SOPA is at it again

[Nekojin]

As I said, I only lump the people who are simply dodging paying for it in with the uploaders. My reasoning is it's akin to shoplifting, if you think about it.

Shoplifting is a minor offense - in some jurisdictions, it isn't even a misdemeanor, it's an infraction. I did a search on shoplifting penalties. The stiffest is my own California, which sets an upper limit of $1000 - and that's for repeat offenders. Most don't even specify fines at all.

For comparison, let's take the two most famous lawsuits: Jammie Thomas-Rasset and Joel Tenenbaum.

Tenenbaum was charged on 31 counts (dropped to 30 at trial). If we assume that each of the 31 is a full, separate album, and Tenenbaum was charged on each separately in criminal court, he'd be liable for a maximum of $3100 for shoplifting, and would probably be reduced below that. If it was one trial, provided that the total value of the items stolen was less than $1000, he would be fined a maximum of $1000. In Tenenbaum's case, he offered to settle for $5250 (more than 5 times what a shoplifting charge would have hit him for), and that offer was rejected, with Sony BMG demanding "double."

Once it went to trial, he figures ballooned hugely. Sony BMG was pushing for the maximum penalty of $4.5 million, but the jury didn't agree. Tenenbaum's final amount was set at $675k, or 22.5k per song, and reduced by the judge to $67.5k, or 2.25k per song. The judge's reduction was ultimately thrown out by a superior court judge, and Tenenbaum was found liable for the $675k verdict - several hundreds of times what he would have gotten if he had simply shoplifted the discs instead of downloading them.

As for Jammie Thomas-Rasset, her trial was even more of a circus (thanks to both sides). Capitol alleged more than 1700 infringements, but only sought damages on a mere 24 (likely because the damages on 1700 counts would have been considered outrageous by even copyright advocates). The original verdict was set at $222k ($9250 per song). Appeals on both sides made the damages range up and down, from a "mere" $54k ($2250 per song), up to as high as $1,920,000 ($22k per song), before being reset to the original $222k figure - again, several hundreds of times what she would have gotten if she had simply shoplifted the discs.

And the worst part of this is that if they had shoplifted, there would be a clear and obvious loss - the retail value of the discs that were lifted. There would be an obvious victim, the store that they shoplifted from. But because it's infringement, and not theft, none of that is clear and obvious unless you unequivocally equate infringement with theft, which is clearly is not.

If you genuinely believe that it's akin to shoplifting - a position I don't quite agree with, but I understand - you should be in favor of separating casual/petty infringement from bootlegging and piracy.

[s_stabeler]

I liken it to shoplifting in that you are acquiring something without paying the price for it. There IS a clear loss for downloading though- the cost it would be to purchase the track/album/game legally. The victim is less obvious, i will admit.


although to be honest, as I have said, I don't much care about the people downloading, unless they are specifically downloading to avoid paying (and I'd have set the fine for downloading at twice the price it would be to get it legitimately)

Uploading? depends on if it can be determined how many times the song has been downloaded. If so, then the same 2 times the retail price, but for ALL of the downloaded songs/albums/whatever ( as in, if it's downloaded 10 times, the fine is 10X retail. if it's downloaded 100 times, 200x retail. Yes it could still get ridiculous, but only for a particularly bad offender) if it cannot be determined, then set a flat punitive rate ( say, $100 per song/album?)

that's how I'd approach the penalty.

[Duelist925]

that's how I'd approach the penalty.

Ok. Thats all well and good.

That is not the point. Did you seethe figures Nekojin cited? Those two people, just sample cases, are financially ruined.

Under your option, they woulda faced stiff fines.

Under the CURRENT powers that the companies have, they faced fines in the tens and hundreds of thousands. Amounts they will likely never be able to fully pay. Ever.

Because they downloaded a few songs.

And SOPA would give corporations MORE power like this.

[s_stabeler]

I happen to agree that SOPA goes too far, and have always said that. I just think that site-blocking should not be dismissed as an option, however, one that has strict requirements. ( to whit: they ignore takedown efforts on individual links, with it proved that the takedown notices were legitimate, and that free use, etc did not apply in any shape or form. And you have to prove it isn't Fair Use, not them prove it is.)

taking down individual links? I think the current law is more or less correct, but needs penalties for cases where it is abused.

and actually, the fines wouldn't have been particularly stiff, since it was downloading. IIRC, I would have assessed a fine of about $50-60 for Tennenbaum, while Thomas-Russet? probably about $5k, again assuming downloading. So it's rather more reasonable than at present.

[Nekojin]

I liken it to shoplifting in that you are acquiring something without paying the price for it. There IS a clear loss for downloading though- the cost it would be to purchase the track/album/game legally. The victim is less obvious, i will admit.

Emphasis added - this is an unfounded assumption. It's only a loss if the downloader would have purchased it if downloading were not an option*. And, for the producer, it's never a 100% loss, because there are always middlemen - there aren't very many media producers who sell directly to the consumer. Whether it's Amazon, iTunes, Wal-Mart, or Steam, there's a store doing the work of getting the product into the hands of the consumer.

Here is a breakdown on how the cost of an average retail CD works, and where the money goes:

$0.17 Musicians' unions
$0.80 Packaging/manufacturing
$0.82 Publishing royalties
$0.80 Retail profit
$0.90 Distribution
$1.60 Artists' royalties
$1.70 Label profit
$2.40 Marketing/promotion
$2.91 Label overhead
$3.89 Retail overhead

Retail's cut is about $4.70. The artist (you know, the creative chap who did the actual hard work) gets $1.60, which works out to about 10% (this, incidentally, is why most artists tour - they see a far larger cut of the profits doing shows). When all is said and done, the studio's cut is around $9, or 2/3 of the retail price of a CD.

All of which is mostly irrelevant, since there isn't a disc being taken off the shelf in the case of a downloader.

* Do you really think that Jammie Thomas-Rasset had enough money to buy 1700 CDs?

[s_stabeler]

except you can use the same argument for shoplifting: how do you know they would buy the item at full price if they couldn't shoplift? you don't, and in fact, mots shoplifters wouldn't. The penalties aren't reduced because of that fact though.

and I don't actually see what the affordability of the collection matters- you have no god-given right to a large music collection, so if Thomas-Russet had bought her collection legally, then I would assume she would have a smaller collection. go join the rest of us who actually get their collections legally.

and I said the price of buying it legally. I was thinking of iTunes, not the price of a CD.

[Andara Bledin]

There IS a clear loss for downloading though- the cost it would be to purchase the track/album/game legally. The victim is less obvious, i will admit.

See, this is the problem. There is not a clear loss for anyone if the product is downloaded.

The only time it could be considered a loss is if the person doing the downloading would have bought the item if it wasn't available through other means, and the case on that is so far not only unproven, but the number of people who download and then go on to purchase the material is not only significant, but indications show that it is greater than the number who are lost through the same means.

except you can use the same argument for shoplifting...

This is completely and utterly untrue. Shoplifting causes an immediate and direct harm to the shop from which the goods were taken.

This is about usage rights, not property.

And as soon as someone brings physical property into the discussion, it ceases to match up with the reality of how digital media functions and fails as anything but an exceedingly crude analogy.

And, before you go off on that tangent again, no, people aren't entitled to download whatever they please. There is just no reasonable or even sane way to deal with it happening. All that's left are insane and outrageous "solutions" that do nothing but ruin lives and waste taxpayer money.

[Nekojin]

and I don't actually see what the affordability of the collection matters- you have no god-given right to a large music collection, so if Thomas-Russet had bought her collection legally, then I would assume she would have a smaller collection. go join the rest of us who actually get their collections legally.

This is a goalpost-shift or a strawman... possibly both. Nobody here has defended Thomas-Rasset's actions. Nobody has said that anyone has a "god-given" right to media, or anything along those lines. That is entirely your words, your assertion.

The point, which you were following along with just a few days ago, was that the laws are written with corporate infringement in mind - they're meant to be a deterrent to a company bootlegging or plagiarizing another company's work. But there is no distinction in the law between petty infringement and grand infringement - it's all seen as the same thing. Never mind that when the DMCA was being heard in Congress, some savvy congressmen actually addressed this very problem, and were assured that it was necessary to go after the big infringers, that it would never be used against normal consumers... (forgive me for the lack of citation - I can't find it at the moment, and don't have time for an in-depth search).

and I said the price of buying it legally. I was thinking of iTunes, not the price of a CD.

You realize that doesn't help your numbers at all, right? In that calculation, you're talking about 9250% leveraged penalty against Thomas-Rasset, and a 22500% leveraged penalty against Tenenbaum - you're going from the penalty being hundreds of times higher than the comparable shoplifting charge, to being many thousands of times higher. That makes the injustice of this sentence all the more apparent.

[s_stabeler]

Nerkojin, you misinterpreted what i said. You said that Thomas-Russet wouldn't have the money to buy that many CDs. I asked how it was relevant. ( since most shoplifters don;t have the money to buy what they steal)

I actually agree that the penalty against Thomas-Russet and Tenenbaum was far too high- I said earlier what penalty I'd have imposed.

I repeat- if someone is uploading infringing material, I would throw the book at them. If they are downloading infringing material, I would set a penalty of 2x the price of legally purchasing the material, with an exception of if you are merely format-shifting the material, which would not count as infringement, and a reduced penalty if the work is not available legally. (Basically,. if it's not available legally, I would set the penalty at the price it would cost if it was legally available)

[mikoyan29]

My fundamental problem with much of this is that the RIAA and MPAA want to redefine "Fair Use" for a bunch of stuff. I remember when the RIAA tried to argue that me ripping my CDs and putting them on my iPod is "stealing". I thought that was pretty much settled law in the VCR days...but I guess not.

[lordlundar]

My fundamental problem with much of this is that the RIAA and MPAA want to redefine "Fair Use" for a bunch of stuff. I remember when the RIAA tried to argue that me ripping my CDs and putting them on my iPod is "stealing". I thought that was pretty much settled law in the VCR days...but I guess not.

The cases put forth during the 80's with the VCR and cassettes were lost due to the fact that magnetic media is analog and suffers from degradation. The more you use a tape (whether video or audio) the more the information is damaged to the point where it's unreadable. Some tapes I had converted to digital format for example were so heavily degraded that there were whole sections that were blank. This had led to the loss because it was ruled that a perfect copy was impossible.

Optical media (CD, DVD, Blu-Ray) and files are different. Those are all digital format so the possibility of a perfect 1:1 copy is not only possible, but feasible. In fact, the RIAA just about won that case as a result. The only thing stopping it was Apple threatening to shut down iTunes and everything related. Had that happened, the music industry would have suffered incredible losses (at the time, almost a fifth of all purchased music was iTunes in origin, the number has since increased) and it caused them to back down. That's why they keep going after the consumer directly now. They feel Apple and other companies (which make up the majority of all music sales now) won't go after them then. So far they're right.

[Andara Bledin]

No, they aren't different. Nothing is forever. Not tape. Not DVDs. Not your hard drive. And not even cloud storage. Once you've purchased the license to enjoy a particular content item, fair use dictates that you can format shift that content to your heart's content, so long as you do not sell the original licensed copy and retain any backups.

Being the distributors and not the copyright holders, it's not only not their job, but they probably don't even have the legal standing required to go after infringers, so that argument is spurious at best. Nevermind the fact that evidence strongly points to the uploaders actually helping them sell more product.

[mikoyan29]

Optical media (CD, DVD, Blu-Ray) and files are different. Those are all digital format so the possibility of a perfect 1:1 copy is not only possible, but feasible. In fact, the RIAA just about won that case as a result. The only thing stopping it was Apple threatening to shut down iTunes and everything related. Had that happened, the music industry would have suffered incredible losses (at the time, almost a fifth of all purchased music was iTunes in origin, the number has since increased) and it caused them to back down. That's why they keep going after the consumer directly now. They feel Apple and other companies (which make up the majority of all music sales now) won't go after them then. So far they're right.

CD, DVD and Blu-Ray will degrade over a period of time as well. Granted, not as quickly as cassette but they will still degrade. That's beside the point. Take my music for instance, I have bought much of it on cassette, vinyl and CD. Why should I buy a digital copy for my personal use since I've paid for it in other formats? Like I said, in the RIAA's eyes, I'm a thief because I decided to rip my CD collection. I think much of this is the music industry trying to say that we don't want the new fangled car because their horse and buggy is just fine (and I was a pretty late adopter of digital stuff).

And one more note...there was a period of a couple years where I wasn't buying any new music and then I discovered Napster and started to buy music again. I would find songs that I liked and would turn around and buy the CD because some of the copies were spurious at best. I think a good deal of their losing money has more to do with the quality of what's out there as opposed to pirates.

[Andara Bledin]

I think a good deal of their losing money has more to do with the quality of what's out there as opposed to pirates.

Don't forget pricing, too. When I can buy a DVD for the same price as a CD, and I can buy a game for less than the DVD, I know which one is going to end up on my shelf (or my hard drive) at the end of the day.

[lordlundar]

The arguments were for the information itself, not the medium. Proactive renewal efforts (ie copying before permanent damage) can ensure digital copies are pristine forever. With analog however, the act of copying itself introduces errors, similar to what happens to a photocopy. Successive copy efforts further degrade the information each time as the detail is lost.

And please don't mistake this for me taking a side in this dispute. I'm not. I simply detailed why the likes of the RIAA and MPAA were retrying to get copying efforts banned despite losing 30 years ago.