$125,000 in fines for D&D pirates? Help me do the math...

[Dannyalcatraz]

I can't speak to most jurisdictions, but its pretty common in the South that adverse possession be "open and notorious"- that you're holding the land in opposition to someone else's claim with no corresponding claim that you have any right to it yourself other than by naked possession- IOW, you're on the property.

 

[Voadam]

Statements like this are one reason why I took that self imposed vow of non-participation- it was always brought up, regardless of evidence, usually by the same posters. Which is why, after this response, I'll go back to that vow.

Copyright infringement is a form of theft by definition. As I've posted numerous times on this website in countless other piracy threads, the definition of theft in Black's Law Dictionary includes this language:



One of the primary benefits of IP- like any form of property- is the ability to control who can obtain it and at what price. By infringing on a copyright, you're "exerting unauthorized control" over the IP holder's property since you're not meeting the IP holder's conditions for transfer of the right to use it (IOW, you didn't pay him). You are "taking property without the owner's consent."

With real property you have the right to keep others off, let them on, even charge them for access. If somebody enters your real property against your wishes they are trespassing.

So trespassing is technically theft just as much as infringing is.

 

[Voadam]

Out of interest, if copyright infringement is theft, why is the adverse possession of a piece of land not theft?

Adverse possession is commonly called "legal theft". You take someone else's property and make it your own by claiming and possessing it. Details vary for specific requirements, how long, what kind of property, and defenses against it.

 

[Storm Raven]

Lawyers charge between $125-$250 an hour right? So wouldn't cost of good + legal fees be pretty painful for an average american? That would be an effective detterent. Also expensive enough to make piracy unprofitable.

Well, yes and no. A defendant can always reprsent themselves pro se (unless they are a coporation), so the possibility of legal fees isn't certain. Generally, when establishing penalties, (at least in the U.S.) attorney's fees only "count" if they are being shifted from the winner to the loser.

Does this mean that one could seed 1 time to a couple leeches, then stop seeding, and be liable for 2 infringements? Then if each leech became a seeder, they'd be liable for any downloads that followed the initial 2?

Pretty much.

 

[Storm Raven]

No, you don't. That is not an element in most jurisdictions.

It is certainly a traditional common law element. Some juridsictions may have changed this, but the classic version of adverse possession is:

Adverse possession is the taking of title to real estate by possessing it for a certain period of time. Title means ownership of real estate. The person claiming title to real estate by adverse possession must have actual possession of it that is open, notorious, exclusive and adverse to the claims of other persons to the title. By its very nature, a claim of adverse possession is hostile to the claims of other persons. It cannot be hidden but must be open and notorious in order to put other persons on notice as to one’s claim for possession of the real estate.

A claim to title by adverse possession often must be made under color of title. Color of title means a claim to title by way of a fact which, although on its face appears to support a person’s claim to title, is in some way defective and falls short of actually establishing title to the real estate. An example of a claim made under color of title would be a deed whose execution was defective or is in question. Another example is a claim arising from another person’s Last Will and Testament. Yet another common example is where two or more persons have received separate deeds to the same parcel of real estate.

Black’s Law Dictionary, Fifth Edition.

Some jurisdicions allow adverse possession to run without a colorable claim, but lengthen the required period of time, usually it seems like they require double the time.

 

[Voadam]

. . . One could then pirate and only pay out the retail value of the book if you are caught. That makes piracy a legally profitable endeavor insofar as the damages would be limited to what you would have paid, and then discounted by the chance you would get caught.

Legally profitable? I don't think anybody gets paid to upload files. Bootleggers profit, not file sharers.

Although it seems you mean the downloaders who are not part of this suit.

I'm not sure what the penalties are for downloading as opposed to the copying and distribution that went on here.

 

[TheYeti1775]

Jury Nullification

 

[Storm Raven]

Legally profitable? I don't think anybody gets paid to upload files. Bootleggers profit, not file sharers.

Well, in this case no one did. But, for example, if the uploader got paid some amount per each download, then if damages were limited to the retail value of the uploaded product, then once you discount for the expected chance of getting caught, illegal uploads in this manner could be profitable.

Although it seems you mean the downloaders who are not part of this suit.

In this case, I meant the uploader, as it seemed that the question was whether the damages should be limited to their instance of uploading and then to the cost of the product they uploaded.

I'm not sure what the penalties are for downloading as opposed to the copying and distribution that went on here.

Potentially, the penalties would be the same - statutory damages for each infringing action. The difference is that it would probably not be worth WotC's time to go after each downloader.

 

[Voadam]

The odds of being struck by lightning are 576,000 to 1. The odds of being tagged with a judgment for uploading copyrighted materials appears to be considerably less favorable.

Based on the lawsuits we know about I'd say it depends.

Uploading a watermarked WotC file from rpgnow with hidden information identifying the unique purchaser and his billing location? They have gotten a few uploaders and shown they can and will. Quite possibly riskier than lightning strike based on estimated past numbers and ease of doing so.

Scanned in ones? I've not heard of anyone being caught and tagged with a judgment, by WotC or otherwise and I have heard of people being struck by lightning all over the world, though there is the significant factor of how many upload versus how many are at risk of strikes. I have not been watching out for other infringement cases and do not know if anything similar has been done before for other scanned books. Actual probability would depend on how WotC could track down those types of uploads.

 

[Storm Raven]

Jury Nullification

That only really works in criminal cases. The plaintiff in a civil case can appeal an adverse decision (unlike the government in a criminal case), and contest the decision on the basis that no rational jury could come to that conclusion while following the law.