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Piracy The Almighty Buck The Courts Your Rights Online

Considering a Fair Penalty For Illegal File-sharing 728

Posted by timothy
from the if-there-is-such-a-thing dept.
An anonymous reader writes with this excerpt, following up on yesterday's announcement of the 1.5 million dollar verdict against Jammie Thomas: "This week a federal jury handed down the verdict in the third file-sharing trial against a Minnesota mother of four who has been fighting against the charges brought by the RIAA since 2005. Understandably, a lot of people are outraged by this verdict and while reading through comments about the fine on some online forums, I saw some interesting opinions on how these fines should be assessed. The point that $62,500 per song is excessively high seems to be something that everyone can agree on, but what actually is fair seems to be a big point of contention."
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Considering a Fair Penalty For Illegal File-sharing

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  • Hang on... (Score:3, Interesting)

    by Anonymous Coward on Friday November 05, 2010 @07:40PM (#34143200)

    No monetary figure will be fair. Choosing any amount will allow those rich enough to simply ignore the law.
    The only fair way to make it is if anyone (person, organisation or company) commits copyright infringement they are
    financially ruined and bankrupted. That is the only way such a law can be equally fair to everyone. Yes its unfair but
    it is equally unfair to everyone and not just the poorer people.

  • I'll give it a shot. (Score:3, Interesting)

    by jtownatpunk.net (245670) on Friday November 05, 2010 @07:47PM (#34143238)

    Maximum of $50/song with a maximum total cap of $50,000. And there should be a sliding scale based on the actual amount of data transferred. So someone who accidentally shares their music library for a couple days doesn't get the same penalty as someone who seeds torrents on their company's 100mbit tube for a year.

  • Re:Hang on... (Score:2, Interesting)

    by TFAFalcon (1839122) on Friday November 05, 2010 @07:54PM (#34143310)

    The rich will still be able to afford enough lawyers to make sure they never loose if they are ever sued for infringement.

  • by wholestrawpenny (1809456) on Friday November 05, 2010 @07:57PM (#34143346)
    That is pretty much how much they cost when buying from Amazon or iTunes. Seems perfectly reasonable to me.
  • by Kethinov (636034) on Friday November 05, 2010 @07:57PM (#34143350) Homepage Journal

    The fairest penalty is no penalty. We need to end the war on sharing by legalizing noncommercial copyright infringement. I know this is not a popular view. But this stalemate can't last forever. One side has to win. Either piracy or anti-piracy will win.

    Given a choice between the two, I choose piracy. Because if anti-piracy wins, the resultant changes to internet policy and enforcement would be something straight out of dystopian science fiction. All data transmitted across the internet would have to be monitored and checked for copyright violations. It would require aggressive internet filtering and surveillance on a scale that makes the Great Firewall of China look like child's play. 1984 was not supposed to be a guidebook...

    Moreover, there's plenty of evidence that it's possible to run a content business on the internet without charging per digital download. Plenty of people do it. In short: yes, you can compete with free.

    Legalize file sharing by legalizing noncommercial copyright infringement. It's the only way.

  • by davidwr (791652) on Friday November 05, 2010 @07:57PM (#34143354) Homepage Journal

    For adults doing it for personal use who can't be bothered to pay for what they buy:

    I would go with a civil penalty of 1x the retail cost of the songs, along with a no-jail-time misdemeanor criminal penalty at the discretion of the prosecutor for 2nd time offenders and those who are clearly doing it as a means of civil disobedience. Criminal charges would only work if prosecutors were protected from pressure from the record companies. Otherwise the criminal justice system becomes an arm of the recording industry, which is far worse than the current practice of suing people into bankruptcy. Civil disobedience only works if there is a price to be paid and you are willing to pay it.

    For adults who knowingly leave their computers open for anyone to copy an substantial number of songs and who aren't extremely naive, I'd probably start with a no- or weekends-only-jail-time misdemeanor offense plus stick them with a civil-penalty bill for any downloads by people who were outside the reach of the courts. I wouldn't throw someone in jail unless the actual civil damages - at about $1 song/download not counting the exclusions below - were well into the 5 figures. I would not bill them for downloads by others who downloaded them only for the purpose of sharing them or downloads by police or plaintiffs, as those clearly do not represent lost sales by any stretch of the imagination.

    For those who make their "warez" available on a commercial scale, I'd up the ante to a jail-time misdemeanor and possible forfeiture of their computers on the first offense.

    In any case, the record companies shouldn't get any more than if the person bought all the songs on the open market, plus reasonable attorney's fees. In other words, they wouldn't make any profit.

    For teenagers and very young adults I'd probably go with a more creative approach: Write an essay on the history of copyright law and its positive and negative effects on the creative arts, and garnish a reasonable portion of their wages for a year or until the civil judgment is paid off whichever comes first. Only in rare cases - usually ones where parents actively encouraged the copying knowing it was illegal - would I make the parents pay the bill.

  • by Zontar_Thing_From_Ve (949321) on Friday November 05, 2010 @07:58PM (#34143366)
    I should point out that I am an American citizen and have served on juries before. My comments are specific to the US legal system and may not be applicable to that of Canada, the UK, and other countries.

    Having served on a couple of US juries I can assure you all that juries can contain people who are technologically illiterate. The last time I served on a jury, which was 5 years ago, I was shocked when 3 or 4 guys on the jury basically got into a contest to see who could claim to be the stupidest when it came to technology. I have never seen anything like this in my life, but these guys took turns trying to top each other and convince everyone on the jury that they were the stupidest person there was when it came to technology. There were exactly 2 people out of 13 (1 was an alternate) who had an IT background and I was one of those.

    So on top of having people with weak to non-existent technology skills you may run into these people who see the world in black and white and want to punish evil doers. We had one of those on my jury. They tend to always be biased against defendants and want to apply the harshest sentence possible. I've read about this woman's various trials and she has had very poor lawyers and on top of that, jurors reported that they were sure she had lied in court and was completely guilty of the charges. I think she's a nut job who thinks she can beat the charges. So considering all of that, I can't say I'm surprised she got screwed with a fine she can never pay. Her life will be ruined as even thought the RIAA knows they'll never get the full amount, they can garnish her wages forever.
  • by Anonymous Coward on Friday November 05, 2010 @08:07PM (#34143472)

    My suggestion would to be to

    1) Estimate how much the average person spends per year on the type of entertainment infringed on as a percentage of income.

    5.4% of income is spent on entertainment, and 3.4% of entertainment budget is on music. So 5.4*3.4 = .2% of total income is spent on music.

    http://www.visualeconomics.com/how-the-average-us-consumer-spends-their-paycheck/ [visualeconomics.com]
    http://blog.nielsen.com/nielsenwire/consumer/video-games-score-5-of-u-s-household-entertainment-budget/ [nielsen.com]

    Then take that number times the individuals income. So say 25,000 for the average individual.
    25,000*.002= 50$

    So that is the base amount for that individual. Now that can be multiplied times a penalty factor for willful infringement, etc.

  • by EdIII (1114411) on Friday November 05, 2010 @08:20PM (#34143620)

    50k?

    It does not matter what anyone comes up with. Truly. The fact is, even without the current Great Depression we are in, that the average amount of savings and assets that people have is FAR less than what any judgement will award, even one that may be considered fair like 50k. Additionally, garnishments (which means more resources used by the RIAA to setup) are determined by judges, not the RIAA. So that 1.5 million dollar judgment can sit there for next 2,500 years being paid off at $50 per month because that is what the judge feels you can reasonably pay.

    For the vast majority of people though this means bankruptcy. To my knowledge, very few types of debt and judgments are not exempt from bankruptcy. With the MAFIAA's death grip on congress that most certainly can change though, but will still ultimately be unproductive.

    Bankruptcy is not necessarily the end of the world either. It will hurt your credit for sure, but you cannot be forced to pay them off with a credit card, and you can choose what debt to pay on an ongoing basis the last time I checked. So even during and after bankruptcy you can continue paying your credit card bill or your car payment without penalty.

    People can cash their paychecks directly for cash, prepay credit card balances, set up automatic payments to utilities the day after their ACH deposit is made, prepay utilities, etc. There are dozens of different ways to escape judgments.

    Ironically, the rich are even better at it, and less likely to be hit with a copyright infringement judgment. Why torrent, and file share, and all that nonsense when you can spend hundred or thousands of dollars per month at $1 per track buying music through easy to use, virus free, interfaces? Stupid child gets their rich parents hit with a judgment? Good luck. Deep pockets are more often that not very well protected pockets. The RIAA would probably get a settlement for 5k-10k, but 1.5 million from somebody truly rich? Doubtful.

    What I find so funny about this, is that the average RIAA target is probably being nudged towards bankruptcy anyways with all the bullshit going on right now.

    The discussion on /. usually steers towards what is fair and right, but I don't see pragmatism. Unless the fine itself is less than $1,000 it might as well be $1 billion.

  • by Joe The Dragon (967727) on Friday November 05, 2010 @08:22PM (#34143650)

    The fine for DUI is less and that is with all the fess added together.

    even hitting a road worker in a work zone is a MAX fine of like $10,000 so how can file sharing HAVE A FINE THIS HIGH?

    Hell you can shop lift cd's and pay like a max fine of $500

  • by way2trivial (601132) on Friday November 05, 2010 @08:23PM (#34143660) Homepage Journal

    they don't do it by pounds

    there sure as shit do it by value of goods
    my state for example
    value of goods- law charged
    0-200 dollars of value- it's misdemeanor shoplifting
    200-500 fourth degree
    500-75 thousand, third degree
    shoplift 75 thousand or more, get second degree

  • by EdIII (1114411) on Friday November 05, 2010 @08:36PM (#34143852)

    Her life will be ruined as even thought the RIAA knows they'll never get the full amount, they can garnish her wages forever.

    A lawyer is welcome to correct me, but wage garnishment cannot inherently survive a bankruptcy. A garnishment is against a specific judgment, and I know of very few types of debts and judgments that are not set aside after bankruptcy is finalized. Moreover, bankruptcy is fast becoming a way of life anyways. It is not the end of the world though. At most, it affects your ability to obtain lines of credit in the future.

    Considering our collective experience with Wall Street and the financial institutions in general in the last 5 years I support a complete fucking revolt. It's not a sustainable way of life to gradually increase debt on your existing credit lines with no way to pay it back. We are all better off becoming much smarter consumers of financing anyways.

    As for the garnishments? Hardly the end of your life. The judge determines this, NOT the RIAA. That is important to remember. Just about every other type of bill is going to have a higher priority. Child support payments, alimony, etc. More than likely, the judge is going to give them $25 to $50 per month for the average person. Very few people now have hundreds or thousands of dollars of truly disposable income at the end of the month.

    It's not like the RIAA will obtain a garnishment that results in children going hungry or unfed.

    What's even more tragic for the RIAA, and the person of course, is that garnishments are only good for your current place of employment. For people that are drifting around from minimum wage job to minimum wage job, the RIAA could easily spend more administrating the judgment, than collecting on the judgment.

    All things being considered, the RIAA might get billions of dollars worth of judgments, but find themselves deeply in the red when they total up all the lawyer fees, court fees, service fees, etc.

  • Re:1000 dollars (Score:3, Interesting)

    by geekoid (135745) <dadinportland @ y a hoo.com> on Friday November 05, 2010 @08:36PM (#34143856) Homepage Journal

    by merchant, I mean anyone financially profiting in the sale good or services.

    Yeah, my wording could have been better. My point is, if Best buy broke a contract with Sony, Sony can't come into your house and take your TV away.

    In this case, the merchant is the person profiting from distributing material they don't have the right to.
    FYI:
    MERCHANT, n. One engaged in a commercial pursuit. A commercial pursuit is one in which the thing pursued is a dollar.

  • by blair1q (305137) on Friday November 05, 2010 @08:44PM (#34143938) Journal

    Multiply the number of times the song was downloaded from her by the nominal wholesale price of the song in the marketplace.

    That's compensatory. It's all the actual revenue the record company lost.

    Triple it to get punitive. That's an arbitrary rule that courts use, but it seems reasonable and customary.

    This horseshit about tens of thousands of dollars per incident is a ludicrous abuse of the legal system, and constitutes cruel and unusual punishment.

  • Re:Well... (Score:3, Interesting)

    by sayfawa (1099071) on Friday November 05, 2010 @08:56PM (#34144052)
    That's pretty fair, if a bit complicated. But even if the jury and judge came to the decision that *every* person who got their copy of the song from her would have bought it if she personally hadn't been seeding it and decided to make her penalty 99 cents for every song she seeded times the number of uploads, that would still be far more reasonable than the bullshit they handed her.

    Even if we take the "low" fine of $54,000, that's $2,250 per song. So what, she uploaded each song over 2000 times? What crap. I understand that some of the fine is more than just compensation, it's also deterrent, but shit, man that's just ridiculous.

    On the bright side, I have a habit of downloading something "illegally" every time I let something like this get under my skin, so, off to the torrentz!
  • Only in America (Score:1, Interesting)

    by Anonymous Coward on Friday November 05, 2010 @09:05PM (#34144158)

    This very special kind of insanity is only possible in America - and I urge you to consider why it is so.

  • by Lukano (50323) on Friday November 05, 2010 @09:27PM (#34144342)

    I am likely late to the game/thread, but this whole situation stinks of big-money shilling. There's no way that this could have continued past 3 appeals and still have come up with 7+ digits in settlement. As far as I'm concerned, this smacks of the Jammie case being a corporate shill in order to further the RIAA/MPAA agenda. Using such an example they can prove that a relatively innocent individual can be found guilty of 5-digit-per-track-$ infringeemnt, while still appearing to have undergone 'due process'.

    It stinks, it's rotten, and it smells.

    I'm not sure why anyone is buying this?!

    (well, outside of corporate US funded media / astroturfing / shills that is....)

  • by Anonymous Coward on Friday November 05, 2010 @09:46PM (#34144480)

    It should be like speeding, sure most speeders don't get caught, but the occasional few who do face a penalty offsets the possible damage done to road infrastructure, insurance companies, and human life/lives/suffering that is incurred by disobeying the law. I think the damages done by sharing a song should be higher $50-100 per song x number of songs, which would offset the lack of policing force that the music company has to find those violating their copyright. Also if someone running a site which has been serving copyrighted material is caught then a stiffer penalty should be dispensed because the crime is heavier, like drinking and driving would result in loss of driving privilege, fine, and possible jail time. But lets be reasonable $65,000/song is atrocious, after all lets also consider the fact that the music companies denied users the convenience of purchasing legit copies online (especially the access to a diverse library of music) for over a decade thus contributing to this horrible mess of piracy in the first place, in essence they gave the "black market" the opportunity to thrive and did jack all to offer the growing online community any better alternative, except bitch and wine and hit people with these disgusting lawsuits. There has to be some give and take on this issue, especially where the music companies (not to mention movie and game companies) are concerned. With smaller penalties they'd probably find it easier to enact more lawsuits, win them and by doing so curb the amount of piracy people are willing to risk. If you are more likely to get caught it is more likely that people will generally pirate less, no?

  • Re:Hang on... (Score:1, Interesting)

    by Anonymous Coward on Friday November 05, 2010 @10:04PM (#34144592)

    Somewhat true. Yet also false.

    Take for example a 'poor' man I know. Major hustler. I think he could talk an arab into buying a bucket of sand. Yet *ANY* time he gets a little money he spends it stupidly. PAYS someone, at a premium, to take him over to a gas station so he can get a bunch of candy bars and a 64oz slurpy. He buys all of his food at the local gas station. He lives hand to mouth. He is always scamming for some change to go to the local mcdonalds. His brother, same attitude yet spends his money better. Lives 'ok'. I figured out from the drugs he was selling and the scams he had going on he was clearing nearly 80k a year tax free. Yet he lives in project housing, has no car, no real job, and regularly visits the local soup kitchen. He thinks he is a poor man, and he acts like one. Yet he is actually doing pretty good yet has no clue how to spend his money.

    How you spend your money has just as much effect on if you are 'poor' or really poor. Dont value your time and someone else will do so for you.

    Stupid rich like you are thinking does take luck. It also takes the wherewithal to realize you are getting luck and the ability to seize the moment. But for *REAL* poor people, people who make 40k a year are stinking rich.

    I have known many rich spoiled brats go on to live in the projects and the other way around. It is about money control and not letting people waste your time and decide how to spend your money for you. It takes serious discipline to remove the leaches from your life.

    Also being poor is hard. It is almost like it is geometrically progressive in how people try to steal money from you. It seems the less money you have the more people try to take it away from you. The ones who least can afford to be leached off of in life get it the worst. The trick with going from poor to 'rich' is realizing people want to steal what you got.

  • Re:Hang on... (Score:3, Interesting)

    by biryokumaru (822262) <biryokumaru@gmail.com> on Friday November 05, 2010 @11:19PM (#34144984)
    How does this not fall under the "get lucky" column? Additionally, if more people become millionaires during a recession, aren't they profiting off of the loses of others? Are those others the wealthy, or the poor? Lastly, you would be surprised how "liberal" I am not.
  • Re:Hang on... (Score:2, Interesting)

    by kozyel (555168) on Friday November 05, 2010 @11:56PM (#34145114)
    Not too sure which threaded reply to attached this too, but how about:

    tax == flat_rate x (Govt_min_income_threshold + Luxury_threshold)

    where Govt_min_income_threshold == Social Security Benefit (or equivalent basic unemployment benefit)
    Luxury_threshold = 10k
    and flat_rate = Business Tax Rate (30%?)

    Should mean those on a minimal income pay no tax, and those who have a high disposable income pay their fair share of tax.
  • Re:Hang on... (Score:5, Interesting)

    by Pentium100 (1240090) on Saturday November 06, 2010 @12:17AM (#34145214)

    You're suggesting rich people should be penalised more on the abstract basis that they happen to be more wealthy? Their wealth has no relevance to the act committed nor the damage done.

    I agree, this does not apply to copyright infringement or other civil matters. If you caused me $100 of damage I want that $100 not less and not more.

    However, some countries have implemented "% of income" fines for things like drunk driving. The idea is that a drunk rich driver is approximately as dangerous as a drunk poor driver, however, if you fine both $2000, it will be a huge fine for the poor driver and hopefully cause him to think next time before driving drunk. The same $2000 will be small change for the rich driver and he will be able to afford getting fines a lot of times and, as such, is likely to continue driving drunk. So, what can we do to make the rich guy stop driving drunk? Fine him so much that the fine will hut him just like the $2000 fine for the poor guy.

    OTOH, fine for riding the bus without a ticket should be the same to everyone. It should be high enough (and inspections frequent enough) that, on average, the free-riders pay more than the honest people. If a rich guy likes paying the fine instead of buying the ticket - let him, as this does not cause any non-financial damage, unlike drunk driving.

    P.S. I don't have a problem with drunk drivers (as long as they hit a tree or a lamp post instead of hitting me or my car), I just chose this as an example of an activity that does more damage than just money.

  • Re:Hang on... (Score:0, Interesting)

    by Anonymous Coward on Saturday November 06, 2010 @02:45AM (#34145704)

    You do know that Social Security and Medicare are paid from their own payroll deductions, not income tax? Your income tax is mostly paying for wars and military occupations. I'm guessing you'd be OK with that if only no poor people in America could benefit from it?

  • The Tree Matters (Score:1, Interesting)

    by Anonymous Coward on Saturday November 06, 2010 @08:50AM (#34146628)

    My property is on a curve and my trees are hit about every 5 years by people that lose control. Some are drunk. My trees are harmed, some have been taken out. I miss them. A drunk driver in a truck took out a 150 yr old oak tree that cannot be replaced. What "fine" did he pay? Nothing. He didn't have anything and was bankrupt, but he could afford to get drunk.

    What is a "fair" fine for that? I'm not the only one to miss that tree. The bird, the squirrels, and other creatures miss it much more than I.

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