Illegal Downloads 150x More Profitable Than Legal Sales

[Shaggy]

Originally Posted by bill_mchale

But in the USA, both downloading and uploading probably violate copyright laws.

Please quote the part of copyright law that says anything about downloading or receiving copyrighted material. I suspect you don't actually know what the law says.

[LilMissMarie]

ok sorry to butt in here. but from what i gather....it is illegal to upload (which happens automatically with anything in your 'library') and download content from p2p networks such as limewire?

[bill_mchale]

Originally Posted by Shaggy

Please quote the part of copyright law that says anything about downloading or receiving copyrighted material. I suspect you don't actually know what the law says.

From the US government Copyright Office -- Their summary of the law regarding downloading:

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights.

Q.E.D. Downloading unauthorized copies of copyrighted works is illegal in the United States.

--
Bill

[ahi]

Originally Posted by bill_mchale

I imagine you enjoy your sophistry.

Not as much as you enjoy your staunch corporatist loyalties!

Isn't this fun?

Originally Posted by bill_mchale

And your law degree is from?

I'm not a 100% certain... but I increasingly suspect you and I went to the same law school.

Originally Posted by bill_mchale

But in the USA, both downloading and uploading probably violate copyright laws.

Yeah. Probably...

But I guess we'll never know...

Originally Posted by bill_mchale

From the US government Copyright Office -- Their summary of the law regarding downloading:

And what does... you know... the actual... err... law say? The one that the judge would use to weigh the merits of the case.

- Ahi

[Hellmark]

Originally Posted by LilMissMarie

ok sorry to butt in here. but from what i gather....it is illegal to upload (which happens automatically with anything in your 'library') and download content from p2p networks such as limewire?

Not entirely true. You can still block the uploads if you want to, and it depends on the content. If what you are uploading or downloading of content that is unencumbered by copyright, or the copyright holder states that you may do so (such as it is under GPL or creative commons), then using such P2P networks is perfectly legal.

[bill_mchale]

Originally Posted by Shaggy

That is uploading.

I have.

So you are a lawyer specializing in intellectual property law?

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.

Actually the more I think about the more I realize I forgot a key part of the equation. When you download, you just don't receive the file. When someone downloads, three copies are involved.

Copy 1: sits on the server. I.e., it is the "uploaded" file for the sake of this argument.

Copy 2: is the transmission copy, broken into packets for transmission over the internet and "received" by the client. However, if the only thing that happens with those packets is that they are received by the client, then the "downloader" has no file to read. Which requires the final step..

Copy 3: The client now has to make a copy to either the memory, the hard disk or some form of computer media.

Ultimately, my copy machine analogy was flawed. You don't actually passively receive a copy. You computer is running a client that is actively making an unauthorized copy.

Now, as to your last argument. Yes, it might not be possible to prove Mens Rea. Particularly if someone only had a few illegally downloaded files on their computer system. That being said, if someone had downloaded hundreds or thousands of file, it becomes harder to argue that the person really believes that they were downloading from authorized sources. Essentially, at best you could claim the downloader was recklessly indifferent. And in any case, at this point we are not debating about whether the action is illegal (which I think it should be clear at this point, regardless of how you look at it, in the United States, it is illegal) we are talking about defending against legal action.

--
Bill

[Shaggy]

Originally Posted by bill_mchale

From the US government Copyright Office -- Their summary of the law regarding downloading:

Do you have a link?

[Shaggy]

Originally Posted by bill_mchale

Actually the more I think about the more I realize I forgot a key part of the equation. When you download, you just don't receive the file. When someone downloads, three copies are involved.

Courts have already ruled that incidental copies such as between memory/drive/etc do not count with regards to copyright. Computers are constantly making copies of data in order to use them, that's what computers do. If what you say were true, then everybody who turned on a computer would automatically be guilty of infringement.

Now, as to your last argument. Yes, it might not be possible to prove Mens Rea. Particularly if someone only had a few illegally downloaded files on their computer system. That being said, if someone had downloaded hundreds or thousands of file, it becomes harder to argue that the person really believes that they were downloading from authorized sources.

Everything you download from the internet is most likely copyrighted. Every time you click on a website your computer is downloading copyrighted content. I'm sure you've downloaded hundreds or thousands of copyrighted files yourself, just by using the internet.

[Elfwreck]

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.

And the RIAA has claimed that the making-available part should be prosecuted just like copyright infringement, because it's too difficult to determine whether or not copies were actually made.

IMHO, this is like claiming that if you leave a book next to a photocopy machine, you are guilty of copyright infringement, because somebody *might* copy it.

They then run a server on their system that responds to requests to make copies. It is the server that makes copies.

The server is not a person. The person who controls the server, who authorizes it to make the copies, is liable for whatever illegalities the server does.

We don't claim "he didn't commit murder; the knife killed that man." Saying "the server commits the act" is ridiculous.

And there would be a claim that, "whoever owns the server is liable," would make some sense--but that's what the safe harbor laws are designed to prevent, because without them, all internet business would grind to a screeching halt. (If business servers had to confirm that every email sent contained no illegal content, there'd be no business email.)

[bill_mchale]

Originally Posted by Shaggy

Courts have already ruled that incidental copies such as between memory/drive/etc do not count with regards to copyright. Computers are constantly making copies of data in order to use them, that's what computers do. If what you say were true, then everybody who turned on a computer would automatically be guilty of infringement.

True, and as such, when one is using material one has a right to use, then there are no issues (They would, I imagine, fall under the concept of fair use). But we are specifically talking about people who are infringing on copyright.

What we are specifically talking about here is someone downloading a copyrighted file that they do not have the rights to. You have argued that the downloader is merely a passive recipient and therefore is not guilty of infringement. I am pointing out that they are not merely receiving a copy, but creating a copy of their own. Essentially it would be like if the book store clerk put the book on the copy machine for you but required that you actually hit the copy button.

Everything you download from the internet is most likely copyrighted. Every time you click on a website your computer is downloading copyrighted content. I'm sure you've downloaded hundreds or thousands of copyrighted files yourself, just by using the internet.

Goes back to your earlier point, but with the addition, that if the rights holder for a work has placed it on a webserver, then it is reasonable to assume that they meant it for general and free distribution (assuming the site is not password protected). That being said, its one thing for me to download a temporary copy to view a web page, it is quite another (legally speaking) for me to make a copy of that web page to store on my computer indefinitely.

--
Bill

[DaleDe]

Originally Posted by Shaggy

Do you have a link?

http://www.copyright.gov/help/faq/faq-digital.html#p2p

Try this one.

Dale

[bill_mchale]

Originally Posted by Shaggy

Do you have a link?

http://www.copyright.gov/help/faq/faq-fairuse.html#p2p

--
Bill

[Shaggy]

Originally Posted by bill_mchale

From the US government Copyright Office -- Their summary of the law regarding downloading:

It's not a summary of the actual law, it's just their FAQ.

If you read the rest of their FAQ on downloading (the part you cut out), you will see that they aren't talking about what you think they are. Also, the basis of the answer in that FAQ comes from a testimony by Marybeth Peters (Registrar of Copyrights) to the Senate Judiciary committee in 2003. What you are reading is her opinion on copyright law. If you actually read her statements before the committee she is trying to argue that filesharing itself should be illegal and the writers of filesharing applications should be held liable (which courts have already disagreed with). She also specifically defends the recording industry, and says that they need offer no apologies to anyone about the lawsuits that they are bringing against individuals. She has also stated in the past that in her opinion the Sony Betamax case should be revisited.

If you read those statements, along with other statements she has made while working side by side with the RIAA to try and guide the direction of copyright in the future, it should be obvious where her opinions come from.

Q.E.D. Downloading unauthorized copies of copyrighted works is illegal in the United States.

Hardly.

[bill_mchale]

Originally Posted by Elfwreck

And the RIAA has claimed that the making-available part should be prosecuted just like copyright infringement, because it's too difficult to determine whether or not copies were actually made.

IMHO, this is like claiming that if you leave a book next to a photocopy machine, you are guilty of copyright infringement, because somebody *might* copy it.

I am not a fan of the RIAA, and in fact I think copyright law needs to be over-hauled in any case. That being said, I think it is more like leaving a book next to a photocopy machine with a sign on it that says, please make a copy of me.

The server is not a person. The person who controls the server, who authorizes it to make the copies, is liable for whatever illegalities the server does.

We don't claim "he didn't commit murder; the knife killed that man." Saying "the server commits the act" is ridiculous.

True, but it is also true, that the knife cannot act on its own. Once a server is set up, it is perfectly capable of responding on its own. Downloading is actually an act in which two people actually must work together to infringe copyright. The "uploader" makes the files available but no copies are made until a "downloader" acts.

My point here is that there is quite a bit of sophistry going on here where people are claiming that downloaders are not infringing simply because they are receiving the file and not making the copy. The fact is, that both the the uploader and the downloader have actively worked to infringe copright.

And there would be a claim that, "whoever owns the server is liable," would make some sense--but that's what the safe harbor laws are designed to prevent, because without them, all internet business would grind to a screeching halt. (If business servers had to confirm that every email sent contained no illegal content, there'd be no business email.)

True, but safe harbor laws are not intended, nor do they protect businesses or services that knowingly exploit copyright law. Napstar, Kazaa and others have been essentially shutdown and fined millions of dollars because they knowingly encouraged illegal activity and profited from the infrigement of others.

--
Bill

[bill_mchale]

Originally Posted by Shaggy

It's not a summary of the actual law, it's just their FAQ.

If you read the rest of their FAQ on downloading (the part you cut out), you will see that they aren't talking about what you think they are.

Actually, I did read it... and I don't see how you draw the conclusion that they are not talking about downloading copyrighted files? The rest of it is essentially discussing the fact that the person doing the downloading may not know whether the work is copyrighted or not.

Also, the basis of the answer in that FAQ comes from a testimony by Marybeth Peters (Registrar of Copyrights) to the Senate Judiciary committee in 2003. What you are reading is her opinion on copyright law. If you actually read her statements before the committee she is trying to argue that filesharing itself should be illegal and the writers of
filesharing applications should be held liable (which courts have already disagreed with). She also specifically defends the recording industry, and says that they need offer no apologies to anyone about the lawsuits that they are bringing against individuals. She has also stated in the past that in her opinion the Sony Betamax case should be revisited.

If you read those statements, along with other statements she has made while working side by side with the RIAA to try and guide the direction of copyright in the future, it should be obvious where her opinions come from.



Hardly.

Ok Shaggy... I think I have done enough research against your claims at the moment. I have posted links to the copyright office, and provided a quote by a representative of the Electronic Frontier Foundation (hardly a group of RIAA cronies) that interpret U.S. Copyright Law to show that downloading is illegal. Lets see your cards. I want links to case law (At least at the appelate level), specific parts of the copyright law, or interpretations by reasonable representatives (Not some of the idiots out there who claim that Copyright is unconstitutional) of advocacy groups that uphold your position.

BTW, I will point out, the Courts have held that the people who write the software should not be held lible, but if you provide a service to help people locate files and don't take reasonable steps to block copyrighted material then you can be held lible (ala Napster).

--
Bill