Just to clarify, the penalty was more for the sharing back out than for the downloading.
I haven't heard of a case where a defendant lost or had to pay damages simply for downloading - the "damages" are only the value of each song, rather than the value times the number of people who could have theoretically downloaded it from them.
It was a peer-to-peer network. Would they sue every single person for sharing with every other person, over and over again? (E.g. if there are 10 nodes, would every one be sued for sharing 9 copies?) That doesn't make much sense.
Yes, it's illegal to distribute copyrighted material against the copyright owner's wishes. It doesn't matter if it's a peer-to-peer network. From both a legal and technical standpoint, there's basically no difference between placing a song on a webserver for people to download and hosting it on a peer-to-peer network.
Also, if your peer to peer network has you downloading the same thing over and over again, then your peer-to-peer network is broken.
>Yes, it's illegal to distribute copyrighted material against the copyright owner's wishes.
Mostly true, but I feel like I must point out that fair use (what narrow legally defined version of it we have, anyways) overrides the copyright owner's wishes.
Not that this applied here, but it's an important point anyways.
In a peer-to-peer network, it may be the case that 10 peers each share 1/10 of a file to 10 other peers. Would each of the sharing peers hold full responsibility for sharing the file even though technically they only delivered 1/10th of it. I would expect awarding damages to hinge on this kind of hair splitting.
This case was based on the "making available" theory, not actual sharing, right? Under that theory, if each peer was offering the whole file they could be fully liable for infringement.
In areas of tort liability, it's routine for there to be a determination that party A is liable for X%, B is liable for Y%, etc..
Historically, I don't think this would come up as much in copyright law. General torts often involve a confluence of events triggered by multiple actors, whereas copyright violations have usually been clearly the act of a single person or entity, so I'm not sure there's much case law around this.
If 10 people are sharing a file, it is kinda questionable that should result in 90 instances of pirating (9 x 10) when there's only 10 people and 1 song involved.
I guess you could argue that if 5 people worked together to steal a car, they all get charged with attempted theft of that car. In other words 1 person doesn't get charged and 4 get to go free, or they don't all get charged with attempted theft of 1/5 of a car.
I would think though that could be an argument against the supposed lost revenue. I'm sure the content companies are doing the math to show the highest figures possible.
That's exactly my point - it doesn't seem right that the industry should be able to claim large amounts for every person involved because they would be getting an exponentially larger amount of money than the actual damages.
Using the car example, the car owner shouldn't be awarded 4x the value of the car just because 4 people were involved.
The trial (and damages) did seem to hang on the making available idea, so I guess the defense would have to prove the songs were not made available to anyone who didn't already have them. That sounds hard.
Also, it's still copyright infringement to provide a copy to someone even if they already have it. I cannot, legally, provide a rip of a CD to anyone who has a cassette tape of the same album.
Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:
Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, "ripping" an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)
Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.
If you own it, you can "pirate" it all day long. If I have a legitimate windows product key, it doesn't matter if the ISO comes from the pirate bay, microsoft, or usenet. I have a license, and format/distribution medium isn't relevant.
You, along with most people, do not understand how copyright works.
Yes you can backup or transfer your copy to other formats or media. But you cannot redistribute that copy to others, even if those people have a license for it.
And yes, archival and format-shifting is possible because of fair use clauses, but those clauses do not extend to redistribution of the work as a whole, even if done for noble purposes and in the public interest.
And even in cases where you could redistribute parts of the work, with the purpose of criticism or parody, the end result and intent matter a lot when judging if fair use clauses apply or not.
Everything regarding fair use is definitely in a gray area and is highly dependent on the issue at hand. However, from what I've seen, archiving is allowed as long as redistribution doesn't enter the picture.
The judge held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works".
Under US copyright law (Title 17 Section 107), "fair use" is defined as "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research", and then only upon consideration of these qualifications:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Thank you. For some reason, people come out in droves to correct the notion that copyright infringement is not the same as stealing, but when someone says downloading instead of uploading, it's like, oh, that's the same thing.
The difference between copyright infringement and stealing is that copyright infringement does not deprive the owner of his own copy, this being a really important feature of digital goods (btw, I'm not saying here that copyright infringement should be legal).
On the issue of downloading/uploading - that's just a technical detail that's being hidden away in modern protocols and clients, such as BitTorrent. When downloading torrents, everybody is an uploader.
I can see a clear difference here between a user that just wants to download some movie he likes and somebody that makes money out of it, or somebody that's interested in "sticking it to the man".
Just as when committing murder there's a big difference between something premeditated and something done by negligence. The difference is that of intent.
The data by itself has no meaning, unless interpreted.
So the question should be, did the user have any intent on sharing/distributing the creative work to others, or was he just a user of a protocol he didn't understand, ending up uploading just because that's how the protocol works?
A lot of non-technical users do not know that they are uploaders when using BitTorrent. They just have a client installed by a friend and upon clicking a link the download begins, just as it would through HTTP or FTP.
And I see a clear distinction here between somebody doing that, or somebody that does it for the money or for glory. For instance we have a lot of prowlers in my city that sell pirated CDs at street corners to people that are passing by. The PirateBay is also filled with movies shot with a web cam in a movie theater, done with the express intent to redistribute those movies, either for money or for the thrills. Many times movies that were distributed as press releases end up on the PirateBay in DVD-quality long before the DVD was released. A lot of hacked copies of Windows are also on the PirateBay, many times with customizations and mallware included. And so on.
There are many shades of gray here. You can't put all the people in the same bucket. And I think that the people that should get punished are those that start the redistribution chain in the first place, not kids, not grandmas, and not the online services that act as the middleman (many times without their knowledge).
This is another reason why I think DRM is a misguided and broken attempt to fix piracy, when watermarking is so much better from all points of view.
I haven't heard of a case where a defendant lost or had to pay damages simply for downloading - the "damages" are only the value of each song, rather than the value times the number of people who could have theoretically downloaded it from them.