These IMAGiNE members were charged with several counts of criminal copyright infringement and they eventually received prison sentences ranging from 23 months in prison up to five years". ... "
“... he mentions that in his opinion the case should have been a civil one, and he doesn’t see why copyright infringement is a federal offense."
Can anyone elaborate why is it a Federal crime, like say kidnapping or bankrobbing?
The Constitution specifically gives congress the power to regulate copyright. It makes sense for it be that way, as allowing States to meddle with copyright would create chaos and barriers to commerce. Kidnapping is a Federal offense when there is a reasonable expectation that the criminal will cross state lines. Bank robbery is a Federal matter because the robber is defrauding the FDIC, who insures the deposits.
The law was originally written with printed material in mind. In those days, it's obvious that someone going to the trouble of setting up a printing press to duplicate a book or pamphlet was infringing copyright on a "commercial scale" -- which is where you cross the line from civil to criminal liability.
Digital media has been a grey area. RIAA/MPAA sits on one extreme, and the "information wants to be free" crowd is on the other. Today, I think that there is a consensus that a private citizen downloading a copy of a copyrighted work isn't a crime in most cases.
The grey area is around distribution. Is somebody seeding a torrent committing a crime? Most people would think no, if they think yes, not to the extent that it is worth prosecuting. Is someone sourcing and distributing unlicensed material at a reasonably high scale, branding it with a distintive mark (IMAGINE) committing a crime? The Feds think so.
Calling it a grey area between RIAA/MPAA and the "information wants to be free" crowd might do it a disservice. The goal of criminal law is to give out punishments and incapacitate those who violate a subset of laws, while civil law emphasis victim compensation.
If someone is redistributing information without a license in a not-for-profit manner, what is more important. Retribution and punishment, or victim compensation to the individual who produced the information?
Digital media, or someone printing out a pamphlet. Does the technology really matter when deciding what the goal of the law is? To me, it sound obvious that non-profit redistribution of information without a license is at most a civil law crime. That has nothing to do with "information wants to be free", and all to do with common sense in regard to the fundamental design of laws.
I gave those examples as polar extremes. RIAA's initial, extreme, position in 1997 was that you will pay $25 for a CD or $5 for a single (with selection limited by the publisher), period. Time passed, and now you have a broader array of choices (iTunes pay for a perpetual license, the Spotify-style subscription model, etc).
It depends on your point of view. If I paid a sports league millions of dollars for the right to broadcast a game, and you decided that you would take my broadcast and re-broadcast it for free, you are damaging me to the tune of millions of dollars -- dollars that you cannot possibly repay.
Technology is key here, because it lowered the barriers to reproducing content. Printing a pamphlet in 1850 was a big deal -- you needed a printing press and specialized workers. Today, you need 5 minutes and a $50 printer. Same story with vinyl records, or projector film.
At the end of the day, the answer lies somewhere in the middle. If I were King, I'd say that copyright holders are entitled to fair compensation, but in return for that compensation, society is entitled to have things enter the public domain in a reasonable period of time as well.
No matter how many millions it should still be a civil matter unless there's some kind of fraud going on.
Also a single person rebroadcasting is probably only making a handful of copies. You can't say that they are personally damaging you for all those millions of dollars. Unless you want to exonerate everyone else in the swarm.
But that leaves my question unanswered; The question on whats is the goal. Is the goal that the copyright holders should be compensated, or that violators get punished? I law can only be in one of those two camps.
I'm not American, but doesn't federal crime simply mean that the crime does not fall under the jurisdiction of states?
I can totally understand why it is a federal crime - copyright has to be enforced across the country. It'd be rather senseless to enforce copyrights by states.
Now, the real issue of course is as what he said: Why is this a crime? Shouldn't this be a civil issue, to be settled between the two parties? This is the part about copyright enforcement laws I don't get: how is it a crime?
> Shouldn't this be a civil issue, to be settled between the two parties
I kinda understand at least one reason why it's not that simple. In high profile cases like this, you could have hundreds of copyright holders wanting action. Coordinating all those people could be impossible, and thus legitimate cases would fall flat on their faces just for lack of cooperation.
If the copyright holders are unable to form a class action suit against one tiny group... I don't see why they should be entitled to going 'one level up' and getting federal involvement and making it a crime.
You're saying that they should be Federal crimes due to logistical reasons. You do realize that making them Federal crimes includes prison sentences, while civil cases do not. Just because it would be logistically difficult to get a civil case organized is not enough of an excuse for adding jail time to the punishment.
Aren't that always the case with class action suits? I would also like special criminal laws to be added each time a company do something that result in a class action suit. It would make things so much easier.
Specifically: "(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution."
Hmm good question. I cannot see why it is not civil... When I think about civil lawsuits it seems to fit in. Individual wanting compensation and a cease of the acitivities... I don't understand why there is jail time involved...
"Can anyone elaborate why is it a Federal crime...?"
Because the golden rule is that the one who has the gold makes the rule?
Seriously now: it's when I see crazy stuff like that that I'm happy to live in Europe. Even if not everything is clean here: especially with all the ones who have the gold trying to lobby hard and use insiders to push crazy EU laws in.
Another really serious issue is that "TV on demand" can often be really sucky: I'm using a TV+Internet provider that sells movie but the offering is really lame. I mean: it's terribly lame. As a result I'm sometimes asking friends who are into piracy to give me copy of some movies I'd be fully willing to pay 4 or 5 Euros for (the typical price at which my provider sells me the movie).
Going to the DVD store to rent a DVD? I used to that and pay for my movies. But these stores they're dying one after the other (due to the competition of both "tv on demand" and piracy).
So for some movies I "need" to pirate them if I want to see them, which is sad.
I can't imagine anyone going to jail so long for a non-violent crime.... though it's hard to understand where the limit is. I'd also like to see some people thrown in jail for other non-violent crimes.
Would be interesting to see statistics of average sentence per crime. Something that would rank all crimes from highest average sentence to lowest, and where visitors can vote for sentences to go up or down. Crowdsourcing justice? Or is it better to leave justice in the hands of the few?
>Something that would rank all crimes from highest average sentence to lowest, and where visitors can vote for sentences to go up or down.
Sounds like something extremely likely to have the "voters" self-select in a way that biases the results. You can easily imagine e.g. prison companies exhorting all their employees to vote in favor of excessive sentences for the things in danger of having their excessive sentences reduced or eliminated, with the argument that if it happens they'll lose their jobs.
But more than that, it seems pretty obvious in general which crimes have excessive penalties: It's the non-violent not-for-profit ones with felony penalties. I'm sure you can think of specific exceptions (e.g. "not-for-profit" state-level espionage), but in general it's a very good heuristic.
In particular, the "assume profit from volume" characteristic of some of these laws is a major failure that needs to go. With the drug laws the limits are set sufficiently low that you have recreational users who just buy/have a lot at once entirely for personal use being prosecuted as distributors, and with copyright the number of copies made is so far abstracted from the actual harm to the copyright holder and is so hard to accurately measure that making it the deciding element in criminal law is a blunt instrument at best and to be less kind is exactly the sort of thing that can lead to the felony prosecution of someone like Aaron Swartz. If the government wants to prosecute someone for engaging in a for-profit activity, they should have to actually prove that you made a profit from it.
That's why some advocate focusing on rehabilitation instead of punishment. I'm not really sure if I agree, rehabilitation sounds bit too close to brainwashing and clockwork orange in my mind.
Well, there is an idea that they should stay in jail until we are reasonably sure they don't pose a danger to society / won't re-offend.
When you file for bankruptcy, you are usually required to take some classes on managing your finances. This is a rehabilitation of sorts, but I wouldn't call it 'brainwashing.'
until we are reasonably sure they don't pose a danger to society / won't re-offend
This might make sense for murder, but for most lesser crimes it's problematic. If someone is in the habit of getting in bar fights every few times he goes out drinking, would we be justified or even well-served to put him in jail until we're sure he would never go out drinking again? That could be decades!
It goes without saying that this idea is extremely problematic with respect to "crimes" against fictitious "property" like we have here.
Sorry, I wasn't entirely clear. I meant actively trying to reform them, but not releasing them until we know that they are reformed.
Some people seem to have the idea that reforming criminals is just a bunch of 'bleeding hearts' going into the prisons and singing 'kumbaya' with the prisoners, then releasing them as 'reformed.'
His punishment is work for the public good for X hours in a way he chooses.
He chooses to digitalize and publish works of creativity that deserves to be seen by the masses.
As he already done that already; he gets as change, the thank you from the public and a medal for his work even going against the laws.
Frankly I think he just sounds like the bitter old man he is. At least the TPB guys are idealistic in a cute way, but Cherwonik just seems self-entitled and grumpy.
I might add that the continuous allegations of bribery and corruptness does not really help his case.
Agreed... I think his punishment is ridiculous, but his own justifications are equally so. He comes off like a whiny teenager who's been caught sneaking out with the car. And I don't think his "I bet I paid a thousand or so for hosting" complaint is going to win him any sympathy. To the uninformed, that's just going to sound like a burglar complaining to the judge that burglary tools cost money.
I wonder if he would had made any money from this, a better lawyer would had better represented him in court, and thus serve a lesser sentence. That is, even while facing more serious charges.
I don't understand why criminal copyright infringement exists. If there is no copyright holder to sue, then by all logic the works should be in the public domain, thus no copyright to begin with.
Not all copy right holders have the financial means to sue for copyright infringement. It should be a criminal offence, what is wrong is the level of punishment associated with different levels of infringement.
Providing state attorneys is a bad idea in general. You'll immediately get frivolous lawsuits everywhere if the attorneys don't have discretion to decline cases, and if they do then all you're doing is having the state prosecute a de facto criminal case where the penalty is a fine, except that you've unjustly reduced their burden of proof from beyond a reasonable doubt to the preponderance of evidence.
Having for-profit copyright infringement be a misdemeanor is not without reason. But it should have to be for-profit, i.e. actual money is proved to go into their pockets, not assumed to be for-profit based on circumstantial nonsense, and the penalty should be very low for first time offenders and no more than a year in any case.
I agree this should be a civil matter, but don't complicate matters like this. Typically, wronged parties with limited means are able to hire lawyers on contingency. That's true even if they're facing giant insurance companies that have hundreds of lawyers on retainer. The defendants in this sort of case are likely to have much shallower pockets.
I don't have the means to sue you for breaking the NDA I made you sign. Therefore it should be a Federal crime, and you should go to prison for up to 5 years.
There is no flaw in this logic. </sarcasm>
This is the second post I've come across which equates the move from Civil Law to Criminal Law with some sort of logistics. I.e. "It's difficult for people to sue, therefore it should be a criminal offense." I can't understand why people aren't taking into account the change in punishment.
People don't go to jail in Civil Law, but they do in Criminal Law. Why should the punishment increase just for logistical reasons?
It exists because it can be used to make money. Making it inexistent would mean someone would lose money, and as such this it's logical that this losing party opposes it strongly.
If there's will there's a way. If there's money to be made, there's will for it. After all, if we throw enough money at it there's enough will.
Some people rely their income on things like copyright. They have kids to raise, house to pay and so on. It would totally suck for them to be cut from the income.
Lots of purely civil cases revolve around exactly that. If we have a contract that says I'll do some work for you and then you'll pay me for it, but then you subsequently don't pay me, then I'm in exactly the scenario you describe. But then I have to sue you for the money in civil court — I can't get you sent to prison for it.
“... he mentions that in his opinion the case should have been a civil one, and he doesn’t see why copyright infringement is a federal offense."
Can anyone elaborate why is it a Federal crime, like say kidnapping or bankrobbing?