Compared to the example I gave of what I defined as "rampant", I would say no...... which is probably why there was no jail time.
Compared to the example I gave of what I defined as "rampant", I would say no...... which is probably why there was no jail time.
Was there a fine?
exactly.
I'm not pretending. I'm flat out calling it petty theft.Interesting you pretend that's petty theft though...
Did Marcus Bryant's friends get copies of the book without paying? yes or no.
Was Marcus the one who took the copies of the book without paying for them? yes or no.
apparently so.
Pretty excessive one, imo.
Except it's not, since theft tends to involve taking something. If you would stop insisting upon calling it theft, that would help your case.
Hmmm an excessive fine. I'd agree.
Now, when the lawsuits were up to the people whose music/movies were dloaded illegally, we can agree that it would be in the best interests of said company to only spend mine prosecuting high-volume dloaders, correct? A natural sort of "check and balance".
What's to stop the govt from going after these small-time piraters?
The potential for diminished value is part of the reason for laws protecting 'intellectual property'.
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.How does unauthorized copies diminish 'original value'?
Give me some examples.
..and one example is enough to satisfy the necessity for such protective laws, imo.
...........The analysis is guided by the landmark case Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978). This requires demonstration of demand for the infringed product, plaintiff's production and marketing capacity, plaintiff's profit but for infringement, and the effect of substitute products on sales, if any.
The analysis considers whether plaintiff would have charged the same price as defendant on defendant's sales and how the defendant's sales may have caused erosion of plaintiff's price on sales it retained due to additional competition from defendant. Conversely, plan{tiff may not have lost all of defendant's sales, but for the infringement, because the higher but-for price may have limited but-for sales. Plaintiff may have also lost "convoyed" sales of unprotected products usually sold because of customers' demand for the patented product. In general there are no future lost profits in a patent case because plaintiff will be awarded an injunction against additional infringement. If the patent is close to expiration, however, defendant's entry before expiration may reduce plaintiff's post-expiration sales and cause future damages.
Panduit defines a reasonable royalty as an amount that would enable the licensee to earn a reasonable profit when viewed from the perspective of the beginning of the infringement. Panduit also refers to Georgia-Pacific Corp. v. US Plywood-Champion Papers, 446 F.2d 295 (2d Cir. 1971) for further guidance. Georgia-Pacific states fifteen criteria to consider in estimating a reasonable royalty rate. Georgia-Pacific's broadest criterion concerns conducting a hypothetical negotiation as if the parties would have been willing to negotiate a licensing agreement when the infringement first occurred. Apart from the hypothetical negotiation, actual royalties received on the patent in suit, if any, or paid by the infringer on similar products are to be considered. Other criteria concern the specific terms of the license, the patentee's licensing policy and the competitive or complementary business relationship of the parties. The effect of the patented item on convoyed sales is another criterion.........
http://www.experts.com/showArticle.aspx?Articleid=438
I never made the contention that BluRay movie prices fluctuate based on the availability of pirate copies.Do the prices of original BluRay movies fluctuate based on the availability of pirate copies? Do you have anything that remotely backs up your contention?
Nice strawman.
Last edited by Blake; 05-02-2011 at 02:40 PM.
lol
what do you think I've been arguing this whole time?
my whole 'case' has been that copyright infringement of this nature is theft.
If I stopped calling it theft, this thread would have probably died at page 2.
...and yes, that example is an example of theft because Marcus Bryant's friends took something that wasn't theirs' to take without paying for it.
Maybe the fact that no one has agreed with you would give you a hint...
If we go by your idea that duplication is tantamount to theft, then what is the difference between copyright theft and ACTUAL theft?
Probably.
Just curious, and I have no answer myself, but which do you think is financially harder on a company.........a large number of small timers or a small number of high-volume dloaders?
Myself, I don't really have exact figures to what the volume cut-offs should be for small timers, medium timers and big timers......What's to stop the govt from going after these small-time piraters?
but that aside, why shouldn't the govt bring small timers to court if they are caught?
Are they or aren't they breaking the law?
the number, or lack thereof, of people in this thread agreeing with me is irrelevant...
......but I did give a list of reputable names earlier in this thread that do agree with me.
not much, just legal semantics.If we go by your idea that duplication is tantamount to theft, then what is the difference between copyright theft and ACTUAL theft?
A small number. The high-volume dloaders are most likely the ones sharing out those files as well. As well, it's much easier to go after the few high-volume ones than to try and get every single small-volume person.
A few reasons:
1) The government has better things to spend their time/money on.
2) The fines are likely to be exorbitant.
3) Civil liberties will likely be eroded in the name of this law.
Yes, but that doesn't really prove your point. People break the law every day. Have you ever sped on the highway? Park illegally? Etc etc?
Probably, because the fines for said punishments are (relatively) reasonable. If the fine for speeding were suddenly raised to $15,000, would you consider that a "fair" fine? After all, speeders are breaking the law, right? Is that fine sensible?
Which is where it breaks down somewhat. There is a tangible difference in the two cases: in one case, the original owner of the material still has the material, in the other case, the original owner of the material NO LONGER has the material.
You don't think that makes a difference?
I mean 'which might make up the most in possible lost revenue'?
always a good reason.A few reasons:
1) The government has better things to spend their time/money on.
Doubtful that they would be anywhere near as exorbitant as they currently are in civil cases.2) The fines are likely to be exorbitant.
what civil liberty would erode?3) Civil liberties will likely be eroded in the name of this law.
yes.Yes, but that doesn't really prove your point. People break the law every day. Have you ever sped on the highway? Park illegally? Etc etc?
all small time offenses that some people would say "the government has better things to spend their time/money on".
I haven't really argued what would and what wouldn't be a fair punishment.Probably, because the fines for said punishments are (relatively) reasonable. If the fine for speeding were suddenly raised to $15,000, would you consider that a "fair" fine? After all, speeders are breaking the law, right? Is that fine sensible?
I've only argued what should and what shouldn't be illegal and that copyright infringement is basically theft.
Not much of a difference imo, and I explained (to you) why some several pages back.
I also equate a lot of the minor copyright infringement with petty theft, which at the bare minimum in Texas is a class C misdemeanor........about the same level as a speeding ticket.
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?
And your basis for that belief?
Off the top of my head, I'm not sure. Perhaps gov't scanning of P2P networks?
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.
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.
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.
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.
If the claims are nebulous and yet record companies are still winning in a court of law, then blame the court system.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.
I still see the need for laws and enforcement of them regardless.
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.)
Fair enough. I just like the current system as it stands, as it seems effective enough.
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.
ok, I would agree.
I would also think that the max 100k fine is also not your standard class C misdemeanor type.
just some fyi, an opinion from a law professor at UC Berkeley:Fair enough. I just like the current system as it stands, as it seems effective enough.
.......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.mediainstitute.org/new_si...011/022311.php
What you call it is irrelevant. A willing prosecutor would never sue him for theft. He would be sued under the Copyright act.
According to MB's description, yes (with or without paying is irrelevant).
No, he took no copies, he made them and distributed them (with or without paying is irrelevant).
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.
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.
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 entities 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.
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 entity 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.
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.
Paying for the copies the right way is the only thing that's relevant.According to MB's description, yes (with or without paying is irrelevant).
If they don't pay, they are stealing.
Again, theft.
I mistyped. Yes, "MB made copies."No, he took no copies, he made them and distributed them (with or without paying is irrelevant).
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.
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?
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.
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.
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?
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.
No, it's not a strawman.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 entities 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.
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=438I sure did not.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 entity that granted the exclusive rights) can cause the value of the original item to fluctuate.
Product A with a patent/copyright/trademark =/= all products with patents/copyrights/trademarks
The Bluray example was all you.
Very nice strawman.
...Unless the price of the DVD is cut because sales have dropped.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.
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:
Panduit was able to show profit loss.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 substitutes 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
I don't know how a CD/DVD company can do the same.
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
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