Illegal Downloads 150x More Profitable Than Legal Sales

[Shaggy]

Originally Posted by ahi

Laws made like you theorize in your first paragraph would mean that if I posted one of the Harry Potter books in plaintext (or even just a few chapters thereof) into a thread, all the people that viewed it (including the moderator who eventually removes it) would be guilty of copyright infringement and liable to full prosecution and penalties. Even if they only realized it was copyrighted after the page fully loaded, no account of my titling the post "Hot deal on the PRS-600". (Viewing a webpage does COPY data from the internet onto your computer, you know!)

[Shaggy]

Originally Posted by PKFFW

Again, I have already previously agreed to that, both in this thread and others. For future reference you may assume my agreement stands unless I state otherwise at some time in the future.

I apologize. I was only responding to statements in a specific post. In future I will be sure to fully research your posting history before making any comments.

[Shaggy]

Originally Posted by bill_mchale

The specific scenario you posted would be covered under fair use for the downloaders. The moderator certainly has a fair use right to review uploaded files to see if they violate copyright or not. Likewise if downloaders have reason to believe that they are not actually downloading copyrighted material (i.e. because of a misleading topic heading) they have a fair use right to review the material downloaded.

Fair use has nothing to do with it.

On the flip side, if you posted it clearly and unambiguously as what it was, then the downloaders very likely are violating copyright law.

Nope. What if Rowling herself posted it, and clearly and unambiguously said what it was. There is no violation because Rowling is (I assume) authorized to distribute. The responsibility is on the uploader, the downloader is not expected to know if the distribution was authorized or not. What if Rowling posted it under an anonymous account. The downloader has no idea who the uploader is, and no idea what licenses/contracts they may or may not have in place with the copyright holders.

However, lets say that person B asks person A to make a copy of the CD for him and person A complies. Now both person B and person A have violated copyright law; person A actually has made the copy, but person B caused the copy to be made.

Not exactly. Person A has committed direct copyright infringement, person B has not. The one thing that person B might have committed is indirect infringement, but only if they knew that their actions would cause person A to break the law. If B has no idea whether A is authorized to make that copy, then they are not committing indirect infringement. (Back to the internet, B doesn't even have any idea who A is in most cases, let alone whether they are authorized or not.)

A big note: This has never been successfully argued against a downloader (or even attempted in court), as far as I know. The indirect infringement laws were written to go after people who either supplied, hired, or assisted physical commercial copyright infringers. I don't know of anyone trying to apply it to the digital realm.

Now on the flip side, if person A lead person B to believe that the CD contained music owned by person A, then requesting a copy does not make B guilty of violating copyright because B believed it was legal to make that copy.

Not quite. If person B knows that person A is not authorized, then it might be indirect infringement. If person B does not know, then it is not.

We are not talking about making copies that person B did not realize violated copyright.

Actually, that's exactly what we're talking about. When downloading anything from the internet (regardless of source: p2p, websites, etc), there is no way that person B can be expected to know if the source they are getting it from is authorized or not. In most cases, it would be impossible for them to know. Do you research the copyright status on every single website link you click on, before you click on it? Did you know that most of that data is copyright? Or do you just assume that whoever is hosting/uploading has the rights to do so.

The RIAA is one of the most protective organizations of their copyrights on the internet. There's a reason even they only sue uploaders.

[ahi]

Originally Posted by bill_mchale

The specific scenario you posted would be covered under fair use for the downloaders. The moderator certainly has a fair use right to review uploaded files to see if they violate copyright or not. Likewise if downloaders have reason to believe that they are not actually downloading copyrighted material (i.e. because of a misleading topic heading) they have a fair use right to review the material downloaded.

... so it only becomes copyright infringement if they save the file for an extended period of time, or if their browser cache is not set to purge viewed pages' cached copies immediately upon closing the browser? (Copies, COPIES, COPIES--THE HORRRRRROR!)

What's the cut off time in days... or hours... or minutes? Is it variable based on the length of the work? Are you allowed to keep a 3 hour movie for longer (in order to review to ascertain whether it infringes copyright) than a 300 page book?

Originally Posted by bill_mchale

On the flip side, if you posted it clearly and unambiguously as what it was, then the downloaders very likely are violating copyright law.

In what country?

Originally Posted by bill_mchale

Lets look at it this way. If person A has a legally purchased CD (I am using something where the medium and the media are tied together to simplify things) and lends it to person B, then everything is fine. Person B has a legal right to listen to that CD. However, lets say that person B asks person A to make a copy of the CD for him and person A complies. Now both person B and person A have violated copyright law; person A actually has made the copy, but person B caused the copy to be made.

The most sensible argument this analogy could possibly make is that person B is guilty of contributory infringement... or some other such nonsense.

"Copyright infringement" is not some hidden metaphysical quality of a given copy of media, but rather an unauthorized act of distribution by a human being. A giving of something to someone. Person B is not giving themselves something--person A is doing the giving. Person A infringes. Person B does not.

The "causing" you are talking about is, alas, not recognized in most legal jurisdictions as such... and even where it is, certainly not as "copyright infringement" in and of itself.

Originally Posted by bill_mchale

Now on the flip side, if person A lead person B to believe that the CD contained music owned by person A, then requesting a copy does not make B guilty of violating copyright because B believed it was legal to make that copy.

Ah... so now the indiscernible internal mind-state of person B is the point of arbitration as to whether or not a particular action was illegal. Making the technologically ignorant/naive, I suppose, less often guilty of copyright infringement... simply because they are too stupid to understand what's going on.

You don't find this silly?

Originally Posted by bill_mchale

Downloading is the same thing. Person B is taking a copyrighted file and making a copy of that file which B did not pay for and which otherwise does not fit under fair use. We are not talking about making copies that person B did not realize violated copyright.

Basically I find your line of reasoning removed from real world laws... on the other hand, it is rather in line with the propaganda campaigns run by the RIAA and its ilk under the guise of "educating the public".

- Ahi

[PKFFW]

Originally Posted by ahi

Correct.

Laws made like you theorize in your first paragraph would mean that if I posted one of the Harry Potter books in plaintext (or even just a few chapters thereof) into a thread, all the people that viewed it (including the moderator who eventually removes it) would be guilty of copyright infringement and liable to full prosecution and penalties. Even if they only realized it was copyrighted after the page fully loaded, no account of my titling the post "Hot deal on the PRS-600". (Viewing a webpage does COPY data from the internet onto your computer, you know!)

- Ahi

1: Despite your implying by your response that you do know the technicalities of the legal system I am left with little doubt, from what you have written, that you have no more in depth knowledge than myself and are merely pontificating based on your opinion of how the law applies.

2: One can always argue the exceptions to the rule of course. Just as when Bill mentioned "if you download something that you have not paid for......" the immediate response was "what about Baen who gives stuff away for free?" Quite obviously that is not what Bill was referring to but I suppose it is easier to argue it that way in order to make his point look invalid.

3: If you clearly labeled it incorrectly there would be no copyright infringement because the downloader would have no intent to commit copyright infringement. One thing I do know about the law is that intent is required for an offence to have been committed. There can be no intent if the file is labeled incorrectly.

4: If you only uploaded "a few chapters", and clearly labeled the file as being such, and I knowingly downloaded those chapters then I'm not sure how the law would see that.

5: If you uploaded the entire book, clearly labeled it as such and I knowingly downloaded that file then, again I am no expert and I do not know how the law would apply.

Cheers,
PKFFW

[DawnFalcon]

"4: If you only uploaded "a few chapters", and clearly labeled the file as being such, and I knowingly downloaded those chapters then I'm not sure how the law would see that."

If the amount was considered fair use, no foul. In the UK, I'd expect the same guidelines as for photocopies to apply.

[PKFFW]

Originally Posted by Shaggy

No they aren't.

The downloader requests a copy, the uploader gives it to them. The downloader never has direct access to the original file, and cannot make a copy themselves.

Forget about the technology involved, it doesn't matter. Think about if you walk into a book store and ask the clerk for a book behind the counter. He pulls it off the shelf, makes a photocopy of it, and gives you the photocopy. The original book remained in his possession the entire time. Who committed infringement?

I believe your analogy is flawed.

It might be better to think of it this way.....I ask for a copy, the guy gets it down, brings it over to my photocopier, he puts it on the copy machine, I press the copy button and away we go.

Who has committed the offence?

Again, I'm no expert and I don't know if any company has even tried to prosecute the downloader or if they have tried and failed. I do know they generally go after people who have uploaded alot of material because they are easier fish to fry so to speak. It is easier to prove.

Think of their reasoning much like the reasoning of the tax department. They don't often go after big tax dodgers like Kerry Packer(when he was alive, here in Australia) because they are too hard to catch. Does that mean he wasn't evading tax? Of course not, it means he had good enough lawyers that it wasn't worth their time and effort to go after him.

The fact companies don't go after downloaders who do not upload may be akin to that. It isn't worth their time because the case might not be as easy to prove.

Just a thought.

Cheers,
PKFFW

[PKFFW]

Originally Posted by Shaggy

I apologize. I was only responding to statements in a specific post. In future I will be sure to fully research your posting history before making any comments.

Apology accepted.

Perhaps as a rule of thumb consider statements made in a specific thread at the very least, rather than a specific post and it may help avoid such misunderstandings in the future.

Cheers,
PKFFW

[PKFFW]

Originally Posted by DawnFalcon

"4: If you only uploaded "a few chapters", and clearly labeled the file as being such, and I knowingly downloaded those chapters then I'm not sure how the law would see that."

If the amount was considered fair use, no foul. In the UK, I'd expect the same guidelines as for photocopies to apply.

That would be my thought too. I wouldn't attempt to argue such as absolute fact, as some might be inclined to do, because I'm ok with admitting I am no expert and simply do not know.

Cheers,
PKFFW

[bill_mchale]

Originally Posted by Shaggy

No they aren't.

The downloader requests a copy, the uploader gives it to them. The downloader never has direct access to the original file, and cannot make a copy themselves.

Ummm... sure. This is all a little disingenuous regarding peer to peer networks in any case. No one is uploading the copyright works, they are making the file available on their computer and notifying the world by uploading an informational file to the peer to peer network. They then run a server on their system that responds to requests to make copies. It is the server that makes copies. However, if your argument held water, if you were to upload the work to an FTP server, you would not be guilty since you haven't copied the file there... you sent a request to the FTP server which is what acutally copied the file. So really, the FTP server owner was guilty, even if he didn't authorize your upload.

Forget about the technology involved, it doesn't matter. Think about if you walk into a book store and ask the clerk for a book behind the counter. He pulls it off the shelf, makes a photocopy of it, and gives you the photocopy. The original book remained in his possession the entire time. Who committed infringement?

You both did. The physical act of copying is only part of it. I bet if you actually read the law on the books in the United States, you will find the words "Cause to be copied" or similar involved. Else, you could run a press that sold pirated copies and as long as you never ran the physical printers, you would be innocent (By your logic).

--
Bill

[bill_mchale]

Originally Posted by ahi

... so it only becomes copyright infringement if they save the file for an extended period of time, or if their browser cache is not set to purge viewed pages' cached copies immediately upon closing the browser? (Copies, COPIES, COPIES--THE HORRRRRROR!)

What's the cut off time in days... or hours... or minutes? Is it variable based on the length of the work? Are you allowed to keep a 3 hour movie for longer (in order to review to ascertain whether it infringes copyright) than a 300 page book?

I imagine you enjoy your sophistry. However, I suspect that that it would become clear whether or not the person violated copyright depending on what they did with the file after they potentially accidentally downloaded the file.

In what country?

In the United States. Intent is usually an important factor in a legal case particularly with respect to something like this. I suspect it is similar in other countries. Not many companies or criminal prosecutors would be interested in prosecuting those who accidentally downloaded a file.

The most sensible argument this analogy could possibly make is that person B is guilty of contributory infringement... or some other such nonsense.

"Copyright infringement" is not some hidden metaphysical quality of a given copy of media, but rather an unauthorized act of distribution by a human being. A giving of something to someone. Person B is not giving themselves something--person A is doing the giving. Person A infringes. Person B does not.

Fred von Lohmann of the Electronic Frontier Foundation does not agree with you.
In an article I found at Ars Technica, he says:

Does it infringe US copyright law to download music without authorization from a P2P network? It depends. If you're a teacher who needs a clip for use in a class presentation, I think there's a good chance it's a fair use. But if you're downloading just because you don't want to pay for the song, then you're probably an infringer. Intermediate cases can be imagined, but that gives a pretty good idea of the two poles.

I should also point out, that in the United States, generally, willingly cooperating with a crime, makes you an accessory and as such, you will generally receive the same penalty as the person who is guilty of the crime.

The "causing" you are talking about is, alas, not recognized in most legal jurisdictions as such... and even where it is, certainly not as "copyright infringement" in and of itself.

And your law degree is from?

Ah... so now the indiscernible internal mind-state of person B is the point of arbitration as to whether or not a particular action was illegal. Making the technologically ignorant/naive, I suppose, less often guilty of copyright infringement... simply because they are too stupid to understand what's going on.

You don't find this silly?

No, not at all. Look up the term Mens Rea. In the cases we are discussing, if the person had no intention of downloading copyrighted material and no reason to suspect that the site they are visiting, or the book they had a copy made of was copyrighted and if a "reasonable person" would not have, then they have not committed the crime.

Basically I find your line of reasoning removed from real world laws... on the other hand, it is rather in line with the propaganda campaigns run by the RIAA and its ilk under the guise of "educating the public".

- Ahi

The Electronic Frontier Foundation is an agent of the RIAA now?

Your fortunate, those in Canada actually can download (But not upload) provided they copy to media. But in the USA, both downloading and uploading probably violate copyright laws.

--
Bill

[Shaggy]

Originally Posted by PKFFW

One thing I do know about the law is that intent is required for an offence to have been committed.

One thing you're missing is that receiving copyrighted material is not an offence, regardless of intent.

[Shaggy]

Originally Posted by DawnFalcon

"4: If you only uploaded "a few chapters", and clearly labeled the file as being such, and I knowingly downloaded those chapters then I'm not sure how the law would see that."

If the amount was considered fair use, no foul.

To be clear, the uploader would have to argue fair use. The downloader didn't break any laws, so fair use doesn't matter.

[Shaggy]

Originally Posted by PKFFW

It might be better to think of it this way.....I ask for a copy, the guy gets it down, brings it over to my photocopier, he puts it on the copy machine, I press the copy button and away we go.

No, in the digital world the original is never in your possession. The downloader does not "press the copy button", they never have access to the original.

Again, I'm no expert and I don't know if any company has even tried to prosecute the downloader or if they have tried and failed.

It's never even been tried, as far as I know.

I do know they generally go after people who have uploaded alot of material because they are easier fish to fry so to speak. It is easier to prove.

It's also because the uploaders are the ones who are breaking the law.

[Shaggy]

Originally Posted by bill_mchale

Ummm... sure. This is all a little disingenuous regarding peer to peer networks in any case. No one is uploading the copyright works, they are making the file available on their computer and notifying the world by uploading an informational file to the peer to peer network. They then run a server on their system that responds to requests to make copies.

That is uploading.

It is the server that makes copies.

Exactly. The server is run by the uploader.

However, if your argument held water, if you were to upload the work to an FTP server, you would not be guilty since you haven't copied the file there... you sent a request to the FTP server which is what acutally copied the file.

No, you sent the actual file.

I bet if you actually read the law on the books in the United States,

I have.

you will find the words "Cause to be copied" or similar involved. Else, you could run a press that sold pirated copies and as long as you never ran the physical printers, you would be innocent (By your logic).

What you are talking about is indirect infringement, aka contributory infringement. I already explained that in another post. You would have to prove that the receiver KNEW that the distributor was not authorized to distribute copies and that the receiver's actions caused or induced the distributor to violate copyright.

There is no way that you can know if the source you are getting anything from on the internet is authorized or not. Most of the time you don't even know who the source is.