So long and thanks for all the fish

[huckster]

about 18 months ago i happened to be staying in a hotel where there was a big law enforcement conference going on. this was a rather exclusive conference based on internet law enforcement for the entire nation.

the three gentlemen i struck up conversation with kept me up until after midnight discussing what they were doing, and what they thought about their efforts.

these guys were the 'computer gurus' who were charged with monitoring and developing ways to monitor the internet usage. all three voiced concerns about how the law was applied, and what they considered to be 'potential infringements' on individual rights.

they also said they wanted to catch the true 'perverts', but had seen cases where individuals were prosecuted after an 'illegal' image had popped up while surfing the net.

at the time this did not particularly resonate, but they also talked about the new push to control the information shared on the net. they discussed 'free software', 'music sharing', and net distribution of information. they all thought that examples were going to be made in the interest of 'big business', and were frightened and disturbed about the direction government was headed in regards to the internet. the kicker was that they were all disgusted that the push was on to 'prosecute' people who had done less than they themselves had, and many times without warning of the illegality of their actions, and many times without knowledge that what they were doing was in fact illegal.

'pay as you play' may be the american way, but you cant tell me that our judicial system isnt random and arbitrary. the gentlemen i met that night certainly thought so, and they are/were part of that judicial system.

if a person was given notice that they were to 'cease and desist', that might well deter a majority of violations such as Robin's. In this case the system was apparently looking for an example from which to set a precedent.

those who are looking to judge this situation harshly should supply more information. im open to being swayed in my opinions. i just hope everyone tries to look at this from all angles. that is why ive contributed the above.

 

[DocL]

Originally posted by nsxtasy:
...
Suppose someone broke into your home, and held you and your wife hostage at gunpoint. Let's say you got into a scuffle with him and the gun went off, killing the intruder. If you were then charged with and convicted of first degree murder, and given the death penalty, would you still be saying, "I don't know why people complain when someone is found guilty (or pleads guilty) to a crime and is sentenced according to the law"? Would you claim that the million dollars spent on prosecuting you would be the best use of those taxpayer dollars? Food for thought...

Actually, if you kill an intruder that was posing a threat to your, or anyone's life, in your residence, you would not be charged with manslaughter/murder. Now, if you did not hold a permit to carry a handgun, then you would face charges of illegally having a weapon, but still no murder charges.

I had this same discussion with a friend who is a detective, and he basically said "dead people tell no tales". So, if you are ever presented with the above situation: 1) Shoot to kill, and 2) either have a lisence to carry a concealled weapon, or use a shotgun.

Anyone want to risk entering my house??

 

[Lud]

Originally posted by erobbins:
However, one can presume that if you are licensed to use the copyrighted work, then you have access to it other than through something like Morpheus, Kazaa, etc.

You sound like the PR branch of the RIAA... Try going to a little website called www.mp3.com where you can download thousands of songs PERFECTLY LEGALLY. The artists on that site WANT you to download their songs. There are many other similar sites. If I want a bunch of songs posted on mp3.com from the same artist, it is probably more convenient for me to download them via Kazaa or Morpheus. They are free and legal for me to download anyway, I am just using technology to make my life easier. Technology is not criminal, downloading these songs is not criminal, and so I will use legal technology to accomplish my legal goal as I see fit.

Further, there are many other files shared via Kazaa and Morpheus and etc. For example many historical speeches which are now public domain are available. There are also free spoken word, poetry, and even NSX sound clips available in MP3 format.

Furthermore, purchasing a license to see/hear/read the content of a particular work does not necessarily permit you to see/hear/read the same work through a different medium.

In fact, The Digital Millenium Copyright Act has several provisions which prohibit the transfer of a work from one media to another, or products/services which are designed to accomplish this.

You can say it is illegal due to the draconian DMCA, but I maintain that it is legal by court precident under both the Sony Betamax case which established that "time shifting" was covered under fair use, and the Diamond Multimedia Rio case which further affirmed that fair use also included "space shifting" (aka "format shifting" from CD audio to MP3).

As for using Kazaa or Morpheus or similar programs, since I contend that it is people's RIGHT to format shift a work they have ALREADY PAID a royalty on, they should be allowed to download it if they want to instead of having to spend the time to convert themselves. The same way I have the right to scan books and magazines I own into digital format so I can read them on my computer during a trip if I so choose without having to lug around the printed versions of the content.

This is obviously a bit of a slippery slope because with existing technology that also makes it easy to download works that have not been paid for, but if the RIAA would focus the same time and energy on solving that problem instead of trying to turn everyone in the country into a criminal, I think both sides would be much happier.

Example: I buy a CD or DVD published by Sony at the store. Sony CDs have copy protection on them, as do all DVDs. I choose to "RIP" tracks or the video to an MP3 or MPEG file. I have just broken the law, as did the authors/publishers of the application I used to do it with.

Example: A researcher discusses the technology behind digital copy protection. He is arrested. In the opinion of many, that is a violation of his constitutional rights. The Supreme Court has yet to rule on many aspects of the DMCA.

The is an ever-evolving legal gray area where the lines are being re-drawn on a monthly basis. And yes, I AM working to help the cause of consumer rights, thanks for your concern.

Maybe some day the RIAA will wake up and realize Technology is not criminal. Attempts to criminalize MP3 players are as absurd as making it illegal to have a car that can go faster than the speed limit. Criminals are criminal, and THEY should be pursued while people who want to LEGALLY use the music they have PAID FOR in whatever format most convenient for them have the right to do so. But they are so backwards and scared I have my doubts, and they have so much money to throw at Congress that it's almost a lost cause to fight there, so I am counting on the courts.

The bottom line is that technology doesn't go away. You can't put the genie back into the bottle. The RIAA and others need to learn to adapt to the new technology or they WILL die - not by piracy, but by whoever figures out the right business model and puts the RIAA companies out of business.

[This message has been edited by Lud (edited 04 September 2002).]

 

[nsxtasy]

Originally posted by Dr.Lane:
Actually, if you kill an intruder that was posing a threat to your, or anyone's life, in your residence, you would not be charged with manslaughter/murder.

Not typically, no. But you could be, by an overzealous prosecutor who was after publicity to make an example. And that's exactly my point! If you were the target of such a situation, you might be paying more attention to what is usually considered appropriate to a given situation, instead of mindlessly running around crying, "Convict! Convict! Convict!" as some people here seem to be doing.

[This message has been edited by nsxtasy (edited 04 September 2002).]

 

[DocL]

So, has anyone heard from Robr since his incarceration??

 

[Jimbo]

"...mindlessly..."???

LOL!!!

You're too much, Ken.

Convict!!!



------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[nsxtasy]

I'm glad you're amused, Jimbo. It's pretty clear that some people here aren't giving serious thought to a complicated situation in which an individual's life is being destroyed for questionable reasons.

 

[erobbins]

Originally posted by nsxtasy:
And, for a particular offense, there is usually latitude within the law for applying a range of punishment; a sentence can be unusually harsh, or fairly typical, or unusually lenient.

You're aboslutely correct. But there are also the concepts of specific deterrence and general deterrence which are an important part of making our legal system work.

General deterrence is basically the concept that because a particular crime carries the potential for a particular sentence, that people are deterred from engaging in said criminal behavior because of the sentence which could be imposed. From time to time, it is important for the courts to establish some precedence and show the public its willingness to hand down sentences in order to deter people from comitting crimes. Criminals do make decisions on whether they will commit a crime based on the associated potential penalty. If the penalties for speeding were the same as DUI/DWI, I think we would see people driving a LOT slower.

Another example: in Manhattan, I can go to Washington Square park and openly smoke marijuana. If I am caught, I will receive what is essentially an appearance summons, much like a traffic ticket. However, across the river in Jersey City, I will be arrested, detained, and prosecuted to the fullest extent of the law. Yes - New York City's decriminalization of certain drug laws is out of necessity to allow the limited policing resources to pay attention to more serious crimes, but the effect with respect to general deterrence of crime is evident - people in Jersey City are generally deterred from smoking marijuana in public more than people in Manhattan.

The other concept is specific deterrence. Basically, if the court sentences you to a period of incarceration or probation, the public is reasonably assured that you won't commit any further crimes during the service of said sentence. We see this with the Kevin Mitnick case, among others. If poor little Kevin can't use a computer as part of his sentence, then we are assured that he won't commit further crimes that fit his modus operandi. I don't to get into a debate about the Mitnick case - I'm just illustrating a point.

Back to general deterrence and individual sentences which on their face seem overly harsh... Sometimes this is "getting the book thrown at you" and could be considered unfair, but the law permits the sentence imposed. If we don't like it, we should move to change it. This is not an uncommon thing.

Some time ago, the maximum penalty for commiting rape was the dealth penalty. Overly harsh? I don't personally think so, but the public began realizing that because this penalty was the same as for murder, that many times victims were murdered following the rape. Why? No general deterrence against it (through a harsher sentence than the original crime of rape), and doing so would eliminate the victim as a witness. Legislatures removed rape from the list of capital crimes, which had a positive effect on the reduction in rape/murder cases, yet still provided the desired effect of both general and specific deterrence.

EDR

 

[Jimbo]

I'm always amused by your posts, Ken. You're legendary here.

I also wouldn't characterize people who have different opinions from mine as being "mindless" or assume that anyone else hadn't given this serious thought.

I happen to believe that organized, institutionalized theft of software is a serious crime. I've read each and every link and news post on this topic. And even "Robr" admitted that he knew it was wrong.

I don't believe it's complicated at all. And while I wish Robin the best and hope he's learned his lesson, I also believe that he alone is responsible for his actions.

If there's been any destroying of anyone's life, it's been solely the result of self-inflicted damages.

And...I certainly don't consider myself "mindless" and I have gave this subject "serious thought."

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[erobbins]

Originally posted by Lud:
You sound like the PR branch of the RIAA...

Lud, I actually agree with most of your positions. This discussion began on whether we thought that Robin's sentence was "fair". I am arguing that it is, because the law allows for (and in some cases, mandates) the sentence imposed. This law isn't kept secret. Much like ignorance of the law is not a defense, I don't think people should complain when sentences are handed down which are completely within the guidelines specified by law.

Here's some random thoughts of mine on the other issues:

1. I think it is great that artists and publishers can CHOOSE to distribute their works for free on sites like MP3.COM. I have good friends in the music business who have done this and it gives them exposure not available to them 5+ years ago.

2. Fair use and space shifting are indeed legal. However, this is only if there is no copy protection in place. Copying a video tape with Macrovision protection (using a "stablizing box") to an 8mm tape to view on your camcorder is NOT legal.

3. I openly admit that I have used software given to me by others which I have not purchased. I have also broken other federal and state laws over the years. Let he who hasn't cast the first stone my way. But, there is a BIG difference between what I have done and what Robin was engaged in. However, much like I willingly stop and receive my speeding ticket when I get caught, I would not have had a problem if I were caught, charged and sentenced for any misdemeanor or crime that I have commit over the years (within the statue of limitations, of course). Do the crime, do the time. Period. Take it like a man.

4. Consumer rights NEED to be limited when the interests of the public at large are concerned. Do I have the absolute right to open an adult bookstore next to a church? Do I have the absolute right to open a store that sells drug paraphernalia next to an elementary school? Why not? There are perfectly legitimate uses for water pipes and rolling papers, aren't there? (these are rhetorical questions). What we are seeing with the ups and downs of certain file sharing/swapping services in cyberspace is much like the regulation of certain business and business practices in the physical world. It will take a while to sort out, but in the years to come, we will find a happy medium between the "wild west" which exists now and the "draconian environment" that you think the DMCA will bring.

5. The RIAA is not the enemy. They, along with other industries, are treading into unknown space. Cyberspace is something which was not contemplated when the majority of their publishing and distribution rights contracts were drafted over the last 50+ years. They are simply fighting as hard as they can to protect themselves until these issues can be worked out. Technology moves faster than law, and they are scrambling for a solution. If it were your money and livelihood on the line, you'd be doing the same.

EDR

 

[huckster]

yes, yes. i'm sure we are all familiar with the concept of deterrence. ive had my handful of law courses and my family is chockful of attorneys and judges, so i know all about the four theoretical purposes of punishment in our legal system.

rather than quote legal babble like a dottering old retired judge, why dont we address the real issue?

INTENT; did the defendant intend to inflict harm? did the defendant profit from the alleged 'crime'?

the answer appears to be "NO" in both cases.

some of those posting here seem to epitomize the failings in our legal system. when you state that ignorance of the law is no excuse you are technically correct in our system as it exists, but are irreprehensibly wrong in your application of the law. THIS type of attitude is why we still enforce the death penalty on mentally handicapped individuals who are functioning at or below thirdgrade level.

there are still laws against sodomy in many cities and states throughout the union. Do you believe in upholding these laws? Is this a commonly accepted practice? How would you feel if that law were suddenly applied to you when it has NOT been applied to anyone else? And you were NOT warned that there was suddenly going to be enforcement of this obscure law.

bottomline; there was no profit in the violation, there had not been enforcement of this law, and MOST importantly---there was no warning that this law was suddenly going to be enforced. as robin said, he would have desisted if someone had warned him. maybe he would have, maybe he wouldnt have. one thing is for sure, it would have made the prosecution look like they were pursuing someone who knowingly persisted in violations of the copyright laws at his own peril, rather than like a bunch of legalistic hyenas singling out an easy target in order to make a precedent setting statement.

im personally rather appalled that some of the posters here are so cavalier about this conviction and sentence. To me, this says more about what is wrong with the system than anything else possibly could. "he got what the law allowed so it must be right", and "poor big business is just protecting their interests and their jobs". Maybe so, but you'd better wake up and realize how arbitrary our system is. Apparently we have some attorneys posting, so 'Sorry' if that sad fact is a bitter pill to swallow.

so now you know where i stand on the subject...

 

[Lud]

Eric - Perhaps our disconnect lies in the fact that I was not talking abour Rob's case. I was commenting on the fact that someone incorrectly stated that downloading MP3s is illegal. As for Rob's situation, I suspect he was indeed "made an example of." However, I do not konw the full details of his case so I won't comment any further.

Anyway, perhaps we are not in as much disagreement as I thought from your earlier posts. I do however still strongly believe that all of the following should be legal:

* Technology or research related copy protection schemes

* Time and format shifting and backup copies of ANY audio or video for personal use - I contend is is ILLEGAL to prevent me from making a backup copy, or to adapt the format to my needs as long as I do not distribute it or use it commercially.

* Freedem of speech and press that are not subject to prior restraint as relates to commercial interests


I also strongly disagree that RIAA and similar organizations are not the enemy. I think they are the enemy as a result of their own of fear, uncertainty and doubt rather than true malicious intent, but that does not change the legislation and lawsuits they are initiating and backing. I give no quarter to an organization that has tried to or has made it possible to:

* Block or demonize a useful technology which are in fact ESSENTIAL to being able to exercise full Fair Use rights.

* Block research or discussion of technology related to copy protection, including legitimate journalistic reporting by the press (see Universal City Studios vs. Reimerdes)

* Prevent consumers from making backup copies, time shifting or space shifting content for personal use

* Purposefully degrade the quality of the programming available to consumers in an attempt to prevent duplication, and make it illegal for people to circumvent this to gain the full quality of the original

* Prohibit discussion about technology that is not even related to circumventing it (see Microsoft's DMCA action against Slashdot re: discussion of MS's implementation of Kerberos security)

* Create a climate where people are afraid to publically discuss basic legitimate questions about how to modify something they OWN to better suit their needs (see Tivo Forum Hushes Hacking Discussion, CNET June 11 2001 or Sony threatening an Aibo owner under DMCA that he was not allowed to create custom programs for it, or Sony vs. Connectix Corporation)

* Prevent new forms of already established technology (Real Networks sued Streambox under the DMCA claiming Streambox's time shifting technology was illegal, or Blizzard vs. bnetd where Blizzard sued under DMCA to prevent someone from creating a free open-source Internet gaming connection server)

* Double-dipping on royalty fees and a heavy reporting burden for online streaming from radio stations. Interesting logic to charge twice for the same song, huh? This has forced many college and non-profit stations off the air and will force even more off soon. Again thanks to the DMCA. http://www.rice.edu/cb/sos

* Circumvent established legal procedures for taking action against people suspected of breaking the law (see the current RIAA vs. Verizon action)


[This message has been edited by Lud (edited 04 September 2002).]

 

[Jimbo]

"...did the defendant intend to inflict harm? did the defendant profit from the alleged 'crime'?..."

I truly fail to see what this has to do with the crime.

Did Robr "intend" to inflict harm? Well, he stole someone's property and helped to illegally distribute it. Harm WAS done and whether or not Robr intended to inflict harm, it seems to me to be a secondary issue. Surely he realized that some people that used his services would be able to realize a benefit from not having to pay for something.

As to the issue of profiting from his crime. Again, I see this as a secondary issue.

If someone steals something only to give it away, it doesn't diminish the crime.

As I said before, let's take two thieves. One steals your NSX and sells it to a chop shop and the other steals it in order to give free joy rides to his buddies. In my book, both theives are equally guilty.

Also, there's many ways to profit that don't imply a monetary gain. Some people steal for the thrill, or for the recognition, or for their egos. That is indeed a "gain", although it might not mean a direct financial gain.

This thread simply tells me that there are more people out there who use illegal software than there are software developers.

-Jim

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[nsx1164]

Originally posted by nsxtasy:

2. What Rob did is wrong and should be punished, but the punishment he is receiving is out of proportion to the offense (usually unstated whether this is based on "gut feel" or based on an understanding of typical sentences for other criminal infractions);

4. We hope for the best for Rob in getting through his time in prison (sometimes, but not usually, accompanied by one of the first three opinions outlined here).

The fine line between "justice" and "law" gets tested once more; as has been pointed out, its an evolving process here. Its unfortunate that one of our own has to pay the price.

Rob -- I wish you and your wife the best. It could be worse (i.e., "real" prison in a third-world country)... I hope you keep your spirits up.

 

[erobbins]

Originally posted by Lud:
Eric - Perhaps our disconnect lies in the fact that I was not talking abour Rob's case. I was commenting on the fact that someone incorrectly stated that downloading MP3s is illegal.

There was a disconnect, but my position doesn't change much. If the artist / publisher / rights owner wants to make their work available for download, fine. But, if they do not, I don't think that people should take it upon themselves to make the works available, whether the people downloading it have rights to it or not.

As for Rob's situation, I suspect he was indeed "made an example of." However, I do not konw the full details of his case so I won't comment any further.

I tend to agree. He was made an example of, but he is not complaining about it, which I find honorable. He broke the law, and he is accepting the punishment handed down to him within the bounds of the law.

Anyway, perhaps we are not in as much disagreement as I thought from your earlier posts.

There likely isn't as large a gap in our positions as it may appear. My position is not that people are inherently bad for engaging in prohibited acts, only that they should be prepared to accept the consequences if someone chooses to make an example of them, as may have happened in Robin's case.

I do however still strongly believe that all of the following should be legal:

* Technology or research related copy protection schemes

Reverse engineering, yes. Using wrongly aquired encryption keys (like happened in the Linux DVD player thing), no. Its a fine line, and the DMCA addresses it fairly.

* Time and format shifting and backup copies of ANY audio or video for personal use - I contend is is ILLEGAL to prevent me from making a backup copy, or to adapt the format to my needs as long as I do not distribute it or use it commercially.

I agree. I think the law is bad... copy protection prevents consumers from making archival backups OR transferring content from one medium to another. I think this has a chilling effect on the continuing development of multimedia technologies.

* Freedem of speech and press that are not subject to prior restraint as relates to commercial interests

I actually think that people SHOULD have the absolute right to free speech, including obscenity, indecency and the associated "open up a porn and head shop" examples I gave previously. I am of the opinion that certain constitutional rulings on the first amendment have been too conservative.

I also strongly disagree that RIAA and similar organizations are not the enemy.

Enemy? It's just an industry and lobbying group. They are excercising their free speech and using the courts to try and protect their own interests. Whether we agree with them or not, we have to be open to giving them the freedom to do these things. No one is stopping people like us from doing the same. Sure, we don't have the financial resources to do it, but life isn't fair. On that note, I would say that an organization like the PMRC (Parent's Music Resource Center) WAS the enemy, as their goal was to limit free speech.

I give no quarter to an organization that has tried to or has made it possible to:

* Block or demonize a useful technology which are in fact ESSENTIAL to being able to exercise full Fair Use rights.

If the tools / technology are essential to LEGALLY excercising fair use rights as currently allowed, I agree. Keep in mind that a lot of the laws on this issue also protect your own privacy through encryption of data on the phone, internet, etc.

* Block research or discussion of technology related to copy protection, including legitimate journalistic reporting by the press (see Universal City Studios vs. Reimerdes)

I agree.

* Prevent consumers from making backup copies, time shifting or space shifting content for personal use

Again, I agree, but there must be consideration given as to whether or not this type of organization's goals are to prevent LEGAL copies/shifting/etc (as the law currently permits) or not. Take the PVR issue with skipping commercials. Is it illegal? No... it's just a convenience. I can manually fast forward 30 seconds, but someone has given me some software to make it faster and easier. I am shocked that this is becoming a legal issue.

* Purposefully degrade the quality of the programming available to consumers in an attempt to prevent duplication, and make it illegal for people to circumvent this to gain the full quality of the original

I agree, but would argue 'caveat emptor'. The consumer shouldn't purchase a product which has has the quality purposefully degraded. Vote with your wallet. Unfortunately, the near monopolistic structure of the entertainment industry (Sony, Blockbuster, Viacom, etc.) makes it such that there are not often alternatives available where one can buy the full-quality product. However, I would also argue that the publisher shouldn't make the full quality product available on the same media. Can you give me an example of where something like this has happened?

* Prohibit discussion about technology that is not even related to circumventing it (see Microsoft's DMCA action against Slashdot re: discussion of MS's implementation of Kerberos security)

I wholeheartedly agree.

* Create a climate where people are afraid to publically discuss basic legitimate questions about how to modify something they OWN to better suit their needs (see Tivo Forum Hushes Hacking Discussion, CNET June 11 2001 or Sony threatening an Aibo owner under DMCA that he was not allowed to create custom programs for it, or Sony vs. Connectix Corporation)

Again, I agree. I do think it is a bit silly that Sony would worry about someone developing code for a toy robot dog, but I don't know the full details of the case. Did the author circumvent protections to learn the programming methods? Either way, perhaps they should think about hiring him onto the Aibo team. Innovation is a wonderful thing. First we have electricity, then the light bulb, then flashy Las Vegas casino signs. What if the "inventor" or supplier of electricity forced consumers/customers to sign contracts which limited the way in which they could use said electicity? Where would we be today?

* Prevent new forms of already established technology (Real Networks sued Streambox under the DMCA claiming Streambox's time shifting technology was illegal, or Blizzard vs. bnetd where Blizzard sued under DMCA to prevent someone from creating a free open-source Internet gaming connection server)

Not knowing the specifics of these cases, I can't comment, but in general I would think that they are protecting their interests against people who reverse engineered their technology and are now providing a competing product/service. We do need to offer innovators and inventors some protections, or the incentive to create said things would be lessened and we may not see these products ever come to market. I would ask why didn't streambox or bnetd invent their own technology? Why ride on the coat-tails of someone else? (rhetorical).

* Double-dipping on royalty fees and a heavy reporting burden for online streaming from radio stations. Interesting logic to charge twice for the same song, huh? This has forced many college and non-profit stations off the air and will force even more off soon. Again thanks to the DMCA. http://www.rice.edu/cb/sos

Seems they found a loophole in the royalty contracts. Likely because the original contracts never addressed online streaming because it didn't exist when the contracts were drafted. I agree that it is wrong, and they are shooting themselves in the foot if they are doing this.

* Circumvent established legal procedures for taking action against people suspected of breaking the law (see the current RIAA vs. Verizon action)

I'll try to find the referenced case, but again, I agree. We have a legal system in place, and while it might not be perfect, it's arguably the best in the world.

I can't believe I just spent 20 minutes typing this response. We should argue these points over drinks at NSXPO (shameless plug).

EDR




[This message has been edited by erobbins (edited 04 September 2002).]

 

[Jimbo]

EDR,

Very well put. I also would agree with you and Lud on most everything here.

I also think your comments about Robin not complaining about his condition are on the mark as well. I too commend Robin for not trying to argue that he was unfairly singled out to be made an example.

-Jim

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[huckster]

jimbo, i fear you are missing the entire point. when we begin to treat 'laws' as an entity unto themselves we have gone astray. laws dont exist in some nebulous world where mama and papa torts suddenly give birth to little baby torts. members of our society create laws, and the law system was built upon the concepts of intent and harm. for cryin out loud, dont you think there is 'supposed' to be purpose behind laws? isn't sentencing supposed to further or protect that purpose?

in my experience the average attorney does not attempt to look outside the enforcement, or manipulation, of laws. i suppose that is their job. and hey, with all the stories ive heard over the years, i suppose looking outside the box would be pretty demoralizing to the job.

point is, when laws are enforced arbitrarily and punishment is inflicted capriciously then the system is failing us all. thats not idealistic, just the wisdom of knowing a system that does that to someone could do it to anyone, even you.

by the way, assuming the comment regarding your presumption of software theft based on these postings, i personally have never copied any software or received any unlicensed software. at least not that im aware of--again, the problem, how do i know that something i purchase over the internet is in fact being bought from an authorized dealer??? check out your laws, i could potentially be held liable for buying something from a provider who was selling it illegally. but hey, ignorance is no excuse in the eyes of the judicial system.

the final thing is, i do NOT believe jail time for this is the norm, or the purpose behind our laws. a civil lawsuit is where this belonged but the feds jumped in to further an agenda that does NOT match up with the agenda of the average american citizen. But it does extend the reach of the feds in cyberspace, and it does protect the interests of big business, without big business paying a dime to protect themselves through the previously normal course of civil lawsuit.

c'mon guys, tell me im crazy or take a bigger view of this situation....

 

[huckster]

oops, didnt really mean to say it twice...or what the heck maybe i did

 

[milz50]

Huckster, you're just repeating the same points over and over. LOL

--Just giving you a hard time about the double post

 

[nsxtasy]

Originally posted by huckster:
c'mon guys, tell me im crazy or take a bigger view of this situation....

I agree with everything you said, except the need to say it twice.

Again, IANAL, but even without intimate knowledge of the legal profession, I've got to believe that penalties are customary for a reason. As I mentioned, the prosecutors are generally given a lot of discretion in the charges they can bring and the sentence they can agree on. There are reasons for that - they can apply harsher charges and sentences to repeat offenders, they can apply lenient charges and sentences to those who cooperate in their own cases and those of others against whom charges may be brought, extenuating circumstances can be taken into account, etc. And everybody knows this. It's no big surprise to anyone that a young kid with no priors who steals a car to take it for a joy ride may get probation, whereas a repeat offender who steals a car to act as wheel man in a bank robbery may get a very long prison sentence for the theft. There are degrees of seriousness, and things are not cut and dry.

However, there are norms for the application of the law. You would expect lenient charges and sentences to be handed down under circumstances that warrant them, and similarly for harsh ones. What you don't expect is charges and sentences that are outside the norms of our legal system.

I'll put it another way. If every first offender (no priors) who was found to be sharing software and making it available to a small circle of friends, received 12-18 months in prison, then Rob's sentence would come as no surprise to anyone, and we would ALL be saying that he got what he deserved. In that case, the experts in copyright law would be saying that this is a typical sentence. Bottom line: They aren't. And the facts of the matter are that (1) arbitrary and capricious charges and sentences are abhorrent simply because they are arbitrary and capricious; and that (2) arbitrary and capricious sentences don't deter anyone, because they're seen as aberrations, rather than the punishment that anyone committing a similar offense would ordinarily expect.

Yeah, nobody said life is fair - but when it's not, chances are that someone is getting screwed. And that's NOT the way the system is supposed to work.

 

[Jimbo]

Huckster wrote...

"...jimbo, i fear you are missing the entire point. when we begin to treat 'laws' as an entity unto themselves we have gone astray. laws dont exist in some nebulous world where mama and papa torts suddenly give birth to little baby torts. members of our society create laws, and the law system was built upon the concepts of intent and harm. for cryin out loud, dont you think there is 'supposed' to be purpose behind laws?..."

Absolutely!

And I don't believe I've written anything here that would imply otherwise. No one has argued, including Robin, that he wasn't dealt with in strict accordance to the laws.

The supposition and perhaps somewhat popular opinion has been that he's been dealt with in an overly harsh manner and set out as an example. Perhaps this is so. I certainly don't know how many people and companies were damaged because of his actions. And has been pointed out several times, there's adequate precendent and flexibility within the law to make such example cases.

"...how do i know that something i purchase over the internet is in fact being bought from an authorized dealer??? check out your laws, i could potentially be held liable for buying something from a provider who was selling it illegally. but hey, ignorance is no excuse in the eyes of the judicial system...."

This is true, however, I'm not sure I see a parallel here. If you had a receipt and proof of payment from a merchant, I think it's highly unlikely that a judge or a jury would find you guilty. In fact you would have case against that merchant.

What happened here was quite different. Setting up an organized structure for the systematic distribution of stolen property is much different. We're not talking about sharing questionable MP3 files or even copyrighted images with your Aunt Mabel. We're talking about software applications, operating systems and software that had clearly defined limits and ownership.

"...the final thing is, i do NOT believe jail time for this is the norm, or the purpose behind our laws. a civil lawsuit is where this belonged but the feds jumped in to further an agenda that does NOT match up with the agenda of the average american citizen..."

I disagree. I've heard of cases where the kingpins of auto theft rings and chop shops have gotten serious jail time. For some strange reason, just because we're talking about the zeroes and ones of software, some people think that the situation is somehow fundamentally different. If you publish a software title, it's your right not to have that title distributed in a manner you do not agree with. I see the rights of "ownership" to be fundamental.

"....c'mon guys, tell me im crazy or take a bigger view of this situation..."

I'm certainly not going to tell you that you're crazy or that you're mindless either. I just don't happen to agree with your take on this situation. And that doesn't mean I do not have compassion for Robin.

Somehow, and for a variety of reasons, I think there's a pervasive opinion that "it's only software and it's no big deal" when it comes to the theft and piracy of software. It's an intangible thing, so it's easy to dismiss or to justify when things like this happen.

In order to have a vital and burgeoning software marketplace, developers must have some degree of security that their efforts will enjoy some reasonable degree of protection. Otherwise, software development will be stunted. And, in my opinion, it goes beyond this, because regardless of what's good for the industry or not, there's a fundamental right of ownership involved.

Software piracy is rampant. There are dozens of peer-to-peer applications that support the theft of thousands of software applications across thousands of machines on a daily basis. You can download databases of pirated serial numbers for just about any application. And it's not just "big business" that suffers. It's smaller developers (like my own company) who have to deal with this as well. And we don't have the deep legal pockets or investigative teams to stop this. So we do rely on the legal system to do their best to plug as many holes as possible.

-Jim

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1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[anvil]

[ ... deleted response to Jimbo ... ]

Regarding the controversy that has sparked these strong reactions:

I just hope that we don't have something akin to a law like the mythical (I hope!) law against spitting on the sidewalk, ... one that just about everyone is guilty of, but one which will be applied only to those the "right" thinking prosecutor deems justly deserving of punishment. Then it becomes a government of men, not law, ... and I have come to distrust prosecutors I regret to say.

This country certainly has seen its share of unfair laws ( can you spell "Jim Crow" ), so simply saying "it's the law!" does not remove a citizen's right to protest those laws or be concerned when it appears that such laws may have been enacted.

This is probably simplistic, but the danger is real and, I suspect some would say, present in the system now.

anvil

[Edited by anvil: I have removed a response to a statement I thought I had seen posted by Jimbo. Since I no longer see such a comment by Jimbo in the posts above I can only conclude that I need to go back on medication.

]


[This message has been edited by anvil (edited 05 September 2002).]

 

[huckster]

well said, anvil. exactly what i was trying to get across earlier. in sentencing as well as enforcement we have an obligation to watch our system for incongruencies. in sentencing, the execution of the mentally handicapped comes to mind as an egregrious example. in enforcement, your jim crow example is excellent.

jimbo, i understand your points better now, thank you for the clarification. here's the basic points we differ on;

i can see now that from your perspective business-wise, the sentencing in this case appears to be a blessing. this case has just set a precedent which 'could' help protect your business interests down the road. Provided of course the feds continue to prosecute intellectual theft cases just like this.

i personally dont think white collar theft of intellectual property warrants jail time unless you have demonstrated financial gain from said theft and/or the INTENT to do harm from said theft. I think the same impact could have been made through a huge financial penalty and the confiscation of the hardware/software that was part of the infractions.

in this case, as said by nsxtasy, there was no attempt to deter anyone except de facto. the government could have made their point by letting robin, or others, know that they were to cease and desist lest they have the law enforced against them.

the handling of this case appears disproportionate mostly because it has not been done before. think of Napster or whatever they called themselves. now that was a big operation that appeared to intend personal benefit from their illegal actions and the intent to do harm to their 'victims' and do you recall any jail time for that???

by the way, i disagree with your 'car theft' analagy. here's why; car theft or any theft of personal property is dealt with differently than intellectual property theft because of the 'harm' concept. we have always distinguished between intellectual harm and physical harm. you steal something tangible, you are potentially risking a physical encounter with other citizens/owners. had robin broken into wherever and physically stolen copies of software, he would have done jail time in most any state. you steal someone else's music, for example, then you are unlikely to ever be charged, and may never even see a financial penalty. look at some of the recent rap music that has blatantly stolen some of the tracks from previous artists. granted, plagarism is different from outright theft or duplication, but really no less pathetic. and commonsense wise, the intent of plagarism and the duplicity involved is actually more abhorrent than what robin apparently did. that is where the intent and profit concepts come in. bluntly put, robinhood was wrong legally, and perhaps morally, but due to intent and personal profit, we would consider him much differently than sheriff nottingham.

maybe the moral of the story is that in the end both of the robin's mentioned above came to similar fates. both were trapped by the legal system. our robin was quite upfront about his 'culpability', but i think he and i would both agree that his sentence was completely unexpected and unfair.

if we want to start sentencing like this, lets go after bill gates for his intellectual theft, go after napster with some jail time sentencing, and on an unrelated but politically very similar subject, lets give some jail time to the ceo's/designees who have been cooking the books for the past several years. THAT was a much more devastating crime financially than anything robin did.

 

[Michigan NSX]

Originally posted by huckster:
...by the way, i disagree with your 'car theft' analagy. here's why...

I agree intellectual property holders have rights, but in my opinion they end when they infringe upon "fair use" laws.

I also disagree with the 'car theft' analogy for the following reason: If someone steals your car YOU DONT HAVE YOUR CAR ANYMORE! If someone steals your software, you usually still have it! That may be why most people think of this as a (more or less) "victimless" crime and have more sympathy for the perpetrators.

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'91 Black/Black

 

[H-carWizKid]

Originally posted by Jimbo:

[DELETED BY ADMIN]

And the reverse could be stated as well...

Forums are for opinions. If you disagree, (as I do with you on this subject Jim) then state your case, but understand that there will always be those who will reserve their right to contrary opinion.
Car wax, or legal controversy should never provide reason to lower ourselves to petty insults, no matter how eloquently worded.

As to the issue at hand;
Let the punishment fit the crime. We can all agree that property, intellectual or not has been stolen here. The party who has been hurt in this case has suffered a financial loss, not a physical one.
Why not have financial repairations? garnish Robins wages, levy a steep financial penalty. That way the injured party recoups their loss, rather than forcing the American people to support the person who commited the criminal act.
Why not "an eye for an eye"? in a capitol murder case, the sentence is basically "a life for a life" right?

We can agree that the cost of the theft in this case is financial. How much do you think Robins activities actually cost the manufacturer of the various software products he pirated? I am sure the number in lost profits is substantial (although unknown to me, based upon the facts I have been able to collect). Now lets weigh that lost profit against the profits the manufacturer turned during that period. Suddenly it looks more like he is paying a whole person (eye) for the tinyest skin cell damaged (eye) doesn't it?

I understand your personal interest in this case Jim, but I think the current system for punishment is obtuse, and that is what is driving dissent in this thread.

Phil

P.S. Robin... Watch out fer yer cornhole bud...

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[This message has been edited by NSX Prime (edited 05 September 2002).]

[This message has been edited by H-carWizKid (edited 05 September 2002).]