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File Sharing Lawsuits Could Lead to Clogged Courts as Canadians Rely on New Liability Caps

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Tuesday December 04, 2012
The Canadian Internet community has been buzzing for the past week over reports that a Montreal-based company has captured data on one million Canadians who it says have engaged in unauthorized file sharing. While that represents a relatively small percentage of Internet users in Canada, the possibility of hundreds of thousands of lawsuits over alleged copyright infringement would be unprecedented and raise a host of legal and policy issues.

My weekly technology law column (Toronto Star version, homepage version) notes the prospect of mass lawsuits will be of particular interest to the federal government, which just completed a major round of copyright reforms. The new copyright bill established a cap on damages that was explicitly designed to dissuade would-be litigants from targeting individuals. In fact, during hearings into the copyright reform bill, Members of Parliament were given assurances that the industry had no desire to launch file sharing lawsuits.

The practice of suing individuals for copyright infringement arising from file sharing started in 2003 in the United States, where tens of thousands of people have since received letters alleging infringement. The letters typically claim that liability could run into the millions of dollars based on U.S. rules that provide for up to US$150,000 per infringement. Recipients are encouraged to settle for several thousand dollars, a steep price to pay for a few songs or movies.

Canadians first encountered file sharing lawsuits in 2004, when members of the Canadian Recording Industry Association filed actions against 29 alleged file sharers. The Canadian initiative was a failure, however, as a federal court judge expressed concern about the privacy implications of the lawsuits, doubts about whether downloading music constituted copyright infringement, and misgivings with the evidence tendered by the industry.

With an eye on the ongoing U.S. lawsuits, the Canadian government made reforms to discourage file sharing lawsuits against individuals a priority. For example, Industry Minister Christian Paradis told the House of Commons "we are concerned about the threat of major penalties that hang over Canadians who infringe copyright for non-commercial purposes. Currently, those who have been found to violate copyright can be found liable for damages from $500 to $20,000 per work. If people illegally download five songs, for example, they could theoretically be liable for $100,000. In our view, such penalties are way out of line."

The solution was to change Canada's statutory damages rules by distinguishing between commercial infringement (which still carries liability of up to $20,000 per infringement) and non-commercial infringement, which now features a maximum liability of $5,000 for all infringements. While $5,000 is still very expensive for a downloaded movie, the law permits judges to award damages as low as $100 in such cases.

In fact, the law instructs judges to consider "in the case of infringements for non-commercial purposes, the need for an award to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff."

Rights holders can elect to pursue actual damages from copyright infringement instead of statutory damages, but those are likely to be even smaller in the case of a downloaded movie or song.  The net effect, as the government indicated in its advisory on the bill, is supposed to be that "Canadians will not face disproportionate penalties for minor infringements of copyright."

Despite the government's intentions, the prospect of hundreds of thousands of lawsuits is apparently still a real possibility. With the law instructing judges to award as little as $100 for all non-commercial infringements, the question is now whether these cases will lead to clogged courts as individuals rely on recent legal reforms to challenge demands for thousands of dollars to settle infringement claims.
Comments (99)add comment

Brian said:

up to judges to hold the industry to their commitment
Big shocker. The entertainment distribution industry lied to Canadians when they said they were not interested in going after individuals.

Given that judges have the discretion to award damages as low as $100 it's incumbent on them to do so to send a message to the industry (liars) that suing individuals, contrary to their commitment that they would not, is not going to be profitable here.

The industry made a promise and laws were crafted in reflection of that promise. If they want to break that promise it should not be to their benefit.
December 04, 2012

Shawn H Corey said:

Illegal Lawsuits
How can the music industry file lawsuits for downloads of music? Doesn't the government extract a levy on all CDs? How can such a lawsuit even get into court when the plaintiff can't show that the defendant hasn't burnt the music to a CD?

Why are the courts so bias against the public?
December 04, 2012

Paul said:

Wifi Access
If somebody hacks into my wireless (WiFi) home router to steal my internet & download a song, then does that make me liable for their misuse & susceptible to these charges?
December 04, 2012

Andre said:

...
How did this Montreal company gather its information?Why isn't it illegal for corporations to spy on citizens' internet activities? That seems like a pretty serious invasion of privacy, just on the off chance someone might be downloading copyrighted material.
December 04, 2012

Kevin said:

Cost of litigation
Considering the high cost of litigation, and the relatively small damage amounts that could be awarded, I very much doubt that the industry will launch thousands, or even hundreds, of lawsuits.

We do not have a legal culture in this country of people being awarded substantial amounts of money for these kinds of activities.

I believe what we will see will be more "bark" than "bite". Maybe lots of warning letters sent out to people threatening action..but not much more than that.
December 04, 2012

Chris said:

Cost of litigation
Except Canipre has made it clear they plan to go after potentially 1 million unique IPs. If the potential cap is $5k then multiply by 1 million to get max potential all this spying can net. $5B possibly. Of course minus court costs, etc but this company, and others like it, only do this. They do this for a living. I'd go out on a limb and say that I bet they send out 1 million letters (price of a stamp) threatening legal action and probably get 200,000 people agreeing to just pay whatever it is they decide they should be awarded simply to stay out of court. At let's say $2500 per letter, that would be $500M. Canipre takes a slice of that and gets back to spying while the rest goes to the ones doing the suing.
December 04, 2012

MarcoPolo505 said:

Interesting that Downloading was Lawful Pre-C-11
Before C-11, dowloading a song was argued to be lawful due to the CD levy charged. Now it seems we've gone back to pre-levy days and consider song downloading as unlawful. Here's a thought, dowloading a song for private use was and always will be lawful because it is fair dealing (now aka fair use) in Canada. As for movies and games, well that's another story.

On a related note, try to explain to your Granny who has made copies of Coronation Street since its inception that now she has to delete her recordings as soon as reasonably convenient, per the new time shiftin exception. LOL, she will be dumbfounded. Something that was presumed to be normal social activity and ergo lawful for 30 years suddenly has "shrinkwrap-type" legislated conditions on use? Bizarro land we live in. I suggest that all tv-based time shifting is fair dealing and that no one needs to rely on the silly new time shifting provision.

Here's another crazy copyright idea, file sharing is protected by the Charter's freedom of association and any restrictions thereto must be reasonably justified in a free and democratic society.
December 04, 2012

Richard said:

No one should ever settle
If they settle out of court, they lose the real advantage of the new law. Specifically that the damages will cover *all previous infrigements*. You can drag them into court once, get the demand reduced down to the couple hundred dollars it should be, and they can never bring suit against you again unless you keep pirating. I can only pray the judges send a strong message and push the minimum awards.

The only way to make the lawyers stop pushing these kinds of suits as a 'good idea' is to make it cost the industry money.
December 04, 2012

Crockett said:

IANAL but ...
First off let me mention as others have ... good job on keeping your word there media industry! Great way to get people to respect your position and ethos, return to bullying.

Now to brass tacks.

- There is no profit to be made taking someone to court to get a MAXIMUM $5000 judgement. This is even more a problem as any judgement would likely be much less.

- The only way to make profit is to scare people into out of court settlements. This is the purpose of this announcement.

- The Canadian courts are overburdened as is, I do not expect Canadian judges would be amiable to the plaintiffs. Thus, I expect they will NEVER take anyone to court as a low award would simply eviscerate their fear campaign.

I think you would need to reply to avoid a summary judgement, but just showing you understand the the limitations they face and your willingness to not cave to their demands will put you in their round bin file fairly quickly.

Having said all that let me add my usual caveat, remember to support the artists who make the stuff you enjoy. Avoid, if at all possible, media that supports these shake down tactics.


December 04, 2012

Nemo said:

See you in court.
Files are streaming on my unsecured wireless network right now.There are currently 17 clients and only 4 are mine. How much is a copyright litigator per hour? Significantly less than 100$.

Hopefully with a little help from the EFF and some of Mr Geist's students I'll get my day in court.
December 04, 2012

Sebastien said:

Ummm, ok
So if they're allowed to sue citizens, I guess that means we can all get our money back from all those levies on digital media, right? RIGHT?
December 04, 2012

Kim said:

Downloading used to be lawful ...
I don't it was the CD levy that made downloading lawful before C-11 - the CD levy is about copying content that one has already paid for, I think. Downloading was lawful only because the language of the old Act couldn't be stretched to cover an explicit prohibition of downloading. Hence the change to include explicit language in the new Act.
December 04, 2012

Trevor Marks said:

...
There are a couple of misconceptions in the comments that need correcting

a/ Canipre isn't suing anybody, they're simply a forensics firm hired to collect data
b/ they've stated they have 1Million records however fewer than 50 IP addresses are implicated in the order; there is overblown rhetoric here
c/ privacy is not compromised in collecting the records; those who would claim otherwise have a poor understanding of how the bitTorrent protocol works and should probably bone up on the technology if that's going to be their sole canard.

Michael stated last week that "rights holders can elect to pursue actual damages" and "rights holders are obviously entitled to pursue their claims in court (and seek either actual or statutory damages)" which has lead to conjecture elsewhere ( http://copyrightenforcement.ca...in-canada/ ) that these actions could be a precursor to something much different than what's assumed above.

Perhaps Michael is correct and these actions serve a PR function only and not a legal one. That said, there may be more twists to this then assumed ...
December 04, 2012

fuzzpot said:

Would, not Could
They *could* clog up the courts? No, they most definitely, assuredly, certainly *would* clog up the courts. Canada's courts are already backed up as it is, thanks in no small part to Harper and his relentless quest to incriminate everyday Canadians with new imaginative crimes to fill up those new prisons on which he's been pissing away our taxes.

Just how backed up are our courts? Well, people are waiting a year or more just to fight traffic tickets. At the peak of the RIAA's lawsuit debacle against the American public, one of every 50 cases on the docket were music industry John Doe cases. As Cory Doctorow puts it, that's not a business model, that's a denial of service attack on the judicial system. How do you think our Canadian judges would respond to the abusive and predatory practices of the media giants attempting to crush individual citizens with overpriced lawyers and threatening extortion letters? Especially considering that the industry flat out *LIED* in parliament that they would not be pursuing lawsuits against private citizens for file sharing.
December 04, 2012

davegravy said:

@Trevor Marks
The link you provided suggests that actual damages could be supported based on bit-torrent uploading to other peers.

With bit-torrent you very rarely provide a complete file to a given peer, you usually provide only fragments of a file. Those fragments on their own are functionally useless until reassembled with all fragments (simplification). Is there legal precedent in Canada that uploading a fragment to a peer is the same as uploading the full file? What about for uploading many fragments to many unconnected peers?

Also, I would think for actual damages to occur, the downloader would need to have been in the market for the downloaded media, right? That is, if the media were not available for free on bit-torrent, and the downloader would have purchased it in absence of the free alternative, then actual damages occurred. Isn't this difficult to prove since the nature of many infringers is to download masses of media some of which goes unconsumed? Some, or maybe all, of the accused uploads or downloads may never have been purchased legally in the absence of a free alternative, right?

December 04, 2012

John said:

Small Claims ?
From what I have been reading small claims in Ontario will handle cases that involve damages up to $10,000. Since the maximum fine is only $5000 does this mean that all cases would be handled by small claims courts?

December 04, 2012

Menno Siebach said:

BT Maestro
It strikes me that everyone is full of conjecture. It is quite possible that laqwyers have been hired to make some examples here. It also strikes me that privacy is a non-issue as Trevor Marks points out. The BMG case was a poorly argued, poorly evidenced file sharing case that the recording arts industry mussed up. Pre-C11, there was a federal court decision that Canadians cant expect to hide behind the anonymity of an ISP - which is what the BMG ruling brought about. Rights hodlers must be afforded the very same respects and due process as any other potential litigant.

As for Geist's comments, he quite accurately points out that stat damages will go as low $100 and as high $5,000. He suggests they will go on the low of $100 ..but for me, that isnt good enough - there is a lot of space to $5,000 folks. Dont kid yourself. The Canada courts wont become the out-of-control USA courts but they will certainly enforce the laws on behalf of anyone and hear the merits of the case.

In the end, dont you think its easier to just buy the damn movie?
December 04, 2012

davegravy said:

@Menno Siebach
Agree regarding privacy.

For law firms, even 100% successful $5000 verdicts will be a losing business model from what I understand.

"In the end, dont you think its easier to just buy the damn movie?"

The ease with which one can legally buy media (never mind overly restrictive DRM, and other issues with commercially available media) is the issue. This summs it up pretty well:

http://theoatmeal.com/comics/game_of_thrones

We're in a digital age and consumers expect everything to be available instantly and with minimal effort. Until the industry caves to these demands this battle will continue waging. Mass litigation won't work, some suggest even with the death penalty as a consequence (http://torrentfreak.com/and-when-even-the-death-penalty-doesnt-deter-copying-what-then-110807/)

The industry must evolve or evaporate.
December 04, 2012

Mark said:

...
If they decide to go ahead with suing regular downloaders, they better have a six month ad campaign in Canada warning people on what date they will start pursuing this course of action. Basically a "you have N months to stop" type message that also provides a website that lists all the legal sources available. But they'll need to bring better content selection as Netflix Canada sucks, Shaw on demand has a pathetic back catalog, and a foreign seedbox where I can download with impunity is fairly cheap. Also allow me to transfer my PVR recordings to my computer/tablet in an open file format.
December 04, 2012

end user said:

...
Anyone thinks these press release scare tactics are for the sake of collecting stats data on torrent seeding by Canadian IP's. Maybe they're trying to scare people into not downloading for a little bit and then gather stats on Canadian IP's torrent usage. If there's a drop in the amount of Canadian IP's that seed/peer they could use those stats and say "Hey look downloading went down after our press release and downloading is a threat to our business model"
December 04, 2012

end user said:

...
Menno Siebach said: In the end, dont you think its easier to just buy the damn movie?

I download it to see if its good. If it is then I hit the local panw shops and get it for $2.99 or less. Its a great time to buy DVD's at pawnshops as they are switching to BR and are blowing out dvd's. For example a on the weekend at Cash Converters I picked up 6 dvd's (buy 5 get one free) and three box sets for $32.
December 04, 2012

PeterP said:

@ davegravy
"For law firms, even 100% successful $5000 verdicts will be a losing business model from what I understand."
How so? If found guilty there are other damages besides statutory, along court costs, and the other parties legal fess; 10% I believe is the rate in Canada, not including the costs of the defending legal team.
$5000.00 may be the cap for non-commercial infringement, but proving that in court will cost at $5000.00!
Where Nemo got "How much is a copyright litigator per hour? Significantly less than 100$." is a complete mystery. A retainer is at least $2500.00 and a litigator, the low end $550.00 per hour; a partner at least $950.00 per hour.

"The industry must evolve or evaporate."
Seriously? Where were your words of wisdom when sites like megaupload needed them?

I agree Menno Siebach it's much easier just to pay for the movie.

December 04, 2012

Arrrrrngry said:

@BT Maestro
[In the end, dont you think its easier to just buy the damn movie?]

Well, let's see... to buy a movie, I have to take what precious little free time I have after work, head over to Walmart, find the DVD, discover that they don't have it, go to another store, discover they don't have it, go to another store and finally overpay for it. Then I have to go back home and wait for another day that I have free time because I've just spent all my free time for today just to the damn movie.

Or I could just spend two minutes finding a torrent, go have dinner while it downloads and return to a perfect-quality, DRM-free video in a format so malleable that I can play it on my computer, tablet, phone, networked TV, DVR, DivX-capable DVD player.

I know this sounds like a silly "first world problem" type of complaint, but in a world where it is technologically feasible and, frankly, trivial to offer every piece of art ever made, indexed and searchable from the comfort of your own home, and have a video available to stream or download in minutes or even seconds, there is no excuse for *not* offering it.

This very fight and the barriers they place in front of their actual customers is what's *fueling* piracy. Most people will download not because it's cheaper, but because so much more convenient. Give us the option TO PAY YOU to deliver an MPEG4/DivX/whatever, DRM-free video file that I can download or stream in minutes or seconds, and you'll have customers who can't give you *enough* of their money. As a technical feat, it would be trivial; so trivial, in fact, that people are able do it from their home computers every single day. Don't give me any bullshit about the lawyering you'd have to do, that's all just unnecessary semantics.

Instead, the multimedia industry drags their feet in the wake of technological progress and takes huge liberties with their power to exploit it over us in a predatorial fashion. But this fight is hardly about freeloaders; it's about gigantic, multinational, vertically-integrated, dinosaur corporations that are so stupid, lazy, ignorant, malicious, greedy or all of the above, they aim to control every facet of every technology that's even remotely capable as a platform for multimedia.

Their insatiable lust for power will never end until the consumer electronics industry is a wholly-owned subsidiary and they can control every single computer and multimedia device in your home ... want to play that movie again? That's an extra charge. Have to pause for bathroom break? Better hurry, it'll cost you 25 cents a minute. Rewinding will cost you a penny per second a dollar per key frame. There have been backroom meetings where they discuss these points as serious considerations. If only they could force it on the electronics industry, expropriating your personal property for every single penny they can wrench out of it.

Yet, history shows us that this industry has *always* reacted this way to disruptive technology. Composers bitched about the player piano and asked for an all-out ban; instead, a reasonable and fair agreement was reached with blanket licensing. Performers moaned about radio and TV producers whined about cable and called for a complete dismantling; instead, reasonable and fair agreements were reached with royalties. Movie producers whined about the VHS and called to outlaw the technology; instead, our representatives decided that technological progress was more important than propping up a business model bent on stifling it.

But, what's changed today? Why is Hollywood now calling the shots? Our representatives used to stand up for us, for culture, for expression. Now, we have laws that are practically *dictated* by big media interests so that they can lock up culture and sell to you at a price they can demand without market forces, then revoke, modify or restrict without notice or due process.

I could go on about how they exist now for self-preservation purposes only because of how the Internet has all but obsoleted them; how they deceive, cheat and scam artists into record deals, then turn around and prey on said artists' fans with they're money, power, connections and intimidation.

But, do you know that the most deliciously ironic thing is about Hollywood bitching and moaning about these "pirates"? Hollywood owes it's very existence to what it now calls "piracy": the reason all the movie studios are in California is so that they could get far enough away from the reach of Edison's technology patents ... and FOR THEY'RE OWN COMMERCIAL GAIN, which has spurred into a MULTI-BILLION DOLLAR industry. Now they turn around and tell us that we are not even allowed to share -- not sell for financial profit, mind you, but just share -- our culture, our ideas, our creativity and our very humanity ... so they can make a buck?

SCREW THEM, we owe them NOTHING.
December 04, 2012

Arrrrrngry said:

oops
Oops, quoted the wrong poster, I meant to quote Menno Siebach.
December 04, 2012

Anonymous said:

You wouldn't..would you?
You wouldn't click on that funny looking email link and let it install a program on your computer would you? You wouldn't go to some URL that only looks a bit like your bank's URL and type in your VISA number and PIN would you? You wouldn't give someone your password just because they say they're from facebook, or that they'll help you with your "slow" computer?

Well then, why would you do anything at all online without using one of the many, many ways to keep your IP address private? Or leave your wi-fi open which will not only shield you from any liability, but also will make you a neighbourhood hero?
December 04, 2012

Davegravy said:

@PeterP
"Seriously? Where were your words of wisdom when sites like megaupload needed them?"

In war, are there not usually casualties on both sides?
December 04, 2012

Chris C. said:

Empty Threats...
... "a Montreal-based company has captured data on one million Canadians who it says have engaged in unauthorized file sharing"

WHAT Montreal Based Company, so we can start a class action suit against it for breach of privacy, among other things?

Those whose only pleasure is to harm others should remember that not so long ago, people got rid of them by cutting their heads off.
December 05, 2012

me said:

no one
logless VPN? if there is REALLY one i'd like to know. i do know the Swedish governmet doesn't like trolls judging by there latest stand.
December 05, 2012

Lou C. said:

merry go round
If someone pays the amount indicated on a demand letter for an infringement of movie "A" to avoid court, is there any guarantee that the copyright holder(s) won't send another letter to this same person demanding another payment for infringement of movie "B"? "C"?, "D"?, etc. ?

If whoever is acting for the copyright holders wants to minimize expenses in inevitable court cases they could address this in their demand letter (probably too much to expect). That would be in everyone's best interests.

Also, do infringement cases always address one movie at a time?
December 05, 2012

JakeD said:

logless VPN
@me
Astrill is a logless VPN I believe.
December 05, 2012

me said:

no one
thanks JakeD,
it actually looks pretty promissing
December 05, 2012

Dr. Greg said:

They don't want to litigate
If this is anything like in the US, the companies won't bring any of these individuals to court. As has been stated earlier, the statutory damage cap of $5000 means that it isn't economically viable to take individuals to court, but they can send out thousands of "pay-up or else" letters to unsuspecting Canadians.

Those who haven't been watching these cases internationally will probably cave in and accept the settlement offer. Those that choose to fight the demand will probably have their cases dropped. It remains to be seen how long this will continue. In the US, several judges have tossed out these cases during the discovery phase when it became apparent that the firms just wanted names to send letters to.
December 05, 2012

Amanda Price said:

Alternative Dispute Resolution?
Come to think of it, $100 x 1M folks = $100M in total amount of damages to be awarded if we take the lowest rate you wrote here. Not bad? Now, will it be a practical option to enforce arbitration where patent and copyright are concerned? I guess, filing a lawsuit is overwhelming, exhaustive and time-consuming even if it can be done. Is it possible to utilize online dispute resolution tools like Modria, eQuibbly, ODR Exchange (etc) instead? I'm just curious.
December 06, 2012

J-see said:

CANIPRE remember it
This Montreal company claims to have track BitTorrent traffic in Canada. They open up this primitive website with a few hate messages.
December 06, 2012

Chris said:

VPN is no safe haven...
After spending way too much time reading about VPN reviews and how they operate, I've come to the conclusion that there is no solid way to use one with even a 90% chance of anonymity. You have to think if truly bad people doing much worse things than non-commercial copyright infringement could also use an "anonymous, non-logging" VPN, how would that work? I believe more and more that all VPN companies retain logs of some form, maybe some more detailed than others, but they've all got logs.

@Amanda Price - yes I believe that's the way companies (like Canipre, and there are many more of them than just this one) are justifying court costs..by offsetting the few that will actually not pay a settlement and that will take it to court. Realistically, if they sell their info to MPAA or whoever wants to actually sue, they will turn around and send out 1 million letters to individuals. If even 200,000 decided to settle, they wouldn't need to take the rest to court even and it could die there...this time around. MPAA would get their $20M for mailing letters and maybe it costs them a fraction of that to pay Canipre. Then the whole thing starts all over again as Canipre won't stop logging after one round.

The whole thing is a scary proposition and very likely will change the face of p2p forever in Canada. It's no longer easy to just download what you want when you want. The true is, risk is now always present where it wasn't before.
December 06, 2012

davegravy said:

@Chris
You say you've done research on logless VPNs, but can you provide references to your findings? You say since such services could be used for very malicious purposes that they must keep logs. I assume you mean that they would have to keep logs to limit their liability for when their services are used maliciously? This assumes that they are liable for any traffic passing through their servers. Can you cite precedent for this?

If they do indeed keep logs, then they are liable for false advertising. I'd be surprised if these services would operate with either risk (false advertising or liability for malicious use of their service), and so I'm inclined to believe that they are not liable for malicious use of their service.

I don't know for sure, but until you provide some insight, I have to consider the possibility that you're a copyright troll trying to scare people with non-facts.

By the way, I'm not arguing that using a logless VPN is a 100% safe way of downloading media illegally (there's likely no such thing), but the notion is that it puts one in a class of infringers that takes significantly more effort for companies like Canipre to prosecute. If there are 999,999 other infringers who are relatively easy prey for Canipre, that lowers one's risk significantly.

---


"The true is, risk is now always present where it wasn't before."

There has always been risk. It may be slightly higher now, but that remains to be seen.

"It's no longer easy to just download what you want when you want."

It's no harder. It *may* be more risky, but once again we don't know yet. Don't confuse ease and risk.

Once again, for a lot of media, p2p is the ONLY option for getting it in unencumbered form, in a timely manner, for reasonable cost.




December 06, 2012

Chris said:

@davegravy
I can see how I might have come off the wrong way, but I'm no copyright troll. I'm a concerned citizen...for fellow citizens. I think this law is absurd personally and wish it would just go away, but obviously that is not going to happen. Unfortunately, I don't have the link to the article I had found proving (using each company's TOS) that several popular VPN services, who claim to be completely log-less, would fully comply by providing any logs should they be required by law enforcement. It was eye opening for me. We have companies like BT Guard right here in Canada offering "anonymous" service specifically specializing in BT. If I had to guess, I'd say they would be next on the hit list. Of course, just an opinion, but yes I suppose the one fact we can take from this is that while there was always a very small risk in being involved in all this, now it has grown and that same risk level is now very unknown. It's all speculation until we start seeing some settlements/trials. At that point I think it's up to the judges whether or not everyone and their dog will be paying.
December 06, 2012

Crockett said:

...
@Amanda "Come to think of it, $100 x 1M folks = $100M in total amount of damages to be awarded if we take the lowest rate you wrote here. Not bad?"

There is a real issue of diminishing returns here, especially in regards to public relations. Certainly those on these forums are well aware of the rampant abuses by copyright trolls, but I expect most of the Canadian population is still blissfully ignorant. If there were actually 1,000,000 letters (or even a significant fraction) sent out then the gains from the fear tactics would quickly be outweighed by the negative press.

I personally believe that there is a negative feedback cycle where creators, upset at infringement, then overreact which leads the infringers justifying & increasing their behavior. Add in greed on both sides and you have a pretty foul stew. This latest effort of copyright trolling in Canada is just adding poison to the pot.
December 06, 2012

end user said:

...
I've done some research on VPN's and there are few in Sweden that don't keep logs and can be paid for with BitCoin. Once you make the BitCoin purchase you mostly there. You have to make sure you can get a free anonymous VPN account to make the first BitCoin exchange or use someones open wifi network to start the Bit Coin purchase.
December 06, 2012

Chris said:

...
@end user
Sweden is unfortunately not safe either. Check out the link below, it's a bit old but I believe the directive described is now in place. Although I'm not sure it covers VPN connections, it does cover all ISP and telecommunications mediums in the country, and any other member countries.

http://news.softpedia.com/news/Swedish-ISP-to-Fight-Data-Retention-Law-with-Out-of-Reach-VPN-181434.shtml

I'm interested in the BitCoin bit...I've seen at least one VPN provider that does in fact offer this method of payment to customers. This would do a lot to maintain customer anonymity since you're not giving a real name or using a credit card to pay for it. Thing is though, even with that method, if a VPN company is ordered to turn over logs, then find your ISP's IP accessing it for P2P activity, then your ISP is ordered to turn over your name and address...you're back at square one with your identity uncovered.

I suppose the answer is still the same, everyone will need to wait to see what comes of all these threats being passed around the media and then react accordingly. Until then, proceed at risk of winning the lottery nobody wants to win.
December 06, 2012

maebnoom said:

Loggless VPN
They really do exist. ThePirateBay started one, for example. I actually know one of the operators, and it's safe, believe me.

ipredator - www.ipredator.se/page/security

Anyway, VPN isn't a golden bullet in & of itself - but for most (casual P2P), it's more than enough. (and cheap)
December 06, 2012

maebnoom said:

...
Just to add - even if a service is required (if court ordered) to hand over logs, that does not mean there is meaningful info in said logs. Many jurisdictions do not require that logs are kept, or mandate what info needs to be logged, and certain service providers take full advantage of that.

"Want our logs? Here you go." *no IPs or names contained within*
December 06, 2012

Trevor Marks said:

...
@Crockett ... the real goods will be in the traffic reports. If Sandvine comes out next week and reports that bitTorrent traffic is off 20% it will indicate that enough people in enough living rooms got the message that maybe illegal file-sharing isn't such a good idea. Maybe some of them will begin to consider the act itself (and not just the consequences) ...

I honestly don't believe that people connect civil enforcement (or trolling) with how they consume entertainment. They may not LIKE Sony Pictures, but they still go to the theatres.

At some point, the paradigm has to change. There's a piece today on copyrightenforcement canada ( http://copyrightenforcement.ca...st-piracy/) that may not be the best written, but it does ask a couple of what I think are relevant questions; when do people get angry about downloading? When is it seen for what people in the creative industries see it as; as theft of their intellectual property and of their labour.

Reading comments like those above where posters are sharing methods to steal movies would be widely condemned were it about almost any other consumable - "here's how you steal a chocolate bar, its the only timely way of getting one" - "here's how you steal a car, their distribution methods are archaic" - "they have enough money, let's steal their furniture."
December 06, 2012

end user said:

...
Trevor Marks said: >Reading comments like those above where posters are sharing methods to steal movies would be widely condemned were it about almost any other consumable - "here's how you steal a chocolate bar, its the only timely way of getting one" - "here's how you steal a car, their distribution methods are archaic" - "they have enough money, let's steal their furniture."


Whether you like it or not there's a difference between downloading data (movie) from a an online source and going up to a car, stealing it and calling it your own.

The owner of a car has been deprived of their own property while it can't be said the same for a digital file. The copyright holder hasn't been deprived of any property as you don't know if that person already owns the movie on a DVD or BR and they just set up the torrent to download a digital version of the movie which they already own.

There's no correlation between a download and a lost sale which is what the corporations want the feeble minded politicians to believe with their numbers.

You can try to justify downloading = stealing = deprived income but the cat out of the bag and public perception of your products has changed. Since you refuse to see this and refuse to adjust your business model to the internet age (its not 1997 anymore) you will not win.

If someone with programming skills and no income can set up a monster of a file sharing site or network you can't tell me these media companies that spend 100's of millions pay OF $$$$ for layers and bribing politicians cant do the same and offer all of their catalog online with in a few months work.
December 06, 2012

Crockett said:

Treatise to Trevor Part 1
Trevor,
As you mentioned there are many different types of people posting here, some being just interested in the best way to work around the system. I hope I come across a bit more level than that. I found the questions on the site you linked to be quite poignant, coming from a world view that is a fair bit different than my own but still speaking to real issues.
The question being asked is “Where is the public anger towards piracy?”, the answer to that is on surface is actually simple; its focused on the RIAA, MPAA and all the other four lettered organizations who have spectacularly botched the public relations battle. This is actually where I entered this debate about 5 years ago. I actually am a fan of the arts, friends with creators and encourage everyone to support the producers of the media they use. I especially encourage people to spend their support as close to the artist as possible, this way the fan feels closer and more involved and the artists comes away with greater reimbursement & fulfillment.
Back to the question … there are a number of factors that I think has contributed to the **AA’s losing the war, I will list them here.
-People like to share things they enjoy. Have you ever lent a book, record, tape, DVD to a friend? This has been going on since time immemorial, and to expect it to cease in the digital age is naive. Telling people it is immoral to do something that comes so naturally sets you up front to fail.
-I don’t think most see sharing as harmful. I think this is just at an intuitive level rather than a cognitive one. If people like something and feel good about it, and have the means to do so, they will support that which they feel a connection to. The media industry has been working opposite to this for at least the last two decades.
-The media industry through self denial or outright manipulation tells the public lies. The sad this is people know when they are being fed a line, even if they can’t tell you why. Take this one for instance, “Internet piracy has claimed half of the recorded music business”. This is an absurd statement that anyone with some thought can refute. Let’s look at the facts:
1)Has there been a decrease in LABEL recorded music revenue? YES
2)Is Piracy responsible for a 50% decline? NO
3)Then what is? The digital single mostly. Albums where the cash crop and before digital distribution were almost impossible to obtain. With the falling out of favor for the album format the unit sales increased but the value of those units decreased. Diversification of the entertainment industry also plays a role; the video game industry has skyrocketed in sales revenue during the same period. People only have so much time & money to invest in personal entertainment and something has to give. Also consider facebook, youtube, Netflix as timesinks.
4)Lastly, people don’t like being bullied and that is how the enforcement wing of the entertainment industry comes across. You don’t tend to want to deal fairly with a bully.
December 06, 2012

Crockett said:

Treatise to Trevor Part 2
Now I understand that artists and creators are the ones who feel aggrieved, and rightly so. But where we find ourselves today is in a place made worse by some who refuse to make changes in the face of irresistible force. The world has changed; there is no way to put the water back in the dam. Those trying to do so either are so out of touch with the world today or are too desperate to do anything else.

Expectations of the marketplace have shifted to such a degree that the media industry is no longer offering products in a format that the people want. This leads people to find a way to obtain those items outside that system. When a pirated copy is more functional, convenient and superior to the paid item then the incentive to support that system diminishes rapidly.

So may I ask my own question? “Why does the media industry refuse to give the people the products they desire?” The simple answer is loss; of control, power, influence and profit. Who’s I might ask? The industries’, not necessarily the artist. The internet offers a system outside of the control, power, influence of the traditional industries and they are doing everything in their power to somehow make it go away.

Is the internet a shang-ra-la heralding in a new era of largess for everyone? Not likely, there will be still be power players, winners & losers, innovators and some lost in the cracks. But overall I see a leveling of the playing field where the returns will come closer to originators of the art.

In summary, I think that missing public rage against piracy is not because most people support it but rather it is the lesser of two ‘evils’. There are fiefdoms at stake and a war to keep the walls from being breached, yet when things inevitably bow to the pressure of change I think there will be more to go around than less for everyone.
December 06, 2012

davegravy said:

@Trevor Marks
"when do people get angry about downloading? When is it seen for what people in the creative industries see it as; as theft of their intellectual property and of their labour."

People are blinded from the injustice they're complicit in. Why? Because a number of entrepreneurs with very little capital designed a distribution system that was far beyond what the industry, despite being laden with capital, had at the time. This act revealed to the people that they were being milked like cattle by the industry, as the industry had so much money but had become too complacent to innovate. This angered the people deep inside, but the anger was quickly quelled by the fact that they could now obtain their media for free.

They remain content today only because it is still free. If they are returned to needing to pay for their media before their confidence is restored that the industry is competitive and innovative and thereby respective of the people, they will not be content.

So we have respectful treatment of consumers on the one side (plus I would say lost opportunities in economic efficiency), and the unethical retaliatory behavior of consumers on the other end of the moral scale. Being as we're a democracy where power is given to the people (not the corporation) I would say that consumers have the higher moral ground.

You may disagree on who's more right or wrong, but that's the crux of the conflict as I see it.
December 06, 2012

Crockett said:

...
Davegravy hit on something that has bothered me in the past. I have heard from many such as John Degen that most writers, artists etc, are on the lower end of the pay scale. That seems to be the case, as the meme suggests, even before digital piracy. Yet there seems to be funnels of funds for lobbyists and lawyers to safeguard the incumbent industries. I think there needs to be some real introspection of the artistic community if those they have put in place to safeguard their well being are really fulfilling that charge.

Those like myself, who lean towards the copyright minimalist side, are not necessarily out to impoverish the creative community but rather to strengthen them by freeing it.
December 06, 2012

davegravy said:

@Crokett
"I think there needs to be some real introspection of the artistic community if those they have put in place to safeguard their well being are really fulfilling that charge."

Indeed. And with the pirate community now offering promotional services to artists (e.g promo bay), those introspective artists may have a real alternative to turn to.

The (legacy) industry is really not in a good position at all I'm afraid.
December 07, 2012

Grump said:

@Trevor
Copying is not theft, it's reality.
https://www.youtube.com/watch?v=IeTybKL1pM4

Also, there's no such thing as "deprived income" only "bad investments." Art will not disappear just because the modern commercial realities don't allow giant conglomerates to "participate" in it's distribution and formulaic production anymore. Artists are back to busking. It's not any worse economically than your local waitress, with the benefit of being able to reach the whole world. Good people still win, popular artists can still get rich, and happy amateurs can still thrive, assuming we can all keep copying.

http://www.shirky.com/weblog/2009/03/newspapers-and-thinking-the-unthinkable/

"Round and round this goes, with the people committed to saving newspapers demanding to know 'If the old model is broken, what will work in its place?' To which the answer is: Nothing. Nothing will work. There is no general model for newspapers to replace the one the internet just broke." - Clay Shirky

Replace newspapers with the creative industry, and we might begin to all get up to speed.
December 07, 2012

Trevor Marks said:

@ Grump and others ...
I'd never argue that there aren't, or couldn't be, better alternatives to the current copyright regime. Nor would I would I argue that the studio model is the best or only production/distribution model. There are many thoughtful people proposing many thoughtful alternatives.

Rather, I would argue that individuals have a right to their labour and to their creative output and that those who believe they can freely take what another individual has created have blinded themselves to an essential truth.

When I create something I have a choice: I can release it freely into the world. Or I can ask for some compensation from those who consume it. If I'm going to pay the mortgage, send my kids to the dentist, and maybe have dinner out once in awhile, I'm going to choose the latter. When you choose to take what I've created, be it a photograph, a song, or a movie, and make it available to thousands through digital technologies, you deprive me of that choice. Not only do you make it harder for me to continue making a living as a creator, you disrespect my labour and you place the value of my talent at zero (the price you're willing to pay for my creative efforts).

Comments like "copying is not theft" may be true but only if you and I have an agreement stating such ... and please remember, this conversation is about something much different. Peer networks don't exist as a device for copying; but for mass distribution. When you upload my creative output without consent, you've made it available to thousands, and calling it a "bad investment" only worsens the insult.

Argue alternative models. Argue better efficiencies. Offer solutions. And step back ... I'm so reluctant to get in these conversations because it's so seldom that it doesn't come down to the same old saw "I'm entitled because ... " ... thanks therefore for the thoughtful response from @crockett
December 07, 2012

maebnoom said:

@ TM ^
False dichotomy.
December 07, 2012

end user said:

...
Trevor Marks said: When I create something I have a choice: I can release it freely into the world. Or I can ask for some compensation from those who consume it. If I'm going to pay the mortgage, send my kids to the dentist, and maybe have dinner out once in awhile, I'm going to choose the latter. When you choose to take what I've created, be it a photograph, a song, or a movie, and make it available to thousands through digital technologies, you deprive me of that choice. Not only do you make it harder for me to continue making a living as a creator, you disrespect my labour and you place the value of my talent at zero (the price you're willing to pay for my creative efforts).

You seem to be doing the same thing as the music/movie studios and that's thinking that your work auto-magically has a value to someone/the world and that there some magic (everyone will buy my work) market out there because you're an artist.

Again you're assuming that every time someone downloads your work for free that its a lost sale.

So while people like you keep feeling sorry for themselves because no one wants to pay you do you actually look at your business and see what changes need to be done? I be you don't...

You wanna see progressive business plans http://www.fastcompany.com/114...ales-23000
December 07, 2012

Crockett said:

...
@end User,

I see your point, but Trevor is in his rights to release his work for free or behind some type of paywall (physical or electronic). The benefits of open licensing your work have to be weighed upon the expected return, there are factors in play such as this case where the artists are very well know to start with. I personally think we should respect his position.

Having said that, the paywall method is compromised by piracy while open source is obviously not. The goodwill generated by the open source model does seem to come with positive dividends, which conversely the cracked does not. The open method is of most benefit if provided by the artists themselves, I don't think it would work out so well for the **AA, too much bad blood there. The open method also puts way too much power in the hands of the artists for the **AA's liking, their value is in promotion and distribution which the open model mostly eviscerates.

There is always a feeling of surety based on our own perceptions. Those who post here (such as myself) like to think positively about digital technology, the Internet and it's affect on the creative sphere. Then there are others who are immersed in the **AA culture who constantly hear the opposite. I expect the reality of the situation is somewhere there in the mix.

My disdain is for the **AAs who put out misinformation backed by large funding to secure their own business models at the expense of the 'artists' they purport to represent. I find it hard to think of a single positive thing they have done for the creative community in the last decade, instead we find a scorched earth of rebellious consumers and underpaid artists.

It is my hope that in the not too distant future, more of the creative community will wake up and return to building relationships with their audience rather than let their 'representatives' tear it down.
December 07, 2012

end user said:

...
> Crockett said: @end User, I see your point, but Trevor is in his rights to release his work for free or behind some type of paywall (physical or electronic). The benefits of open licensing your work have to be weighed upon the expected return, there are factors in play such as this case where the artists are very well know to start with. I personally think we should respect his position.

Don't get me wrong he has every right to make money off his works and be paid for it and not have people download his works with out his permission. However there's no right to automatically have people throw money at Trevor's work just because he created it. There's seem to be a lack of acceptance that there's been a huge social attitude change towards manufactured entertainment. The cat is out of the bag and you can legislate it all you want but with out forward thinking like the Monty Python guys you're gonna be forgotten and people will spend money on things that they think are worth the money.

The more you legislate piracy the more money there's going to be made by commercial pirates. Just like with drugs or anything illegal that the population wants. Someone will come in a fill in the gap that in the market.

"Artists" need to stop thinking that every download is a lost sale. Yes there will be a percentage of people who could possibly bought the work but if that was the case why are the studios still making record profits if no one is buying.


http://www.techdirt.com/articles/20111102/23363116605/warner-bros-right-after-announcing-record-profits-pleads-poverty-asking-people-to-support-grassroots-campaign-e-parasite-act.shtml

http://www.rawstory.com/rs/2011/12/13/movie-executives-see-record-profits-salaries-despite-piracy-fear-mongering/

Also I'm sure many people like me use downloads of music to see if I will actually buy it. For example the last Prodigy album (Invaders Must Die), I downloaded and listened to it, decided it wasn't worth the money. On the other hand I heard of this obscure album one day Charanjit Singh - Ten Ragas To A Disco Beat http://boomkat.com/vinyl/28872...disco-beat downloaded it and bought it right there after hearing it. To me this album was worth owning.

For those refusing to explore new methods of distribution/reaching out consumers are doomed.
December 07, 2012

end user said:

...
I just wrote a reply and after submitting the browser reloaded with no post. Going back cleared the textarea field. Ehh
December 07, 2012

Crockett said:

...
I've had that happen. I always do a CTRL-A-C before submitting just in case.
December 07, 2012

Crockett said:

...
Thanks end user, I did not put any links to back up the positions of my statements. They sure do make it though.

http://www.techdirt.com/articles/20111102/23363116605/warner-bros-right-after-announcing-record-profits-pleads-poverty-asking-people-to-support-grassroots-campaign-e-parasite-act.shtml

http://www.rawstory.com/rs/2011/12/13/movie-executives-see-record-profits-salaries-despite-piracy-fear-mongering/

I would be quite interested to hear from Trevor or anyone else actually within the industry. First I wonder, do they ever hear this side of the story? Is it accurate in their estimation, or prehaps hyperbole of the kind we blame the **AA? If not please let me know I would be glad to hear the other side of the story, seriously.
December 07, 2012

Food For Thought said:

Second-hand Market
Here's an interesting experiment to try. Replace all mentions of file-sharing in Trevor Marks with "selling used copies". Amazingly, nothing changes at all.

It's interesting that this connection isn't brought up more often. What exactly is the difference between file-sharing and selling on the second-hand market? Neither approach gives any "compensation" to artists. In fact, selling on the used market could even be considered worse than file-sharing. With file-sharing, the person sharing the file is getting no profit from the transaction. In fact, he is paying to share it in the form of his Internet bandwidth and time. This is especially true in Canada, where bandwidth caps are included with virtually most reasonably priced plans.

With the user market, not only is the seller receiving all the money from the deal (or most with a portion going to the transaction middle men ala Amazon, Ebay, et al.) but there is nothing stopping the seller from making a private copy before hand of the CD, DVD, whatever. Now granted, I'd assume technically he'd have to destroy all those copies, but really is the police going to the exam the houses and computers of every seller to make sure backup copies have not been made? I think not.

So again, I ask the question what is the different between a person who gets a copy from file-sharing versus that same person otherwise buying a used copy? For many things, like CDs, and like the Internet, used copies provide more flexibility. Modern CD remasters, which are often the only new copies available of older albums, are likely tainted with the loudness war (loss of dynamics) or have been processed in other ways. The result is inferior sounding CDs compared to their older counterparts of the 80s and 90s. So, in fact, the customer for CDs is being offered less quality, often at a higher price. The user market on the other hand, offers older *out-of-production* CDs that have been untouched by modern-day manipulation, often for cheaper price (depending on rarity, etc.) You can also find file-sharing sites that offer rips of the same CD pressings that, again, are *out-of-production*. So once more, what is the difference if a person downloads one of these CD rips or if he/she buys a used copy. Nothing, because in either case he/she had no intention of buying a new CD version. It is entirely the music industry's fault for not matching customer preferences.

We often forget that while the Internet has propagated amazing file-sharing capabilities, it has also seen a boom in the ability to see used things quickly and easily. Furthermore, we forget that in this economy that people are more likely to buy used in terms of entertainment and works because they are cheaper and new stuff is often too expensive. At my university, 100% of my purchases are used textbooks. Why not new? Simple, the prices are outrageous. I'm certain that many students would download a digital copy instead if they couldn't find a used textbook (again, no interest in buying the over-priced new one).

So it seems to me, Trevor, that the common sense right for citizens to sell used is just as "damaging" to you as any file-sharing is. But I assume you wouldn't argue that the second-hand market should be banned. Oh wait, the "MAFIAA" is trying that right now:

https://www.techdirt.com/articles/20121127/03061121155/colbert-takes-first-sale-rights-mocks-kirtsaeng-case.shtml

Best regards.
December 08, 2012

Trevor Marks said:

...
@Food For Thought
With respect, it's simply not analogous. The essential difference between a second-hand market and file sharing (or in this case, the use of peer networks) is the multiplier effect. If 100 copies of a lithograph are minted, then traded, resold etc; there are still only 100 copies and the value remains. If that litho is re-copied 100,000 time the value is destroyed. Likewise with a book. Or a song. Or a video game.

@Crockett
Artists, as much or more than most, are aware of and engage in social justice issues. It would be the rare individual that supports the massive salaries the corporate model awards to those in the executive suites.

But then, as much as there are those who would like this to about the "fat cats" or bungled PR, it's really not. At the core, it has to do with personal liberty and the right for an individual to create something and if they're lucky, pay the bills and continue creating.

The abuses of various industry players does not mitigate the moral failings of those who claim a right to my talent or labour.

@crockett
I think you hit the nail on the head with regards to music being a social experience ... I agree, we feel an essential something in ourselves is being threatened when we're told we cannot share the stories, songs and images that inform our lives ... this is the biggest failings of the current distribution model.

@end user
No artist has ever believed that their work "auto-magically has a value." Artists are acutely aware that a work may never find an audience. There is never a guaranteed "next" sale. Intimations to the contrary are deflection and painfully not grounded in experience ...

@end user
I agree, a download does not equate to a lost sale. But 1,000 uploads are deflationary ... that may be good or bad according to your view of such things, but it is a fact admitted to in a number of posts above.

@end user
"So while people like you keep feeling sorry for themselves ... "
Yeah, bs like that is what keeps me out of conversations like this.

Thanks therefore to those engaging this conversation without the cant ...



December 08, 2012

Crockett said:

...
Trevor, thanks for your thoughtful responses. It sounds like we could sit down for coffee and find a lot of common ground. If there was more of that, we might all actually make a difference.
December 08, 2012

davegravy said:

@Trevor Marks
"The abuses of various industry players does not mitigate the moral failings of those who claim a right to my talent or labour."

I agree, however the corollary is also true: The moral failings of consumers does not mitigate the immoral behavior of the industry.

Artists are clearly between a rock and and a hard place, and I've seen as many take the side of consumer (advocating a more open model) as I have the industry.

As I see it, this is the biggest test of democracy we've had in a long while. Who will be victorious: Consumers with their democratic vote, or industry with their wads of cash capable of buying laws and state backing. What does history suggest will be the result? I can't think of a precedent for where so much popular support* exists for something immoral, save Nazi Germany.

Dave

*I lump all consumers into one, but obviously there are a significant number of consumers who take a stand against piracy. The younger generation tends to have fewer people of this mindset, and if trends continue then I suspect this will form a considerable majority in due time.
December 08, 2012

Rick Trillings said:

Stealing music (from a Walmart or HMV)
Steal music from a brick & mortar store and you'd likely get less of a punishment.
December 08, 2012

Crockett said:

...
@Rick "Steal music from a brick & mortar store and you'd likely get less of a punishment."

This is questionable, if you are caught shoplifting you would get a criminal record, downloading music on the other hand is a case of infringement. The up front monetary costs of the latter may be higher but the former will net you a criminal record for life. I'm not speaking to the morality of file sharing, just clarifying that it is not equally equatable to theft.

Having said that, things have been taken to extreme For example, court cases in the USA have awarded damages in the hundreds of thousands of dollars for sharing a single CD worth of songs. A kid's life was almost ruined for publishing how to install another OS on a Sony play-station, regardless if Sony have previously marketed this as a useful feature then later changed there minds.

It is true there are cases of bad behavior on both sides of the fissure, but the remedies and dare I say the solutions have been more than counterproductive. So what do we have, people and industries behaving badly and blaming the other. Something has to change and by that I mean if the media industries have any chance of surviving in the digital age they need to back down from their shock & awe tactics and start "building schools & hospitals" instead. The public then should act in good faith and reciprocate; but fair or not, industry are the ones with the most lose thus have to take a giant first step. Innovate & focus on customer service ... or perish.
December 08, 2012

Grump said:

@Trevor
> “If 100 copies of a lithograph are minted, then traded, resold etc; there are still only 100 copies and the value remains. If that litho is re-copied 100,000 time the value is destroyed. Likewise with a book. Or a song. Or a video game.”

That's the mistake: digital goods don't work that way. You want them to, to the point of taking it personally that they don't, when neither “theft” nor “destruction” is taking place. You are still in one piece.

You can have a contract with a printer that limits the number of lithographic prints and you can have a contract with an individual specifying his or her obligations, including copying, but you are not in control of the copying activity on the Internet in general for an obvious reason: you do not get to dictate the behavior of others in the privacy of their own homes and minds, including copying, any more than they get to tell you what to do or say or think in the privacy of yours. It is clear that this isn't about remuneration since Kickstarter exists (among others), and it's clear this isn't about the the future availability of new content since YouTube and Wikipedia exist (among others). As you've said, it's about what you believe to be your “moral right” to limit the communication of others more generally based your desire to fix and maintain the scarcity, and thus value, of an idea, but there is no such right. Copyright, to the degree it exists, is a socially-sanctioned monopoly - a compromise - not a right, and everyone's behaviours demonstrate that we do not accept the reach of that premise all the way into our private lives.

Your right to control copying ends with your contract with, and your ability to get damages from, the single (first) person who broke an explicit agreement with you. It is not a given that any file-sharer is in breach of such an agreement: even if they are uploading, and even if the subject of that copying is something you might have wished to profit from, and even if you claim that people “should know better than to share.” No, sharing is a normal past-time. What's more, the Internet exists for copying; sharing and communication is only going to increase. The very first uploader might, possibly, maybe, be in breach of an agreement with you if there actually was such an explicit agreement that actually hit the nail on the head to forbid it, offering you recourse, but all other sharing is normal and socially valuable behavior that you as a “Profiteer” (as opposed to “Pirate”) are expected to anticipate. That's not meant to be insulting, just true. Not every shot goes in the basket, but that doesn't mean someone is cheating. In other words: most people view private copying (for example, bittorrent) as reasonable use of their own resources and what you might call a right.

The concept of “copyright as default” is what forces everyone's back against the wall. This concept is currently still recognized by law, but it is not recognized by society. It is an example where saying a thing doesn't make it so. It is being used as an excuse to ignore irrefutable risk. The fact is people do not believe in privacy and physical security more, and there is no middle ground because creators and consumers are the same group. Everyone knows that great artist steal... How many people have remixed Suzanne Vega's song, 'Tom's Diner'? How many people have watched a movie on a friends couch without a license? How many people have recorded songs off the radio? How many people trade files in person out of interest with their friends? How many people have merely given a book away after reading it, rather than burning it, and thereby decreased the author's earning potential? Pretty much everyone, and that is not going to stop by decree. At least, not without obliterating privacy and personal property rights. I used to laugh at that idea, but it feels like it might actually be on the table today... No, the desire to preserve non-commercial copyright infringement is the problem. Society is simply revolting against “copyright as default,” and as such the Internet is just another market risk to be aware of. If someone is selling your work, mind you, you certainly have my ear and I will support you in seeking retro-active damages or forward-looking remuneration.
December 09, 2012

Grump said:

@Trevor... typo
"The fact is people do not believe in privacy and physical security more"

should be

"The fact is people believe in privacy and physical security more"

It's obviously polarizing issue...
December 09, 2012

maebnoom said:

thanks Grump
for the great post - echoes my beliefs quite well.
December 09, 2012

btrussell said:

@Trevor Marks
"If 100 copies of a lithograph are minted, then traded, resold etc; there are still only 100 copies and the value remains. If that litho is re-copied 100,000 time the value is destroyed."

So you are saying you have no incentive with copyright to release your works? Just a few limited copies? Is that the purpose of copyright?

Another thing I am curious about is: Whether it is 100 copies or 100 000 copies, does that devalue the worth of the original?
December 09, 2012

Devil's Advocate said:

Apples vs. Oranges
"If 100 copies of a lithograph are minted, then traded, resold etc; there are still only 100 copies and the value remains. If that litho is re-copied 100,000 time the value is destroyed."

@Trevor:

What you've said above only outlines the age-old model of "artificially created scarcity", which attempts to milk the most money from the distribution of PHYSICAL copies by controlling and limiting the amount of copies produced, thus supposedly inflating the "value" of each copy.

1) Such a model simply cannot be applied to the DIGITAL world, and cannot be used in any "analogy" that attempts to illustrate any reasoning for controlling digital copies.

2) Even in the physical model in which this applied to, the idea that the original became increasingly devalued as the amount of copies increased has always been a red herring. It is only when the distributor can successfully make the public believe there's value in these "limited" copies that maximum prices can be established.

3) The only way this model can even work is when the ORIGINAL is absolutely needed to create a copy.
December 09, 2012

Trevor Marks said:

Grist for the Mill
For those arguing that the studios are bungling the Pr war - http://copyrightenforcement.ca...penalties/ - $1.5M for sharing 10 movies.

@grump and @devilsadvocate
It may be the old paradigm. It may be an outdated paradigm. There are surely new solutions. No matter, what remains is the requisite for fair compensation. If we follow all of this to it's logical conclusion music, art etc will be the purvey of the dedicated amateur, something engaged in after the bills are paid and kids are put to sleep.

That may be good,that may be bad ... it's not for me to say.
If however, we wish to compensate our artists we have to adhere to some contractual framework. If I get paid once, so be it, this is what writers who sell global rights do all the time. My question is how do you determine the value of that "once" if not by the some form of measured consumption. Or perhaps there's a donate button attached to each work, although that sounds like charity and I'd rather not have anything to do with it. Maybe the state writes me cheque every year? Or maybe I find a patron ...

The whole discussion, for me anyhow, comes back to the same thing ... creative works have a value. Consumers and creators are free to enter into any arrangement they like as how to measure that value ... they are not free however to unilaterally usurp or destroy that value.

Nobody here is arguing that a civil society does not require social contracts. Or that in this case, those contracts are anything but broken, the reasons for which are probably pretty clearly articulated in the link I've attached above. It's not that which needs argued; it's a given. It's the former, the apparent wholesale entitlement to the talent and resources of our artists and creators, that I'd hope would be addressed ... and as a point
December 10, 2012

Trevor Marks said:

@btrussel
On the contrary, without copyright I have no incentive to release any copies what-so-ever ... the entire value would reside in the original piece/run and would need to be costed accordingly ... far from it for me to hold the candle for copyright apologists but I'd maintain that should this be the case we'd be living in a world with far less access to, and far fewer, creative works.
December 10, 2012

Crockett said:

...
Trevor, as much as I appreciate the 'libertarians', the bottom line as you say is paying the bills, and for that you need to be paid. I found your thoughts on alternative funding to be interesting, especially the one about patrons. On that note I had my own idea even before the crowd funding craze took off.

"Kickstarter" for professional TV. A site could be set up with trailers for proposed shows. A season cost would be established and people would make pledge commitments, if that level is reached the season is produced and the pledges charged.

If this was distributed over internet, DVD or other means there would be no need for Cable. If a streaming means was used, costs for the shows could be augmented by advertising or not. With no cable bill, there would be +/- $1000 per household to go towards pledges.

Just a thought,
December 10, 2012

Crockett said:

...
Also, in reference to your link, I do not think the lobbying/litigation framework is going to be sustainable for much longer, so some outside the box thinking is sorely needed.
December 10, 2012

Trevor Marks said:

@crockett
Writers and artists already use kickstarter to fund books and movies ... what's fascinating is that the model is 400 years old ... writers used the subscription model as early as 1617 ... going by memory here, Paradise Lost was published by this model (500 subscribers if I recall) in 1688 ... thing is, it failed by the 19th century ... somebody with more time than me is going to have to look up why ... T
December 10, 2012

end user said:

...
> Trevor Marks said: @btrussel
On the contrary, without copyright I have no incentive to release any copies what-so-ever ...

Copyright doesn't magically give you world wide distribution, a market or a band of consumers that will want to buy your work. No one here is saying there shouldn't be copyrights, most are saying forget what you knew about copyright before the internet, if you stick to the old ways you're gonna get left behind and waste money legislating your business model.


> Trevor Marks said: I'd maintain that should this be the case we'd be living in a world with far less access to, and far fewer, creative works.

While you might think that, there are people out there that are creating new ideas, distribution models and new markets, they just think out of the box. Not everyone will work but eventually there will be success.

Going back to downloading. I see this no different when going to some record stores that allowed me to pre listen to a cd. If I didn't like it I wouldn't buy it.

Here's an example directory from me. I'm a big fan of The Prodigy, downloaded their Invaders Must Dies album and didn't really like it, so I didn't buy it. Saved me money and that's all that counts.

About a year ago I heard there was some cool sounding recording from an Indian artists Sharanjit Singh - Ten Ragas To A Disco Beat from the 80's which resembled Acid House but long before "know acid house pioneers" started using similar sound. Well I downloaded it first, listened to it and 5 min later I bought it from Boomkat http://boomkat.com/vinyl/28872...disco-beat To me this was worth buying as the works there ahead of their time.

Radio Head released one if their albums In Rainbows with a pay what you want option. Not a fan of Radiohead but I was great seeing a band not treat their fans as criminals (Eh Metallica in the 2000's). I paid $10 for it. http://www.rollingstone.com/mu...s-20081015

One day I heard Louis CK was releasing his show DRM free for $5. Went to his site, paid $5 and me and the wife laughed our asses off that night. Best $5 purchase ever.

So you can sit there and cry all you want that people are downloading your works but copyright still doesn't automatically give you a good product, a market, and a consumer that will actually want your product.

December 10, 2012

end user said:

...
Oh and here's how much Louise CK made from his $5 special https://buy.louisck.net/news/a-statement-from-louis-c-k and some more info on that sale and profits http://money.cnn.com/2011/12/2.../index.htm
December 10, 2012

Trevor Marks said:

@enduser
that's wonderful, you paid ... it's as it should have been ... value given value received :)

as for the rest, I'm platform agnostic, really truly I am, as is almost every artist I've every met ... and, "you can sit there and cry all you want" ... c'mon, really?
December 10, 2012

end user said:

...
Back to the evolve or die topic. I bought two Humble Indie Bundles http://www.humblebundle.com I paid $10 for each one and worth every cent.

Since the games were DRM free I could have easily downloaded them off most of the torrent sites BUT the bundles themselves were such a good deal that there was no way I wasn't going to pay and same for the 10's of thousand that bought the bundles.

Copyright gives you a time limited monopoly to do as you wish with your work it doesn't NOT create a market for you, it does NOT give you customers, it does NOT give people morals where they wont abuse copyrights and take your works for free. You can sit there and keep dreaming of the times before the internet where copying was harder or you can adjust YOUR business plan/model, innovate and go forward. The cat is out of the bag and the social attitude towards music and movies has changes so much that you will not control it especially with the generation of kids who where born as the internet hit its commercial peek.

Evole or die...

Trevor Marks how about a link to your works?
December 10, 2012

Crockett said:

...
@Trevor "Writers and artists already use Kickstarter to fund books and movies"

Yes, I quite realize that. I was proposing though to operate it it on a larger scale so that it would actually supplant network television rather than just augment it. Like most advancements, what is "outside-the-box" today will quite likely be the norm in the not too distant future.
December 10, 2012

Anonymous said:

File bits and leachers only question
It seems to me that sharing only fragments of a file does not constitute the sharing of an entire file. The service harvesting IP addresses of the swarm members (ie: that infamous Montreal firm) would have to receive an entire file from the defendant in order to show a file was actually shared wouldn’t they? The U.S. cases involving music sharing (ie: Jammy Thomas) from services such as Napster made it possible to download an entire music file form one person. I don’t know if its possible for a bittorrent user (ie: the IP harvester) to specify that a torrent client obtain only file fragments from one sender in order to PROVE that the defendant shared an entire file with them.

Put another way, at best they can prove that fragments were shared. And I doubt they can even show what fragments were shared. If I took a book, ripped its 500 pages into 10,000 pieces and randomly distributed them around and, say 57 pages were harvested by the IP harvester, is that a copyright violation? Was it proven that even one file was shared with anyone?

One other question, I wonder whether leachers only can be found liable. Most PC-based torrent clients don't permit leaching only. But at least one Mac bittorrent client (cough - Transmission - cough) does. If a person is leaching only, the IP harvester can't prove they were uploading anything. At best they can show that fragments were downloaded from the IP harvester and not the entire file. I'm wondering whether some kind of 'entrappment' defence could be used since the IP harvestor would, by definition, have to be feeding out the copied files to the defendant in order to prove copying.
December 11, 2012

Lou C. said:

So much for infringement limits

http://torrentfreak.com/canadian-isp-prepares-for-unprecedented-bittorrent-troll-assault-121211/
December 11, 2012

Grump said:

@Trevor
You said: "Consumers and creators are free to enter into any arrangement they like as how to measure that value ... they are not free however to unilaterally usurp or destroy that value."

I disagree with "unilaterally" since it's almost everyone's (society's) normal behavior, and again, I disagree with "usurp or destroy that value" since you retain all your material freedoms and rights as an author and individual (and your only basis for value is social agreement, which in this case is defined entirely by everyone's behavior).

You said: "My question is how do you determine the value of that 'once' if not by the some form of measured consumption."

I said (earlier up): "Artists are back to busking. It's not any worse economically than your local waitress, with the benefit of being able to reach the whole world. Good people still win, popular artists can still get rich, and happy amateurs can still thrive, assuming we can all keep copying."

Case in point: http://www.techdirt.com/blog/c...tyle.shtml

IMHO, people are justified in normally copying and sharing files because 1) they are within their physical property rights to do so, 2) they are not involved in an agreement with you to prevent it, 3) sharing has inherent social value, and 4) the social harm would be exceedingly large if people were to simply stop or were forced to stop. You have said this rationalization ignores some "essential truth." My claim is that sharing is an "essential truth."

In the words of grandmothers and librarians alike: "sharing is caring." There is simply no reason to restrict the distribution of a good idea.

I don't think Wikipedia, a non-profit for example, should have to sto spend any time worrying about infringing copyright. I also don't like the idea of monopolies controlling life-saving information because it's patented. Similarly, I think WikiLeaks and similar anti-corruption/transparency movements are a clear social win. While copyright infringement is probably the least of their concerns, it could still be used to try to silence projects like them.

More generally, I believe everyone deserves access to vital information (factual books, research, regulations, ...) and inspiration (fictional books, movies, music, and visual art, ...) in order to live the highest-achieving life possible. We can each see only as far as our eyes allow; we all deserve to be enlightened and uplifted, whether it's out of an neurological depression, an oppressive physical situation, or our own lack of knowledge. We have schools and libraries and social programs to increase access for these purposes but we still haven't recognized the tremendous value of the Internet... We can only do our best as individuals and groups if we can fully realize ourselves personally, and remove obstacles to communicating and acting as a group. In other words, we want the most sharing possible. The Internet needs to be a safe place for sharing again.

If libraries are a cultural high-water mark, well...

http://falkvinge.net/2012/12/07/the-pirate-bay-is-the-worlds-most-efficient-public-library/
December 11, 2012

Grump said:

@Trevor
That said, I can also rationalize tipping my waitress and giving to charities. You have said you don't like the idea of charity, but I would suggest that artists have always been in this boat. I can't think of a clearer example than "end user"'s statements about trying before buying. You can't "return" art, so trying (consumption before payment) is the necessary order. Only superstars and copyright conglomerates have the money in the bank and name-brand cache to say "pay me in advance for this experience" without facing the reality that most people would laugh at that approach. Art is inseparable from begging, because art itself is speculative. People only spend time and money on art when they have a surplus. In short, art is lived first and loved second.

That's why conglomerates are suing and collectives are lobbying desperately. It has less to do with copyright or morality and more to do with the fact that their weight-class advantage is disappearing. Copyright is just a convenient banner for them in this fight. For everyone else, free copies have always been the best way to stimulate patronage revenue. For the rest of the world this is a very good thing (more people have a chance to be "artists," suggesting the opposite of your "far less access to, and far fewer, creative works" assessment).

The current approach to copyright attempts to promote "art" (the intangible, immaterial "copy", pattern, or meaning, not some physical artifact that embodies it) into a tangible asset with an intrinsic a priori value when it is not. The potential for value is not the same as intrinsic value. Only physical objects can have intrinsic value (for example, though mechanical uses). Thirty years ago this less obvious, but it's like going off the gold standard. (USA to the World: "Guess what guys, remember all that gold we owed you? We're keeping it...") If you happen to remember a time or place where copying was a minor risk then a world with easy copying seems like robbery, but it's not, it's just a new market reality. One that's old enough to buy beer, actually.

At the end of the day, we're still in one piece and are just as in control of our time, energy, and property as ever. The thing we thought we could control (people's private copying), we can't, and the moral argument against it doesn't work because asking people to stop sharing is like asking them to stop breathing: sharing knowledge and enjoyment is a good thing for them in it's own right. Again, you'd have to take a good chunk of people's democratic rights away to stop people from breathing and that's not the right road to take. Let's get back on the "Information Superhighway."
December 11, 2012

scott said:

myself
guess we will shortly see how sincere the Harper and his people are. Should be an interesting episode in Canadian history
December 11, 2012

Common Sense said:

...
Ummm. Your honor, someone has illegally accessed my wireless router which belongs to Rogers. I just discovered it and recently contacted Rogers to help me password protect my wireless LAN. I am the victim of foul play here. How can I be liable for the actions of others that I have no knowledge of?

I'd be happy to entertain lawsuits if you can provide evidence that the illegal file sharing occurred from one of my own computers.
December 11, 2012

hawk62 said:

...
if i was being sued for copyright infringement,i'd ask for details about ip addresses from parliament who reportedly downloaded illegal content.
December 12, 2012

Ticket said:

...
When the LP business was terminated without notice I was so pissed off at the recording industry that I didn`t move to CDs for 10 years. So I don`t fall into the try it and buy it camp. If all we had were still CDs, even though I use them, I would not be buying more than a few a year. I know for a fact that if I downloaded the total catalog of music produced to date, it would not cost the record industry a cent.

So while some people claim to try and buy, I am OK with radio, and I know right well that if push comes to shove they aren`t getting my money. I think a lot of people are like that, whether for getting screwed all those years over albums with one good song, etc... or because they just don`t have the money to spend.

Artist will get paid to some extent. Far more now that before. The real issue is whether the media cartels continue to be profitable, and whether a few artists ascend to the level of mega acts. Those profits are not guaranteed, and might or might not survive the world in which software eats all. I could care less.
December 12, 2012

end user said:

...
Trevor Marks can you link us to your works, website or bio, please. Id' like to see your works.
December 12, 2012

Riley August said:

Simpler Solution
I listen to independent, freely available music. I watch youtube almost exclusively - and good luck trying to hit a consumer for illegal content distributed by Google. They've already caused several major stirs countersuing companies and even governments (Sweden, USA) for misuse, misrepresentation, invasion of privacy, and even industrial espionage.

Also, I work from home. My company has already said if it sees so much as a hint of any of these snooping firms on our traffic, we're going after them for industrial espionage.

Also remember that criminal invasion of privacy is still a thing. I think it needs to be a bigger thing in this country.
December 13, 2012

Moby said:

End User
@end user
Unfortunately this is not a scare tactic to collect stats. one of my coworkers recieved a letter from TekSavvy claiming that HGN is sueing him. He was recommended to get a lawyer. This is sad considering that he only reviews movies before he buys them for his kids.
December 14, 2012

btrussell said:

@Moby
http://www.ic.gc.ca/app/opic-c...o?lang=eng

Check to see if the title is registered. If it isn't, tell them to pound sand.
December 14, 2012

sam said:

bill c 11
some people download but do not use it because it turns out to be a junk!
December 14, 2012

ChloeBrown22 said:

...
til I saw the check ov $4803, I have faith ...that...my brother could truly making money parttime from their computer.. there neighbour has done this less than nineteen months and resantly cleard the debts on their mini mansion and purchased a new Jaguar XJ. I went here, Great60.comCHECK IT OUT
December 15, 2012

end user said:

...
Trevor Marks must have gone broke from being pirated too much and had his internet connection disconnected.
December 15, 2012

end user said:

...
Hey Trevor is this you? http://webcache.googleusercont...clnk&gl=ca
December 17, 2012

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Printer Montreal
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March 12, 2013

Forgali Furniture Canada said:

Furniture
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March 14, 2013

Kim Lee said:

...
I really feel the copyright laws exist for a good reason, but the commercial entities exploit the laws unfairly.
Anyway, to avoid being a part of the war, movie fans can simply rent Blu Ray DVD movies from sites such as MyChoicevideo , it's all perfectly legit.
August 18, 2013

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Web Hook Automotive Internet Marketing.
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August 31, 2013

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