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back to article Filesharing teen gets damages reduced in ignorance claim

A 16-year-old girl has successfully argued that she was too young to understand that her copyright-infringing downloading of music was unlawful. A US court said she will only have to pay $200 per song downloaded instead of the $750 demanded in the case. A number of record labels including Maverick, Universal, Sony BMG and Warner …

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legal until told otherwise?

> Judge Xavier Rodriguez said that it was crucial that the KaZaA software had not told Harper that there was anything illegal about her actions

I can see a whole new line of defence here.

"The gun didn't tell me it was illegal to shoot people"

"The money didn't tell me it was illegal to buy drugs"

"The beer didn't tell me it was illegal to drink underage"

"The car didn't tell me it was illegal to drive that fast"

I have a sneaking suspicion that what we have here is a very smart (or lucky) lawyer and a particularly clueless judge. I'd be surprised if any teen, from any background had NOT been told ad-nauseam about the "evils" of file sharing. Maybe the judge should consider this defence himself:

"The defendant didn't tell me if she was lying"

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Stop

So... 7400 / 200 = ....

37 songs.

She's being sued for downloading and "sharing" thirty seven songs?

Gordon Bennett ! What a complete waste of time and money. It's probably cost more than $7400 to have a court hearing.

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Sooo....

She is old enough to have a driving licence, but not to understand that what she was doing was illigal.

Humm.. Somthing is very wrong there.

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Flame

What Rot

In most households Mom & Pop Sixpack have no knowledge about file sharing, computer operation etc. They rely on the teens in the house to keep them up to speed.

Saying that the teens are ignorant is complete bollocks.

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Alert

Coach & Horses?

Two legal items seem to be applicable:

1. Ignorance of the law is no defence (Daughter)

2. Giving evidence likely to incriminate oneself (Daughter)

Could that happen this side of the pond?

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Tim

is it actually illegal to download though?

Given the blurb on the back of the CD that you buy, it seems to be illegal to diseminate, broadcast and share, but they dont seem to mention downloading something someone else has diseminated.

I am wondering if they can even enforce some of these prosecutions.

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Ignorance of the law is no defence

Prevents the use of the claim to avoid guilt, but can mitigate the sentence.

Which is what happened here.

It can also be specifically allowed as a defence if the Act is written that way.

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Anonymous Coward

Ignorance of the law is no defence

But it is mitigation... Hence the reduced penalty but not reduced culpability.

>Giving evidence likely to incriminate oneself

"nor shall be compelled in any criminal case to be a witness against himself"

The girl wasn't "compelled".

I don't think the UK has an equivalent of the US 5th amendment rights..

There's a right to silence, but that's had the appendage of the right of a court to think you're guilty if you exercise it.

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@ Pete

<QUOTE>

I can see a whole new line of defence here.

"The gun didn't tell me it was illegal to shoot people"

"The money didn't tell me it was illegal to buy drugs"

"The beer didn't tell me it was illegal to drink underage"

"The car didn't tell me it was illegal to drive that fast"

<END QUOTE>

Actually, most alcohol vendors will inform you of underage alcohol consumption at point of sale if necessary.

Most vehicles do warn about obeying speedlimits and road signs (vehicle handbook and on some sat navs)

Never having purchased a gun I don't know but I'm sure somewhere on the documentation it probably mentions about pointing weapons at people.

However, your money argument does stand up(ish).

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Stop

Nothing like a sweeping generalisation

Despite what people seem to think, here. Not all teens are computing experts.

I've worked as an IT teacher and while the average 16 year old knows more than their parents about how to work a PC, most of them still know very little, and they certainly aren't aware of a lot of the legal implications of certain actions.

It's true that we're all acutely aware of how much the record labels don't want us to share their music but how many of the places you see this being pushed in our faces are seen by teenagers? I'm guessing they don't read all the stories on this site about filesharing, and I'm pretty sure they won't be reading the warnings on the CD labels (especially if they're not downloading them). I'd be willing to bet good money that very few people who aren't terribly IT literate are aware of the situation at all (beyond some vague knowledge that what they're doing might be a bit naughty, but not really cared about).

And just to set the record straight, Pete - it's not illegal to drink underage - it's illegal to sell alcohol to somebody underage, since the person underage is deemed to not be responsible for their actions - exactly the same argument as in this case.

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Paris Hilton

US can't have it both ways...

She can't decide it's OK to sip on a Coors until she's 21... poor innocent child.

Paris, because she gargles Coors.

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yes, but...

Her conviction wasn't overturned, it was just the sentancing that was lowered. She's still guilty.

@Tim - I don't think she got her collar felt for downloading, but for sharing (distributing).

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Out of curiosity

>>Ignorance of the law is no defence

How long will that hold, given that the body of Law is now so vast that even a lawyer cannot hope to understand it all?

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Paris Hilton

@Tim

Downloading is not illegal - sharing them so others can download is though. That's how they trap you. If they can pull copyright material (songs, films, software) from your computer then they can do you.

I think Paris has a new job as a judge.

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ofijweofjwaoviwjvworivjwe

I know a number of intelligent but not very computer savvy people who used Kazaa et al no realising that that it broke the law, so I'm definitely prepared to accept that a 16 year old girl might not realise - especially as all this happened over 3 years ago. However, having read the ruling and seen the songs she downloaded - she deserves jail time!

Pete - you seem to have missed the quite crucial fact that she was convicted, so it's clearly not a case of "legal until told otherwise".

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@Tim

Downloading it is creating a copy that you have not been authorised to make surely, so yes.

@spegru - she didn't use ignorance as a defence, she used it as mitigation so no problem there, and you have afaik a right in the UK to not self-incriminate, it i your right to silence so I'm not sure what your issue is there either.

All that said, 16 is easily old enough to understand this and it would have taken more than the daughter saying "i didn't know" to convince me.

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Re: Coach & Horses?

#1 has no longer been the case since

a) they've made laws that they hide from people

b) the people in power have ignored them with the excuse "I didn't know the rules changed. It *used* to be legal"

Pete, you're not killing people when you download Snoop Dogg. Even if there are 37 tracks of it.

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A lesson in copyright

Copyright doesn't mean you're not allowed to take a copy of something. It means you're not allowed to take it and claim that you made it.

This whole case is bullshit.

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Black Helicopters

Right against self-incrimination

> Could that happen this side of the pond?

Ignorance of (criminal) law is no defence, however, this is a copyright infringement lawsuit, so damages are assessed differently.

As for the right against self-incrimination on this side of the pond, it's actually worse than over there. Just think of the speed camera appeal that got rejected by the Lords - points cannot be assessed on those kind of violations in North America (yes, both USA and Canada) unless the photo can positively identify the person who was actually driving (ie clear photograph).

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Anonymous Coward

"Damages"

I'll pretend I didn't read the part about the 16 year old getting off because of ignorance and because the program didn't inform her...

Where'd they get the initial $750 per song? I can buy a legit CD for about $13 and get about 20 songs, making the price of each of those songs 65 cents. For the $750 to match, she'd have had to have shared each song, personally, just over 1100 times to match the value. (Forget the argument that there was nothing "lost" since nothing was "stolen" just copied.)

I understand that examples need to be set when punishing crimes (though it's becoming less effective), but this is ridiculous. And I wonder how much of that $200 the artists of the songs will see...

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Paris Hilton

Benefit of the doubt.

I am dubious, but willing to give the benefit of the doubt.

I know loads of non-IT common or garden folk who haven't the first clue

about nettiquette and probably don't know one end of a PC from another.

But they know how to find and download music, films and anything else,

dump it to a stick, ipod or phone, and transmit it around their friends like

an expert.

Paris - Living proof of complete ignorance.

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Coat

$200 a song!?

And how the hell do you justify one song costing that much - concert tickets dont cost that much!

Yet this 'product' is somehow worth $200? - yeah right!

Shows you whats wrong with the music industry and why it needs to die - quickly!

The music industry is nothing more than leeches sucking off those who have tallent, and those who have tallent still have to work for a living.

*\. Mines with one with the MP3 playing "Download this song!" to itself in the pocket.

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Flame

Oh, and...

She's gonna have to pay $7400 just because she downloaded songs?

Thank you american justice system. Rather than help keep our quality of life by stopping crime, you've just ruined a little girl's life with more debt than most people can ever pay off.

How does it feel to be a debt collector?

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Over the top

$200 per song what are they made of solid gold or something, talk about over estimating the worth of something.

Down with the Music industry imo, its all sounding the same nowadays.

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@ legal until told otherwise?

"The money didn't tell me it was illegal to buy drugs" - Poor analogy. This is more akin to the dealer not telling you it was illegal to buy drugs. The money was the tool, not the service.

"The beer didn't tell me it was illegal to drink underage" - It often does, if not on the product then with "You must be 18" signs at the point of sale.

"The car didn't tell me it was illegal to drive that fast" - Read your handbook. Might not be as blunt as that but will have the leagal ass-covering 'drive within you ability/conditions/local law' tosh in there somewhere.

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how do damages...

for downloading, stealing according to all the lying junk on every dvd you buy, a track worth less than a dollar, come out at $750 per track damages* in the first place??

*how do you award damages for downloading a track anyway, even if you assume that every single track was from a different album, and that the person would actually have bought the whole album, or even just the song, if they hadn't downloaded that song, that's still only $20 per song and thats on the generous side.

how long before file sharing warrants the death penalty!!

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Anonymous Coward

Oh no

Does this mean there will be a rise in irritating, condescending "you would steal an old grannies pension" warnings, and "knock off Nigel" adverts? Education, Education, Education.

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@ Steven Swenson

"Copyright doesn't mean you're not allowed to take a copy of something. It means you're not allowed to take it and claim that you made it."

Dear oh dear - that's precisely why it is called "copyright" - it's simply the right to make a copy. The clue is in the name. Take an unauthorised download of a copyright work and it is a breach of copyright - pure and simple. I do wonder about the education system some time. I think people make these things up to suit themselves.

Passing other's work off as your own is a related issue and can also be covered under plagiarism or fraud, but it is not the full extent of copyright. You can hold the copyright to something and not be the originator, it's just that copyright (by default) goes to the originator unless there is a contractual condition that overrides.

Some countries have laws grant certain exemptions. I believe it is the case in the US to take backup copies of copyright material. In the UK there is an explicit law allowing "off-air" copies of TV programmes can be taken for the sole purpose of "time shifting" (but not for long term permanent copies). The US allows for certain use of extracts from copyright material for "fair use" purposes such as extracts for commetnary purposes. For what it is worth, in the UK at least, there is no established right to perform "media conversions" - for example, rip a music file off a CD and load it into a PC or MP3 player. Of course nobody has yuet been sued for this, but technically, unless common law or the government established otherwise, it is a breach of copyright unless exploicitly allowed.

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Ignorance...

I recall reading somewhere that patent violations incur triple damages in the US if the offender knows what they are doing, so (as already posted) there is clearly provision in the US legal system for adjusting penalties according to the awareness of the offender.

However, I find it hard to believe there is a teen in the developed world who hasn't been bored stiff by record industry tools proclaiming the illegality and immorality of getting music off the internet. The lady was lucky.

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£200 per track

What they will be doing with the £200 per track is making up 'losses' for people who she uploaded the file to... in that case they should need to prove how many people got the file(s) from her. Then really to be fair they should go after them...

I can see what they are doing though, often it will be difficult to target the people who are actually doing it on a massive scale, so they target the little guys, hoping to scare enough people that everyone stops. This is actually quite effective for some people, I my self work from home and with the new treat of being cut off cant risk downloading anything dodgy so have stopped.

I think that the record company should be given a fare price, even a few £ per track is more than they would get if she bought the tracks.

I also think that she should pay a fine, she did after all break the law, but this fine could be put to better use than being shoved back into the pockets of the record companies. Perhaps some music based charity?

Just because you dont like it doesnt mean that you can ignore the fact that its law. Still suck though.

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Sentencing

Maybe they should treat it like a murder case. Give the girl jail time for the conviction and force the record company to sue her in a civil court to re-coup the alleged losses. I would think that it would be more reasonable considering how much O.J. Simpson was required to pay out for someone's life.

I'm surprised that they treated her as a minor, since the state I used to live in tried a 12 year old as an adult for murder (convicting a kid of murder is one thing, but sending them to an adult prison, which is what the prosecution was trying to do, makes absolutely no sense).

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true

> For what it is worth, in the UK at least, there is no established right to perform "media conversions" - for example, rip a music file off a CD and load it into a PC or MP3 player.

... but does this mean that because of the "Rip" button in Windows Media Player we can take Microsoft to court for "inducing" copyright infringement (which is exactly how they nailed Napster originally)?

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IT Angle

Required age?

Given how much argument I have just read on these comments pages (presumably from readers with above-average IT awareness, and generally over the age of 16, even 21) I would have to agree with the Judge, but exactly how old do you have to be to have an adequate understanding?

Sounds to me like a legal degree is the bare minimum!

Anyway, what was the IT angle on this story?

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Alert

I was just testing it!

hey it works for BT.

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Anonymous Coward

Punishment

The $200 / $750 fine per song is *punishment* it's meant to put people off doing the same thing. If they just fined her the 'cost' of the individual songs then it would mean little. But 'oh f*ck' $7400 for a few CDs worth of songs you probably buy legally for a 1000th (ish) of that - it might put a few people off downloading them.

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Coat

@Steven Swenson

Actually, Copyright means exactly that. Only the authorised publisher/rights holder is allowed to make copies for sale/distribution.

What you are referring to is Intellectual Property, which means that you should be recognised for the creation of something.

Even if it wasn't you that created something, but by some quirk of fate (usually employment contracts), you happen to own the IPR. Take McDonalds for example, the Big Mac was created by an employee who earn't nothing but salary for the creation of the most sold item on the planet. Go figure.

Mines the one with the free toy in the pocket.

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IT Angle

Worth Per Song

All of the other comments aside I would like to specifically begin to discuss the cost per song as well as the method of which they are acquiring the data.

1. Proof: Why has no one asked the RIAA to prove the costs as to why they are charging $200 or $750 per song? That figure is just ridiculous. Perhaps there is details to which I am not privy but that is excessive. Why not fight the defense of prove to me the damages I caused per song equal $750. Not just per song in general but in a song-by-song report. It is a reasonable request as in this case you're merely asking the plaintiff to prove their case.

(Can anyone remember if Kazaa keeps U/L Stats?- I have never used it)

2. Methods Used: In most of these cases the RIAA claims some sort of secret methods or 'trade secrets' to have been used to acquire the data used to convict people. This is completely unacceptable as the courts seem to be buying it. If I am to bring an individual to court I am responsible to turnover all evidence/ discovery. How and why are these clowns not being forced to prove they acquired this evidence legitimately, properly and professionally. If this was done this would open the door for all sorts of IT angles to be investigated and the defendants could fight back.

IT Angle....why hasn't that been disputed in court....

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Stop

What about just buying a license

I just checked the other day and a broadcast license is only about $640/year. So what is wrong is paying for a broadcast license. It would be a lot cheaper, even if you paid a year or two retroactively....

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Boffin

Re Punishment

Errr no... What you are describing is punitive damages (or exemplary damages over here) - basically they are there to make an example of you to deter others. However, law (even the US law) prohibits their use except in specially defined cases (if I remember my law correctly, it applies to things like gross negligence, profiteering etc).

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Anonymous Coward

Re: Punishment

>> The $200 / $750 fine per song is *punishment* it's meant to put people off doing the

>> same thing. If they just fined her the 'cost' of the individual songs then it would mean

>> little. But 'oh f*ck' $7400 for a few CDs worth of songs you probably buy legally for a

>> 1000th (ish) of that - it might put a few people off downloading them.

$7400 / 1000 is $7.40, I doubt she could have bought 37 tracks for $7.40 - she might have been able to get them from iTunes for a dollar each (or whatever it costs), but that would be a 200th of the fine not a 1000th. $200 dollars per track does rather excessive but I suppose that is kind of the idea of punitive damages.

There is something very unsettling about about an enormous record company suing a school girl for punitive damages. I don't buy music (or download it illegally), but if I did I would probably stop doing so. I have never seen the attraction of giving your money to pop/rock stars so that they can spunk it on cocaine and fast cars. Each to their own, I suppose.

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Linux

Not about damages really....

This is about squeezing "settlements" out of enough hapless users to deter others. The RIAA in the US has filed against the deceased, against people who don't own a computer, against 12-year olds, etc. The judges are beginning to get a clue as to the tactics in use; the "forensic experts" used to prove downloading are now being sued in multiple states for failure to register as private investigators, the damages in one case have been thrown out and the judge is suggesting he may reverse his ruling to favor the downloader based on new information, etc.

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@ M A Walters

That is what I was something I was going ot mention in my post above as well. If the youth, teen, adult, Senior...Dog (I wouldn't put it past the RIAA) are not profiting from this what grounds are there to make an example of these people. How many are to be 'Made examples of' before it is deemed an acceptable practice?

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I heard a song on the elevator the other day.

And found myself humming the tune.

Until I realized what trouble I would be in if a music industry lawyer overheard me.

We have to outlaw elevator music, it is the gateway drug that leads to file sharing.

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Stop

@Steven Swenson

"She's gonna have to pay $7400 just because she downloaded songs? [...] you've just ruined a little girl's life with more debt than most people can ever pay off."

Uh, really? Not so good with the Math there, huh? You know that's only like £4000. While that isn't exactly pocket change it doesn't seem like life-crushing debt to me. Hell, my mortgage is $95,000 (£50,000) and some foolish banker seems to think I can pay that back within 30 years.

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Coat

Ignorance... we see it here

So initially I bought the arguments of the posters that a 16 year old girl would know and understand the law so ignorance isn't a fair defense.

However, seeing how many IT professionals are posting here back and forth arguing whether she did anything illegal or not, I'm thinking that even 30 to 40 year old adult IT pros cannot be expected to understand current copyright laws so it is reasonable!

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@Steven Hunter

But you aren't 19 years old. You have a long term job and a job history. A credit history.

This woman has a court judgement against them and is just starting working and so no good history to fall back on.

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Contract

This is a civil case. Not a criminal one, right?

The case is over the violation of the license "agreement" of the music. How can a 16 year old agree to a contract?

I am pretty sure that if I signed a contract with a 16 yr old and tried to enforce it in court, the judge would throw it out. I thought that you would need to sign the contract with the parent or legal rep of the child.

If this is not the case, I have a new career. I am going to be selling movie tickets and ipods to people 14 - 17 yrs old, then signing a contract with them that requires them to pay me $1000 for the item when they turn 21.

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RE: Ignorance...we see it here

"So initially I bought the arguments of the posters that a 16 year old girl would know and understand the law so ignorance isn't a fair defense.

However, seeing how many IT professionals are posting here back and forth arguing whether she did anything illegal or not, I'm thinking that even 30 to 40 year old adult IT pros cannot be expected to understand current copyright laws so it is reasonable!"

There are lawyers who study Copyright laws and still don't fully understand them so is it really such a stretch that an average IT Professional only understands a small portion of the law as well? If you understand the way that this law works so well I for one would be quite interested in reading a breakdown...

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JC

Not if she knew, only what she did.

The law was broken, whether she knew should not be mitigating. The damages shouldn't be so high either way, she is not responsible for someone else breaking the same law. Until it is proven that she has distributed enough copies of the songs to justify under $1 per, she should only be liable for what was actually proven to be distributed.

It's the equivalent of saying "ok, you were speeding in your car and the fine for that is $100 but since you were speeding once we have to assume you have sped 400 times and we're going to fine you for 400 instances to make an example out of you."

In rare cases making an example of someone might be required but not for sharing a mere MP3, which isn't even rare.

Did YOU vote for anyone who supported these outlandish penalties? I certainly didn't approve of them and can't recall anyone who even tried to make a good argument that they were fitting. This is not what a modern society considers just, the law itself should be repealed then let everyone come to their senses to work out a more reasonable alternative.

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Anonymous Coward

Re: Worth Per Song

I thought punitive damages were normal in the states?

Even without that though there are costs....

>The case is over the violation of the license "agreement" of the music.

No, it's a copyright violation, there was no licence. Such a licence only exists if you buy the music first.

>I'm thinking that even 30 to 40 year old adult IT pros cannot be

>expected to understand current copyright laws so it is reasonable!

Nah, there are a few who simply don't want copyright to exist because they don't want to pay other people for their work.

They understand perfectly, they just don't like it.

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