Illegal Downloads 150x More Profitable Than Legal Sales

[PKFFW]

Originally Posted by Shaggy

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.

Well then in that case, IF a lawsuit is ever brought against a person who has engaged only in downloading and has never uploaded anything, it will be very interesting to see what the outcome is.

Cheers,
PKFFW

[PKFFW]

Originally Posted by Shaggy

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?

Now hang on a second........you chastised Bill when he linked to the FAQ page rather than the direct law. So why is it that I should accept something from the FAQ page now?

Originally Posted by Shaggy

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.

From dictionary.com

Analogy
A similarity between like features of two things, on which a comparison may be based.

I know stolen property and copyright are not the same and have nothing to do with each other. That is why I made an "analogy" rather than stating it is exactly the same as.

Cheers,
PKFFW

[Shaggy]

Originally Posted by PKFFW

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.

Obviously, you are attributing an intent behind my words that does not exist. I would suggest not doing so.

[Shaggy]

Originally Posted by PKFFW

Now hang on a second........you chastised Bill when he linked to the FAQ page rather than the direct law. So why is it that I should accept something from the FAQ page now?

OK, directly from US copyright law:

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

Note, it says that if the infringer "had no reason to believe that his or her acts constituted an infringement" it does NOT mean they are innocent. It merely reduces the penalties (The $200 is a minimum, not the max that they can still be liable for).

I know stolen property and copyright are not the same and have nothing to do with each other. That is why I made an "analogy" rather than stating it is exactly the same as.

And I stated explicity why the analogy is flawed. You are drawing a comparison between two things that are completely different in the exact sense of your comparison. Copyright is a "strict liability", stolen property is not. That means they have the exact opposite behavior in your anology. That's why, in your example, they have "nothing to do with each other".

[Shaggy]

The upshot of this is:

(1) Nearly everything on the internet is copyrighted.
(2) It does not matter if you were not aware that you were committing infringement.

IF people think that downloading can be infringement, then you would need to verify the legality of EVERYTHING you download in order to avoid a violation. It would also mean that you cannot just assume that ANY source (including legitimate seeming ones) have authorization. Clearly, that would be a ridiculous situation, and would effectively make using the internet impossible.

The whole notion that downloading can be infringement is just a scare tactic. When you think it through, it would be absurd for that to be the case.

[DawnFalcon]

No, it just means the law was designed pre-internet, and is essentially an ass in this day and age.

[PKFFW]

Originally Posted by DawnFalcon

No, it just means the law was designed pre-internet, and is essentially an ass in this day and age.

Brilliantly put.

Cheers,
PKFFW

[PKFFW]

Originally Posted by Shaggy

Obviously, you are attributing an intent behind my words that does not exist. I would suggest not doing so.

Very well, if you would do the same in return.

Cheers,
PKFFW

[Shaggy]

Originally Posted by DawnFalcon

No, it just means the law was designed pre-internet, and is essentially an ass in this day and age.

Strict liability is not an outdated legal concept. It is being applied in this day and age. The clause I was referring to was added in 1999.

[Shaggy]

Originally Posted by Shaggy

Strict liability is not an outdated legal concept. It is being applied in this day and age. The clause I was referring to was added in 1999.

For example,the recent Jammie Thomas case (about uploading) took willful vs unwillful infringement into consideration in the jury instructions for determining damages. It was specifically not used to determine guilt or innocence. This is a direct quote from the Jury Instructions:

JURY INSTRUCTION NO. 17
To prove infringement, the plaintiffs need not prove that the defendant
intended to infringe. The defendant’s intent is not relevant to prove
infringement.

[PKFFW]

Originally Posted by Shaggy

Note, it says that if the infringer "had no reason to believe that his or her acts constituted an infringement" it does NOT mean they are innocent. It merely reduces the penalties (The $200 is a minimum, not the max that they can still be liable for).

"had no reason to believe.........."

1: One could argue that any reasonable person who went to a torrent site and downloaded the latest Harry Potter book for free from an anonymous uploader then they may very well have "reason to believe" their acts may constitute an infringement.

2: As DawnFalcon points out, the law was written pre-internet days and that is just another, and probably the biggest, reason why it is not so clear cut as you seem to think.

As an example......by going to a torrent site and downloading the latest Harry Potter book you are actively participating in the making of a "copy". You own a machine that is integral to the process, you actively request that a copy be made. You physically push buttons to enable the process. Now you suggest that because you never physically possess the original you have in no way committed copyright infringement. You have not "supplied unathorised content" so to speak. Pre-internet I have no doubt at all that you would be correct and you may even be now. But you have actively participated in the supply of that content to yourself and so in this day and age you may find it isn't so clear cut.

So from that point of view it may very well be ruled, if ever brought before a judge, that going to a torrent site and downloading something that you have not verified is in indeed considered copyright infringement.

Originally Posted by Shaggy

And I stated explicity why the analogy is flawed. You are drawing a comparison between two things that are completely different in the exact sense of your comparison. Copyright is a "strict liability", stolen property is not. That means they have the exact opposite behavior in your anology. That's why, in your example, they have "nothing to do with each other".

Very well, point taken. Analogy is flawed.

Concept remains though. It hasn't been clearly stipulated in the law one way or the other and is up to a judge to make a ruling in each case. Until a case is brought against someone for only downloading and not uploading we just wont know and it is all speculation.

Cheers,
PKFFW

[PKFFW]

Originally Posted by Shaggy

The upshot of this is:

(1) Nearly everything on the internet is copyrighted.
(2) It does not matter if you were not aware that you were committing infringement.

IF people think that downloading can be infringement, then you would need to verify the legality of EVERYTHING you download in order to avoid a violation. It would also mean that you cannot just assume that ANY source (including legitimate seeming ones) have authorization. Clearly, that would be a ridiculous situation, and would effectively make using the internet impossible.

The whole notion that downloading can be infringement is just a scare tactic. When you think it through, it would be absurd for that to be the case.

No, what it means is that individual circumstances haven't been fully tested through the courts and until such time as they are we all have our own opinions and nothing more.

In the meantime it is far easier for the copyright holders to go after the uploaders because that is clear cut and not open to interpretation.

Cheers,
PKFFW

[Shaggy]

Originally Posted by PKFFW

"had no reason to believe.........."

1: One could argue that any reasonable person who went to a torrent site and downloaded the latest Harry Potter book for free from an anonymous uploader then they may very well have "reason to believe" their acts may constitute an infringement.

That's not what I'm saying. I'm flipping the argument around and attacking it from the other side to show how ridiculous it would be if downloading were an offence.

Let's assume downloading IS infringement. What the "had no reason to believe" means, is that even if you went to Amazon and downloaded infringing material, then you would be guilty as well. The fact that you "had no reason to believe" that material on Amazon was illegal would not make you innocent. Assuming downloading is infringement, then you would be guilty regardless of whether or not the site was expected to be legitimate. My point is to show how absurd that situation would be.

Flipping it back the other way, and arguing it from my own opinion... The clause "had no reason to believe" refers to distributing content only, not receiving it. If you are a distributor,then it doesn't matter if you had no reason to believe the material was infringing. It is your resposibility to find out before you distribute. That, IMO, is the real meaning of the law. IMO, the law doesn't apply at all to receiving material.

2: As DawnFalcon points out, the law was written pre-internet days and that is just another, and probably the biggest, reason why it is not so clear cut as you seem to think.

That part was added in 1999, which is post-internet.

As an example......by going to a torrent site and downloading the latest Harry Potter book you are actively participating in the making of a "copy". You own a machine that is integral to the process, you actively request that a copy be made. You physically push buttons to enable the process. Now you suggest that because you never physically possess the original you have in no way committed copyright infringement. You have not "supplied unathorised content" so to speak. Pre-internet I have no doubt at all that you would be correct and you may even be now. But you have actively participated in the supply of that content to yourself and so in this day and age you may find it isn't so clear cut.

There is a difference between being the distributor versus causing/inducing the distribution. What you are talking about is indirect infringement, aka contributory infringement. That is a different thing from direct copyright infringement.

[PKFFW]

Originally Posted by Shaggy

That's not what I'm saying. I'm flipping the argument around and attacking it from the other side to show how ridiculous it would be if downloading were an offence.

Let's assume downloading IS infringement. What the "had no reason to believe" means, is that even if you went to Amazon and downloaded infringing material, then you would be guilty as well. The fact that you "had no reason to believe" that material on Amazon was illegal would not make you innocent. Assuming downloading is infringement, then you would be guilty regardless of whether or not the site was expected to be legitimate. My point is to show how absurd that situation would be.

Flipping it back the other way, and arguing it from my own opinion... The clause "had no reason to believe" refers to distributing content only, not receiving it. If you are a distributor,then it doesn't matter if you had no reason to believe the material was infringing. It is your resposibility to find out before you distribute. That, IMO, is the real meaning of the law. IMO, the law doesn't apply at all to receiving material.

And I'm just saying that the law is an evolving thing. AFAIK it has never been tested as to whether downloading only is considered infringement at all. Nor if it has been tested as to whether there are circumstances where the "reasonable person" would be found guilty of infringement and other circumstances where the "reasonable person" would not be.

Just as killing someone is not always murder so too, when put to the test, might downloading be considered infringement in some cases and not in others.

I do not think the law, if and when tested, will be applied exactly the same in every case. So assuming that all downloading will not and is not considered to be copyright infringement is just as absurd as assuming that all downloading is infringement.

Originally Posted by Shaggy

That part was added in 1999, which is post-internet.

I believe DawnFalcon, and certainly myself, were referring more to what is considered infringement rather than the specific part about wilful or not. I apologise for not being clearer on that part and admit my previous post is confusing because of this lack of clarity.

Originally Posted by Shaggy

There is a difference between being the distributor versus causing/inducing the distribution. What you are talking about is indirect infringement, aka contributory infringement. That is a different thing from direct copyright infringement.

So here's another analogy.....

One person owns a copy of Harry Potter....that person and friend of theirs jointly invest in a printing press, set it up and print off a bunch of copies that they then distribute. Who has committed the infringement?

By your logic it is only the owner of the copy and the other person could only be found guilty of causing/inducing the distribution because the friend has "never had possession of the original in order to make the copy".

I believe almost any judge would not see it that way. I believe they would rule that the two are jointly responsible for copyright infringement.

In the digital age it is really no different to the above scenario. Except in scale, in that the downloader is only aiding in the distribution of a single copy.(assuming they download only) They have jointly invested in the means to copy, they have jointly acted in the production of a copy and they have jointly participated in the distribution.

Cheers,
PKFFW

[Shaggy]

Originally Posted by PKFFW

One person owns a copy of Harry Potter....that person and friend of theirs jointly invest in a printing press, set it up and print off a bunch of copies that they then distribute. Who has committed the infringement?

By your logic it is only the owner of the copy and the other person could only be found guilty of causing/inducing the distribution because the friend has "never had possession of the original in order to make the copy".

No, that is a different scenario. If both, as you say, are printing copies and both are distributing them, then they would both be guilty of direct infringement. I didn't say they had to own the original, just possession/access to it.

If the friend buys them the printing press but does not directly engage in printing/distribution, then they may be guilty of indirect infringement according to the law. They would have to show that the friends actions knowingly caused the book owner to commit infringement. IE, they would have to prove that the friend knew the book owner was going to use the press illegally. The friend could also argue that there were legal uses for which the given press could have been used, and they didn't know it would be put to an illegal use.

This is the law that was used against Sony in the Betamax case. The MPAA tried to argue that Sony was guilty of indirect infringement when they manufactured the VCR. The idea was that Sony should be held liable for causing/inducing individuals to copy video tapes. Obviously that argument was turned down.

In the digital age it is really no different to the above scenario. Except in scale, in that the downloader is only aiding in the distribution of a single copy.(assuming they download only) They have jointly invested in the means to copy, they have jointly acted in the production of a copy and they have jointly participated in the distribution.

I disagree. The downloader has not directly engaged in copying or distribution. They merely requested it. Therefore they are not guilty of direct infringement. Their actions may or may not be shown to have knowingly caused the uploader's direct infringement, but that is what indirect infringement is about. Knowingly causing distribution is not the same as actually distributing.

To be clear, there are two situations being discussed:

(1) Is downloading unauthorized material direct infringement?
(2) Is downloading unauthorized material from p2p (or other nefarious sites) indirect infringement?

I am primarily concerned with (1) above. Many people are making the blanket statement that (1) is true.

In my opinion
(1) Absolutely not. If that were true the internet would be unusable. Remember, for direct infringement the intent doesn't matter. It makes no difference if you are downloading from a legitimate site, or from the pirate bay.
(2) It is not direct infringement, but may possibly be indirect infringement. There are some extra hurdles they would have to go through in order to prove that (which won't be easy), and it has never been attempted against a downloader that I know of. This is where the "reasonable person" test that you talk about comes into play. If someone torrented "Harry Potter -- ILLEGAL VERSION", then it is possible the plaintiff could go for indirect infringement. They would have to show that the downloader had reason to believe that the material was unauthorized AND had reason to believe that their actions would cause the unauthorized infringement. If they downloaded "HPBK1", then probably not.

Nobody knows what will happen in (2), but that is a FAR different situation than the people who were claiming that downloading unauthorized material is illegal. The latter has VERY far reaching consequences.

The trick with (2) is where do you draw the line with "nefarious site". Pick a site at random and click on a link. Google for "Harry Potter" and click on a link. Find a torrent for "HPBK1" and click on the link... Google for a song title and click on a link that you assumed was for a review, but end up getting song lyrics instead. Say each of the above directed you to copyrighted material... It is by no means certain that all instances of (2) are cases of indirect infringement.