Illegal Downloads 150x More Profitable Than Legal Sales

[Shaggy]

Originally Posted by bill_mchale

I am pointing out that they are not merely receiving a copy, but creating a copy of their own.

I don't know how else to put it, but you are plain wrong. There is no way that a downloader can create a copy for themselves from the original file.

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.

There is no such legal concept.

[Shaggy]

Originally Posted by bill_mchale

I want links to case law (At least at the appelate level)

There isn't any. Maybe you should ask yourself why?

specific parts of the copyright law

You want quotes from a law that says something isn't illegal?

You do realize that isn't how the law works?

[PKFFW]

Originally Posted by Shaggy

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

I'm not missing that that is your opinion. I have also stated, repeatedly, in this thread, that I tend to agree.

I'm just not getting why you seem to think that your opinion is law rather than just your opinion?

I simply don't think it is as clear clut as you claim.

As for why there are no cases about downloading specifically.......I would imagine it actually is because of nothing more than the fact that it would be too easy to defend against by simply claiming "I didn't know if it was subject to copyright." And note, that defence is not in anyway claiming that no offence has been made, only that the accused was unaware they may have been committing an offence.

In order to successfully sue a "downloader only" the companies would have to

1: Find someone who had never uploaded anything. With p2p being the far and away most common way of downloading and with the overwhelming majority of users of p2p programs both uploading and downloading, finding someone who has never uploaded anything at all would be like searching for a needle in a haystack.
2: Find someone who had downloaded so much that the defence of "I didn't know, and no reasonable person could be expected to know, all this free stuff on the internet was under copyright or likely to be subject to copyright" would not be a reasonable defence.

Taking 1 and 2 together it becomes far easier to simply prosecute people for uploading rather than downloading whether or not downloading is an offence at all.

Remember, in some states in the USA it is illegal to pick up road kill and eat it. I don't think anyone has been prosecuted over it but that doesn't mean it isn't an offence.

All that is not to say downloading is an offence though, as I've said, my understanding leads me to think it isn't, but in all honesty none of us really know for sure. All we know is our interpretation of what the law states.

Cheers,
PKFFW

[Shaggy]

Originally Posted by PKFFW

I'm not missing that that is your opinion. I have also stated, repeatedly, in this thread, that I tend to agree.

I'm just not getting why you seem to think that your opinion is law rather than just your opinion?

What makes you believe I think it's anything other than my opinion?

As for why there are no cases about downloading specifically.......I would imagine it actually is because of nothing more than the fact that it would be too easy to defend against by simply claiming "I didn't know if it was subject to copyright." And note, that defence is not in anyway claiming that no offence has been made, only that the accused was unaware they may have been committing an offence.

That is not a valid defense to direct copyright infringement, so I don't see why that would stop anybody from trying to prosecute.

2: Find someone who had downloaded so much that the defence of "I didn't know, and no reasonable person could be expected to know, all this free stuff on the internet was under copyright or likely to be subject to copyright" would not be a reasonable defence.

You're talking about a defense to indirect infringement. IF downloading qualified for direct infringement, then such a defense doesn't exist. Willful vs Unwillful direct infringement only effects the penalties involved, not the guilt or innocence.

[Elfwreck]

Originally Posted by PKFFW

As for why there are no cases about downloading specifically.......I would imagine it actually is because of nothing more than the fact that it would be too easy to defend against by simply claiming "I didn't know if it was subject to copyright."

This is *exactly* the proper defense--and it is used when purchasing books as well.

I do not research my purchased books (from bookstores, yard sales, or ebay) to decide if they're infringing on copyrights.

I have some that I know were ruled to infringe on copyrights--books where accusations of plagiarism got them pulled from publication. However, the copies I own are still legal. I wasn't required to not buy them--not even if I knew there was a lawsuit against the author going on.

And note, that defence is not in anyway claiming that no offence has been made, only that the accused was unaware they may have been committing an offence.

Receiving something that violates copyright is not against the law. Distribution is against the law. It's unclear where "creation of a copy" falls, especially with all the personal use options that have been authorized. (Not that you have the right to "use" someone else's material, but between personal-use rules, and the facts of how computers deal with files, I'm not sure "creation" of a copy is against the laws at all.)

If you visit a website that has infringing content, it automatically creates a copy of that page on your hard drive. It may be in a folder called ~temp, or it may not, depending on your browser, OS and other settings. If your computer automatically archives to an external drive, it may create another copy of the page. If you periodically burn your archives to DVD, you may have another copy.

[Shaggy]

Originally Posted by bill_mchale

Ok Shaggy... I think I have done enough research against your claims at the moment.

All you have shown is that there are people out there who want downloading to be illegal. I have no doubt that is true.

Think carefully about what that would mean though. You would have to verify that everything you ever download is authorized. That means you would have to research the copyright status and licenses/contracts that the source has in place with the copyright holders, every time you download anything on the internet. All of that would, obviously, be impossible. That would also mean things like when Amazon sells a book that they don't have the rights to, every one of their customers who bought that book would be guilty of copyright infringement and liable to lawsuits. Can't you see how ridiculous that whole notion is?

I don't understand how any sane person cannot see why that would be a REALLY bad idea.

[Shaggy]

Let me put it this way. Do you negotiate authorization to download copyrighted material with the copyright holder today? I'm not talking about purchasing material from a retailer, I'm talking about negotiating rights with the actual Publisher/Author anytime you download something? If you download material from a third party who is hosting it, do you have to go back to the original owner and ask for permission to download?

Obviously the answer is no. The reason for that is because authorization is not required for the downloader.

Now think about who does have to negotiate authorization. The people who are making that material available (retailers, websites, hosts). Those are the ones who require authorization, because they are liable for copyright infringement.

[PKFFW]

Originally Posted by Shaggy

What makes you believe I think it's anything other than my opinion?

Because you've not actually shown anything other than your own opinion. The law surrounding copyright infringement when it comes to "copies" on computers and fair use of such and uploading/downloading and whether one or the other only is an offence is not clear and, as far as I know, has not been laid down in any explicit law dealing with the matter. Rather, it is left up to judges to make judgements regarding each individual case. So to argue that you have complete, indisputable and total knowledge, rather than opinion, regarding the issue is rather humourous to me.

Originally Posted by Shaggy

That is not a valid defense to direct copyright infringement, so I don't see why that would stop anybody from trying to prosecute.

Actually it is. See Elfwrecks post.

If you were to buy something from Amazon that they did not have the rights to sell you would clearly be able to claim no offence was committed because there was no intent to infringe copyright on your part. If you were to download a Harry Potter book from a p2p site it would be harder to argue such but if the torrent page where you found the torrent link explicitly claimed or implied they did have the rights to distribute the book this way then it would be much easier for you to make your defence. Those are just two examples and I'm sure there would be others.

On the other hand if you were to download hundreds of new release books from torrent sites I'd bet a judge would rule that any reasonable person could be expected to know that most if not all of those books were under copyright. Further any reasonable person could be expected to know that such copyright books are rarely distributed for free en masse to any and all who wish to download them via torrent sites. Ergo, any reasonable person could be expected to know that it would be unlikely in the extreme that the uploader has the relevant authorisation to distribute these works. Then..........a judge would make a ruling as to whether this constitutes copyright infringement or not.

Originally Posted by Shaggy

You're talking about a defense to indirect infringement. IF downloading qualified for direct infringement, then such a defense doesn't exist. Willful vs Unwillful direct infringement only effects the penalties involved, not the guilt or innocence.

No, actually I'm not. As I've said above, it is simply not as clear cut as you claim.

If such a person(only downloaded and downloaded massive quantities) was ever found and a case brought against them I am sure it would be a case of direct copyright infringement rather than indirect. Once a judgement on such a case was made then we would all have a much clearer picture of whether downloading only would be dealt with as an infringement or as an indirect infringement. Until then we have your opinion.

Cheers,
PKFFW

[PKFFW]

Originally Posted by Elfwreck

This is *exactly* the proper defense--and it is used when purchasing books as well.

I do not research my purchased books (from bookstores, yard sales, or ebay) to decide if they're infringing on copyrights.

I have some that I know were ruled to infringe on copyrights--books where accusations of plagiarism got them pulled from publication. However, the copies I own are still legal. I wasn't required to not buy them--not even if I knew there was a lawsuit against the author going on.

There is an implied authorisation when a reputable bookseller offers an item for sale. I'm not sure the same could be legally argued when an anonymous person uploads an item for free.

Having said that, as I said in the quoted post, I think it would be a defence that would work in the case of downloading a copy of a book or two. I'm not sure it would work as well if you downloaded hundreds of books.

Originally Posted by Elfwreck

Receiving something that violates copyright is not against the law. Distribution is against the law. It's unclear where "creation of a copy" falls, especially with all the personal use options that have been authorized. (Not that you have the right to "use" someone else's material, but between personal-use rules, and the facts of how computers deal with files, I'm not sure "creation" of a copy is against the laws at all.)

And this is exactly where it gets tricky and why I don't think it is as clear cut as many would dearly like to believe.

Many would like to argue that the technology means that if I download a book I have never possessed the original and therefore I have not made the copy I have only "received" the copy. However, as has been stated, I have used my computer to compile a copy of the work. Without my active participation in the copying process no copy would be made. Therefore I think it would be difficult to argue no infringment on my part.

Originally Posted by Elfwreck

If you visit a website that has infringing content, it automatically creates a copy of that page on your hard drive. It may be in a folder called ~temp, or it may not, depending on your browser, OS and other settings. If your computer automatically archives to an external drive, it may create another copy of the page. If you periodically burn your archives to DVD, you may have another copy.

Going to a website is a different kettle of fish to actively seeking out a copy of a book. As I've said before, one can always argue the exception to the law. As law is a written thing there will always be ambiguities, loop holes, exceptions and other ways to circumvent it. I'm really not interested in arguing all the exceptions.

I think it should be clear I am talking about the issue of actively seeking out a book from a source that any reasonable person could be expected to know most likely does not have the authorisation to distribute copies and then downloading a copy from that source. I think in that case, if it were ever brought before a judge, it may not be so clear cut.

Cheers,
PKFFW

[PKFFW]

Originally Posted by Shaggy

Think carefully about what that would mean though. You would have to verify that everything you ever download is authorized. That means you would have to research the copyright status and licenses/contracts that the source has in place with the copyright holders, every time you download anything on the internet. All of that would, obviously, be impossible. That would also mean things like when Amazon sells a book that they don't have the rights to, every one of their customers who bought that book would be guilty of copyright infringement and liable to lawsuits. Can't you see how ridiculous that whole notion is?

As mentioned above, there is implied consent when an entity is purporting to be a legitimate authority.

Taking the analogy of stolen property. If I go to a second hand shop and I buy a stereo there is the implied authority of the seller to sell me those goods. I have not committed any offence if the stereo is actually stolen and I am not required to check the credentials of the seller. Generally speaking this implied consent extends to just about anyone selling anything. If they are asking money for it there is implied authority and it is not the responsibility of the buyer to check their credentials.

It's a whole other kettle of fish if you go to someone down the street and ask if they could get you a stereo for free no questions asked. In this instance there would be some obligation on your part to ensure they did not acquire that stereo through "nefarious" means.(and please don't try to argue "what if someone gives you a birthday present, should you have to ask to see the receipt" or some other such exception as that is clearly not the situation I am referring to!)

Originally Posted by Shaggy

I don't understand how any sane person cannot see why that would be a REALLY bad idea.

I don't see anyone here arguing that anytime you buy something from Amazon you should be required to check that Amazon has a contract authorising them to sell that book.

I'm not sure why you are suggesting otherwise?

Cheers,
PKFFW

[PKFFW]

Originally Posted by Shaggy

Let me put it this way. Do you negotiate authorization to download copyrighted material with the copyright holder today? I'm not talking about purchasing material from a retailer, I'm talking about negotiating rights with the actual Publisher/Author anytime you download something? If you download material from a third party who is hosting it, do you have to go back to the original owner and ask for permission to download?

Obviously the answer is no. The reason for that is because authorization is not required for the downloader.

There is a requirement under the law that a person must act in a way that any other reasonable person would act.

Any reasonable person, buying an item online, would be justified in assuming the seller has the rights to sell that item. Therefore any reasonable person would not have an obligation to check the credentials of the seller. On the other hand, any reasonable person who goes to a torrent site and downloads a copy of Harry Potter free of charge would find it much harder to argue they "assumed the anonymous uploader had the rights to distribute this Harry Potter book for free to anyone in the world who wanted a copy". At least in the case where the page they got the download link from didn't in some way imply or state that they did have the authority to distribute it.

Originally Posted by Shaggy

Now think about who does have to negotiate authorization. The people who are making that material available (retailers, websites, hosts). Those are the ones who require authorization, because they are liable for copyright infringement.

Yes, the law is very clear cut when it comes to making material available. One must definitely have the authorisation to do so.

I have little doubt the reasonable man test would be applied to a downloader if a case was ever brought against someone who had only ever engaged in downloading. In such a case, sorry to say, the law simply isn't as clear.

Cheers,
PKFFW

[Shaggy]

Originally Posted by PKFFW

So to argue that you have complete, indisputable and total knowledge, rather than opinion, regarding the issue is rather humourous to me.

Where have I ever said that I have complete, indisputable and total knowledge? Or are you just making that up?

If you were to buy something from Amazon that they did not have the rights to sell you would clearly be able to claim no offence was committed because there was no intent to infringe copyright on your part.

That is wrong. Willful and unwillful copyright infringement are BOTH violations. The only difference is in the penalties imposed. Because of that flaw, the rest of your argument becomes moot.

"Copyright infringement is what is legally referred to as a “strict liability”, meaning that even in cases where the copying of a rights holder’s work material was “unwillful”, the act of copying is still considered an infringement, and is therefore still subject to “statutory damages” and or profits from the use of the copyright."

[Shaggy]

Originally Posted by PKFFW

I don't see anyone here arguing that anytime you buy something from Amazon you should be required to check that Amazon has a contract authorising them to sell that book.

I'm not sure why you are suggesting otherwise?

Because that's what would be required if downloading required authorization. What you are trying to argue is that unwillful infringement is not an offence, but that is wrong. IF downloading were an offence, then the way copyright is written it would not matter if you realized you were doing it or not.

[Shaggy]

Originally Posted by PKFFW

As mentioned above, there is implied consent when an entity is purporting to be a legitimate authority.

From the US copyright site:

Question: I didn?t know that what I was doing could be illegal. Am I off the hook?

Answer: No. Copyright infringement actions do not require that you actually knew that the files were protected by copyright or that your use of the files violated federal law. Claims of ignorance cannot be used as a defense to direct copyright infringement, Lack of knowledge, is, however, a defense to contributory infringement. See What is contributory infringement?

Taking the analogy of stolen property.

Stolen property and copyright infringement have nothing to do with each other. Copyright is a strict liability, meaning it makes no difference if you didn't know it was unauthorized.

[PKFFW]

Originally Posted by Shaggy

Where have I ever said that I have complete, indisputable and total knowledge? Or are you just making that up?

More like exaggerating rather than making it up.

You keep claiming any who disagree with you on this matter are incorrect rather than stating you simply disagree. This tends to suggest you believe your opinion is indisputable. Which in turns tend to suggest you believe what you are stating is some sort of absolute knowledge.

Originally Posted by Shaggy

That is wrong. Willful and unwillful copyright infringement are BOTH violations. The only difference is in the penalties imposed. Because of that flaw, the rest of your argument becomes moot.

Incorrect. At least here in Australia. I do admit that I'm not well versed in US law. That is probably another reason why these debates are pointless and never resolve the issue.

Cheers,
PKFFW