Should a Copyright Infringer Pay $21 or $675,000 for Downloading 30 Songs?(law.com)
law.com
Should a Copyright Infringer Pay $21 or $675,000 for Downloading 30 Songs?
http://www.law.com/jsp/article.jsp?id=1202444441911&src=EMC-Email&et=editorial&bu=Law.com&pt=Law.com%20Newswire%20Update&cn=LAWCOM_NewswireUpdate_20100224&kw=At%20Hearing%2C%20Boston%20Music%20Downloader%20Argues%20for%20New%20Trial%20or%20Reduced%20Verdict
4 comments
Let's see, iTunes sells the songs for $1.29 (all new hits) so 30 songs would be $38.70. Now, you were bad and did something illegal so let's go for broke and say you need to pay 10x for being bad so you will not do it again. That gets us to a $387.00 fine. That would be a reasonable slap. $675,000 is some serious overstepping.
I think that record labels would be far more successful getting money from people if they would bring suits of this size. Keep under a certain amount and it could even go to small claims court. A few people getting slapped with $675,000 in fines doesn't scare me, but 250,000 people getting $500 in fines might make me think twice because the odds of getting caught are higher.
A few labels are doing this. I think it's a fair approach. It ends up being about $10 per song. I don't think they even make you delete the files -- just stop sharing them. You're basically just paying a 10x premium/penalty for obtaining them in an illicit way. Here's what it looks like:
NOTE TO ISP: PLEASE FORWARD THE ENTIRE NOTICE
Re: Unauthorized Use of Copyrights Owned Exclusively by the Zappa Family Trust Reference#: XXXXXXXX
XXXXXXXXX PST
Dear Sir or Madam:
FFS Enterprises, LLC ('We') represent the following 'copyright owner(s)' The Zappa Family Trust ('ZFT') by agency agreement.
ZFT are the exclusive owners of copyrights for Frank Zappa musical compositions, including the musical compositions listed below. It has come to our attention that {ISP Name} is the service provider for the IP address listed below, from which unauthorized copying and distribution (downloading, uploading, file serving, file 'swapping' or other similar activities) of ZFT's exclusive copyrights listed below is taking place.
This unauthorized copying and distribution constitutes copyright infringement under the U.S. Copyright Act. Pursuant to 17 U.S.C. 512(c), this letter serves as actual notice of infringement.
The ZFT will pursue every available remedy including injunctions and recovery of attorney's fees, costs and any and all other damages which are incurred by The ZFT as a result of any action that is commenced against you. Nothing contained or omitted from this letter is, or shall be deemed to be either a full statement of the facts or applicable law, an admission of any fact, or a waiver or limitation of any of The ZFT's rights or remedies, all of which are specifically retained and reserved.
The information in this notification is accurate. We have a good faith belief that use of the material in the manner complained of herein is not authorized by the copyright owner, its agent, or by operation of law. I swear, under penalty of perjury, that I am authorized to act on behalf of the owner of the exclusive rights that have been infringed.
While The ZFT is entitled to monetary damages from the infringing party under 17 U.S.C. Section 504, The ZFT believes that it may be expeditious to settle this matter without the need of costly and time-consuming litigation. In order to help you avoid further legal action from The ZFT, we have been authorized to offer a settlement solution that we believe is reasonable for everyone. please copy and paste the URL below into a browser and follow the instructions for the settlement offer:
NOTE TO ISP: PLEASE FORWARD THE ENTIRE NOTICE
Re: Unauthorized Use of Copyrights Owned Exclusively by the Zappa Family Trust Reference#: XXXXXXXX
XXXXXXXXX PST
Dear Sir or Madam:
FFS Enterprises, LLC ('We') represent the following 'copyright owner(s)' The Zappa Family Trust ('ZFT') by agency agreement.
ZFT are the exclusive owners of copyrights for Frank Zappa musical compositions, including the musical compositions listed below. It has come to our attention that {ISP Name} is the service provider for the IP address listed below, from which unauthorized copying and distribution (downloading, uploading, file serving, file 'swapping' or other similar activities) of ZFT's exclusive copyrights listed below is taking place.
This unauthorized copying and distribution constitutes copyright infringement under the U.S. Copyright Act. Pursuant to 17 U.S.C. 512(c), this letter serves as actual notice of infringement.
The ZFT will pursue every available remedy including injunctions and recovery of attorney's fees, costs and any and all other damages which are incurred by The ZFT as a result of any action that is commenced against you. Nothing contained or omitted from this letter is, or shall be deemed to be either a full statement of the facts or applicable law, an admission of any fact, or a waiver or limitation of any of The ZFT's rights or remedies, all of which are specifically retained and reserved.
The information in this notification is accurate. We have a good faith belief that use of the material in the manner complained of herein is not authorized by the copyright owner, its agent, or by operation of law. I swear, under penalty of perjury, that I am authorized to act on behalf of the owner of the exclusive rights that have been infringed.
While The ZFT is entitled to monetary damages from the infringing party under 17 U.S.C. Section 504, The ZFT believes that it may be expeditious to settle this matter without the need of costly and time-consuming litigation. In order to help you avoid further legal action from The ZFT, we have been authorized to offer a settlement solution that we believe is reasonable for everyone. please copy and paste the URL below into a browser and follow the instructions for the settlement offer:
Isn't that message copyright FFS Enterprise, and distributing it may be illegal?
Probably, yeah. If I was being critical of the policy I would be more concerned. I think it's actually a good alternative. All the information in there is public knowledge otherwise.
250,000 people getting $500 in fines might make me think twice because the odds of getting caught are higher
That would actually cause people to stop pirating their music. And instead obtain different music, leaving the record companies with nothing.
That would actually cause people to stop pirating their music. And instead obtain different music, leaving the record companies with nothing.
In the Capitol Records case, the jury ordered Tenenbaum to pay $675,000 to several record companies for illegally downloading and distributing 30 of their songs.
##and distributing## There's a monstrous difference here that we should be working nonstop to educate people about.
If we can't get people to understand the difference between simply downloading, and becoming part of the distribution network, we are never going to have a meaningful debate. Both sides will seem completely irrational to each other.
##and distributing## There's a monstrous difference here that we should be working nonstop to educate people about.
If we can't get people to understand the difference between simply downloading, and becoming part of the distribution network, we are never going to have a meaningful debate. Both sides will seem completely irrational to each other.
But they do not know how much he has distributed. How much should he pay if he distributed 1 song, 100 songs, 10000 songs? Shouldn't Capital Records say how many songs were distributed & that be tied to the verdict?
I'm not sure this is the same case I have heard of before, but let's assume this person was torrenting some popular songs.
How much does it matter that he was distributing and not just downloading, if there were hundreds of others seeding at the same time? Other downloaders would have been inconvenienced just very slightly by him not being there. Did his contribution lead to an appreciable number of extra downloads, or did it just help the same number of pirates download faster?
With which I just mean to say that there are gradations in distribution...
How much does it matter that he was distributing and not just downloading, if there were hundreds of others seeding at the same time? Other downloaders would have been inconvenienced just very slightly by him not being there. Did his contribution lead to an appreciable number of extra downloads, or did it just help the same number of pirates download faster?
With which I just mean to say that there are gradations in distribution...
That's actually so good I'm just going to repeat it:
With which I just mean to say that there are gradations in distribution
That's exactly what this whole thing is missing. No one has stopped to calculate what the impact (in monetary damages, even hypothetically on the download==lost sale metric) of a bittorrent client running for x days at home connection upload speed.
With which I just mean to say that there are gradations in distribution
That's exactly what this whole thing is missing. No one has stopped to calculate what the impact (in monetary damages, even hypothetically on the download==lost sale metric) of a bittorrent client running for x days at home connection upload speed.
$675,000 divided by $1.29 comes out to 523,255 copies distributed, which is ludicrous.
$38.70 is also ludicrous, but for the opposite reason. We can't get to the place where we start to ask "how many copies were reasonably distributed and what might the actual damage be?" until we clarify what the actual accusation is.
To the typical user, who thinks that all that is in question is $40 worth of downloads, $20,000 and $200,000 are equally ridiculous damage demands.
To the typical user, who thinks that all that is in question is $40 worth of downloads, $20,000 and $200,000 are equally ridiculous damage demands.
I used $38.70 as the basis for what would have been bought. Most damages are based on something lost. How many seeds got data from the defendant? Is there some number that can be arrived at? I am not sure, I just don't think the amount of damage of the fine is reasonable.
I am not sure, I just don't think the amount of damage of the fine is reasonable.
Of course not. Its so off the charts irrational, batshit-insane is about the only description that fits.
I'm just saying that until we get to the place where everyone understands that the real meat of the accusation is mass distribution, we won't have a meaningful dialog about what actual damages might be. Until then its just 3vi1-R144 vs. p1rat3z and most people will just believe that its all about "stealing" $20 worth of Britney Spears.
Of course not. Its so off the charts irrational, batshit-insane is about the only description that fits.
I'm just saying that until we get to the place where everyone understands that the real meat of the accusation is mass distribution, we won't have a meaningful dialog about what actual damages might be. Until then its just 3vi1-R144 vs. p1rat3z and most people will just believe that its all about "stealing" $20 worth of Britney Spears.
I understand the distribution, but I think some of the problem is the difference between distribution with intent to profit and distribution as part of getting the data. One is the intent at committing a criminal act for profit; the other is consequences of the technology means for committing a single criminal act.
Except that using bit torrent is considered distribution automatically. Actual distribution is not shown.
I'd consider that using bt to get a copy of a recording you own (backup, format shifting) would be pretty close to fair use in the USA and certainly not immoral. If this were considered then even showing distribution would not necessarily show tortuous malfeasance.
However, being practical, a proper measure of the data distributed should be made using the available evidence. For example, the copyright holder can show the recording was available for 1 day and the ISP can confirm that the uploaded data that day was 1Gb (my broadband connection maxed for 6 hours).
This would yield a potential upload of about 150 tracks of 5MB. Assuming the tracks are 50p each then the maximum possible amount is about £75. Now apply whatever factor has historically been used in damages for those who sell bootleg CDs in the street and voila.
A few hundred pounds at most. Equivalent to a very large speeding ticket.
I'd consider that using bt to get a copy of a recording you own (backup, format shifting) would be pretty close to fair use in the USA and certainly not immoral. If this were considered then even showing distribution would not necessarily show tortuous malfeasance.
However, being practical, a proper measure of the data distributed should be made using the available evidence. For example, the copyright holder can show the recording was available for 1 day and the ISP can confirm that the uploaded data that day was 1Gb (my broadband connection maxed for 6 hours).
This would yield a potential upload of about 150 tracks of 5MB. Assuming the tracks are 50p each then the maximum possible amount is about £75. Now apply whatever factor has historically been used in damages for those who sell bootleg CDs in the street and voila.
A few hundred pounds at most. Equivalent to a very large speeding ticket.
Agreed. Someone should not have their life ruined for downloading (and distributing) a few songs for no profit. If the RIAA sued people like this, I would be fully in support of it. Of course, the problem is that they would probably lose money on each lawsuit.
Let's put it like this: if I'm caught on a bus without a ticket ($ 5) would it be reasonable to be fined $50,000 ?
There is more depth to this comparison than meets the eye, as naively both items (song and a bus ride) have zero marginal cost, and the rights have been violated in a fairly similar manner.
(edit for clarification)
There is more depth to this comparison than meets the eye, as naively both items (song and a bus ride) have zero marginal cost, and the rights have been violated in a fairly similar manner.
(edit for clarification)
For downloading, he should pay as much as a radio listener pays: nothing.
For distributing, he should pay the same fees that radio stations pay.
For distributing, he should pay the same fees that radio stations pay.
For distributing, he should pay the same fees that radio stations pay.
In other words, they should pay him!, preferably through a shell corporation.
In other words, they should pay him!, preferably through a shell corporation.
Actually radio stations pay licenses for rights to songs for satellite/internet radio, while music is sent to radio stations for free through promoters.
I work at a small college radio station (http://kmnr.org) we have been working with SoundExchange to get licensing for internet broadcast in addition to our radio broadcast.
I work at a small college radio station (http://kmnr.org) we have been working with SoundExchange to get licensing for internet broadcast in addition to our radio broadcast.
So if I sell burned copies of a new CD on the street corner, I should only have to pay a radio license fee?
I think they should make it $500 - $1,000 per song. It's enough to make people look at their huge song libraries and wonder if they should go legit, without it being so phenomenally huge it's just a meaningless number.
The people who fantasize about how he should only have to pay $1 or w/e are delusional. Why would anyone ever buy music again if the worst case scenario is they might have to pay a buck a track one day. Punishments need to fit crimes and serve as a deterrent to others as well.
The people who fantasize about how he should only have to pay $1 or w/e are delusional. Why would anyone ever buy music again if the worst case scenario is they might have to pay a buck a track one day. Punishments need to fit crimes and serve as a deterrent to others as well.
It's absurd to claim that $5,000,000 is an appropriate punishment for having filled one's iPod with downloaded music.
Let's be reasonable; the fine should not have anything to do with the volume of music downloaded, as people who download music often do so to sample, and delete afterwards (or they download a stuff that they don't even want, because it's free).
Instead, the fine should be several times what the person would have likely been able to spend on music during the time that the download occurred, regardless of the number of songs involved (and of course, the songs should be deleted).
For a high-school student, that fine could be $500 ($50 if he/she comes from a poor family). For a programmer making $60,000/year, that fine could be around $5-10k. For a rich person, the fine could be $50/song.
People who are fined millions of dollars are usually people who have done atrocious things (like pushing drugs to schoolkids for years), not downloaded some songs for their iPod, 90% of which were downloaded to try out and wouldn't have been purchased anyway.
Let's be reasonable; the fine should not have anything to do with the volume of music downloaded, as people who download music often do so to sample, and delete afterwards (or they download a stuff that they don't even want, because it's free).
Instead, the fine should be several times what the person would have likely been able to spend on music during the time that the download occurred, regardless of the number of songs involved (and of course, the songs should be deleted).
For a high-school student, that fine could be $500 ($50 if he/she comes from a poor family). For a programmer making $60,000/year, that fine could be around $5-10k. For a rich person, the fine could be $50/song.
People who are fined millions of dollars are usually people who have done atrocious things (like pushing drugs to schoolkids for years), not downloaded some songs for their iPod, 90% of which were downloaded to try out and wouldn't have been purchased anyway.
If you fill an entire iPod with pirated music then you deserve a sizable punishment. You're not owed and nor do you deserve gigabytes of music simply because you bought a device with the capacity to host that much. Your income and your ability to purchase whatever quantity of music legitimately also has no relationship with the storage capacity of your iPod.
The other excuses you present are irrelevant too, if you downloaded the music then you downloaded it, it doesn't matter what happened next. There are free and legitimate ways to preview pretty much anything on the internet, you don't need to pirate an artist's entire catalog to see if you like that person.
The only point I can agree on is making it 'comfortably excessive' relative to income, $500 means little johnny's not getting that car he's saving for, and $10k to us is as nice as prison sex. But I think that would naturally sort itself out - nobody's been held responsible for the full catalog of music they've pirated, it's always been at most up to dozens of tracks.
The other excuses you present are irrelevant too, if you downloaded the music then you downloaded it, it doesn't matter what happened next. There are free and legitimate ways to preview pretty much anything on the internet, you don't need to pirate an artist's entire catalog to see if you like that person.
The only point I can agree on is making it 'comfortably excessive' relative to income, $500 means little johnny's not getting that car he's saving for, and $10k to us is as nice as prison sex. But I think that would naturally sort itself out - nobody's been held responsible for the full catalog of music they've pirated, it's always been at most up to dozens of tracks.
Of course you're not owed anything; My point is that downloading two songs is not necessarily twice as "bad" or harmful to the artist as downloading one song, so trying to establish a fine on a "per-song" basis is absurd. For each additional song a person downloads, there is a diminishing harm done to the artists and labels involved, and it eventually reaches a point where absolutely no additional harm is done.
Therefore, any punishment should be related to a reasonable estimate on the harm of the artists/labels (and of course multiplied to the point of punishment, but to a reasonable extent given the crime).
It would be different in a case of actual theft; each physical CD stolen is a CD that cannot be sold to someone else, and it's an asset that the thief can resell.
Therefore, any punishment should be related to a reasonable estimate on the harm of the artists/labels (and of course multiplied to the point of punishment, but to a reasonable extent given the crime).
It would be different in a case of actual theft; each physical CD stolen is a CD that cannot be sold to someone else, and it's an asset that the thief can resell.
[deleted]
Heh. Where's that spare $20 million I have lying around for contingencies like this?