First, it does indicate a problem with the copyright system when such a large number of people (+50%, per Free Culture) are 'felons' under US law and liable for hundreds of thousands in damages.
Second, wouldn't it be reasonable for the bank robbers to request that they're not sentenced to death for robbing banks? Can't they argue the punishment doesn't match the crime?
First, it does indicate a problem with the copyright system when such a large number of people (+50%, per Free Culture) are 'felons' under US law and liable for hundreds of thousands in damages.
While I agree with your conclusions, the logic here is flawed. If everyone started shoplifting, for example, it wouldn't indicate a problem with the laws that people are now criminals.
(Sidenote: Only a small number of people are felons on account of copyright. Under US law, to be a felon you have to have been convicted of a felony.)
Goddammit, I knew someone was going to trot that line out.
You see, I never said copyright infringement was shoplifting, or related to shoplifting, in any way. Just because someone uses the words "copyright" and "shoplifting" in the same post doesn't mean that they are saying copyright infringement is shoplifting.
In my above post shoplifting was only an example. My post makes just as much as sense if I replace shoplifting with murder and copyright infringement with cannabis possession. Or shoplifting with arson and copyright infringement with being left handed.
The underlying logic I quoted is what was wrong, not the categorisation, so stop jerking your knee.
Your argument demands an obviously immoral crime in order to work. You used shoplifting because everyone agrees that is immoral. You are begging the question.
If you replaced shoplifting with cannabis possession then the line "If everyone started smoking pot, for example, it wouldn't indicate a problem with the laws that people are now criminals" isn't nearly true. In fact, you could argue that alcohol is legal, while cannabis is not, is entirely because everyone does it.
1. I don't agree with the statement "shoplifting is necessarily immoral" so it makes no sense for my own argument to hinge on such a fact.
2. My argument does not only work for an immoral crime; it is merely illustrated by an example of a law people think is not wrong. Shoplifting is merely a counterexample to the logic "If X is a law that a lot of people break then X is a bad law". I do not take this on to conclude that X is not a bad law which would be begging the question.
3. The original logic was begging the question, not I. The statement "If X is a law that a lot of people break then X is a bad law" only holds if X is already a priori a bad law (and, even then, it requires a few more statements to actually work).
> Shoplifting is merely a counterexample to the logic "If X is a law that a lot of people break then X is a bad law"
Perhaps if 90% of the population shoplifted, then any law against shoplifting would be bad. What is missing from the question is why the majority of the population would shoplift.
That is a very valid line of reasoning and one that I would implore everyone to explore in such a situation. But, as you said, "perhaps". It does not directly follow that it is necessarily a bad law.
> If everyone started shoplifting, for example, it wouldn't indicate a problem with the laws that people are now criminals.
Yes it would. Laws are not “good” or “bad” in a vacuum; they’re just the written-down versions of agreed-upon social relations – specifically, agreed upon by whoever in the society has enough social and economic power (and in a democracy, votes) to get a law enacted and enforced.
At the point where “everyone” was shoplifting, we’d be in some kind of social situation where the strictures against stealing had completely broken down. This happens sometimes, for example in rebellions or disaster zones. When there’s a revolution and a mass of people loot, throw out, kill, etc. existing power-holders, it quite clearly “indicates a problem” with the previous set of laws in the society, no matter how vehemently those elites protest. Usually, in modern democracies, we have enough mutual respect and a sufficiently broad distribution of power that things don’t get to the point of complete breakdown of order.
In this particular example, where there are fines in the $100Ks for something that most people have done and don’t consider bad, there’s quite clearly a problem with the law.
Not really, no. Laws should fit the society, not the other way around. Laws that lock up everyone are unjust laws, no matter the crime. Everything else would be a misguided adherence to laws.
The flaw there is that the only reason copyright exists is to benefit the public. If the public is finding it's against the current copyright laws, it's copyright that should change to suit the public, not the other way around.
I agree with your second statement but that does not imply the first. Your second sentence leads to a different conclusion: Such a situation indicates that causes should be examined. It does not indicate what the cause is.
Shoplifting is something diffrent because you cant copy something in a store. You dont take anything away from somebody when you copy (exept an abstract right).
If I could copy a car for basiclly nothing I probebly would too.
It's not a binary, single-axis issue. If people think their taxes should be lower, it could mean a number of things:
- Taxes are too high
- Government service is too poor
- The government is not doing an adequate job of informing people how much benefit they get from paying taxes (Europe seems to do much better in this regard, based on reading HN comments from Europeans).
- The government is not transparent enough in how taxes are allocated.
A representative democracy. There's a reason the public generally doesn't vote on the budget and in places where they do (California) it has not gone well.
If the job of being in government was just to ask the people what they want and then deliver it, being a politician would be very simple. In reality people want a lot of things, some of which may be incompatible (lower taxes/better services). We elect people to filter through the noise and make sensible judgements about how we should collectively move forward.
Also, the people who are supporting a referendum led form of government should consider that in most places, the majority of the population would advocate policies which may infringe on your personal liberty. I'm no fan of populism in my politics.
The current laws allow huge fines per song. Download about $100 worth of music (~6 CDs), get hit with over $500,000 in fines. That's simply overkill. A fine of less than $100 (even on a per-song basis) would make the punishment fit the crime.
The quick summary is that statutory damages are between $750 and $30,000, at the court's discretion, except in the case of willful infringement, wherein they go up to $150,000 per work. Conversely, in cases where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright", damages may be reduced to "no less than $200."
I am troubled by the fact that you consider the entirety of America to be copyright infringers when the study only indicated that 46% (plus/minus 2%) of americans actually did so. That leaves 53% of non-copyright infringers who think agree with the copyright infringers (assuming all copyright infringers agree that fines should be under $100).
Your statement also brings up the question of whether something that an entire population (according to you) is doing should even be illegal.
Copyright laws are so extreme I don't see how you can avoid breaking them. Singing a popular song in a crowded place? You owe performance royalties to the songwriter. Use a song as a soundtrack to a Youtube video? You'll be lucky if they just take your video down, that's commercial-scale infringement! Maybe huge fines, or thousands of dollars in settlements.
The survey didn't just ask Americans who download music; it asked Americans in general. The results from the article suggest that many Americans (48%) don't think this should count as a crime at all.
The fines for pirating music are ridiculous. I remember reading somewhere that the fines for pirating Prince's entire discography are more than Prince has made from those albums. Where's the sense in that?
These fines were never paid. It's like saying that all the popcorn in a movie theater would cost more than the theater itself. It doesn't make much sense to compare the two numbers.
Even better than the statistic quoted in the title, 48% of Americans don't believe any fine or other punishment should exist at all. The quoted statistic actually refers to 75% of the remaining 52%.
This is actually the larger issue -- that piracy isn't viewed as something that should be illegal. The fines are just a detail of applicable punishment, and exorbitantly high fines are a distraction.
personally, i think that anyone caught infringing should pay a fine equal to the cheapest retail price (over say, the past year) of the thing infringed(like for like, if you pirated the hd version of a movie, you have to buy the blu ray or hd dvd version. if you took a cam'ed version, you have to buy a movie ticket), iff they do not already own it.
yeah, there's a whole bunch of issues that would have to be ironed out and yes, there's no proof you would have even bought whatever you infringed on in the first place, but i feel like its a much saner starting point than what we have now.
That would encourage piracy. If you pirate a movie right when it comes out, that's $20 or so, but after a year, it gets closer to $10. So: pirate it now, pay next year's price in the worst case!
no, past year based on the time of infringement, not time of conviction, so if you pirate it June 25, 2011, you pay the cheapest price between June 26th, 2010 and June 25th 2011.
Sure but how is that different from now? aside from the cost of the fine, there really isn't, and I'd argue that the specter of a large fine is having little effect on piracy anyway.
A lot of the time, the size of the fine (or the prison sentence) is a function of the probability of being caught.
As an example, let's say the economic gain of a single instance of movie piracy is $25, only 1% of all pirates are caught, and the cost of prosecuting someone is $1,000. So you charge a $250,000 fine, and that gets people's attention. Economists talk about indifference curves in place of regular price curves.
No, I'm just introducing this to give you an idea of why those bizarrely large fines exist in the first place. The economic theory is that law should incentivize people to act a certain way, and that if the odds of prosecution are low than the deterrent effect has to be made up on the sentencing side instead.
I must be misunderstanding your proposal, because on the face of it that seems to be so colossally ridiculous that I can't believe it is what you intended. Did you misstate your proposal?
There would be virtually no disincentive to infringement under that proposal. Why not just propose eliminating copyright?
Not having to deal with court, which could be a significant time and/or money drain. I agree that that isn't a huge disincentive, though. I think that money and effort would be better spent going after producers of infringing content instead of users or distributors.
I think that making it harder to come by the infringing content by going after the people who produce it is a better way to fight this problem than going after everyone who wants to use it.
Not that I agree with his proposal, but youre assuming that someone wouldn't pirate something that they weren't willing to pay money for. That almost certainly isn't true for a significant population.
While that is just plain common sense, there are still problems. If the fine is no great hardship and your chance of getting caught is less than 1%, it's rational to always infringe rather than pay. Raising the rate of enforcement would be hard since $100 doesn't cover the court costs and thus the industry would be losing money on every case — even ones they win.
so then why not go after the people producing the infringing copies instad of the people using/buying them? weren't the original copyright laws created to prevent book publishers from printing a book that they didn't have a copyright to print and then selling them? producing infringing content, be it physical or digital, is a completely separate matter from using infringing content.
I was thinking of P2P file sharing, where regular people are the ones making the infringing copies. In P2P I think downloaders should have some responsibility since they request that copies be made. But it goes without saying that professional infringers should also be punished.
I would argue that distributing is a different issue from producing. In the p2P case you used, I see the producer as the person who prepares the data and/or originally seeds it. Everyone else is just a distributor.
"In P2P I think downloaders should have some responsibility since they request that copies be made."
why do you just limit it to P2P? Are people who buy pirated movies or pirated books guilty of the same crime?
Are people who buy pirated movies or pirated books guilty of the same crime?
I think it's important to remember that non-commercial distribution is a civil matter, _not_ criminal. That is no small distinction as it determines who will bare the cost of enforcing these rights. Criminal matters are funded by the tax payer.
is non-commercial production civil or criminal? i assume commercial production would primarily be a criminal proceeding , though the victim is also able to sue for damages and reimbursement. Is it the same for non-commercial production?
As we know, however, people simply aren't the rational economic agents that the economic giants of yore held them to be. Most people would be happy to pay if the legitimate product was better and more convenient than the pirated version. It isn't.
See Gabe Newell's take on piracy. Valve's certainly done well in that respect.
I'm not sure I get your point. If someone finds the legitimate product is not better or more convenient than the pirated product, isn't the rational choice to go for the pirated one?
Because no penalty is functionally the same as a $0 fine, which is well under $100. (if there are nth-time offender bumps to the fine price, then they become different, but that is not studied here).
Oh come on, where are there so many copyright apologists here? Even if you're a capitalist the concept of intellectual property doesn't make any sense.
Don't be blinded by the abuse of copyright by megacorps. The idea that if someone works hard on something, they ought to have some commercial control over it is sound. Imagine you wrote a 1000-page novel. Isn't it reasonable for the government to grant you exclusive publishing rights for 14 years? It certainly seems like a sensible incentive for you as a creator. It's hard to make the case that you deserve nothing simply because copying bits is easy.
If you intend to make money from your novel, it's your responsibility to find a way to capitalize on it. Obvious approaches include collecting funding/reservations in advance or asking for donations after the fact.
If you release a digital copy of your novel online, it's quite likely that at least a few people will copy it. However, there's also a pretty good chance it will attract more future customers.
Right, so if you provide a service you can charge what the market will bear but if you provide an art that happens to be convertible to digital form you need to get on your knees with your hat outstretched and beg for your income.
Do you people actually think about what you're saying?
Society has no obligation to make your preferred business model profitable.
You don't have a right to make profit, only to try.
In this case copyright only exists as an explicit tradeoff by society in order to gain other benefits. If those benefits can be obtained cheaper and/or without the limits imposed by copyright through other means, or if society decides the tradeoff is not worth it, then tough.
Yes, but we don't have a completely free market. We can (and do, all the time actually) put in place rules and regulations that make favorable things which would not be under a completely free market. This can include laws against doing things you could do for free, such as copying some digital media and giving it away for free.
I personally don't think it's an unreasonable restriction until some way is figured out to compensate creators of digital media for their efforts that doesn't care about digital piracy. I do have a problem with some of the efforts that are being put in place to enforce these rules though, much in the same way I have a problem with the TSA.
The proper response here is for artists to stop producing until society decides art is worth paying for. Begging like a homeless person is not a business model.
This has to be one of the worst analogies on the subject I've ever seen. To fix it we would have to invent a device that can scan something the plumber has done and then recreate it on demand.
At that point, after years and years of studying to be the best plumber he can be, Joe Plumber goes out and does a job only to have some joker come up, scan his work and then provide his own plumbing service for 1/4th the price. How is Joe Plumber to compete? He could try dropping his prices to 1/4th but then the joker will just drop his again (since he has nothing invested he can do this). At some point, no one would be stupid enough to invest in learning to be a plumber ever again. Everyone would just get this magical copy device. Of course, the problem is that when that finally happened we would be locked into whatever we had when the last plumber stopped producing.
To fix it we would have to invent a device that can scan something the plumber has done and then recreate it on demand.
It's called China, and that's why prices for units of work in most industries have been falling, in real terms, for the last 30 years.
An author's unit of work is the same unit of work as a plumber's; the difference is that, in the author's case, the client is not the real client: the work is commissioned by a reseller (the editor), and the reseller wants to enjoy all the advantages of cultural work (low costs, infinite duplication) without any of the downsides. Whenever they find a downside, they force a law to remove it artificially.
Most people who write novels never make any money of them, because they never get published.
Most of the ones that do, makes a pittance.
The percentage of authors that actually makes a living publishing novels is vanishingly small.
If the possibility of making lots of money writing novels is a big incentive for you, presumably you're the type of person who also think they have a good shot at making it big in Vegas.
I'm not necessarily dead set against copyright, but if these people are largely incentivized by money, then society could solve that issue far cheaper and with far fewer restrictions than what copyright provides for, and still pay these people more money than they get today, by creating grants awarded based on some measure of popularity.
Even if a novel is unlikely to have great commercial value, I see a great benefit to short term copyright that provides meaningful but limited control over the work to the creator. It's difficult to know what will be valuable in advance.
Now, the current copyright of "life of the author plus seventy years, and oh, wait, is that expiring? on second thought, let's go ahead and add another fifty years unless we decide to go ahead and tack on another fifty years at some point in the future"... that is utterly unjustifiable.
But keep in mind, even the EFF put out a comic satirizing both extremes IP protection ("information, like, wants to be free").
You have completely and utterly missed my point. Look at it this way:
Why should the only person rewarded for a digital good be the best salesman? Without copyright, anyone who writes a book will immediately have it taken by a big publishing company with the best distribution channels and be crushed in the market. The little guy will never be able to compete with that. Whatever small chance at financial reward from writing now will be replaced by the ability to get a contract in place with the dominant market leader before you even start writing. Sure some people will still write for the love of writing, but it will be the kind of thing that terrifies parents even more than does now, and it will be discouraged by popular opinion.
Honestly, what is the argument against giving someone limited exclusive rights to their own work? 14 years was the original term of copyright, and that doesn't seem like an unreasonable time to wait for something to enter the public domain, after which we all get the full public benefit. Again, just because Disney lobbied for and raped the law doesn't mean it's not a good idea.
I think the ridiculousness of software patents has caused a disproportionate number of hackers to go totally fundamental on the concept of intellectual property even though there is a very strong common sense legitimacy to certain forms of it.
If people are more annoyed by parking tickets than by people parked in the places where they prevent traffic and provoke accidents, then we should consider toning those down and/or making rules less strict.
But I guess that if the problem really exists, people would be pro big parking ticket fines, because a minority who get those also annoys the whole population.
The trouble is that the parking tickets may have caused the decline of the number of people parked in places where they prevent traffic or provoke accidents. In that case, the major annoyance is gone and the parking tickets is only the new minor annoyance, but now the biggest, that took it's place. Reversing the amount or height of parking tickets will not cause a decline in annoyance then.
You don't seem to understand that as long as enforcement isn't 100%, the cost of punishment must exceed the cost of compliance if it's going to deter violation.
If the only cost of overrunning a meter were paying the amount of the overrun, any economically rational actor would simply never pay meters. If he doesn't get caught, he's parked for free; if he does get caught, he pays only what he otherwise would have.
The civil penalty for laws like unpaid parking meters and illegal downloading of copyright works should be slightly greater than the original cost times the inverse enforcement rate. If we catch 1% of parking meter cheaters, they should pay at least a hundred times their overrun to ensure that it's economically rational to pay meters. Since we need only deter humans, not "economically rational actors", we can take risk aversion and incomplete knowledge into account and probably decrease that fine somewhat.
The same principle that applies to parking meters applies to copyright infringement.
I'm more concerned about does the cost of the punishment fit the crime. Using your formula if the original media costs $1 and only 1:20000 people are caught it makes the case that a $20,000 fine is perfectly reasonable. This I disagree with.
Your assuming you need to deter violation. Many organisations like the red cross operate just fine despite the free rider problem. Personalty, I don't support copyright for Music performances period end of story, and I doubt the vast majority of musicians would notice a difference.
However, more generally the final penalty needs to be adjusted by the penalty associated with being prosecuted. If the penalty is 1,000$ / song, but you need to go to court to defend yourself then the effort associated with that court case is also part of the penalty of enforcement. Also, because your fine can't drive you past bankruptcy ridiculous penalties have little meaning (this plays into the last banking bubble. I can sell a trillion dollars worth of insurance far below costs if I don't have a trillion dollars because my downside is limited to the value of my assets.)
The "economically rational actor" thing has been debunked long ago (see Kahneman and Tversky). There are much better ways to get people to behave the way you want then appealing to their statistical skills.
Surveying people on what fines anything should be is ridiculous.
I once made the mistake of surveying people what software product prices should be. Surprise surprise the average was about $15, which I suspect was just as much as they could say without actually asking for free.
Unless I actually need it for business (in which case it makes me money) I wouldn't pay more than $15 for most applications or games. Photoshop, MS Office, AutoCAD, Maya, Quickbooks yes. Quicken, Toast, and games >$20, no.
You're not properly representing the large fraction of people who think the fine should be zero. It's kind of confusing unless you read it carefully, but 49% of people do not support fines at all. That pie chart you're copying only represents the other 51% of the population.
I mention that not to quibble with your formula, but because people seem to be seeing that chart and missing that part of the explanation.
In a real democracy the majority would actually make the laws. A fine of $100 sounds fair, it is still a punishment and would be much more acceptable to police heavily (and with less lawyers involved). I would be fine with automated fines of $100 being handed out to people downloading a file illegally and I think that would be a more effective deterrent than the present lawsuit madness that rules copyright.
> I would be fine with automated fines of $100 being handed out to people downloading a file illegally and I think that would be a more effective deterrent than the present lawsuit madness that rules copyright.
And then enough people challenge the fines to break the system. You still have to guarantee some form of trial.
There's plenty of precedents for fines that become much more expensive if you challenge them in court, because being found guilty by a court indicates a higher degree of confidence in the finding.
That seems (in the US) to violate one's constitutional right to a trial. That is, exercising one's right to a trial should not increase the potential punishment, as doing so is a deterrent against exercising that fundamental right.
I don't see how your second sentence follows from your first. I don't see how appealing a charge may not result, after findings of fact, in conviction of charges more serious than those initially charged.
First, AIUI the government doesn't get to appeal in criminal cases. If a trial goes against them, that's the end of it.
Second, the right to a trial is enumerated in the US constitution. Anything that discourages people from exercising that right, such as a fine that increases as a result of choosing to have a fair trial rather than just paying after being accused, is an affront to that right.
IMO one should never be okay with automated fines of any kind, especially on the Internet. There is far too much potential for false positives, and too much difficulty identifying when a particular download is illegal.
Not to mention, there would be a very strong incentive for the hosts of pirated material to find ways of bypassing the fines and blocking their crawlers. Griefers will install malware on others' computers that downloads illegal songs just to incur $100 fines.
Think of a system that works much the same way as speed cameras work in some countries. You deter the majority of people from speeding in a particular area. You automate an amnesty into the system for certain types of vehicles (emergency services, military, diplomatic) but instead put a protection on publicly owned computers, libraries, schools and charities (which, IMO, should not have to pay for copyrighted works anyway and it is already too much effort to enforce). Create an independent arbiter to handle false-positives and exceptional circumstances without any direct connection to financial interests (a government, funded by the fines or industry funded). Send the remaining money to the copyright holder.
There is the same incentive now for blocking MediaSentry and the like, why would the change escalate this? Griefers already do this too but usually with material far more illegal than music.
The present system doesn't make sense. It should not be OK for a company to bankrupt someone over something that can be legally purchased for a minimal amount. Both enforcement and defence against enforcement are too expensive, time-consuming and economically pointless. Having an efficient system is better than having an inefficient system.
There is no universal database of copyright information. The major copyright holders (major record labels, studios, etc.) are ridiculously complex to deal with already. Throw in minor publishers, and independent copyright holders, and what you describe isn't just difficult, it's impossible.
You automate an amnesty into the system for certain types of vehicles (emergency services, military, diplomatic) but instead put a protection on publicly owned computers, libraries, schools and charities (which, IMO, should not have to pay for copyrighted works anyway and it is already too much effort to enforce).
Simple workaround: set up an automated, anonymous service that pays all college students to run Tor endpoints in their dorms and libraries. Or, set up a charity that provides free Internet access to the poor, and use its spare bandwidth.
Create an independent arbiter to handle false-positives and exceptional circumstances without any direct connection to financial interests (a government, funded by the fines or industry funded).
You're talking about creating a huge bureaucracy with this system. That's not the kind of make-work job creation we need. Besides, we already have independent arbiters in the courts.
Having an efficient system is better than having an inefficient system.
Having an efficient system with false positives is far worse than an inefficient system with false negatives. I'm opposed to speed cameras for the same reason I'm opposed to automated punishment or automated surveillance of any kind: enforcement of laws should be person vs. person, as a matter of principle. Without the direct human connection, it is too easy for those with the power of enforcement to go significantly overboard.
People love getting hung up on definite numbers, it's weird. All fines should be a percentage of income. A parking ticket for a billionaire should be thousands of dollars. Again: the exact number doesn't matter in this discussion, what matters is that it should hurt appropriately. $100 hurts appropriately...for who knows who.
Determining the algorithm should be the responsibility of mathematicians, economy professors and with input from social workers. All walks of life.
The punishment should fit the crime, not the criminal. If parking for too long isn't that big a deal, then no one should be fined thousands of dollars for it.
Well what's the bad thing about doing a crime? The damage done. So, the punishment should be in proportion to the damage. You don't punish someone for being "bad" inside, and the point of the punishment isn't to cause some emotional effect.
No, that is exactly what punishment is for. Punishment is made to influence us humans, because we are the ones who do bad stuff. It is a fundamental principle of the universe that nothing changes unless pressure is applied, so we try to apply larger punishment than the damage done, hoping that it will prevent further wrongdoings from the same person.
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