Illegal Downloads 150x More Profitable Than Legal Sales

[CleverClothe]

Originally Posted by PKFFW

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

Don't you just hate it when you ruin your own arguments? Please get off of this point, it is not working for you.

[PKFFW]

Originally Posted by Shaggy

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.

This is exactly what is happening with downloading from the internet. Both parties are, by dint of using their computers, making copies of the work. The uploader is making the original file available and is transmitting it to me, it is I who am requesting the file, enabling my end of the distribution chain and organising that data into a usable copy.

Just as if I went to a library and photocopied an entire book, that would constitutes making and unauthorised copy and would be classed as copyright infringement.(assuming no fair use rules etc) If the librarian shows me how to do it, sets it up and leaves me to press the copy button I believe any judge would rule that we were both party to the direct infringement of the copyright.

Originally Posted by Shaggy

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.

This was not the scenario. I specifically stated that the friend helps to print of a bunch of copies. This has to do with whether or not p2p software is legal and such. That is not my point. Yes I could argue "but my p2p could be used for legal purposes but I may very well find that if I am using it for an illegal purpose, as ruled by a judge, then it doesn't matter if it could be used for legal purposes or not.

By actively requesting a copy of Harry Potter, by enabling my end of the distribution channel, by owning and accessing my computer to make a copy I may very well find, if ever brought to court for it, that I am found guilty of copyright infringement because I did not exercise the due care any reasonable person would in order to ascertain whether or not the work was under copyright and whether or not my source had authorisation to distribute it to me for free via the torrent.

Originally Posted by Shaggy

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.

They have engaged in copying it and have aided in distribution(at least to themselves). As you said earlier, you are not claiming one needs to possess or have access to the original in order to engage in copyright infringement. As you have also pointed out, every time you view a website you are making a copy onto your computer.

Now, whether or not that fact alone constitutes copyright infringement is up for debate. I would agree that in most cases it does not. However it may very well be that in other cases it does. Until it is tested in a court we simply wont know.

Originally Posted by Shaggy

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.

There is nothing in the law that says all scenarios must be treated exactly the same. This is why killing a person is not always considered murder.

To argue that "the internet would be unusable" if one is required by law to exercise the due diligence that any reasonable person could easily exercise is nothing more than hyperbole.

Originally Posted by Shaggy

(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.

It may or may not be direct infringement. It may be ruled that in some cases it is and some cases it is not.

Originally Posted by Shaggy

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.

Just as any situation that is unclear under the law could have very far reaching consequences. That is why the law is an evolving thing that is changed and updated as new situations and scenarios come into play and are considered.

Suggesting the entire internet will grind to a halt if it is ever ruled that downloading Harry Potter from a torrent site without making any reasonable attempt to ascertain if it is a legit copy is ruled to be copyright infringement is a tad alarmist. I'm sure if any such ruling were made it would be immediately followed by much discussion and updating of laws regarding what equates to "resonable attempts" when it comes to ascertaining if the copy is legit. For starters I would think a reasonable attempt would at the very least include if the uploader was asking money for it that would absolve the downloader of any infringement right off the bat.

Originally Posted by Shaggy

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.

This, I'm sure is where much of the debate would be centered. Rather than shutting down the internet completely, I'm sure law makers would try to nut out the different scenarios and apply laws as needed.

Cheers,
PKFFW

[PKFFW]

Originally Posted by CleverClothe

Don't you just hate it when you ruin your own arguments? Please get off of this point, it is not working for you.

No I don't, even though you obviously do. See when someone clearly and factually points out where my argument is incorrect I have no problem admitting I am incorrect and adjusting my thinking and reasoning.

I would only hate it if my winning the argument were more important to me than gaining new and correct information and coming to a clearer and more accurate understanding of the issue at hand.

Perhaps you should try prioritising things in this way and save yourself the hate in such situations.

Cheers,
PKFFW

[Shaggy]

The way copyright is currently written, intent does not matter for direct infringement. That is a fact. If you are suggesting that downloading can be direct infringement, then virtually everybody on the internet can be in violation of the law without even knowing it.

That is not just being alarmist, it is the truth.

If you are suggesting that lawmakers will change the law in order to avoid that reality and still make downloading a direct infringement, I can't argue with you there. But that doesn't seem to be how the law is written today.

[Shaggy]

Originally Posted by PKFFW

I would only hate it if my winning the argument were more important to me than gaining new and correct information and coming to a clearer and more accurate understanding of the issue at hand.

Agreed. Personally, I've learned a lot from this thread. I appreciate the discussion, it has been very helpful.

[Elfwreck]

Originally Posted by Shaggy

The way copyright is currently written, intent does not matter for direct infringement. That is a fact. If you are suggesting that downloading can be direct infringement, then virtually everybody on the internet can be in violation of the law without even knowing it.

If downloading is (can be) infringement, I wonder if it's legal to put up a website and say, "I do not give permission for any of AOL's servers to copy this content. If AOL puts this content on their servers, it is guilty of copyright infringement."

Because that sounds like a wonderful way for somebody with a good lawyer to make a lot of money suing AOL.

[PKFFW]

Originally Posted by Shaggy

The way copyright is currently written, intent does not matter for direct infringement. That is a fact. If you are suggesting that downloading can be direct infringement, then virtually everybody on the internet can be in violation of the law without even knowing it.

Agreed. I freely admit I was in error in thinking it did make a difference in the USA. I'm in the process of checking this out with regards to Australian law because I am still under the impression it does make a difference here.

Originally Posted by Shaggy

That is not just being alarmist, it is the truth.

If you are suggesting that lawmakers will change the law in order to avoid that reality and still make downloading a direct infringement, I can't argue with you there. But that doesn't seem to be how the law is written today.

There are plenty of examples from history where laws have been applied to a single case which had the effect of showing the far reaching and unintended consequences those laws could have if applied as they were written to all cases. Once it was realised the law had those unintended consequences they were amended. I am sure this same process will be applied to copyright infringement. This is why I say it is a bit alarmist to suggest that the entire internet will come crashing down and be rendered useless, with all members of society being brought up on civil lawsuits, if the law is ever rules that downloading only is an offence.

Cheers,
PKFFW

[PKFFW]

Originally Posted by Shaggy

Agreed. Personally, I've learned a lot from this thread. I appreciate the discussion, it has been very helpful.

Same.

[ahi]

Originally Posted by PKFFW

This is exactly what is happening with downloading from the internet. Both parties are, by dint of using their computers, making copies of the work. The uploader is making the original file available and is transmitting it to me, it is I who am requesting the file, enabling my end of the distribution chain and organising that data into a usable copy.

Repeating this ad nauseam still won't make it true.

Ignoring the fact that your notion of how the law should be is utterly impractical; you seem to staunchly refuse to recognize that the downloader is receiving a copy in practical terms, not making a copy.

You need to get down to a technical level well below the threshold of concern of judges and the law in order to be able to say, "They're both making a copy."

- Ahi

[tompe]

Originally Posted by PKFFW

Agreed. I freely admit I was in error in thinking it did make a difference in the USA. I'm in the process of checking this out with regards to Australian law because I am still under the impression it does make a difference here.

I think intent make is taken into consideration for infringement in Sweden. Also infringement is a crime also. And downloading can be infringement even if I do not think anybody have been convicted just for downloading.

[DawnFalcon]

Originally Posted by Elfwreck

If downloading is (can be) infringement, I wonder if it's legal to put up a website and say, "I do not give permission for any of AOL's servers to copy this content. If AOL puts this content on their servers, it is guilty of copyright infringement."

Because that sounds like a wonderful way for somebody with a good lawyer to make a lot of money suing AOL.

And indeed, if your robots.txt disallows certain actions and a company goes ahead and ignores them, you have a case.

[Shaggy]

Originally Posted by ahi

Ignoring the fact that your notion of how the law should be is utterly impractical; you seem to staunchly refuse to recognize that the downloader is receiving a copy in practical terms, not making a copy.

You need to get down to a technical level well below the threshold of concern of judges and the law in order to be able to say, "They're both making a copy."

Exactly. Ignore the technical details, the judges probably will too.

[Shaggy]

Originally Posted by PKFFW

Agreed. I freely admit I was in error in thinking it did make a difference in the USA. I'm in the process of checking this out with regards to Australian law because I am still under the impression it does make a difference here.

I looked at it briefly when you mentioned that's where you were from. Based on about 10 minutes googling (aka not thorough at all), it looks like there is a strict liability on copyright, but ONLY for specific situations. Somewhere I found a site listing what they were. I don't remember if any of them could be interpreted as downloading, didn't really look at it that closely.

[Shaggy]

Originally Posted by PKFFW

There are plenty of examples from history where laws have been applied to a single case which had the effect of showing the far reaching and unintended consequences those laws could have if applied as they were written to all cases. Once it was realised the law had those unintended consequences they were amended. I am sure this same process will be applied to copyright infringement. This is why I say it is a bit alarmist to suggest that the entire internet will come crashing down and be rendered useless, with all members of society being brought up on civil lawsuits, if the law is ever rules that downloading only is an offence.

Cheers,
PKFFW

That is true. However, personally I don't believe the current laws make downloading only an offence. Although there are lots of people who want us to think they do.

[PKFFW]

Originally Posted by ahi

Repeating this ad nauseam still won't make it true.

Ignoring the fact that your notion of how the law should be is utterly impractical; you seem to staunchly refuse to recognize that the downloader is receiving a copy in practical terms, not making a copy.

You need to get down to a technical level well below the threshold of concern of judges and the law in order to be able to say, "They're both making a copy."

- Ahi

And you repeating your opinion ad nauseum still wont make that true.

"In practical terms" doesn't enter into any legal debate that I am aware of. The law deals with the technicalities. That is why Jamie Packer reportedly pays less personal income tax than I do because technically he personally doesn't earn as much money as I do. There isn't a damn thing the tax department can do about it even though "in practical terms" the amount of money he has is far in excess of what I have.

So "in practical terms" or not, if I download something to my computer I am, whether you like to admit it or not, in essence asking my computer to make a copy of that file onto my computer. I am not taking the original file from it's current storage place and putting that original file onto my computer. The original file is still in its original storage place for anyone to access. The uploader may be offering the file for copying but it is my personal actions that cause the copy to be made so it is I who am copying it.

You yourself have stated previously that this is what happens every time someone downloads an internet page to their computer.

Cheers,
PKFFW