Jammie Thomas

[Steve_Y]

The answer is an amount great enough such that it will strongly discourage her and others who would do like her to not do it.

Sending a litter lout to prison for 30 years would probably discourage other people from dropping their trash in the street, but I'm not sure that would make it a reasonable punishment for the crime...

One problem with this as a deterrent is that the record industry invariably go after easy targets; people who virtually set themselves up to be caught. People who are more IT literate can justifiably believe that they have nothing to worry about, and keep on sharing music with a feeling of impunity.

Just look at file sharing forums where this has been discussed. People aren't scared by this; many of them are just laughing at her for doing so little to protect her anonymity, not to mention her still using Kazaa...

It matters not whether a single song was ever redistributed or not. It matters not whether the recording industry suffered the loss of any sale. It matters that Ms Thomas knowingly stored that music such that it would be redistributed in violation of the copyright. It matters that Ms Thomas knowingly downloaded an kept material in violation of its copyright.

I'm curious if you feel as strongly about other copyright violations?

For example, record company lawyers have made it clear that copying your own legally bought CDs for personal use infringes the copyright. Just ripping them for backups is a legal grey area perhaps, but ripping and encoding to MP3 for use in a portable player is not allowed. You're meant to buy the music again in the different format, and in the view of the record industry you're stealing a copy if you don't.

Another example is someone who buys an OEM copy of Windows, then reuses it when upgrading their motherboard. The OEM copy is meant to be tied to the motherboard it was first installed on; you're in violation of Microsoft's copyright if you try to transfer it to another one, and in their view it's no different to stealing a copy. Plenty of people lie to Microsoft, saying that they had to replace a faulty motherboard, the one case where Microsoft will agree to its reactivation. Considering the cost of Windows this is a bigger 'theft' than a copied audio CD.

In both of those cases the companies are losing a sale, maybe even multiple sales depending on how many different machines the OS/audio files are used on. While in the case of file sharing it's only potential future sales that are being lost. I doubt that even one in 10,000 files downloaded would otherwise have been purchased by the downloader. Surely the two examples above are at least as serious as sharing MP3s?

Presumably you'd want the courts to deal extremely harshly with CD rippers and OEM reactivators as well?

[Plissken]

Imagine that instead of music, the object in question was the new Harry Potter book. She downloads (illegally) scanned PDFs of the pages to read the book, and also distributes them to friends.

OK, let's run with the book analogy. let's say her friend has bought the book, and lends it to her to read: where is the crime?

There is no crime, because that's not the proper analogy. Mine was, since it includes illegal acquisition, duplication, and distribution.
Thanks andyb for returning the discussion to the penalty, since it's obviously a crime. And I will try to answer your 3 questions:

1), If someone who doesnt break into a shop, but manages to steal 212 CD's at the cost of $20 each, what should their punishment be.?
2), If someone uploads 1,700 songs onto Kazaa allowing an unknown quantity of people to download them for free, what should their punishment be.?
3), If someone gains 1,700 songs (how is not relevant to this question and should not be part of your answer), and proceeds to sell copies of the CD's (212 different CD's) for $5 per CD, no one knows how many CD's that person has sold, what should their punishment be.?

1. I don't understand how your hypothetical "someone who doesnt break into a shop, but manages to steal" makes it not theft. Therefore this reasoning is ignored, and the crime is stealing 212 CDs. At $10 per CD that is $2120 of theft, the penalty depending on jurisdiction I guess.

2. Penalty should be harsher than #1, because it would be easy to make a case that this resulted in loss of more than $2120.

3. This is a loaded question, because of course it depends on how the CDs were gained. Is this distribution of stolen property? Is it copyright violation to a lesser extent? The specifics matter.

[Steve_Y]

2. Penalty should be harsher than #1, because it would be easy to make a case that this resulted in loss of more than $2120.

Really? How would you show that such a loss occurred? Would you just go on the assumption that every download equaled a lost sale?

If you had to judge two criminals, one who stole $25,000 in cash, the other who stole an unchecked $1 lottery scratchcard with a potential jackpot of $250,000. Would you argue that the scratchcard theft was a bigger crime because the potential value was higher than the stolen cash?

[andyb]

1. I don't understand how your hypothetical "someone who doesnt break into a shop, but manages to steal" makes it not theft. Therefore this reasoning is ignored, and the crime is stealing 212 CDs. At $10 per CD that is $2120 of theft, the penalty depending on jurisdiction I guess.

2. Penalty should be harsher than #1, because it would be easy to make a case that this resulted in loss of more than $2120.

3. This is a loaded question, because of course it depends on how the CDs were gained. Is this distribution of stolen property? Is it copyright violation to a lesser extent? The specifics matter.

1), Lets say the person was nicking 5 every day for a few weeks, was caught whilst stealing the last one (No. 212), the police got a warrant to search the house, and found a total of 212 CD's with the original shops barcodes on them.

2), How much harsher.

3), Lets say that the CD's are originals and there is no evidence of theft, so you would have to conclude that they were legally aquired, but the person has been caught selling copies of them to anyone who wants a cheap CD for say $5 (a quarter of the price of the originals).

I hope that clears up your questions.

Really? How would you show that such a loss occurred? Would you just go on the assumption that every download equaled a lost sale?

If you had to judge two criminals, one who stole $25,000 in cash, the other who stole an unchecked $1 lottery scratchcard with a potential jackpot of $250,000. Would you argue that the scratchcard theft was a bigger crime because the potential value was higher than the stolen cash?

Thats a great analogy


Andy