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by nitrogen
5550 days ago
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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. |
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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.