[tzs]

This reminds me of a classic case in torts. Three hunters went out. They got separated so that you had two on one side of clearing, one on the other. A bird took off between the two groups. The group of two shot at the bird. One got the bird, and one got the third hunter.

The third hunter sued the first two for his medical expenses. The first two each raised the defense that there was no proof that they were the one that shot the third. They each maintained that they were the one that hit the bird.

They were both found liable. One had actually shot the third. The other, by taking a reckless shot in that direction at the same time, had made it so that the identity of the shooter could not be determined, thus creating the situation that made it so blame could not be accurately assigned.

It seems to me that putting a copyrighted work up on P2P without authorization from the copyright owner is similar. You are doing something that can only serve one of two purposes: (1) to directly infringe copyright, or (2) to obscure who is directly infringing copyright.

Arguably, copyright law could be read as covering this. 17 USC 106, the section that lists the exclusive rights of the copyright holder, says the copyright holder has the exclusive rights to do those things and to authorize those things. I wonder if one could argue that when you put a file up on P2P without permission, you are authorizing the distribution of the file, and so violating the exclusive right of the copyright owner to authorize distribution (regardless of whether or not anyone actually grabs the file from you)?

[radu_floricica]

And I'm sure the third hunter got his medical expenses reimbursed - not an arbitrary amount of money based on the best case scenario of what he could have done with his time.

The problem here isn't the blame, it's the fact that the maximum possible damage the defendant inflicted (price of song x no of downloads) is still much lower then the prescribed penalty - probably order of magnitudes lower.

[Silhouette]

> The problem here isn't the blame, it's the fact that the maximum possible damage the defendant inflicted (price of song x no of downloads) is still much lower then the prescribed penalty - probably order of magnitudes lower.

I'll concede you that point if you'll let me impose mandatory monitoring of all Internet use sufficient that everyone else who subsequently shared the file can also be caught and fairly prosecuted.

Otherwise, the viral nature of infringement does matter, and trying to cap the damage in absolute terms as you have done here is no more realistic than trying to claim the astronomical sums based on a loss of hypothetical sales that Big Media keep arguing.

[nitrogen]

Regardless of the viral nature of any behavior, a mere participant in the network should not be responsible for the behavior of others.

Edit: I think this raises a larger question: in the modern technology-enabled world, where large-scale crimes can be committed in a distributed fashion and in most cases there is no kingpin to take down, what is the law to do, and what are the people to do, since each individual person is causing very little of the total damage? I don't think holding the members of an organization responsible for the crimes of other members of the organization works in this case, since there is no organization.

[Silhouette]

> Regardless of the viral nature of any behavior, a mere participant in the network should not be responsible for the behavior of others.

I don't think it is fair to dismiss the viral nature so lightly. For example, it is not completely unreasonable to consider in law that the first person to share material is ultimately responsible for everyone who subsequently copies it, since without their action, the other copies would not have been possible. By the same argument, it is not completely unreasonable to hold each person in the network responsible for the future distribution that occurs based on the sharing they did.

Now, that might not be very practical, if you have to demonstrate the number of copies that were ultimately made base on a single original. Moreover, in some cases, it might lead to large damages awards, which we might or might not consider sensible given the relative power of the parties involved and the nature and consequences of the illegal act.

On the flip side, the bottom line is that the copyright holder is the one who is not breaking the law in these cases, and if you don't provide a practically effective way for them to enforce their rights under the law, then the innocent party is losing out. (I am not contending that Big Media are saints or that they should not be held accountable for any legally or ethically dubious practices they might adopt. I just think that is a separate debate.)

> I think this raises a larger question: in the modern technology-enabled world, where large-scale crimes can be committed in a distributed fashion and in most cases there is no kingpin to take down, what is the law to do, and what are the people to do, since each individual person is causing very little of the total damage?

Exactly. It is a difficult question. I just don't personally buy the theory that the wronged party, who typically has practical access to redress only via civil lawsuits that probably cannot be cost-effectively brought under many western legal systems today, should be the one that loses out.

I think the presumption should be that the network are collectively liable for the actual damage caused, that in the absence of ability to read minds it is reasonable to assume one actual (not hypothetical) copy has a value equivalent to the cheapest legitimate purchase price, and that the proportion of the cost paid by any individual member of the network should be such that a copyright holder can expect to regain their actual losses (but no more than that) through reasonable legal means.

That basically means that if you infringe but it is possible for the copyright holder to trace the consequences with reasonable effort, you will personally only be responsible for the damages that can be proven attributable to your own sharing, which will probably be a significant deterrent but won't be bankrupting most people with the kinds of silly awards we see today. On the other hand, if you actively choose not only to break the law but to do so via an anonymising network that can cause unknown damage with the intent of concealing your own and your accomplices' identities, then if you're the guy they catch, it sucks to be you.

[nitrogen]

I think that the legal system and major corporations will eventually have to follow the lead of some distributed computer systems, and just accept some small losses here and there in pursuit of greater gains elsewhere (I'm thinking of how Netflix embraces nondeterminism in its* distributed systems).

I keep wanting to use "their" instead of "its", mixing the US and non-US notions of whether a corporation is a singular or plural noun.

[Silhouette]

I agree that both the law and the corporations need to adapt to reality today, which is not the same as reality a few decades ago. However, I think the particular analogy you gave there is flawed, for a reason you mentioned yourself before: there is no "kingpin" to take down in a typical P2P network or similar system, so where do the "greater gains" come from?

In my ideal dreamworld, copyright would be updated to reflect the way the world really works today, which I think essentially means a much shorter duration for copyright protection, but with a genuine effort to make it practically enforceable during that period, and toning down some of the blanket laws that mean services that exist primarily to help copyright infringement can effectively hide behind some cheap legal shield to cover their asses.

[radu_floricica]

So the 9/11 terrorists were right? They couldn't find and prosecute every american who interfered with their lives, so they inflicted the maximum damage where they could, as a deterrent.

This isn't justice, it's war. And makes people feel even more justified in cheating, since the moral factor all but disappears.