German Judge Fines Father Because He Didn't Tell His Kid Not To Engage In Piracy
from the going-to-fine-you-so-hard-your-dad-will-feel-it dept
Time for German parents to have "The Talk" with their kids. Unprotected sexual activity is probably fine. But casual seeding? That's a problem.
TorrentFreak reports that a German court has decided to hold a parent responsible for his child's infringing activity. This doesn't have much to do with the rightsholder being unable to extract fines from a minor, but rather a perceived parenting failure.
In a case before a Leipzig court the defendant denied having downloaded an audiobook, as he wasn’t home at the time of the infringement. His wife and 11-year-old son were, and as the case progressed it became clear that the latter was the offender.
Nonetheless, in a rather unique verdict the court decided to hold the father liable. Although it’s not uncommon for parents to be held responsible for the actions of their children, the court specifically referenced a lack of anti-piracy education.
The father countered that he had instructed his child to be safe out there -- to not do anything "dangerous" or "download random things." Apparently, that's not good enough, not when entities like GEMA roam the post-fatherland, slapping kindergarten classes with licensing fees, and courts show a willingness to hold registrars responsible for the illegal activities of their registrants. It appears that parents are supposed to act as anti-piracy educators -- a burden that usually falls on rightsholders and their representation, many of which have lobbied for intellectual property instruction to be inserted somewhere between the second and third "R."
In her order the judge writes that for proper parental supervision, it’s required to “instruct a child on the illegality of participating in illegal file-sharing exchanges, and to explicitly prohibit this behavior.”
To do otherwise is legally "negligent," according to the court. And it hinted the father lied about the computer use instructions he gave his child, presumably in hopes of avoiding fines and fees.
This is a ridiculous conclusion. Courts aren't going to be policing parental anti-piracy instruction until well after the fact, if at all. At that point, all it takes is a sworn affidavit to shift the culpability back on the child, and, at that point, the court is just going to shift it back to the parents of the minor defendant. There's no statutory basis for this sort of instruction and it's something that's (a) better handled by rightsholders and (b) likely to be just as ineffective in preventing piracy.
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Reader Comments
The First Word
“Re: Yet again, the ONLY position of Techdirt and its faithful fanboys is that ANYTHING which might reduce piracy is totally wrong.
If you write a book, you are not owed money by anyone for doing so. You cannot force people to buy your book just because it exists. You wrote the book, now you have to do the labor of enticing people to buy a copy of it. Once you can convince people to pay you for a copy of your book, you have to do the labor of handling the money, including the paying of taxes and such. (You can outsource some of this, of course.) Once the money starts drying up, you have to do the labor of either enticing more people to buy your book or writing a new book and beginning the cycle anew.
You are not entitled to the fruits of your labor — you are entitled only to the labor itself.
made the First Word by Ninja
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While we're at it...
Car manufacturers will be held responsible for anyone who speeds using their products, as they could have told those buying not to speed, and could have created their cars in such a way that it was impossible to speed, but chose not to.
Property owners will be held responsible for anyone that trespasses, as they could have put up signs telling people to stay out, and could have put in place fences such that it was impossible to trespass, but chose not to.
Labels will be held responsible for anyone who infringes on their copyrights, as they could have told people not to engage in copyright infringement, and could have even explicitly forbidden it, but didn't.
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...and kids *always* do what their parents tell them, especially what they're not physically with them at the time they're tempted to do something different? Why has no parent thought of this before, all juvenile crime would be eliminated!
I wonder if it's possible to compile a figure on the amount of money and time that's been needlessly wasted by ineffective court action in service of the entertainment industry's refusal to join the realities of the modern marketplace. I'd be willing to bet it's higher than any objective proven figure that industry can come up with for their "losses".
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Shouldn't we aim higher?
So here are my 5c in this blame-shifting exercise.
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Re: While we're at it...
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SON
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If an 11 year old vandalised something, threw rocks through windows or something similar, the parents would be legally responsible for compensating the owners, such as paying for repairs.
So if a minor received a fine of some type, the parents would be responsible for paying the fine.
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To an extent, yes, the problem here is less 'what did the kid do' and more 'what did the parent not do, according to the judge'.
Nonetheless, in a rather unique verdict the court decided to hold the father liable. Although it’s not uncommon for parents to be held responsible for the actions of their children, the court specifically referenced a lack of anti-piracy education.
The judge seems to be ruling that if the parent had properly educated their kid then this wouldn't have happened, even to the point of insinuating that the parent lied when they asserted that they did, because clearly no child would ever do something that their parent told them not to.
'The minor that you are legally responsible for did X, and you need to pay the fine' is one thing, 'The minor that you are legally responsible for did X, and you're responsible for not telling them to not do X' is quite another.
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Re: Re:
We could also go through the usual rigmarole of pointing out the vast differences between a broken window and a copied file and the financial costs/implications of each, but this goes far beyond "your kid broke something so you have to pay for the damage".
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It should go without saying, but .... copyright infringement is not vandalism.
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Re: Re: While we're at it...
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Dadaism in the law
"for the children!" Don't you think we should make laws they can respect?
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Re:
And was Edgar Bronfman Sr. fined for not telling his kid not to engage in insider trading?
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Yet again, the ONLY position of Techdirt and its faithful fanboys is that ANYTHING which might reduce piracy is totally wrong.
You kids don't even recognize that you're on the wrong side of human rights -- that creators own their content and no one else does -- and law: that the society and its legal systems are against you.
And specifically to one above who says there's no "immediate harm": creation and copyright are complex and abstruse but precious systems that have been worked out to allow creators to gain the rewards from their own work. You little thieves have ZERO rights in the matter.
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Then who us responsible?
To the legal system it's about adults - being the caretakers - taking responsibility for their children's behavior.
I'm not 100% opposed to this type of action by the courts. I would worry more about verdict than the court finding the adult liable to any degree. If education for both the parent and the child were the outcome, I have no issue with this. If it happened more than once, I'd be okay with fines. If it happened more than x number of strikes I'd even be okay ordering both parent and child into counseling aka forced education - similar to first offense drunk drivers who end up going to meetings about their drinking.
Children are handed devices, paid for by their parents that hold tremendous power. If parents are going to allow them access, pay for their access and not spend the time to educate or monitor then the legal system does have obligations to better educate both the parent and the child.
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Re: Yet again, the ONLY position of Techdirt and its faithful fanboys is that ANYTHING which might reduce piracy is totally wrong.
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Re: Then who us responsible?
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Not surprising. Women usually get preferential treatment in the legal system.
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Re: Then who us responsible?
No it's not, it's about $$$.
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A little ditty for you....
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Few years later electricity company discovers this and the man, who's name was on the old bill, was dragged into court.
He argued that the Woman owned the house and he was not responsible. After verifying ownership the Judge agreed, let him go and dragged wife into court where she served jail time and had to pay restitution.
Seems far for one or both of them to have been punished and repay for what they took and pay a small fine.
With illegal downloads, if I only downloaded it because it was free and if I had to pay I never would have downloaded it then there are no "damages" or "losses" to the rights holder. I sure hope that the punishment fits the crime. Sure would be sad to see that people who actually steal stuff get off easier than people who only copy things.
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Re: Yet again, the ONLY position of Techdirt and its faithful fanboys is that ANYTHING which might reduce piracy is totally wrong.
If you write a book, you are not owed money by anyone for doing so. You cannot force people to buy your book just because it exists. You wrote the book, now you have to do the labor of enticing people to buy a copy of it. Once you can convince people to pay you for a copy of your book, you have to do the labor of handling the money, including the paying of taxes and such. (You can outsource some of this, of course.) Once the money starts drying up, you have to do the labor of either enticing more people to buy your book or writing a new book and beginning the cycle anew.
You are not entitled to the fruits of your labor — you are entitled only to the labor itself.
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Re: Yet again, the ONLY position of Techdirt and its faithful fanboys is that ANYTHING which might reduce piracy is totally wrong.
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Second and third Rs ?
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And with that I mean all the laws, the interpretation and results and not only on copyright. But that won't happen because then it would be too obvious that laws are shaped in a ridiculous way to suit the wishes of the people in power.
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Here in the States we just have our kids sign a yearly TOS
Every year on the kids's birthday, before the cake is cut, he or she is forced to sign a disclosure of all the stuff parents were obligated by law or precedent to teach them during the previous year, that way, if the child goes and does something brash, the parent has a legal paper trail to fall back on.
Most of these disclosures average about 27000 words (about the size of King Leer), but the kids are supposed to know them all.
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Anytime someone copyrights something...
...that's one less thing you are allowed to say.
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Re:
So perhaps this was the judge's way to shift blame back to the parents and protect the child.
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Copying is Theft
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Re: Yet again, the ONLY position of Techdirt and its faithful fanboys is that ANYTHING which might reduce piracy is totally wrong.
I was going to write something up about this, but then I remembered that Thomas Jefferson already did:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
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Re: Yet again, the ONLY position of Techdirt and its faithful fanboys is that ANYTHING which might reduce piracy is totally wrong.
I'd sure the Germans in the article don't give 2 shits about the US legal system either. That's all we need to know about the accuracy of the rest of your ranting.
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Re: Then who us responsible?
...and if the parents educate the child but they still don't do what they're told (as kids do)? I presume you're saying that they should be sued again rather than be allowed to discipline their children without state intervention?
Nice to see the usual sociopaths advocating that the court take over parenting from the parents because someone downloaded a file (which almost certainly led to exactly $0 in actual damages to the publisher). God forbid these things should be realistic or proportional - there's a scapegoat to be maintained!
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Re: Re: Yet again, the ONLY position of Techdirt and its faithful fanboys is that ANYTHING which might reduce piracy is totally wrong.
RE: "Pirates don't agree that the (US) Constitutional Right to "exclusive" control over their creations is valid"
Neither does the law of the land. Any land.
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Re: Re: Then who us responsible?
And money to be made!
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Every responsible parent knows to instruct their child on this danger.
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Leeching vs. Seeding
Seeding is, for some of us, a virtuous practice. Like splitting up our recycling or overtipping the Barista.
Only behind a VPN.
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...and when the child still disobeys the parent, and downloads anyway when he's not present? Should he still be held legally liable?
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