Lord Lucas Proposes That Copyright Holders Detail Actual Damages From Infringement Under Mandelson Bill
from the smart-man dept
As the debate over Peter Mandelson’s Digital Economy Bill (which would represent a radical shift in copyright law in the UK) continues, it appears that Lord Lucas continues to propose all sorts of good ideas in response. You may recall that Lucas was quite explicit in questioning why such changes were needed when it was obviously the industry’s inability to adapt that was the problem. Later, he suggested adding a remedy for bogus copyright claims. His latest is to try to add an amendment that would require copyright holders to detail actual damages done by file sharing in their reports to ISPs notifying them of infringement.
This is a very sensible idea for a variety of reasons. Last year, we wrote about a fascinating paper that points out that, realistically, the only way to reconcile free speech with copyright law is to have copyright holders prove what damages were caused by the infringement. Every other limitation on free speech in the US (defamation, for example) has such a requirement. It makes no sense that copyright makes no such requirement. Now, obviously, the UK is different from the US and not bound by the First Amendment, but it’s hard to come up with any compelling reason at all that a copyright holder shouldn’t have to prove actual damages before making a claim of copyright infringement.
Filed Under: copyright, digital economy bill, lord lucas, peter mandelson, uk
Comments on “Lord Lucas Proposes That Copyright Holders Detail Actual Damages From Infringement Under Mandelson Bill”
It isn’t a very sensible concept because it is almost impossible to completely show the harm done.
1 single copy of a song can turn into millions of copy of a song. Should a file sharer be in part responsible for all of them?
Those millions of copies could lead to lower sales. If this album sells less than the last album, should file sharers pick up the difference?
What happens if a deal is lost to put the music in a movie or use it in a commercial because of the song being too widely available for free? Who should pay for that?
How do you even measure it right?
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No. Should a book store be responsible for any copies people make form books they sold? Once the transaction with the book store is done, the store is no longer responsible. Same should be true with file sharing. If I upload a file to one person, I should be held responsible for that one upload. What is done with it after that, is the responsibility of that person.
Also remember one download != one lost sale. (not equal)
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There’s that word…..could. It COULD do this, or it COULD do that, but what DOES it do. I COULD sneak over in the middle of the night and raporize you, does that mean I should be immediately arrested? If you can prove harm then there should be no penalty.
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Correction:
If you can’t prove harm then there should be no penalty. Otherwise known as “No blood, no foul”
Re: Re: Re:2 Re:
“If you can’t prove harm then there should be no penalty”
Double negative ….
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Let’s flip the logic around. The file-sharing could lead to millions in lower sales, but it could also lead to a slight gain in sales. And how do you value the additional publicity, concert revenue, and endorsement opportunities that the file sharing gave you?
I think Lord Lucas’s point is that if you can’t prove what the actual damages are, it’s better to err on the side of restraint.
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It’s the point, the effects are hard to measure.
It did give me an idea. For the next file sharing care, we close down the internet, and inspect every computer system attached to see who has the file. Then we charge the infringer $10 per copy, with no upper limit.
It will take a few months, but I suspect that it will resolve the issue of losses once and for all.
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How would you know if that file was DIRECTLY downloaded from the defendant. The defendant should not be held responsible for someone else’s infringement.
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Think of it as vicarious liability. Since they are the only one charged, they may only be responsible for 0.00000000001% of the copies, but they get to pay for all it.
It would make the tenenbaum judgement look like pocket change,
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That’s fair.
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“For the next file sharing care, we close down the internet”
Ok, either you’re joking, you’re on meth, or you’re truly an idiot. Why should we shut down the entire internet due to something as useless and harmful to society as intellectual property?
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Seriously? Do you really not understand his post or are YOU truly an idiot?
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NO U
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Your idea would obviously never happen.
I accept your point that the effects are hard to measure, but that doesn’t mean the Lucas proposal isn’t sensible. The reason I reach a different conclusion than you is that for me, having the majority of file-sharing cases fall apart or result in vastly lower damages is an acceptable one.
For me, the scenario is not that there’s clearly some sort of damage and we just have a hard time getting a precise number. It’s that it’s not clear that there’s any actual damage at all.
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For me the issue is that it’s not clear that society owes anyone a monopoly on anything to begin with and whatever “damages” we do grant are not really owed regardless.
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For the next file sharing care, we close down the internet, and inspect every computer system attached to see who has the file. Then we charge the infringer $10 per copy, with no upper limit.
That still doesn’t mean that those were lost sales. They may have even generated sales. Maybe each of those users is owed a sales or promotion commission instead.
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“Maybe each of those users is owed a sales or promotion commission instead.”
At $10 per copy, with no upper limit. 🙂
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I think you’re also underestimating the ability of creative plaintiffs to estimate damages here. Get enough experts to say there’s a 95% chance that damages exceeded X dollars, and that might be enough for the court.
I don’t know how the British handle these things, but the U.S. has long accepted such “fuzzy math” as sufficient to prove actual damages.
Most famously, see the Texaco v. Pennzoil case, where Joe Jamail somehow proved that Texaco’s interference with Pennzoil’s attempt to purchase Getty Oil merited $7.5 in actual damages (this does not include punitive damages).
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Whoops, I meant $7.5 billion, not just $7.5.
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NO, your suggestion would NOT resolve the issues of losses because it completely ignores the other side of the equation.
One “illegal” upload of the song does NOT equal one lost sale. That person might listen to the song and then not like it and delete it. They might never have bought the song to begin with.
Also, for the people who DO enjoy the song, they might go and actually purchase the album as a result of hearing and enjoying the song. How does your examination of all computers account for that? You’re going to count how many of the people with the mp3 ALSO have the album? What about people who made mp3 files of THEIR OWN albums? (like I do with all my albums)
ALSO, what about (as suggested by others) the increased exposure of the song due to the freely obtained copies that leads to MORE fans of the musician and thus INCREASES the musician’s income due to concerts, goods, and such?
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When Napster v1 was popular, I was purchasing about 2-3 CDs a week. Since they’ve been shut down, I’ve purchased less than 10. The statement has some merit, though I have only personal anecdotal evidence.
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Same here. Being able to find and try out new music easily led to me purchasing more music. Now, forget it. I don’t like most of the music on the radio, and I don’t want to get sued, so I just listen to all my old music.
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> It will take a few months, but I suspect that it will resolve the issue
> of losses once and for all.
Other than the blatant violation of the 4th Amendment, you might have a point.
Re: Re: Re:2 Re:
Other than the blatant violation of the 4th Amendment, you might have a point.
This may come as shock to you, but the Internet is international and the US Constitution isn’t.
Re: Re: Re:3 Re:
While you are correct, each and every American is covered by the 4th amendment, and in this case, while TAM misspoke (not unusual), I believe that was the intention of his statement.
Re: Re: Re:3 Re:
> This may come as shock to you, but the Internet is international
> and the US Constitution isn’t.
This may come as a shock to you, but if they’re shutting down the internet and forcibly examining everyone’s computers (like Anti-Mike suggests), then that necessarily involves all the computers in America, and would be a illegal as a violation of the 4th Amendment.
The rest of you can look after yourselves.
Re: Re: Re:4 Re:
This may come as a shock to you, but if they’re shutting down the internet and forcibly examining everyone’s computers (like Anti-Mike suggests), then that necessarily involves all the computers in America, and would be a illegal as a violation of the 4th Amendment.
Only in America, which wasn’t the statement, was it?
Re: Re: Re:5 Re:
> Only in America, which wasn’t the statement, was it?
That doesn’t even make any sense.
Re: Re: Re:6 Re:
> Only in America, which wasn’t the statement, was it?
That doesn’t even make any sense.
Are you really that confused, or are you just pretending?
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we close down the internet
Are you serious? I don’t think you are.
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It isn’t a very sensible concept because it is almost impossible to completely show the harm done.
Yeah, it’s kind of hard to show that something exists when it doesn’t, isn’t it? That’s why it’s so much easier to just make stuff up.
Those millions of copies could lead to lower sales.
Or they could lead to higher sales.
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Easy:
There are about 7 billion people on Earth who could potentially purchase the song. Let’s say 1 million people buy the song. That means about 6,999,000,000 people must have pirated it. There simply is no other explanation. Multiply that by, say, 14 songs on a CD (you wouldn’t want to steal from the music companies, er, I mean Artists, by not buying the whole CD would you?) allowed damages, etc, etc. etc. Multiply that by the number of albums released in a year, and you see that the damage to the music industry is in fact greater than the entire global economy! The taxes we would theoretically be paying on this would wipe out all of the debt of all of the nations of the world! (assuming we weren’t above the law and didn’t have to pay taxes. Did I say that out loud? Forget I said that…) Based on this, The Music and Movie industries request that the governments of the world create a global copyright enforcement agency (at taxpayer expense, of course. The media companies, I mean artists, are the victims here.) who are authorized to execute anyone who isn’t sufficient enriching the coffers of the media companies or if they are accused 3 times of infringing copyright (Three Strikes and You’re Dead! policy)
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Or that 1 single copy of a song can turn into … a single copy of the song. If no one downloads it, even if it’s available, and there are no damages, should that person still be liable for non-existent damages?
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Exactly!
It shows how dumb these infringement claims are, as well as the inferences media execs makes (e.g. 1 download = 1 lost sale).
That was your point, right?
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“it is almost impossible to completely show the harm done.”
This is a correct statement – finally from the one and only TAM.
Too bad he overlooked the obvious.
1) IPAddr != a person
2) joining a swarm != copyright data transfer
3) infringement cops send out notices based upon IPAddr in the swarm
4) etc, etc
So, yes – it is very difficult to show that a particular person has done any harm at all.
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How do you even measure it right?
The point is, until you figure that out, shouldn’t Free Speach trump copyright? As Mike points out, every other restriction on Free Speach has requirements that much be fulfilled before speach can be stifled.
If this album sells less than the last album, should file sharers pick up the difference?
That seems way beyond reasonable. Maybe the album just wasn’t as good. You can’t hold consumers responsible if you produce something of low quality, right?
What happens if a deal is lost to put the music in a movie or use it in a commercial because of the song being too widely available for free? Who should pay for that?
It sounds like you’re asking “if a liscencing deal doesn’t happen, who pays for it?” If it didn’t happen, then there’s nothing to pay for, right? You can’t fine people because your product wasn’t purchaced.
Nevermind that you’re neglecting the possibility of net-positive effects of file sharing, as noted by others above. If the album sells significantly better than the last, are you going to give all those file-sharers a cut of the difference?
Defamation
Doesn’t defamation allow “presumed damages”?
“It’s the point, the effects are hard to measure.
It did give me an idea. For the next file sharing care, we close down the internet, and inspect every computer system attached to see who has the file. Then we charge the infringer $10 per copy, with no upper limit.
It will take a few months, but I suspect that it will resolve the issue of losses once and for all.”
and once your econemy sinks to the bottom of the bottomless pit then what? with the industries and services that rely on net acces your pretty much cutting off your nose to spite your face.
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More like cutting off your head to spite one of your nose hairs … If it were anyone else I would have assumed it was sarcasm to illustrate absurdity, but I’m second guessing the author’s intent there.
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Thus, it is better to have a system that allows rewarding of presumed damages, rather than having to prove them to the penny. The costs of proving damages on the internet would be high, not to the parties, but to everyone else.
In the end, I think the 3 strikes idea is an attempt to avoid this sort of legal tiddly winks. The theory being that most people would stop after warning #2, or at least learn to be way more discrete.
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I don’t follow all this entirely. Don’t we have some serious issues with the accuracy of the presumed damages being an order of magnitude higher than actual damages? Isn’t that what this is about?
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Yes, that is what it is all about.
File sharing is a bit like a pyramid scheme, a very few people at the top and within a few layers, you have most of the planet involved. Someone sharing a song even once potentially has a hand in all of those other “shares”. So now, is the person who shares a file once liable for all that comes from their sharing? It is clear that without their action, there might not have been this sharing. So if they didn’t help a dozen people get a copy, and those dozen in turn didn’t help a dozen, and so on… everyone in the chain is part of the process that makes millions of copies.
The problem is you can delete that one copy off of their one computer, but you haven’t dealt with the digital tail of copies that emanated from their single copy.
The other question is the one of harm. It’s a red herring, as far as I am concerned, because unless the artist (or rights holder, whoever they may be) approved the song for sharing, the act of sharing is in itself harm, even if it contributes in some odd way to the artist being better known or whatever. It is the artist/right holders choice, not anyone else.
Presumed damages also involve to some extent a deterrent factor. I cannot picture Joel Tenenbaum setting up a torrent server. The judgment against him is clearly in an amount that would deter future bad acts. The amounts are likely never to make the rights holder “whole”, because as I mentioned above, even if you shut down Joel’s computer, the echos of that share will go on forever.
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The judgment against him is clearly in an amount that would deter future bad acts.
It should have been significantly higher as piracy hasn’t really stopped. Or slowed.
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The “pyramid scheme” interpretation is convenient (especially if you are after $650m from a single user), but it’s wrong.
In computer-speak, you are describing a tree, but the overlay network is a graph — there are arbitrary connections between nodes.
In a perfect world, with such a network all users should get EQUAL blame. There can be no more copies of a file than there are users sharing it, so each user gets the blame for exactly one download and (a total of) one upload.
Of course, differing internet connection speeds and leechers throw off this balance. I can’t tell to what extent, but definitely not to $25,000 a song like in Tenenbaum’s case.
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cc, you forget something very important: The single share repeats over and over.
all those people trading today turn around and trade it again tomorrow. It isn’t like everyone gets together once for a single trade around, it is an ongoing process. Even when you stop sharing a song, parts of what you shared are in turn being reshared, over and over again, to another group of people, who in turn share it on to other groups.
If a song is made up of, I dunno, say 5000 pieces, and you share 1 piece with 5000 different people, you just contributed to 5000 violations. When each of those people share your piece, that is 5000 more violations you are part of.
It’s an unavoidable process. It never stops either, as little pieces of the pieces are forever moving around. It’s a chain of events that never stops until everyone has the file, or until nobody offers the file online anymore.
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But that makes no sense. Why is the 5th user sharing the file any different from the 1000th user (given they upload the same number of times)?
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There is no way to keep track of who exactly shared what and when because copies of a “piece” are all the same. They don’t accumulate any history. At worst, you might say a user has contributed bandwidth to this process by acting as a relay.
This does not change the fact that all users are (on average) all equally responsible for what is being shared.
Re: Re: Re:4 Re:
> If a song is made up of, I dunno, say 5000 pieces, and you share 1 piece with 5000 different people, you just contributed to 5000 violations. When each of those people share your piece, that is 5000 more violations you are part of.
Someone apparently doesn’t understand basic mathematics. If you count each one down the line, you are double counting. That’s not the way the law works. It’s not the way common sense works.
Re: Re: Re:4 Re:
5000 people have a file. That’s 5000 copyright violations.
Each of them is ‘equally responsible’ .. that means you divide the total ‘damage’ (5000 violations) by the number of filesharers involved (5000)
5000 / 5000 = 1
And you don’t get any more copyright violations by counting each partial download of a file either.. 5000 connections sharing an average 1/5000th segment of a file still only works out to one full file per downloader
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You’re setting yourself up as a shill, again, I see. We do not work with presumed numbers. We were with presumed innocence. It’s unfair to charge fake numbers when that’s all there is. If you cannot come up with one concrete, real, PROVABLE number, you should get NOTHING. Nothing at all.
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The only assumption is the size of the file, the rest is fairly much exactly how it works.
In fact, I am using the Mike Masnick theory of file sharing: You aren’t sharing the whole file with any one person. I am just taking it to the logical conclusion that each block is shared with a different person.
5000 blocks means you shared at least part of the file with 5000 people.
When those people each share their “combined” file (from 5000 other users), and then share you part out again, that means you piece goes to 1 more person. Since you sent out 5000 pieces, that means you pieces are now with 10,000 people. It just goes from there. Even if the original sharer only shares a single file one time, he is part and parcel of 5000 infringements on the first go around, and 5000 more, and so on.
Zcat: Your math fails for one reason: Without each piece, the infringement would not be complete, the file wouldn’t work,and thus it would fail. Each piece is just as important as the next. By sharing 5000 pieces, the user is directly involved in 5000 infringements, and a contributor to however many more times those pieces are shared again.
So in the end it isn’t one infringement, but participation (conspiring with others) to generate 5000 infringements.
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And that’s why copyright will be rendered obsolete in the near future!
“We received a call about a possible infringement, copyright infringement. Turned out to be true so we had to arrest the lot of them.”
“How many?”
“Around 245,000,000 people. The worst part is the paper work.”
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If each of the 5000 users is responsible for all the 5000 copies of the file, then you have a grand total of 25,000,000 infringements from all the users, even if only 5000 copies have actually been made.
That’s why your reasoning is wrong. If all 5000 users are sued, the damages claimed will be completely disproportionate.
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But that would obviously stop piracy.
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See, that is the reason why the content industry hired The Anti-Mike to do math and shill work instead of you.
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“Thus, it is better to have a system that allows rewarding of presumed damages, rather than having to prove them to the penny. The costs of proving damages on the internet would be high, not to the parties, but to everyone else.”
The cost of proving damages should be bourne by the plantiff.
Also, does everyone else think Lord Lucas is some kind of smear against George when they come across it? Just us Yanks? OK, then.
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The cost of proving damages should be bourne by the plantiff.
Sorry, but fail, as the cost of determining the damages would in fact be a damage itself, so the plaintiff would just pass it off to the defendant. Under your idea, the harder it is to prove, the more work involved to prove it, the more expensive it would get for a losing defendant.
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How about we make a strike a legal judgment in a court with a Jury, and I’ll be all for a three strikes rule here. Of course, there would need to be a $5000 filing fee per case to cover costs, to be paid by the loosing party.
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“most people would stop after warning #2”
Yes, regardless of whether they actually did anything to begin with.
I imagine that nasty HP laser printer would stop infringing immediately upon receipt of the second notice – don’t you ? As would the dead guy and the gramma who doesn’t even own a computer, and the three year old and the ……. it will not stop and you just do not understand that do you?
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We just need to close down the internet.
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“We just need to close down the internet.”
No, we just need to change it so that it’s one-way, from approved content suppliers to consumers, like cable TV. Making the Internet an open two-way peer-to-peer network in the first place was the mistake. Nothing a few new laws can’t fix though.
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That’ll make the young people purchase more music!
Troll Be Gone
Once again the troll has successfully hijacked the comments.
Re: Troll Be Gone
Once again the troll has successfully hijacked the comments.
That’s his job.
Re: Re: Troll Be Gone
I thought TAM’s job was to tell artists how they shouldn’t connect with their fans and how they shouldn’t give them a reason to buy from them.
Isn’t it? Have I been misinformed about The Anti-Mike?
Or you can put it this way about ‘actual damages’
Take Harry Potter books
Damages from downloads.
As there is no legal digital copies, there can be no lose of sales for illegal downloaded copies.
If the publisher made digital copies avalible then there would be a lose.
This would cause the media produces to get with the times.
My problem how?
I don’t doubt that it would be difficult to demonstrate damages in these cases, but it happens in other areas all the time. Regardless of what anyone thinks the damages are, they only get paid for the damages they can factually demonstrate (if any). If they can’t factually demonstrate damages (by which I mean damages that have already occurred and been measured) then they don’t get to hold anyone liable for them. That’s how it’s supposed to be, pretty much how it is in most cases, and it works.
If it seems absurd to expect the plaintiffs to, using accurate numbers (and putting the method by which those numbers were arrived at on the record to be challenged by the respondents), demonstrate the harm done to them, then perhaps that’s because it’s absurd for them to claim that there has been harm where there is no proof of harm.
It’s like if I were to sue someone for beating me over the head with an invisible, non-corporeal giant hammer on the basis of my assumption that had the giant hammer been visible and corporeal, man I would have had huge medical bills and since the basic behavior of hammer hitting was the same I should totally get the money for my bills, emotional damage, and other stuff because I mean you can’t just go around hitting people with giant hammers and I can’t believe so many people are in favor of that or at the very least something that, though invisible and non-corporeal, is totally the same thing only on a way bigger scale because you guys just think of how many more non-corporeal invisible giant hammers can fit in a given amount of space than actual giant hammers and we have to do something or else we’ll all be imaginary bludgeoned to imaginary death.
Re: My problem how?
Do they go to imaginary heaven?
Re: Re: My problem how?
is there any other kind?
Sense
Lord Lucas appears to be living in the real world, unlike a certain, non-elected, power-crazy, previously-disgraced politician.