Rapidshare loses court battle against German booksellers

[HarryT]

Originally Posted by spellbanisher

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.

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.

[tompe]

Originally Posted by HarryT

Fines need to be proportionate to the value of the

So define "value" here. It does not seem to me that a stated price by the seller is the value. You can define it in other ways that are more reasonable. For example the price that the person getting the fine would have been willing to pay if he had the money to spend. Or a sliding scale like the value of airplane seats. No person pay the same so what is the value?

[tompe]

Originally Posted by 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.

That as usual depends on the country.

[tompe]

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.

Why? Since you cannot sell it the value is reduced. And you might nt want to show it to your friends so the value is reduced.

So it bears repeating here that you often state as trivial facts things that are not trivial and not facts.

[spellbanisher]

Originally Posted by speakingtohe

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

The transit analogy is faulty. I'm not going to catch 10,000 free rides in a day just because the cost of getting caught is paying the ticket price. A person's transportation habits are fairly fixed, his demand for transit highly inelastic.

With digital goods, people download much, much more than they ever actually consume because it is free. Thus, an effective deterrent, provided there is a reasonable probability of getting caught, wouldn't have to make them pay for every digital good downloaded, but only more than they are willing and able to pay for digital goods. Something like a $2,500 dollar fine would be effective whether a person illegally downloaded $10 worth of goods or $10,000,000 worth of goods(again, provided there is a reasonable probability of getting caught).

[HarryT]

Originally Posted by spellbanisher

Something like a $2,500 dollar fine would be effective whether a person illegally downloaded $10 worth of goods or $10,000,000 worth of goods(again, provided there is a reasonable probability of getting caught).

A $2500 fine would not be appropriate for a person who downloaded $5000-worth of books which they would otherwise have bought. It's saying "here - have these books for half price". I've spent a heck of a lot more than $5000 on ebooks, so don't say "but nobody would spend that much".

[HarryT]

Originally Posted by tompe

So define "value" here. It does not seem to me that a stated price by the seller is the value.

That is the way the retail system works. The seller sets the price; I, as a consumer, am free to decide whether or not to pay that amount. What I don't have the right to do is say "it's not worth that much to me, so I'm going to take it without paying anything".

[tompe]

Originally Posted by HarryT

That is the way the retail system works. The seller sets the price;

Yes, that is the price. But I asked about the definition of "value" which is not the same as the stated price.

[HarryT]

You can't separate the two. If I don't pay the fare on my local bus and I get caught I'll be fined 40x the fare. I can't get away by saying "that journey didn't have a value of £2 to me, so I'm not going to pay an £80 fine" .

[spellbanisher]

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.

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.

[HarryT]

Answer me this:

I spend $5000 on ebooks.
My dishonest neighbour downloads those same books without paying for them.

How can you possibly say that my neighbour has not gained books that are worth $5000?

You're proposing that my neighbour should be fined $2500.

He ends up paying $2500 for the books that I've paid $5000 for. He's not being punished for his actions; he's being rewarded.

This is right in your view?

[spellbanisher]

Originally Posted by HarryT

Answer me this:

I spend $5000 on ebooks.
My dishonest neighbour downloads those same books without paying for them.

How can you possibly say that my neighbour has not gained books that are worth $5000?

You're proposing that my neighbour should be fined $2500.

He ends up paying $2500 for the books that I've paid $5000 for. He's not being punished for his actions; he's being rewarded.

This is right in your view?

I'm not proposing any set number. That was a hypothetical number, and I think for the vast majority of people it would be punitive. You could make it $5,000 or $10,000, but IMO the amount should be based on what is necessary to prevent further infringement.

At this point we are not discussing what objectively would be a deterrent to illegal downloading, because the size of a fine has very little effect on illegal downloading. In the United States a person can be fined up to $150,000 per copyright violation. A couple years ago a woman was fined $1.9 million dollars for illegally sharing 24 files ($80,000 per file). It got pretty messy after that though, and the fine ended up at $222,000.

http://en.wikipedia.org/wiki/Capitol_v._Thomas

I assume that most infringement cases are settled out of court, but still for sums greatly in excess of the retail price of the goods downloaded. As has already been pointed out, effective deterrence is based more on the probability of getting caught and punished than on the severity of the punishment itself.

But what's going on here is a clash of values. You want the government to punish people based on what you think is "fair," kind of a eye for an eye thing. Which is fine and it is the basis of most legal systems, the idea of "paying one's debt to society."

My view of justice is a mixture of pragmatism and humaneness. I think the government should focus on the most effective and humane means of minimizing illicit activity, whether that is through sufficient but not onerous or cruel punishments as deterrents, rehabilitation, effective policing, or the creation of more socially productive alternative opportunities.

In the case of copyright infringement, I don't see who benefits from massive fines. It greatly exceeds what is necessary to stop the infringers activity, the hardship it places on the infringer and his family is usually much greater than the benefits the fine has to the claimant, and it doesn't do anything to stop others from infringing. It is neither pragmantic nor humane.

But to go back to the idea of a "debt to society," I can't help but think that part of the reason we want to punish criminals beyond what is necessary for deterrence and rehabilitation is because society demands that we take a pound of flesh. People would balk at a legal system that did not make "evil-doers" suffer to some extent, to give them what is coming to them. So I think our system is a compromise between the pure revenge demanded by victims and humane pragmatism.

[tompe]

Originally Posted by HarryT

You can't separate the two. If I don't pay the fare on my local bus and I get caught I'll be fined 40x the fare. I can't get away by saying "that journey didn't have a value of £2 to me, so I'm not going to pay an £80 fine" .

Well, its is you that have separated them by saying that it is the value that is the important thing. So what should the fine be if the price is 0 but the value is 100?

[SteveEisenberg]

Originally Posted by HarryT

I can't get away by saying "that journey didn't have a value of £2 to me, so I'm not going to pay an £80 fine" .

True. You'll probably be taken in as a smart aleck.

But what if you just politely say you don't have the money? Maybe that won't work where you live, but it probably will here, especially if the amount is much more than that.

This is a FOAF story, but I heard that criminal fines in New York City are rarely paid. Prosecutors supposedly tell each other that it doesn't matter, because "they all end up on the island."

In as much as the fine is so high it can't be easily collected, I think it promotes disrespect for the law and indeed makes people more likely to wind up on Rikers Island.

I'd find it humiliating to be fined even $5.00 for cheating an author. It would also be humiliating if my family's internet connection was slowed down for a week because I cheated an author. That would deter me. Maybe most people wouldn't be deterred by it. But if something could reduce the problem by, say, one third, that would be big achievement.

[speakingtohe]

Originally Posted by spellbanisher

The transit analogy is faulty. I'm not going to catch 10,000 free rides in a day just because the cost of getting caught is paying the ticket price. A person's transportation habits are fairly fixed, his demand for transit highly inelastic.

With digital goods, people download much, much more than they ever actually consume because it is free. Thus, an effective deterrent, provided there is a reasonable probability of getting caught, wouldn't have to make them pay for every digital good downloaded, but only more than they are willing and able to pay for digital goods. Something like a $2,500 dollar fine would be effective whether a person illegally downloaded $10 worth of goods or $10,000,000 worth of goods(again, provided there is a reasonable probability of getting caught).

Regardless of whether you ride once a week or once a day, paying exactly the same as if you paid when you should have is not a deterrent in any way. A $40 is a deterrent even if the risks are low of getting caught. And many if not most people would not do it because it is wrong. Stealing is for many a demeaning act that lowers their self respect. My analogy would be faulty if I suggested that transit offenders should pay $10,000 but I am pretty sure that nobody said that.

And I agree that a straight $2500 fine would be effective in many cases and $2,000,000 would not work for many.

I lean, as I said, towards something that almost anyone with an income amd a computer can realistically be able to pay, but would make them unhappy to have to. I would say $1,000 but $2,500 is in the same ballpark.

Charging someone $200,000 because they downloaded $20,000 of content might possibly make it through the courts on a case by case basis, but is anyone going to pay? Most couldn't pay and would declare bankruptcy damaging all of their creditors, or simply quit working and go on social assistance.

Helen