back to article Game sharer gets £16K fine

A woman who put a copy of Dream Pinball 3D on a file-sharing network must pay £16,000 to the games maker and its lawyers. Games maker Topware Interactive was awarded £6,086.56 in damages and £10,000 in lawyers' fees by the Patents County Court in London. Lawyers Davenport Lyons said there are more cases to come - the firm …

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  1. Joe K
    Thumb Down

    Utter bollocks

    Are we turning into America?

    How can anyone say that she cost them that much, when its a bullshit game that no-one bought anyway.

    She should laugh in their face, declare bankrupcy, and tell all the courts and software house to go fuck themselves.

  2. Jon Lamb
    Black Helicopters

    Nice little earner ...

    7000 possibly paying 6k for the game and 10k to lawyers! 5% success rate should generate a nice income. Almost worth their while to leak a game into the p2p networks.

  3. Anonymous Coward
    Paris Hilton

    shame

    ... all for the introduction of a single comma...

    "Game Sharer gets £16k, fine" ;o)

  4. Anonymous Coward
    Anonymous Coward

    lol

    Thats an even better mark up then the RIAA, I mean the games worth what? £2?

  5. adnim Silver badge
    Joke

    Corrected for truth

    “Illegal file-sharing is a very serious issue resulting in millions of pounds of losses to copyright owners. As downloading speeds and Internet penetration increase, this continues to be a worldwide problem across the media industry which increasingly relies on digital revenues.”

    Rehashing old shite is a very serious issue resulting in millions of pounds being ripped off the gullible punter. As downloading speeds and Internet penetration increase, this continues to be a worldwide cash cow across the media industry which increasingly relies on repackaging the same overpriced old tat.

  6. Sooty

    when are companies going to learn

    The majority of people, read 99%, who pirate games, have no intention whatsoever of ever playing said game if they had to pay for it. They either can't afford it, don't think it's worth money, or just don't spend money on games.

    while not exactly right, someone playing a game a company produces, does not cost that company anything ie represent a loss, unless that person would have bought the game if thay hadn't pirated it. Of course, it may represent a significant loss if the game is an unmitigated bag of sh*te and the piracy leads to word of this getting around a lot faster than it would if the only people who found out had shelled out for it :)

    I'm willing to bet a very large proportion of pirated games are downloaded by kids, who couldn't legally own the game, and these are the only ones who might have paid for it, via their parents.

  7. Stef

    How much?

    “Illegal file-sharing is a very serious issue resulting in millions of pounds of losses to copyright owners"

    Millions? Only £6000 in this case it seems.

  8. RedSpangle
    Stop

    Anyone got a reference

    The intarwebs are full of references to this secret defendant, with the judgment handed down by a secret judge in a secret court case, which no-one can find in the HM Court Service website.

    Anyone got an actual court case reference? I'm really keen to know whether DL's theories about liability for having a wireless connection were upheld by a judge.

  9. Gavin Berry
    Alert

    When will they learn

    They have not lost millions in sales, if it was not free, it would not be downloaded!

    You only lose money if I was willing to buy it but get a copy instead.

    Why should I pay for something only to find its crap and I wasted my money?

    Its not like I can get my money back.

    And reviews are not the answer as reviewers have to kiss up all the time to the game publishers to be able to get review copy's, and it they pan one game the publisher never let them have another.

    Demo's on the 360 make me want to buy games I like and help me avoid the rubbish.

    Same for PC games.

    If I could not download a movie I would not always go the the cinema to see it.

    But I do go the the pictures to see things I know I will like.

  10. Danger Mouse

    £1600 Dream Pinball 3D

    I wouldn't have paid £0.16 for that game, it's total bobbins. On a more serious note, I hope the porn publishers don't use the same tactics or the IT industry will grind to a halt.

  11. David Burton
    Unhappy

    We're going the wrong way

    While the US courts are starting to recognise that the 'evidence' collected is insufficient to 'prove beyond all reasonable doubt' that an individual was responsible for filesharing, and that the methods for obtaining names and details for the prosecution are potentially also abusive of the legal process, in the UK we're apparently rushing headlong towards raising the punishments without strengthening the burden of proof.

    An IP address does not identify an individual. A broadband connection rarely uniquely identifies a person, since the majority of households have multiple occupants, even aside from whether the IP address records uniquely identify that connection, and whether that connection was vulnerable to abuse.

    However, what we see is that it's a civil prosecution, and the burden on proof is considered lower there, becoming more of a balance of exectations. However, I would tend towards the view that where there is more than one person in the household, how certain can you be that the right person is being prosecuted, even with that lower requirement? All that's quite apart from whether the damages are excessive, the demands of money to preclude further legal action being on slightly dodgy legal ground, and the legal fees accounting for a disproportionate amount of the total figure.

  12. Anonymous Coward
    Pirate

    That'll ruin your day...

    Yhaarrr, I be glad to have taken that there out of court settlement after reading this here report...

  13. EvilJason
    Stop

    How can they?...

    How can they win with only a suspicion of illegal file sharing?

    And that argument of millions of pounds of lost revenue on games that people who download is wrong as the majority would have never have bought in the first place.

    Also whats stopping anyone accused of illegally downloading a game just go out and buy it damage it and then claim that they are just replacing there broken legal copy of a game which they are allowed to do as software is a licence as they claim and as long as they own one licence of the game they can get a copy from where ever they want if the original is broken.

    Its pathetic that any company would need to sue there fans to make a cash on there game.

    I advise a petition to this company that unless they stop suing people and drop all current and finished cases that a boycott of all there software would happen.

    Considering that they have not a lot of people who buy there games petition of a couple thousand people who catch there attention unlike bigger companies would.

    Stop sign to stop the suing

  14. Anonymous Coward
    Pirate

    Lawyers are the winners as usual.

    Lawyers are on a nice earner as usual.

  15. Anonymous Coward
    Stop

    The REAL objective

    behind this series of court cases.

    "Games maker Topware Interactive was awarded £6,086.56 in damages and £10,000 in lawyers' fees..."

    The lawyers are the only ones who win. Didn't they actually approach Topware and suggest that these file sharers be sued?

  16. Frederick Karno
    Unhappy

    Lets have it then ???

    I can find loads of half written truths but no links to the actual case.......

    Davenport are snake oil sellers the only judgements they have obtained in the past were default judgements..............if they HAVE actually produced a REAL person in court could we please see it reported properly......

    Its in everyones interests !!!!

  17. Frostbite
    Coat

    WiFi is wide open

    How can you be liable for the security of your own wireless connection if it can be hacked? I haven't found a wireless connection yet that can't be hacked.

    Open network, childsplay. MAC address protected network, easy. WEP protected network, tricky but just need a little patience.

    The coat because I'm just getting my WiFi finder out of my pocket.

  18. Anonymous Coward
    Thumb Down

    On the other hand

    This place is turning into Slashdot. Self-righteous BS about how piracy doesn't "cost" anything.

    The obvious thing to point out is that games cost money to develop and the business model for developing those games relies on the system of copyright, just as the business model of every company in the world relies on the system of contract. We should no more ignore copyright violation than we should ignore contract violation.

    As for the solidity of the case, I can't comment, but I suspect that if your machine really has never had Kazaa etc. running on it then you're not going to have a problem, are you? And if it has, I don't think you've got anything to complain about when you get your ass sued by copyright holders.

  19. Zmodem

    the case is in briton

    out of court settlements aint worth the mention, and nors being taken to court for petty crime

  20. James Thomas

    What the hell is with you people?

    You can dispute whether the evidence was sufficent to find the defendant guilty, fine.

    But why does everyone seem to jump on to every piracy conviction stating that it's in some form 'unjust'. Seeding a commercial game is both wrong and illegal, and the defendent was well aware of this before the fact.

    Software pirates are parasites on society, no better than welfare scroungers. And you know the DRM that everyone is always bitching about? If you want that to go away then stop pirating the f-ing games!

    As software developer, and someone who always buys games (and because I read reviews, almost never buy a dud) I have nothing but comtempt for pirates and those who support them, with the sole exception of those in developing countries who have literally no choice.

    And the damages awarded are in no way a reflection on lost sales. They are punitive damages to act as both punishment and deterent, and relatively reasonable IMO.

  21. Anonymous Coward
    Stop

    RE: On the other hand

    Here here. Whether or not the game is BS or not is irrellevant.

    Why the f*ck should I have to pay for something another whilst someone else does not. End of.

    I hope you filesharers one day develop something really cool, have it stolen, make no money, then go and crawl into a hole and take your own life.

  22. Big Dave

    @AC : On the other hand

    Noone is saying piracy "doesn't cost anything", but they are saying sharing a crappy game doesn't cost them £16K.

    There is a long and ongoing discussion debating that the 'old' copyright-based business model is, simply, wrong and copyright-holding companies are presently attempting to cling onto the old-fashined model, milk the last few pounds from it and gouge the vulnerable of their customers who stray away from "the way things are done".

    Copyright infringement (anyone who likens it to the crime 'theft' is sadly misguided) is not right, but nor is privacy infringment and suing 12-year-olds.

  23. Anonymous Coward
    Thumb Down

    I love this country

    BT home hub is renowned for being as secure as a straw house in a tornado and is the biggest router around (My road has four unsecured, all called BT homehub). The ICO has already declared the people are too stupid to understand technical implications (Which shows the government stance) education is a joke in this country with morals a close second and apathy rules. People have no idea what wireless security or internet security is or how to work a PC effectively. And judging by default 'lack of' security settings from BT and PCworld, neither do the big corporations.

    I work for a small company repairing PC's and the things I see on kids logins in their parents Pc's when repairing their downloaded spyware ridden machines is shocking. Never mind the boys porn collection or their illegal software and music downloads, it is the tech savvy web cam and camera phone using girls and boys, and the photo's and video's they film for their friends that are more worrying.

    Parents just have no idea what their kids are upto.

    You now expect parents to be held responsible for kids that really don't care what or who they download and show off to. Some of my clients don't even know when told what sharing software is, or that it was on (The shortcut only appears in their kids logins), only that their child uses the PC and that it cost a lot to fix and reinstall it.

  24. Anonymous Coward
    Anonymous Coward

    Re:On the other hand

    On the other hand, when companies fuck you over and get sued by private individuals they very rarely if ever get stiffed for 50% of their yearly income.

  25. Anonymous Coward
    Anonymous Coward

    License

    Back on this license thing. It appears that although the software is copyrighted it's the license you pay for. Couldn't the defence be along the lines that sure you distributed the software but that has a monetary value of zero as it's the license that has the value not the software. You'd still get hit for costs but once it was established that the license owner gets nothing it would stop further actions.

  26. Anonymous Coward
    Anonymous Coward

    @ on the other hand

    <As for the solidity of the case, I can't comment, but I suspect that if your machine really has never had Kazaa etc. running on it then you're not going to have a problem, are you? And if it has, I don't think you've got anything to complain about when you get your ass sued by copyright holders.>

    Are you saying, the fact I have a computer dedicated to up/downloading torrents of various linux distributions, that I am guilty of software piracy?

  27. Jim
    Alert

    James.....

    ....gutted you didn't call anyone a 'Knock off Nigel!'

    Taking on average 8Gb a day, most of it's tat. I blame the Software developers. More time nose-to-the-grindstone, less time bleating on technology websites about 'welfare scroungers' and the like.

  28. Vulpes Vulpes

    @ James Thomas

    Wake up and smell the coffee. Pirates are scum except when they are skint and from a developing country? Oh, and only if they're not welfare scroungers either, obviously. Punitive damages are OK, even for a trivial offence involving a crap product from a crap developer, but if she moved to the third world and gave away all her possessions then the fine would be unjust? Think it through next time, jerk.

  29. A J Stiles
    Flame

    @ AC, James Thomas

    The real "piracy" going on is charging money for software and then not letting people see the Source Code.

    I have never, ever paid for a piece of software in my life, and I fully intend never to do so until the day I die.

    Paying to have Source Code reviewed by a third party independent of the author, paying to have data migrated from one application's saved format to another or paying for tuition in the use of a program, on the other hand, are concepts with which I have absolutely no problem.

  30. Gordon Silver badge
    Alert

    Hard to have sympathy

    the defendant missed a chance to pay £300 to make this go away. Unless she was completely innocent she should have coughed it.

    Having said that if it were me I would declare bankruptcy before paying them.

  31. Anonymous Coward
    Thumb Down

    what the hell is with james thomas?

    ...Seeding a commercial game is both wrong and illegal...

    ...Software pirates are parasites on society....

    ....no better than welfare scroungers....

    ....I have nothing but comtempt for pirates....

    ... and those who support them...

    ....the damages awarded are ... relatively reasonable IMO.

    christ! - i thought i'd logged onto the daily mail's website by mistake for a minute there.

    you forgot "... send them back were they came from!...", ".... bring back national service..." and of course "...well, if you're not doing anything wrong you've nothing to worry about!..."

  32. adnim Silver badge

    @Frostbite:Wifi is wide open

    While I concede that WEP is easily cracked and quickly too on high traffic networks, the opening is not so wide with WPA. Open is well, just open, and MAC access controls are easily bypassed. But a WPA protected network with a strong password, wireless isolation and MAC access controls is not so easy. I cracked my wifi protected by WEP in around 4 minutes whilst using a strong password, although I had to keep the traffic up by continually transferring large files between a laptop and the AP. I gave up after several hours of trying to crack it when protected by WPA-PSK using the same password. As a novice security researcher I would appreciate any information I may have missed concerning the ease of cracking WPA as I have placed some trust in using this protocol to protect my own AP.

    Of course should I ever decide to share any copyright material and subsequently get identified, My wifi is open and always has been ;-)

    @AC:On the other hand.

    Whilst on one hand I agree with you, it does cost money to develop software and games software is no exception. Developers have a right to be compensated for their efforts when they produce a quality product. On the other hand I would feel aggrieved if I payed £35/$70 for a games title to find a buggy experience that provided 5 hours of game play, or it was a repack of a previous release. I wouldn't give EA the steam from my feces.

    As for your last paragraph there is a distinction between using P2P software and copyright violation, they are not mutually inclusive.

  33. Steven Jones

    Not a fine...

    I know this august organ has a deliberately provocative and tabloid style, but just maybe they could be technically accurate in the headline. The £16K was an award of damages and costs against the defendant, not a fine. From the point of view of the defendant it may appear to have much the same result, but in legal terms it's a very different thing altogether. A fine is levied under criminal law, damages under civil. It's important to note as civil cases are (mostly) decided on the basis of "balance of probability", and not "beyond reasonable doubt".

    That means it is generally much easier to win a case in a civil court over a crim inal one as the burden of proof is so much lower. Note that this is not always the case - sometimes judges will increase this standard if the case is particularly serious and the consequences for an individual are high. However, it would be naive of anybody to expect the plaintiff to have to achieve the same standard of evidence that would be required if this was taken up as a criminal issue. So be warned.

    On the issue over responsibility for keeping WiFi network secure, then that's clearly rubbbish. There are plenty of establishments that provide open WifI so they would be vulnerable too. However, that doen't means that saying your Wifi network was compromised is sufficient grounds to defend a case like this. Remember that balance of probability issue?

  34. Gav
    Pirate

    Simple Equation, People

    They make the game + You have the game = You owe them money.

    The quality of the game is not the point. Pirates are very good at claiming that what they share and download is worthless crap they wouldn't have bought anyway, a matter of opinion which strangely doesn't stop them wasting their time sharing it and downloading it. How much worthless crap does it take for the average illegal filesharer to get the message? Or is it, as we always suspected, that this excuse is utter BS attempting to defend what can't otherwise be justified? No other industry is expected to conform to this strange idea that if the product (in someone's personal opinion) is poor then it's ok to take one for free, thank you very much. Hey, Kia make crap cars; so I'll just drive this one away without paying as it's totally unreasonable for them to expect payment for their rubbish work.

    If you don't want to owe the company that made the software money then don't illegally download their work. What's hard about this to follow? If you are concerned about paying money for bad software then read the reviews before you buy.

  35. Graham Marsden
    Thumb Down

    "Lawyers have thousands more names"

    Shouldn't that subtitle be "Lawyers rake in £10,000 and have thousands more names"...?

  36. Anonymous Coward
    Anonymous Coward

    Digital Illusions

    Digital Illusions (part of Electronic Arts) should sue Topware Interactive over the name of the game.

    Digital Illusions had Pinball Dreams and Pinball Fantasies out on the Amiga in 1992 and Pinball Illusions in 1995.

    Dream Pinball 3D just seems to be a rip off of the Pinball Dreams name.

  37. Adrian Jooste
    Alert

    Tough justice

    I wish this country would treat the knife wielding chavs with this kind of disproportionate fining. If they can say the parents are responsible for what happens on i-net connections in their name, even if it's a minor commiting the offence, then they should do the same to parents who let the kids roam the streets with mums kitchen knife in their back pockets. I can promise you those parents would all of a sudden take a much bigger interest in their own childrens lives just as will parents getting threatening letters from law firms regarding copyright violations.

  38. Anonymous Coward
    Anonymous Coward

    aaargh

    "As for the solidity of the case, I can't comment, but I suspect that if your machine really has never had Kazaa etc. running on it then you're not going to have a problem, are you?"

    Regardless of any other point regarding the discussion of whether or not this is fair, I feel the need to yet again point out - FILESHARING PROGRAMS DO NOT AUTOMATICALLY MEAN PIRACY. Free domain software, patches and fixes, public or creative commons licenced books and music, the list goes on. Or should the police arrest you for the knives sitting in your kitchen?

  39. Anonymous Coward
    Anonymous Coward

    Well

    "They make the game + You have the game = You owe them money."

    How about

    I download the game.

    I play the game.

    It's shite.

    I delete the game.

    An example, I bought a game, took it home, installed it, it asked me to install copy protection drivers, I removed the game, placed game back in the box, took it back to the shop, told the fag at the counter it didn't work, replaced it with another game.

    I have no real qualms taking shite games back to the place and saying they don't work.

  40. Iain

    @adnim, re: WEP

    Until my DS and Internet Radio support WPA, I just have to hope that any aspiring pirate helps himself to next door's unsecured network instead. I know WEP is broken, but the alternative is turning the whole thing off.

  41. Simon
    Coat

    Hang on, hang on just a minute!!!

    "Convicted" on meagre suspicion of filesharing!!!????

    I thought proof beyond reasonable doubt or even a majority vote had to be given?? Unless of course the people proved the traffic to certain IP and the IP was confirmed to be that persons... or that the game/filesharing tool etc had been found on the PC or summat?

    I dont see how it could have been done on just suspicion.

    Also gotta LOVE the "pay £300 or get sued" approach, its then up Joe Public to prove his innocence once again. I love how many companies are getting in on this act... wont be long before one of them (and I am sure its happened already) just issues these warnings to get people to pay up. Oh yeah... they have... tv licensing...

    Mines the one with the accompanying Bermuda shorts cos I am emmigrating....

  42. Anonymous Coward
    Pirate

    Potential profit

    I keep saying this - potential profit is not actual profit.

    If the games being pirated are not being sold at all, or if they are being sold but not many people are buying them; then the argument that millions could have been lost is pointless and has no basis in real life.

    Which is why I hate the way this country and so many pious people out there kow tow to the RIAA, MPAA, BPI and other corps asses.

    Not to mention the invasion of privacy involved - that is a whole other saga.

  43. dreadful scathe
    Stop

    @james

    "Software pirates are parasites on society, no better than welfare scroungers. And you know the DRM that everyone is always bitching about? If you want that to go away then stop pirating the f-ing games!"

    There will always be pirating, as there will always be people who would like a use something but not buy it. I'd liken it to borrowing a book from a friend, you COULD buy it, but with only a passing interest you are not likely to. In the case of a book though, your friend is deprived of that book while you have it. In this case of a digitial download, no one is deprived of anything. What we are arguing about here is copyright infringement and making people aware that it is not right to illegally download copyrighted material. Taking people to court while increasing prices and use of DRM to make life more and more difficult ... does this seem SENSIBLE to you ? :) Wouldn't lowering the price and making it easier to buy things be a good idea?

    As for DRM - DRM exists purely to maximise profits. You can argue otherwise if you like, but show me where a DRM product is 100% free from piracy? You can even argue DRM lessens piracy, perhaps it does in some cases but at the expense of the consumer who just wants to buy something cheaply with no extra hassle. A cheaper product will simply not be worth pirating in the UK. Hey, didn't Radiohead make MORE money from their freely available last album ? :)

    "As software developer, and someone who always buys games (and because I read reviews, almost never buy a dud) I have nothing but comtempt for pirates and those who support them, with the sole exception of those in developing countries who have literally no choice."

    So piracy is bad except when you say it isn't. Nice of you :) I have noticed that poor software developers with poor products feel especially aggrieved by pirates, often because they are the only people that seem interested in their software. This suggests to me piracy is often more to do with simple distribution and less to do with ripping people off - after all, if there were people out there who were willing to pay for your software - they would. If you need an example, look at the donations some open source software projects get.

  44. John Curry

    Interesting...

    ...that people are complaining about "outdated" business models, and using them as a justification for theft.

    The bottom line is that this company made a product, and you can't just steal it because you claim it's not worth paying for. By that justification, I should be able to walk into my nearest Curry's, pick a new TV off the shelf, and wander away muttering some rubbish about "outdated business models".

    Yes there's improvements to be made in the area of copyright law, but you can't simply steal until they're made. You could instead just choose to not buy those things which you claim are worthless and undesirable anyway.

    Morons.

  45. Frederick Karno
    Coat

    James or is it John Thomas

    Your assertions are way from the mark,I for one have no problems with people who have shared the software being taken to court and dealt with appropriately.....

    What i do have problems with is it being done underhandedly and to some extent illegally.The evidence collection of logistep has been thrown out in switzerland ,germany and italy.....with a lawyer in france using the same method as DL being disbarred for 6 months......for effectively demanding money with menaces.

    If DL have a case they should take it to court pure and simple why should people be allowed to pay £300 quid to get away with an offence by admiting to a third party they are guilty.If people are guilty of such a terrible crime they should feel the full weight of the law.......

    I am not defending illegal filesharing or in anyway condoning copywrite infringement JT but IMO these rulings are not worth a jot when conducted by a firm who are just ignoring the offences and out to make money for themselves .

    If they had real evidence we would see the Police involved in the evidence gathering process which is why these cases have been thrown out elsewhere in Europe.

    I am also disappointed in the ISP's who have fallen foul of releasing information on their customers and having found they have released the evidence improperly have said nothing, they should be taking a case against DL for deliberatly misleading a court that criminal proceedings where going to take place when they never had any such notion and have then used that evidence in a civil case.

  46. Rory Milne

    RE: On the other hand.

    "Self-righteous BS about how piracy doesn't "cost" anything."

    Piracy is a form of robbery. Robbery is forcefully stealing something from someone. Stealing is taking property belonging to someone else with the intention of permanently depriving them of it. Therefore file sharing isn't piracy -it's copyright infringement which is a civil offence not a criminal one. More importantly it's a civil offence that's technically very hard to prove someone has actually committed as has been made clear in previous comments.

    "The obvious thing to point out is that games cost money to develop and the business model for developing those games relies on the system of copyright"

    The business model relies on the fact that a certain number of people have enough disposable income to buy the games that are produced. As long as the games are good and are well marketed then they sell well enough to make a profit.

    Obviously the business model does not rely on people with very little disposable income. This tends to be the type of person who heavily file shares. If file sharing disappeared tomorrow it's not like this part of society would suddenly start buying games by the barrow load instead of sharing them: they couldn't afford to.

    "As for the solidity of the case, I can't comment, but I suspect that if your machine really has never had Kazaa etc. running on it then you're not going to have a problem, are you?"

    Of course you are going to have a problem. Never having "Kazaa etc." on your machine doesn't mean a thing. That's why comments above cover the inherent insecurity of wireless networks as well as multiple machines sharing the same IP address. I won't even go into the legal implications of a company snooping on someone's online activity, never mind using the end result of that snooping as evidence in a court. Even if it is a civil case.

    "I don't think you've got anything to complain about when you get your ass sued by copyright holders."

    I'm old enough to remember when it would have been unthinkable for the average person in the street to be sued or indeed for them to sue someone else. Now even if someone's stupid enough to slip on something in the super market they sue them. In short, suing has just become a clever way for lawyers to make more money despite the fact no criminal law has been broken. That's a pretty sick way to make a living in my opinion.

  47. Anonymous Coward
    Pirate

    The return of 'Long John Silver'

    Here's an excerpt from a letter I had published in Crash! magazine exactly TWENTY THREE YEARS AGO:

    = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

    Dear Lloyd,

    ...It's a fact that not all the games out now are really brilliant, most are pretty average. Your ordinary pirate will copy every game he comes across, copying them all, good and bad alike. Most of the games he copies, he will play only once or twice, because they are not that brilliant. He would play only a few games regularly - for example I have had a copy of Psvtron for five months which I have only played once, and out of my entire illegal collection there are only five games I would have bought if I hadn't been able to get a copy of them. If you think about it, money is only lost on a game if the person who copies it would have bought it in the first place. This means that far less profit is lost due to copying than most software houses would have us believe.

    Also, the software houses may like to know that the harder they make a game to copy, the more determined the pirate is to copy it. So stop using Hyper Loads - it would save everyone a lot of trouble (including the honest people who buy a game, just to find out they can't get it to load.) ...

    = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

    It's all still true today, especially if you consider that 'Hyper-Loaders' were the DRM of the day.

  48. Anonymous Coward
    Anonymous Coward

    "punitive damages"

    Two people have mentioned "punitive damages". Does that concept even exist outside the USA?

    As far as I know, in England, the purpose of damages is to compensate the claimant's loss, not to punish the defendant. If the defendant needs punishing, that can be done with a separate, criminal case - and the fine is then paid to the government, obviously, not the claimant in the separate civil case.

  49. JonP

    @Potential profit

    You're right, but all the games companies have to do is convince a judge that it would be 'actual profit', and then cite that a number of people downloaded it as evidence. Saying that the downloaders wouldn't have bought it and so wouldn't have contributed to 'actual profit' is supposition - how do you prove it?

  50. John Band
    Flame

    Is anyone really this stupid, or are they RIAA plants?

    "By that justification, I should be able to walk into my nearest Curry's, pick a new TV off the shelf, and wander away muttering some rubbish about "outdated business models"."

    No, because copyright infringment doesn't actually involve depriving the copyright holder of anything. Pretty key distinction, no?

  51. Mark

    re: License

    Good one!

    I will DEFINITELY use this one if they ever try.

  52. Anonymous Coward
    Pirate

    Downloads != lost sales

    I was about to say that the standpoint taken by the industry and FAST etc that 1 illegal download/pirate copy is equal to a lost sale is crap.

    But maybe it isn't crap. I downloaded the Radiohead back catalogue off a torrent ( Aye, and I be using an unsecured wireless connection too, arrr!!) and frankly its unmitigated shite. So if I'd not broken the law and had actually paid for it then then some fat cat in the record industry would have been able to buy some more cigars, or cocaine.

    I think that is the real worry the industry... The Internet allows people to find out that stuff is shit without having to pay for it so the usual ploy of the product being 90% crap, 9% OK and 1% brilliance no longer works in the internet age.

  53. Anonymous Coward
    Anonymous Coward

    Stop with the ...

    I wouldn't have bought it anyhow argument - the person not only cared enough to download illegally where the penalty for getting caught outweighs the sale price, but then decided to become a pirate offering to others for nothing thereby devaluing the original product even further.

    I do find it amusing and wonder what these people do for a living who keep thinking it is ok to steal other people's work. If you think it is ok, I am sure others are happy to take your work and pay you nothing.

    And another thing worth considering is, if people did not steal other's work then DRM would not be an issue, there would be no need.

  54. Andy Worth

    Err £6000+?

    That's probably more than they made from sales of the game in the first place......

  55. A J Stiles
    Alert

    @ John Curry

    "By that justification, I should be able to walk into my nearest Curry's, pick a new TV off the shelf, and wander away muttering some rubbish about 'outdated business models'."

    If you take a TV off Currys' shelf, then Currys no longer have that TV. Whereas if someone copies a computer game, the person from whom they copied it **still has it**. See the difference?

  56. Anonymous Coward
    Stop

    I wouldn't have bought it anyway...

    There's a rather lame argument saying "it's not a lost sale, I wouldn't have bought it anyway" - I nicked a car the other week, but don't worry I wouldn't have bought it anyway. Extend it even further and you'd think car companies would be encouraging car theft as every stolen car results in another sale for them... Insurance companies might have a word though.

    As for "try before you buy", well most game companies offer demos (including Dream Pinball 3D) - which rules that out.

    Ultimately it's not free, and you don't have a leg to stand on. In this case (if the quote's accurate), there's even less of a leg to stand on "A woman who put a copy of Dream Pinball 3D on a file-sharing network". She put it there, I could understand the arguments about the cost if she had downloaded it from another source.

    Frankly I think the lawyers have been extremely intelligent. I'm not claiming to be holier than thou, but they've taken the latest warez distribution tools and turned it to their advantage - previously you could only be accused of taking a single copy and not passing it on to anyone else. With p2p you're now implicitly involved in distribution whether you like it or not - and distribution is where they get their money back. Previously we'd been all smug and said "ha, there's no single point of distribution, you can't shut it down".

    Roll on the next sharing idea that swings the advantage back the other way... We've known the risks all along - but it's a calculated one.

  57. Anonymous Coward
    Anonymous Coward

    Not a bad idea actually

    So, how do we go about making a cruddy game, putting a torrent of it online and getting it indexed by the major search engines? Ten people successfully sued for 6K each is more than enough to get me comfy. Mind you, I might have to quit my job to chase court cases, best make it twenty.

  58. This post has been deleted by its author

  59. Andy Livingstone

    Fair?

    According to the Legal Dictionary, "The measure of compensatory damages must be real and tangible"

    How does £6000 plus £10,000 costs meet that requirement on a game widely available at around £8 and rarely rated above one star?

    .

  60. James Thomas

    In response...

    I agree I sounded like a Daily Mail reader :). The use of 'welfare scroungers' was tabloid short-hand, but the comparison with people who take from society without any intention of giving back is entirely apt. Pirates are getting for free something that others pay to support, and if everyone did the same then there would simply not be any professionally produced games.

    I'm mainly just sick of the attitude that piracy has any morale standing whatsoever. It is simply wrong, and those who do it - for whatever reason - should at least have the honesty/dignity to acknowlegde this rather than coming up with crap excuses. My exception for those in the developing world wasn't saying that it was right for them to do it, but that if something is even released in their country it is likely to be so astronically expensive that it is hard to condemn.

    And I was wrong about the damages, I detest lawyers as much as the next man and seems like they were the only winners here.

  61. Jonathon Green
    Pirate

    @AC

    "Ultimately it's not free, and you don't have a leg to stand on. In this case (if the quote's accurate), there's even less of a leg to stand on "A woman who put a copy of Dream Pinball 3D on a file-sharing network". She put it there, I could understand the arguments about the cost if she had downloaded it from another source."

    This kind of turns on the definition of "putting on a file-sharing network" - a fair number of the file-sharing clients I've looked at have share vast chunks of stuff by default, usually including the default "incoming" folder. It could well be that all this woman's done is downloaded it for personal use but left a copy of the original download in her "incoming" folder. without having the faintest idea that by doing so she was making it available for upload from her machine...

    --

    JG

  62. Columbus
    Coat

    eff you right over...

    In the civil courts it is dependent on the two parties & the Court to deal with case justly& fairly.

    In my experience this is not always the case... The legally represented party quite often plays games with the rules, such as not serving the application to the defendant, or "accidentally" missing vital documents, or dates of hearings. The Court usually allows these unfortunate procedural anomolies to stand, thus giving the unfortunate litigant in person not a snowballs chance to mount any defence, if given the chance at all.

    The increasing use of 'costs' as a way of obtaining monies from the great unwashed is a wonderful scam, sanctioned all the way to the High Court.

    Mines the one whose wallet is being lifted by a Barrister

  63. Anonymous Coward
    Anonymous Coward

    @Filesharers

    Copyright infringement does deprive software developers of income; the argument that "I wouldn't have paid for it" is irrelevent. Companies can't fund software development (or film making or music recording) on the basis that they might get money donated if people think it's any good. The argument that a digital copy should be free (or very very cheap) because "it doesn't cost anything" is a complete falacy, the cost of the IP to the developer has already been paid out, if you want the product you have to pay for the IP.

    For those that don't see any value in IP, what about the IP value in other products? Your car probably cost more than £100m to design and develop into a deliverable product, a big chunk of what you pay for it will be to repay that investment in IP. Would you insist that this cost element be taken out of the price of the car and be sold at a loss? You could tell the dealer that if you really like it you'll give them something towards the IP cost later.

  64. Someone

    Legal Expenses Insurance

    Is legal expenses insurance becoming as necessary for owning an Internet connection as insurance is for driving? I’m sure many innocent people would willingly hand over a few hundred pounds to avoid the stress and inconvenience of legal proceedings that may stretch over months or years, viewing it much like a legalised protection racket. However, there’s no guarantee that the solicitors acting for the rights holder will make an offer you can afford to pay. That would make court proceedings inevitable. While you may have the time necessary to devote to your defence, you will lack the money.

    As others have commented, the USA is much further down this path than the UK. The problem of inequality of arms is one of the main concerns highlighted by Ray Beckerman, a New York City lawyer. A large rights holders’ body may be able to bring hundreds of thousands of pounds of resources to court. A legal expenses policy in the UK may limit you to a few tens of thousands of pounds. Nevertheless, legal expenses insurance may significantly reduced this inequality.

    Some people already have legal expenses insurance, as part of their home contents insurance. Previously, I looked at this sort of policy as a bit of a rip off. How many people get sued in a private capacity? Davenport Lyons are trying to change the answer to that for 7,000 people.

    Of course, paying rights holders ‘protection’ money will also be impractical if we get to a stage where Internet service subscribers are receiving multiple, unrelated claims over a relatively short period of time.

  65. Robert Brockway
    Linux

    @ John Curry

    "By that justification, I should be able to walk into my nearest Curry's, pick a new TV off the shelf, and wander away muttering some rubbish about 'outdated business models'."

    As A J Stiles notes, stealing a TV means you deprive the owner of it, but this is not the case for software.

    This gets to the very core of the issue. Stealing in law means to "deprive the owner of the thing of it". Note that it isn't even necessary to take it anywhere. If you walked into the shop and managed to encase the TV in concrete you could also be said to be stealing it (although in practice other offences would apply).

    Stealing is a legal concept that simply doesn't apply to software itself. You can steal the media but you can't steal the software.

    The widespread use of the world "piracy" for sharing software in contravention of the licencing agreement is really disappointing too. _Real_ piracy is a serious crime which involves murder, rape and theft. Real piracy continues to be a huge problem in some parts of the world (Red Sea, African coast, South East Asia).

    What we are talking about is violating software licencing agreements. Let's keep that in perspective. Please stop referring to stealing and piracy because it isn't either of those things.

    IANAL.

  66. Scott
    Happy

    I can solve this whole delimma

    Why not have all games free? Especially the 3d games. Then have the game developers sell advertising within the game? Imagine playing HALF-LIFE2 with huge Coke-a-Cola billboards and monitors playing out comercials for laundry soap. I think it could work.

  67. Anonymous Coward
    Anonymous Coward

    Why should I pay for something only to find its crap?

    Game used to have a no quibbles return policy, I've personally returned a game using that on the basis that it was "crap" when they asked. They had no problems with it at all back then.

    I'm a sad BF2 addict now, so haven't bought anything in ages.. :(

  68. Mark

    re: More interisting is...

    Well, the BSA will take you to court for running unlicensed software. And, as pointed out already, the license is what you buy and that was not shared over P2P. So nothing they sell is being copied and the one recieving it is open to a BSA invasion (where the illegality of running a pirate software package will be punished as per regulations).

    So there was no need for this lawsuit.

  69. Mark

    Re: Stop with the ...

    Why?

    Why not you stop with the "Theft is theft" or "criminals should do the time". Why not stop with "well, I can't prove any losses and although in a civil court I can't ask for punishment payments, please give me vastly more than any possible losses"?

    Stop with them first and then we'll talk.

  70. Mark

    Same old verbal shit spewing out of the AC

    "There's a rather lame argument saying "it's not a lost sale, I wouldn't have bought it anyway" - I nicked a car the other week, but don't worry I wouldn't have bought it anyway."

    Well, stealing a car is theft, not copyright infringement. You will be done by the courts and the car owner could (but unlikely) sue you for taking the car too.

    What if I took a photo of your car? I haven't stolen it, but I now have the enjoyment of looking at your car. Should I pay you for it???

  71. mark
    Thumb Down

    Default judgement

    Another default judgement, she didnt turn up for court according to the Daily Mail.

    http://www.dailymail.co.uk/news/article-1046607/Mother-fined-16-000-downloading-pinball-game-landmark-file-sharing-case.html

  72. Brendan Murphy

    share ratio

    £6000 damages at (say) £30 a throw means 200 copies. That's a hell of a share ratio.

  73. Cap'n wotsit

    so where do I stand then?

    If I went out and bought a game - CoD4 for example, played it on my PC for a couple of months, then some scrote broke into my house and nicked my PC, leaving the empty CD case in my house (I left the cd in the drive) so once Mr insurance man sent me a nice shiny new PC and I set it up, I downloaded a copy of the game and installed it, am I breaking the law because I am getting a free replacement copy of the Media?

    after all I have a valid licence inside the cd case, just no media

    natch this is purely theorhetical honest guv

  74. Anonymous Coward
    Thumb Up

    @james thomas [again!]

    "...The use of 'welfare scroungers' was tabloid short-hand, but the comparison with people who take from society without any intention of giving back..."

    the state takes a fifth of every penny i earn

    the state takes 17,5% of almost everything i buy

    when i die the state will take a fat percentage of anything i'm lucky enough to leave behind

    society [in the form of the state] takes from me continually and gives me fuck-all in return, apart from more taxes and more repressive laws. and the money the 'welfare scroungers' as you call them costs us all is a fraction of the billions the state throws away on unwanted wars, armaments, surveillance of its citizens and the myriad other paraphernalia of nazi-britain.

    i for one salute the dole scroungers, pirates, tax evaders, freegans, freetards, ID card burners everywhere - and anyone else who's 'socking it to the man!'

  75. Jon Kale
    Flame

    Mindblowing concept...

    This one's for all you staunch defenders of the sharing of copyrighted information. I'll make it simple in the hope you might understand.

    If you a) can't afford it or b) don't want to pay for it or c) are worried that it might be a bit shit then DO WITHOUT IT.

    It's not that fucking hard now, is it. Or are you claiming that full and unfettered access to all copyrighted material is in fact a fundamental human right?

    (aside: on the "stealing a TV means you deprive the owner of it, but this is not the case for software" tip - presumably all those of you rocking this particularly specious line of defence would be more than happy if your spouse was fucking someone else too...)

  76. James Hughes

    to Aj Stiles..

    You say you have never and will never 'buy' software? Too late..

    Have you a mobile phone? A car? A Digibox?

    All these things contain software that you have paid for, whether you wanted to or not. Part of the cost (often a large cost) of almost any digital item nowadays goes to paying software licences for software on the device - either the OS, or perhaps libraries for particular functionality.

    So, as I said, too late. You have already paid - and probably quite a lot in some cases.

  77. EvilGav

    Hmmm

    Since the game itself is only a tenner or so, couldn't you take the "give us £300 or else" letter to the police and demand it be investigated as extortion ??

    Last time I checked, that would make it a criminal case, the letter being correctly headed from the solicitors and indeed post stamped would give you dates as well for evidenciary purposes.

  78. Mark

    re: Why should I pay for something only to find its crap?

    Unfortunately, JonB, it don't work that way no more.

    I had a CD that had a hole in the reflective layer. Dixons wouldn't take it because I may have pirated the product.

    Obviously pirates have REALLY GOOD error correction...

  79. Anonymous Coward
    Anonymous Coward

    Dixons.

    Yeah, such a policy is by store rather than by right, Game definitely used to do it.

    There is a fitness for purpose requirement. Though if you've ever tried to take up a store on that you quickly realise that merely threatening legal action isn't enough and who wants to get involved with the OFT?

  80. Anonymous Coward
    Anonymous Coward

    Burden of Proof

    Re: However, what we see is that it's a civil prosecution, and the burden on proof is considered lower there, becoming more of a balance of exectations.

    Incorrect. A prosecution is a criminal matter and the burden of proof is "Beyond Reasonable Doubt". Doesn't matter who's carrying out the prosecution, the director of public prosecutions on behalf of the government ( The Crown) or a private individual.

    In this case of downloading and distributing the game, they've gone after her as a civil matter, basically they are suing her. This is not a prosecution,.

    The burden of proof in a civil case ( in the County Court) is "on the balance of probability", ie, "Does it seem likely based on the evidence that she did download it and distribute it without paying for it?".

    Under the civil court case, she can't go to prison. Allow yourself to go bankrupt, and if you don't own your own house, you'll be fine..so to speak. They might declare you bankrupt ( which could last a few years), your possessions might be seized and sold, but no real harm will come to you.

  81. Anonymous Coward
    Anonymous Coward

    Solicitor's fees

    Sounds to me as if the judgement in this case has been awarded to the plaintiff in the sum of £16,000. So now the case goes to enforcement action ( in the normal run of the mill County Court proceedings).

    It's highly unlikely she'll be able to pay the £16,000, so they'll probably go after her possessions and seize them to be sold to pay the debt.

    What I want to know is, who's actually going to pay for the solicitors for their fees? The defendent in this case probably can't. I can't see the solicitors working for nothing. I imagine the contract is between the plaintiff and the solicitors, so the plaintiff has to pay the solicitors the £10,000. It will be up to the plaintiff to try to recover that £10K and the £6K from the defendent, which they almost certainly can't pay...so it seems to me, that the plaintiff is the one that's going to be massively out of pocket, because they're going to have to pay their own solicitors fees.

    If so, this was not a wise strategy on the part of the plaintiff: this case will have cost them far more money than they ever can hope to gain from the defendant..bad move.

  82. steogede

    Re: @filesharers

    >> For those that don't see any value in IP, what about the IP value in other

    >> products? Your car probably cost more than £100m to design and develop into a

    >> deliverable product, a big chunk of what you pay for it will be to repay that

    >> investment in IP. Would you insist that this cost element be taken out of the price

    >> of the car and be sold at a loss? You could tell the dealer that if you really like it

    >> you'll give them something towards the IP cost later.

    AC, you are partially right. Some of the development cost is recouped when you buy the car, however a large chunk of it is not as that would drive up the initial purchase price too much. No they sting you later e.g.:

    * Your wipers are on continuously no matter what the switch is set to? No problem, that will be £150 plug it into a bit of diagnostic software, £300 for a new computer (can't be bought second hand because it is coded to the car) and 3 hours labour at £60 +VAT

    * Lost your key sir? not problem we will replace the key for £160 and plug the locking system into a computer for £150 (5 minute job).

    * You have a warning flashing on your dash sir? Not a problem with we can plug it into our diagnostic PC for £150 and tell you that it is a simple loose wire because we never fastened down properly.

    @Danger mouse

    >> I wouldn't have paid £0.16 for that game, it's total bobbins.

    Curious that as the damages were exactly 30841 x £0.16 - perhaps they determined that was the value of the game and the number of copies she shared.

  83. John Band
    Flame

    No, *you're* specious-est

    "[on 'they haven't lost out on anything, you muppet'-ists]: presumably all those of you rocking this particularly specious line of defence would be more than happy if your spouse was fucking someone else too"

    Well, I don't think it'd be appropriate to throw her jail or fine her £16k, anyway.

    Seriously - software is a good with a marginal cost of zero - hence basic economics tells us an individual act of software copying makes society in aggregate better off and harms nobody. Normally, such a thing would be perfectly legal.

    The reason it's forbidden is that we've decided that granting the kind of monopoly that would normally be /prohibited/ by law to people who invent particular kinds of stuff is the best way to incentivise more people to invent more stuff.

    In other words, society has decided to set aside basic moral principles for a utilitarian goal. That's great, and copyright (albeit for far shorter periods and fatr less restrictive than seen today) is probably the least worse way of incentivising people to create things.

    However, it does mean that anyone who thinks software copying is something *immoral*, rather than something which regrettably has to be illegal for the greater good, is a clueless moron.

  84. Andrew Makinson

    To pay or not to pay...

    I got one of those letters asking me to cough up £500 for an Atari game. I was going to ignore it as I never touched a P2P network, but now I am wondering if 500 is a cheap way of stopping harrasment.

    Trouble is, I was downloading the game, which I paid £30 for, from a reputible website at the time I am accused of filesharing. I wasn't, as far as I know, on a P2P network while I downloaded this game, and anyway I paid for it!!

    All very confusing.

  85. A J Stiles
    Boffin

    @ Mark

    You forgot the magic words that have retailers quaking in their boots -- "Sale of Goods Act 1979 As Amended". Shame it was so long ago it happened really (Dixons have been called Currys.digital for ages now.)

    The "As Amended" bit is important too, because the Sale and Supply of Goods to Consumers Regulations 2002 amended the 1979 Act -- and enshrined into UK law EU directive 1999/44/EC, aka the Product Warranty Directive, which mandates a **two-year** warranty rather than the one year to which we've become accustomed. Under these regulations, you can now apply to the courts for an injunction ordering a retailer properly to honour a guarantee.

    And if a sales assistant turns on the bullshit, insist to speak to a manager.

  86. ed

    Don't tell us what you think, tell them:

    http://www.topware.com/ Click Contact at the top and fill in the web form.

    Unfortunately you'll have to suffer their crappy flash website. That's a serious enough crime in itself for me to boycott their software.

  87. Anonymous Coward
    Coat

    you have to remember

    That it's really millions of pounds of taxes that HM gubmint is losing.

  88. Anonymous Coward
    Anonymous Coward

    Andrew Makinson

    Re: Andrew Makinson

    If you can prove you purchased the game then you have nothing to fear.

    You just turn up at Court and present your credit card statement showing the name of the company from where you purchased it.

    It would help if you had a letter from that company stating what you had actually purchased. If you don't have that, then the plaintiff would have to apply for a court order to order the supplier to disclose that.

    But if you really did pay for it, and you can show it, the onus is going to be on the plaintiff to prove you didn't.

    They might have an IP address for you, but can they prove what you actually downloaded via Peer to Peer Software..would be hard for them to prove it.

    And you should certainly never given into letters threatening to sue you if you know full well you did obtain the software legally.

  89. Anonymous Coward
    Anonymous Coward

    Not a fine!

    Re: Well, I don't think it'd be appropriate to throw her jail or fine her £16k, anyway.

    This is not a criminal prosecution. This is a civil case. They can't fine her and they certainly can not send her to prison, not even if she can pay but refuses.

    The news,even the BBC are referring to it as a fine, technically it is not. A fine is a penalty issued by a judge in a criminal case.

  90. Nigel Brown

    Halo polishers of the world unite

    Whenever the subjecy of P2P comes up, it never faiuls to amaze me how many people claim to use it for distribution of linux distos.........

  91. Steven Jones

    @By RotaCyclic

    This was not a "civil prosecution" - I think you mean "private prosecution" which is indeed a matter decided by the beyond all reasonable doubt measure (a "private prosecution" is essentially a criminal prosecution undertaken by a private individual or organisation and normally requires special permission by a court (although certain non-governmental bodies have the authority to carry out prosecutions where the law specifically allows for it - the RSPCA & NSPCC have that right in certain areas of the law). This case was a straight suing for damage, albeit under something allowed for by statute rather than just common law. It's (usually) a balance of probability issue, with the standard adjusted by the judge using his/her discretion.

    As it happens, it looks like this was a case that went by default as the defendant didn't turn up. If you don't turn up for a civil case, then (usually) the case goes against you by default. If you don't turn up for a case under criminal law - well you are likely to be subject to an arrest warrant and could end up with some more serious charges as well.

    T

  92. Michael
    Linux

    New Business Model

    "By that justification, I should be able to walk into my nearest Curry's, pick a new TV off the shelf, and wander away muttering some rubbish about "outdated business models"."

    Actually, the new business model is if you walked into a nearest Curry's and *cloned* a new TV. You have removed nothing that was not already there, "stolen nothing" in other words.

    New business models must take into account this factor, pirates are not rival with your *possession*, but they are rival with sales of intangible *licenses* to operate (the game, music, movie). Successful business models shift the "monetization" to the license itself. It has been so with mainframe software for decades. Alas, while computer programs can be made that require licensing, audio media formats exist that do not and I can think of no way to prevent it -- music is just data (whereas a computer program MUST interact with the central processing unit creating a point of control).

    Ah, but what if the *data* is never released? Suppose you come to the data, not the other way round! That is how Google Earth maintains its ability to monetize the otherwise free Google Earth. That is how online games can do it; you cannot copy the game because you never possess the game; you can at most possess only moment-in-time screenshots.

    Paying for permission to do ordinary things (the "license") is almost unknown in the USA. When I first encountered the concept of paying for a radio or television receiver I was amazed. What am I paying FOR? The signals are in the air, just reach out and grab some signal. Why should I pay anyone for THAT?

    As an aside: Sir Thomas More' explained it quite well 500 years ago in "Utopia", the concept of taxing ordinary behaviors simply because you CAN.

    You can make money in two ways (that I can think of right now) in a commons. One is to restrict entry to the commons in the first place and the other is to appeal to a Patron.

    The Patron pays for something expensive and what the Patron gets is not always or very often obvious. Michaelangelo had a patron without whom we would have no Sistine Chapel artwork or naked David. Open Office exists because of patrons Sun Microsystems and Star Division GmbH .

    Restricting entry to the commons is achieved in various ways. Put a fence around it the easiest (National Parks for example).

    Making a part of the commons "uncommon" is the most ancient and proven way. In the original commons, everyone herded sheep or whatever on the same grass. Strong temptation existed for you to herd more sheep than your neighbor and thus gain advantage. The inevitable result is destruction of the commons by overgrazing; and the cure is to fence the commons into little plots, at which point it is no longer a commons; OR put one big fence around the whole commons and appoint a gatekeeper to control entry to the commons.

    In the case of video games, the gatekeeper is the web server that controls your access to online games and you never possess the actual game, but you are vicariously in the commons of the playing field.

    When you buy a game that can be copied, you are in a commons, and if you cheat, the commons will be destroyed. In the case of games, writers of games will cease to produce games if they really cannot obtain compensation. It is inevitable.

    Consider the "Grand Canyon Skywalk". The Grand Canyon itself is too big to fence or restrict in a meaningful way. BUT if you control (or create) a highly desired viewing point, then you can monetize the value of that viewpoint and you can further increase the monetization by not allowing copying -- since it is a "view" that is being sold, prohibiting photography prevents copying the "view" thus: "No Cameras Allowed -- Many visitors have complained about the unusual rule that no cameras are permitted on the skywalk. The tribe claims that this is to protect the glass from being scratched, while critics believe that this is more to preserve their ability to sell postcards and other stock images." (http://en.wikipedia.org/wiki/Grand_Canyon_Skywalk)

    (Penguin, because the commons can contain excellent free software, the free dirt on which value propositions can still be built)

  93. ratfox Silver badge

    The worth of pirated software

    Each side has its own estimation of the damage of piracy:

    - Copyright holders pretend that each person who pirated their product would have bought it if they hadn't been able to get it for free. So they estimate their loss by multiplying the number of downloads by the retail price.

    - P2Pers pretend nobody who pirated the product would have bought it, even for a cent. So they estimate the damage as nothing.

    Obviously, both sides are being dishonest about it.

    For one thing, having net access to download is not free, and the price charged by ISPs is a function of how much people download. So people downloading for free are still paying money for that, just not to the copyright holder.

    For another thing, many people might actually pay for the product if it wasn't often faster to download it than going through paying for it.

  94. Fozzy
    Thumb Up

    New business model for selling software

    Well sort of.....

    It appears for the software houses out there, that there is more money to be made in bringing action against copyright infringers and file sharers than in the original sale of the software. I wonder how long it will be before the software houses start ditching their developers for teams of ambulances chasers to make their money through the courts rather than developing a product people would actually like to use

  95. david wilson

    @A J Stiles

    >>"The real "piracy" going on is charging money for software and then not letting people see the Source Code."

    What?

    If I sell someone software, whether as standalone software, or code embedded in hardware, I'm selling them a product to use, and that's all.

    Unless I happen to choose to give source away, or I'm compensated for doing so, there's no reason why I should be expected to tell anyone exactly how my programs work, any more than a car manufacturer should be expected to give away their CAD files.

  96. Anonymous Coward
    Anonymous Coward

    Responsible for security?

    So by saying you are responsible for the security of your router they are saying if someone steals your car which you left the keys in by mistake and uses it in a bank robbery you are also part of the crime? I dont think this will stand up in a court with a jury.

  97. Anonymous Coward
    Anonymous Coward

    duh.

    Actually the reason people are on the side of the file-sharer is because we all know what it's like to be constantly ripped off. With 5 different versions of an album. 1 for Europe, 1 for Asia, 1 for America, 1 limited edition, and 1 with a random extra track. Then they also release the singles first which means if you want the songs you need to either wait for the album to come out, or buy all the singles, then buy them again as part of the album when the album comes out.

    Then buy it all again if you want the Asian version which has videos on it, which the UK version does not. And pay to get it imported, and make sure you have a multi region DVD player otherwise the DVD you paid for and want to watch will not play in this country because they decided to rip us off some more on DVDs.

    Then you find out that the 3 singles you loved are the only good songs on the album, and the rest is filler.

    Then you actually decide to fork out £20 for a DVD (Disney) A film which was made decades ago.. You try to sit and watch it and just enjoy a few hours of your legally bought DVD, but you end up stressed out because you are forced to sit and watch 10 minutes of adverts for their other films first, with no ability to skip them. Even though you bought the film!!!!!!

    Why the hell do you think people do it? Why?

    Not many people give a damn if the rich people are losing a couple of pounds. Don't kid yourself, no little guys are losing out.

    These blockbusters, Batman for example, cost hundreds of MILLIONS to make. They make the money back through the cinema release alone. (another rip off)

    These people get chauffered in their Mercedes, from their mansion to the world stage, then ask their butler to pass the violin. Spare me. This kind of thing will only encourage rebelliousness and people to hide their tracks better.

    PS- It isn't stealing. Stealing is taking something physical and depriving the owner of it. This is copying. Profit is not just the reason people make things. And it is usually not the reason they decided to go into that line of work (before greed took over) Some of the reasons for making these products are supposed to be for their love of it, to give people enjoyment, and also to get their name and product out there and known.

    They should realise that most of the people who are downloading the things do it because they can't afford it. But they are still getting their name out there, getting them recognition and support. (In many cases people try to make the effort to buy the real thing and support the maker when they find the film/music to be of good quality) Their product is still doing what it was always supposed to do, it's just not making as much profit/selling as much as it could if these people acting illegally had more money or the companies prices were lower, and quality, or thought for the customer was higher....

  98. Colonel Panic
    Dead Vulture

    Damages != fine

    The Court ordered the Defendant to pay damages to the Claimant. A fine is where a court orders a criminal to pay money to the state after a conviction.

    Since we're on the subject, damages are not punishment - they are mean to put the Claimant in the position they would have been if the Defendant had not committed the tort. So what the court is saying is that if Ms Barwinska had not done what she did, Topware would have earned an extra £ 16,000.

  99. Mark
    Paris Hilton

    @david wilson

    "If I sell someone software, whether as standalone software, or code embedded in hardware, I'm selling them a product to use, and that's all."

    Yes but you are getting copyright based on the source code. We can't learn how to program without source code. We can't see what novel innovative algorithm you used to solve your problems from the binary output.

    In fact, since copyright is only for expressive content and there is NOTHING expressive about object code, there ought not to be copyright on it at all.

    NOTE: if you do show the source code, this does not mean you lease copyright on it unless you specifically make it so (as per GPL/BSD/AL/Shared Source/...). So you lose NOTHING. Unless you code like crap, in which case you may lose customers to another who writes better code.

    And that's the free market working.

    You daft or what?

  100. Anonymous Coward
    Boffin

    @JonP

    "Saying that the downloaders wouldn't have bought it and so wouldn't have contributed to 'actual profit' is supposition - how do you prove it?"

    It's almost like asking the accused to prove their innocence there; what if we reword the question - how do you prove that the downloaders would have bought it?

    Surely assuming that the downloaders would have bought it thereby generating the probability of actual profit is supposition as well?

    It's never actual profit unless it moves beyond supposition, which it would'nt do unless they asked all the downloaders (without coercion) if they would have paid for it if there was no torrent available.

  101. Anonymous Coward
    Anonymous Coward

    Costs

    It seems that in this case the costs incurred massively outweigh the damage done.

    Can that really be fair? If I broke someone's window could I end up with damages of 50 quid and costs of 10,000?

  102. Sooty

    not really

    "By that justification, I should be able to walk into my nearest Curry's, pick a new TV off the shelf, and wander away muttering some rubbish about 'outdated business models'."

    a better analogy would be you going into curry's carefully examining a tv in there and then building one for yourself. While selling the resultant tv's would get you into trouble, would you think making it for your own personal use was particularly wrong? Specifically, would you consider that a lost sale of a £2000 plasma tv if you had the know how to make one for yourself after examining one in Curry's?

  103. A J Stiles
    Linux

    @ david wilson

    "If I sell someone software, whether as standalone software, or code embedded in hardware, I'm selling them a product to use, and that's all.

    Unless I happen to choose to give source away, or I'm compensated for doing so, there's no reason why I should be expected to tell anyone exactly how my programs work, any more than a car manufacturer should be expected to give away their CAD files."

    Bollocks.

    Firstly, your car analogy is flawed. I don't need the CAD files or blueprints to study the operation of a car, and the manufacturer of a car has no business preventing me from applying decals or suspending fluffy dice from the rear view mirror.

    I have a right to examine (or to employ a third party of my free choice to examine, on my behalf) the Source Code of any software I intend to run on my computer, in order to assess its suitability for my purposes; and I have a right to adapt it (or have it adapted) if I deem necessary. If you are not prepared to show me the Source Code, then I am afraid that I am not prepared to accept your binary.

    What have you to gain by attempting to keep the Source Code secret? Judging by all the pirate copies of Windows, Office and Photoshop out there, it certainly doesn't prevent piracy. And it has only a very limited effect in preventing code plagiarism: if *everyone* was forced to show their Source Code, it would be obvious who was relying on others to do their R&D for them. Therefore, the only reason why anyone would want to keep their code secret from the people who pay their wages, is that it contains something that would embarrass them if other people found out about it -- either schoolboy errors (à la OO.org 1.x) or deliberate nastiness (à la Sony Rootkit).

    Furthermore, by denying me access to the Source Code, you are saying to me "You will never be good enough to do anything beyond what we tell you you can." I refuse to be patronised so. I am the one who is doing you a favour here, by paying you for a program you wrote, and if I can be treated with more respect elsewhere then I will go elsewhere.

  104. Sarah Bee (Written by Reg staff)

    great stuff

    When we finally destroy the planet all that will survive are rats, cockroaches and this argument. In fact, when the sirens go off I'm planning to hide in it.

  105. david wilson

    @Mark

    >>Yes but you are getting copyright based on the source code.

    Copyright is based on software being a result of creative work, which work the creator has the right to profit from if they choose to.

    >> We can't learn how to program without source code.

    Wow, really? I feel for you. Still, that sounds like your problem, not mine.

    I don't jack about how to design cars, but I don't expect Ford to help educate me if I buy a Mondeo.

    >>We can't see what novel innovative algorithm you used to solve your problems from the binary output.

    No, you can't. So you work it out for yourself, start to finish, like programmers used to do. Analyse a problem, work out possible approaches, try one or more of them, see what works, refine it, see what other ideas you've had along the way that might make a better, etc. *Much* more educational.

    And if I did have a novel algorithm, why on earth should I give it away, rather than keep it as a trade secret.

    >>So you lose NOTHING. Unless you code like crap, in which case you may lose customers to another who writes better code.

    If there's a commercial market for my program, then the more expensive it is for other people to legally duplicate my work, the higher the value is of the work I've done. If looking at my code helps someone else write something equivalent more quickly, then I do potentially lose something by giving away my source.

    I dare say there may be special situations where a program is sold commercially, yet the buyers do both want and actually need access to source code.

    However, those situations don't seem overwhelmingly common.

    Anyway, am I supposed to spend extra time richly commenting even the bits of code that are obvious, just so someone slower doesn't get confused reading it?

    Heck, I did enough of *that* at uni.

  106. Anonymous Coward
    Anonymous Coward

    closing the "loopholes"

    Looks to me as if this case and the lawyers comments are trying to close a couple of "loopholes" that people have often claimed would keep them safe from prosecution.

    1) emphasis on being responsible for securing you wireless connections I suspect is not telling people they must get 100% secure wireless but rather indicating that the "defence" of "wasn't me guv - I've disabled security on my wireless so anyone could have connected and done this"

    2) I seriously doubt this person and the "1000s" of others have deliberately decided to make this game available for download ... instead its probably just passed through their machine in some distributed P2P scheme. Thus what this case is saying is that if you join a P2P system then the "defence" of "wasn't me guv - I've no idea what the P2P system stores on my computer" won't stand up to scrutiny.

  107. Mark

    @david wilson

    1) But there's nothing creative in operating a machine. I get no copyright on an engine gasket I punch out on the press.

    The object file operates the computer.

    2) Nope, it's your problem. Copyright is not an inalienable right. It's a grant by government fiat and can be removed. Software never used to be copyrighted and it is only recently it has been possible. And even more recently that object code was copyrighted.

    3) So you want Trade Secret AND copyright? Pick one. Good job on selling your work under Trade Secret, though.

    4) No, copyright would mean if someone copied your code, they would be infringing copyright. GPL is making a lot of companies money even though their source code is open for all. People who take the code without obeying the license (and the license is all they have to copy code with, so if you have no license on your source, they cannot UNDER ANY CIRCUMSTANCES break copyright on that source) have been sued and the offender made to undo the damage. You can do so too. Secret code is not THE answer. Its one. And a poor one at that.

    5) Have you paid your university for the money you've made from their teaching you? That is copyrighted too: a unique expression. Pay up you pirate!

  108. Mark

    "loss of a potential sale"

    We are told that loss of a potential sale is as bad as loss of a sale and so the fines are set accordingly.

    But what about products not available? Each and every person in that region denied legal access to the work is a lost potential sale! E.g. Manga cartoons in the US. 250,000 potential lost sales.

    I say the copyright owner needs to sue themselves! They are by far the biggest pirates causing lost potential sales IN THE WORLD!!!

  109. A J Stiles
    Paris Hilton

    Thought experiment

    What if someone was to release a copyrighted product and not only did NOBODY pay for it, but NOBODY pirated it?

    But of course, that's very unlikely to happen in today's culture.

  110. david wilson

    A J Stiles

    >>"I have a right to examine (or to employ a third party of my free choice to examine, on my behalf) the Source Code of any software I intend to run on my computer, in order to assess its suitability for my purposes; and I have a right to adapt it (or have it adapted) if I deem necessary. If you are not prepared to show me the Source Code, then I am afraid that I am not prepared to accept your binary."

    'Right' is not the correct word. Not by a long shot.

    You don't have a 'right' to see or adapt code just as you don't have a 'right' to screw someone. If they choose to give permission, then it's not illegal for you to do it, but it's up to them whether to grant you that privilege.

    All *you* have is a 'right' to choose what software to run, what offers to accept. A 'right' which is so obvious and so weak that it would seem odd that you'd think it worth mentioning in the first place.

    >>"if *everyone* was forced to show their Source Code, it would be obvious who was relying on others to do their R&D for them. Therefore, the only reason why anyone would want to keep their code secret from the people who pay their wages, is that it contains something that would embarrass them if other people found out about it"

    You honestly think that an individual (as opposed to a large organisation) can really search a world full of source code for things copied from them?

    For a great deal of programming, not broadcasting source code is the cheapest and most obvious first step to make it harder for other people to profit from one's own work.

    None of that's knocking free/open source software. It's just that it's entirely up to the creator of a work to decide what other people can do with it.

    >>"Furthermore, by denying me access to the Source Code, you are saying to me "You will never be good enough to do anything beyond what we tell you you can."

    It sounds like you have a few issues there, but I don't know if they're much to do with programming.

    >>"I refuse to be patronised so. I am the one who is doing you a favour here, by paying you for a program you wrote, and if I can be treated with more respect elsewhere then I will go elsewhere.

    Hang on, aren't you the guy who said:

    >>"I have never, ever paid for a piece of software in my life, and I fully intend never to do so until the day I die."

    You reckon anyone would lose sleep if you *did* go elsewhere?

  111. david wilson

    @mark

    >>"1) But there's nothing creative in operating a machine. I get no copyright on an engine gasket I punch out on the press."

    And I get no copyright on the output of a program.

    >>"2) Nope, it's your problem. Copyright is not an inalienable right. It's a grant by government fiat and can be removed. Software never used to be copyrighted and it is only recently it has been possible. And even more recently that object code was copyrighted."

    Hold the front page! "Law not set in stone!. Changes in response to society!"

    Actually, you wanting to look at someone else's source code for your own education *is* your problem, if the writer chooses not to make the source available.

    Anyway, IIRC, even in the very early home computer days, copied software (even non-commercial home bootlegs of object code) wasn't legal, even if it may have fallen under something other than copyright law.

    Much earlier than that, and the nature of licensing on 'proper' computers made copyright less important.

    >>"3) So you want Trade Secret AND copyright? Pick one. Good job on selling your work under Trade Secret, though."

    What? I can sell a product, physical or otherwise, that's produced via a secret process without losing any rights to keep the process secret, since a Trade Secret is simply something that I don't tell other people.

    With software, however, the fact that it's potentially cheap and easy to copy the end product means that the end product itself deserves some kind of protection, however open or otherwise its production was.

    >>"4) [...] You can do so too. Secret code is not THE answer. Its one. And a poor one at that."

    In some situations, secret code is the best answer, in some situations it isn't.

    It's up to the developer to decide, depending on the circumstances, not up to other people (especially those (not meaning you) with with a highly developed sense of entitlement, something which seems to be shared by quite a few filesharers).

    5) Have you paid your university for the money you've made from their teaching you? That is copyrighted too: a unique expression. Pay up you pirate!

    Well, I don't sell *their* unique expressions of anything, only my own expressions, and to be honest, almost everything I came away that was actually remotely useful was stuff I just learned, not stuff that someone taught me.

    Which is, after all, how such things are supposed to work.

  112. Mark

    @david

    1) You do: the output of the "compiler. NOTE: this was so strange that all compilers have to say that they demand no rights on the output. Copyright hasn't been written for "the computer age".

    2) No, copyright is a grant from US to YOU. That we pirate because we can't get the law changed is your problem. Sucks for you, eh?

    4) No, the source code is copyrighted AND a trade secret. The output is not expressive (which is a requirement of many copyright regimes, like, oh, the US) so it's only convention (untested in court) that object still falls under copyrightable works in the US

    5) you do sell what you get from it, though. Every time you sell on a copy of their knowledge, compressed through your understanding and your expression (rather like the MP3 isn't a copy of the music ripped, but a close analogue that gets the gist across).

  113. Mark

    @david

    Re your rather arrogant assholery in your reply to AJ, with no customers, what the FUCK are you selling?

  114. Gobhicks

    Do some research, everyone, please!

    “Back on this license thing. It appears that although the software is copyrighted it's the license you pay for. Couldn't the defence be along the lines that sure you distributed the software but that has a monetary value of zero as it's the license that has the value not the software. You'd still get hit for costs but once it was established that the license owner gets nothing it would stop further actions.”

    <sigh> Paying for a software license gives you the right to do certain things with the software, as defined in the license, that otherwise would infringe the copyright in the software. The existence of the copyright and the sanctions available for infringement of the copyright are completely independent of any license. Proof that you accepted the terms of a license and then breached the terms might make it easier for the copyright owner/licensor to take action against you, but copying/using/distributing copyright-protected software without authorisation from the copyright owner is copyright infringement regardless. It’s the copyright in the software that gives value to the license, not the other way about.

    Anyone with a serious interest in copyright issues should start at the UKIPO website

    In reply to other points made above, copyright is essentially a private right: it is for copyright holders to enforce their own rights through the civil courts and out-of-court settlement is positively encouraged, before an action is even raised if possible.

    As regards “punitive damages”, in the UK:

    Copyright, Designs and Patents Act 1988

    S97 Provisions as to damages in infringement action

    (1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

    (2) The court may in an action for infringement of copyright having regard to all

    the circumstances, and in particular to -

    (a) the flagrancy of the infringement, and

    (b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.

    Note also:

    “Deliberate infringement of copyright on a commercial scale may be a criminal offence. This activity is usually known as copyright piracy and is often linked to wilful infringement of trade marks known as counterfeiting where criminal offences also exist. Piracy and counterfeiting are therefore often also referred to as intellectual property or IP crime.”

    (UKIPO again)

    So what we’re talking about here is not really “copyright piracy” as it is usually understood.

    PS If you can’t afford it you can’t have it. It’s that simple.

    PPS Copyright is the basis for OSS, whether you like it or not, and however ironic it might be. “Copyleft” would be meaningless if copyright didn’t already exist.

  115. michael
    IT Angle

    my 2 cents

    are in fact 2 questions

    1. how did they deturn the number of downloads was it pepol conected or amount downloaded e.g my torrent client is set to stop uploading at 1.2 x the download value (eg if the download is 100mb it will stop uploading at 120mb) but druing that time 100's of pepol will have got a part of it so will I get sued for £30 *1.2 or £30*200 ?

    2. how are they cirtain the pepol who downloaded it did not have a ligmite right to do so e.g earler this mounth I needed to reformat a mecheen with xp but the cd that came with it was lost but the key was stuck on it do I torrented a new cd that was not illagele?

  116. Mark

    @Gobhicks

    No, according to the companies, we're buying a license. And installing and using software is not copyright controlled in ANY Berne signatory. So using the software is not copyright controlled. Much as the software sellers would like otherwise.

    It's much more cut and dry with music/movies but they still keep telling us "we bought a license not the CD".

    The license is not shared, so nothing you are selling is being infringed on.

    Copyright being a civil infraction has to show harm done.

    So the software company is due £0 from each filesharer.

    Re your PS's

    1) Nope, if you can take it you can have it. We then go into laws but according to the law, filesharing is a civil tort and you can only claim financial losses as proven.

    2) Yes, we know OSS relies on copyright. This has fuck all to do with this.

  117. Mark

    David, if you want us to feel sorry for you

    Or indeed anyone being hurt by the new digital age making their old-world livelihood obsolete, don't be a cunt.

    Your cuntness is well displayed by your insistence that you don't need customers.

    So why should we feel sorry for you?

  118. rick buck
    Gates Horns

    over priced crap

    @ $17,000, they got more than it would have made in a lifetime of sales. The state of PC Games now is terrible. Just last week I bought a game for $10.00 and it will not even run, and all I can do is return it for the same game, not one that will actually run. They just keep turning out crap, and taking your money, and laughing all the way to the bank.

    A "Comsumers Bill of Rights" will state that even with acceptance of a EULA or TOS,

    If product is crap, will not run, or contains malware (sONY ROOTKIT ANYONE?), Manufacturer/Seller is responsible for restoring system to "As Before Condition",

    and returning funds paid for purchase and restoration of "As Before Condition" by a Third Party, and that would Greatly Decrease the sale of useless crap, and use of software to compromise systems.

    Evil Bill... 'cause he is the father...of the root of all evil...tracking and bloatware.

  119. Gobhicks

    @mark@gobhicks

    ** No, according to the companies, we're buying a license.**

    What exactly do you think that means, “to buy a license”? A license is an agreement between two parties, whereby one party (licensor) grants certain rights to the other party (licensee). That presupposes that the licensor has exclusive rights that are under his control: for a software license, the copyright in the software. Buying a license means buying permission to do certain things that the licensor could otherwise stop you from doing, in this case on the basis of copyright. If there was no copyright, why buy a license?

    **And installing and using software is not copyright controlled in ANY Berne signatory. So using the software is not copyright controlled. Much as the software sellers would like otherwise.**

    WIPO COPYRIGHT TREATY

    adopted by the Diplomatic Conference on December 20, 1996

    Article 1

    Relation to the Berne Convention

    (1) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention. This Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties.

    Article 4

    Computer Programs

    Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.

    And

    Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs

    1. In accordance with the provisions of this Directive, Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the purposes of this Directive, the term 'computer programs` shall include their preparatory design material.

    And

    (UK) Copyright, Designs and Patents Act 1988

    3 Literary, dramatic and musical works

    (1) In this Part –

    "literary work" means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes –

    (a) a table or compilation other than a database,

    (b) a computer program,

    (c) preparatory design material for a computer program, and

    (d) a database;

    ** Copyright being a civil infraction has to show harm done.

    So the software company is due £0 from each filesharer.**

    I didn’t express a view about the level of damages awarded in this case. I only pointed out that a court has the right to award damages on a basis other than the actual loss to the copyright holder.

    **1) Nope, if you can take it you can have it. We then go into laws but according to the law, filesharing is a civil tort and you can only claim financial losses as proven.**

    OK, if I may clarify: if you can’t afford a license for a piece of software, you have no right to copy/use/supply it.

    **2) Yes, we know OSS relies on copyright. This has **** all to do with this.

    … except for the many that clearly want to have their cake and eat it.

  120. nana

    The same tired crap again

    <troll>

    @ Anonymous Coward Posted Tuesday 19th August 2008 10:10 GMT

    Gonadal brain leak. A false statement, prepended by "obvious", is still a false statement. The developed business model relies on people paying money to purchase the product - Copyright does not pay anything (except in litigation, it would seem).

    From what I can gather, the success of Davenport Lyons relied on the lady admitting liability - there's not much in the way of a definitive win.

    @ James Thomas Posted Tuesday 19th August 2008 10:32 GMT

    Don't be facile, unless you can substantiate your claim. Furthermore, DRM does nothing to prevent games copyright infringement. Not a sausage. If it did, it would cripple licensed versions.

    As a developer you would know that you are paid for what you produce, and the degree to which that product is shared has no bearing on your bottom line.

    I have no idea what to make of your free-software-for-the-poor-starving-Africans. Apart from commenting on your inconsistency.

    @ Gav Posted Tuesday 19th August 2008 11:21 GMT

    The claim is against providing the software to others, not "illegally downloading" it. There is no criminal or civil infringement in downloading software. It's a simple equation.

    @ Anonymous Coward Posted Tuesday 19th August 2008 13:25 GMT

    ibid. douche.

    @ Anonymous Coward Posted Tuesday 19th August 2008 14:30 GMT

    Put up or shut up. "it is because it is because i say so" is not a valid argument.

    And 0/10 for your car analogy - you would have been better off talking about taking the design of the car and using it to build my own car.

    @ By Jon Kale Posted Tuesday 19th August 2008 15:25 GMT

    I'm inclined to agree with you. People need to learn to stop being such demanding infants, and do without. However, being bent over and shafted is disproportionate.

    That being said, there is a lot to be said for a system that distributes creative works to anyone that wants them, for free, such as a system of patronage - this was effective up until the point of copyright, which created a unilaterally beneficial rent seeking arrangement.

    That your wife is being ploughed by another is no reason to project, and makes for a crap line of reasoning.

    </troll>

  121. david wilson

    @mark

    >>"1) You do: the output of the "compiler. NOTE: this was so strange that all compilers have to say that they demand no rights on the output. Copyright hasn't been written for "the computer age"."

    Any explicit or implicit understanding between me and the compiler writers isn't a concern of the end user, so isn't relevant to the analogy.

    Anyway, copyright has been *updated* for the computer age, as you pointed out, and if *everyone* really does puts a disclaimer on their compilers, there wouldn't seem to be any urgency for the law to change to explicitly cover what's already being covered.

    >>"2) No, copyright is a grant from US to YOU. That we pirate because we can't get the law changed is your problem. Sucks for you, eh?"

    Obviously, you misread what I wrote. *Whether or not copyright exists*, unless you manage to legalise burglary, your desire to get educated by looking at other people's source code will be frustrated unless they choose to let you see it.

    Despite what some people claim to try and make themselves feel better, hardly *anyone* pirates because they object to copyright law. They pirate because they want to enjoy things without actually working for them, and those who also whine about copyright law largely do so because it imposes a potential cost on their freeloading.

    >>"4) No, the source code is copyrighted AND a trade secret. The output is not expressive (which is a requirement of many copyright regimes, like, oh, the US) so it's only convention (untested in court) that object still falls under copyrightable works in the US"

    Err - weren't you the person saying

    >>"So you want Trade Secret AND copyright? Pick one"

    which seemed to imply you thought it was (or should be) an either/or situation.

    If it were merely a 'convention' that object code was protected, it would seem to be a convention that no pirate has tried to test in court. Odd, that, since it's object code that pirates get prosecuted for selling and/or giving away.

    5) you do sell what you get from it, though. Every time you sell on a copy of their knowledge, compressed through your understanding and your expression (rather like the MP3 isn't a copy of the music ripped, but a close analogue that gets the gist across).

    I sell my knowledge and skills, very largely developed through experience. I don't sell their knowledge in any form that they might possibly recognise, and hardly anything they taught me wasn't already in the public domain anyway.

    And they certainly didn't teach me for free. They were paid what they asked for for contributing to a relatively small and generally declining fraction of my skills.

  122. Mark
    Thumb Down

    Cake eating?

    Why is that?

    Shared source, GPL, AL all have the code available. Using them in a copyright-controlled fashion is verboten by law.

    What's the problem, apart from a severe rectal/cranial inversion on your part?

    PS let me know what company you work for and I'll avoid your products like the plague.

  123. david wilson

    @mark

    I think you'd maybe better go and try to learn to tell the difference between what people *actually* said, and what you want to *believe* they said.

    Outside your imagination, where am I asking you (or anyone else) to feel sorry for me (or anyone else)?

    Outside your imagination, could you tell me, where did I insist that I don't need, or that I don't have customers?

    As far as I can see, the most I did was suggest that I wouldn't lose sleep over not having AJ as a customer, since AJ never intends to pay for software. That said, even as a paying customer, I imagine AJ is probably someone I could well manage without.

    And why is it unfair to point out where AJ is not making sense, or to be slightly disrespectful when AJ tries (rather unsuccessfully) to be patronising, or when AJ claims that a software developer's decision not to give their source away is akin to some kind of personal attack, or when AJ claims to have a 'right' that doesn't exist in any meaningful sense of the word 'right'?

    Anyway, if AJ cares, I assume AJ can reply and point out where I'm being wrong, or indefensibly cruel, or misunderstanding their amazing argument.

  124. Havin_it

    Was this covered?

    Sorry, couldn't coerce myself to read the whole thing so I'll just ask:

    If you kill a torrent when your share ratio is at 1.99, you presumably can't have provided a full copy of "the product" to anyone. Can you then be said to have distributed the product? I suggest not, but opinions would be welcome.

  125. michael

    @Was this covered?

    2 things

    1 I asked it but got no anser

    2 your ratio would need to be 0.99 (a raitio of 1 is uploading as much as downloading so you will have uploaded 1 copy)

    sorry but my pedent personality rules on thurs morning

  126. david wilson

    @Was this covered?

    >>"If you kill a torrent when your share ratio is at 1.99, you presumably can't have provided a full copy of "the product" to anyone. Can you then be said to have distributed the product? I suggest not, but opinions would be welcome."

    Maybe you can't be said to have distributed a full copy of the product, but I imagine that lawyers would argue, probably successfully, that you were still participating in distribution and copyright infringement.

    Anyway, with copyright, I don't think you need to distribute an entire work to be infringing. Copying too large a fraction of a book or a file would probably count, and I guess that'd be the case even if the recipient didn't get the rest elsewhere.

    If you were taking part in an enterprise where someone could complete the downloading even after you'd quit, you couldn't easily argue that you hadn't helped someone get a complete product.

  127. A J Stiles
    Linux

    @ david wilson

    "[I]t's entirely up to the creator of a work to decide what other people can do with it" -- I'm afraid I don't buy that, any more than I buy the idea that it's entirely up to the owner of a knife to decide where they stick it.

    As the owner of a computer, I believe that none of what goes on inside that computer should be a secret from me.

    Computer users outnumber software authors, just as non-smokers wanting clean air to breathe outnumber smokers wanting to pollute it. If you don't like the thought that your Source Code should be viewable by the people who are going to be making use of it, then DON'T PROGRAM!

    Enough damage has already been done by hoarding of Source Code. There are landfills full of computer accessories which worked fine with DOS but for want of drivers would not work with Windows 95, which worked fine with Windows 95 but for want of drivers would not work with Windows 98, which worked fine with Windows 98 but for want of drivers would not work with Windows XP, and which worked fine with Windows XP but for want of drivers would not work with Vista.

    And that's before we mention the customers being screwed over because the hardware they bought doesn't do what it says on the box -- but due to the binary-only nature of the drivers, this is far from obvious. I'm talking about so-called "8 Megapixel" cameras up-sampling from 2Mpx image sensors and the difference between a £30 graphics card and a £300 graphics card being one resistor.

    The revolution is overdue.

  128. david wilson

    @AJ

    >> >> "[I]t's entirely up to the creator of a work to decide what other people can do with it"

    >>"I'm afraid I don't buy that, any more than I buy the idea that it's entirely up to the owner of a knife to decide where they stick it."

    As an analogy, not only is that not useful, but it doesn't even qualify as poor.

    If the creator of a copyright work (program or anything else) sets clear and lawful conditions, the only legal options available for other people are to decide whether to accept/buy the work with those conditions, or to avoid the work.

    >>"As the owner of a computer, I believe that none of what goes on inside that computer should be a secret from me."

    You have a right to that belief, and to express it by the choice of which programs you choose to legally install and use. Since you have no intention to ever pay for software, then you've already limited your legal choices to software which is relatively more likely than average to have source available.

    However, even the world's brightest people are still not *that* likely to be able to understand everything that goes on in a modern computer, even if they didn't almost all have better things to do with their time than try to find out.

    If you pay someone to check software for you, you're still going to have to trust *them*. Why can't you trust a programmer?

    >>"Computer users outnumber software authors, just as non-smokers wanting clean air to breathe outnumber smokers wanting to pollute it. If you don't like the thought that your Source Code should be viewable by the people who are going to be making use of it, then DON'T PROGRAM!"

    I think you'll find the vast majority of computer users don't give a rat's ass about source being for commercial programs, so does that mean you should 'STOP GOING ON ABOUT IT!'?

    I haven't tried to tell you what software to run. Who the hell are *you* to tell me what, whether, or how, to program?

    Anyway, we're not living in your fantasy world where everyone is forced to disclose source code, so I'll just carry on doing what I do, keeping some source to myself, disclosing other code, and sharing knowledge with other actual programmers on actual programmer's forums.

    >>"...There are landfills full of computer accessories which worked fine with DOS but for want of drivers would not work with Windows 95, etc.."

    Now, that is a good point.

    However, popular hardware does tend to have driver support in later versions of OSs. As for the rest, a lot of what isn't supported is effectively economically obsolete - not used by enough people to make it worth someone developing a new driver except as a labour of love.

    Trying to think of examples of 'orphaned' products I can remember even reading of recently, let alone handling (and where they were still worth enough money to bother about), the only one that springs to mind is ADB-based Wacom tablets, which apparently don't work on recent (non-ADB) Macs, even if using a USB<->ADB adapter.

    In that case, for someone trying to write a new driver, source code for an old driver is possibly not much extra use than the communication protocols for the device, which would be needed anyway

    Realistically, it's quite possible that more hardware will end up unusable due to electrical incompatibility (loss/reduction in number of suitable ports) than to loss of driver support, and it's also likely that vastly more hardware is landfilled for speed/capacity reasons when upgrading to a new OS than due to loss of driver support in the new OS.

    It's certainly an issue, and possibly a real pain for a few people left with unsupported expensive kit, but not much of an issue for the great majority of computer users.

    >>"And that's before we mention the customers being screwed over because the hardware they bought doesn't do what it says on the box"

    I'm talking about so-called "8 Megapixel" cameras up-sampling from 2Mpx image sensors and the difference between a £30 graphics card and a £300 graphics card being one resistor."

    When it comes to the graphics card, even if the extreme example were true, that can be a matter of economics. You make a load of chips/boards/whatever, test enough to get sufficient passing your hardest test, and configure those as your bleeding-edge products for a premium price. Then you test enough to pass your second-hardest test, and so on, down to your budget range, which only has to pass the easiest test. Especially as processes improve, it may be that almost all products would pass the hardest test, but it might not make sense to configure/price them all the same.

    Also, at the low end, the card may well have all kinds of components (chipsets, memory, etc) that might or might not reliably work faster than they are configured to do. It may be that some cards do just need a resistor changing to work faster, and that some may even work as reliably as the expensive card, but other identical cards might not do.

    Even if an extreme case were true, with there being no difference in potential capabilities whatsoever, it can still be reasonable and fair to underconfigure some products to enable a spread of pricing, as long as everyone gets what they pay for.

    Looking at economies of scale, marginal costs, etc can give particularly odd outcomes when applied to electronics, especially given a significant number of people who will pay large amounts for bleeding-edge kit, which is almost always terrible on a price/performance ratio.

    Sometimes, with cameras, etc, there can be outright fraud. Sometimes it can be a matter of reading the small print. Sometimes, there can be whole areas where meaningless numbers seem to get get used by everyone as headline figures as some sort of convention, such as with '19,200dpi' scanners.

    Anyway, with the camera, having source would likely be no use at all to you or anyone else.

    If someone's trying to screw you with a truly fraudulent megapixel claim, they could easily just provide fake source code for the embedded software. For an embedded product, you'd probably have no way of knowing if the source was genuine, since you'd be unlikely to be able to compile and install it in a finished product, even if the manufacturer didn't set things up to actively prevent you.

  129. A J Stiles

    @ david wilson

    "If the creator of a copyright work (program or anything else) sets clear and lawful conditions, the only legal options available for other people are to decide whether to accept/buy the work with those conditions, or to avoid the work."

    You missed the third option: Change the law to prevent the setting of unreasonable conditions. Copyright (which is a misnomer: it's not a right but a privilege) was granted by the government on behalf of the people in order to encourage authors to share their works. If it is not achieving that aim, then it needs to be reformed.

    "If you pay someone to check software for you, you're still going to have to trust *them*. Why can't you trust a programmer?"

    Because the programmer is in the ideal position to conceal their misdeeds! If you were a policeman standing outside a recently-robbed bank, and you asked a blinged-up person in a brand-new sports car "Did you rob this bank?" and they answered "No", would you just accept that at face value?

    I would sooner trust someone who has no pre-existing relationship with the programmer and who has more to gain by exposing faults.

    "Anyway, with the camera, having source would likely be no use at all to you or anyone else.

    If someone's trying to screw you with a truly fraudulent megapixel claim, they could easily just provide fake source code for the embedded software."

    I'm not talking about the embedded software; I'm actually talking about the RAW import filter (which the camera manufacturer supplies as a binary blob to Adobe et al). Sorry for the confusion.

    I still maintain that there is no legitimate reason to conceal Source Code from users.

  130. david wilson

    @A J Stiles

    >>"You missed the third option: Change the law to prevent the setting of unreasonable conditions."

    Thing is, I was talking about how things are, and as things are, it is up to the creator to decide what people can and can't do

    I doubt that many average people would see the current situation of 'developer chooses what to publish, people choose what to buy' as unreasonable.

    And changing the law isn't an 'option' like the others, it's more of an aspiration among a few people. You can hope/try to do it eventually. The other options (accept the conditions or don't take the product), you can exercise now.

    In reality, of course, if there *was* some great majority of people in favour of enforced open source, they wouldn't even need to change the law, since they could apply commercial pressure to get hardware manufacturers to publish driver source, etc

    Are there *any* signs of such commercial pressure being applied - people boycotting hardware, etc?

    >>"Because the programmer is in the ideal position to conceal their misdeeds!

    I take it that you never install software that downloads patches/upgrades then, since that could do an end-run around any amount of pre-installation code checking?

    >>"If you were a policeman standing outside a recently-robbed bank, and you asked a blinged-up person in a brand-new sports car "Did you rob this bank?" and they answered "No", would you just accept that at face value?"

    I think it's highly doubtful I'd bother asking, since the answer would be unlikely to be 'yes' even if someone was guilty and enacting the 'always returns to the scene of the crime' cliche, unless they were phenomenally stupid.

    >>"I still maintain that there is no legitimate reason to conceal Source Code from users."

    For much commercial software, the people keenest to look at the source would not necessarily be *users*, but competitors trying to save doing their own development, and people looking (for good or ill) for security holes. Really, only a tiny fraction of users would be likely to be capable of really understanding the source code for a given application.

    And that's not trying to 'knock' users, it's just stating a fact. Even if the users were miraculously all good programmers, it'd still be unlikely that many would even bother trying to understand a decent-sized application without some pressing reason to do so.

    Also, for commercial software, giving away the source largely pulls the rug from under most kinds of copy protection - if someone can see the code that does online authorisation and license management, etc, it's likely to be much easier to bypass that section and produce an unprotected executable than if they had to hack the object code.

    >>"I'm not talking about the embedded software; I'm actually talking about the RAW import filter (which the camera manufacturer supplies as a binary blob to Adobe et al). Sorry for the confusion"

    So, in your Brave New World of enforced open source, someone actively trying to commit fraud (as opposed to people being a bit slack in description) would simply shift anything they'd rather you didn't see from inside the driver you currently don't have the source for to inside the hardware you still wouldn't have access to. No obvious gain there.

    Do you mind my asking for a bit more detail?

    Presumably, it wasn't just a case of the '8M' sensor chip having 4M green and 2M each of red and blue pixels, as basically every 8M sensor would, (apart from niche multilayer sensors like the Foveon), and/or just a case where the 8M/2M issue could be observed just by looking at the size of the .RAW files?

    So what *was* it, and how would access to the source code have made it more obvious?

  131. phil stovell
    Pirate

    How to scam innocent parties into downloading copyright software

    Here's how I believe it is possible to get innocent parties to share

    copyrighted software using P2P. I'm not suggesting any clients of DL have

    done this, or that it has even occurred. In fact, it may not be possible

    if I've missed something.

    1. Files are shared by their hash - which is constructed from the actual

    file contents - not the file name, as that can be changed or have

    different content. Take a look on eg eMule - you will see the same file

    having multiple names.

    2. Offer for sharing the copyright software - for example,

    UnsellablePinballGame.iso.

    3. From another computer, download it.

    4. Rename the file to something downloaders are likely to be actively

    seeking - for example, BigTitSpecial.mpg.

    5. Wait for people searching for BTS to start downloading it.

    6. Attempt to download, from a 3rd computer, UnsellablePinballGame.iso.

    Because this has the same hash as BTS, it could be downloaded from the BTS

    downloader at the same time they are downloading it, so not only is the

    mark unaware that he is actually downloading copyrighted software, he is

    also uploading it at the same time (when it's finished downloading, the

    mark will attempt to play the file, it won't work, so he'll (maybe) delete

    it, all the time having been, unknowingly, sharing copyrighted software).

    7. Using software you have written specifically to watch for these events,

    get a court order to get the user's details of the IP that is sharing your

    copyrighted software, and offer not to take them to court for £500.

    8. After a few months, when the £500s stop rolling in, go to 1 with a

    different piece of copyrighted software.

  132. david wilson

    @phil stovell

    But even if it worked, why go to all that trouble when there are plenty of people knowingly sharing software, even, it would appear, software which pretty much everyone seems to think is complete pants.

    Seems like if you got someone to offer almost anything under its own name, some people would download it, even if it's just to have one play and then delete it. As long as there are people like *that* around...

    Then again, you could always just write some software called 'World's Biggest Tits", give it a ridiculous price, and get some people to offer *that* on a filesharing service.

    "Yes, your honour, it *is* an eyecatching name for ornithological photo library package, which might be why we haven't sold very many copies. Still, that shouldn't stop you authorising damages."

  133. phil stovell
    Unhappy

    To David Wilson

    I'm just showing that you can download files thinking it's one thing when in fact it's another. She could have downloaded something she thought is public domain, but the file's been renamed (or scammed) so that it's actually this game.

    We've been discussing this case on news:uk.legal and the info below comes from there.

    The case isn't about downloading - it's sharing the software to other people.

    Another thing that troubles me is the damages of £6k. This is the loss to the owners of the software. I understand it costs £8 to buy, so she's been charged for letting 750 people download it. Apparently, the file size is 900MB, so for 750 people to have downloaded it she will have had to upload 675 GB.

    My upload speed is currently 725kbs (download 2736kbps). It would take me

    675,000,000,000 * 8 /725,000 seconds = 7448275 seconds = 862 days.

    It's practically impossible for her to have uploaded 750 copies of the software. So why the £6k? Of course it's a nice £10k in DL's back pocket. Next, please.

  134. phil stovell

    Correction

    Sorry, I was an order of magnitude out. It's "only" 86 days.

    675,000,000,000 * 8 /725,000/60/60/24 = 86 days.

    Filesizebytes * 8 bits per byte / upload speed / 60 secs in min / 60 mins in hour / 24 hours in day.

  135. david wilson

    @phil stovell

    Surely though, with peer-peer systems, someone who downloads a file shares it by default, even if some users may well not be hugely aware of that, just thinking they've downloaded something 'from the internet' and having little idea that their PC was also sharing the file with other people.

    I guess a lot depends how damages were worked out - in addition to legal costs for the lawyers, can the company effectively charge for any costs they can claim to have incurred in pursuing people, on top of actual imaginary lost-sales damages?

    Realistically, wouldn't almost any download by someone else be likely to try to use multiple sources for speed reasons? If so, it's likely that one individual will source a fraction of a download to many people, but possibly not using a great amount of bandwidth in total.

    Maybe they claim based on the number of copies she (or her PC) helped other people to *partially* download, rather than some proportionate basis such as 'game cost x number of equivalent whole copies'

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