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Actual Damages For 1 Download = Cost of a 1 License

timothy posted about 2 years ago | from the that's-refreshing dept.

Piracy 647

NewYorkCountryLawyer writes "In Real View v 20-20 Technologies, it was held that the actual copyright infringement damages for a single unauthorized download of a computer program was the lost license fee that would have been charged. The judge, in the District Court of Massachusetts, granted remittitur, reducing the jury's verdict from $1,370,590.00 to $4200 unless the plaintiff seeks a new trial. Something tells me the plaintiff will seek a new trial."

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The actual damages... (5, Insightful)

Anonymous Coward | about 2 years ago | (#38549118)

may or may not exist, if you even think a loss of hypothetical profit is damaging in the first place.

Re:The actual damages... (3, Insightful)

lorenlal (164133) | about 2 years ago | (#38549212)

Yes... but in this case there should be some sort of punishment for stealing. It is very likely that no sale would have occurred, but that's not the point on an infringement case.

I've long complained on these forums about the judgements against people who share music. But the point was that the damages were often grossly out of line with any reasonable punishment. This... Well... It may actually be less than what it should be assuming the illegal download was for what should be a fully licensed copy that wasn't paid for. I'm sparse on the details for this case, but if the software did cost $4,200 per copy, then maybe the judgement should have stated that they now need to pay for three licenses. I'd say that would be perfectly fair to make sure people play by the rules.

I'm very glad to see that (for once) the downloader of the material is the one being punished though.

Re:The actual damages... (3, Insightful)

Anonymous Coward | about 2 years ago | (#38549276)

How many times do we have to keep telling you morons?

COPYING IS NOT STEALING!!!!!

Whether you think copying something should be illegal or not (it shouldn't), it's impossible for copying to be stealing. The original owner is deprived of NOTHING when a copy is made.

Re:The actual damages... (5, Insightful)

bruce_the_loon (856617) | about 2 years ago | (#38549370)

As many times as we have to tell you that they are being deprived of sales and income. Probably nowhere near 1 to 1, but they are being deprived.

Like it or not, protection of a work is needed to keep the creative process going. 70 years after the death of the artist is too long and corporations should hold no copyright, only real people named as the artist.

Re:The actual damages... (5, Insightful)

hedwards (940851) | about 2 years ago | (#38549412)

Do you have any evidence that any of those pirates would have paid for a license? And that's the crux of the matter. Until somebody actually shells out for a license you can't say for certain if they would.

There should be a penalty, but there's no particular reason to believe that a public shaming would be any less effective than forcing them to pay for a copy after the fact, even at a greatly increased cost.

Re:The actual damages... (5, Insightful)

jaymz666 (34050) | about 2 years ago | (#38549544)

they should be deprived of any benefit of having the software may have brought them.

Put that in your measuring stick and smoke it

Re:The actual damages... (4, Interesting)

gomiam (587421) | about 2 years ago | (#38549464)

As many times as you need to hear that a download doesn't automatically equal a sale.

Like it or not, protection of a work is needed to keep the creative process going.

That is false, was false and will keep being false. The only reason we have the second part of "El Quijote" was that someone wrote an apocriphal second part, for example. "Protection of a work" as you call it is needed to keep the intermediaries accumulating money, not the authors: it never was an author protection tool, it isn't now and it will probably never be.

The lost sale doctrine is fancy talk at the best, by the way. I can't help thinking about poor home to home ice sellers, losing sales because people started buying fridges.

Re:The actual damages... (5, Insightful)

Anonymous Coward | about 2 years ago | (#38549504)

This guy just murdered 10 MB, and then he got his friends to rape 100 MB! If you mean copy, say copy - involving unrelated crimes like murder or theft just confuses the issue. You can still think it's bad without making stuff up. Loss of revenue is not theft - if I stand outside your shop and tell everyone that your meat is rotten, I may have caused you a loss of revenue and I may have done something illegal, but I didn't steal from you, or murder your money, or rape your bank-account or any other silly use of words like that.

Re:The actual damages... (4, Insightful)

spire3661 (1038968) | about 2 years ago | (#38549668)

THis is not even close to logical. Legal terms have extremely specific meanings. Nowhere in copyright law is the word theft or stealing mentioned. Its not theft because no one has an innate right to profit. You are assuming that possession of the item should equal a sale. ANd I assure you, if the social bargain that is copyright was abolished, people would continue to create works.

Re:The actual damages... (1)

HafkensitE (889593) | about 2 years ago | (#38549420)

Instruction video [youtube.com]

Re:The actual damages... (2, Insightful)

AcidPenguin9873 (911493) | about 2 years ago | (#38549448)

How many times do you morons have to keep repeating this stupid distinction to convince yourselves that your unethical actions are justifiable?

COPYING COPYRIGHTED MATERIAL IS NOT YOUR RIGHT, NO MATTER HOW MANY TIMES YOU SAY IT IS!!!!!

Re:The actual damages... (4, Funny)

icebraining (1313345) | about 2 years ago | (#38549548)

Is murder stealing?

If you say "no", then I claim you're just justifying your unethical actions. You murderer.

Re:The actual damages... (2, Informative)

AcidPenguin9873 (911493) | about 2 years ago | (#38549592)

Nope, your analogy doesn't work: I've never seen anyone use "Murder is not stealing" to justify murder, or "Stealing is not murder" to justify stealing. I have seen many, many people use "Copyright infringement is not stealing" in an attempt to justify copyright infringement.

Re:The actual damages... (0)

Anonymous Coward | about 2 years ago | (#38549704)

Whoosh.

Re:The actual damages... (2)

spire3661 (1038968) | about 2 years ago | (#38549706)

Calling copyright stealing IMPLIES a right to profit where none exists. You are trying to force infringement to mean 'loss of profit', which it DOES NOT. You are trying to attach an inflammatory word somehwere it logically does not belong. For infringement to be theft, you would have to assume a right to profit.

Re:The actual damages... (5, Interesting)

Anonymous Coward | about 2 years ago | (#38549480)

Perhaps you didn't read the fine article.

The original owner would NOT have sold a license to the competitor. The competitor appears to have deprived the original owner of their LEAD TIME and possibly some sales.

The competitor allegedly downloaded the software illegally and analyzed it to produce a competing product.

This helped the competitor save lots of R&D time. And they sold many copies of the resulting competing product.

Think of it this way. While competitors catch up, you continue to extend your lead. If competitors cheat by illegally downloading and analyzing your software, then you instantly lose your lead which you obtained at substantial cost (possibly loss of income, taking out a mortgage on your home to pay for expenses while you spend a couple years overcoming problems -- and your competitor sees your sales, downloads your code illegally and instantly sees how you've overcome problems they would've taken a long time to solve.)

Re:The actual damages... (5, Informative)

Mathinker (909784) | about 2 years ago | (#38549698)

Perhaps you didn't read the fine article.

The original owner would NOT have sold a license to the competitor. The competitor appears to have deprived the original owner of their LEAD TIME and possibly some sales.

The competitor allegedly downloaded the software illegally and analyzed it to produce a competing product.

This helped the competitor save lots of R&D time. And they sold many copies of the resulting competing product.

Don't misrepresent the competitor's actions as using the illegally downloaded software to discover trade secrets of the original owner. He merely copied "Look and Feel". The court decided that the use the competitor made of the software itself was perfectly legal, and the only illegal action was the download itself.

Or perhaps you didn't read the fine court decision?

Re:The actual damages... (0)

Anonymous Coward | about 2 years ago | (#38549514)

My fucking god, he didn't even make that mistake. Reread the sentence where you think he said that. Yeah, he DID use the word steal there, but read what he was saying about stealing. And he's the moron?

Re:The actual damages... (1, Insightful)

moderators_are_w*nke (571920) | about 2 years ago | (#38549516)

I think the logic is they're using it so they should have paid for it so the damages are what they should have paid for it.

Sounds pretty reasonable to me.

Re:The actual damages... (4, Insightful)

Anonymous Coward | about 2 years ago | (#38549588)

Shame on the moderators who modded you insightful. People who disagree with you are not necessarily morons.

You are arguing a political position, not a definition. Whether or not copyright infringement is stealing in a legal or moral sense depends on your view of intellectual property.

In terms of a dictionary defintion, it is obvious that copyright infringement is stealing. We say someone "stole" state secrets. We don't say "they only copied them, that's not stealing" because the definition is taking without permission and has nothing to do with whether we "deprived" anyone.

And if we go with your definition, people can still disagree. It could argue that your unauthorized copy belongs to the copyright holder and that you are depriving the owner of that copy.

Re:The actual damages... (1)

Anonymous Coward | about 2 years ago | (#38549616)

I take it you don't work as a recording artist or software developer.

The copy itself is beside the point - its about the benefits gained from the use of said copy. 1 pirated copy != 1 lost sale, but that's also beside the point. If someone isn't willing to pay for a license for a software application, they shouldn't use it.

Oh, and calling people who disagree with you "morons" doesn't help your case.

Re:The actual damages... (0)

chrismcb (983081) | about 2 years ago | (#38549708)

The original owner is deprived of NOTHING when a copy is made.

The original owner is deprived of a potential sell. Sure not all pirates will pay for what they stole, and sure some people WILL pay even after the stole it. The general consensus is, if there were no pirates, there would be more sales. I think, if the price is right, this would be true. If the price is not right, there may actually be more sales due to piracy (and people "trying before buying")

This is just anecdotal but I know a LOT of people (including a lot of people on here) who can afford to purchase music and games and songs, but don't because it is easy and free to pirate.

Re:The actual damages... (1)

tomhudson (43916) | about 2 years ago | (#38549734)

t's impossible for copying to be stealing. The original owner is deprived of NOTHING when a copy is made.

In this case, they were deprived of the license fee. That's a tangible. They were also deprived of the ability to say "We have $X number of clients" - the more clients, the better the goodwill valuation - also a tangible asset on the bottom line.

According to your logic, I should be able to hire you to paint a house, then not pay you - after all, you are not deprived of anything you didn't have before.

Re:The actual damages... (0)

Anonymous Coward | about 2 years ago | (#38549754)

copying is not stealing, but it does have a real world cost. computers don't light up for free, windmills or solar panels to light them up with isn't free, nor is coal, oil, or natural gas. arguing 'but i pay the electric bill and the internet fee' doesn't mean you paid for the ability to copy data. open source is great, though code you don't have to steal to get quality products. older coders may remember that when they started using computers they had a community of foss programing under bsd and apache and similar licenses. and they had good paying day jobs and things were simple to maintain, but along came home computers and the sense that programs had to be paid for, like with microsoft, apple, and other computing pioneers. not to mention videogame consoles... which further restricted access but didn't stop kids from gaming til they burned out their hardware. the solution? some have got walled gardens or the appearance of them, various linux distros use repositories before that bsd had the ports tree, just as apple and android both have walled gardens, yes i know you can get source and compile on foss platforms but repositories are walled gardens as long as users are told not to change repositories and they follow what the repositories carry in terms of software add ons.

Re:The actual damages... (1)

Matt.Battey (1741550) | about 2 years ago | (#38549302)

In the case of physical theft, the punishment is waged by the state in stead of the property owner. Maybe some statutory device should be used in this case, with lost revenue due to the property owner, in this case the copyright holder, equivalent to the property's value at first sale.

Re:The actual damages... (0)

Anonymous Coward | about 2 years ago | (#38549318)

"in this case there should be some sort of punishment for stealing" ...should there any stealing be proven

fixed it

Re:The actual damages... (4, Interesting)

arth1 (260657) | about 2 years ago | (#38549336)

Punishment != award
The justice system here in the US will continue to be a farce until the public (and thus the judges they elect and appoint) understands this.
If you want to punish the perpetrator, do so. Slap a consistent fine for copying on any verdict. BUT DO NOT GIVE THAT FINE TO THE VICTIM. This is what makes the whole US justice system such a joke.

The victim should get compensated for actual documented losses, neither less nor more. No one should benefit from a crime, neither the victim nor the perpetrator. This is one of the most important principles of Ius Commune, and largely forgotten here in the US, where the justice system has turned into a bloody game; sometimes one with fatal consequences for at least one of the parts, and sometimes both.

Re:The actual damages... (1)

Anonymous Coward | about 2 years ago | (#38549662)

As usual, self-serving arguments from the "I want it free" brigade.

The whole thing that even allowed the culture of theft we have today is the FBI stopped prosecuting copyright crimes and left it to the music companies to try and enforce the copyright laws in the court system.

Now we have a generation who just feels entitled to steal.

Re:The actual damages... (1)

Anonymous Coward | about 2 years ago | (#38549750)

I wrote a paper about this in Law School. Punitive damages to be collected by the victim makes no sense. Punitive damages should go to the state (the "people") as the behavior has a social cost. In fact in some jurisdictions this is the case. The victim should only be compensated for the real damage, and for the legal expense of bringing such an action.

Re:The actual damages... (2)

gman003 (1693318) | about 2 years ago | (#38549380)

Yes, one or two times the amount would be fine. The problem is, up to now, the cost to legitimately obtain it had no bearing on actual damages. But this would establish that yes, damages should be based not on some arbitrary statutory damage, but on how much it would cost to just buy the thing.

Later judges will probably inch it up (even ten times the base cost of the product would be fine - that would make pirating a music album $100-$240, not $250,000), but the fundamental "damages are proportional to the cost of the item" is still well worth establishing.

Re:The actual damages... (5, Informative)

Shavano (2541114) | about 2 years ago | (#38549446)

Here's part of what the judge said in his instructions to the jury: " By statute -- and here is what the statute says -- you may award 20-20's lost profits resulting from the infringement and Real View's profits attributable to the infringement. In making this determination, you may consider what 20-20 may have reasonably charged for a license permitting Real View's use of the 20-20 Design program, any design costs that Real View saved by its use of the 20-20 Design and the development of ProKitchen and any benefit Real View obtained by its use of 20-20 Design in the development of ProKitchen." The jury ignored those instructions and incorrectly assessed a verdict based on an assumption that Real View had used infringing material in the product they sold. If they had done that and 20-20 had shown it in court, damages would have been appropriate. But no such thing was shown in court, so Real View was only entitled to actual damages equal to the cost they saved by stealing a copy of 20-20's program. As for how the courts and punish lawbreaking, there's a separate mechanism for that: award of punitive damages and court costs. There's no justification for improperly inflating actual damages.

What what what? (4, Funny)

DWMorse (1816016) | about 2 years ago | (#38549124)

Sudden outbreaks of common sense?? If this is forbearance to 2012, BRING ON THE FUTURE!

Re:What what what? (4, Funny)

PseudonymousBraveguy (1857734) | about 2 years ago | (#38549158)

I'm quite sure there will be a new trial, and this glitch in the matrix will be corrected thoroughly.

Re:What what what? (1)

the simurgh (1327825) | about 2 years ago | (#38549486)

it is because the mayans said the world would go topsey turvey in 2012. soon america will be the bastion of freedom and light of democracy again and the rest of the world will be the uncouth barbarians.

Re:What what what? (0)

Anonymous Coward | about 2 years ago | (#38549688)

Only we won't realize they've only made themselves look like barbarians where Americans will visit, and in fact use it to keep americans corralled in america soas to save the rest of the world from the possibility of being infected by any more of our insanity :)

Not quite punitive (2, Insightful)

cript2000 (2496368) | about 2 years ago | (#38549136)

Not sure I agree with that one as it's basically saying "steal the software until you get caught and then just pay what you'd have paid in the first place." I don't agree with the ridiculous million dollar charges, but perhaps 3x at least?

Re:Not quite punitive (2)

Xordin (66857) | about 2 years ago | (#38549204)

It's not stealing; that would be taking someone else's software away.

It's more like sharing what you do not have a right to share. So if you put up a song, you get to pay for it a hundredfold. Seems pretty punitive to me.

Re:Not quite punitive (5, Insightful)

Artifakt (700173) | about 2 years ago | (#38549378)

3x is what everyone else gets, why not say 3x at least and at most.
I once had a van full of electronics installation gear, which, while parked, was plowed into by a drunk driver in a rainstorm (water damaged most of the tools and contents before the mess could be cleaned up). I had to take the matter to court and prove he was over the legal alcohol limit to drive, before I could get punitive damages. Just to qualify for that 3x multiple, I had to prove extra circumstances applied, and those extra circumstances amounted to a criminal level of guilt, as it would be in a criminal case, not just simple responsibility as in a civil case. (Note, technically I still didn't have to meet the reasonable doubt test for the drunk driver to be considered responsible in a civil case, but I did have to show somebody, whether a full court actually prosecuting him or just a cop making out an accident report and bothering to do a breathalizer test and subsequent arrest, had determined his responsibility exceeded simple responsibility before I could qualify for punitive damages).
              So why does a special privilege exist, letting the software creator seek damages many times higher than 3x? Why does somebody like me have to prove criminal negligence, or other fully criminal level of responsibility, while various copyright holders have a special private law that means they only have to prove a lesser standard such as'willfulness', and why does 'willfulness' sometimes multiply the already ultra-high damages by 5x, not just 3x?
              I want a special law like these guys get - one that lets me really discourage people who through illegal acts, damage my property. Of course, all I was trying to discourage was a drunk who blew 0.31 on a breathalizer and was estimated to have been driving 60 MPH in a quiet residential neighborhood, at the time school was just letting out, and who had 9 priors, and who somehow still had enough money to buy another car after the last accident and seemed to think he could just pay for simple damages and keep it up forever. But the courts in their infinite wisdom have decided that needs less discouragement than that hideous and abominable crime of pirating software.

Re:Not quite punitive (5, Insightful)

sconeu (64226) | about 2 years ago | (#38549452)

So why does a special privilege exist, letting the software creator seek damages many times higher than 3x? Why does somebody like me have to prove criminal negligence, or other fully criminal level of responsibility, while various copyright holders have a special private law that means they only have to prove a lesser standard such as'willfulness', and why does 'willfulness' sometimes multiply the already ultra-high damages by 5x, not just 3x?

It's called the "Golden Rule". As in, "Them what has the gold, makes the rules."
They paid good money for that law.

Re:Not quite punitive (1)

arth1 (260657) | about 2 years ago | (#38549522)

Not sure I agree with that one as it's basically saying "steal the software until you get caught and then just pay what you'd have paid in the first place." I don't agree with the ridiculous million dollar charges, but perhaps 3x at least?

Whoever modded this as Troll should shove their mods up where the sun doesn't shine. I disagree with this too, but it's not trolling - it raises an interesting point.

As I see it, the problem is the statutory damage award-and-revenge based system. If copyright violation was subject to a fixed fine, say $1000, and the suing party was only entitled to documented losses, there would not be any incentive to pirate. And there would not be any incentive for the "victim" to sue as a business model, because the most you could get are actual documented losses.

Cost of infringing open source? (4, Interesting)

Edgester (105351) | about 2 years ago | (#38549142)

Does this mean that there is no cost to infringing on an open source license? If that's true, then there is no penalty to breaking an OSS license. This worries me.

Re:Cost of infringing open source? (5, Informative)

hibiki_r (649814) | about 2 years ago | (#38549178)

Unauthorized downloads are very different from, say, selling a program as your creation. In this case, we are dealing with just copying apps without permission, so you are comparing apples and oranges.

Re:Cost of infringing open source? (1)

Samantha Wright (1324923) | about 2 years ago | (#38549202)

Wait, wait. I have this one covered. [improbable.com]

(But that being said, I agree with you.)

Re:Cost of infringing open source? (1)

Anonymous Coward | about 2 years ago | (#38549180)

I'd imagine the penalty would be whatever the cost to download the program is. Your concern only applies if the program is free in both senses.

Re:Cost of infringing open source? (1, Insightful)

Trebawa (1461025) | about 2 years ago | (#38549192)

Except that breaking an OSS license isn't infringement, because it's not copyrighted; it's a breach of the contract under which the software is licensed, which I imagine would be covered by punitive damages. IANAL, so take with a grain of salt.

Re:Cost of infringing open source? (1)

crow (16139) | about 2 years ago | (#38549234)

WRONG! OSS software is most certainly copyrighted. It is the copyright law that makes the license relevant.

Re:Cost of infringing open source? (1)

hitmark (640295) | about 2 years ago | (#38549340)

Even without copyright, OSS could work. Copyright just gives the contract language of the licenses more weight.

Re:Cost of infringing open source? (1)

hedwards (940851) | about 2 years ago | (#38549456)

Not really, without copyright law there'd be no way of enforcing the license. The license being enforceable is predicated upon there not being a right to distribute the software without permission. Lose that angle and there's nothing to stop somebody from stripping the license and redistributing the tarball.

Re:Cost of infringing open source? (1)

Richard_at_work (517087) | about 2 years ago | (#38549508)

The GPL says I do not have to accept it to receive or use the software licensed under it - so if there was no copyright, there is nothing stopping me distributing that software outside of the terms of the license.

It's copyright which gives every OSS license their teeth. Without copyright, they aren't worth the paper they aren't printed on.

Re:Cost of infringing open source? (0)

Anonymous Coward | about 2 years ago | (#38549316)

There's no such thing as "not copyrighted". You have the copyright to your own work no matter if you want it or not. If you allow everyone to copy it freely, then you exercise that copyright.

Abandonment of copyright (1)

tepples (727027) | about 2 years ago | (#38549442)

I thought CC0 and other "dedication to the public domain" licenses constituted an abandonment of copyright [wikipedia.org] . But software distributed under a copyleft license certainly doesn't have an abandoned copyright.

Re:Cost of infringing open source? (1)

hedwards (940851) | about 2 years ago | (#38549466)

Mostly yes, but the term for "not copyrighted" is "public domain" and that is either because it's no longer subject to copyright or because the creator has specifically placed it into the public domain.

Re:Cost of infringing open source? (4, Interesting)

Ynot_82 (1023749) | about 2 years ago | (#38549194)

The cost of infringing the GPL is the lose of redistribution rights
This is far more costly than any monetary fine that could be imposed
Means the infringer has to write their own code, and not mooch off of FOSS

Re:Cost of infringing open source? (3, Informative)

drolli (522659) | about 2 years ago | (#38549346)

The alternative: he licenses from the original author under different conditions.

Re:Cost of infringing open source? (0)

Anonymous Coward | about 2 years ago | (#38549218)

I think the damages would be some portion of the revenue from the infringing product. At least that's the precedent set by the music industry, for which copyright was invented.

Re:Cost of infringing open source? (4, Insightful)

tomhudson (43916) | about 2 years ago | (#38549226)

To benefit from statutory (as opposed to actual) damages, you have to register your copyrights.

Most open source software, while copyrighted under the Berne Convention, doesn't have a copyright registration certificate emitted by the government [wikipedia.org] , so it's just actual damages.

Copyright owners are precluded from collecting statutory damages and/or attorney's fees for any infringement occurring before registration.

That's why the RIAA registers their copyrights - instead of actual damages, they can claim statutory damages of $150,000 per copy.

Re:Cost of infringing open source? (1)

Xugumad (39311) | about 2 years ago | (#38549354)

This does of course depend on the country. In the UK, copyright is automatic: "There is no official registration system for copyright in the UK and most other parts of the world. There are no forms to fill in and no fees to pay to get copyright protection. If you have created a work that qualifies for copyright protection, you will have copyright protection once you meet the criteria for protection (see pg. 3). You do not, however, have to fill out any forms or pay any money to receive protection. In fact, it is a requirement of various international conventions on copyright that copyright should be automatic." - http://www.ipo.gov.uk/c-essential.pdf [ipo.gov.uk] (page 16, with apologies for the PDF link)

Re:Cost of infringing open source? (1)

tepples (727027) | about 2 years ago | (#38549546)

Copyright is automatic in the United States as well. It's just that unless the infringement occurred within three months of first publication or before the copyright was registered, the copyright owner can collect only actual damages. What is the term under UK law for what US law calls "actual damages" or "statutory damages"?

Re:Cost of infringing open source? (1)

tomhudson (43916) | about 2 years ago | (#38549638)

Please try to at least READ what I wrote. Yes, copyright is automatic. NO, you do NOT get statutory damages if you do not register your copyrighted material - only your provable actual damages.

Re:Cost of infringing open source? (1)

pruss (246395) | about 2 years ago | (#38549292)

IANAL, but I would think that the actual damages for infringing on a license by unauthorized redistribution (say, redistribution of GPL software without source code) would be a reasonable estimate of how much an alternate commercial redistribution license for the project would cost. If the project has negotiated such licenses with other companies in the past, that could provide data for an estimate. Failing that, I suppose one could look at relevantly similar projects and how much an alternate license costs for them.

Re:Cost of infringing open source? (2)

Junta (36770) | about 2 years ago | (#38549314)

I have to agree to an extent. Broadly speaking, there should be some sort of punitive component (or else everyone pirates knowing that if cost they just shell out the money they neglected to pay upfront). There should be a happy medium.

One counterpoint is that even if there are no material reparations, that doesn't preclude the possibility of an injunction, which even without money awarded would largely sate open source projects.

Re:Cost of infringing open source? (0)

Anonymous Coward | about 2 years ago | (#38549434)

You know, this may actually be a decent point.

Re:Cost of infringing open source? (0)

Anonymous Coward | about 2 years ago | (#38549680)

"Does this mean that there is no cost to infringing on an open source license?"

No, why would it? This is not about infringement on a license, it's about theft.

Jury's verdict? (1)

White Flame (1074973) | about 2 years ago | (#38549148)

Wait, I'm no expert on what goes on in a court room, but a jury actually came to a unanimous decision that $1,370,590 should be awarded for this case until the judge stepped in and reduced it?

Juries decide facts, judges decide law (1)

crow (16139) | about 2 years ago | (#38549222)

My understanding is that the jury's job is to decide any facts that are in dispute, such as whether someone did something. A judge decides matters of law, such as whether that something is illegal. I suspect in this case that the judge determined that the jury's verdict included matters of law, and therefore were outside the jury's scope.

Re:Juries decide facts, judges decide law (3, Informative)

Jiro (131519) | about 2 years ago | (#38549282)

If you RTFA, the judge concludes that the jury based the 1.3 million actual damages on loss of revenue. The judge basically ruled that the loss of revenue was not proven to be caused by the illegal download.

This doesn't apply to the RIAA because as has been stated in other comments, if the copyright is registered, the penalty is no longer limited to actual damages.

Re:Juries decide facts, judges decide law (0, Informative)

Anonymous Coward | about 2 years ago | (#38549498)

Juries have the right as well as the power to decide questions of law and fact. Most current judges seem to greatly disagree with this, but it is the law of the land.

From http://en.wikipedia.org/wiki/Jury_trial [wikipedia.org] :

Supreme Court case Sparf et al. v. U.S. 156 U.S. 51 (1895), generally considered the pivotal case concerning the rights and powers of the jury, declared: "It is our deep and settled conviction, confirmed by a re-examination of the authorities that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of law or of fact, involved in that issue."

Re:Juries decide facts, judges decide law (3, Informative)

capnkr (1153623) | about 2 years ago | (#38549562)

Please, please take the time to (re)educate yourself regarding the function and purpose of individual jurors. Although many people believe as you do that:

My understanding is that the jury's job is to decide any facts that are in dispute, such as whether someone did something. A judge decides matters of law, such as whether that something is illegal.

...this is most emphatically NOT the truth.

If you'll visit the FIJA website [fija.org] (Fully Informed Jury Association), it is explained in plain and easily understandable language why a jury has the right and duty to sit in judgment of the law as well as the/any disputed facts.

That said, do not tell the judge or lawyers that you have this knowledge. Otherwise you risk getting sidelined from the process, put under a bench warrant which makes you unable to sit on a jury or inform any other jurors of their rights and duties. I know this because it happened to me.

Re:Jury's verdict? (0)

Anonymous Coward | about 2 years ago | (#38549230)

I'm guessing that the judge instructed the jury to use a certain formula and then reduced it.

Re:Jury's verdict? (3, Informative)

TheGratefulNet (143330) | about 2 years ago | (#38549232)

jury selection ensures only the most idiotic housewives/unemployed/dullards/rednecks will serve. if you have a brain and can think for yourself, they don't want you. if you dare let on you know about jury nullification, they kick you out.

they want jurys to be dumb.

and we get the justice system that we 'encourage' via this.

not really a surprise. judges tell the juries that the judge is the only one to interpret the laws; but that's just not true at all.

still, given how tends to get allowed to sit on the jury, I'm not sure JN is all that helpful. but I still find it offensive that the US justice system allows JN but won't allow it to be mentioned!

Re:Jury's verdict? (0)

Anonymous Coward | about 2 years ago | (#38549348)

jury selection ensures only the most idiotic housewives/unemployed/dullards/rednecks will serve.

Unlike like people like yourself that never make the effort but are happy to moan about people you've never met, know nothing about, but hey, you're a dweeb posting on an online forum! Way to go, genius!

Re:Jury's verdict? (1)

TheGratefulNet (143330) | about 2 years ago | (#38549436)

I've been on at least 2 jury selection occasions.

both times, I was told to leave.

they did ask 2 questions about JN; to the effect of 'will you blindly follow the judges orders or will you follow your concience?'. 2 questions on the voire dire (pre-selection procedure) that differ enough that they are not identical but they are consistency checkers to see if you are being honest about what your views are.

friends have also told me that the quickest way to get out of jury selection is to act smart. they don't want that.

now, about YOU - you post as a/c, post a hit-and-run insult and you expect to come off as morally superior?

boggle. then again, not sure why I'm even replying to a farking A/C here. basically, you A/C's can go fuck yourself.

Re:Jury's verdict? (1)

lightknight (213164) | about 2 years ago | (#38549450)

Interesting. Were I a judge, I'd let the lawyers nerf whoever they wanted, let them spend 5 minutes with their hand-picked jury, then nerf that jury, and bring back in all the people they nerfed to sit as the actual jury.

I wouldn't mind seeing what kind of decision a jury filled with lawyers, scientists, engineers, and doctors might come to. It might be worth the amount of bitching I'd hear from all of them about how they're losing money being there, and are needed elsewhere. Given the current state of law, I'd care to make sure the normally insulated people of society knew damn well how badly things are going, even if they have to learn about it first hand.

Re:Jury's verdict? (4, Insightful)

rahvin112 (446269) | about 2 years ago | (#38549528)

So just to be clear. You support the idea that a white jury could nullify a murder conviction against a white man accused of killing a black man because the members of the jury think it's ok for a white man to kill a black man? Because that's exactly what happened numerous times in the south during the civil rights movement. Jury nullification sounds good on the surface until you turn around and apply it to the ugly situations that you don't want to talk about. And the reality is that those ugly situations are going to be far more common than the just situations.

We shouldn't be nulifying laws in the jury box, it's should be done at the ballot box, if more people took seriously their electoral responsibility and communicated with their elected representatives and worked inside the system these things would change. But when the only ones talking about copyright policy are those groups who benefit most from an authoritarian version then don't be surprised when that's what you get.

Finally, a judge gets it! (5, Interesting)

Solandri (704621) | about 2 years ago | (#38549154)

If 10,000 people share a file, and you charge one person for "making available" 10,000 copies, then you cannot penalize those 9,999 other people. Either 10,000 people "made available" 1 file each, or 1 person "made available" 10,000 copies and the other 9,999 are innocent.

The way the studios have been arguing it, they'd be collecting fines on n^n copyright violations when only n copyright violations occurred.

Re:Finally, a judge gets it! (0)

Anonymous Coward | about 2 years ago | (#38549280)

To be pedantic they are actually wanting to collect fines on n^2 copyright violations. n^n would give numbers so large that that wouldn't fit on an A4 sheet of paper for 10 000 people.

Re:Finally, a judge gets it! (1)

Just Some Guy (3352) | about 2 years ago | (#38549384)

To be pedantic they are actually wanting to collect fines on n^2 copyright violations. n^n would give numbers so large that that wouldn't fit on an A4 sheet of paper for 10 000 people.

Congratulations on figuring out the RIAA's business plan for the 2010's.

Re:Finally, a judge gets it! (2)

Richard_at_work (517087) | about 2 years ago | (#38549300)

Everyone who distributes the file infringes copyright as a separate infringement - just because person A gets sued for their infringement doesnt mean persons B through Z are immune to the same charge for their own separate infractions.

In other words, if 1 person distributes to 10,000 people, then sure, only one person is liable, but if those 10,000 also distribute then they are also liable. Pursuing one of those infringements doesn't invalidate the other infringements happening.

And that is how bit torrent works.

Re:Finally, a judge gets it! (0)

Anonymous Coward | about 2 years ago | (#38549432)

Except that for bittorrent, each person doesn't distribute one copy, they distribute a (usually small) fraction of a copy. Each bittorrent user therefore infringes on the copyright, but using the decision from this case the actual damages would be somewhere between 1/10,000 and 1 times the cost of a license for the work, depending on each users contribution to the whole.

Analogy: I photocopy a 100 page book, and give one copied page of the book to each of 100 people.
Each person then makes 99 copies of their page, and distributes it back to the others.

100 copies were created in total, so total damages would be 100x the price of the book.
But those damages would be distributed across 100 people, not 100x per person.

That's where the RIAA etc. logic breaks down, they don't consider the total number of copies, they only look at the number of recipients not how much of the original work each recipient actually copied.

Time for ratio-based damages???

Re:Finally, a judge gets it! (0)

Anonymous Coward | about 2 years ago | (#38549500)

So if you distribute 1000 copies to 1000 distributors who then each distribute 1000 copies to the same distributors, is that 1,000,000 copies distributed, or 1000?

That is how bittorrent works. You cant have 1,000,000 violations of a pool of 1000 people sharing with eachother.

Re:Finally, a judge gets it! (1)

marcosdumay (620877) | about 2 years ago | (#38549560)

Bit torrent works in that way: If we both participate on a torrent with a thrid party, odds are that I'll send part of the file to you and he, and you'll send part of the file to me and he, and he'll send part of the file to both of us. In the end, we colectively have three copies of the file.

RIAA reasoning was that, in consequence of that they could ask for compensation for 6 files. Not exactly n^2, but assimptoticaly equal.

Re:Finally, a judge gets it! (2)

tukang (1209392) | about 2 years ago | (#38549510)

For a single stolen item the police can charge both the thief for stealing and the buyer for purchasing stolen property, so I don't see how this is any different.

I'm against copyright law but this argument is flawed.

Re:Finally, a judge gets it! (2)

Rockoon (1252108) | about 2 years ago | (#38549558)

I agree with the RIAA that infringement is against the law (don't like it? work to change it), but I disagree entirely about the penalties being imposed on people pursuing absolutely no commercial interest with their infringement activities. I think that current infringement penalties are excessive and thusly not constitutional.

For those not in America, or are simply ignorant, the 8th Amendment to the United States Constitution (part of the 10 amendments we call "The Bill of Rights") reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

A $10000 fine for downloading Lady Gaga's "Poker Face", which you can own for $1.29 on iTunes, is unfuckingconstitutional. Period.

Re:Finally, a judge gets it! (0)

Anonymous Coward | about 2 years ago | (#38549612)

you cannot compare this case to hollywood vs everybody else.

it is completely different!

Re:Finally, a judge gets it! (2)

chrismcb (983081) | about 2 years ago | (#38549676)

If 10,000 people share a file, and you charge one person for "making available" 10,000 copies, then you cannot penalize those 9,999 other people.

Sure you can. They all broke the law.

what are the shoping lefting fines X time price? (1)

Joe_Dragon (2206452) | about 2 years ago | (#38549164)

Maybe downing should be the same way price + fine or price X times.

Old news (1)

Anonymous Coward | about 2 years ago | (#38549242)

re: "Something tells me the plaintiff will seek a new trial"

The judgement was from September 21st, and gave 20-20 until 29th to accept or seek the new trial.

Given that this is now 3 months ago, what did they actually do?

Potential lost license (0)

nurb432 (527695) | about 2 years ago | (#38549278)

I know if the software was 4 grand and i pirated it, they did NOT lose a sale. It might even lead to a commercial sale down the road as i could honestly recommend it to a client or co-worker.

That sort of situation should be accounted for and non-profit piracy should not be prosecuted.

Re:Potential lost license (1)

Xugumad (39311) | about 2 years ago | (#38549376)

> That sort of situation should be accounted for and non-profit piracy should not be prosecuted.

Should not be prosecuted is an unusual one (I've frequently seen people argue it should be legal), but I'd still be cautious that for many copyright works (music, film, books being obviously examples) non-profit use is the most common, and this risks people never paying for the material at all.

OTOH, the humble indie bundles ( http://www.humblebundle.com/ [humblebundle.com] ) do well and rely primarily on people being honest, so it's a much better argument than "should be legal".

Bigot! (0)

Anonymous Coward | about 2 years ago | (#38549294)

"Something tells me the plaintiff will seek a new trial"... ...and what "tells" you that, apart from the nasty little Aspergic voice in your head?

This is pure, bigoted speculation, designed to whip the Slashdot basement-dwellers into a frenzy of greedy conjecture about "the death of copyright", and other favourite topics.

Uh... what? (1)

mark-t (151149) | about 2 years ago | (#38549360)

Will all the people who download infringing content, when the person sharing it ends up having to pay their license fees, receive the same support they would as if the downloaders had bought a licensed copy directly from the original provider of the content?

I don't get it (1)

alvieboy (61292) | about 2 years ago | (#38549478)

What is the rationale behind $1,370,590.00 ?

I don't have the time or patience to read all the legal gibberish, wondering if someone can elude me if:

a) The defendant took an unauthorized copy, and distributed it,
b) The defendant took an unauthorized copy, used it, and also distributed it,
c) The defendant took an unauthorized copy, and allowed others to retrieve it [and eventually used it]

Is "to make available" the same as "to distribute" ?

What's the big story here? (1)

AcidPenguin9873 (911493) | about 2 years ago | (#38549484)

I don't think anyone was ever arguing that a downloader should pay hundreds of thousands of dollars in penalties for one download. On the other hand, uploaders are distributing the material to thousands of other people, and that's where you get hundreds of thousands of dollars in damages.

Not just your normal "download" infringement case. (4, Informative)

ChumpusRex2003 (726306) | about 2 years ago | (#38549488)

it's worth pointing out in this case what the reason was that prompted the jury to award such a high award in the first place.

Both of the plaintiff and the defendant in this case are software development companies. In both cases, they produce CAD software for home and home design use. In this particular case, the particular software packages in question were those for kitchen design.

Real view were developing a freeware CAD package which would be supported by premium-priced furniture, appliance and decoration add-ons. In contrast, 20-20, which was already a major player in this market, sold a fully featured package for $4200.

The infringement in this case was that real view had illegally downloaded a pirate copy of 20-20's flagship product, and then used that as part of their development process for their own product. In particular, they effectively cloned the GUI and a number of other features, so that users who had previously used 20-20's product could switch to the new real view product without retraining.

Competing kitchen CAD companies, not file sharers (3, Interesting)

michaelmalak (91262) | about 2 years ago | (#38549512)

These companies (or at least whichever threw the first legal punch) seem to prefer to battle it out in courts rather than the marketplace. There is also a lawsuit between them about look and feel [senlawoffice.com] . Just taking a wild stab here, but this "unauthorized download" may have been just one company being unsuccessful at being able to purchase their competitor's product (so that they could get some ideas to copy), and downloaded a pirated copy instead.

Hmm (2)

lightknight (213164) | about 2 years ago | (#38549526)

The decision sounds somewhat reasonable. Forcing the infringer to become fully-compliant with licensing, at the standard going rate for licensing appears to be a good idea. It should have the nice side effect of reducing some of the ridiculous fees that the lawyers are looking for (which are far in excess of the defendant's ability to pay), reduce the number of these incidents (as it's no longer immensely profitable to run a law firm based off of this design), and force businesses to look at their models (in much the same way that Steam has helped reduced game piracy, perhaps a tweak on the business model might reduce this variation of piracy).

At the end of the day, you can't take money from someone who has none. *shrugs*

The company failed to make their case.. (4, Interesting)

Xeranar (2029624) | about 2 years ago | (#38549602)

Which has nothing to do with illegal file sharing and everything to do with industrial espionage. 20-20 couldn't prove that Real View stole actual code or reused it in a similar manner which was the crux of their case for loss. On top of that they refused to establish a factual loss due to competition that the product time that they went head-to-head over. I understand the judge setting aside the original verdict's value and I assume 20-20 will appeal but they need to bring something more than what they assume is obvious to the trial. Their expert testimony was lackluster and saying development costs "millions and millions" when you are a seriously established company and have records is just pathetic...

i shrug when i read this. (2)

nimbius (983462) | about 2 years ago | (#38549686)

http://prokitchensoftware.com/ [prokitchensoftware.com] for reference as to what they stole. if you're running a business, you know presumably how the game is played. part of that game is licenced software, albeit many companies skirt this reality. its nice to see boris and leo (actual names of defendants) sticking up for sensibility in copyright, but as business owners i have no pity. the law exists for all business owners and arguably they would have done the exact same thing had someone plagiarized or stolen a kitchen design from them. if the defendants are reading, might i suggest giving open source drafting and design tools a whirl? gimp, blender, inkscape, Kerkythea and sketchboard are alternatives, although it means you'll not have an automated nail or screw calculator. if you're that large a firm, buy the software or support a project and request the features.

Stealing is more than taking other people's stuff (1)

0xdeadbeef (28836) | about 2 years ago | (#38549702)

What about the cost of their hurt feelings?

Business model (1)

robi5 (1261542) | about 2 years ago | (#38549718)

1. Write a program, and offer it for a price
2. Have it shared on a torrent site
3. Sue

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