Lord Lucas Proposes That Copyright Holders Detail Actual Damages From Infringement Under Mandelson Bill
from the smart-man dept
As the debate over Peter Mandelson's Digital Economy Bill (which would represent a radical shift in copyright law in the UK) continues, it appears that Lord Lucas continues to propose all sorts of good ideas in response. You may recall that Lucas was quite explicit in questioning why such changes were needed when it was obviously the industry's inability to adapt that was the problem. Later, he suggested adding a remedy for bogus copyright claims. His latest is to try to add an amendment that would require copyright holders to detail actual damages done by file sharing in their reports to ISPs notifying them of infringement.This is a very sensible idea for a variety of reasons. Last year, we wrote about a fascinating paper that points out that, realistically, the only way to reconcile free speech with copyright law is to have copyright holders prove what damages were caused by the infringement. Every other limitation on free speech in the US (defamation, for example) has such a requirement. It makes no sense that copyright makes no such requirement. Now, obviously, the UK is different from the US and not bound by the First Amendment, but it's hard to come up with any compelling reason at all that a copyright holder shouldn't have to prove actual damages before making a claim of copyright infringement.
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Filed Under: copyright, digital economy bill, lord lucas, peter mandelson, uk
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1 single copy of a song can turn into millions of copy of a song. Should a file sharer be in part responsible for all of them?
Those millions of copies could lead to lower sales. If this album sells less than the last album, should file sharers pick up the difference?
What happens if a deal is lost to put the music in a movie or use it in a commercial because of the song being too widely available for free? Who should pay for that?
How do you even measure it right?
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Also remember one download != one lost sale. (not equal)
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If you can't prove harm then there should be no penalty. Otherwise known as "No blood, no foul"
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Double negative ....
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I think Lord Lucas's point is that if you can't prove what the actual damages are, it's better to err on the side of restraint.
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It did give me an idea. For the next file sharing care, we close down the internet, and inspect every computer system attached to see who has the file. Then we charge the infringer $10 per copy, with no upper limit.
It will take a few months, but I suspect that it will resolve the issue of losses once and for all.
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It would make the tenenbaum judgement look like pocket change,
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Ok, either you're joking, you're on meth, or you're truly an idiot. Why should we shut down the entire internet due to something as useless and harmful to society as intellectual property?
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I accept your point that the effects are hard to measure, but that doesn't mean the Lucas proposal isn't sensible. The reason I reach a different conclusion than you is that for me, having the majority of file-sharing cases fall apart or result in vastly lower damages is an acceptable one.
For me, the scenario is not that there's clearly some sort of damage and we just have a hard time getting a precise number. It's that it's not clear that there's any actual damage at all.
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That still doesn't mean that those were lost sales. They may have even generated sales. Maybe each of those users is owed a sales or promotion commission instead.
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At $10 per copy, with no upper limit. :)
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I don't know how the British handle these things, but the U.S. has long accepted such "fuzzy math" as sufficient to prove actual damages.
Most famously, see the Texaco v. Pennzoil case, where Joe Jamail somehow proved that Texaco's interference with Pennzoil's attempt to purchase Getty Oil merited $7.5 in actual damages (this does not include punitive damages).
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One "illegal" upload of the song does NOT equal one lost sale. That person might listen to the song and then not like it and delete it. They might never have bought the song to begin with.
Also, for the people who DO enjoy the song, they might go and actually purchase the album as a result of hearing and enjoying the song. How does your examination of all computers account for that? You're going to count how many of the people with the mp3 ALSO have the album? What about people who made mp3 files of THEIR OWN albums? (like I do with all my albums)
ALSO, what about (as suggested by others) the increased exposure of the song due to the freely obtained copies that leads to MORE fans of the musician and thus INCREASES the musician's income due to concerts, goods, and such?
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> of losses once and for all.
Other than the blatant violation of the 4th Amendment, you might have a point.
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This may come as shock to you, but the Internet is international and the US Constitution isn't.
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> and the US Constitution isn't.
This may come as a shock to you, but if they're shutting down the internet and forcibly examining everyone's computers (like Anti-Mike suggests), then that necessarily involves all the computers in America, and would be a illegal as a violation of the 4th Amendment.
The rest of you can look after yourselves.
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Only in America, which wasn't the statement, was it?
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That doesn't even make any sense.
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That doesn't even make any sense.
Are you really that confused, or are you just pretending?
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Are you serious? I don't think you are.
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Yeah, it's kind of hard to show that something exists when it doesn't, isn't it? That's why it's so much easier to just make stuff up.
Those millions of copies could lead to lower sales.
Or they could lead to higher sales.
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There are about 7 billion people on Earth who could potentially purchase the song. Let's say 1 million people buy the song. That means about 6,999,000,000 people must have pirated it. There simply is no other explanation. Multiply that by, say, 14 songs on a CD (you wouldn't want to steal from the music companies, er, I mean Artists, by not buying the whole CD would you?) allowed damages, etc, etc. etc. Multiply that by the number of albums released in a year, and you see that the damage to the music industry is in fact greater than the entire global economy! The taxes we would theoretically be paying on this would wipe out all of the debt of all of the nations of the world! (assuming we weren't above the law and didn't have to pay taxes. Did I say that out loud? Forget I said that...) Based on this, The Music and Movie industries request that the governments of the world create a global copyright enforcement agency (at taxpayer expense, of course. The media companies, I mean artists, are the victims here.) who are authorized to execute anyone who isn't sufficient enriching the coffers of the media companies or if they are accused 3 times of infringing copyright (Three Strikes and You're Dead! policy)
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It shows how dumb these infringement claims are, as well as the inferences media execs makes (e.g. 1 download = 1 lost sale).
That was your point, right?
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This is a correct statement - finally from the one and only TAM.
Too bad he overlooked the obvious.
1) IPAddr != a person
2) joining a swarm != copyright data transfer
3) infringement cops send out notices based upon IPAddr in the swarm
4) etc, etc
So, yes - it is very difficult to show that a particular person has done any harm at all.
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The point is, until you figure that out, shouldn't Free Speach trump copyright? As Mike points out, every other restriction on Free Speach has requirements that much be fulfilled before speach can be stifled.
If this album sells less than the last album, should file sharers pick up the difference?
That seems way beyond reasonable. Maybe the album just wasn't as good. You can't hold consumers responsible if you produce something of low quality, right?
What happens if a deal is lost to put the music in a movie or use it in a commercial because of the song being too widely available for free? Who should pay for that?
It sounds like you're asking "if a liscencing deal doesn't happen, who pays for it?" If it didn't happen, then there's nothing to pay for, right? You can't fine people because your product wasn't purchaced.
Nevermind that you're neglecting the possibility of net-positive effects of file sharing, as noted by others above. If the album sells significantly better than the last, are you going to give all those file-sharers a cut of the difference?
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Defamation
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It did give me an idea. For the next file sharing care, we close down the internet, and inspect every computer system attached to see who has the file. Then we charge the infringer $10 per copy, with no upper limit.
It will take a few months, but I suspect that it will resolve the issue of losses once and for all."
and once your econemy sinks to the bottom of the bottomless pit then what? with the industries and services that rely on net acces your pretty much cutting off your nose to spite your face.
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In the end, I think the 3 strikes idea is an attempt to avoid this sort of legal tiddly winks. The theory being that most people would stop after warning #2, or at least learn to be way more discrete.
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File sharing is a bit like a pyramid scheme, a very few people at the top and within a few layers, you have most of the planet involved. Someone sharing a song even once potentially has a hand in all of those other "shares". So now, is the person who shares a file once liable for all that comes from their sharing? It is clear that without their action, there might not have been this sharing. So if they didn't help a dozen people get a copy, and those dozen in turn didn't help a dozen, and so on... everyone in the chain is part of the process that makes millions of copies.
The problem is you can delete that one copy off of their one computer, but you haven't dealt with the digital tail of copies that emanated from their single copy.
The other question is the one of harm. It's a red herring, as far as I am concerned, because unless the artist (or rights holder, whoever they may be) approved the song for sharing, the act of sharing is in itself harm, even if it contributes in some odd way to the artist being better known or whatever. It is the artist/right holders choice, not anyone else.
Presumed damages also involve to some extent a deterrent factor. I cannot picture Joel Tenenbaum setting up a torrent server. The judgment against him is clearly in an amount that would deter future bad acts. The amounts are likely never to make the rights holder "whole", because as I mentioned above, even if you shut down Joel's computer, the echos of that share will go on forever.
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It should have been significantly higher as piracy hasn't really stopped. Or slowed.
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all those people trading today turn around and trade it again tomorrow. It isn't like everyone gets together once for a single trade around, it is an ongoing process. Even when you stop sharing a song, parts of what you shared are in turn being reshared, over and over again, to another group of people, who in turn share it on to other groups.
If a song is made up of, I dunno, say 5000 pieces, and you share 1 piece with 5000 different people, you just contributed to 5000 violations. When each of those people share your piece, that is 5000 more violations you are part of.
It's an unavoidable process. It never stops either, as little pieces of the pieces are forever moving around. It's a chain of events that never stops until everyone has the file, or until nobody offers the file online anymore.
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This does not change the fact that all users are (on average) all equally responsible for what is being shared.
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Someone apparently doesn't understand basic mathematics. If you count each one down the line, you are double counting. That's not the way the law works. It's not the way common sense works.
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Each of them is 'equally responsible' .. that means you divide the total 'damage' (5000 violations) by the number of filesharers involved (5000)
5000 / 5000 = 1
And you don't get any more copyright violations by counting each partial download of a file either.. 5000 connections sharing an average 1/5000th segment of a file still only works out to one full file per downloader
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In fact, I am using the Mike Masnick theory of file sharing: You aren't sharing the whole file with any one person. I am just taking it to the logical conclusion that each block is shared with a different person.
5000 blocks means you shared at least part of the file with 5000 people.
When those people each share their "combined" file (from 5000 other users), and then share you part out again, that means you piece goes to 1 more person. Since you sent out 5000 pieces, that means you pieces are now with 10,000 people. It just goes from there. Even if the original sharer only shares a single file one time, he is part and parcel of 5000 infringements on the first go around, and 5000 more, and so on.
Zcat: Your math fails for one reason: Without each piece, the infringement would not be complete, the file wouldn't work,and thus it would fail. Each piece is just as important as the next. By sharing 5000 pieces, the user is directly involved in 5000 infringements, and a contributor to however many more times those pieces are shared again.
So in the end it isn't one infringement, but participation (conspiring with others) to generate 5000 infringements.
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"We received a call about a possible infringement, copyright infringement. Turned out to be true so we had to arrest the lot of them."
"How many?"
"Around 245,000,000 people. The worst part is the paper work."
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That's why your reasoning is wrong. If all 5000 users are sued, the damages claimed will be completely disproportionate.
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The cost of proving damages should be bourne by the plantiff.
Also, does everyone else think Lord Lucas is some kind of smear against George when they come across it? Just us Yanks? OK, then.
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Sorry, but fail, as the cost of determining the damages would in fact be a damage itself, so the plaintiff would just pass it off to the defendant. Under your idea, the harder it is to prove, the more work involved to prove it, the more expensive it would get for a losing defendant.
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Yes, regardless of whether they actually did anything to begin with.
I imagine that nasty HP laser printer would stop infringing immediately upon receipt of the second notice - don't you ? As would the dead guy and the gramma who doesn't even own a computer, and the three year old and the ....... it will not stop and you just do not understand that do you?
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No, we just need to change it so that it's one-way, from approved content suppliers to consumers, like cable TV. Making the Internet an open two-way peer-to-peer network in the first place was the mistake. Nothing a few new laws can't fix though.
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Troll Be Gone
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That's his job.
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Isn't it? Have I been misinformed about The Anti-Mike?
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Take Harry Potter books
Damages from downloads.
As there is no legal digital copies, there can be no lose of sales for illegal downloaded copies.
If the publisher made digital copies avalible then there would be a lose.
This would cause the media produces to get with the times.
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My problem how?
If it seems absurd to expect the plaintiffs to, using accurate numbers (and putting the method by which those numbers were arrived at on the record to be challenged by the respondents), demonstrate the harm done to them, then perhaps that's because it's absurd for them to claim that there has been harm where there is no proof of harm.
It's like if I were to sue someone for beating me over the head with an invisible, non-corporeal giant hammer on the basis of my assumption that had the giant hammer been visible and corporeal, man I would have had huge medical bills and since the basic behavior of hammer hitting was the same I should totally get the money for my bills, emotional damage, and other stuff because I mean you can't just go around hitting people with giant hammers and I can't believe so many people are in favor of that or at the very least something that, though invisible and non-corporeal, is totally the same thing only on a way bigger scale because you guys just think of how many more non-corporeal invisible giant hammers can fit in a given amount of space than actual giant hammers and we have to do something or else we'll all be imaginary bludgeoned to imaginary death.
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Re: My problem how?
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Sense
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