

Tenenbaum Appeal Heard: Is It OK to Make Someone Pay $675K for 30 Songs? - grellas
http://www.techdirt.com/articles/20110404/22551013777/tenenbaum-appeal-heard-is-it-okay-to-make-someone-pay-675000-downloading-30-songs.shtml

======
Construct
It is refreshing to see judges questioning the nature of the charges and
exposing the fact that current copyright laws weren't really developed with
file-sharing in mind.

 _One of the judges immediately jumps in and says that Congress could have
made an exception, but didn't. Harrow points out that perhaps it didn't
because the result would naturally be absurd: the idea that someone sitting at
home, listening to music, would suddenly be liable for billions of dollars,
doesn't make any sense._

Even worse, the RIAA has not (to my knowledge) provided any evidence that
Tenenbaum actually distributed the works, only that he made them available by
participating in a BitTorrent swarm.

~~~
tzs
This reminds me of a classic case in torts. Three hunters went out. They got
separated so that you had two on one side of clearing, one on the other. A
bird took off between the two groups. The group of two shot at the bird. One
got the bird, and one got the third hunter.

The third hunter sued the first two for his medical expenses. The first two
each raised the defense that there was no proof that they were the one that
shot the third. They each maintained that they were the one that hit the bird.

They were both found liable. One had actually shot the third. The other, by
taking a reckless shot in that direction at the same time, had made it so that
the identity of the shooter could not be determined, thus creating the
situation that made it so blame could not be accurately assigned.

It seems to me that putting a copyrighted work up on P2P without authorization
from the copyright owner is similar. You are doing something that can only
serve one of two purposes: (1) to directly infringe copyright, or (2) to
obscure who is directly infringing copyright.

Arguably, copyright law could be read as covering this. 17 USC 106, the
section that lists the exclusive rights of the copyright holder, says the
copyright holder has the exclusive rights to do those things and to authorize
those things. I wonder if one could argue that when you put a file up on P2P
without permission, you are authorizing the distribution of the file, and so
violating the exclusive right of the copyright owner to authorize distribution
(regardless of whether or not anyone actually grabs the file from you)?

~~~
radu_floricica
And I'm sure the third hunter got his medical expenses reimbursed - not an
arbitrary amount of money based on the best case scenario of what he could
have done with his time.

The problem here isn't the blame, it's the fact that the maximum possible
damage the defendant inflicted (price of song x no of downloads) is still much
lower then the prescribed penalty - probably order of magnitudes lower.

~~~
Silhouette
> The problem here isn't the blame, it's the fact that the maximum possible
> damage the defendant inflicted (price of song x no of downloads) is still
> much lower then the prescribed penalty - probably order of magnitudes lower.

I'll concede you that point if you'll let me impose mandatory monitoring of
all Internet use sufficient that everyone else who subsequently shared the
file can also be caught and fairly prosecuted.

Otherwise, the viral nature of infringement _does_ matter, and trying to cap
the damage in absolute terms as you have done here is no more realistic than
trying to claim the astronomical sums based on a loss of hypothetical sales
that Big Media keep arguing.

~~~
nitrogen
Regardless of the viral nature of any behavior, a mere participant in the
network should not be responsible for the behavior of others.

Edit: I think this raises a larger question: in the modern technology-enabled
world, where large-scale crimes can be committed in a distributed fashion and
in most cases there is no kingpin to take down, what is the law to do, and
what are the people to do, since each individual person is causing very little
of the total damage? I don't think holding the members of an organization
responsible for the crimes of other members of the organization works in this
case, since there is no organization.

~~~
Silhouette
> Regardless of the viral nature of any behavior, a mere participant in the
> network should not be responsible for the behavior of others.

I don't think it is fair to dismiss the viral nature so lightly. For example,
it is not completely unreasonable to consider in law that the _first_ person
to share material _is_ ultimately responsible for everyone who subsequently
copies it, since without their action, the other copies would not have been
possible. By the same argument, it is not completely unreasonable to hold
_each_ person in the network responsible for the future distribution that
occurs based on the sharing they did.

Now, that might not be very practical, if you have to demonstrate the number
of copies that were ultimately made base on a single original. Moreover, in
some cases, it might lead to large damages awards, which we might or might not
consider sensible given the relative power of the parties involved and the
nature and consequences of the illegal act.

On the flip side, the bottom line is that the copyright holder is the one who
is not breaking the law in these cases, and if you don't provide a practically
effective way for them to enforce their rights under the law, then the
innocent party is losing out. (I am not contending that Big Media are saints
or that they should not be held accountable for any legally or ethically
dubious practices they might adopt. I just think that is a separate debate.)

> I think this raises a larger question: in the modern technology-enabled
> world, where large-scale crimes can be committed in a distributed fashion
> and in most cases there is no kingpin to take down, what is the law to do,
> and what are the people to do, since each individual person is causing very
> little of the total damage?

Exactly. It is a difficult question. I just don't personally buy the theory
that the wronged party, who typically has practical access to redress only via
civil lawsuits that probably cannot be cost-effectively brought under many
western legal systems today, should be the one that loses out.

I think the presumption should be that the network are collectively liable for
the actual damage caused, that in the absence of ability to read minds it is
reasonable to assume one actual (not hypothetical) copy has a value equivalent
to the cheapest legitimate purchase price, and that the proportion of the cost
paid by any individual member of the network should be such that a copyright
holder can expect to regain their actual losses (but no more than that)
through reasonable legal means.

That basically means that if you infringe but it is possible for the copyright
holder to trace the consequences with reasonable effort, you will personally
only be responsible for the damages that can be proven attributable to your
own sharing, which will probably be a significant deterrent but won't be
bankrupting most people with the kinds of silly awards we see today. On the
other hand, if you actively choose not only to break the law but to do so via
an anonymising network that can cause unknown damage with the intent of
concealing your own and your accomplices' identities, then if you're the guy
they catch, it sucks to be you.

~~~
nitrogen
I think that the legal system and major corporations will eventually have to
follow the lead of some distributed computer systems, and just accept some
small losses here and there in pursuit of greater gains elsewhere (I'm
thinking of how Netflix embraces nondeterminism in its* distributed systems).

 __I keep wanting to use "their" instead of "its", mixing the US and non-US
notions of whether a corporation is a singular or plural noun. _

~~~
Silhouette
I agree that both the law and the corporations need to adapt to reality today,
which is not the same as reality a few decades ago. However, I think the
particular analogy you gave there is flawed, for a reason you mentioned
yourself before: there is no "kingpin" to take down in a typical P2P network
or similar system, so where do the "greater gains" come from?

In my ideal dreamworld, copyright would be updated to reflect the way the
world really works today, which I think essentially means a much shorter
duration for copyright protection, but with a genuine effort to make it
practically enforceable during that period, and toning down some of the
blanket laws that mean services that exist primarily to help copyright
infringement can effectively hide behind some cheap legal shield to cover
their asses.

------
tobylane
I sometimes count my music library in terms of money saved (in the insane
world that a pirated album is a lost sale), it's currently something like £8k
because I really have no idea of how many albums I have.

Should I start counting by how much I'd get sued? It's over a third of a
trillion going by this court.

~~~
techiferous
I've always been suspicious of the ethics of pirated music and I sincerely
want to know how people who pirate music justify it. From my perspective, a
musician put forth a lot of effort and cost into creating a piece of music. At
that point, I consider that the musician owns what they have created and can
choose whether to keep their music to themselves or share it with the wider
world. From my point of view it is the musician who gets to decide what they
want to do with their work: sell it through a record label, sell it
independently, give it away for free. As a consumer of the music I don't think
it's in my place to make the choice for the musician about what they want to
do with their work. Is there something I'm missing? Am I framing it the wrong
way? Or am I right in thinking that people who pirate music are unilaterally
making the decision for the original musicians on how their work should be
distributed?

~~~
waterhouse
In my case, I believe pretty strongly in property rights, and I believe
intellectual property rights (as they are called) are incompatible with real
property rights. Therefore, "pirating" anything is at least legally
permissible. I don't intend to argue that point; you asked to understand and
I'm explaining how I think.

> _From my perspective, a musician put forth a lot of effort and cost into
> creating a piece of music._

And, sure, it would be nice if this musician were rewarded for his efforts--if
it became a financially viable operation--and if he (or aspiring musicians who
know of his example) were encouraged to make more good music. However
(according to my view), once he puts his music into digital files and someone
puts it on the internet (which is more likely the more popular his music
gets), he has no legal way to compel anyone who downloads it to pay him for
it. At this point, I'd say, "Yup. So he'll have to be somewhat creative (or
get good at performing live or something) if he wants to make much money as a
musician."

Yes, it's possible that few people will pay him, and he'll be forced to go out
of business (at least partially) as a musician. Sure, that'd be unfortunate
(assuming his music was good), but that's the way it is. You may say, "This is
unacceptable! There needs to be a legal fix for this situation." I say no; if
you looked around and thought for a while, you'd see that situations like this
are really not so unusual.

Suppose I'm a student at a school and I'm a member of some club (math club, if
it makes a difference), and I come up with a fundraising idea: host a dance on
the Friday after exams for the academic quarter are over, provide food, and
sell tickets. And it's a success: the math club makes a good profit, and we
expect to do even better next time. But, now, when the next quarter rolls
around, a different club with more advertising capability sets up their own
dance and attracts most of our attendees away. Their dance is an even bigger
success, our second dance turns out a loss, and we in the math club have no
reason to expect the same thing won't happen again next time, so we
discontinue our dances. Now that other club makes a profit and we get nothing;
had I realized beforehand that this would have happened, I might not have
bothered.

This is _unfortunate_ , isn't it? But I don't think even the most hardcore
pro-copyright, pro-patent advocate would claim that I or the math club had the
_right_ to a share of the other club's profits, nor that they were infringing
on anything that could be called my "intellectual property". Our only recourse
would be this: we could go to the other club, say, "Hey, you guys are
benefiting a lot from what was our idea, and we're getting nothing; you really
should cut us in on some of that," and if they said, "No, fuck you," then we
could spread the story and smear them as ungrateful jerks (which they would
be). Also, threatening to smear them as such might induce them to pay up. But
legal action? No.

Suppose Apple spends a large amount of time and money on research and
development, and it concludes that a) PC's are going to be displaced by tablet
computers and b) a tablet computer should optimally have a x b x c dimensions.
Then other companies simply trust Apple's judgment; they cut their PC R&D
budgets, start developing tablets, and make them approximately the same size.
Their products are successful, and they suffer little when PC's do eventually
decline. Again, no one could claim this is intellectual property violation
even under today's laws. But these other companies are benefiting from Apple's
hard work, and Apple has no way to demand (and get) compensation.

And suppose I set up a big museum, and it's very successful and brings in a
lot of visitors. Many of these visitors buy food at shops next to my museum. I
have brought the owners of these shops a lot of customers that they wouldn't
otherwise have gotten; they are benefiting from my hard work, and I have no
way to make them pay for it. (This can't be intellectual property--it doesn't
even have to do with _ideas_.)

So there are cases where someone can do a bunch of work and make something
good, and other people benefit a lot and the original person gets very little
in return, and yet this person has no legal recourse to make his beneficiaries
pay him. These situations _happen_. They'd be less likely to happen as the
people in a society become more prosperous, generous, and civilized--which
suggests what I consider to be the proper solution.[1] On the other hand,
trying to patch over these situations by fucking with the legal system is
asking for all kinds of trouble (and we're getting it). I'd hate to see the
legal system that resulted when someone patched over every case I listed
above.

[1] In the math club example, if the people in the second club were nicer--or
if the main body of students had a strong sense of fairness that would be
offended by ungrateful jerkishness, and the second club cared about their
image--then the problem would be solved.

Now don't take this to mean that my beliefs are utopian and therefore
irrelevant. I've said that the default situation--that there are cases where
people make great things and benefit many others but get little in return--is
_unfortunate_ , but a _fact of life_. Clearly I don't think the world is
perfect or humans are perfect; nor do I expect them to become perfect in the
near future. I said that things would become _better_ , that unfortunate
situations would become less common or less unfortunate, to the extent that
civilization advanced and humans became more generous. I consider this an
excellent reason to _want_ to improve the human condition, to make everyone
more wealthy.

(Oh, and, if someone goes around claiming that people who pirate copyrighted
stuff are "criminals", "thieves", "depraved"--or, for that matter, on the same
level as actual pirates who board ships, kill people or take hostages, and
steal or wreck the stuff on the ship; or if someone goes around attempting
(sometimes successfully) to use the legal system to extract or extort huge
amounts of money from "pirates"; then I'm most certainly not going to feel
like an ungrateful jerk if I fail to compensate them for downloading something
they made.)

~~~
asher
Great post. However, with regard to Apple choosing certain dimensions for a
tablet, it is probably patentable. The claim would cover a device with length,
width and height within certain numerical ranges. Of course, the invention
must be novel and non-obvious. If the ranges are specified too narrowly, the
competitor can just make the device bigger or smaller. But if the range is
specified too widely, it may include a prior art device, which would
invalidate the claim.

Here's an interesting link on numerical ranges in nanotech patents:

<http://www.elkfife.com/view_article.php?id=9>

(Warning: EU != US)

------
mdemare
Please correct the title. Tanenbaum is the renowned ast of Minix fame;
Tenenbaum is the hapless guy being sued by the RIAA.

------
Locke1689
For anyone listening to the oral arguments, I was really impressed by Paul
Clement and really unimpressed by the EFF. The law student (Harrow) was fairly
convincing as well, although it seemed like he needed a bit more practice.

~~~
mattdeboard
I was listening to the facts of his arguments, not the quality of his
elocution. Paul Clement vis a vis Paul Clement's arguments was utterly
unimpressive.

~~~
Locke1689
I disagreed with him in many places, but I still thought he made a good
argument.

------
mdemare
It's not in the article, but the case is being heard by the First Circuit.

------
joshes
It's okay if the Justice Department has the back of your entire industry.

