The next 'war on drugs'...

[LnGrrrR]

Doubtful that they would be anywhere near as exorbitant as they currently are in civil cases.

And your basis for that belief?

what civil liberty would erode?

Off the top of my head, I'm not sure. Perhaps gov't scanning of P2P networks?

I haven't really argued what would and what wouldn't be a fair punishment.

I've only argued what should and what shouldn't be illegal and that copyright infringement is basically theft.

Do you think people would really care much if there was a token fine associated with dloading illegally?

What's got people up in arms is that record companies are trying to extract exorbitant fees using nebulous claims of "loss".

I wouldn't, in theory, be necessarily opposed to the gov't prosecuting such claims if the fines were reasonable and the punishments sensible.

I just highly doubt they will be.

[LnGrrrR]

Not much of a difference imo, and I explained (to you) why some several pages back.

And I disagree. To someone who purchases a music CD, movie, etc etc. usually the primary value of it is not to wait for it to appreciate value. It's to enjoy the experience behind the music, movie, etc etc. That is not changed by someone copying that material. However, if said CD/video was stolen, that WOULD prevent them from enjoying it.

Do you think that if the person in Marcus' example gets caught after handing out 20 copies of a book, that he/she should be punished for it?

Sure, I could see that being a punishment. I still would rather have the publisher initiate the charges rather than the gov't, but if the fines were reasonable, I wouldn't necessarily have a huge issue with it.

[Blake]

And your basis for that belief?

current fines for criminal charges are maxed out at $250k (plus some jail time) for a felony offense.

I haven't dug deep, but I think the max fine for a misdemeanor offense is $100k.

Do you think people would really care much if there was a token fine associated with dloading illegally?

What's got people up in arms is that record companies are trying to extract exorbitant fees using nebulous claims of "loss".

I wouldn't, in theory, be necessarily opposed to the gov't prosecuting such claims if the fines were reasonable and the punishments sensible.

I just highly doubt they will be.

If the claims are nebulous and yet record companies are still winning in a court of law, then blame the court system.

I still see the need for laws and enforcement of them regardless.

[LnGrrrR]

current fines for criminal charges are maxed out at $250k (plus some jail time) for a felony offense.

I haven't dug deep, but I think the max fine for a misdemeanor offense is $100k.

I would argue that the vast majority of dloaders should be under the misdemeanor offense, of which 100K would be pretty exorbitant. In my eyes, someone sharing, say, 30 files should be fined no more than $2.5K (and that's in extreme cases.)

If the claims are nebulous and yet record companies are still winning in a court of law, then blame the court system.

I still see the need for laws and enforcement of them regardless.

Fair enough. I just like the current system as it stands, as it seems effective enough.

[Blake]

And I disagree. To someone who purchases a music CD, movie, etc etc. usually the primary value of it is not to wait for it to appreciate value. It's to enjoy the experience behind the music, movie, etc etc. That is not changed by someone copying that material. However, if said CD/video was stolen, that WOULD prevent them from enjoying it.

To someone who doesn't purchase a music CD, movie, etc etc and instead illegally downloads it, gets to enjoy the experience behind the music, movie etc etc for free.

That person just illegally took that experience from the entertainment company without paying for it.

Theft.

[Blake]

I would argue that the vast majority of dloaders should be under the misdemeanor offense, of which 100K would be pretty exorbitant. In my eyes, someone sharing, say, 30 files should be fined no more than $2.5K (and that's in extreme cases.)

ok, I would agree.

I would also think that the max 100k fine is also not your standard class C misdemeanor type.

Fair enough. I just like the current system as it stands, as it seems effective enough.

just some fyi, an opinion from a law professor at UC Berkeley:

.......The Internet has vastly expanded the ability for everyone to reach a global audience, but it has also undermined the investments that sustain development of knowledge and cultural resources. Finding the right balance has proven particularly elusive during the Internet Age. Private enforcement has not been able to quell Internet piracy. As the drafters of COICA recognize, public enforcement of copyright law provides a potentially valuable tool in addressing rampant unauthorized distribution of copyrighted works........

http://www.mediains ute.org/new_si...011/022311.php

[ElNono]

I'm not pretending. I'm flat out calling it petty theft.

What you call it is irrelevant. A willing prosecutor would never sue him for theft. He would be sued under the Copyright act.

Did Marcus Bryant's friends get copies of the book without paying? yes or no.

According to MB's description, yes (with or without paying is irrelevant).

Was Marcus the one who took the copies of the book without paying for them? yes or no.

No, he took no copies, he made them and distributed them (with or without paying is irrelevant).

[LnGrrrR]

To someone who doesn't purchase a music CD, movie, etc etc and instead illegally downloads it, gets to enjoy the experience behind the music, movie etc etc for free.

That person just illegally took that experience from the entertainment company without paying for it.

Theft.

Except the company still has the recording, which means that it isn't QUITE the same as your classic "theft", whereby the original owners no longer have possession.

[ElNono]

The potential for diminished value is part of the reason for laws protecting 'intellectual property'.

Then I'm sure such laws spell that out. Can you cite such laws, and specifically where they address the diminished value?
I'm fairly familiar with copyright, trademark and patent law, and the only thing they do is grant exclusive exploitation rights (copy, distribution, likeness, etc) and remedies in case such rights are violated, including guidelines on what the punitive damages should be awarded, or in case of criminal guidelines, what criminal sentences should apply.

Although it's difficult to prove value in a court of law, common sense (and the courts) say there is a value there that can be lost.
..and one example is enough to satisfy the necessity for such protective laws, imo.

You're talking about a completely different thing altogether now. You're now discussing what's the remedial value in case somebody is caught selling counterfeit items. Nice strawman. At no point the value of the 'original' item changed. The reason is that there's only two en ies allowed to set what the 'original value' is: The exclusive rights holder, or the government by means of limiting the rights granted to the holder under the premise of price control.

I never made the contention that BluRay movie prices fluctuate based on the availability of pirate copies.

Nice strawman.

Not a strawman at all, and sure you did. Your claim is that illegal copies diminish the original value of the item. That implies that a third party (not the rights holder, or the en y that granted the exclusive rights) can cause the value of the original item to fluctuate.

The example is actually completely accurate. Under your premise, a flood of counterfeit copies of The Green Hornet DVDs from China would cause an original copy of the The Green Hornet DVD to fall in value (diminishing the 'original value'). That's not true at all. The 'original value' is still $24 (or whatever it sells for) which is the price the rights holder put on it.
The rights holder can actually sue for much more than the 'original value', since copyright law stipulates penalties up to a certain amount per copy, which are completely unrelated to the 'original value' of the item.

[Blake]

What you call it is irrelevant. A willing prosecutor would never sue him for theft. He would be sued under the Copyright act.

The irrelevance of my opinion was and is irrelevant to the formation of my evolving opinion(s).

If it makes you feel better, based on your resume, I do take your opinion into consideration when forming my opinion on this topic.

According to MB's description, yes (with or without paying is irrelevant).

Paying for the copies the right way is the only thing that's relevant.

If they don't pay, they are stealing.

Again, theft.

No, he took no copies, he made them and distributed them (with or without paying is irrelevant).

I mistyped. Yes, "MB made copies."

You are wrong here however: "with or without paying" is absolutely relevant when considering if it is theft or not.

Not sure how anyone would think otherwise.

[Blake]

Except the company still has the recording, which means that it isn't QUITE the same as your classic "theft", whereby the original owners no longer have possession.

Except that the person that got the experience for free, stole the experience, i.e. the intellectual property.

What's your opinion of someone sneaking into a movie theater? The owner of the theater still holds the original movie, so nothing physical has been taken.

Is it simply trespassing or is it theft?

[ElNono]

Paying for the copies the right way is the only thing that's relevant.

If they don't pay, they are stealing.

Again, theft.

So, if MB's friends paid him, then everything is kosher?
If the publisher sells the book for $40, but his friends pay him 25c, then they're off the hook?

Sorry, it doesn't quite work that way.

I mistyped. Yes, "MB made copies."

You are wrong here however: "with or without paying" is absolutely relevant when considering if it is theft or not.

Not sure how anyone would think otherwise.

Because the actual infringing activity is the copy and distribution, not wether it was for financial gain or not. If the rationale would be that there needs to be a pofit-motive, then none of the filesharers that are downloading songs for free could be sued. But they are.

[LnGrrrR]

Except that the person that got the experience for free, stole the experience, i.e. the intellectual property.

What's your opinion of someone sneaking into a movie theater? The owner of the theater still holds the original movie, so nothing physical has been taken.

Is it simply trespassing or is it theft?

Its not quite theft; after all, I can't recall movie theaters arresting people on the charges of theft for sneaking in to the movie theaters.

Maybe I'm wrong though, could you find an example where that did happen?

[Blake]

Then I'm sure such laws spell that out. Can you cite such laws, and specifically where they address the diminished value?
I'm fairly familiar with copyright, trademark and patent law, and the only thing they do is grant exclusive exploitation rights (copy, distribution, likeness, etc) and remedies in case such rights are violated, including guidelines on what the punitive damages should be awarded, or in case of criminal guidelines, what criminal sentences should apply.

I'm haven't looked up what laws specifically address the concept of diminished value, but the case I just cited showed the court trying to distinguish between lost profits and reasonable royalties.

You're talking about a completely different thing altogether now. You're now discussing what's the remedial value in case somebody is caught selling counterfeit items. Nice strawman. At no point the value of the 'original' item changed. The reason is that there's only two en ies allowed to set what the 'original value' is: The exclusive rights holder, or the government by means of limiting the rights granted to the holder under the premise of price control.

No, it's not a strawman.

As in the case cited, the plaintiff needed to show how the price was devalued and/or how he lost profit.

.......An analysis of lost profits is demarcated by three critical dates: incident, valuation and full mitigation. The incident is the latest event that precipitated the loss. The date of full mitigation of damages is the latest date up to which a loss occurs. The date of full mitigation may precede or follow the valuation date.

Often lost profits results from a decline of sales, after the incident, relative to the trajectory that sales would have followed but for the incident. The plaintiff must exert reasonable efforts to offset the loss and mitigate the damages. Such efforts may result in an increasing trend of actual "with-incident" sales reversing the declining trend. At some subsequent point of time, actual sales may increase sufficiently that profits after that point equal or exceed the profits that would have occurred then and thereafter but for the incident. If so, full mitigation of damages would have been achieved......

http://www.experts.com/showArticle.aspx?Articleid=438

Not a strawman at all, and sure you did. Your claim is that illegal copies diminish the original value of the item. That implies that a third party (not the rights holder, or the en y that granted the exclusive rights) can cause the value of the original item to fluctuate.

I sure did not.

Product A with a patent/copyright/trademark =/= all products with patents/copyrights/trademarks

The Bluray example was all you.

Very nice strawman.

The example is actually completely accurate. Under your premise, a flood of counterfeit copies of The Green Hornet DVDs from China would cause an original copy of the The Green Hornet DVD to fall in value (diminishing the 'original value'). That's not true at all. The 'original value' is still $24 (or whatever it sells for) which is the price the rights holder put on it.
The rights holder can actually sue for much more than the 'original value', since copyright law stipulates penalties up to a certain amount per copy, which are completely unrelated to the 'original value' of the item.

...Unless the price of the DVD is cut because sales have dropped.

Have you never seen an item sold below retail value? If you need an example of such an item, let me know.

Of course, if the price is cut, then the item would have to pass the "Panduit test" in order to prove that the item lost value (or that the owner lost profit) because of those illegal copies.

The "Panduit test" being as follows:

The patent owner's actual losses, measured as the loss of profits, is one possible measure of "damages adequate to compensate for the infringement." Proof of lost profits must include two elements: (1) a showing of causation, i.e. that the patent owner would have made additional sales "but-for" the infringement, and (2) evidence for the computation of the loss of profits.13 Lost profits damages may be measured based upon the causation factors set forth in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc.14 Under the Panduit test, the patentee must prove four factors to establish lost profits.

The four factors are: (1) a demand for the products covered by the patent; (2) an absence of acceptable non-infringing subs utes to the patented product or process; (3) that the patentee possessed the manufacturing and marketing capabilities to exploit the demand; and (4) the amount of profit the patentee would have made had the infringement not occurred.

http://www.sristi.org/mdpipr2004/day3/D3S3R1.htm

Panduit was able to show profit loss.

I don't know how a CD/DVD company can do the same.

[Blake]

Its not quite theft; after all, I can't recall movie theaters arresting people on the charges of theft for sneaking in to the movie theaters.

Maybe I'm wrong though, could you find an example where that did happen?

New York state law:

ARTICLE 165

OTHER OFFENSES RELATING TO THEFT


S 165.15 Theft of services.
A person is guilty of theft of services when:

....

9. With intent to avoid payment of the lawful charge for admission to
any theatre or concert hall...

http://ypdcrime.com/penal.law/article165.htm

[LnGrrrR]

New York state law:

Ah, interesting. Thanks Blake.

Speaking from a completely non-legal standpoint, I can see the "theft of services" to be somewhat synonymous with illegally dloading music.

I don't think it's comparable to "theft" in the normal understanding of the word (ie taking something) but I can see it reducing the earnings of those who hold IP, thereby making it a specific form of theft. (Though I would rather a better term.)

Of course, there's other issues unique to copyright protection.

[Blake]

Ah, interesting. Thanks Blake.

Speaking from a completely non-legal standpoint, I can see the "theft of services" to be somewhat synonymous with illegally dloading music.

I don't think it's comparable to "theft" in the normal understanding of the word (ie taking something) but I can see it reducing the earnings of those who hold IP, thereby making it a specific form of theft. (Though I would rather a better term.)

Of course, there's other issues unique to copyright protection.

I've been saying my stance on copyright infringement = theft has been a non-legal one pretty much all along.

ElNono said this:

Stop referring to it [copyright infringement] as theft then.

I told him " you" and here we are.

[ElNono]

I'm haven't looked up what laws specifically address the concept of diminished value, but the case I just cited showed the court trying to distinguish between lost profits and reasonable royalties.

Which are completely unrelated to your 'original value' claim...

No, it's not a strawman.

As in the case cited, the plaintiff needed to show how the price was devalued and/or how he lost profit.

There's not a single mention of diminished/devalued value in what you posted (I've read both of the quotes you cited, the long and short form. Heck, do a text search).

What you're quoting is what takes place when a rights holder must justify to a judge what the remedy should be for the infringement. Since we established that the 'original value' is really an abstract value fully determined by the rights holder, and a jury can't award an abstract value per infringement, the rights holder needs to explain why it's requesting a specific value per violation (which includes the 'original value' plus any other arbitrary cost they might want to add but have to justify, such as a punitive amount, a perceived temporary loss of market momentum, or other fees).

Throughout the entire process, the 'original value' of the item is still whatever the rights holder decides it is. The counterfeit copies had absolutely no bearing on such value.

I sure did not.

Product A with a patent/copyright/trademark =/= all products with patents/copyrights/trademarks

The Bluray example was all you.

Very nice strawman.

You did not what? Claim that illegal copies diminish the original value of the item? I can quote you on that.

And while patent, copyright and trademark are not interchangeable, the rights afforded to every product under each law is exactly the same.

...Unless the price of the DVD is cut because sales have dropped.

Have you never seen an item sold below retail value? If you need an example of such an item, let me know.

Who 'drops the price' though? Could sales drop regardless of weather there's counterfeit copies?

Correlation does not imply causation...

And the rights holder can sell at whatever value they wish for whatever reason they want. They don't need to compete with counterfeit goods.

The rights holder has exclusive distribution rights. If an influx of counterfeit goods show up, they can simply sue. They retain at all times the ability to set whatever arbitrary 'original value' on their exclusive item (with the government exception I noted previously in another post)

Of course, if the price is cut, then the item would have to pass the "Panduit test" in order to prove that the item lost value (or that the owner lost profit) because of those illegal copies.

The "Panduit test" being as follows:
Panduit was able to show profit loss.

I don't know how a CD/DVD company can do the same.

The "Panduit test" is a four-prong test that's completely unrelated to 'original value' and is to determine damage in patent litigations.

This is how the CD/DVD company goes about arguing the same:

Under Panduit, the CD/DVD company has to prove...
1) There was a demand for the product
2) There was an absence of non-infringing alternatives
3) The CD/DVD company had the marketing and manufacturing capabilities to meet demand.
4) Justify the amount requested for alleged lost-profits due to counterfeit sales.

The 'original value' of the product never changed because of the presence of counterfeit copies. The only en y in control of such pricing is the rights holder. Hope it's a little more clear now.

[Blake]

Which are completely unrelated to your 'original value' claim...

There's not a single mention of diminished/devalued value in what you posted (I've read both of the quotes you cited, the long and short form. Heck, do a text search).

so you are basically arguing that lost value does not go with lost profits.

k, I've admitted that I can't find any law specifically using the words "lost value", but I'll go ahead and keep looking.

What you're quoting is what takes place when a rights holder must justify to a judge what the remedy should be for the infringement. Since we established that the 'original value' is really an abstract value fully determined by the rights holder, and a jury can't award an abstract value per infringement, the rights holder needs to explain why it's requesting a specific value per violation (which includes the 'original value' plus any other arbitrary cost they might want to add but have to justify, such as a punitive amount, a perceived temporary loss of market momentum, or other fees).

I already read up on how the process works, but thanks anyway.

You did not what? Claim that illegal copies diminish the original value of the item? I can quote you on that.

I did not make the specific contention that BluRay movie prices fluctuate based on the availability of pirate copies.

Again, you came up with that example all on your own.

And while patent, copyright and trademark are not interchangeable, the rights afforded to every product under each law is exactly the same.

I have figured as much.

Who 'drops the price' though? Could sales drop regardless of weather there's counterfeit copies?

Correlation does not imply causation...

Agreed, which is why I didn't use a crappy example such as the Bluray strawman you laid out for yourself so that you might have something to finally kick the out of.

The "Panduit test" is a four-prong test that's completely unrelated to 'original value' and is to determine damage in patent litigations.

This is how the CD/DVD company goes about arguing the same:

Under Panduit, the CD/DVD company has to prove...
1) There was a demand for the product
2) There was an absence of non-infringing alternatives
3) The CD/DVD company had the marketing and manufacturing capabilities to meet demand.
4) Justify the amount requested for alleged lost-profits due to counterfeit sales.

The 'original value' of the product never changed because of the presence of counterfeit copies. The only en y in control of such pricing is the rights holder.

I know the process as I thought I pretty clearly laid it out before you did.

What I meant is that I don't know how CD companies in your specific example could prove any kind of tangible loss without more specifics in your example.

They retain at all times the ability to set whatever arbitrary 'original value' on their exclusive item (with the government exception I noted previously in another post)

I finally found the legal definition for you regarding loss of value:

The price erosion theory of damages as used in patent law is the difference between actual costs of goods and potential price. The potential price is the price an item could have realized had there been no compe ion from the infringers.

http://definitions.uslegal.com/p/price-erosion-theory/

this is a fascinating line of work you are in.

I hope I made value loss (i.e. "price erosion") a little more clear for you now. I know it's gotten clearer for me.

[ChuckD]

Blake, you're being a . DLing music is not theft, although it is infringement. If someone breaks into my house and steals my notebook computer, that's theft, because I no longer have possession or use of it. If someone DLs a song, that artist can continue to sell that song and make money off it.

/thread

[Blake]

Blake, you're being a . DLing music is not theft, although it is infringement. If someone breaks into my house and steals my notebook computer, that's theft, because I no longer have possession or use of it. If someone DLs a song, that artist can continue to sell that song and make money off it.

/thread

If a movie theater still has possession of a film and can continue to make money off of it, in your opinion, what do you call it when someone sneaks into a theater and watches a movie for free?

[ElNono]

so you are basically arguing that lost value does not go with lost profits.

If you don't understand the difference between value and profits, then there's not much more to discuss.

Agreed, which is why I didn't use a crappy example such as the Bluray strawman you laid out for yourself so that you might have something to finally kick the out of.

You made a fairly generic claim (that counterfeit copies diminish original value), but you have yet to back up that claim. The problem seems to be that you can't.

What I meant is that I don't know how CD companies in your specific example could prove any kind of tangible loss without more specifics in your example.

What other specifics you need?

I finally found the legal definition for you regarding loss of value:

Again, you're looking at the remedies that can be taken upon finding infringement. The reason why a rights holder might decide to compete with an alleged infringing party (can do it through pricing, or any other means, such as marketing) is when they might not be sure if the goods offered by said party are counterfeit. But, you already stated in your value doctrine that there's no doubt they're counterfeit.

this is a fascinating line of work you are in.

I hope I made value loss (i.e. "price erosion") a little more clear for you now. I know it's gotten clearer for me.

Well, I'm hoping you now have a better idea of why "price erosion" doesn't support your contention.

At this point, I feel we're going in circles. And mostly it has to do with your lack of understanding of how the pertinent laws apply and your general lack of understanding of the exclusive rights granted in patent/trademark/copyright laws. I was in your boat once, so you're hardly a rare case.
If you ever get sued or threatened to be sued under one of those laws (like it happened to me), I'm sure you and your lawyer will catch up rather quickly.

[velik_m]

You will now have to be careful not to steal from doctors too:
http://paidcontent.org/article/419-c...ative-reviews/

[Blake]

If you don't understand the difference between value and profits, then there's not much more to discuss.

I didnt say they were the same.

I did imply/say they can go together.

You made a fairly generic claim (that counterfeit copies diminish original value), but you have yet to back up that claim. The problem seems to be that you can't.

If it looked like I said "all counterfiet copies diminish all original value, each and every time", then my bad.

I have found a court case where the counterfeit copies did diminish original value and the posted the info on it.

We must be missing each other's posts somewhere.

What other specifics you need?

An actual case would be fine.

Again, it was your example, not mine.

Again, you're looking at the remedies that can be taken upon finding infringement. The reason why a rights holder might decide to compete with an alleged infringing party (can do it through pricing, or any other means, such as marketing) is when they might not be sure if the goods offered by said party are counterfeit. But, you already stated in your value doctrine that there's no doubt they're counterfeit.

Well, I'm hoping you now have a better idea of why "price erosion" doesn't support your contention.

At this point, I feel we're going in circles. And mostly it has to do with your lack of understanding of how the pertinent laws apply and your general lack of understanding of the exclusive rights granted in patent/trademark/copyright laws. I was in your boat once, so you're hardly a rare case.
If you ever get sued or threatened to be sued under one of those laws (like it happened to me), I'm sure you and your lawyer will catch up rather quickly.

If I feel like my product lost value because of counterfeits, it would fall under price erosion theory, and I would have to prove it.

I think I got it but feel free to conitnue to tell me I dont.

[velik_m]

BMI Says A Single Person Listening To His Own Music Via The Cloud Is A Public Performance