

Judge: 17,000 illegal downloads don't equal 17,000 lost sales - habs
http://arstechnica.com/news.ars/post/20090119-judge-17000-illegal-downloads-dont-equal-17000-lost-sales.html

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lallysingh
I'm a little tired of this 'file sharing is theft' argument. It's not a
physical item, and it doesn't compare to taking such a thing from a store.

What's being taken is the opportunity to make a transaction. It's more like
blocking the entrance to a store. The problem with that analogy is that we
don't have some traditional method for accounting that loss. If you did that
in real life, you'd be prosecuted for trespassing or something similar.

Which is the point -- there isn't a traditional method for accounting of that
loss, and any analogy that enables one is wrong. In the case of file sharing,
the prevention of sales is the only crime being committed, and people hate
doing the math/research on something like that.

~~~
bena
I'm tired of the 'it's not a physical item' argument.

What about services? Can services be effectively stolen? They are not a
tangible good, yet people pay a lot for services alone (see management
consultants). So if I have someone perform a service for me and I don't pay,
have I committed theft?

And in essence, isn't that what we're paying for when we buy
music/games/video? The services of those who made the thing, because without
their work and effort it would not exist. You are using these services (the
playing of music in this case) without paying for it, you are stealing their
services. And in that case, it could be argued that 17k downloads equals 17k
counts of theft.

~~~
xiaoma
_"You are using these services (the playing of music in this case) without
paying for it, you are stealing their services. And in that case, it could be
argued that 17k downloads equals 17k counts of theft."_

Following that logic, I've just robbed Beethoven's corpse by listening to
_Moonlight Sonata_.

This line of argument fails because using information doesn't prevent others
from doing the same.

~~~
bena
Beethoven was compensated during his time for composing Moonlight Sonata
through patronage. Artists today do not have patrons anymore. Or you can
consider the public at large the patrons of artists.

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froo
Completely offtopic, but anyone else notice all the alliteration that was
going on with names?

Judge James Jones & Daniel Dove

I felt like I was reading some kind of silly comic book, where the RIAA was
the villainous organisation (You know, like how evil organisations generally
have acronym names)

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andreyf
Rest of world: um, duh?

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mattmaroon
Well, that's true, but the same is true of televisions. Most people who steal
a TV weren't going to otherwise buy one. Nonetheless if someone stole 100 TVs,
you'd sue them to recoup the sale price of 100 TVs, not the one they might
actually purchase.

Granted the RIAA suits are ridiculous anyway, but either pirating is stealing
or it isn't. If it's stealing, it doesn't matter what the markup was or how
much they would have paid. If it's not stealing, then let's dismiss the whole
case and move on.

~~~
fallentimes
It's not the same as stealing (even if it is still a crime) because those 100
TVs couldn't be sold to someone else.

See also, this picture:

<http://danhau.posterous.com/not-not-stealing>

~~~
mattmaroon
Hence my second paragraph.

~~~
fallentimes
You can't dismiss it though since it's still a crime. It's not like they're
all frivolous suits; the damage calculations are just off.

Granted, IMHO suing your customers is retarded, but at least the cases have
some logic behind them.

~~~
mattmaroon
Right, so there should be no restitution at all, only punitive damages. Court-
determined fractional restitution is scary. Our legal system has better uses
of time and money than trying to figure out how many of those 17,000 people
would have purchased the album, especially since the answer is zero if you
count other avenues of piracy.

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vaksel
would be interesting to see what kind of fine it'll end up with. $.99 per file
or something like that?

~~~
gravitycop
_what kind of fine [...] $.99 per file or something like that?_

17,281 album downloads x $7.22 per download = $124,769.

 _At the time, Judge Jones sentenced Dove to 18 months in prison for each
count, plus a special assessment of $200 and a $20,000 fine ($10,000 per
count).

However, the RIAA and Lionsgate Entertainment had both submitted requests for
restitution—they had argued that each individual copy of content downloaded
through Elite Torrents was the equivalent of a lost sale. For example, the
RIAA said that 183 albums were transferred through Dove's server 17,281 times,
then multiplied that by the wholesale price of a digital album in 2005 ($7.22)
to conclude that its member companies were owed almost $124,769 in
restitution, or $47,000 if Dove agreed to be part of an RIAA "public service
announcement" about piracy. Similarly, Lionsgate said that it owned copyrights
to 28 of the 700 or so movies that Dove served up—Lionsgate argued that Dove
caused the movie industry to lose some $22 million, and since Lionsgate owned
copyrights to about 4 percent of the available movies, it was owed $880,000._

~~~
vaksel
I meant in the future, after all the lawsuits and stuff...what kind of fine a
person would get for downloading a song

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mhb
I wonder how this judge would value the damage of stealing fruit from a
grocery store considering wholesale price, retail price, spoilage of
inventory, that the thief might not have bought the fruit if he hadn't stolen
it, etc.

~~~
latortuga
I don't really want to argue about this all over again but I would be remiss
to not mention that property and data are not easily equated. To answer your
supposition, he probably would value the damage of stealing fruit as the
market value of the fruit and possibly the loss of sales from not having the
inventory. It's pretty clear that the second consideration does not apply to
music.

~~~
mhb
I'm not interested in that argument either. I am specifically asking what this
judge would take into account besides the retail value of the fruit. The
grocer obviously doesn't sell all his inventory. Would the damage calculation
take that into account? What if the thief chose pieces of fruit which other
customers were not likely to buy?

~~~
emmett
If the grocer was suing the thief in civil court for restitution, that's
exactly the kind of calculation the court would have to do.

However, in our court system, thieves are generally tried in _criminal_ court,
not sued for restitution. That's why copyright cases (usually civil) are so
different from real theft cases (usually criminal).

~~~
gravitycop
_However, in our court system, thieves are generally tried in criminal court,
not sued for restitution._

Restitution is a normal part of criminal sentencing. <http://legal-
dictionary.thefreedictionary.com/restitution>

_In criminal law restitution is a regular feature in the sentences of criminal
defendants. Restitution in the criminal arena refers to an affirmative
performance by the defendant that benefits either the victim of the crime or
the general public. If a victim can be identified, a judge will order the
defendant to make restitution to the victim. For example, if a defendant is
convicted of stealing a person's stereo, the defendant may be sentenced to
reimburse the victim for the value of the stereo, in addition to punishment
such as jail time and monetary fines._

~~~
emmett
Restitution can indeed be part of a criminal suit. However, copyright cases
are generally _not_ tried as criminal suits; they're RIAA vs. Joe Schmoe.
Thievery cases are tried as criminal cases. Different standards are applied in
each case.

