Quote:
Originally Posted by HarryT
It bears repeating. The criminal doesn't get to determine the value of what he's taken, and hence the appropriate level of fine. If you download movies that retail at $1000, then you have obtained $1000 of property without paying for it. Saying "it's not worth $1000 to me" or "I wouldn't have bought it anyway" doesn't magically make it worth less than $1000, and hence a fine needs to be significantly more than $1000 to be any form of punishment at all. To suggest that fining someone $500 for downloading $1000 of goods is in any way a sensible punishment is ridiculous.
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First, as copyright infringement is not under usual circumstances considered a criminal offense, using the term "criminal" to refer to a copyright infringer is a highly loaded term.
Second, the fact that copyright infringement, except under exceptional circumstances, is not considered a criminal offense in most countries also means that intellectual property is not tantamount to tangible property, as evidenced by the fact that copyright and patents expire but exclusive rights over tangible property does not. You might find this "ridiculous," but that is how the legal systems of the vast majority of the countries in the world have viewed intellectual property over the last few hundred years. If copyright was considered property, then illegal downloading would be considered theft, which entails jail time or community service
Third, as intellectual property is not legally considered tantamount to tangible property, applying the usual principles of punishment or restitution to the problem of copyright infringement is problematic. I've already discussed the issue of punishment in the second point. If you really think copyright infringement is exactly equivalent to theft, you should be advocating the extension of theft laws to cover copyright infringement, although that would also entail changing the provision in British laws that theft requires the "the intention of permanently depriving the other of it."
Restitution entails proving that the defendant became enriched at the expense of the claimant(according to English law). While you can claim that a copyright infringer became enriched at the expense of the content producer, you cannot reasonably claim under all circumstances that the expense or loss to the content producer is the same as the retail price. Since digital reproduction does not require depriving the content producer of anything tangible, the content producer would have to prove that absent the illegal downloading, the person would have purchased his goods, a claim that would be especially difficult to prove if a person downloaded goods priced at greater than their annual discretionary income. Restitution would also meant that the defendant would not have to pay in excess of the value of the goods he downloaded, as restitution is not a punishment nor a deterrent.
So let's get to the heart of the matter. If copyright infringement is theft, theft laws should apply. If it is not theft, then the system of deterrent and/or punishment should be particular to the peculiar nature of the intellectual property regime.
As far as I see it, the issue here is that you view copyright different than the law currently does. You want copyright to be tantamount to tangible property, you want copyright infringers to be considered criminals, but you don't want the usual laws of theft or restitution to be applied to intellectual property. In sum, what you seem to want is a completely different legal system from the one you have. Good luck with that.