
| dinotrac Oct 14, 2007 8:43 AM EDT |
>I completely disagree with the first sentence, Then you need to think about it a little harder. If everything has worked as it should, jury nullification is inappropriate. Jury nullification is a safety valve against an abusive and/or abused process, one that can not be seen as delivering justice. If, in a given case, jury nullification is the appropriate response, something about the legal system has gone wrong. |
| Bob_Robertson Oct 14, 2007 10:36 AM EDT |
> If, in a given case, jury nullification is the appropriate response, something about the legal system has gone wrong. Ah, I see the problem. I view the complete discression of the Jury to be an integral part of the "system". Corruption and abuse are inevitable, so having yet another "last ditch" outlet as part of the system is just one more way for the system to work. I put very little faith in conviction for crimes. Those who do the real damage are almost never held accountable, and if they are it's only because they became an embarrassment to the ones yet further up the food chain. Mere private crime, of the kind constantly paraded around as justification for having an occupying military called "police", pales in comparison. "Carjacking or impoundment? We now have two vocabularies for wrongs, depending on whether private persons or government agents commit them. This is the difference between mass murder and national defense. Between extortion and taxation. Between counterfeiting and inflation. And so on. Other examples will occur to the astute reader." --- Joseph Sobran "There are some troubles from which mankind can never escape. . . . [The anarchists] have never claimed that liberty will bring perfection; they simply say that its results are vastly preferable to those that follow from authority.... As a choice of blessings, liberty is the greater; as a choice of evils, liberty is the smaller. Then liberty always says the Anarchist. No use of force except against the invader." --- Benjamin Tucker |
| hkwint Oct 15, 2007 11:14 AM EDT |
Quoting:Unfortunately, it requires one thing to work: An informed population. Yes, hit the nail on the head, that's true, but also for judges. In my country, three 'scriptkiddies' ddossed a government website, and the judge who had to decide about the case (my country doesn't know jury) did hardly know how the internet worked, let alone what a DDos was, and what kind of evidence could be trusted and what not. He had a crash course internet terminology and theory, but I'm still not sure if he knew what he was judging about. What happened to 'the accused is innocent, unless proven WITHOUT ANY REASONABLE DOUBT' in this RIAA case? You are not going to tell me the jury or the judge knew the gory technical details what prove handed out by the RIAA could be trusted or not? I can print lists of some nickname linked to offered files on KaZaA, 'gimped' to look real. I can find tools to (find out to) spoof IP-addresses. I can print lists of what files _anybody_ connected to the internet might have uploaded. I can fake provider logs. At least independent internet experts are required to judge about these cases, and I'm even not sure if they would know fake-evidence from real. In my opinion, in this kind of cases there will always be 'reasonable' doubt. If distinguishing between authorized or not-authorized information on the net was that easy, nobody would trust those phishing sites, would they? If the jury was picked randomly, chances are big it exists of the same kind of persons which wouldn't know a phishing site from a real, authenticated site (to make matters worse, even some phishing seem to be SSL-authenticated). So, it may be likely that the accused is guilty. But last time I knew looking like being guilty wasn't the same as 'proven guilty without any reasonable doubt'. This case is demolishing the whole idea of the US constitution if you'd ask me (being innocent unless proven without reasonable doubt is part of the US constitution, not?), but don't be afraid, nobody asks me. Nonetheless it annoys me people who can't judge about the authenticity of the proofs provided by RIAA think they can know this person is guilty. |
| dinotrac Oct 15, 2007 11:55 AM EDT |
>What happened to 'the accused is innocent, unless proven WITHOUT ANY REASONABLE DOUBT' in this RIAA case? Hans - I'm sure somebody else will correct me if I'm wrong, but I think this was a civil case, not criminal. Civil cases do not use the reasonable doubt test because the state is not the plaintiff, the loser doesn't go to jail, and the loser is not branded a criminal. In civil cases, the test is "preponderance of evidence" -- although the jury must still be convinced that the plaintiff has carried its burden of proving that the defendant is liable. The problem in this case is twofold -- the defense didn't present anything to the jury. That works sometimes, but is better in a criminal case where the reasonable doubt standard and presumption of innocence apply. The second problem is that the defendant apparently isn't all that innocent and the jury flat out didn't believe her. |
| hkwint Oct 15, 2007 1:24 PM EDT |
OK, explains a lot. Nonetheless, I think the fine is outrageous. |
| dinotrac Oct 15, 2007 1:33 PM EDT |
>OK, explains a lot. Nonetheless, I think the fine is outrageous. That's the risk of going to court -- everything has the potential to get expensive in a hurry. |
| Bob_Robertson Oct 16, 2007 8:55 AM EDT |
> That's the risk of going to court -- everything has the potential to get expensive in a hurry. Here's something that I think bears very well on this discussion: "The judge, then, was doing something as an official that he would not dream of doing as a man; and he could do it without any sense of responsibility, or discomfort, simply because he was acting as an official and not as a man." http://www.mises.org/story/2714#iii Albert Jay Nock discussing his observations of someone sent to prison when all the crime was was a "mischief" that went wrong. Much like the fines imposed in this case. |
| dinotrac Oct 16, 2007 9:21 AM EDT |
>Much like the fines imposed in this case. I don't know why everybody is so outraged by the fines in this case. The plaintiffs were allowed to frame the offense and the defense didn't bother to put up a defense. In other words, what the jury heard was the plaintiffs' version of the story. The fine was only $9,000 per infringement, and, in this case, the infringement consisted of sharing IP with the world. The $200k+ is a ton of money for somebody sharing a few (the real number was in the thousands, btw) files, but she chose to go to court with unclean hands and didn't mount a defense. It's real hard for me to sympathize. |
| usacomputertec Oct 17, 2007 7:13 PM EDT |
"If I had any reason to believe her story, I would donate a small amount of money to help her. It seems to me that she disregarded the law and got penalized. I just don't feel sorry for those who are actually sharing music and get caught. Not that there are no problems with the RIAA's actions, but I have little time for those who ignore copyright law." Well I agree that I want the people who illegally steal music and other content to be punished in some way. Doing community service should be enough. But you can't prove that there were no viruses, trojans, worms etc that turned her computer into a zombie proxy server that took and dished out whatever it was sent. There are a lot of these viruses going around these days. IE7 is just the way in to your computer. |
| usacomputertec Oct 17, 2007 7:17 PM EDT |
"I would even wager that one or two of the jurors have compromised systems that are being used to distribute copyrighted materials illegally, without their knowledge." Like I said to begin with. We Might as well arrest everyone who has a computer that gets a virus and sends it on to someone else for spreading viruses. |
| NoDough Oct 18, 2007 5:33 AM EDT |
Quoting:Like I said to begin with. We Might as well arrest everyone who has a computer that gets a virus and sends it on to someone else for spreading viruses.That would significantly reduce Microsoft's market share. :) |
| dinotrac Oct 18, 2007 6:06 AM EDT |
>That would significantly reduce Microsoft's market share. :) It would also eliminate most of the Fortune 500. Good thing or bad? Hmmmmmmmm. |
| bigg Oct 18, 2007 6:08 AM EDT |
> But you can't prove that there were no viruses, trojans, worms etc that turned her computer into a zombie proxy server that took and dished out whatever it was sent. Was there also a virus that logged in with her username and password? In other news, OJ is still looking for the real killer. That defense might have gotten her somewhere if she had actually argued that. Would it have been difficult to scan for viruses? Oh, wait, she replaced that hard drive, which a Geek Squad guy testified they gave back to her, and she refused to turn it over. |
| dinotrac Oct 18, 2007 6:29 AM EDT |
bigg - I see that you get it! People need to remember that a jury sees the case as it is presented to them. The prosecution presented evidence that looked pretty bad -- like she did bad things and then tried to cover her tracks. The defense did not rebut. It is often a good trial tactic not to mount a defense in criminal cases where the jury must presume innocence unless the prosecution's case is proven beyond a reasonable doubt. T'ain't so civil trials. The jury is completely free to presume that the defense didn't rebut the plaintiff's case because they can't. |
| Bob_Robertson Oct 18, 2007 8:35 AM EDT |
> The jury is completely free to presume that the defense didn't rebut the plaintiff's case because they can't. What the plaintiff failed to demonstrate was harm. For that fact alone I think the punishments are all out of proportion. Someone steals a truckload of CDs, sure. There is demonstrable harm. |
| dinotrac Oct 18, 2007 8:55 AM EDT |
>What the plaintiff failed to demonstrate was harm. Let me respond with a question of my own: If somebody went around to everybody who might ever engage your services and said, "Hey! Don't ever hire Bob to do anything. His lunatic fringe libertarian-anarchist politics will ruin this country and might cause divisions in the workplace" Let's presume that this somebody was held in esteem and that nobody ever hired you to do anything ever again. Have you been harmed? |
| Bob_Robertson Oct 18, 2007 9:15 AM EDT |
> Have you been harmed? No. He voiced his opinion and did not misrepresent my position. In order for me to punish him for having an opinion, I would open myself to being punished for having an opinion. |
| dinotrac Oct 18, 2007 9:21 AM EDT |
If you don't believe that your inability to work is a harm, then, at least, you are consistent in your position. How would you feel if the government were to nationalize health care, but only after paying everyone involved in health care a fair market value for their assets? Would any harm be done then? |
| Bob_Robertson Oct 18, 2007 9:39 AM EDT |
> Would any harm be done then? Yes, because in order to provide that money, those "services", the government must first take the money by force from others. It's like painting a house. It's a nice end, but does it justify the means of me going next door and taking the money for the paint from my neighbor at gunpoint? Armed robbery is no less armed robbery just because the perp has a badge. Here's why I can say "no" to your first example: I do not subscribe to "equality of outcome". He has his opinion, I have mine. He voices his, I voice mine (I am reliable and a good employee). The fact that his opinion carries weight and mine does not in no way creates a mandate to _force_ my opinion to carry more weight, or his less. BTW, if this article had been about someone who took CDs, copied them and then sold them, I'd be right there with ya. Demonstrable harm. |
| dinotrac Oct 18, 2007 9:50 AM EDT |
>Yes, because in order to provide that money, those "services", the government must first take the money by force from others. Maybe, maybe not. Perhaps they have a really good bond sale or the mother of all garage sales. Maybe they figure out that all of the money they waste on Medicare would be sufficient to just go out and buy the health care system outright. Just like those "cash only" clinics where doctors deliver services much more cheaply because they don't have to deal with the overhead of collecting from insurance companies, maybe the government just says "screw it all" and offers services itself, charging rates that lets everybody save money while reducing the cost of caring for the impoverished. Now -- without having to tax a soul a cent that isn't taxed now --- better still, presume they were so effective that the government was able to reduce or eliminate taxes currently collected -- Has any harm been done? |
| dinotrac Oct 18, 2007 9:51 AM EDT |
>BTW, if this article had been about someone who took CDs, copied them and then sold them, I'd be right there with ya. Demonstrable harm. Why is that different? |
| Bob_Robertson Oct 18, 2007 11:46 AM EDT |
> Perhaps they have a really good bond sale or the mother of all garage sales. Maybe they figure out that all of the money they waste on Medicare would be sufficient to just go out and buy the health care system outright. Bonds must be paid back, with interest, by taxation. The materials so sold were bought with blood money in the first place. Medicare is already tax funded. I'm not saying that good things are not done with money stolen at gun point, I am saying that the ends do not justify the means. >Now -- without having to tax a soul a cent that isn't taxed now --- better still, presume they were so effective that the government was able to reduce or eliminate taxes currently collected -- Ah! Eliminate the taxation, the services cannot be provided. Provide the services with present taxes, it is still being provided by funds stolen at gunpoint. Your example of cash-based services is excellent. Get government completely out of health care. Why assume that charitable organizations, which have always existed, won't exist to provide such services to those who will supposedly "fall through the cracks"? At the very least, the price paid for the service will drop through the floor, allowing for far more to be covered than can be covered now at any price. > Why is that different? At the least it would demonstrate that the music producer might have gotten money for the product, and that the "might" was curtailed by the bootleg. Even then, how can anyone know that if the bootleg didn't exist the money would have been spent for that product at all? I look at an Australian CD in my collection, for instance, that was never released in the US. The _only_ way I got it was through someone reselling the product in a country where the producer obviously did not want it available. So the existence of the "backroom" reseller was not a "lost sale" in any way. It's not, actually, different at all. It's my _opinion_ that passing off other people's work as your own is a kind of fraud. However, there is a large body of ethical argumentation that says that since I bought the CD I may do with it whatever I wish. It is mine. Copy, sell, share, horde, whatever. I like that fan subtitlers stop distributing a show when it is released in the language in which the fansubs were done. Again, personal opinion. What I do not like is arbitrary authority. |
| hkwint Oct 18, 2007 12:04 PM EDT |
Quoting:Why is that different? Ok, here's a question for you: If I steal your bike, assuming you have one, does it matter how many of my friends have used it at the times I didn't need it myself, how many people lend it from me, or even may have re-stolen it from me? Of course it doesn't matter, the crime stays the same. Nor will I be sued if someone copies the design of the bike I stole from you, and starts selling it. The same people that use the bike I stole from you might have bought a bike if they didn't use my stolen bike. Nonetheless, it doesn't matter. It's the same if I steal a bus and use it to transport people and thereby earning : The car manufacturers won't sue me because my passengers might have bought a car if I didn't steal that bus, let alone they estimate their damages at $200 per passenger I move even though they don't have any waterproof evidence I even used the bus to transport passengers. If they were thinking that way and I were to steal a car, I would have to pay $2000 a day since the day I stole that car because I _might_ have used it as a taxi / cab and probably transported ten people per day, even though the chances are the same it was in my garage all day. Nobody is going to believe such ridiculous crap. Now all the suddenly, if I steal your IP it does matter how many people may have used it, or lend it, or even might have re-stolen it from me. Why's that? (One has to notice, if the police was like the court in the RIAA-case, I had to pay the fine to the bike-manufacturers association instead of the one I stole the bike from) Well, there's your difference. Don't ask me _what_ it is, because I don't know, but it must be somewhere in there. |
| dinotrac Oct 18, 2007 12:19 PM EDT |
>If I steal your bike, assuming you have one, does it matter how many of my friends have used it at the times I didn't need it myself, how many people lend it from me, or even may have re-stolen it from me? Not the same example, however. A bike can only be ridden by one person at a time. A copyright is a legally granted right to control one's creative output and to profit from it. Somebody who distributes my creative output without my permission is taking that control from me and subverting my legal rights to profit from my creation. If I sell you a CD of my work, you are entitled to listen to that anytime any place. So far as I'm concerned (and the Home Recording Act, for that matter), you can make copies for your personal use. The CD itself is 25 cents worth of plastic. What I actually sell you is the right to use my work. |
| jdixon Oct 18, 2007 12:40 PM EDT |
> Don't ask me _what_ it is... When you steal a bike, the original owner has lost the use of his/her bike. When you allow someone to download a song, the only thing lost is a potential sale. That's a considerable difference. |
| hkwint Oct 18, 2007 1:11 PM EDT |
Quoting:When you allow someone to download a song, the only thing lost is a potential sale. That's when you take the stolen goods as your frame of reference. From the viewpoint of the bike-manufacturers, distributors and resellers, exactly the same as what you claim is true when I steal a bike. Still leaves me confused, as you can see. Quoting:Not the same example, however. Apart from that being not true (since you've been in the Netherlands you should know it is possible for a bike to be transporting three persons, sometimes even more), that's why I came up with the example of the car. BTW thanks for your definition of copyright, it was quite informative for me. Nonetheless, I still can't see why fines have to be that high, and why there are punishments for 'assumed' crimes which are not really proven in my opinion. |
| dinotrac Oct 18, 2007 1:37 PM EDT |
> I still can't see why fines have to be that high, and why there are punishments for 'assumed' crimes which are not really proven A. There is no assumed crime in this case. A trial was held and the plaintiffs presented their evidence. The defendant had legal counsel and an opportunity to present her evidence. For whatever reason, she chose not to do that and the jury decided the case on the basis of the evidence they had. B. The fines in this case were statutory damages. Statutory damages are an alternative to actual damages, and are useful when you can't prove actual damages. They are not a blank check, but The fines seem ridiculously high in this case, but you should know that the smallest statutory fine is $750. The maximum for non-willful infringement is $30,000. In that light, the fines awarded aren't so high. If you then consider the likelihood that the infringement was willful, the fines look gentler still, because the ceiling rises to $150,000. Look at it another way: It appears that she had downloaded more than 1,700 songs. If the had sought judgments on each one of those, the minimum statutory fine would have been $1,275,000. And that doesn't include the attorney's fees. Seriously. The lady had a lawyer, the lady had a chance to get out light. She made her choice. |
| jdixon Oct 18, 2007 2:36 PM EDT |
> ...exactly the same as what you claim is true when I steal a bike. Nope. The bike manufacturers and vendors view you theft of the bike as an additional potential sale, not a lost potential one. Does that make the difference clear? The person you stole the bike from now needs a new bike. The person you downloaded the song from still has it. > The fines seem ridiculously high in this case, but you should know that the smallest statutory fine is $750. The maximum for non-willful infringement is $30,000. In that light, the fines awarded aren't so high. No, but they're still ridiculously high. Those fines were set assuming the CD copying operation Bob was mentioning earlier. They have no real applicability to their current situation, where the person is making no money from the exchange. The crime isn't the same, the penalty shouldn't be either. |
| dinotrac Oct 18, 2007 3:41 PM EDT |
>They have no real applicability to their current situation, where the person is making no money from the exchange. Making money has absolutely no relevance to the infringement equation. Non-profits and churches have to pay for rights, just like anybody else. What matters is infringement, plain and simple. Making money can enter into the damages equation, however, and into certain fair use questions. For example, if you make a billion dollars infringing on my IP, I can use that as evidence that I suffered a billion in damages. |
| jdixon Oct 18, 2007 4:11 PM EDT |
> Making money has absolutely no relevance to the infringement equation. I didn't say it did. What I said, in my normal roundabout way, was that it should. As I said, the crimes aren't the same, and they should not be treated the same way. This is a case where the right and wrong of the matter don't match up with existing law. > It appears that she had downloaded more than 1,700 songs. One important item in that regard. I could be completely wrong on this matter, but I don't believe downloading the songs is considered copyright infringement, though it may be considered receipt of stolen goods. Providing the songs for download is what's considered copyright infringement, and is what the RIAA pursues. |
| dinotrac Oct 18, 2007 4:46 PM EDT |
>but I don't believe downloading the songs is considered copyright infringement, Absolutely, it is. The very name "copyright" derives from the power to make and distribute copies of a work. |
| jdixon Oct 18, 2007 6:14 PM EDT |
> The very name "copyright" derives from the power to make and distribute copies of a work. That's the point, Dino. When you download a song, you are not distributing the work, the person offering it for download is. And you (as the downloader) have absolutely no way of knowing if they have the right to do so or not. While this is a somewhat facetious point, I would point out that, barring evidence to the contrary, the legal presumption must be that they do. But the main argument in favor of my point is that the RIAA did not sue the user in question for their downloads, but only for the files they shared. If it were a closed argument that downloading music files was also copyright infringement, they would be suing people for it too. They aren't; only for sharing files. |
| dinotrac Oct 18, 2007 6:42 PM EDT |
>That's the point, Dino. When you download a song, you are not distributing the work, the person offering it for download is. You are, however, copying it. |
| bigg Oct 18, 2007 7:37 PM EDT |
Note that the judge specifically instructed the jury that downloading music is a crime. "JURY INSTRUCTION NO. 14: The act of downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive reproduction right." http://www.news.com/8301-13578_3-9791764-38.html From what I've read, it is tough to use the defense that you are not distributing, because distribution includes much more than just making copyrighted material available to others. Dino probably knows a lot more about that than I do. |
| jdixon Oct 18, 2007 7:50 PM EDT |
> You are, however, copying it. That's questionable on two counts. First, that question of what is and is not copying has been argued in a couple of cases I've heard about. AFAIK, there hasn't been a definitive court case concerning the matter yet. Remember that to do pretty much anything on a computer, a copy of whatever you're working with has to be created in memory. It has been argued by some that doing so requires a separate license. Others have argued that it does not. That's in addition to creating the copy on your hard drive from the original media and the possible moving of the data from memory to the processor cache and/or registers, all of which may or may not require licenses. As I said, I don't think there's definitive case law on the matter. Second, I would argue that the person providing the file is actually the one making the copy, and it's merely being transmitted to your machine. Again, there's no definitive case law that I know of. However, I think it's safe to say that if it were even moderately likely that downloading music files could be shown to be copyright infringement, the RIAA would be suing far more people than they are. The fact that they're not argues that they don't think they can show that, and I think you'll agree that they're the legal experts on the matter. |
| azerthoth Oct 19, 2007 2:53 AM EDT |
To your second point, remember that through the actions of the downloader, they are causing a second existence of the file to come into being. If they don't click the download button the file wont come into being on their hard drive. I think that meets the definition of copying or causing a copy to come into existence well enough. |
| dinotrac Oct 19, 2007 6:22 AM EDT |
>AFAIK, there hasn't been a definitive court case concerning the matter yet. Then you don't know enough. First, copying a file to your hard drive has never been controversial. The question, to the extent that it exists, is whether ephemeral copies -- copies to your ram when executing a program, or transits through buffers -- were copies. Last I checked -- and it has been a while so things may have changed -- in the US, the copy made in ram required to execute a program was considered to be a copy for purposes of copyright. Some have argued that it should constitute fair use, and there may even be lower court cases to that effect. So far as I know, however, the law of the land is that it does. Ephemeral copies of data passing through buffers, as might happen in routers, is a different issue and I do not believe that it has been treated as copies, but there may be lots of whys and wherefores associated with that. Again, I've been out of the loop for a while. |
| jdixon Oct 19, 2007 9:10 PM EDT |
> Then you don't know enough. If I were a lawyer, that would definitely be true. :) Since I'm not, but only a semi -informed layman, I get by as best I can and don't worry about it too much. Yyou are undoubtedly correct about the current status, but that raises the interesting point that you in fact need two licenses for anything you run, one for the copy on your hard drive and one for the copy in memory. > Note that the judge specifically instructed the jury that downloading music is a crime. The judge can instruct the jury that the sky is green. That doesn't make it true. And even if it is true that it's a crime, it doesn't mean it's copyright infringement. > I think that meets the definition of copying or causing a copy to come into existence well enough. Then why wasn't she accused and convicted for each copy she downloaded? |
| Sander_Marechal Oct 20, 2007 12:59 AM EDT |
Quoting:Last I checked -- and it has been a while so things may have changed -- in the US, the copy made in ram required to execute a program was considered to be a copy for purposes of copyright. I remember reading on Groklaw that this has changed and that this now squarely falls into the "fair use" category. |
| dinotrac Oct 20, 2007 3:51 AM EDT |
>The judge can instruct the jury that the sky is green. That doesn't make it true. And even if it is true that it's a crime, it doesn't mean it's copyright infringement. a. The judge's jury instruction was absolutely correct b. Judge's don't make instructions out of whole cloth. When it comes to the elements of an offense, they rely on what are called pattern jury instructions. The practice makes sure that the elements are described properly and helps to protect the judge from appeal. c. Attorneys on either side are free to object to the instructions. In fact, in a case like this, they are likely to have conferred with the judge in chambers prior to the instructions being read. |
| jdixon Oct 20, 2007 8:20 PM EDT |
> Judge's don't make instructions out of whole cloth. Well, most don't, though I've heard of some instructions that definitely sound like they were. That still doesn't make any individual instruction correct. And I would (and just did) argue that his instruction is not correct. I would also argue that if it is correct under current law, then current law is wrong and needs to be modified. Perhaps more importantly, if I were a juror, I would refuse to convict on that basis. Of course, that would undoubtedly come out in jury selection questioning, and I'd never get on the jury. Not that it would have mattered in this case, as downloading is not the crime she was convicted for. As with all RIAA cases that I know of to date, she was convicted for sharing files, not downloading them. |
| dinotrac Oct 20, 2007 9:58 PM EDT |
>And I would (and just did) argue that his instruction is not correct. It is absolutely correct. >I would also argue that if it is correct under current law, then current law is wrong and needs to be modified. Not merely under current law, but under any law in effect since the founding of the United States. Like it or not, downloading a file requires that you make a copy of it. It's one thing to stake a position, it's another to ignore reality. If facts don't matter to your argument, then your argument doesn't matter either. |
| jdixon Oct 22, 2007 6:31 AM EDT |
> It is absolutely correct. We'll just have to disagree. > Like it or not, downloading a file requires that you make a copy of it. Yes, it does. But that is not illegal. If it was, you couldn't download a file from using ITunes either. When you use ITunes, you're still making a copy. Downloading a file is only illegal if the person you download the file from doesn't have the rights to give the copy to you. And in that case, you're not the one who broke the law, they are. What you did was receive stolen property, which (if you did so knowingly) may be a crime, but it's not copyright infringement. And, I repeat, if the RIAA agreed with your position, they'd be suing a lot more people than they are. I would also add that if you already have the rights to said file, it's legal to download it even if they don't have the rights to give it to you. |
| dinotrac Oct 22, 2007 7:00 AM EDT |
>Downloading a file is only illegal if the person you download the file from doesn't have the rights to give the copy to you. That is, more or less, what the Court's instructions say. Why you have a problem with it is beyond me. > And in that case, you're not the one who broke the law, they are. Ummm...No. You both are. Making an illegal copy from an illegal copy is still, ummm, illegal. Ever hear of Napster? >Yes, it does. But that is not illegal. If it was, you couldn't download a file from using ITunes either. When you use ITunes, you're still making a copy. And your point is what, exactly? Nobody argues that copying unprotected work is illegal. This issue is all about copying copyrighted work without the copyright holder's permission. >We'll just have to disagree. At this point, I'm curious about just what it is we disagree on. Your explanations agree with mine. The only difference is whether or not you break the law by breaking the law, ie, copying somebody's copyrighted work without their permission. I say that you do break the law by breaking the law. You say that you don't break the law by breaking the law. Frankly, I think my position has more going for it. |
| jdixon Oct 22, 2007 8:00 AM EDT |
> Ever hear of Napster? Napster never copied files. They were an indexing service. That's a completely different matter. > I say that you do break the law by breaking the law. You say you're committing copyright infringement. I say you're not. That's where we disagree. We disagree about what law is being broken, and by which person. If someone else makes an illegal copy of a book, I can have it in my possession without having committed copyright infringement. The same is true of an mp3 file on my hard drive. |
| dinotrac Oct 22, 2007 9:08 AM EDT |
>The same is true of an mp3 file on my hard drive. Umm...you might have a case if somebody else put that mp3 file on your hard drive. Chance are, however, you downloaded the file yourself or caused it to be downloaded. Besides, you are getting a little too literal here. Copying without permission is merely one way to infringe a work. It carries increased weight in the computer software realm because you must make a copy in order to use software. |
| jdixon Oct 22, 2007 10:47 AM EDT |
> Chance are, however, you downloaded the file yourself or caused it to be downloaded. Chances are that "I" have (or had, some of my albums have gotten lost in moves over the years) a legal copy of the file on album or CD, giving me the theoretical right to have the file on my hard drive. That has little to do with the matter under discussion. :) It is entirely possible, even likely, that you are correct in your interpretation. That doesn't mean I think it's right, that I have to agree with the law, or that I have to agree to enforce the it as a juror. I don't think the matter is at all settled however, and there will be lots more legal water under the bridge before it is. Even without reinterpretations of existing law, when a majority of the population doesn't see anything wrong with an activity, the law has a habit of changing. > Copying without permission is merely one way to infringe a work. But it's the manner under discussion here. Unless I missed something in the discussion. |
| dinotrac Oct 22, 2007 11:51 AM EDT |
>Unless I missed something in the discussion. You added a little to the mix: > I can have it in my possession without having committed copyright infringement. |
| jdixon Oct 22, 2007 12:05 PM EDT |
> You added a little to the mix: I don't see how. It's still an unauthorized copy we're talking about. How does that change the discussion? An unauthorized book or an unauthorized mp3 should be treated the same under the law. |
| dinotrac Oct 22, 2007 1:43 PM EDT |
Sigh. |
| jdixon Oct 22, 2007 3:59 PM EDT |
> Sigh. Agreed. We're obviously talking right past each other. Let's drop the matter. I think we have the basics of each other's positions down. |
| usacomputertec Oct 23, 2007 6:05 PM EDT |
Communication break down. |
| Bob_Robertson Oct 24, 2007 6:36 AM EDT |
Fundamental disagreement as to what constitutes a crime. Happens to me all the time. |
| NoDough Oct 24, 2007 7:11 AM EDT |
Quoting:Fundamental disagreement as to what constitutes a crime.Hopefully, not with the authorities involved. ;) |
| jdixon Oct 24, 2007 7:30 AM EDT |
> Communication break down. Always the same. :) |
| Bob_Robertson Oct 24, 2007 8:17 AM EDT |
> Hopefully, not with the authorities involved. ;) I only recognize arbitrary authorities if they have guns. Otherwise, I ignore them. |
| jdixon Oct 24, 2007 8:34 AM EDT |
> I only recognize arbitrary authorities if they have guns. Don't they always? |
| Bob_Robertson Oct 24, 2007 9:07 AM EDT |
> Don't they always [have guns]? Yep. Otherwise, everyone would ignore them. Which reminds me, Pennsylvania went through a period when the arbitrary authority didn't have a bigger gun, and sure enough it was simply ignored. http://www.mises.org/story/1865 http://www.mises.org/story/2014 |
| usacomputertec Oct 28, 2007 6:52 PM EDT |
If you look at my newest post which should be out tomorrow It gives instructions to avoid all these zomby problems all together. They should work. |
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