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Infringement in the First Degree

By Ed Foster, Section Columns
Posted on Fri Nov 19, 2004 at 08:09:44 AM PDT

Like me, you may have noticed an ad in your local paper this week from the Motion Picture Association of America. Lawsuits against those who illegally traffic in movies on the Internet begin this week, it warns. But I was particularly taken with the statement at the bottom of the ad saying that pursuant to the Copyright Act, "statutory damages can be as much as $30,000 per motion picture, and up to $150,000 per motion picture if infringement is willful."

So does that mean inadvertent infringement can cost you $30,000? Well, hey, I guess we can take the MPAA's word for what the law says. After all, given the craven way Democrat and Republican politicians alike greedily line up to feed at the trough of the Hollywood's lobbyists, you can bet the law says exactly what the MPAA wants it to say on this issue.


But that leads me to wonder. As many observers have pointed out, peer-to-peer file sharing of movies is not actually a serious problem yet, because very few people have the patience and the bandwidth required to download even one film. So when the day does come that movies can be shared in an instant, what kind of laws we can expect the MPAA to dictate to our political leaders then? Allow me to pull out my crystal ball and offer this view into the future:

"Members of the jury, it is my sad duty today to now present the closing arguments in the prosecution's case against the defendant you know as Ms. X. I say it's sad because we all hoped that the passage of new copyright statutes last year -- popularly known as the Maintaining Mickey Mouse Mandates Act of 2010 -- would sufficiently deter crimes of this nature. As we have seen in this court, that unfortunately did not prove to the case with Ms X.
"The facts here are not in dispute. On or about a week ago last Sunday, Ms. X did willfully and illegally obtain on the Internet a pirated copy of the 2008 cartoon feature 'Cinderalla Meets the Little Mermaid.' You heard the government's expert witnesses testify that secret detection technology indicated the film was indeed subsequently played on her television set. And you heard the defendant herself freely confess that she and she alone was involved in this heinous crime.
"Naturally, some of you might suspect one or all of her three children were themselves willful participants, and that their confessed to keep her children from being the ones sitting before you today. It's true that under the MMMM Act, age is no excuse. But it also specifies that parents also bear full responsibility for any act of copyright infringement committed by their children just as if they had willfully committed the crime themselves. This court, in its infinite mercy, has chosen to accept her confession, and therefore so should you.
"As this is one of the first prosecutions under the MMMM Act, you may also not understand why the defendant is not represented by counsel. Let me just assure you that the intent of Congress in this respect was very clear. Movie piracy is a crime that threatens the very fabric of American society. There can be no defense.
"Finally, I know even the most hard-hearted of you might feel the state is going little too far in asking for the death penalty in this case. But under the MMMM Act, we in fact have no choice. If the infringement is willful, it is a capital offense.
"Members of the jury, I have every confidence that you will do your duty. And that's only because of the fact that, if you don't, things might get a little more uncomfortable for you in your own cells. So in the matter of Ms. X versus the special U.S. prosecutorial district for Anti-Copyright-Terrorism in Guantanamo Bay, I ask you to return the only verdict you are allowed to render. Guilty as charged."

--------------------

Post your comments about this column below or write me directly at Foster@gripe2ed.com. To receive this column every week in my free e-mail newsletter, please go to my subscription page and follow the instructions to opt-in for the EdFoster mailing list.

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Infringement in the First Degree | 47 comments (47 topical) | Post A Comment
Copyright Infrindgement[ Reply to This ] (none / 0) (#1)
by mbeymer on Fri Nov 19, 2004 at 09:27:54 AM PDT

I have to say that I do support the movie industry going after people that are ripping and packaging movies and selling them, same as people doing so with software. It's also a problem with hardware as well. If you are like me you get many emails for $35 Rolex watches etc. When I worked for HP we shut down a $6 million dollar business making and selling counterfit HP inkjet print cartriges, these were not 3rd party replacements, they carried the HP brand and identical packaging. Businesses are there to make money, and I have no sympathy for those ripping them off for a profit.

I do agree with Ed that industry shouldn't be lobbying for laws that invade the rights of the consumer. I wouldn't expect Rolex to come after me if in my ignorance I purchased a knock-off with their name on it. People that are knowingly manufacturing and distributing are the ones that need to land in court. It's already against the law. We really don't need more laws to solve the problem.

[ Reply to This ]



"Inadvertent" Infringement[ Parent | Reply to This ] (none / 0) (#2)
by byelen on Fri Nov 19, 2004 at 09:47:34 AM PDT

Our organziation had an anonymous FTP server running for legitimate business reasons. I found that during the weekend somebody had uploaded a pirated copy of Shrek2, hiding it behind a multiple number of malformed directory names. Based on what you're saying, we could have been held liable for "inadvertent infringement" had the MPAA caught the material on our system before I cleaned it off. What a great way to hurt competitors! (1) Hack into their system. (2) Leave a pirated copy of a movie. (3) Call the MPAA!

[ Parent | Reply to This ]


Original[ Parent | Reply to This ] (none / 0) (#27)
by Anonymous User on Tue May 06, 2008 at 07:54:38 AM PDT

I own the original pilot on VHS and have downloaded most of the episodes -- but when the DVD was available I purchased it the first day it was out and freed-up the HD space.order viagra , cheap viagra Other shows I have downloaded are The Lone Gunmen, Greatest American Hero, and others which either aren't currently or will never be available on DVD.

[ Parent | Reply to This ]


Countering Counterfeits[ Reply to This ] (none / 0) (#3)
by wildbill2u on Fri Nov 19, 2004 at 09:59:46 AM PDT

Ed: You've gone way off the mark by condoning countefeiting. You claim that the problem is miniscule--but that's only with today's technology. I think it's because you're thinking about your own pleasure and writing about an industry you don't really understand. Movies cost a lot to produce. Who'd make them if they didn't have the ability to market them without having counterfeitors interfering with the market. In a transaction where the participant knows he's stealing a copyrighted or patented item, is the consumer less guilty than the seller? Isn't the impetus for the transaction actually from the consumer side--someone who wants something for nothing or for less than the price that the owner is willing to sell it for. Take away copyright and patent protection and imagine the result. Let's move the question into an industry you DO understand. Would Bill Gates and Steve Jobs have had the incentive to develop operating systems and the money to build Microsoft and Apple? What about the patents Cisco has and the development of the internet? What about the little guy who has a great idea in software and brings it to market? Doesn't piracy stiffle that sort of inventiveness? Where do you stop?

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Re: Consumer rights[ Parent | Reply to This ] (none / 0) (#4)
by Anonymous User on Fri Nov 19, 2004 at 10:32:09 AM PDT

I would agree with you about allowing movie producers (and software producers, for that matter) their full rights of being compensated for their effots. But I draw then line when the large companies can effectively write the laws they are governed by. Take, for example, Copyrights. They've been extended far beyond Congress' original intent of allowing limited-time propriety control for the original developer and have become a tool for locking up rights under the control of mega-sized holding companies at a loss for the common good.

[ Parent | Reply to This ]


Consumers[ Parent | Reply to This ] (none / 0) (#26)
by Anonymous User on Tue May 06, 2008 at 07:53:34 AM PDT

In a transaction where the participant knows he's stealing a copyrighted or patented item, is the consumer less guilty than the seller? Isn't the impetus for the transaction actually from the consumer side--someone who wants something for nothing or for less than the price that the owner is willing to sell it for. xenical , levitra , clomid , buy viagra online Take away copyright and patent protection and imagine the result.

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What if You're Not Guilty?[ Parent | Reply to This ] (none / 0) (#7)
by Anonymous User on Fri Nov 19, 2004 at 02:44:51 PM PDT

What if you're not guilty but still are accused of infringement? See my "Legalized Extortion" comment below for the answer--you're guilty no matter what unless you have very deep pockets!

[ Parent | Reply to This ]


"Counterfeit"[ Parent | Reply to This ] (none / 0) (#8)
by Anonymous User on Fri Nov 19, 2004 at 06:43:47 PM PDT

Quite aside from your views in this matter, you distort the legal language -- as does MS in many of its lawsuits and press releases about them -- in transforming the act of making an unauthorized copy or reproduction of a copyright work into "counterfeiting". It is, no less and no more, simply infringement of copyright and is actionable in law -- as MS pleadings fully demonstrate -- under the Copyright Act as an infringement of copyright. Think about it. Counterfeiting of currency or trademark consists of creating a replica that is deceptively like the original. It smacks of intent to mislead by passing off the replica as an original -- not making an unauthorized copy by use of digital technology, a photocopy machine, etc. \ "Piracy" as innovated by BSA and likewise promoted by commercial producers/distributors (not authors such as working creators) of copyright protected works as an criminal-like surrogate label for copyright infringement is similarly "dice-loading" mischaracterization for PR or attitude-influencing ends. This kind of deceptive/misleading misuse and transpositional use of language that has different origin and both common and legal meaning in order to most strongly express opprobrium does nothing to advance serious engagement in discourse directed to substantive exchange of views.

[ Parent | Reply to This ]


MPAA needs to grow-up...[ Reply to This ] (none / 0) (#5)
by Anonymous User on Fri Nov 19, 2004 at 01:47:18 PM PDT

This ticks me of!

I never advocate piracy, and with copies of music and software being identcal to the original work I can see the software vendors and RIAA being pissed. The problem with the MPAA are movies are so large the ripped copies are generally either compressed, shrunk down, or changed in some way so the user doesn't have to download 4+ Gigs for one DVD rip. Granted you'll have some die-hard users try and download 4+ Gig DVD rips of their fave movies, but I bet these are FAR FEWER then the number of folks sharing software and music.

I look at it this way... the MPAA see's the RIAA going after folks and getting both money and putting fear into downloaders. They think they'll do the same, but it's apples to oranges. The movies most folks download ARE NOT idental to the originals, which is different from software and music. And if a user wanted to download a true DVD rip they could spend DAYS downloading one file -- which most folks aren't willing to do.

I for one do download older TV shows (NOT MOVIES) which aren't available on DVD, and when the DVD's are release I buy them. One example of this is Buch Rogers. I own the original pilot on VHS and have downloaded most of the episodes -- but when the DVD was available I purchased it the first day it was out and freed-up the HD space. Other shows I have downloaded are The Lone Gunmen, Greatest American Hero, and others which either aren't currently or will never be available on DVD. When they are available I'll purchase them and delete the downloads. I see zero problem with this.

I for one have 200+ DVD's (original, no boolegs or rips) in my collection and I always would rather rent or buy over downloading. The MPAA needs to go after the Chinese bootleggers on EBay who sell obvious bootlegs for HUGE profit -- not the few fans who trade movies online. I bet more folks still trade VHS copies of movies then download rips from the Internet.

I just think the MPAA is trying to get a piece of the pie the RIAA started baking 2 years ago when it started suing users.

Sam Alexander
sam@totallynerd.com



[ Reply to This ]


Not so iIdentical copies.[ Parent | Reply to This ] (none / 0) (#10)
by foxyshadis1 on Fri Nov 19, 2004 at 08:26:22 PM PDT

I don't disagree with your comments on the 'theft' of materials unavailable by any other means, when it doesn't deprive others of them. (Or whom the MPAA needs to go after, but that won't happen because they can either face intractible international laws and regulations to stop people who are as likely as not to start right back up under another name... or take the easy mostly defenceless target in their own backyard.)

But I do disagree with your comments about music and video sharing. Albums traded in rar or flac (lossless) formats are as rare as full dvds, and low-to-moderate quality mp3s are still by far the norm. The digital music compression state of the art has advanced a great deal from 1998, but the average traded quality compared to movies is still very low. It's because one-click DVD conversion programs often take advantage of the newest codecs and features (2pass, b-frames), whereas most one-click CD ripping programs still use outdated, proprietary, or crippled codecs, and generally don't use pro-quality features (vbr, psychoacoustics) even when the codecs support them. Not very identical.

The MPAA is just trying to avoid losing the battle before it starts, the way the RIAA did, by stemming it while it's still in that formative stage. It's just that there seems to be some peculiar attraction to forcing your customers to give up any rights and privelidges to digital content in order to use it.

How long until video rental stores are outlawed, removed from DVD shipments, or just taxed to death?

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There's nothing new about VBR...[ Parent | Reply to This ] (none / 0) (#11)
by Anonymous User on Sat Nov 20, 2004 at 01:02:43 PM PDT

VBR MP3s have been around for years. Long-defunct Xing AudioCatalyst 2.1 from 1999 (which I still occasionally use) supported the creation of VBR MP3s. The reason that many people don't like VBRs is practical--many software/hardware MP3 players STILL haven't perfected their abilities to read VBRs. (Even Winamp 5.06 still can't calculate the proper length of a VBR MP3 when we're talking about files that are 1+ hours long. The longer the file, the ability to seek starts to break down).

Other than programs that come with M$ OS's (which do include crappy encoders), most 3rd party apps can use Lame 3.9x, widely viewed as among the best--and free. DBPowerAmp Music Converter is an awesome free app...

[ Parent | Reply to This ]



Correction[ Parent | Reply to This ] (none / 0) (#16)
by foxyshadis1 on Wed Nov 24, 2004 at 07:24:52 AM PDT

I said vbr was pro-quality, not new. It's generally a huge improvement over cbr in any instance.

[ Parent | Reply to This ]


Legalized Extortion[ Reply to This ] (none / 0) (#6)
by Anonymous User on Fri Nov 19, 2004 at 02:40:23 PM PDT

Note that Bush said in the debates he wants to limit the right of individuals to sue doctors, with attorneys taking contingency fees so the individuals can afford to sue for their rights. But no limit is being proposed on corporations suing individuals or small business. If you're sent a threatening letter by a deep-pocket corporation, alleging that you have infringed their copyright, or worse yet, their patent, just ask an attorney how much it is to defend yourself. For a patent, the answer is between one and two million dollars, with an initial retainer of $10,000 to $100,000. For a copyright it may be somewhat less...but the point is you can't afford to defend yourself over any simple claim. You have to try to settle--and you have no negotiating power! It's "legal" extortion by deep pockets. (And politicians also want to limit class actions, so consumers can't band together to defend themselves.)

[ Reply to This ]


yes[ Parent | Reply to This ] (none / 0) (#28)
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fvbh[ Parent | Reply to This ] (none / 0) (#29)
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gbvv[ Parent | Reply to This ] (none / 0) (#31)
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[ Parent | Reply to This ]


MPAA (and RIAA) Threat Ads[ Reply to This ] (none / 0) (#9)
by Anonymous User on Fri Nov 19, 2004 at 07:03:43 PM PDT

First, we really do need to come to grips with what difference may exist between reproduction that has an adverse economic effect in the realistic market expectations realm and that which may be for personal or archival purposes and has no, trivial, or only limited "ordinary understanding" leakage effects. Many have stated in the past that it is a reality that copyright is a rather (and understood to be) leaky system of protection. The property involved really is not an equivalent of a piece of real estate. Second, Ed's piece highlights something very important. European and other civil law countries at least superficially take more seriously a principal known as proportionality. I regard it as reprehensible that MPAA would advertise that the real life tradeoff is between paying the retail market price for a DVD (on the industriy's pricing already generates a substantial positive economic return) and liability for up to $50,000 or even more. The latter abundantly testifies that the statutory damages violate any even crazily distorted notion of proportionality. At best, it testifies that MPAA (and RIAA) have such strong legislative influence that they have been able to obtain protective laws that (1) establish criminal fines that are wholly disproportionate and (2) shift fines from being paid to the public fisc to payment to private parties. Consider this a rant if you wish. But before you dismiss it, stop and think. Are there real distortions in (1)violation of the proportionality principle and (2) conflation or the functions of criminal and private law -- both directed to benefit powerful lobbies and misdirecting proper public/legislative focus.

[ Reply to This ]


punishment fit the crime[ Parent | Reply to This ] (none / 0) (#20)
by Anonymous User on Sun Nov 28, 2004 at 05:48:01 PM PDT

If the Sony decision had gone against home taping of broadcast television there would have been no market for VHS videos or for DVDs today. My guess is that the RIAA owes each infringer a few hundred bucks a song in damages. These guys just HATE money.

[ Parent | Reply to This ]


heartwarming article in Ladies' Home Journal[ Parent | Reply to This ] (none / 0) (#21)
by Anonymous User on Sun Nov 28, 2004 at 05:50:21 PM PDT

I just read a heartwarming article in Ladies' Home Journal on teaching children moral values and the value of money. It was right in the spirit of the holiday season. Don't teach your children to be greed heads, spend some time with them making pirate CDs to give as gifts! I'm not making this up. Keep your eyes open and watch for the big RIAA lawsuit!

[ Parent | Reply to This ]


Ed, get over the election already.[ Reply to This ] (none / 0) (#12)
by Anonymous User on Mon Nov 22, 2004 at 07:57:29 AM PDT

Normally I agree with a lot of what you have to offer but this piece fails in so many ways.

Why don't you try to offer a realistic projection rather than IMPOSSIBLE scare tactics that FAIL to scare because they're so laughably beyond the pale.


[ Reply to This ]



Re:Ed, get over the election already.[ Parent | Reply to This ] (none / 0) (#13)
by Jeff Foster on Mon Nov 22, 2004 at 07:49:19 PM PDT

Why don't you try to offer a realistic projection rather than IMPOSSIBLE scare tactics that FAIL to scare because they're so laughably beyond the pale.

Umm...it wasn't supposed to be a realistic projection. It's satire. Satire by definition isn't "realistic". And why are you babbling about the election? What does that have to do with anything?



[ Parent | Reply to This ]


Copyright Law[ Reply to This ] (none / 0) (#14)
by dliesse on Tue Nov 23, 2004 at 11:55:06 AM PDT

First of all, the usual disclaimer: I am not a lawyer, so this should not be construed as legal advice.

It's interesting that I'm reading this thread within minutes after reading the following:

Copyright protection is not related in any way to the print status of a piece of music.

This is a quote from COPYRIGHT: The Complete Guide for Music Educators, 2nd edition, by Jay Althouse, published 1997 by Alfred Publishing Co., Inc., Van Nuys, CA (thus establishing my fair use quotation by citing the source).

As much as we disagree with the way the copyright laws are written, the fact is that they are what they are. Making copies of even out-of-print material is illegal without the permission of the copyright owner. You can tape the TV program for your own use and private viewing later, but you don't have the right to make copies and distribute them, regardless of whether or not they'll ever be made available. Seems unfair, yes, but that's a matter to take up with our so-called representatives in Congress.

BTW, the quotation above applies to anything else in print, too, not just music; it just happens to come from a book specifically addressing copyright issues where music is concerned.

[ Reply to This ]



Why do we feel entitled?[ Reply to This ] (none / 0) (#15)
by Bob2004 on Tue Nov 23, 2004 at 01:01:35 PM PDT

Don't think that downloading a full DVD is all that hard, or takes all that long these days. My pipe is usually 2-3MegBit, which makes a Full DVD transferable in less than two days, easy. The motion picture industry is rightfuly worried, and if it was my stuff being downloaded by an army of people who where fully capaible of paying me, I'd be up in arms too. They are actually being nice about this. No doubt the laws are written to forstall the counterfit trade and seem excesive considering some hapless user who downloads a AVI of the latest hit movie, but if you don't break the law there is no need to worry. (No, you won't be sued despite what some say.) It remains to be seen what the motion picture industry is going to do. So far it seems that they are concentrating on informing infrengers about the possible consequences if they continue. They have been doing this for at least a year now (that I'm aware of). I suspect that this latest event signals that they are ready to "take the next step" and start filing targeted lawsuits. I expect this to go about the same way as the Music industry crack down with a few notable exceptions: 1. You have been warned much better this time. 2. I expect them to specifically warn people before they sue (Unlike the Music industry). 2. This will mean that they will be more selective about who they sue. If this goes the way I suspect, a few serious offenders will be sued, and most of the activity in the US and countries where copyright laws can be enforced will be kept under control. Expect the Motion Picture industry to learn from other's mistakes. I don't expect them to sue some minor who's mother is on welfare, just to prove some point, though they may send some very seriously worded letters. They just want it to stop... I don't blame them. Don't complain about it, just stop, then you won't have to worry.. Right? On another, but related issue. What am I allowed to do with a DVD I own? Am I allowed to copy it for my use? Can I keep a digital copy of it so my media center (aka computer) can play it at will? If I have the DVD, am I allowed to generate an AVI from it so I can view it on my laptop? Can I take my VHS tapes and convert them to DVD format? What about the other way? This is known as "fair use", but I'm not sure how to answer these questions.. Any help out there?

[ Reply to This ]


2-3 Days for a DVD??[ Parent | Reply to This ] (none / 0) (#18)
by tscoff on Thu Nov 25, 2004 at 08:20:10 AM PDT

The movie industry doesn't have to worry.  I'm not going to have my computer sit around for 2 full days to download a full DVD.  I'm going to go out and buy it instead, especially since I want the full quality in the DVD and I'm not willing to live with a lower quality copy which I downloaded from the Internet.

[ Parent | Reply to This ]


Who wil they sue?[ Reply to This ] (none / 0) (#17)
by Anonymous User on Wed Nov 24, 2004 at 09:51:00 AM PDT

The problem here is exactly there: who will they sue?

They act like they will sue everybody they can. Problem is most of us can't get into court without losing our shirt AND pants to lawyers no matters wether we win or lose. This gives them a way of winning without playing.

Of course, you may have a "court insurance". Anyway, you don't copy stuff so you're all right. No? Did you give the Cinderella movie when your children stop using it. Ah. You did, so you're into illegal movie distribution as defined by the Digital millenium act...

Those of you thinking it's a fallacy,just ask your lawyer.

Everybody know they won't sue anyone for this you say? Maybe, but the law says they can... Is the law saying what you want or what they want?

JR

[ Reply to This ]


more crystal balls...[ Reply to This ] (none / 0) (#19)
by plusf on Fri Nov 26, 2004 at 04:56:10 PM PDT

"and the MPAA will learn..."?

not likely.

already, i've seen articles that the movie recording industry is getting upset about people skipping over the previews and trailers at the beginnings of dvds.

so they want to lock out the "fast forward" button, just as many have already locked you out from skipping the incredibly stupid FBI warning page, etc.! as if not being able to skip over that is going to change anyone's behavior!

my crystal ball fears that the next step by the media giants will be to lock out dvrs and vcrs from fast-forwarding through commercials.

if that happens, you're invited to my driveway, where i'll be torching my 50" tv.

+af
plusaf.com
[ Reply to This ]



they will never learn[ Parent | Reply to This ] (none / 0) (#22)
by upsidedown on Mon Dec 06, 2004 at 02:55:49 PM PDT

as long as the MPAA/RIAA is making money they will never change tactics.

simple solution to the MPAA/RIAA ordeal, get rid of lawyers :) jk

boycott

boycott

boycott

simple solution to a greedy problem.  the boycott doesn't even have to be a long one,  just a properly timed one.  holidays (christmas), summer releases....
one for just 3 months....for 3 months, save or spend your cash elsewhere, don't buy music or movies.

choice is ours.
choice on how to spend our money should still be our choice, but wait right now it's not........
choice is no longer ours

boycott


[ Parent | Reply to This ]



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