1/4 million dollar fine for bootlegging d+d books?

[Ashrem Bayle]

Yeah well welcome to RIAA's wet dream. Along with the multi-national media corps running things...Now people can understand why some times I wish for Armaggedon. At least then, there would be a few less lawyers, CEOs, and buracrats around.

Agreed.... Boy, that Y2K thing sure was a let down.

I mean, really, it would be worth a few years of mass chaos if it would put things back into perspective.

I've got a rifle, some ammo, dice and my roleplaying books. Truely, I am ready for a new Dark Age.

 

[WinnipegDragon]

All I can say, is that this is proof that smart gamers move to Canada

 

[The Sigil]

Plus, most new criminal laws cause something that wasn't a crime to become a crime. This is called "passing a law", and constitutionally is no different than the Civil Rights act, or the environmental protection act. Both curtailed the activiites of some to aid others.

The DMCA did not change what the average Amercan could do with the things that they buy--it adjusted the law to specifically enforce mechanisms which attempt to undo the Napsteresque massive infringement potential that the internet was and is. Is it too harsh, and is copyright's term too long? Probably. But a massive anonymous free-for-all of unrestrained copyright infringment isn't a better situation.

Not exactly.

Remember the Eldredge v. Ashcroft case... where it was explicitly stated by the SCOTUS that "Fair Use" was the main counterbalance to copyright extension.

The concept of "Fair Use" was originally borne out of the First Amendment - the right to Freedom of Speech. The logic was, of course, that a small amount of copyright infringement must of necessity take place in order for me to explain, review, or meaningfully discuss a copyrighted work.

However, the DMCA significantly changed what the average American could do with what they bought.

Prior to the DMCA, you were allowed to make backup copies of your CDs, software, and anything else under "Fair Use." If that meant circumventing some sort of copy-protection or encryption scheme, that was also fine... because you were exercising your right of Fair Use.

However, with the advent of the DMCA, my right to "Fair Use" is eroded further... because an attempt to circumvent copy protection on a CD that *I* have purchased so that *I* can make an archive copy for my own personal use (which has long been held to fall under Fair Use) has been criminalized.

Again, let me repeat that. In 1998, I could buy a copy-protected CD, circumvent the copy protection, and use my CD burner to make a copy for my own private use. This was all legal.

In 2003, doing the above is illegal thanks to the DMCA. That means that my right to do what I want with my stuff has in very fact been changed. The underlying premise for why I could do it in 1998 was "Fair Use" - which has NOT been repealed. However, the DMCA allows companies to effectively block that application of fair use by using copy protection. It may be an unintended consequence, but I doubt it. A Senator, Zoe somethingorother introduced an amendment to the DMCA which amends it to say that circumventing copy protection, when done for the explicit purpose of exercising Fair Use rights, shall not be considered a violation of the DMCA and that publishing such a circumvention system shall not be considered illegal if no other circumvention system is made available to any legitimate owner of a CD/software/etc. by the person who does the copy protecting. The RIAA and MPAA are fighting tooth and nail against this amendment. If all it does is restore "fair use," why are the *AAs against it? Answer: Because they do not believe in "Fair Use."

I should also note that one of the reasons RPGNow PDF buyers want non-password-protected PDFs is that in the US, it's illegal to remove the password protection... thanks to the DMCA.

Heck, it's illegal to even talk about how to do so according to the DMCA (though they lost the Elcomsoft/Sklyarov case) - even if you're trying to complain, "you say your software is secure and it's not - here's why." That can land you in jail. Apparently "false/misleading advertising" ("this is secure") is far more desirable than calling someone on that advertising ("no it's not because..."). Ridiculous. I don't know about you, but I feel that's a big crimp on my Freedom of Speech.

Thus, the DMCA unbalances copyright by removing de jure (obviously not de facto, but we are examining legalities, not practicalities here) the "Fair Use" counterweight to copyright laws. Further, it is in fact a direct assault on my First Amendment constitutional rights (as Fair Use is a subset of Freedom of Speech, which is guaranteed in the First Amendment).

This has turned political, though, and I expect this thread will not last much longer.

--The Sigil

 

[totoro]

So you're saying that "passing a law" means, well, passing a law. Thank you so much for the clarification.

Notably, I mentioned that the new law (that was passed) was a shame, not that it was unconstitutional or that I didn't understand how it became illegal to share certain copyrighted content. I am perfectly aware both of the motivation and of the entire process of bill becoming law for selective enforcement by our executive branch. I watched TV when I was a kid, after all. ("I'm a bill, just a bill...")

The massive free sharing of copyright information isn't better for... You didn't finish your sentence. It is assumed that corporations will be unable to make money without being able to get the government to criminally prosecute people who share copyrighted information that they buy. I find that laughable. It's just as laughable as McDonalds turning to the DMA to punish Mr. McDonald as a cybersquatter for using www.mcdonald.com instead of buying the damn URL from him. It is simply easier for corporations to encourage the criminalization of certain activities so that they can be more cost-effective in their profit taking. Is that legal? Of course. It's the law.

Actually, there has been a level of criminal copyright infringement for quite some time. It's just been lowered in the very recent past.

Plus, most new criminal laws cause something that wasn't a crime to become a crime. This is called "passing a law", and constitutionally is no different than the Civil Rights act, or the environmental protection act. Both curtailed the activiites of some to aid others.

The DMCA did not change what the average Amercan could do with the things that they buy--it adjusted the law to specifically enforce mechanisms which attempt to undo the Napsteresque massive infringement potential that the internet was and is. Is it too harsh, and is copyright's term too long? Probably. But a massive anonymous free-for-all of unrestrained copyright infringment isn't a better situation.

(This is the part where I bring up the unfinished song bit from Napser, but I'm sure everyone already knows that, so I won't elaborate.)

 

[Voadam]

Punishment should be punishment, above and beyond restitution of the wrongs. I.e., if you defaud me for a thousand dollars, and I win in court, your tort-liabiltiy to me will be my thousand dollars, plus some number (possibly several thousand dollars) of punative damages.

Plus, every time we punish someone we make an example of them. When each and every convicted prisoner goes to jail, a message is being sent that our laws will be enforced.

(And, IIRC, cruel government behavior persisted post-enlightenment.)

I think you are missing the point. There is still an element of proportionality to justice here. Take Aristotle's view of justice, worse injustices should be punished more than lesser injustices.

So are the punishments here excessive and out of proportion to the wrong done? That is the justice question.

 

[The Sigil]

Just FYI, if anyone wishes to take up with any points I have made, please do so off-thread. I am not interested in continuing political debate on ENWorld, a non-political site. I will not post to this thread again.

--The Sigil

 

[Voadam]

And define proportional. If the deterrence is the goal of the law, then high penalties can easily be construed as proportional because they deter the crime. Its a public policy question, not a legal one. The law would only be disproportional if it were based upon arbitrary, irrational categories such as race, religion, or morality, or if its enforcement neccessitated the violation of an individuals rights. None of these apply here.

You seem to be misusing the term disproportional. A fine can be disproportional even if it serves a deterrent effect. If the deterrent effect outweighs the wrong, then it can reasonably be said to be disproportionate. Substitute life imprisonment for $250K fine and see if that is still just and proportional, it will be a deterrent and not be based upon protected categories.

 

[sithramir]

You know its sad that when you take a look at America "outside of the box" you see that its going totally down hill in the wrong direction. A lot of other countries are at least going in a semi right direction comparitively. I'm not going into specifcs on what *I* consider the right direction or not, but I will comment on the fact that laws like this that are passed just because rich people have too much influence on the law-makers is crazy. I'm rich and I should stay rich and get richer while everyone gets poorer no matter what. I shouldn't have to work harder for it because since i've reached a certain point of "power" I should now be able cheat everyone else.

Its funny that a lot of our "leaders" are the evil guys I would kill as a character in D&D without even a thought of remorse.

I live in America and love it but I can't wait for it to take a fall or somehow be "put in its place" because we are now just a bunch of rich kids whining because we didn't get our way but because we're rich are still able to go ut and "do what we want" and put a little money where its needed to make sure what we did was "acceptable".

 

[Voadam]

You are misreading the 8th. 'Excessive' refers to arbitrary, i.e. there being no compelling public interest. Precedence notes that there is a public interest in intellectual property.

And you still don't get this; you are punishing someone not based upon someone's actions, but based on what will deter individuals. It is very much unlikely that that individual will get caught on any INDIVIDUAL download; future and past offences don't factor in. This has nothing to do with what others are doing.

Even with a compelling public interest of deterrence fines can be excessive.

 

[totoro]

While I agree with the sentiment, our courts have stated in no uncertain terms the minor crimes that are hard to enforce can be punished heavily. The case I specifically remember reading had to do with a multiple decade prison term for a relatively minor marijuana violation. (By "relatively minor", I mean from a common sense point of view, not the law.) The judge stated that the legislators can make penalties for possession as high as they feel is necessary to get the point across to other pot smokers. The formula:

[penalty deserved] * [difficulty of enforcement] * d20 = actual penalty

(d20 added because it seems like there is also a random element)

That is why possessing a certain amount of LSD is punished more than possessing a nuclear weapon. (No, really.)

I think you are missing the point. There is still an element of proportionality to justice here. Take Aristotle's view of justice, worse injustices should be punished more than lesser injustices.

So are the punishments here excessive and out of proportion to the wrong done? That is the justice question.