Rapidshare loses court battle against German booksellers

[speakingtohe]

Originally Posted by doctorow

Your argument is based on the premise that the real value of the downloaded item is its face value. That, I believe, is wrong. The typical downloader is not the person who would spend $1,000 on a piece of software. If he gets caught breaking the law, even if the fine is not a multiple of the face value of the software he downloaded, in no way would he profit from his actions.

It is the usual fallacy of RIAA and others who throw around imaginatively high numbers of supposed damage, while completely ignoring the fact that those who commited the criminal act of downloading something are often not the ones who would have purchased the item to begin with.

I'm on the fence with this one. Most criminal punishments for theft do not have anything to do with the amount of the theft except for some arbitrary things like theft under $200.

And what a person would spend should really have nothing to do with anything. if someone steals a car should they be punished less if they would not have bought that car? I've never bought a car or a diamond tiara, does that mean I can just go and steal a few and get a slap on the wrist?

The sad thing is that a lot of content is downloaded for frivolous reasons.
I had two roommates who both downloaded a lot of TV shows. One would come home from work and see if any of his favorite shows had new episode almost immediately. The other would watch her TV shows on the TV or on the various streaming channels such as CTV perfectly legally and would occasionally download a show that was unavailable. (mostly the Romanian news shows that were often offline for some reason, they were both Romanian)

Still both did it, and actually legally then as it was not illegal in Canada to download most things at the time. Both do the same now in Romania where it may or may not be illegal.

My point I guess is theft is theft, and to quantify it totally by the amount stolen would not work. I could go to a different busy restaurant every day and walk out on my bill if the fine was less than 10 times my bill and probably come out ahead. I could perform a lot of minor thefts where the chances of being caught are less than one in ten. Embarrassment would be a bigger deterrent.

But if the fine is 40 times the amount stolen, perhaps most thieves would be unable to pay. Junkies stealing a pension check of $1500 for which they would receive typically about $300 could not afford to pay $600 never mind $60,000. Sure lock em up. But there is no room, which is why there are still junkies stealing pension checks.

To me there s no answer. For twenty years people have been fining people with little success, threatening ISP's and users with dire penalties, and being unable to enforce most of them. Overall I don't think it is working.

The only thing in my opinion that will really work is to make it more convenient for people to buy. Many of us will actually pay more for convenience. The roommate who downloaded the most could afford to buy and would probably pay more than the commercial revenue to have the content that he was looking for sent to him legally ASAP.

Helen.

[HarryT]

Originally Posted by j.p.s

The person who has stolen $1000 software, been caught, convicted, and fined, say $500, does not get to keep the software by virtue of paying the fine, and has not profited from the theft.

How are you going to ensure that they delete it? Rely on their honesty?

[speakingtohe]

Originally Posted by Jozawun

How do people get on the buses without paying, just as a matter of interest?

In Vancouver currently, although it is soon to change and may have already, it is very easy.

The rapid transit systems are open and have no ticket checkers except for spot checkers, maybe an hour or two a week. The major transfer points are the same, the driver leaves the bus and goes for coffee or a smoke etc. and anyone can get on. Major routes have large buses with up to three entrances, only one of which has a person checking tickets. And where I live the bus drivers are mostly nice guys and gals who will let people on if they snivel enough.

Helen

[j.p.s]

Originally Posted by HarryT

How are you going to ensure that they delete it? Rely on their honesty?

The police can delete it from the confiscated computer before they give it back.

[HarryT]

Why do you think the police would be involved? Copyright infringement is, in most cases, a civil matter, and nothing to do with the police.

[SteveEisenberg]

Originally Posted by HarryT

Any fine has to be considerably greater than the retail value of the goods obtained in order to act as a deterrent.

I don't know about research on the civil side, but the evidence from the criminal side is that certainty of punishment is much more important than severity. At any given level of certainty, increased severity helps deterrence a bit. But a tiny sanction can be imposed much more frequently than a big one, and with less chance of being overturned, and so can be more effective.

One possibility is to book a case, but not use it. Send the offender a letter presenting the strong evidence, but say (I hope sincerely) that we don't want to have to use it. However, if a pattern indicative of heavy downloading continues, we'll need to use the strong booked evidence. This would set up the kind of high certainty that can deter.

Also, if the amount you could be sued for is $40,000, that's a big incentive to become expert in encrypting your internet traffic. But if the penalty will be just $10, or a temporary internet slow-down, maybe it's not worth the trouble to develop that expertise. Instead, someone may choose to drastically reduce their downloading, hoping that is enough to avoid the small penalty.

The previous paragraph is based on trying to reduce illegal downloading rather than eliminate it. But more than that is IMHO unrealistic.

Originally Posted by doctorow

It is the usual fallacy of RIAA and others who throw around imaginatively high numbers of supposed damage, while completely ignoring the fact that those who committed the criminal act of downloading something are often not the ones who would have purchased the item to begin with.

Perhaps people are talking past each other because of having fundamentally different ideas on what makes for right and wrong. In my view, copyright, especially if the creators are still alive, gives them a moral right to decide if they want to give their stuff away. Whether there was financial damage is often impossible to know, and is irrelevant to wrongness.

[Istvan diVega]

Originally Posted by SteveEisenberg

Also, if the amount you could be sued for is $40,000, that's a big incentive to become expert in encrypting your internet traffic. But if the penalty will be just $10, or a temporary internet slow-down, maybe it's not worth the trouble to develop that expertise.

There's really no expertise needed. All you need to do is to sign up for a VPN service and Bob's your close relative.

[MikeB1972]

Originally Posted by Istvan diVega

There's really no expertise needed. All you need to do is to sign up for a VPN service and Bob's your close relative.

Well, more your distant relative from Timbuktu

[doctorow]

Originally Posted by HarryT

The dishonest person has gained the use of the item that the honest person pays $1000 for. I really don't see how you can possibly say that they haven't gained $1000-worth of goods. It's like saying that the bus company hasn't really lost anything if someone doesn't pay their fare. In both cases the dishonest person is a leech on the back of the honest purchaser of the goods or services, without whom the product or service wouldn't exist.

I agree that the dishonest downloader is a free rider. Economies don't work well with free riders.

Where I disagree is that the fine requires to be a multiple of what the downloaded item(s) might have cost. The real value of these items is not as tangible as, let's say, the value of a bus ride. A specialized software dedicated to rendering 3D models may be worth $10.000 or more to the professional who uses it for his daily work. It certainly is not worth $10.000 to the high-school kid (who makes the majority of file sharers) - even if he downloaded it to complement his pirate software collection.

[spellbanisher]

Originally Posted by HarryT

Your argument doesn't make any sense to me, I'm afraid.

Let's suppose someone illegally downloads items that have a retail value of $10,000. You're saying that, if caught, they should only have to pay $1,000? They get $10,000 of goods for $1,000, whereas the honest consumer pays $10,000?

Sorry, but that makes no sense. The dishonest person should be punished. Saying "you'll only have to pay 10% of what you've taken" isn't a punishment at all - it's more like a reward!

It's not a reward if the fine is in excess of what the offender would be willing and able to spend on digital goods if he could not download them illegally. You erroneously assume that the offender values the digital goods more than the $1,000 or what it could have bought otherwise. In other words, all that matters is that the fine is large enough that, given a choice between the amount of money fined or the digital goods, the offender would choose the money.

Anything more not only exceeds the sufficient level of deterrence, but inflicts greater damages on the offender than he inflicted on society.

[speakingtohe]

Originally Posted by spellbanisher

It's not a reward if the fine is in excess of what the offender would be willing and able to spend on digital goods if he could not download them illegally. You erroneously assume that the offender values the digital goods more than the $1,000 or what it could have bought otherwise. In other words, all that matters is that the fine is large enough that, given a choice between the amount of money fined or the digital goods, the offender would choose the money.

Anything more not only exceeds the sufficient level of deterrence, but inflicts greater damages on the offender than he inflicted on society.

I agree that too large a fine is worse than no fine. If it is too large it is not even that scary for many as it is beyond the realm of realism for them.

But by inflicting damages on the offender I am not to sure what you mean. I don't think that society is inflicting damages by responding in a predefined way to an offence. The offender generally knows the possibility of a penalty and thus is doing the inflicting even on themselves.

As you imply, many people who download software do not do it to save a few bucks, they do it because it is there. A few will even buy the software if they find it useful.

I think a standard fine large enough to make people say ouch, $1000 is at least a big owee for most people and confiscation of computers etc. would deter many although at this stage most would not worry until they got caught. That is what I believe they do for small time cross border smuggling between Canada and the States I think, a fine and confiscate goods and the vehicle and it stops a lot of it.

Helen

[spellbanisher]

Originally Posted by speakingtohe

I agree that too large a fine is worse than no fine. If it is too large it is not even that scary for many as it is beyond the realm of realism for them.

But by inflicting damages on the offender I am not to sure what you mean. I don't think that society is inflicting damages by responding in a predefined way to an offence. The offender generally knows the possibility of a penalty and thus is doing the inflicting even on themselves.

As you imply, many people who download software do not do it to save a few bucks, they do it because it is there. A few will even buy the software if they find it useful.

I think a standard fine large enough to make people say ouch, $1000 is at least a big owee for most people and confiscation of computers etc. would deter many although at this stage most would not worry until they got caught. That is what I believe they do for small time cross border smuggling between Canada and the States I think, a fine and confiscate goods and the vehicle and it stops a lot of it.

Helen

Maybe damages isn't the right term, although i disagree that just because punishment is predefined doesn't mean that society (and really it is government doing the inflicting) doesn't inflict damages. Certainly, the United States legal system recognizes such possibility, which is why the bill of rights prohibits "cruel and unusual punishment." The Supreme Court, in Furman v Georgia, defined four principles that constitute "cruel and unusual punishment"

1. "that a punishment must not by its severity be degrading to human dignity," i.e. torture
2."A severe punishment that is obviously inflicted in wholly arbitrary fashion."
3. "A severe punishment that is clearly and totally rejected throughout society."
4. "A severe punishment that is patently unnecessary."

I think massive fines for copyright infringement falls under the fourth principle.

[HarryT]

Originally Posted by spellbanisher

I think massive fines for copyright infringement falls under the fourth principle.

Fines need to be proportionate to the value of the property obtained, but I still maintain that to be a meaningful punishment, the fine needs to be a multiple of retail value of the goods, or else it's no deterrent at all. If you know that you can download movies that would cost you $1000 to buy legally, and that you'll only be fined $500 for doing so even in the unlikely event of being caught, then why on Earth would you buy them legally when you can download them, and know that even if you're caught you'll still get them for half price? You need to know that you'll be fined, say, $10000 for your $1000 download for it to be a deterrent.

It's not a valid defence to say "but it's not worth $1000 to me, so it's wrong to fine me $10000".

[speakingtohe]

Originally Posted by spellbanisher

Maybe damages isn't the right term, although i disagree that just because punishment is predefined doesn't mean that society (and really it is government doing the inflicting) doesn't inflict damages. Certainly, the United States legal system recognizes such possibility, which is why the bill of rights prohibits "cruel and unusual punishment." The Supreme Court, in Furman v Georgia, defined four principles that constitute "cruel and unusual punishment"

1. "that a punishment must not by its severity be degrading to human dignity," i.e. torture
2."A severe punishment that is obviously inflicted in wholly arbitrary fashion."
3. "A severe punishment that is clearly and totally rejected throughout society."
4. "A severe punishment that is patently unnecessary."

I think massive fines for copyright infringement falls under the fourth principle.

If all of those rules are followed than again I don't see much inflicting going on. I know that they aren't always and that appealing often does no good. Two people committing identical offenses are not often punished equally unless it is a traffic ticket.

Personally I am not too concerned with the war on piracy. People steal. Not a new phenomenon. What irritates me most is the self justification. It's not really stealing because I wouldn't have bought it anyway is about as lame as you can get. Lots of stuff I wouldn't buy, but does that mean I should steal them. an especially spurious reasons with ebooks and videos, I don't want to wait or I don't want the commercials.

And like shoplifting it is practically harmless to society if few are doing it. But multiply it by millions and everybody pays higher prices for one thing. And possibly this is why there is the inconvenience of DRM although that is hard to imagine

Myself I prefer people to shoplift rather than break into my apartment, but still it should still be discouraged fairly vigorously. A slap on the wrist or a mild spanking just won't do it. I'm not advocating the guillotine here, but making the punishment equal or even close to paying what you would if you bought the item in the first place is not going to deter anyone. AS HarryT implied, if I could get out of paying on the transit by simply paying if caught, why pay at all.

Helen

[spellbanisher]

Originally Posted by HarryT

Fines need to be proportionate to the value of the property obtained, but I still maintain that to be a meaningful punishment, the fine needs to be a multiple of retail value of the goods, or else it's no deterrent at all.

Repeating the same point over and over doesn't make it true. By this logic, someone could lose their home, their car, their retirement, all their discretionary income, but would be "profiting" if the value of the fine didn't exceed the retail value of the information illegally obtained.

This kind of logic fails to grasp the concepts of elasticity and opportunity cost. Digital goods have highly elastic value. People download because the opportunity cost is virtually zero. A deterrent only needs to raise the opportunity cost of downloading to a point where downloading isn't worth it. In tangible terms, it means the fine would have to exceed the amount a person is willing and able to spend on digital goods.

So, for instance, if I was only willing and/or able to spend $100 a month on digital goods and a fine made me pay $200 a month over a one or two year period, that would force me to spend less on goods and services I value more than digital goods and therefore raise the opportunity cost of downloading above what I am willing to risk to get digital goods for free.

But even more realistically, as has also been pointed out, the effectiveness of the deterrent is less dependent on the severity of the punishment than on the probability of getting caught, prosecuted, and found guilty.

As for the "meaningfulness" of the punishment, that is entirely dependent on a system of values, but it has nothing to do with the sufficiency of the deterrent. Depending on your system of values, stoning an unruly child or cutting off a thief's hand can be a "meaningful punishment." The term is moralistic. Deterrence is objective. Either something prevents a behavior or it doesn't.