Hollywood given two months to get real about the price of piracy Australia's Federal Court has told Big Content to stop pfaffing around and make reasonable demands of those accused of illegally downloading The Dallas Buyers Club (DBC). The case has seen Voltage Pictures, the film's owners, take on a clutch of Australian internet service providers (ISPs) whose subscribers it alleges …
Justice Perram may now be my favourite person. At least for today.
That is good sense on a level that is not often seen and it neatly confronts the well-worn practice of content holders making ridiculous claims of costs and losses without feeling the need to base them in any logical or honest assessment.
I am no supporter of illegal downloading of copyrighted content but I am even less of a supporter of the indiscriminate intimidation that the big rights holders engage in with apparent impunity and I am very glad that, at least here, that practice is being called out and the dangers of allowing these groups access to subscriber details are being addressed.
The back-and-forth between the court and the plaintiff makes it clear that this is exactly their intention as they have repeatedly refused to identify the costs that they will seek. That this most recent order is even necessary shows that there is no good faith on the part of these rights holders and fully justifies the previous orders of the court and the concerns that led to them.
The IP rights for the original film are just a smokescreen, this is a well oiled shakedown machine, no more, no less. The judge recognises this.
Usually, if I want to sue you, I know who you are and how much I want to sue you for. This model uses the courts to 'discover' who the alleged infringers are, then tries to scare then with threats of bankruptcy to pay what they think they can get away with. They may as well look for expensive cars and threaten to scratch the paint.
By trying to use the courts as their 'muscle', and the vile tactics of threatening what they turn into very expensive and inconvenient court cases based purely on IP address information which is frequently overstated (we have seen cases of other litigants claim 'distribution' of a sub-second's worth string of data), it's straight playground bully stuff, hiding behind the dinner lady.
Cunts. Hooray for this judge not wanting his court used as the tool of a shakedown machine.
Problem is that they are trying to treat the Australian court like the US court. But that is not how IP law works here (oh, hi there TPP). They are looking for punitive damages but a court in Australia should restrict punishment to the iTunes price plus some reasonable reimbursements for administrative costs.
They are going for the US model of suing someone's Grandma into bankruptcy and then settling the vast majority for a few K.
"No, it's illegal to do both."
Please provide single example of anyone anywhere who was successfully criminally prosecuted for personal downloading or streaming only?
Certainly in most of Europe it's not a criminal offense to download for personal use provided you are not also uploading (e.g. not using BitTorrent).
Even in US it's not a criminal offense if you consume less than $1000 worth per month!
"Even in US it's not a criminal offense if you consume less than $1000 worth per month!"
Where in the United States Code does that specific exemption exist?
As for why no criminal cases in America, that's because copyright infringement is mainly a civil matter, meaning it's up to the plaintiffs to sue for damages. Infringers don't go to jail, but they run the risk of big damages, as this link notes:
http://abcnews.go.com/Business/story?id=8226751
I DO know Japan cracked down on downloaders some years back, to the extent they penetrated a P2P darknet called Perfect Dark to bust them (and the charges were specifically for downloading).
"Where in the United States Code does that specific exemption exist?"
It's actually per 180 days, but it's here https://www.law.cornell.edu/uscode/text/17/506
"As for why no criminal cases in America, that's because copyright infringement is mainly a civil matte"
So as stated, in most cases "it's not a criminal offence"
A cricket umpire named Darrell Hair. Mr Hair no-balled Muttiah Muralitharan for chucking. Rather than support Mr Hair, cricket's ruling body changed the rules so that Mr Muralitharan's bowling action was no-longer illegal.
Rather than applaud Justice Perram for being sensible, I'll bet the government will pass some law stating that the harm inflicted by every torrent download is equal to the GDP of the country where the movie was made.
not quite the same thing. The limit was raised to help people with injuries as his incorrect bowling action was acknowledged by an independent medical panel. So whilst Hair was correct (and was supported by the ICC) the game was changed to benefit people in the future so not the same.
Hair didn't agree (personally) with the decision and called Muralitharan out publically, that got his knuckles rapped by the ICC.
In reality the rule change was a nightmare as it now made borderline "chucking" harder to umpire (it was previously "obvious") however, the rule change was originally in good faith.
@Danny 14 - "the rule change was a nightmare as it now made borderline "chucking" harder to umpire (it was previously "obvious") however, the rule change was originally in good faith."
Putting aside the assertion that the rule was made in good faith (I'm not so sure) - The problem with legalising actions such as Muralie's, is that the umpires can't actually know if a player is bowling within the rules or not, they can merely cite the bowler as 'suspect'. This means that the only way to determine whether an action is legal or not is by taking the bowler to a laboratory and putting them through several tests, which can take many months. I think the rules are pretty screwed up if no one at the match is able to know whether a bowler is bowling legally or not, even with TV replays.
It is the equivalent of the Lawn Tennis Association writing a rule about the serve action that is so difficult to judge and then saying "so we can't actually know if a serve action is legal or not, therefore we will let a suspect player carry on for a few more tournaments and then test him at some point to see if he was playing within the rules or not".
Good faith or not, it's an abject failure to write rules for which the game can be decided and only be able to find out several months later if the bowler was bowling wihtin the rules or not IMHO.
I do have a little sympathy for the plaintiffs. Someone stole their stuff but it's very difficult for them to figure out how much they lost.
RIAA brings cases that result in nice round-number fines - there must be some rule of thumb involved there which estimates lost revenue.
<quote>IIRC there was a case where a distributor (possibly p0rn) put a film on a torrent site & then tried to claim it had been pirated.</quote>
I believe you are referring to the infamous Prenda Law case.
https://en.wikipedia.org/wiki/Prenda_Law
Even ElReg has carried articles on these <redacted>. One of the more recent:
http://www.theregister.co.uk/2015/12/05/prenda_law_ringleader_told_to_sell_house/
This post has been deleted by its author
Please try to keep up lad. Everyone agrees that software and digital content cannot be stolen as it's not a physical entity.
What they did was duplicate it without permission from the right's holder, then ( assuming this was on a torrent ) they redistributed their illegal duplicate copy back up to other torrenters, obviously by way of the nature of how bitttorrents work.
@nijam
"No it isn't, they lost nothing. The set of people who pay to watch movies is pretty well completely disjoint from the set of people who don't."
I get the argument you are making but it's a problematic one.
Yes, you can say that if someone downloads a movie without paying and that person NEVER would have paid for that movie then the monetary loss from that one specific, isolated act is zero.
But using that argument to claim that the loss is zero for any particular instance of illegal downloading then depends on proving whether or not the person in question would have paid or not - or how likely they would be to do so.
And how do you establish that?
What evidence can a plaintiff bring to bear to prove that the defendant would likely have paid for the content and thus there is a loss? Should the plaintiff have to prove that or should the defendant?
Yes, yes, innocent unless and until proven guilty but at this point we are assuming that it has been proven that the download did indeed happen*. So we have the defendant who is trying to argue that, while they did indeed download the content, they should not have to pay for that because there was no loss to the plaintiff.
If the defendant owns a good number of movies then is that proof that they are willing to pay and thus would have paid for the content that was illegally downloaded or is it proof that the defendant was not willing to pay for this specific piece of content as it does not meet the standard of the other stuff that was paid for?
On the other hand, what if the defendant owns nearly no movies? One could argue that it is proof that he/she is unwilling to pay for them at all and thus unwilling to pay for this one either. But it would be equally valid to argue that the person does watch movies and so they would presumably have bought at least some of the downloaded content if it was not available illegally - as otherwise he/she would have no content at all.
In both cases, what would be proven - if anything - is a general tendency, so how do you go from there to proving that the specific movie in question would or would not have been paid for?
So that's just the practical consideration because it would make it nearly unworkable.
But there is another concern, which comes about if you do require it to be proven - one way or the other - that the defendant would likely have paid if they hadn't downloaded it.
If it is ruled that someone who owns no movies would likely not have paid for the content then that is a precedent that can be used to download with relative impunity because the best way to avoid be fined for illegal downloading is to do it MORE.
It's a minefield and I think it is not unreasonable for a rights holder to want to reclaim the cost that would have been paid if it was obtained legally along with the cost of obtaining that fee. The fact is that it is illegal and so a punishment is warranted. If that punishment is not in the form of a fine to the copyright holder, what should it be?
The punishment should match the offence so if the offence is the illegal downloading of copyrighted content without paying for it then the punishment should be a fine that represents that cost of purchasing that content legally plus a little extra in the form of compensation for the costs incurred by the rights holder to recover the cost of the content.
This bullshit about 'distribution rights' is exactly that: bullshit, but that doesn't mean there is no basis for recovering a reasonable fee. It must be made clear that all of this comes AFTER it has been proven that the download happened and that needs to be established with exceptional clarity before any of this is even relevant.
Yes, these groups are bullies. Yes, they are seeking to extract as much money as possible. And yes, they need to be stopped from doing both. But the way to do that is to force them to be more reasonable by ensuring that they are punished for behaving unreasonably.
And this is the point of the bond and the insistence on them identifying the costs they are seeking before they are allowed to contact people.
* - As otherwise the question is moot.
You are going out on a limb, because I think you are thinking about it in the wrong vein.
The issue is way more fundamental.
GOVERNMENTS have tried to make what is naturally, inherently, a non-exclusive, non-defniitive CONCEPT, something that is fundamentally a 'public' good (a thought, an idea, a view, a landscape, scenery, knowledge) into something analagous to a naturally-exclusive, unique 'thing' (a plot of land, a watch, car, TV, an orange, a cow, a steak), and then treat it the same way.
By 'using' someone else's idea, the person who had the original idea STILL HAS THAT IDEA. I have NOT 'taken' it by also using it. I have not deprived them of the idea, they still have it and can still use it. ALL I have deprived them of is their DESIRE (not right, their wish) for it to be EXCLUSIVE to them.
This is the world of copyright and patents.
Taking something that is naturally a shared resource, something that cannot be TAKEN from someone else, and treating it like a physical object that CAN be TAKEN from someone else. Artificially granting 'manufactured' rights to it as opposed to natural rights.
Therefore, since nothing has been taken from the plaintiff, in an ideal world, they WOULD have to show an actual 'loss' for which to be compensated.
You stole my $2m Bugatti (I wish ...), therefore my harm is that that thing I paid $2m is no longer in my garage, I no longer have possession of it, I can't drive it.
Or, you stole that CD (is that even possible anymore? Does anyone actually sell those things?) off the shelf of my store, I no longer have that CD to sell and get those $30, that's $30 I've just lost.
Vs
I download a copy of the CD. I haven't deprived anyone of anything they had before the copy was made. They still have the CD in their hand. They can still sell it for $30. Or break it. Or use it as a coaster, they STILL HAVE IT.
Therefore the plaintiff has to prove some sort of actual loss. They still have the CD on the shelf. It still works when they put it in the CD player. What have they lost? Nothing.
Actually, you devalued what they DO possess by diluting the supply. That CAN be demonstrated as loss much like dumping a commodity on an open market spikes the supply and thus tanks the equilibrium price. DeBeers tried to corner the diamond market, but after diamonds outside their control entered the market, the cartel eventually crumbled.
Rarity can be a value in and of itself, and we DO see value in rarity which is why collectors exist. Put it this way. Would your $2M Bugati still be worth $2M if I developed a matter replicator and could just make copies of your car?
@ eldakka
Then of course, there is the case of I go around to a mates place and watch a movie with him. I haven't downloaded a movie but I have managed to watch it without paying for it.
I could also have borrowed the DVD from him and watched it. Or even borrowed it from my local library. Or watched it on my local TV station.
Now the latter of course has been paid for by the TV station in some form or another, but that also doesn't stop me from recording it to watch later, as I usually do so that I can skip through the ads. Just how many times must I endure the same shouty ads being repeated for the duration of the movie? Watching one of them is payment enough!!!
Does any of this make me a criminal? If not, how is that different from downloading a movie to watch?
I may even have ripped it but it is unlikely in my particular case, as most of the stuff out there I wouldn't have paid to go and see, but sometimes curiosity occasionally overcomes one's sensible choices.
Normally I pay at a cinema if there is a movie I wish to see, but if I miss it for whatever reason then I shall not hesitate to obtain it by whatever means if I really want to see it. Well, I won;t kill for it, be sensible, but I am quite prepared to download it if it is no longer available by conventional means.
In my case, I am at a loss to decide what the studios may have lost by my watching it. $8? $20. megamillions?
P.S. Having said all that, the studios will not find any downloaded movies at my place.
If I stroll into the local Big Box Store and try shoplifting the boxset for the original Star Wars movies (not that later whaledrek with Jar Jar and emo-teen Anakin) and get caught, I'm up for a misdemeanor crime that the store will probably not pursue if I go ahead and pay up.
If I torrent the same content and get caught in the US, I'm theoretically liable for $150K per film, my network connection cancelled, etc etc.
Proportionality ? Heard of it...
"The company also re-states its argument that it wants infringers to pay for a worldwide distribution licence"
If they are forced to pay for this license, will that mean the can legitimately offer as many free downloads as they like?
What will the other licensees think, having to compete with a legal 0 price supplier?
Is it stealing if I convince you to invest in a pyramid scheme and you pay me online? Only digital bits (nothing physical) have been moved.
I contend that if you receive benefit (I agree that watching most Hollywood film is of dubious benefit) without compensating owner (and without owner's permission) that is theft. If you are not willing to pay for the content, don't watch/listen. Simple.
Stealing involves loss.
Infringement, which is what's happening in this case, involves violating the terms of a contract, usually in a way that damages the other party.
You can't steal anything by, say, scanning it and replicating it in a 3D printer, unless by doing so you also deprive the owner of the right to monetize it first.
This is the fundamental principle of what copyright law needs to be. IP is not property in a physical sense until the owner loses the ability to use it for their own purposes. The current system the US of A subscribes to tends to ignore this simple fact, which is that no one loses anything from the act of copying.
There is literally no reason to charge arbitrary amounts for copying something if you wouldn't have made any sort of profit off it regardless. Arguments to the price of creating movies are more or less moot; the amount of money wasted on something is by no means related to the quality, see: government. Arguing that any download represents a lost sale is additionally pointless; the entertainment industry is in the business of producing entertainment, not inexpensive copies of media the consumer isn't even allowed to own. Any given download reflects only a portion of the entertainment value associated with it.
There are many who do not consider the current business model to be worthwhile outside of providing excessive profit to executives and 'rights-holders' (pejoratively used, of course) and would not contribute to the sales regardless.
A fraction of these would have been willing to buy the product regardless; but chose not to due to restrictions on format and the need to pay multiple times for a license to use something they thought they owned. A further fraction of those would be willing to download such a thing regardless of the pricing, whether in protest, laziness, or simple greed. This minority, a fraction of a fraction, is consistently treated as though it were the raison d'etre for the entire group.
In reality, much of the ill will towards publishers is commonly due to dishonest and abusive practices, rather than any inherent boorishness on the parts of the people. If you treat them like slaves, they will react accordingly. Try to suppress their rights, and they will find ways to defy you. Not the right to steal, but the right to own what you buy, and the right to have a choice in what you do.
Here's some reading you can do on the side to help understand the balance involved in so-called content piracy and why it's never as simple as you think it is. People are moral; even if it only benefits themselves, helping others and having compassion is still useful. That's how society functions. Treat them otherwise, and they will prove why you are undeserving of their compassion.
Actually, no. What you pay for is the right to derive a benefit from something.
That's why there are things - contracts - like GPL: they define the circumstances under which you're allowed to derive a benefit from the source code you use, and the obligations you're under if you use the code.
Likewise the typical software EULA, which states clearly that you're buying a right to benefit from a piece of software - not that you own it.
Piracy means you derive a benefit without any reciprocal obligation because you choose to ignore all the moral rights of the copyright holder to receive any benefit from you in return for use of their work.
Now, some publishers and their lawyers are scammy assholes. And many publishers exploit their content creators.
That still doesn't mean piracy has the moral high ground. I know a couple of software devs who stopped developing music plug-ins because piracy killed their income and they couldn't pay the bills.
The pirates got some "free" software in the short term, but lost out in the longer term, because cool new stuff from those devs stopped appearing.
There's no way that was a win for anyone.
See link in my previous comment describing how customers choose in terms of multiple factors, the suggested being: Money, Time, Integrity, and Pain-In-The-Butt 'Dollars'
Specifically, it implies strongly that many people place a high value on 'Integrity Dollars' and accordingly will seriously consider actually purchasing it from a retailer just because it helps them, even indirectly, and gives that warm fuzzy feeling that corporate lawyers tend to lack.
Strictly speaking, the one who violated the DRM's so-called rights protections is the only one at fault in a contractual situation. Going after individual downloads is so utterly, meaninglessly pointless, as I hope to make clearer.
The primary model of industry views their entire field as lacking in integrity entirely. They view customers as balancing money constraints against time and pain involved with breaking the DRM system, and thus try to make the DRM as difficult to break as possible to try to outweigh the monetary cost involved in actually buying it.
What they neglect to factor in is that both sides of the equation can have all of these factors in them. DRM makes actually using a product more difficult for everyone, in addition to making it take longer. Customers may even feel that purchasing from a supplier is actually worth a surplus of integrity; or they may hate supporting them. They can even have different 'costs' associated with a single normal dollar, as they have to work varying amounts for it based on their income level.
The point being, industries such as publishing see it as <u>only</u> an issue of Money vs. Time/Pain, rather than a delicate balance. Pushing to try and shove the scales further in favor of Money so they can charge more for it seems like a perfectly rational decision for them.
It isn't.
The sooner they learn to accept this fact, the more successful they'll be. Until then, bad business models <u>will</u> fail, no matter who wants them to succeed.
Again: humans are fundamentally social animals who want to function properly in society. Pretending otherwise will only waste everyone's valuable time, money, pain, and integrity.
"Again: humans are fundamentally social animals who want to function properly in society. Pretending otherwise will only waste everyone's valuable time, money, pain, and integrity."
I don't know about that. Perhaps not so much "social" as "clan". Sure, humans want to mingle with other humans, but only to an extent
“Man is by nature a social animal; an individual who is unsocial naturally and not accidentally is either beneath our notice or more than human. Society is something that precedes the individual. Anyone who either cannot lead the common life or is so self-sufficient as not to need to, and therefore does not partake of society, is either a beast or a god.” - Aristotle
Older than Christianity. Still true today.
I'm not going to argue whether or not humans have everything to gain from socializing and being kind to one another.
If I have to, it's unfortunately not worth my time to do so. And thus, it remains.
This argument over theft/stealing is just a diversion.
I am no fan of either side of this argument but then, also, agree partly with both.
I don't see it as theft. I've heard the arguments back and forth and I can't see my way to it fitting. But I think it is and should be illegal and I think it is reasonable for the rights holder to be able to recover the retail price of the content.
In other words, whether it is theft or not should be irrelevant and to me it is. If you illegally download copyrighted content, it should be a civil case where the plaintiffs are able to recover the cost of the content plus a reasonable extra amount to act as a deterrent.
The last part is important because if all you have to pay is the retail price then why not keep downloading illegally? Worse that happens is you have to pay what you would have anyway but only if you get caught for each and every download. Far more likely that you end up paying a fraction of what it would have cost.
For analogy, I think of fines for using public transport without a valid ticket. In Sydney, Australia, that's somewhere around $200 AUD. Personally I think that's a bit steep but still in the realms of being reasonable because it's not going to really hurt people but it is enough to make it unprofitable to continue doing it.
I realise that's an unpopular stance here but I think the best way to stop the ridiculous claims of rights holders is allow the recovery of money but to set a reasonable limit that they must agree to, ahead of time, for the case to proceed. That limit should be something in the form of a small multiple of the full retail price of the content - say 3-5x. That means that in Australia, where a new release movie is often $25-30, the limit is around $150. Older releases would be adjusted accordingly.
The biggest caveat, however, is that all this comes AFTER the act has been proven - no proof; no claim. End of story.
Spot on.
The one side is claiming millions for damages that are in reality vanishingly small, & the other side is basically saying if you run the risk you can only lose a tiny amount if caught.
The sensible way is exactly what you just said: charge $200 USD for getting caught stealing a film.
I gamble and get caught, it's enough of a slap to make me get Netflix or whatever. Also, it would stop people with 10,000+ libraries of every film ever pirated, as it would, rightly, bankrupt them.
When I get a film /software by any avenue I pay for it. If I had taken something (whatever it is) without permission then thats theft. If I was caught doing such a thing I would expect a Judge to sentance me in proprtion to the crime (punishment fit the crime?) I would not expect in these modern days to be executed for a $30 theft, though in the 18thC that would have happened, and that is partly what the plaintiff wants or more likely the monetary equivalent.
So, the Aussie Judge is merely applying reasonable proporionality as per the 21stC, good for him.
What is with all these organisations wanting to go back to the past?
Well, from a business perspective, that's what works. The Old Reliable. New stuff is a crap shoot most of the time unless it's a known success story crossing over from another market (Marvel's Avengers come from comics while the likes of Harry Potter, Twilight, Fifty Shades, etc. all come from literature). Something out of the blue becoming a success is a shot in the dark, and that can irk the investors while a successful franchise can bring in several hit movies all turning nice profits (Harry Potter got up to eight, Twilight to five, and let's not start with Marvel's general success on the big screen). The viewers have spoken with their wallets. If the choice is between a complete unknown or a franchise that can draw repeat trips, the fiduciary choice is obvious.
Recent box record setting blockbusters sh as Adele and Star Wars show that piracy has more effect for promoting box office draw than against it. These groups such as M.P.A.A., R.I.A.A, A.S.C.A.P. and others are made up of greedy and corrupt lawyers as well as equally greedy and corrupt politicians whose only desire is to control public media and the internet for profit. It is these third party mediators who are inflating the prices and robbing both the artists and the public as well. Instead of adapting to change they are trying to use the courts and law to transform the internet for their own profits. None of these parasites have ever even sung a song or made a movie.
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