Actual Damages For 1 Download = Cost of a 1 License 647
NewYorkCountryLawyer writes "In Real View v 20-20 Technologies, it was held that the actual copyright infringement damages for a single unauthorized download of a computer program was the lost license fee that would have been charged. The judge, in the District Court of Massachusetts, granted remittitur, reducing the jury's verdict from $1,370,590.00 to $4200 unless the plaintiff seeks a new trial. Something tells me the plaintiff will seek a new trial."
The actual damages... (Score:5, Insightful)
may or may not exist, if you even think a loss of hypothetical profit is damaging in the first place.
Not quite punitive (Score:2, Insightful)
Re:Cost of infringing open source? (Score:1, Insightful)
Re:The actual damages... (Score:3, Insightful)
Yes... but in this case there should be some sort of punishment for stealing. It is very likely that no sale would have occurred, but that's not the point on an infringement case.
I've long complained on these forums about the judgements against people who share music. But the point was that the damages were often grossly out of line with any reasonable punishment. This... Well... It may actually be less than what it should be assuming the illegal download was for what should be a fully licensed copy that wasn't paid for. I'm sparse on the details for this case, but if the software did cost $4,200 per copy, then maybe the judgement should have stated that they now need to pay for three licenses. I'd say that would be perfectly fair to make sure people play by the rules.
I'm very glad to see that (for once) the downloader of the material is the one being punished though.
Re:Cost of infringing open source? (Score:5, Insightful)
To benefit from statutory (as opposed to actual) damages, you have to register your copyrights.
Most open source software, while copyrighted under the Berne Convention, doesn't have a copyright registration certificate emitted by the government [wikipedia.org], so it's just actual damages.
That's why the RIAA registers their copyrights - instead of actual damages, they can claim statutory damages of $150,000 per copy.
Re:The actual damages... (Score:3, Insightful)
How many times do we have to keep telling you morons?
COPYING IS NOT STEALING!!!!!
Whether you think copying something should be illegal or not (it shouldn't), it's impossible for copying to be stealing. The original owner is deprived of NOTHING when a copy is made.
Re:The actual damages... (Score:5, Insightful)
As many times as we have to tell you that they are being deprived of sales and income. Probably nowhere near 1 to 1, but they are being deprived.
Like it or not, protection of a work is needed to keep the creative process going. 70 years after the death of the artist is too long and corporations should hold no copyright, only real people named as the artist.
Re:Not quite punitive (Score:5, Insightful)
3x is what everyone else gets, why not say 3x at least and at most.
I once had a van full of electronics installation gear, which, while parked, was plowed into by a drunk driver in a rainstorm (water damaged most of the tools and contents before the mess could be cleaned up). I had to take the matter to court and prove he was over the legal alcohol limit to drive, before I could get punitive damages. Just to qualify for that 3x multiple, I had to prove extra circumstances applied, and those extra circumstances amounted to a criminal level of guilt, as it would be in a criminal case, not just simple responsibility as in a civil case. (Note, technically I still didn't have to meet the reasonable doubt test for the drunk driver to be considered responsible in a civil case, but I did have to show somebody, whether a full court actually prosecuting him or just a cop making out an accident report and bothering to do a breathalizer test and subsequent arrest, had determined his responsibility exceeded simple responsibility before I could qualify for punitive damages).
So why does a special privilege exist, letting the software creator seek damages many times higher than 3x? Why does somebody like me have to prove criminal negligence, or other fully criminal level of responsibility, while various copyright holders have a special private law that means they only have to prove a lesser standard such as'willfulness', and why does 'willfulness' sometimes multiply the already ultra-high damages by 5x, not just 3x?
I want a special law like these guys get - one that lets me really discourage people who through illegal acts, damage my property. Of course, all I was trying to discourage was a drunk who blew 0.31 on a breathalizer and was estimated to have been driving 60 MPH in a quiet residential neighborhood, at the time school was just letting out, and who had 9 priors, and who somehow still had enough money to buy another car after the last accident and seemed to think he could just pay for simple damages and keep it up forever. But the courts in their infinite wisdom have decided that needs less discouragement than that hideous and abominable crime of pirating software.
Re:The actual damages... (Score:5, Insightful)
Do you have any evidence that any of those pirates would have paid for a license? And that's the crux of the matter. Until somebody actually shells out for a license you can't say for certain if they would.
There should be a penalty, but there's no particular reason to believe that a public shaming would be any less effective than forcing them to pay for a copy after the fact, even at a greatly increased cost.
Re:The actual damages... (Score:2, Insightful)
How many times do you morons have to keep repeating this stupid distinction to convince yourselves that your unethical actions are justifiable?
COPYING COPYRIGHTED MATERIAL IS NOT YOUR RIGHT, NO MATTER HOW MANY TIMES YOU SAY IT IS!!!!!
Re:Not quite punitive (Score:5, Insightful)
So why does a special privilege exist, letting the software creator seek damages many times higher than 3x? Why does somebody like me have to prove criminal negligence, or other fully criminal level of responsibility, while various copyright holders have a special private law that means they only have to prove a lesser standard such as'willfulness', and why does 'willfulness' sometimes multiply the already ultra-high damages by 5x, not just 3x?
It's called the "Golden Rule". As in, "Them what has the gold, makes the rules."
They paid good money for that law.
Re:The actual damages... (Score:5, Insightful)
This guy just murdered 10 MB, and then he got his friends to rape 100 MB! If you mean copy, say copy - involving unrelated crimes like murder or theft just confuses the issue. You can still think it's bad without making stuff up. Loss of revenue is not theft - if I stand outside your shop and tell everyone that your meat is rotten, I may have caused you a loss of revenue and I may have done something illegal, but I didn't steal from you, or murder your money, or rape your bank-account or any other silly use of words like that.
Re:The actual damages... (Score:2, Insightful)
I think the logic is they're using it so they should have paid for it so the damages are what they should have paid for it.
Sounds pretty reasonable to me.
Re:Jury's verdict? (Score:5, Insightful)
So just to be clear. You support the idea that a white jury could nullify a murder conviction against a white man accused of killing a black man because the members of the jury think it's ok for a white man to kill a black man? Because that's exactly what happened numerous times in the south during the civil rights movement. Jury nullification sounds good on the surface until you turn around and apply it to the ugly situations that you don't want to talk about. And the reality is that those ugly situations are going to be far more common than the just situations.
We shouldn't be nulifying laws in the jury box, it's should be done at the ballot box, if more people took seriously their electoral responsibility and communicated with their elected representatives and worked inside the system these things would change. But when the only ones talking about copyright policy are those groups who benefit most from an authoritarian version then don't be surprised when that's what you get.
Re:The actual damages... (Score:5, Insightful)
they should be deprived of any benefit of having the software may have brought them.
Put that in your measuring stick and smoke it
Re:The actual damages... (Score:4, Insightful)
Shame on the moderators who modded you insightful. People who disagree with you are not necessarily morons.
You are arguing a political position, not a definition. Whether or not copyright infringement is stealing in a legal or moral sense depends on your view of intellectual property.
In terms of a dictionary defintion, it is obvious that copyright infringement is stealing. We say someone "stole" state secrets. We don't say "they only copied them, that's not stealing" because the definition is taking without permission and has nothing to do with whether we "deprived" anyone.
And if we go with your definition, people can still disagree. It could argue that your unauthorized copy belongs to the copyright holder and that you are depriving the owner of that copy.
Re:The actual damages... (Score:5, Insightful)
Re:The actual damages... (Score:1, Insightful)
they should be deprived of any benefit of having the software may have brought them.
Put that in your measuring stick and smoke it
Great! Thanks for giving us something that is so very easy to measure and accurately determine.
So if I pirate a DVD player program, play legally owned DVDs with it, you are going to sue me to take away my happiness for the X amount of hours I spent using the software? I'm not even going to bother asking how you determine the value of X, assuming the crack prevented the program from phoning home.
I'll stick with 3x the market price for the least expansive, compatible license, thanks.
Re:The actual damages... (Score:5, Insightful)
As many times as we have to tell you that they are being deprived of sales and income.
They never had the sales or the money to begin with. There's nothing to steal from them.
I'm sure I lose opportunities to gain all the time, but I would not call that theft.
Re:The actual damages... (Score:5, Insightful)
Of course murder is stealing. It is stealing that which is most important to the other person, their very life. Their future. It's also stealing from their loved ones. Robbing them of the company of a parent, a child, a friend, a spouse, or whatever.
To the contrary, to say that murder is not stealing would be ridiculous. Go listen to any prosecutor summing up the impact of a murder on the relatives of the victim.
Cost of S/W, reasonable attempt at proportionality (Score:5, Insightful)
Do you have any evidence that any of those pirates would have paid for a license? And that's the crux of the matter.
No, the actual crux is the rule of law. If a law is broken there should be a punishment. What should that be in the case of software piracy? The cost of the software is a reasonable attempt at proportionality. Plus fines often have two components, the actual damages and the punitive damages. The later being purely to discourage such behavior. Perhaps the cost of a license should be considered punitive not actual, it matters only to accountants not the person whose pocket it comes out of.
None of the above should be interpreted to mean that our laws in this area are not antiquated, or flawed, and in need of an update. I'm just arguing that fining the infringer the cost of a license seems far more reasonable than some other methods of coming up with a number.
Re:The actual damages... (Score:5, Insightful)
In terms of a dictionary defintion, it is obvious that copyright infringement is stealing.
And in terms of a legal definition, it's obvious it isn't - now was this person accused of breaking a law of etymology as dictated by Ben Johnson, Noah Webster or maybe all those nice Britannica 3 people, or current US law? You do know what they call people who go into courts and argue that the common use of words has legal power over the actual courts rulings and precedents, don't you?
If copyright violation is legally theft:
1. States have a right to enforce laws regarding theft which happens in their jurisdictions, so the SCOTUS decision that copyright law cannot be delegated to the states is invalid and we have a constitutional crisis on our hands.
2. ALL copyright violation is criminal - As there's no such thing as non-criminal theft. We need to get ALL copyright law moved from Title 17 (copyright law) to Title 18 (US federal criminal law).
3. Copyright cannot expire, and the part of the constitution that says 'limited time' is again part of a constitutional crisis. After all, theft can't become non-theft just because of the age of the item. Can you imagine if someone could legally take something physical just because it had gotten too old to be protected? "Let's go loot an antique shop - that stuff is too old to be protected by law anymore.".
4. Everything Madison, John Jay, Learned Hand, Franklin, Jefferson and many others wrote on copyright proves they were morally bankrupt, because they didn't agree that copyright violation was theft at all, and we need to tear down a lot of statues. These people are bad examples to our children. Hell, every single person elected to high federal office failed to agree with you until 1976 when the first actual criminal penalties for some select forms of CV were passed, let's get their names off all those monuments, bridges, and high schools.
You go tell the government to smash the Jefferson Memorial and demand that every single congresscritter that won't move all of Title 17 into Title 18 be immediately impeached for coddling thieves. You encourage your state to secede if the federal government won't let them exercise their old state level copyright laws. I will wait here.
Re:The actual damages... (Score:4, Insightful)
Oh horseshit, that's not at all relevant. The true crux is the immoral and illegal decision to take something without reimbursing the owner. That they *wouldn't* have purchased it anyway doesn't mean a damn thing. Don't think it's worth purchasing? Don't rip it off.
It appears to me that your core belief resolves to this: If I don't want to pay for it, I shouldn't be punished harshly when it's found I ripped it off.
Pretty shoddy moral grounds.
"...there's no particular reason to believe that a public shaming..."
Criminals don't get to set their own punishments because they tend to prefer light slaps on the wrist.
Re:The actual damages... (Score:4, Insightful)
I Think $4000 May Be a Scarier Number (Score:4, Insightful)
Re:The actual damages... (Score:2, Insightful)
For the gagillionth time, copyright infringement is not stealing. That is not to say it is not illegal/ethically wrong, but it is decidedly NOT "stealing".
Only in a pedantic or legal sense. In a colloquial sense, one uses "steal" not only to mean depriving the victim of an object but also for intangibles. "You stole my idea." "You took the words right out of my mouth." That is the sense in which copyright infringement is stealing: the infringer obtains the benefit of the intangible idea without proper attribution/privilege. If one sneaks into a concert without paying, he might even say "I stole past the ticket desk and straight into the theater."
Perhaps you're not a native English speaker: we typically use "steal" to mean a whole range of misappropriation crimes: burglary, robbery, larceny, embezzlement, fraud, theft by taking/deception/conversion/receiving, and yes, even copyright infringement. To imagine that words used in colloquial setting carry either technical, legal definitions is disingenuous.
Re:Cost of S/W, reasonable attempt at proportional (Score:1, Insightful)
No, the actual crux is the rule of law.
"The rule of law" doesn't exist in this country. In order to have the rule of law, the law (as a whole) needs to apply to everyone, up to and including (ESPECIALLY) the government.
This is, plainly, not the case.
Re:The actual damages... (Score:5, Insightful)
Slap a consistent fine for copying on any verdict. BUT DO NOT GIVE THAT FINE TO THE VICTIM. This is what makes the whole US justice system such a joke.
Sadly, that would only make the problem worse. The last thing you want is for the government to start viewing it as a revenue stream. A revenue stream without the inconvenient word "taxes" attached to it.
Then the government has a perverse incentive to maximize the number of people actually breaking the law, a perverse incentive to sweep up innocent people, a perverse incentive to ensure it is impossible or insanely difficult for innocent people to defend themselves.
Just look at the stupidity that goes on with red-light cameras. The report then comes in that accidents at the intersection have gone UP rather than DOWN, and what does the government do? It shortens the yellow-duration on the light, which increase accidents (and possibly deaths) from people improperly jamming on the brakes. Why? Because the government needs to maximize the number of people "breaking the law" to increase revenue. And a special legal process is put in place to avoid the wasteful expense of accusing a person of breaking the law, along with the possible expense that they might try to defend themselves. Instead a special legal process it put in place either assigning a presumption of guilt or making it some sort of civil suit / administrative violation against the car that is being accused. A bill is simply mailed to the owner of the car. When red-light cameras are a revenue stream, minimizing the cost of processing the guilty is important to maximizing revenue. Minimizing the cost of processing the innocent, and still forcing them to pay, also becomes important to maximizing revenue.
And don't even get started on the abuse of the various civil forfeiture laws. They turn into a major source of funding for law enforcement agencies, paying them to go out and seize as much as possible.
Copyright law is grotesquely deformed as it is. Just imagine how much worse it would get if the government latched on to it as a revenue stream to fix desperate budget shortfalls, without having to utter the dread word "taxes".
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I'm tired of this RMS bullshit (Score:5, Insightful)
I like RMS, and I'm a huge fan of Free Software. I use Free Software, and unlike most of you armchair "does it run Linux" lazyasses, I actually WRITE Free Software. Moreover, I also prefer to say "Free Software" than "open source", and I believe that GNU/Linux is perhaps a bit redundant but certainly a fair way to describe many Linux-based systems. I value Free Software because it fosters the free exchange of ideas, facilitates innovation, saves on wasted effort, and with the GPL, it prevents corporations from "stealing" the code and profiting from it without sharing in the same way they acquired it. It's awesome, really.
But this philosophy that intellectual property doesn't exist is absolutely bullshit pedaled by people too stupid or lazy to have or appreciate an original idea.
Indeed, this philosophy and the GPL stand in direct contradiction. On the one hand, if you download software in violation of its licensing terms, then you haven't done anything wrong, because all you did was copy. Fine. But if you lock up GPL'd code in voilation of ITS licence, then you've done something awful? It's the same fucking thing!
Whether or not you believe that something "intellectual" can be "property," what you have in both cases is someone (or some aggregate entity) produced some software code (or another kind of work) and chose to license it in a certain way. What's the difference? Are they any different just because one decided to lable their stuff as "Free" (based on some narrow definition of Free)? I don't think so.
Part of the problem is that most of the people whining about this are looking for a free handout. They don't contribute anything themselves (except useless rhetoric, perhaps), but they suffer from the modern entitlement complex that makes them think that everyone else should work so that they don't have to. It's just the same as people who live their whole lives on welfare without EVER trying to get a job and contribute properly to society. IMHO, nothing entitles them to anything except to starve to death if they won't work. And the fact that they DEMAND that I pay taxes so that they don't have to lift a finger makes me loathe them completely. It's one thing if you CAN'T work. I'll gladly pay taxes to assist people who DID work, but were rendered incapable by injury. But for those who REFUSE to work and want to bitch at me because I don't want to share my paycheck with their stupid asses, they're a complete waste of oxygen.
The fact is, in order to create a useful, interesting piece of software, you have to learn and think critically, and spend a whole hell of a lot of time and effort and sometimes money writing code and testing and debugging. GOOD software is not free (gratis) to produce. So when someone does develop software (or some other artistic work), it is no longer merely an idea. It is no longer MERELY intellectual. Although you can copy it easily, it embodies a great deal of effort, which makes if tangible, and within some reasoable bounds, they should have the right to control how that tangible is disseminated.
Although YOU, as a freeloader, may be unable to appreciate the effort involved in creating an intellectual work, that doesn't nevertheless give you the right to steal it. Ignorance and stupidity are NOT valid excuses for violating someone else's rights. Just because YOU have never had an original thought doesn't mean that original thoughts roll off of other people entirely effort-free.
The basic idea is that to create something of value, you have to expend effort. (Although effort doesn't necessarily produce something of value.) Of course, since you've never exerted any effort, you won't understand that, but some other people will. If you were to break that relationship, then people would have no incentive to create works of intellectual property, and then you'd have nothing to freeload off of. I think that might be a Catch 22.
By actually expending effort and creating something of value, an individual is entitled to some
Re:The actual damages... (Score:5, Insightful)
then you can't assume that they wanted the software?
At the very least, they probably wanted to try it. Whether they would have bought it or not is another matter entirely.
You stole that car.
Indeed. You deprived someone of their property. Now let's get back on topic and start talking about copyright infringement.
at your computer and pirating seen differently than walking in and stealing a boxed product from a store?
Is this a serious question? In one scenario, there may or may not have been a lost sale (and not everyone believes this is actual harm). No actual property was lost.
In the other scenario, actual property was lost (stolen).
Re:The actual damages... (Score:5, Insightful)
You're not understanding a key part of the argument. The difference between copyright infringement and stealing is the deprivation of the original work from the owner.
In the case of the Ferrari, the copyright infringer isn't stealing the car, she is manufacturing an exact duplicate of the car. This is still morally "wrong" because Ferrari had to work hard to come up with the design of the car, but it isn't as wrong as stealing, because the copyright infringer didn't take the actual product.
Similarly, the copyright infringer isn't stealing the boxed software the same as a shoplifter. In the case of boxed software, the vendor is the one being stolen from. The vendor paid the manufacturer a certain amount for the boxed software, and pays a certain amount for the location where she does her vending; when a shoplifter takes from the vendor, she is depriving the vendor from selling the boxed software to ANOTHER person; thus a TRUE deprivation of a sale.
Now all that aside, I agree with your statement of "licence, plus some punitive amount" as the penalty for copyright infringement. But this isn't the same as theft, which should come with additional punishment (eg licence + punitive + short incarceration)
Re:The actual damages... (Score:4, Insightful)
ANd I assure you, if the social bargain that is copyright was abolished, people would continue to create works.
And people would continue to contribute to the authors, as we do with donations to Wikipedia or paying a fair amount to Humble Indie Bundles.
Re:protection of a work is needed to keep the crea (Score:4, Insightful)
"That is true, was true, and will keep being true"
That's so blatantly false that only the utmost ignorant or a damn lier would stand for it.
The written History of Humankind covers no less than 5000 years; intellectual property is a 500 year old concept at most, so for no less than 90% of History the "creative process" has kept going quite good without such "protections".
Re:Cost of S/W, reasonable attempt at proportional (Score:5, Insightful)
I think tort law would cover the problem, nicely. Treble damages. If some guy is found with a library of pirated material, worth a thousand dollars, then he pays three thousand dollars. So - if someone actually went through all my stuff, and discovered all the stuff I've pirated, then I might be liable for - ohhhh - $150.
If they could examine the records of everything I've ever downloaded, and charge me for stuff I've since deleted, then I might be liable for a ballpark figure of $2 - 3,000.
And, if the world were suddenly to act that rational, I might even find myself agreeing with the law. Winning "settlements" of millions against working class people simply makes no sense, unless those working class people were financially profiting from the software, music, movies, or whatever.
Re:The actual damages... (Score:5, Insightful)
The true crux is the immoral and illegal decision to take something without reimbursing the owner.
What is the moral basis for arguing that it is wrong to make a copy of something you would not have paid for if you couldn't make a copy.
I'm serious. What moral principle are you applying in that situation?
I can't find one.
The idea that the creator should be reimbursed for his work is reasonable, but since we have as a stated premise that I wasn't going to have paid for it then he wasn't going to get any money from me. If I can obtain a copy without causing him any material harm he has lost nothing.
At best there is a slippery slope argument that if we let people who won't pay have a copy, then people who could/would pay will stop paying for their copies too, But that's not a moral argument for depriving people who would never pay a copy, but merely a recognition of the practical difficulty of differentiating between those who would and those who wouldn't.
Re:The actual damages... (Score:5, Insightful)
Re:Cost of S/W, reasonable attempt at proportional (Score:5, Insightful)
The rule is that you have to prove your damages to be awarded them. Unless they can prove that they've been damaged, I see absolutely no reason why they should be given a penny that other industries wouldn't get under similar circumstances.
Re:The actual damages... (Score:4, Insightful)
Re:protection of a work is needed to keep the crea (Score:4, Insightful)
If there was no protection, intermediaries wouldn't bother paying the authors at all.
Was Euripedes compensated for his work? Yes, he was, long before artificial copyrights were invented. No protection correlates well with creators being held in high regard and being well compensated, rather than the opposite you assert. Lots of authors died in poverty with the copyright only benefiting a corporation after their death. If there was no protection for them, they'd have been better off, not worse off. Copyright helps corporations, not creators.
Re:The actual damages... (Score:4, Insightful)
Indeed. When the bad guys are the ones making the rules, breaking them may be the only recourse left for the good guys.
Re:The actual damages... (Score:5, Insightful)
Your argument has one major, sincere, problem. Nothing was taken, and Nothing needed to reimbursed. Nada. Zilch. El Zippo.
As far as calculating damages goes, it is a major logical flaw to assume that all instances of infringement would have resulted in a sale. You are entirely correct that it does not change the morality of the act. It does change the assumptions though.
The original AC poster screaming at the "morons" that cannot understand theft echoes my sentiments exactly.
You can't treat IP as physical property and apply the logic that you do. It is understandable that there has been some confusion because before the "digital" age the distribution of IP was accomplished via physical means that had actual value separate from the IP. So technically, you could steal a CD, book, or VHS tape movie. What you stole was the physical property, not the IP. In fact, in those cases of physical theft no actual infringement occurred.
If I pirate a movie right now, none of the physical equipment that was used by myself was stolen. My laptop was legally purchased. I reside in a residence that am I legally entitled to reside in. My electricity bill is paid. My Internet service is paid for.
All those zeroes and ones were rightfully compensated by me.
What I did end up doing however, was infringe upon the legal entitlements granted to a copyright holder by the United States of America, via The People, to control the distribution and profit from what that binary data represented.
That is what is so hard to get through people's heads. I never stole anything or deprived anyone of anything physical. I was in breach of a legal contract.
This is not pedantic either, but a highly crucial understanding of law and how it relates the proper functioning of society. When you apply the word theft, and the logic accompanying it, you are not only wrong, but doing a disservice to society.
Intellectual Property and the Public Domain should never be used to advance and agenda that ultimately ends up compromising, abrogating, or outright destroying the freedoms we are all entitled to as free thinking human beings.
Stop using the word theft. It is still wrong, we both agree on that, in so far as we agree that a society needs to compensate our artistic creators that provide us with a rich life of ideas and art.
It is, and should remain, a civil matter between two parties. Introducing theft, and that twisted logic, only serves to pervert those proceedings into something criminal and restrain what should always have been free. The Internet and my own personal area of Cyberspace.
Re:The actual damages... (Score:4, Insightful)
Re:The actual damages... (Score:4, Insightful)
In this case the copied software was used to design a new product, and it's reasonable to assume that the new product was sold to people some of whom would have otherwise bought the copied product. Therefor, real damage was done to the owners of the copied product.
In other cases, acquiring an unauthorized copy of a rare and expensive product may reduce the value of the original, due to reduction of the quality "rarity".
In the physical realm, if you steal a book from me that I've already read and have no intention of rereading or selling, you've still committed theft and should be treated accordingly. No judge or jury would have the slightest interest about whether I had any use for the book; they'd simply be interested in the questions of ownership and theft.