Wednesday, February 9, 2005
Penalties of Stealing vs. Infringing
Cease and Desist letters for people using BitTorrent to download TV
shows are becoming more frequent (example). So I
decided to read up on the United States Code cited in these letters.
Just out of interest, I also decided to read up on what the penalties for real, physical theft are.
The conclusion is that under our current laws, copying files over the Internet would seem to be more
onerous than actual, physical stealing.
I Am Not A Lawyer. I will quote the appropriate sections of the Code in
detail below, and you can go review it for yourself. (Also see the
Congressional Committee Report on the NET Act for the intended
effects of the NET Act amendments.)
But from what I can tell, the penalties laid out for downloading one
season of a TV show with BitTorrent are much harsher than if you
actually stole a DVD set of the same show from a government store. I lay
out a practical example in detail below, but to cut to the chase: For
stealing the DVD you could face no more than up to 1 year imprisonment
and up to a $100,000 fine; for downloading the same material you could
face statutory damages of up to $3,300,000, costs and attorney's fees (ie:
the other guy's attorneys), as well as up to 1 year imprisonment, and up to a $100,000 fine.
A Practical Example
Let's say you want to watch season 2 of the popular TV show Alias.
Your TV reception sucks, and you don't have cable, but you do have a
nice high speed DSL Internet connection. So you set up BitTorrent and
use it to download all 22 episodes of season 2. Some 30 hours later, you
have all 22 episodes on your hard drive. Now, while you were downloading, you were simultaneously
making available for upload what you already had; this is how BitTorrent
works, everyone shares whatever they have so that everyone can
eventually get the whole. (BitTorrent FAQ)
Unfortunately, during that time, included among the "peers" connected to you were
the dreaded Disney lawyers, and they got your IP address.
US Code, Title 17, Chapter 5, Section 504, subsection c 1-2:
"[...] the copyright owner may elect [...] to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work [...] in a sum of not less than $750 or more than $30,000 as the court considers just. [...] In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000."
They'll claim that you knew you were infringing their copyright, and
they'll be demanding the maximum penalty: That's 22 episodes -- 22 works
-- so they'll be claiming $3,300,000. (Though the court may decide to
make it as little as $16,500.)
(If you can convince the court that you were not aware and had no reason
to believe you were infringing copyright, this could ultimately be
reduced down to $4,400 according to a later part of subsection 2 ("In a
case where the infringer sustains the burden of proving, and the court
finds, that such infringer was not aware and had no reason to believe
that his or her acts constituted an infringement of copyright, the court
in its discretion may reduce the award of statutory damages to a sum of
not less than $200.") -- good luck.)
US Code, Title 17, Chapter 5, Section 505:
"In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs."
So they'll be wanting their lawyers' costs, too.
US Code, Title 17, Chapter 5, Section 506, subsection a:
"Criminal Infringement. - Any person who infringes a copyright willfully [...] for purposes of commercial advantage or private financial gain [...] shall be punished as provided under section 2319 of title 18, United States Code."
But you didn't download for commercial or private financial
gains, right? Wrong. Congress redefined "financial gain" as part of the
"No Electronic Theft" (NET) Act in 1997 specifically to include the likes of you:
US Code, Title 17, Chapter 1, Section 101:
"The term ''financial gain'' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works."
You were sharing what you had (a copyrighted work) so you could get the
whole (a copyrighted work). From the Congressional Committee Report on
the NET Act: "This revision [...] will enable authorities
to prosecute someone like LaMacchia who steals or helps others to steal
copyrighted works but who otherwise does not profit financially from the
theft." LaMacchia was the defendant in United States v. LaMacchia. He
was accused of setting up a computer to allow people to download
copyrighted software; since he was not doing this commercially and
reaped no financial gain, they could only try to prosecute the case
under wire fraud statutes, and the case was eventually dismissed (see
US Code, Title 18, Part I, Chapter 113, Section 2319, subsection b 3:
"Any person who commits an offense under section 506(a)(1) of title 17 [...] shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case."
US Code, Title 18, Part II, Chapter 227, Subchapter C, Section 3571, subsection b 5:
"Fines for Individuals. - [...A]n individual who has been found guilty of an offense may be fined [...] for a Class A misdemeanor that does not result in death, not more than $100,000;"
So, a $100,000 fine, a year in jail, some $3 million in statutory
damages, plus all costs and lawyers fees, just for downloading a broadcast TV show with BitTorrent...
Now imagine you're a less scrupulous person. You still want to see Alias season 2. So you go out and
swipe the DVD set from a government store (it's government just so I can use the
same Code to directly compare the severity of the two infractions).
"Alias - The Complete Second Season", a six DVD set, with all 22
episodes plus special features, deleted scenes, commentary, and more,
retailing at $69.99, minus your five finger discount.
Only, you get caught.
Title 18, Part I, Chapter 31, section 641:
"Whoever [...] steals [...] - Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both."
The prison term makes this at most a class A misdemeanor (Title 18, Part
II, Chapter 227, Subchapter A, section 3559 subsection a 6: "one year or
less but more than six months, as a Class A misdemeanor;"), for which
the maximum fine is $100,000 (Title 18, Part II, Chapter 227, Subchapter
C, section 3571, subsection a 5: "for a Class A misdemeanor that does
not result in death, not more than $100,000;").
| ||Stealing ||Infringing |
1 year jail
1 year jail
lawyer fees and costs
|Real World |
|Winona Ryder*: |
$1,000 court cost
3 years probation
|An Average RIAA settlement**:|
Winona Ryder was convicted for stealing over $5000 worth of merchandise
(www.courttv.com/trials/ryder/), which under US Code would actually be punishable by up to 10 years in prison and $250,000; additionally, because we are considering the theft of merchandise worth only $70,
the $6355 restitution should be discounted. This case was not decided under US Code --
nevertheless, it is rather telling.
This was for allegedly infringing music, not TV shows; to date, no case
has actually gone to court.
Am I alone in thinking there is something really, really wrong here?