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Old 11-19-2012, 02:23 PM   #421
BoldlyDubious
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The biggest thing is you're wanting to change it from a civil to a criminal case. Things are done in completely different courts, with different regulations. That is a major reason why content owners would fight your proposed scheme. As it stands, content owners sued infringers, presented their case, defendant could settle out of court or let the jury decide. If the jury decided the defendant was guilty they would establish the amount of restitution, up to the allowed maximum. The plaintiff would get any money they were awarded. Under your proposal, due to existing laws it would have to be a criminal misdemeanor, at which point any money from the fine would go to the government and not the content owners. Oh plus, you would also force it so civil action is not possible. For criminal offenses with a victim, the victim is allowed to sue civilly. You would have to make the argument that it is a victimless crime akin to non collision traffic offenses, or specifically state the victim is not allowed restitution which is legally dubious and would likely be thrown out (as potentially unconstitutional).
This is an extremely interesting analysis of the legal aspect of my proposal, about which I know almost nothing...
For this reason the phrase "you're wanting to change it from a civil to a criminal case" is a bit obscure to me. Do you mean that this is the only way something like the scheme I propose becomes feasible? Or that some aspect of the scheme make the switch necessary? Why there is a difference with respect to the current type of fines?
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To create one [a successful computer virus] from scratch. But most people who use botnets DO NOT do that. You have a handful of people create the viruses, and then rent the botnets to others to do with what ever they want. And yes, stealing info from infected computers is extremely common. How else do you think the Russian Mafia has millions of stolen credit cards to sell on the black market?
Did they upload these data on the internet for free, afterwards?
I didn't say that these things are impossible; I said that they require (sophisticated technical knowledge and time or) money. And people who pay money to do criminal acts don't usually do that to give the results away for free to unknown people. So I'm pretty convinced that people who upload music or books won't use this kind of tools.
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You're also totally neglecting the script kiddies that use the tools already made tools to screw with people.
If your PC is so full of security holes that any script kiddie can steal your books, getting a $300 "warning" (read: fine) could be a good thing for you! Maybe the next kiddie will go after your credit card data instead.
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Old 11-19-2012, 03:07 PM   #422
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I am grateful to all of you posters for your contributions. You gave life to a very stimulating and enjoyable debate, and helped me to shape my proposal (last version is in post #356) for a "social DRM" system that empowers media users without increasing piracy (just the opposite, actually).

Now it seems to me that, among the problems raised by you posters so far, only two have not yet been already tackled, both of them "technical" ones:
  1. the legal feasibility aspect, that Hellmark just introduced (from the perspective of US law, I think);
  2. the interest that publishers/vendors could have (or not) towards this type of copy-control scheme.
So I'd suggest to concentrate on these (or on other problems which did not appear earlier in this thread).

For what concerns point 1, I really can't say anything and am looking forward to comments from experts.

For what concerns point 2, I'm asking if any of you have hard data about the following issue: how much of the illegal uploading that takes place today is actually due to the original buyer uploading the file? (The rest of illegal uploading is due, of course, to people who got the file from any other source, including the original buyer, through any means.)
This is a key point, because my scheme has no diminishing effect on this type of piracy (while it has on all other types). I had lunch today with a colleague who worked on these issues, and he told me that "buyers-uploaders" could even represent the vast majority of uploaders. Can some of you provide numerical data about this?

Finally, I noted a strange thing. Among all the critiques, no alternative proposals emerged. Up to now, only one single poster proposed a copy-control scheme that was alternative to mine (precisely, the proposal was: no DRM of any kind at all, and let's boycott publishers that don't comply until they change their ways). I would have liked to read more of these alternative proposals, because they're very interesting as a source for inspiration and to highlight the shortcomings of mine.
Is it possible that (among all of us people interested in ebooks and digital publishing) there isn't a wealth of innovative ideas about how to do better than current DRM systems, either on the side of user possibilities or on that of controlling piracy?

Last edited by BoldlyDubious; 11-19-2012 at 03:09 PM.
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Old 11-19-2012, 04:47 PM   #423
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Originally Posted by BoldlyDubious View Post
This is an extremely interesting analysis of the legal aspect of my proposal, about which I know almost nothing...
For this reason the phrase "you're wanting to change it from a civil to a criminal case" is a bit obscure to me. Do you mean that this is the only way something like the scheme I propose becomes feasible? Or that some aspect of the scheme make the switch necessary? Why there is a difference with respect to the current type of fines?
Civil cases is where one person takes another person to court for a perceived wronging, to have the court to decide if that person did do something wrong. Criminal cases do not require the action or presence of a third party. How civil cases are structured, a judge or jury decides how much the damages are, if any, and the side ruled against is required to pay that amount. There is no minimum amount, and the courts do not keep the money. Fines are not a civil matter, although can be imposed during the pursuit of a civil suit with the addition of criminal charges (an example is "contempt of court" charges, which are added based on the actions of a person disrupting the court precedings). And again, like I said, civil and criminal courts are totally separate. One infamous example is how OJ Simpson was found not guilty of killing Ron Goldman and Nicole Brown, but found liable in the wrongful death civil suit and ordered to pay 33 million to the Goldman family. So, yes, it would have to be a criminal case for there to be fines of some nature, and for the fine to be the only punishment, you would have to block civil suits, or else you could end up with the same craziness you have now with copyright infringement cases. The only other possible way for something to be similar, is to not have it be a fine per say, but have a minimum and maximum payout per infringement upon, and restrict thee infringement be limited to per file, or per title, rather than per instance of infringement. Even still that would require quite a bit of changes legally speaking.

Long story short, what you want isn't exactly legally compatible with our current judicial system.

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Did they upload these data on the internet for free, afterwards?
I didn't say that these things are impossible; I said that they require (sophisticated technical knowledge and time or) money. And people who pay money to do criminal acts don't usually do that to give the results away for free to unknown people. So I'm pretty convinced that people who upload music or books won't use this kind of tools.
Sometimes for free, sometimes for pay. I've seen it go both ways, depending on the type of data.

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If your PC is so full of security holes that any script kiddie can steal your books, getting a $300 "warning" (read: fine) could be a good thing for you! Maybe the next kiddie will go after your credit card data instead.
[/QUOTE]

Problem is, most of these use issues known with common software, that can take months for the developer to patch. You can have an up to date system, and take proper precautions and get pwned by a skiddie. Usually these holes are found by different people, and tools are made to exploit the issues before they're ever made publicly known. That's why they're called 0-day exploits. People are taking advantage of issues as soon as it is made public. An example of this is the brand new Wii U system just publicly released yesterday, and yesterday people had discovered and implemented a method to play homebrew games. Really isn't all that complicated, and just requires a copy of Super Smash Bros Brawl.

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Originally Posted by BoldlyDubious View Post
I am grateful to all of you posters for your contributions. You gave life to a very stimulating and enjoyable debate, and helped me to shape my proposal (last version is in post #356) for a "social DRM" system that empowers media users without increasing piracy (just the opposite, actually).

Now it seems to me that, among the problems raised by you posters so far, only two have not yet been already tackled, both of them "technical" ones:
  1. the legal feasibility aspect, that Hellmark just introduced (from the perspective of US law, I think);
  2. the interest that publishers/vendors could have (or not) towards this type of copy-control scheme.
So I'd suggest to concentrate on these (or on other problems which did not appear earlier in this thread).

For what concerns point 1, I really can't say anything and am looking forward to comments from experts.

For what concerns point 2, I'm asking if any of you have hard data about the following issue: how much of the illegal uploading that takes place today is actually due to the original buyer uploading the file? (The rest of illegal uploading is due, of course, to people who got the file from any other source, including the original buyer, through any means.)
This is a key point, because my scheme has no diminishing effect on this type of piracy (while it has on all other types). I had lunch today with a colleague who worked on these issues, and he told me that "buyers-uploaders" could even represent the vast majority of uploaders. Can some of you provide numerical data about this?

Finally, I noted a strange thing. Among all the critiques, no alternative proposals emerged. Up to now, only one single poster proposed a copy-control scheme that was alternative to mine (precisely, the proposal was: no DRM of any kind at all, and let's boycott publishers that don't comply until they change their ways). I would have liked to read more of these alternative proposals, because they're very interesting as a source for inspiration and to highlight the shortcomings of mine.
Is it possible that (among all of us people interested in ebooks and digital publishing) there isn't a wealth of innovative ideas about how to do better than current DRM systems, either on the side of user possibilities or on that of controlling piracy?
Problem is, as things stand, there is no major alternatives. You either have DRM, or you don't. You either have a jury decide if and how much should be paid out in cases of copyright infringement, or you don't. Even if there was an alternative, most major corporations would lobby against it, because things allow for millions of dollars of profit potentially from each case. The companies like it as a good way to make money all the while looking pitiful as they play the role of the victim, and the lawyers love it because it is a huge stream of revenue.
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Old 11-19-2012, 05:10 PM   #424
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[...] So, yes, it would have to be a criminal case for there to be fines of some nature, and for the fine to be the only punishment, you would have to block civil suits, or else you could end up with the same craziness you have now with copyright infringement cases. The only other possible way for something to be similar, is to not have it be a fine per say, but have a minimum and maximum payout per infringement upon, and restrict thee infringement be limited to per file, or per title, rather than per instance of infringement. Even still that would require quite a bit of changes legally speaking.
Long story short, what you want isn't exactly legally compatible with our current judicial system.
Thank you Hellmark for this very clear and detailed explanation. Now I have a clearer view of the legal side of the issue. Actually, the word "fine" that I used in a naive way to signify "a reasonably low pecuniary penalty" can be changed as required, it's not at all a key issue. But I understand that even this would not be sufficient (without changes to the law) to get back to civil justice while avoiding the absurdly large sums that publishers are now asking for.
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Problem is, as things stand, there is no major alternatives. You either have DRM, or you don't. You either have a jury decide if and how much should be paid out in cases of copyright infringement, or you don't. Even if there was an alternative, most major corporations would lobby against it, because things allow for millions of dollars of profit potentially from each case. The companies like it as a good way to make money all the while looking pitiful as they play the role of the victim, and the lawyers love it because it is a huge stream of revenue.
For what concerns lawyers, what you write doesn't surprise me at all. But I always thought that -given the negligibly low number of "pirates" that get actually brought to court- suing copyright infringers was only a symbolic/image issue to publishers, not a valuable source of revenue. If this is how things are, change is even more unlikely.
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Old 11-19-2012, 11:33 PM   #425
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If they sued everyone, legal fees would eat into profits. Now they just cherry pick for the easy wins, and settle the rest out of court. Plus it is extremely difficult to prove who did what. they only have an IP address. They have to get account info on whose account had that IP at that time, which usually requires a court order. Then they have to basically get the people to admit fault, because only the person who did it can get in trouble. The account holder isn't liable. Like if you borrow my car and crash into someone, you and your insurance are the ones on the hook. I would only be liable if i knew you shouldn't be driving and let you anyway.
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Old 11-20-2012, 04:11 AM   #426
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If they sued everyone, legal fees would eat into profits. Now they just cherry pick for the easy wins, and settle the rest out of court.
This sounds like an entire business model, collateral to that of publishing media and synergically integrated with that. Evil genius stuff, I'd say.
If things are like this, we cannot expect that publishers agree to changes unless these ensure to them the same capability of threatening people into (unfair) submission that they have today. Which is precisely the reason why changes are required. In this context, the only real hope (in the short/medium term, at least) lies in governments realizing what's really happening, and the damage that the draconian laws demanded by publishers to safeguard their position of power are doing to democratic countries. I'm not holding my breath for that :-(
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Old 11-20-2012, 08:18 AM   #427
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This sounds like an entire business model, collateral to that of publishing media and synergically integrated with that. Evil genius stuff, I'd say.
It is. There are entire companies that just buy patents and copyrights in order to sue others. They make nothing and do nothing but sue others.
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Old 11-20-2012, 09:25 AM   #428
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It is. There are entire companies that just buy patents and copyrights in order to sue others. They make nothing and do nothing but sue others.
Yes, I knew that such "patent trolls" exist. BTW, while doing a patent search for a project I was working on, I discovered that big companies patent bits of technology that they don't actually have and don't intend to develop just to prevent their competitors from working along those lines. Quite the opposite of the reason why the patent system was established (fostering and protecting innovation).
About media publishers, the way you describe the situation says that they are turning into just another category akin to patent trolls...
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Old 11-20-2012, 09:59 AM   #429
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About media publishers, the way you describe the situation says that they are turning into just another category akin to patent trolls...
They are. The porn companies are the worst right now.

One guy paid for a porn video subscription and downloaded 9 videos. Each were watermarked to show he was the one that downloaded them. They were then shared via p2p (the one article i saw made it seem like his downloads were automatically shared). He ended up being sued and having 1.5 million dollars in restitution awarded against him. Given the porn industry and its low budget high volume methods, i wouldn't be surprised if that was higher than the amount made off all 9 movies.
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