I can see the problem with $750 penalty for stealing a 70 cent download... isn't there some ruling that says for companies they can only "gouge" them for damages with a single digit ratio to the actual damages? So to follow that for individuals, that means the largest damages should be... 70 cents times 9... $6.30?
Just a pointless gibe about the difference between treatment of companies and individuals, I guess. Forgive me if I got some details wrong of the above information, even.
The law is out of date. It was written at a time when the possibility of an individual sharing several copies of hundreds of songs was inconceivable. $750 per title as damages for a company that's churning out hundreds of copies for sale at market stalls is hardly totally unreasonable, since they could easily be, and probably would be selling several hundred even if the exact amount sold is impossible to judge. Still not a brilliantly just law but that's another matter.
Hmm. Whoever modded this flamebait is not what I'd call an intelligent person. However, if the number of copies distributed illegally cannot be determined, there is no way to compute damages, right? What if I sue you for "numerous incidents of toe-stepping, leading to loss of income in an undetermined amount due to inability to work brought about by physical and emotional damage suffered as a result of said incidents" and demand $1000k? Should you be forced by the courts to pay the requested amount, with no
.. what I'm curious about is who checks that the RIAA hasn't already put a claim in for this particular song somewhere further up the chain?
ie. person A shares a file that persons B,C & D download. RIAA files a suit against person A, claims $750 damages. Person A pays. RIAA now files suits against B,C & D (who are now also sharing the file) claiming $750 from each of them too, even though, in theory the claim against person A was for ALL downstream sharing too.
Can someone explain the legal
My colleague Ty Rogers graciously pointed out to me, in reading your comment, the following excerpt from one of the Law Review articles we cited in our briefs:
"There are multiple ways in which we might measure the economic loss caused by a defendant's file-sharing activities. To illustrate one such approach, consider the following example. Suppose that file-sharer W illegally downloads to her computer Led Zeppelin's song Stairway to Heaven. The song is downloaded to a shared folder on her computer and thereby made available for others to copy. Suppose further that three other file-sharers, X, Y, and Z, subsequently download the song from W's computer. Thus, there are four people in this example who desired the song but who did not pay to obtain it. In other words, there are four lost sales. Because file-sharers are sued independently, we need a way to apportion this harm among the relevant actors. How might this be done?
A starting basis for apportioning the harm is to deem the person who initiates a file transfer (the downloader) as having caused harm by that action. This person benefits by receiving for free a work of music that must be purchased to be legitimately obtained. Allowing her to escape responsibility for causing harm is not consistent with her initiative in effecting the illegal transaction. Stated differently, this person's money would have gone to the copyright owner (if indirectly) in order for her to obtain the song, but now the money stays in her pocket as a direct result of her affirmative actions. In contrast, the file-uploader gets no economic reward from her outbound transfer and may be unaware of the sharing. [FN139] Thus, we can assign the downloader responsibility for causing one lost sale by illegally downloading the copyrighted song.
The other half of this transaction is the uploading of this song, so we might also assign to a person responsibility for one unit of economic loss per act of distribution--each time that the actor uploads a copyrighted music file, she is responsible for a lost sale. This seems satisfactory at first because the distribution of copyrighted works is illegal and is necessary for file-sharing to work. This conception, however, overstates the actual economic loss. In *547 our example, this conception would count seven units of economic harm (one for W's song download, three for W's uploads, and three more for each of X, Y, and Z's downloads). Yet the copyright owner in our example has suffered only four lost sales. This scheme, then, is flawed.
Instead, this Note adopts a conception of file-sharing's economic harm that attributes responsibility for economic loss to a person's instances of illegal downloading but not distribution. One person's distribution is another person's downloading, so counting economic loss as caused by acts of distribution, in addition to counting acts of downloading, would overstate the total amount of harm. While this Note settles upon this model of file-sharing's economic harm, it is certainly not a perfect conception. For example, this model does not account for whatever revenue is generated by persons who first illegally download a song for sampling and then later purchase it legitimately. Nor does it counterbalance this revenue by accounting for revenues lost due to a record company's impaired ability to market a collection of several songs as one unit, as on the typical album, or to collect licensing fees from online retailers that play short music samples to their customers. Thus, this Note acknowledges the existence of imperfections in its model of file-sharing's economic harm; it concedes that changes in this model will alter the separation of the punitive and compensatory portions of a statutory damage award and ultimately affect the outcome of substantive due process review.
Having explained why a file-sharer is held responsible for causing one lost sale for each copyrighted work that he or she illegally downloads, it becomes apparent that the harm caused by the defendant's sharing of one copyrighted song is significantly less than $750, being closer to a typical music album's price. Thus, the compensatory portion of a statutory damage award is heavily outweighed by the noncompensatory portion. This conclusion, that copyright law's minimum statutory damage award for illegal file-sharing has a substantial punitive component, explains why the substantive due process prohibition of grossly excessive punishments adheres in this context."
From:
Grossly Excessive Penalties In The Battle Against Illegal File-Sharing: The Troubling Effects Of Aggregating Minimum Statutory Damages For Copyright Infringement, 83 Tex. L. Rev. 525 (2004)
Suppose that file-sharer W illegally downloads to her computer Led Zeppelin's song Stairway to Heaven. The song is downloaded to a shared folder on her computer and thereby made available for others to copy. Suppose further that three other file-sharers, X, Y, and Z, subsequently download the song from W's computer. Thus, there are four people in this example who desired the song but who did not pay to obtain it. In other words, there are four lost sales.
Just because 4 people shared the song, doesn't mea
No, this is faulty logic: "The logic is similar to putting a $1 bet on number 7, which comes up, putting the $36 winnings on number 2, which doesn't come up, and then claiming that you have 'lost' $36. You haven't. You've lost $1. (Since you didn't cash in after the first win, but immediately put it back in play, it was never yours)"
You absolutely did lose $36, because your $1 bet did not necessitate the subsequent bet. They are two completely seperate occurrances.
If I understood all of that correctly, it is clearly conceded that the penalties are not compensatory in nature but rather they are punitive in nature. Therefore, there is no reason to lower them despite the fact that they are grossly out of line with the actual damages caused.
Sorry you didn't understand that correctly. Awarding penalties that are wildly disproportionate to the actual damages is, according to legal authorities, unconstitutional.
Jaywalking gets you a fine, not a night in jail. And yet the constitution garuntees you a trial that hinges on 'beyond a reasonable doubt', even if it was just a fine. Punitive damages are a a form of punishment that get by the much less strict: 'preponderance of the evidence'. In some states this may mean that they only have to proove that there is a 50.000....1% chance that you did anything and you would have to pay up 100% of 1000% of claimed damages.
It's not an optical illusion, it just looks like one.
-- Phil White
Damages for companies? (Score:5, Interesting)
Just a pointless gibe about the difference between treatment of companies and individuals, I guess. Forgive me if I got some details wrong of the above information, even.
Re: (Score:5, Insightful)
Re: (Score:5, Interesting)
However, if the number of copies distributed illegally cannot be determined, there is no way to compute damages, right? What if I sue you for "numerous incidents of toe-stepping, leading to loss of income in an undetermined amount due to inability to work brought about by physical and emotional damage suffered as a result of said incidents" and demand $1000k? Should you be forced by the courts to pay the requested amount, with no
Re: (Score:5, Interesting)
Re:Damages for companies? (Score:5, Informative)
My colleague Ty Rogers graciously pointed out to me, in reading your comment, the following excerpt from one of the Law Review articles we cited in our briefs:
"There are multiple ways in which we might measure the economic loss caused by a defendant's file-sharing activities. To illustrate one such approach, consider the following example. Suppose that file-sharer W illegally downloads to her computer Led Zeppelin's song Stairway to Heaven. The song is downloaded to a shared folder on her computer and thereby made available for others to copy. Suppose further that three other file-sharers, X, Y, and Z, subsequently download the song from W's computer. Thus, there are four people in this example who desired the song but who did not pay to obtain it. In other words, there are four lost sales. Because file-sharers are sued independently, we need a way to apportion this harm among the relevant actors. How might this be done?
A starting basis for apportioning the harm is to deem the person who initiates a file transfer (the downloader) as having caused harm by that action. This person benefits by receiving for free a work of music that must be purchased to be legitimately obtained. Allowing her to escape responsibility for causing harm is not consistent with her initiative in effecting the illegal transaction. Stated differently, this person's money would have gone to the copyright owner (if indirectly) in order for her to obtain the song, but now the money stays in her pocket as a direct result of her affirmative actions. In contrast, the file-uploader gets no economic reward from her outbound transfer and may be unaware of the sharing. [FN139] Thus, we can assign the downloader responsibility for causing one lost sale by illegally downloading the copyrighted song.
The other half of this transaction is the uploading of this song, so we might also assign to a person responsibility for one unit of economic loss per act of distribution--each time that the actor uploads a copyrighted music file, she is responsible for a lost sale. This seems satisfactory at first because the distribution of copyrighted works is illegal and is necessary for file-sharing to work. This conception, however, overstates the actual economic loss. In *547 our example, this conception would count seven units of economic harm (one for W's song download, three for W's uploads, and three more for each of X, Y, and Z's downloads). Yet the copyright owner in our example has suffered only four lost sales. This scheme, then, is flawed.
Instead, this Note adopts a conception of file-sharing's economic harm that attributes responsibility for economic loss to a person's instances of illegal downloading but not distribution. One person's distribution is another person's downloading, so counting economic loss as caused by acts of distribution, in addition to counting acts of downloading, would overstate the total amount of harm. While this Note settles upon this model of file-sharing's economic harm, it is certainly not a perfect conception. For example, this model does not account for whatever revenue is generated by persons who first illegally download a song for sampling and then later purchase it legitimately. Nor does it counterbalance this revenue by accounting for revenues lost due to a record company's impaired ability to market a collection of several songs as one unit, as on the typical album, or to collect licensing fees from online retailers that play short music samples to their customers. Thus, this Note acknowledges the existence of imperfections in its model of file-sharing's economic harm; it concedes that changes in this model will alter the separation of the punitive and compensatory portions of a statutory damage award and ultimately affect the outcome of substantive due process review.
Having explained why a file-sharer is held responsible for causing one lost sale for each copyrighted work that he or she illegally downloads, it becomes apparent that the harm caused by the defendant's sharing of one copyrighted song is significantly less than $750, being closer to a typical music album's price. Thus, the compensatory portion of a statutory damage award is heavily outweighed by the noncompensatory portion. This conclusion, that copyright law's minimum statutory damage award for illegal file-sharing has a substantial punitive component, explains why the substantive due process prohibition of grossly excessive punishments adheres in this context."
From:
Grossly Excessive Penalties In The Battle Against Illegal File-Sharing: The Troubling Effects Of Aggregating Minimum Statutory Damages For Copyright Infringement, 83 Tex. L. Rev. 525 (2004)
Faulty logic (Score:2)
Re: (Score:2, Informative)
"The logic is similar to putting a $1 bet on number 7, which comes up, putting the $36 winnings on number 2, which doesn't come up, and then claiming that you have 'lost' $36. You haven't. You've lost $1. (Since you didn't cash in after the first win, but immediately put it back in play, it was never yours)"
You absolutely did lose $36, because your $1 bet did not necessitate the subsequent bet. They are two completely seperate occurrances.
1. You make a $1 bet and win. Now you hav
Re: (Score:2)
Correct?
strike
Re: (Score:3, Informative)
Re: (Score:2)
strike
Re: (Score:2)