Rapidshare loses court battle against German booksellers

[SleepyBob]

Originally Posted by Ninjalawyer

If someone downloads my work without paying for it, and would never have paid for it, what do I care? I wouldn't be made better off in that transaction if they hadn't downloaded it at all.

But, from a legal perspective, how can you possibly differentiate between those who would never have paid for it (so there is no financial harm to you) and those who would have bought it (so you lost a sale), if no "free" options existed.

I don't think you can. In order to be able to recover from the second group, you have to equally be able to recover from the first.

It is the second group you really want to eliminate (from a financial harm perspective). But the only way that happens is if the cost of getting caught is greater than the cost of purchasing legally.

Maybe you need to place caps on the total fees for multiple violation (e.g. $25,000) to "protect" those people who illegally download thousands of books at a time with no intention of reading them. But when the goal is really to convert the "would have bought" pirates into "did buy" consumers, it's never going to happen if the cost of illegal activity is lower than the cost of being a legitimate consumer.

[HarryT]

Originally Posted by Ninjalawyer

If someone downloads my work without paying for it, and would never have paid for it, what do I care? I wouldn't be made better off in that transaction if they hadn't downloaded it at all.

Because you can never know whether or not that person would actually have paid for it. The old refrain of "but I wouldn't have bought it" is often heard, but is a person who downloads stuff illegally really likely to say anything else?

[shalym]

Harry, I think I just figured out why you and I see things so differently, and why we will probably never agree on this issue. I believe that the majority of people are basically honest, and therefore, don't "pirate" maliciously. You seem to think that if people can get something cheaper by being dishonest about it, they obviously will.

I believe that the ones who are downloading thousands of books, or songs, or movies, or software programs are ones who would never have bought all of that stuff. The ones who would have bought it, if they could afford to, are the ones downloading a few things that they really want to read/hear/watch/use...or in the case of books and software, it may be things that they have to have for a particular class, but can't afford. So the people who are using the pirated material are the ones who can't afford it. The ones who aren't using it never would have bought it anyway...they're essentially hoarders, and may benefit from psychological help. Either way, extremely large fines won't stop either group...the ones who are using the goods will just go bankrupt, and the ones who aren't, have a problem that can't be fixed by any amount of a fine.

Shari

[Istvan diVega]

Originally Posted by HarryT

It's not theft - it's copyright infringement. That doesn't make it any less "wrong". You are still taking something that you have no right to without paying for it.

Sure. But as you will have seen from the post I quoted, I was addressing whether in my opinion it is or isn't theft.

It's not laughable in the least. It's simply wrong.

You're entitled to your opinion. So am I and mine is different.

There are other entirely legal ways of sampling music in the form of streaming services. Deleting the file doesn't lessen the offence of copyright infringement. You've infringed copyright the instant you download the file.

Which I am absolutely fine with.

[HarryT]

Originally Posted by shalym

Harry, I think I just figured out why you and I see things so differently, and why we will probably never agree on this issue. I believe that the majority of people are basically honest, and therefore, don't "pirate" maliciously. You seem to think that if people can get something cheaper by being dishonest about it, they obviously will.

Not at all. As I said on the previous page of this thread, I too believe that the majority of people are honest. It's the dishonest minority that we're discussing here, however.

I believe that the ones who are downloading thousands of books, or songs, or movies, or software programs are ones who would never have bought all of that stuff. The ones who would have bought it, if they could afford to, are the ones downloading a few things that they really want to read/hear/watch/use...or in the case of books and software, it may be things that they have to have for a particular class, but can't afford.

There I'm afraid I have to disagree. We've already agreed that most people are honest; the people we're talking about here are the minority we are not honest, and I see no reason to believe that someone who's dishonest isn't going to take something simply because they can (in fact we've had people say exactly that on MR, so there's proof that such people exist).

Not being able to afford something doesn't excuse taking it without paying. Nobody's going to starve if they can't watch a film or listen to a song. This is entertainment, not the essentials of life, and taking it without paying is pure greed.

That's the reason that heavy fines should be imposed for these offences; to send the message that it's not OK to be a freeloader.

[Ninjalawyer]

Originally Posted by HarryT

That's the reason that heavy fines should be imposed for these offences; to send the message that it's not OK to be a freeloader.

So, would you agree then that if evidence were to show that an extremely heavy fine had no benefit over a small fine in stopping illegal downloading, there would be no reason to set an extremely heavy fine? I would take this position, as it is fundamentally just to impose only the penalty absolutely necessary and no more.

I have no interest in seeing people punished just because they get something for free, they should only be punished if they both: (i) get something for free; and (ii) getting that something for free causes a harm to someone else.

[Istvan diVega]

Originally Posted by HarryT

I too believe that the majority of people are honest. It's the dishonest minority that we're discussing here, however.

We've already agreed that most people are honest; the people we're talking about here are the minority we are not honest, and I see no reason to believe that someone who's dishonest isn't going to take something simply because they can (in fact we've had people say exactly that on MR, so there's proof that such people exist).

I think you have this utterly, fundamentally wrong. In terms of the computer-owning, internet-connected population of the world I am absolutely convinced that the majority are dishonest scoundrels by your definition.

I'm sure that the number of connected teenagers in existence who have never pirated a song and/or an application can be counted on my own fingers and toes.

Having been into computers from the time of the Oric-1 I have acquired a reputation as "the computer guy" and I will occasionally build machines for friends and acquaintances and often visit people to sort out their problems. When I do, I always try to get a picture of their usage patterns and I can honestly say I have yet to visit a household which has never pirated something. Not necessarily deliberately, but still. It may be the teenage son(s) or daughter(s) who is/are the culprit, it may be mom or dad and sometimes it's even granny or grand-dad.

While my personal experiences are obviously statistically insignificant, encompassing perhaps as many as 50 households in total, I'd happily bet a few months' pay that it is applicable to and representative of society in general.

I would confidently say that at the very, very least, 75% of all connected computer users are pirates and copyright violators. Some may only ever have pirated a song or three, some like to pre-view what they buy, some may not even know what they've done is illegal (if indeed it is), while yet others may be hoovering the net for anything that might conceivably be of interest, happily hoarding it like Ice Age's Scrat. Whatever the case may be, we are apparently all fundamentally dishonest as far as you're concerned and cannot be trusted on any level whatsoever because we're not terribly concerned with violating current copyright laws.

Oh well.

[HarryT]

Originally Posted by Ninjalawyer

So, would you agree then that if evidence were to show that an extremely heavy fine had no benefit over a small fine in stopping illegal downloading, there would be no reason to set an extremely heavy fine? I would take this position, as it is fundamentally just to impose only the penalty absolutely necessary and no more.

Unfortunately, given the fact that at present piracy is a virtually risk-free activity, we have no way of knowing what the effect of fines would be. I maintain, however, that a fine has to be a significant multiple of the price of the goods obtained in order to be a punishment.

I have no interest in seeing people punished just because they get something for free, they should only be punished if they both: (i) get something for free; and (ii) getting that something for free causes a harm to someone else.

Getting something for free harms:

A) The seller, since a certain proportion of the people who illegally downloaded it (there's no way of knowing what that proportion is, but we can reasonably assume that it's non-zero) would otherwise have legally bought it.

B) The honest purchaser, who is effectively subsidising the freeloader.

[speakingtohe]

Originally Posted by Ninjalawyer

So, would you agree then that if evidence were to show that an extremely heavy fine had no benefit over a small fine in stopping illegal downloading, there would be no reason to set an extremely heavy fine? I would take this position, as it is fundamentally just to impose only the penalty absolutely necessary and no more.

I have no interest in seeing people punished just because they get something for free, they should only be punished if they both: (i) get something for free; and (ii) getting that something for free causes a harm to someone else.

One small case of harming someone else (and I have personally seen it actually happen at least twice this summer) Person A says I must get a book, and person B says 'Oh, don't pay for it, I've got every book that guy wrote, I'll email it to you'. In both cases that I have overheard, Person B has said "OK thanks"
In both cases it is a likely assumption that person B would have bought the book, but did not buy the book.

Not going to bankrupt anyone, but still.

Helen

Helen

[speakingtohe]

Originally Posted by Istvan diVega

I think you have this utterly, fundamentally wrong. In terms of the computer-owning, internet-connected population of the world I am absolutely convinced that the majority are dishonest scoundrels by your definition.

I'm sure that the number of connected teenagers in existence who have never pirated a song and/or an application can be counted on my own fingers and toes.

Having been into computers from the time of the Oric-1 I have acquired a reputation as "the computer guy" and I will occasionally build machines for friends and acquaintances and often visit people to sort out their problems. When I do, I always try to get a picture of their usage patterns and I can honestly say I have yet to visit a household which has never pirated something. Not necessarily deliberately, but still. It may be the teenage son(s) or daughter(s) who is/are the culprit, it may be mom or dad and sometimes it's even granny or grand-dad.

While my personal experiences are obviously statistically insignificant, encompassing perhaps as many as 50 households in total, I'd happily bet a few months' pay that it is applicable to and representative of society in general.

I would confidently say that at the very, very least, 75% of all connected computer users are pirates and copyright violators. Some may only ever have pirated a song or three, some like to pre-view what they buy, some may not even know what they've done is illegal (if indeed it is), while yet others may be hoovering the net for anything that might conceivably be of interest, happily hoarding it like Ice Age's Scrat. Whatever the case may be, we are apparently all fundamentally dishonest as far as you're concerned and cannot be trusted on any level whatsoever because we're not terribly concerned with violating current copyright laws.

Oh well.

It's kind of like that old joke perhaps
A man walks up to a woman in a bar and asks her if she would go home with him for a million dollars.

She says "Sure"

He then asks her if she would go home with him for five dollars.

What do you think I am?" she asks.

He relpies "We've already established that, now we are establishing the price"



Helen

[Istvan diVega]

A little like that perhaps.

Also, just to harp on a bit more, piracy isn't endemic only in the private sphere. Many studies have found plenty pirated software in businesses, in schools and in government. Lately, copyright lawyers in the US have been found to be uploading copyrighted material themselves to the Pirate Bay and other large torrent sites in order to catch "offenders".

Honestly, to believe that piracy and copyright violation is something carried out by a small, nefarious minority is simply astoundingly naive.

[SteveEisenberg]

Originally Posted by Ninjalawyer

I have no interest in seeing people punished just because they get something for free, they should only be punished if they both: (i) get something for free; and (ii) getting that something for free causes a harm to someone else.

This discussion seems to me to be getting deeper into the real issues than past ones.

As for my view, since 40 percent of books are pulped, I don't see the harm in in shoplifting a few of those from Barnes and Noble. And yet it is wrong.

One piracy harm is that a lot of authors feel violated, comparable to how they would feel if burglarized. True, if the pirate was really careful and discrete, the author will have no way to know. But pirates are not that discrete, so authors do know about them.

Piracy is also comparable to insider trading. The victims don't know when they've been victimized by successful inside traders, and there are academic disagreements about how much, if any, harm these victims suffer, but they are still victims.

[SteveEisenberg]

Originally Posted by Istvan diVega

Honestly, to believe that piracy and copyright violation is something carried out by a small, nefarious minority is simply astoundingly naive.

The fact that most people (at least in the US) exceed speed limits doesn't make that OK either.

[Ninjalawyer]

Originally Posted by HarryT

Unfortunately, given the fact that at present piracy is a virtually risk-free activity, we have no way of knowing what the effect of fines would be. I maintain, however, that a fine has to be a significant multiple of the price of the goods obtained in order to be a punishment.

Getting something for free harms:

A) The seller, since a certain proportion of the people who illegally downloaded it (there's no way of knowing what that proportion is, but we can reasonably assume that it's non-zero) would otherwise have legally bought it.

B) The honest purchaser, who is effectively subsidising the freeloader.

If I download 10,000 books (as easily done as you say it is), would being charged $50 per book, so $500,000 deter me more than being charged $500? One is ruinous, the other is a slap on the wrist that would probably stop me. Charging multiples of the price of a good is only just in the case of one-off downloads, not bulk downloads; and in the case of bulk downloads, you can be reasonably sure that the person wouldn't have purchased much of the material in any event.

And if we can't tell what the effect the fines would be, wouldn't it make sense to start at the low end? Why just "go with our guts", and crank them up to 11? How is justice served by automatically going with a harsh penalty in the absence of evidence that it is effective rather than a low penalty?

[Ninjalawyer]

Originally Posted by SteveEisenberg

This discussion seems to me to be getting deeper into the real issues than past ones.

As for my view, since 40 percent of books are pulped, I don't see the harm in in shoplifting a few of those from Barnes and Noble. And yet it is wrong.

One piracy harm is that a lot of authors feel violated, comparable to how they would feel if burglarized. True, if the pirate was really careful and discrete, the author will have no way to know. But pirates are not that discrete, so authors do know about them.

Piracy is also comparable to insider trading. The victims don't know when they've been victimized by successful inside traders, and there are academic disagreements about how much, if any, harm these victims suffer, but they are still victims.

I'm not going to address analogies to theft, because I think that has been debated to death on this board.

On the feeling of violation, I don't think you can base a punishment on that. You can't stand it when your neighbors have sex; it horrifies and completely disgusts you and it's all you can think of for days after you witness it through their open bedroom window. You call the police a number of times, and eventually your neighbors get the hint and start closing their blinds. But now you know, you just know (!) that every time they close their blinds they're having sex and it's terrible, and you feel violated. Should your irrational feeling of violation be the basis of policy decisions? I would say no.

Insider trading is an interesting example. Most would agree that it distorts markets and does cause real economic harm. However, if evidence showed that it caused no harm at all, and even resulted in an overall economic benefit, I would be in favour of it.

Speaking of which, here's an oldie but a goodie: A 2013 study from the European Commission (here) found the following:

Perhaps surprisingly, our results present no evidence of digital music sales displacement. While we find important cross country dierences in the effects of downloading on music purchases, our findings suggest a rather small complementarity between these two music consumption channels. It seems that the majority of the music that is consumed illegally by the individuals in our sample would not have been purchased if illegal downloading websites were not available to them. The complementarity effect of online streaming is found to be somewhat larger, suggesting a stimulating effect of this activity on the sales of digital music.

Taken at face value, our findings indicate that digital music piracy does not displace legal music purchases in digital format. This means that although there is trespassing of private property rights, there is unlikely to be much harm done on digital music revenues.