Extortion Is Profitable Too, Doesn't Mean That It's A Fair Way To Profit Off Piracy

from the just-saying... dept

We’ve covered in the past how companies like Digiprotect convince the entertainment and software industries to sign over copyright licenses to allow them to purposely load file sharing networks with their content — and then send anyone who downloads the content a threat letter demanding payment. The idea here is not to actually take anyone to court or to stop file sharing. Not at all. The idea is to profit from these threat letters. And, as it turns out… it’s quite a profitable scheme. TorrentFreak has some numbers from a music industry presentation discussing how these extortion-like enterprises can pay quite handsomely. Basically, this one group, DRS, sends out emails demanding €450 ($650) per offense, with the company getting to keep 80% of any proceeds. Furthermore, DRS claims that approximately 25% just pay right up, which means for every infringement letter DRS sends out, it can expect to bring in $162.50, with 20% going to the artist rights holder. That’s $32.50 that the rightsholder can expect per infringement, on average. That sure as hell beats a few pennies per download. No wonder such programs are becoming so popular. Of course, that doesn’t make them any more ethical. Purposely putting files online and then sending out threat letters isn’t exactly the moral high ground here.

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Companies: digiprotect, drs

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Comments on “Extortion Is Profitable Too, Doesn't Mean That It's A Fair Way To Profit Off Piracy”

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174 Comments
Nic says:

Re: Re: yeah yeah, but...

don’t want to spark a flame war, but… If I left a bag of potatoes out on my front lawn, i wouldn’t expect people to just take some. They are still my potatoes.

Also, if I put my case down in a cafe to drink my tea, I’d be slightly put out if someone ran off with it.

Same applies here: just because the files are available, still doesn’t give people the right to take them.

Phillip Vector (profile) says:

Re: Re: Re: yeah yeah, but...

I don’t want a flame war either.. But your logic is not sound.

For the potatoes, you aren’t just leaving them on your front lawn, you are taking them to the market and putting them up on a table with a sign saying “free potatoes”. I know of no torrent file that you need to pay for. None.

Now, if you put your file on iTunes and someone took it off there without paying, THEN that would be illegal. But putting it in an area that you know it will be downloaded (Nay, you HOPE it’s downloaded because you are counting on the fees) means that your defense of “I put it there not expecting it to be downloaded” would be laughed out of court.

“Same applies here: just because the files are available, still doesn’t give people the right to take them.”

No. Unless you put them on a service that you know people will take them (and I prefer the term copy. You aren’t losing your files when I copy them).

Nic says:

Re: Re: Re:2 yeah yeah, but...

Yeah, i get the idea that Torrent networks are basically for sharing files, but it could be seen as simply a distribution network. The copyright holder may have put them on the network for people that have been given the right to download..

Again, I understand the basic argument, but I still don’t agree that because the copyright owner put the files on the net means that anyone can download them.

I can download plenty of software apps form the vendor’s sites, but if i don’t also pay for a licence per end user seat, I’m breaking the law – even if the copyright holder has made the software freely available for download. They could have as easily put the application on a Torrent network and the licence would still be required. Especially if the vendor required you to pay _before_ you download.

Anyway.. Grr.

Phillip Vector (profile) says:

Re: Re: Re:3 yeah yeah, but...

“Yeah, i get the idea that Torrent networks are basically for sharing files, but it could be seen as simply a distribution network. The copyright holder may have put them on the network for people that have been given the right to download..”

If they named the torrent “filename.exe – Do not download if you do not have a license”, then I can see it. You are effectively “putting a sign up over your potatoes that they aren’t free”. That’s cool and yes, the people who download that SHOULD be charged. But without that sign, the default is free to download.

“Again, I understand the basic argument, but I still don’t agree that because the copyright owner put the files on the net means that anyone can download them.”

Not “The Net”, but “A file sharing service that is free to all”.

“I can download plenty of software apps form the vendor’s sites, but if i don’t also pay for a licence per end user seat, I’m breaking the law – even if the copyright holder has made the software freely available for download. They could have as easily put the application on a Torrent network and the licence would still be required. Especially if the vendor required you to pay _before_ you download.”

Yes. Most of the time, the license is in the program itself. So I don’t follow you here. If they have a program that requires a license key, then you are still stuck with an unusable file until you get said key (that you have to pay for). Your analogy doesn’t apply here since audio files don’t have that key.

Nic says:

Re: Re: Re:4 yeah yeah, but...

“Yes. Most of the time, the license is in the program itself. So I don’t follow you here. If they have a program that requires a license key, then you are still stuck with an unusable file until you get said key (that you have to pay for). Your analogy doesn’t apply here since audio files don’t have that key.”

Not true – There are plenty of development tools that are totally free to download, but require a payment per seat to use.

But, I think we all get the gist of the story… 🙂

Phillip Vector (profile) says:

Re: Re: Re:5 yeah yeah, but...

“Not true – There are plenty of development tools that are totally free to download, but require a payment per seat to use.”

True. Well, around here, we call that “Give away and pray”. Not the best business model, but may generate some income. It destroys your argument though.

If they have it available on their webpage, then they want people to download it, try it out and (hopefully) pay them for it. If it’s available to download on their webpage and they put it also on BitTorrent, how is it illegial to get it from a torrent site and not illegial to get it from the website?

Anonymous Coward says:

Re: Re: Re:11 yeah yeah, but...

Yes, it is free to download by those who choose to stick their heads in the sand and pretend they are not doing anything wrong.

BTW, you are right to comments about the word “share”. That is a term that was coined by P2P software creators (e.g., share folder). The correct term is “distribute”, but then why stand on formality when one can create a “moral panic” by using the term “share” to rail against rights holders?

DocMenach (profile) says:

Re: Re: Re:12 yeah yeah, but...

Yes, it is free to download by those who choose to stick their heads in the sand and pretend they are not doing anything wrong.

You once again make the incorrect assumption that everything on file sharing networks is unauthorized, when that is clearly not the case. There are Musicians, Software Publishers, Book Authors, and many other content creators that purposefully put their goods on file sharing networks for free distribution, 100% authorized and legal.

Please explain to me how I can simply look at a file and recognize weather the file authorized or unauthorized.

Nic says:

Re: Re: Re:13 yeah yeah, but...

You know. I walk past houses everyday near me that have bits and bobs out side for passers by to take, old books, unwanted speakers, etc. I would know if the brand new bike leaning against someone’s wall was for the taking or not, much in the same way you’d know if the latest album by an artist was “free for the taking” or not. Radiohead? NIN? yep. Photoshop CS3? No.

DocMenach (profile) says:

Re: Re: Re:14 yeah yeah, but...

You know. I walk past houses everyday near me that have bits and bobs out side for passers by to take, old books, unwanted speakers, etc. I would know if the brand new bike leaning against someone’s wall was for the taking or not, much in the same way you’d know if the latest album by an artist was “free for the taking” or not. Radiohead? NIN? yep. Photoshop CS3? No.

You’re just supposed to know? Sorry it doesn’t work that way. What about obscure artists who can’t necesarrily scream to the world “hey, my next album is free!!”.

Take the example of two obscure artists, let’s call them Joey and Bob. Joey decides to release his album in the conventional way, with CDs and paid MP3s (through iTunes), but the files end up on the file sharing networks because someone decide put them there (unauthorized). Bob decides to release his album freely using bittorrent (authorized). Neither artist is well known, and is unlikely to get any mainstream press coverage. How would I know which file is authorized? By your logic I should just know?

Nic says:

Re: Re: Re:15 yeah yeah, but...

No, it’s because I live in the UK and was asleep.

I’m neither greedy or lazy. I’m just someone that believes that if someone downloads a music track for free that they do not have express permission to do so for, then they are breaking the law.

How the “law” is “enforced” (the point of this article) is up for debate, not the law itself.

DocMenach (profile) says:

Re: Re: Re:16 yeah yeah, but...

I’m just someone that believes that if someone downloads a music track for free that they do not have express permission to do so for, then they are breaking the law.

Well just because you believe something doesn’t make it true. Real life does not agree with you. There are plenty of music tracks that are fully authorized and legal to download for free, without having to get express permission.

Anonymous Coward says:

Re: Re: Re:16 yeah yeah, but...

No, it’s because I live in the UK and was asleep.

You weren’t asleep when you previously gave a response that failed to answer the question (unless you’re trying to claim that you were posting in your sleep). And you certainly don’t seem to be asleep now, but you’ve still not answered the question. So what’s your new excuse?

Anonymous Coward says:

Re: Re: Re:13 yeah yeah, but...

Please explain to me how I can simply look at a file and recognize weather the file authorized or unauthorized.

In most cases, you can’t. Even if you were to contact the copyright holder in many cases you would still need copies of any relevant licensing contracts to take to a lawyer for review. And even then different lawyers can have different opinions. There are no guarantees.

Chronno S. Trigger (profile) says:

Re: Re: Re:12 yeah yeah, but...

“why stand on formality when one can create a “moral panic” by using the term “share” to rail against rights holders?”

Because we have assholes like you who call “distributing” “theft” and that also causes a “moral panic”.

If we all stayed in the middle where truth is, this issue would have been resolved years ago But no, We have assholes who will take our middle ground and twist it into the shit The RIAA and MPAA are pumping out. Since everyone knows (erroneously) that everyone twists the truth to their own cause, the answer must be in the middle. Thus we have to twist the truth to our side to get people back to the actual truth. We started with reality, you didn’t.

Anonymous Coward says:

Re: Re: Re:11 yeah yeah, but...

If the person downloading it knew that they were infringing then it’s illegal. If not, then it’s not. If the uploader does not have authorization to upload it they presumably know that they don’t have authorization so they are the ones who should get in trouble.

It’s like this. If I bought a stolen car and I didn’t know it was stolen I’m not to blame. The person who sold it to me, who knew it was stolen, is to blame. Now if I bought it and KNEW it was stolen then I can get in trouble.

Chris Rhodes (profile) says:

Re: Re: Re: yeah yeah, but...

Bad analogy.

It’s more like you went to the homepage of an artist you admired, and on his Downloads page were high-res copies of all his famous paintings, so you download some of your favorites.

Then a couple weeks later you get a letter from him demanding several thousand dollars for your “infringement”.

JB says:

Re: Re: Re:4 yeah yeah, but...

Nic, that is like setting up a device that will roll a potato from your lawn (private property) into the street (public property) when someone per your instructions (torrent file) activates it. You set it up so that anyone, with the instructions you provided, can freely acquire a potato.

JB says:

Re: Re: Re:6 yeah yeah, but...

No, in fact it says don’t click the potato roller button without permission. You provided permission by providing the instructions which implies your intent to provide the item freely.

Now if your instructions (torrent file) has clear instructions stating that you are not authorizing people to take the potatoes, you have a case.

Nic says:

Re: Re: Re:7 yeah yeah, but...

I know how to take candy from a baby, but I also know it’s wrong. Imagine that I posted a self produced track on my site that required a password to access. Say i set the password to “password”. I’d guess plenty of people out there would guess and gain access.

My naive attempt at security is a flag not to take the file, but it’s not spelled out in a licence – “If you guess the password, you can’t have the file, but if i tell you wat it is, you can…”

I didn’t provide permission to click the potato button much in the same way i didn’t explicitly grant access to my passworded track.

(Potato button? How the f*** did we get here?!)

Anonymous Coward says:

Re: Re: Re:8 yeah yeah, but...

“My naive attempt at security is a flag not to take the file”

Yes, in this situation it is.

“I didn’t provide permission to click the potato button much in the same way i didn’t explicitly grant access to my passworded track.”

But you didn’t give any indication not to take it and upon request you voluntarily sent the file.

Anonymous Coward says:

Re: Re: Re:8 yeah yeah, but...

But I think you have made it more than clear that logic and reasoning is not your intent. You want to discourage anyone from uploading and downloading legal content from the Internet in order to given your non free content a government granted unlevel playing field. Your pro intellectual property intents are clearly

A: selfish

B: malicious

C: you are just trolling, you are really anti intellectual property trying to make intellectual property maximism look bad

However, given the nonsense I’ve seen come from intellectual property maximists it is very likely you are an intellectual property maximist.

People, this is the kind of mentality held by intellectaul property maximists. They have always claimed that their position is for the benefit of society but as posts like this make it clear intellectual property NEVER HAD ANYTHING to do with what’s best for society. The motives have always been selfishly driven and the intent has nothing to do with what’s best for society. Given the broken mentality of intellectual property maximists I think we are better off doing away with intellectual property than maintaining the broken system we currently have.

DocMenach (profile) says:

Re: Re: Re:9 yeah yeah, but...

They have always claimed that their position is for the benefit of society

Well not quite. It’s more of a shell game of reasons: First they say it’s the benefit of society, but then someone points out that society does not appear to benefit from monopolies and the locking up of content, so then they say “it’s for the artists”, but then someone points out that the actual artists receive very little if any of the proceeds form album sales, so then they say “it costs lots of money to produce”, but then someone points out that the means to make high quality recording and reproductions has gotten cheaper and cheaper. At some point they end up going back to the “it’s the benefit of society”, and the cycle just repeats.

DocMenach (profile) says:

Re: Re: Re:10 yeah yeah, but...

easy tiger, play nice.

I’m trying to play nice. You haven’t actually made a coherent argument. You simply keep saying things that don’t make any sense in the real world: like how you keep repeating that people should simply know which files are unauthorized.

It sounds to me like you are saying that all files on sharing networks should be assumed to be unauthorized, unless you specifically know otherwise, but that doesn’t work. Plenty of content creators have put their works on sharing sites for authorized, free distribution, and more and more artists are embracing free distribution through file sharing networks as a great promotional tool, so it cannot be assumed that everything is unauthorized.

Anonymous Coward says:

Re: Re: Re:11 yeah yeah, but...

But this is the mentality of intellectual property maximists. It’s not about making a coherent argument, it’s about maximizing their selfish desires and profiting at everyone elses expense. They’ve gotten to the point where they’re so determined to exploit the public for their private gain that thinking in terms of good logic is irrelevant to their mentality. They keep saying, “intellectual property is for the public good” but it’s all lies and their willingness to argue such poor logic further demonstrates this. They’re used to (bribed) government officials buying into their broken rationale but the public isn’t buying it and they’re not used to not having the people they talk to not buy their nonsense.

PaulT (profile) says:

Re: Re: Re: yeah yeah, but...

Oh dear, this argument again…

If I take your potatoes or your tea, you no longer have them. You lose the only “copy”. You either lose the value of the original or lose money when you need to pay for another.

If I download a track from you, you lose *nothing* tangible. you still have the original to do what you want with. The only thing you’ve potentially “lost” is an opportunity to sell me another copy. Even that’s not totally lost if you manage to convince me to buy a copy anyway or leverage the download to convince me to buy higher-value tangible item.

PaulT (profile) says:

Re: Re: Re:5 yeah yeah, but...

No you haven’t… you *may* have lost the potential sale if:

– The person decides not to buy the track anyway (many people use P2P to preview albums as the samples on retail sites are often not long enough to decide quality – if the album’s good, many will still buy it).

– The person would have bought the track had the P2P download not been available (many just download for the hell of it and would *never* buy music – this has always been the case even back in the days of taping off the radio on cassette. Not to mention that people often discover new music through P2P – they won’t buy if they’ve never heard of you.).

– The person will never buy higher-value items such as concerts and merchandising (why sweat the loss of $1 when you’re getting $20 instead?).

Yeah, there will be some lost sales, but to assume that losses are 100% of retail value is idiotic and it’s hat’s getting the industry into this mess to begin with.

PaulT (profile) says:

Re: Re: Re:3 yeah yeah, but...

What have you “lost”?

It’s not tangible, you see. Copyright is a limited monopoly on the item in question, but who and what it’s protecting you from gets fuzzy when it’s your own fans doing the copying.

Besides, what if you “lose” the ability to sell me a $1 iTunes download, but gain the ability to sell me a $20 t-shirt or a $50 concert ticket? Surely then it’s your own damn fault if you lose money.

Mike Masnick (profile) says:

Re: Re: Re:3 yeah yeah, but...

But I have “lost” something, which is what my copyright should protect me from losing?

A “potential sale” cannot be “lost”. If it could, then any time you decided to eat at restaurant A instead of restaurant B, restaurant B could sue restaurant A for that “lost potential sale.” There is no such thing as a lost potential sale — only a failure on your part to convince people to buy.

Nic says:

Re: Re: Re:4 yeah yeah, but...

not quite.. isn’t it more like me going into the restaurant A then while looking at the menu, the waiter gives me a free burger that I eat then leave. Surely the restaurant owner would “sue” the waiter for giving away items (files) that he didn’t own (the copyright for) meaning i no longer needed to buy a burger?

JB says:

Re: Re: Re:5 yeah yeah, but...

I really hope that made sense in your mind, Nic, because it makes no sense in this discussion.

First, you are again comparing a tangible good against an infinite good. What if the waiter sent you an e-mail with a copy of the menu attached? That would be a much more appropriate comparison.

Now that we have this comparison established, what if you were to download the menus to both restaurants, A & B? We have not ‘stolen’ the menu, no physical media was used and the original is still on the server. We can now make an educated decision about where we would like to spend our money. Maybe restaurant A is giving out a free burger if you show them the downloaded menu from restaurant B. They may have won you over and you may or may not purchase more food.

Has restaurant B lost the potential sale to us? If you say yes, then how do you know how much that person would have purchased? Would they have continued to dine in the future? These questions are along the same lines as: Would the person have contracted salmonella from eating at restaurant B? Would the person have slipped on a small raised spot on the rug in the dinning room? Would the person have been a reviewer and had a bad experience? You don’t know these things and it is pointless to extrapolate a value on the ‘lost sale’ from the person’s choice. Instead, you should try to find out why they didn’t choose your restaurant and work to bring in more customers.

By the way, Chick-fil-a seems to be doing just fine and they regularly give away free sandwiches (no purchase necessary). Guess what; I take them up on it and will typically buy a lemonade while I’m there. Good luck trying to explain that one away.

Anonymous Coward says:

Re: Re: Re:5 yeah yeah, but...

It’s like going to restaurant A, and ordering a side of fries, and manager of restaurant B coming and complaining about the poor lighting in the bathroom, but then restaurant A tells them that they can’t get ahold of a technician, on account of it being monday. Restaurant B then sues restaurant A, demanding that they stop using their parking spaces, then restaurant A bribes a garbage truck to dump their garbage in front of restaurant B. Then your fries get mixed with the garbage, but you don’t sue them because you’re on a diet. Immediately afterwards, the cook runs outside yelling at some bum, who just happened to be the long lost brother of the manager of restaurant A, who claims that he is entitled to 66% of the lifetime profits of said restaurant.

thublihnk (profile) says:

Re: Re: Re:3 yeah yeah, but...

Oh! Really? If I just bought the rights to a song, via iTunes or whatever you will, then those are my rights? Forever? So I can just download them again from iTunes whenever I want, for the rest of my life? And if I’m being /sold/ rights here, as you so claim, can I re-sell those rights? And since I have the rights to those songs, can I play them in public whenever I please?

Well, sir, if that’s what you’re claiming, then yes. I’m wrong. That’s just a daaandy system, sign me up.

Dark Helmet (profile) says:

Re: Re: Re: yeah yeah, but...

“don’t want to spark a flame war, but…”

FLAME ON!…just kidding.

“If I left a bag of potatoes out on my front lawn, i wouldn’t expect people to just take some. They are still my potatoes.”

I don’t think the analogy is complete. As I understand the way trackers work, it would be as if you left your infinite supply of potatoes on the front lawn and then sent a letter to all of your neighbors letting them know that you had put them out there and that they were available. Then when they come by and take one, you send them a follow up letter informing them that they owe you money.

“Same applies here: just because the files are available, still doesn’t give people the right to take them.”

I think the law disagrees with you, in that if the rights holder is MAKING them available, downloader DO have the right to take them. But even there is some twisted interpretation of the law that says that isn’t true….why, as the rights holders, are they willing to rub people’s noses in shit? They go up and down the pulpit spouting about the EVIL of filesharing, then utilize it to entrap people?

Odd.

Patryk (user link) says:

Re: Re: Re: yeah yeah, but...

The difference here is that they’re putting their content ON sharing networks which are INTENDED to share content. That’s like putting a sign on your front lawn (in front of your sack of potatoes) that says “FREE”, and then calling the police when people take your stuff.
It doesn’t work. Isn’t that a form of entrapment?

jkgamer (profile) says:

Re: Re: Re: yeah yeah, but...

That’s not exactly a proper analogy. First off there is an expectation that something on your front lawn is still your property and not meant for anyone else. Same goes with putting a brief case down next to you as you sit in a cafe.

However, placing that bag of potatoes in the middle of a public place (the internet) and then screaming thief when someone picks it up won’t get you much sympathy in the court system. Placing your brief case next to the front door of that cafe without any means of protection will get you the same result. (If Homeland Security doesn’t blow it up first.)

Why shouldn’t placing something on the internet for all of the public to access not warrant the same level of scrutiny? They are inviting the public to download the material without any warning of copyright. Not everything digital in this world is owned by some corporation. (Although, I’m sure that they are working on changing that.) Believe it or not, there are still many works that are in the public domain. And that fact that I may use the words This Is It in this comment does not make it a copyrighted work of Michael Jackson or his rights holders.

I will grant you the fact that most of the downloaders are aware or at least have an idea that they are downloading copyrighted works illegally. But is it legal or just to extort money from someone who may not?

Phillip Vector (profile) says:

Re: yeah yeah, but...

I mean, it’s like me handing you a fish that I bought from the local deli and then threatening to take you to court because you stole my fish.

I can’t see how anyone would pay the charge. What really worries me about this is that this may count as a strike for those countries adopting the “3 strikes and you are out” law.

PaulT (profile) says:

Re: yeah yeah, but...

Might as well regurgitate the usual responses…

1. The evidence used by these agencies are shaky at best – often an easily-spoofed IP address with no proof of who was actually infringing (if any infringement was actually taking place – they have got it wrong many times). “Don’t do the crime” doesn’t count if you’re innocent to begin with.

2. The fact that these fines are being issued on the claims of a biased 3rd party with “infringers” being discouraged from defending themselves in court. Due process is not being served.

3. Once infringement has actually been proven, the fines are usually well out of the range of value of the actual product. Yes, these are meant to be punitive, but a $650 (or thousands) for something sold for $1? Is there any other situation where you can be automatically be sued for 650x or more of the cost of an item being illegally distributed for $0?

4. On top of all that, there’s little real evidence that infringers cost the content industry as much as is claimed. In fact, many studies show that the music industry is *growing* in value (just not the recording part) and that the heaviest downloaders are also the people spending the most on music purchases.

It’s not about whether or not it’s “fashionable” but whether the view is supported by evidence, productive and fair. It’s not any of these things, hence the outcry.

Mike Masnick (profile) says:

Re: Re: yeah yeah, but...

uh, downloading a song is not infringing on copyright.

Actually, it is. Copyright covers a variety of different rights, including making a copy (downloading) and distributing (uploading).

That has *never* ever been proved in court, and fair use defends such.

Again, this is incorrect. In both the Jammie Thomas and Joel Tenenbaum trials, the courts found them guilty of downloading as well as uploading.

Where I think you’re getting confused is that rights holders have a lot more trouble suing people just for downloading, because it’s harder to identify downloaders. It’s much easier to identify uploaders, so most lawsuits start out against uploaders. However, the scheme described above lets them go after downloaders as well.

max.elliott (profile) says:

Re: yeah yeah, but...

1) What law EXACTLY does _downloading_ violate? Oh yeah, none. No crime = no time.

2) There are 10,000 places to aquire an mp3, and it’s not my duty to verify that they are legal. That’s the rights-holders job. If a source is authorized to offer a song online, then I’m in the clear for downloading it. These cases do not go to court for that very reason. Feel free to point me to a winning court case involving only downloading and NO distribution. Good luck with that.

Mike Masnick (profile) says:

Re: Re: yeah yeah, but...

1) What law EXACTLY does _downloading_ violate? Oh yeah, none. No crime = no time.

Title 17 106(1) “the owner of copyright under this title has the exclusive rights to do and to authorize… to reproduce the copyrighted work in copies or phonorecords.”

While I tend to agree with the point you are making, do not keep claiming that downloading an unauthorized offering is not infringing on copyright. It may very well be a violation of the exclusive right of the holder to reproduce the works.

Anonymous Coward says:

At the end of the day, all this is doing is making it way more expensive to download illegally than it is to buy legally.

There should be risk to breaking the law. If you don’t like it, too bad. What these companies are doing isn’t anywhere near as bad as the widespread theft of content.

Socialist Mike strikes again.

Chris Rhodes (profile) says:

Question: Is it actually against the law to download copyrighted materials? I was under the impression that it was only against the law to offer unauthorized copyrighted content for download, which is why the RIAA goes after uploaders and not downloaders.

If I print out a stack of copyrighted photos and stand on a street corner handing them out to passers-by, the copyright owner would certainly have a case against me, but not necessarily the people that I gave photos to.

Have there been any cases of these companies actually taking downloaders to court if they refuse to pay?

Mike Masnick (profile) says:

Re: Re:

Question: Is it actually against the law to download copyrighted materials? I was under the impression that it was only against the law to offer unauthorized copyrighted content for download, which is why the RIAA goes after uploaders and not downloaders.

Yes, it is against the law, in *most cases* to download copyrighted materials without authorization. Copyright law includes a right against reproduction, which a download violates (if there isn’t fair use).

Your impression is incorrect, based on the fact that the RIAA mainly went after those who uploaded — but that was because it’s much easier to identify uploaders than downloaders. The only real way to identify downloaders is to offer the content yourself — which is what’s happening in the story above.


If I print out a stack of copyrighted photos and stand on a street corner handing them out to passers-by, the copyright owner would certainly have a case against me, but not necessarily the people that I gave photos to.

That’s a little different, actually, because the people you gave the photos to are not making a reproduction. But if you download something, you are — and you may be violating the copyright holder’s reproduction rights.

Have there been any cases of these companies actually taking downloaders to court if they refuse to pay?

Both Jammie Thomas and Joel Tenenbaum were found by the courts to have engaged in uploading and downloading…

Chris Rhodes (profile) says:

Re: Re: Re:2 Re:

Unfortunately, most news stories and such don’t make the distinction between uploaders and downloaders, because downloaders are often caught by their uploading (as Mike pointed out).

Since the only practical way for a group such as the RIAA to catch a person who only downloads copyrighted materials is to offer that material up themselves and see who connects (as the original posting is about), I was curious to see if any of these cases had actually been taken to court successfully.

I appreciate the sarcastic and unhelpful response to my question, though. Thanks.

Nick (profile) says:

"Making available" no longer "theft"?

If all the lawsuits from entertainment industry associations are based on the claim that “making available” is illegal, then shouldn’t that apply here as well?

And if the “making available” part is authorized (as they say it is), then where is the problem with downloading these authorized files?

I can’t help but see a parallel with police busting a drug dealer or a prostitute. A cop posing as a prostitute can’t actively solicit a potential customer in order to bust him for pursuing a prostitute. And yes, I realize these media companies aren’t officers of the law, but it’s difficult to see how their behavior isn’t just as illegal.

Anonymous Coward says:

Re: "Making available" no longer "theft"?

And if the “making available” part is authorized (as they say it is), then where is the problem with downloading these authorized files?

making available does not create authorization. The crack dealers are making crack available, it doesn’t suddenly make it legal. There is no magic that happens on the internet to turn copyright violation into advertising, unless you live in the Socialist Republic of Mike.

thublihnk (profile) says:

Re: Re: "Making available" no longer "theft"?

We meet again, AC!

Still slinging ‘Mike’s a Socialist’ around, are you? Well, if you paid attention, he’s actually arguing against government protection of failing business models.

There is, however, a magic that happens when a rights holder signs over the rights to distribute their materials to another group, which then uploads them as torrents. That, my friend, is authorized downloading.

I know, it seems like magic, but it’s not.

Chris Rhodes (profile) says:

Re: Re: "Making available" no longer "theft"?

Bad analogy.

1) Crack is illegal to possess. At all.
2) You are allowed to possess copyrighted material, as long as the rights holder has allowed you to.

If the rights holder is the one giving files to you, it’s hard to see how that violates copyright law. Their computer is literally sending the content to your computer.

If I take a picture (and therefore own the copyright), make a copy, and send it to you in the mail, can I wait outside your house with the police and have them raid it when you bring your mail in?

After all, just because I’ve sent you my picture doesn’t mean you have the authorization to look at it. Filthy criminal.

John Fenderson (profile) says:

Re: Re: Re: "Making available" no longer "theft"?

“You are allowed to possess copyrighted material, as long as the rights holder has allowed you to.”

Actually, in the US, anyway, you are allowed to possess copyrighted material even if the rights holder has not allowed you to. You are not allowed to distribute or, under certain circumstances, reproduce it. But possession is OK.

Nic says:

Re: Re: Re: "Making available" no longer "theft"?

But what if you put the picture on your website for your Mum to see. If I stumble across the URL and copy the file, print it and put it on my wall. I’ve broken your copyright. Just because the file was on a publicly available URL does not give me the right to copy and use the file!

baditup (profile) says:

Re: Re: Re:2 "Making available" no longer "theft"?

that’s just idiocy on the part of the poster because they could simply email it or print and send it if they were worried about people stealing it. These companies are intentionally putting them out there with the HOPES of it getting downloaded, not just for one specific person.

Different scenario.

DocMenach (profile) says:

Re: Re: Re:4 "Making available" no longer "theft"?

then isn’t it like a sting? A police woman walking the streets waiting to be approached by a punter.

Not quite. It’s a sting when the police do it. This is more like if I started a private business where I put girls on the street to solicit Johns(or punters) then after the “transaction” the girls demand $100,000 (650 times the normal cost of a prostitute) or else we are going to have them arrested.

JB says:

Re: Re: Re:3 "Making available" no longer "theft"?

Finally, someone has a brain. Anytime you view something in an Internet browser, you are downloading that content to your local file system. Therefore, any copyrighted images have immediately been infringed upon if they have an anti-reproduction clause; unless this is considered fair-use. If it is fair-use, then it doesn’t take a large logical leap to conclude that retaining the image on your file system (regardless of location) is legal. This also would apply to any documents or videos viewed or music listened to. The file has been legally copied to your file system and therefore has become your property. If it is not, then a malicious software creator could sue you for misuse of their software when it was placed on your computer.

Well, this comment has gotten out of hand and is quickly spiraling toward the end of my mental attention, but I hope I’ve made at least someone think…

DocMenach (profile) says:

Re: Re: Re:2 "Making available" no longer "theft"?

But what if you put the picture on your website for your Mum to see. If I stumble across the URL and copy the file, print it and put it on my wall. I’ve broken your copyright. Just because the file was on a publicly available URL does not give me the right to copy and use the file!

Wrong. There actually is no copyright infringement there. Now if I download that photo, then start selling or giving away copies of it without your permission then there is a copyright issue there, but me downloading it printing it out and putting it on my wall is not. There are plenty of ways to make it so that the file can only be accessed by your grandmother (such as a secure download server, or an email), but if you just put it up with in a public place expecting that only your grandmother will download it then that is just nonsensical.

I like the potatoes example, except I would say it would be like bringing your potatoes to a free trade party, where everything is expected to be free. Then when someone takes a potato you grab them and tell them that if they don’t pay you $100 for that potato then you are going to sue them for $5,000 for stealing your potato, and you have photographs of them taking the potato from your bag, so they better pay up or it’s gonna cost them a lot more just to defend themselves.

Anonymous Coward says:

Re: Re: Re:2 "Making available" no longer "theft"?

What if you put the picture on public property only for your mom to see (ie: you posted it on a public light poll) without any signs that says this is only for your mom. Then if someone else took it and put it on their wall, is it infringement? No, you put it on public property. If you put it in your backyard for your mom to see, where it is presumed that no one else has legal access, that’s a different story.

Anonymous Coward says:

Re: Re: Re:4 "Making available" no longer "theft"?

Yes, but you are the one VOLUNTARILY uploading it upon my request. So it’s like me going in front of your house, on public property, and asking you to throw me a potato. When you voluntarily threw the potato to me without asking for money the potato travels from private property to public property. Same thing when you upload a file to me upon my request, you are intentionally sending me it and sending the file off of your private property.

Anonymous Coward says:

Re: Re: Re:5 "Making available" no longer "theft"?

But in all seriousness, intellectual property maximists, with their completely broken logic, have made it abundantly clear that they are not interested in promoting the benefit of society. Their motives behind wanting more restrictive intellectual property laws are completely selfish and have nothing to do with their desire to benefit the public. and if the intent of their intellectual property position is not to help society why should we believe that intellectual property maximism is good for society. If their intent is selfish and not for the benefit of society then they should not even be considered when making laws and they should be ignored completely. They should have no say in the law whatsoever. The fact that the laws reflect their selfish position to such a great extent is testimony to how broken our laws are. On this blog intellectual property maximists have made it more than abundantly clear that they are not willing to listen to reason or be reasonable, they want laws that make no sense and are entirely unfair for everyone. Why should lawmakers even pay any attention to these selfish hedonists when their pro intellectual property position is ever so clearly not motivated by a desire to benefit society. Why should we trust them when they claim that their position benefits society despite the complete lack of evidence and the obvious fact that they are not remotely interested in benefiting society whatsoever.

While I do think SOME intellectual property can be a good thing if implemented property (but it should be the exception and not the rule and it shouldn’t last nearly as long as it currently does) I also think that we are better off without intellectual property than what we have now.

Anonymous Coward says:

Re: Re: Re:4 "Making available" no longer "theft"?

“I didn’t put the picture on public property, it’s MY server, like putting it in my shed, then posting signs around town telling my mum where to find it…

(streeeeeeeeeeeeeeeeeetch)”

By this logic than anything on the internet is private and any viewing of anything is illegal. I have never heard of a public server. Every server is SOMEONE’s server. If you make it publicly accessible, it is public.

Bank of America’s website is public. Their servers that sit behind firewalls that you would need to hack through – those are private.

If someone had to hack through your security to get to it, then its private. If all they needed to do was a google search for “pictures for mom” then its fair game.

Chronno S. Trigger (profile) says:

Re: Re: Re:2 "Making available" no longer "theft"?

No, your computer is requesting the file after getting the information for that file that they uploaded to the tracker or the torrent website. The person who intentionally put the file into a shared folder initiated the entire process. These people are using P2P to catch people who download, thus they know well enough how P2P works so they must know that they initiate the process. They don’t have an “I didn’t know” excuse. They are freely sharing, and what they are doing is extortion on a grand scale.

They know how P2P works, they know that their PCs automatically say yes to the request, so they know that they are sharing. If they didn’t want it shared than they should have set the default to no.

baditup (profile) says:

ok, imagine....

if you will, a situation in which the downloader actually OWNS the files/songs/album/movie in question. What then? That SHOULD give him the right to download it, right? What then if that downloader was sent a letter? And wtf ever happened to mix tapes? I remember the day when I’d go dub off all my friends’ tapes. Was THAT not illegal? Why did they make devices that did it? I dunno man, all this attempt at, essentially, making what everyone already used to do illegal is ridiculous.

Anonymous Coward says:

With more and more small artists (and occassionally even some large artists and labels) intentionally giving away their music on file sharing networks to promote themselves, how is one expected to know what is ok to download and what is not?

For that matter, what if you bought a song from an online music store but they didn’t have the rights to that particular song. Would the person who bought the song be liable? …and would your anwser be different if the online music store was giving the song away for free?

Anonymous Coward says:

Re: Re:

Should it be the consumer/downloader’s responsibility to investigate every song they down load from either a file sharing network or an online music store to see if the music is properly licensed?

I see this becoming a bigger issue if more artists decide to give their music away for free via file sharing networks. At what point will one have a reasonable belief that the music they are downloading is intentially being distributed by the copyright holder?

NullOp says:

Downloaders

Yes, downloaders are breaking the law, plain and simple. Is it really robbery having some company track and notify downloaders? Probably. I would like to see a breakdown of how many people do they take to court for downloading compared to the number threatened. To me a low rate would indicate they are in it for the “easy pickings” rather than the concern for the artists welfare. The industries concern for the artists welfare is totally laughable.

Richard (profile) says:

Re: Downloaders

The law on downloading is actually quite simple. Either both parties to the download are breaking the law or neither party. There is no circumstance in which only the downloader is guilty of infringement. Digiprotect is not “leaving a bicycle” against the fence they are standing by the photocopy machine offering to make copies for anyone who wants one.

Anonymous Coward says:

If the copyright holder in any way puts his work on the net with out a lock (paywall, DRM, password, yada yada) aka putting it on a web server in basic HTML or via a torrent network he is saying “I have this file, its free!” By clicking on the link you are saying “I would like that file” The copyright holder responds “here you go!”

later on the lawyer from the copy right holder says “you cant do that! you have to pay!”

The last part is what everyone is fighting over, which is “Lawyer, we have a formal agreement, He said the file was free, I asked for a copy of the file, he gave me the file”

Now there could be special issues, for instance he might not allow me to give the file to other people, which would be infringement, but so long as he is giving the file away I can just send my friends to the copyright holder giving files away (via his own, authorized, automated script).

This will pass the sniff test in court if you knew or had reason to believe the person you got the file from was the rights holder. In fact you could plea something to the effect of “nothing you have charged me with is against the law” if you had prior knowledge of the scam.

Anonymous Coward says:

Re: Re:

Well, it’s like if there is a bunch of magazines with a sign that says “take one” and I took one and later on the person giving it away says, “infringement” and sues. The sign that says “take one” without any price tag indicates that the item is free.

Sometimes if I walk around school people hand me stuff, business cards and fliers, etc… When they put it in front of me they are saying, “this is here, take one.” I take it, they hand it to me, and it’s mine, presumed to be free. They can’t later claim, “infringement” and sue.

It’s the same thing here. The website says, “this is here for you to take” I clicked it and the server then VOLUNTARILY gave me it without asking for money upon my request. They can’t later then sue for infringement.

AC says:

my 2 cents

From an older TD post:

“To achieve the purpose outlined in clause 1, LICENSOR grants DIGIPROTECT the exclusive right to make the movies listed in Appendix 1 worldwide available to the public via remote computer networks, so-called peer-2-peer and internet file sharing networks such as e-Donkey, Kazaa, Bitorrent, etc. for the duration of this agreement”

If DIGIPROTECT has been granted a license to distibute the files via bittorrent etc., then wouldn’t downloading the files be legit? I have to believe that there is more to the licensing agreement that this for their extortion (and I do believe that is extortion) letters to hold water.
If Digiprotect have a license to distribute files and are within the limits of their license to do so, then people who consume the files that Digiprotect have distributed do so legally. Is that incorrect?

If Digiprotect’s letters are not extortion, I need to start mass mailing some extortion letters myself. If 25% of the people that receive their $650 letters pay up with no questions asked, that’s $160 each. 40000 letters will set me up to retire! woo hoo!

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BY LAW, COPYING/INFRINGEMENT IS NOT THEFT
BY LAW, COPYING/INFRINGEMENT IS NOT THEFT
BY LAW, COPYING/INFRINGEMENT IS NOT THEFT
BY LAW, COPYING/INFRINGEMENT IS NOT THEFT
BY LAW, COPYING/INFRINGEMENT IS NOT THEFT
BY LAW, COPYING/INFRINGEMENT IS NOT THEFT
BY LAW, COPYING/INFRINGEMENT IS NOT THEFT
BY LAW, COPYING/INFRINGEMENT IS NOT THEFT
BY LAW, COPYING/INFRINGEMENT IS NOT THEFT

Is that obvious enough for all the shills out there?

Anonymous Coward says:

Hmmm, I thought downloading stuff that was freely available wasn’t what was getting people in trouble. I thought it was the “making available”, ie. distribution of material that was the problem. With that in mind, if a company has authorization to distribute it and places it on a p2p network, then people are free to download it without having committed any kind of infringement or crime.

Anonymous Coward says:

If the music company had any other reason for the files to be on a server they would have some kind of protection on them. If they had protection and then you still figured out how to take them, then it’s illegal.

if you use your camera to take a picture of art, hanging in a puble place, “that’s not for sale”, then it is a legal reproduction.

and it’s more like I take my bag of potatoes to the park and leave them , for all to see. and then getting mad when I check on them later and they have been eaten.

DocMenach (profile) says:

Re: Re: Nic, you did a poor job

Well now you are completely discounting the other side. In my experience having “the other side is lazy and greedy” as your premise is not a very good way to have a meaningful discussion with them. I’m sure there are IP maximalists who are neither lazy nor just trying to make money off of others.

Anonymous Coward says:

Re: Re: Re: Nic, you did a poor job

“I’m sure there are IP maximalists who are neither lazy nor just trying to make money off of others.”

Well they are free to come here and discuss the issue meaningfully. So far all I have seen is poor logic driven by people who seem to be too lazy to come up with a decent argument yet alone make any sense.

Or perhaps they’re not so lazy and it’s just that their position is so poor that they are unable to defend their pro intellectual property positions no matter how much effort they put into it. This ought to bring into question the merits of their pro intellectual property position.

DocMenach (profile) says:

Re: Re: Re:2 Nic, you did a poor job

Well I think part of it is that they feel that they have so much invested in it that they have to defend it tooth and nail. They also seem to have this adversarial attitude that anyone who doesn’t totally agree with them is the enemy. This blinds them: They become so focused on on fighting the sharing of creative content that they don’t look to see how they can embrace it to make even more money than they did before.

Fortunately, some people do have the right attitude and are using the available and developing technology to spread their artistic works to more people than ever(and making good money doing it). The dinosaurs will eventually die out, though it may take a while.

Irate Pirate says:

What a coincidence! Someone left a sack of potatoes on a public road just the other day. I came across them totally by accident and decided to make myself a copy. I then allowed others to make a copy of my copy. Now the owner of the original sack is suing me because I didn’t have permission to make a copy of his potatoes nor distribute them. Man do I ever wish I hadn’t gone out driving that day! I’ll let you all know how the trial goes. I sure hope the judge isn’t also a potato owner (which I think he is), otherwise things won’t turn out well for me at all!

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