Scott, I'm going to splice up your post, because 1, it's the last one on the page, and 2, it's probably one of the most intelligent things in this thread. If that bothers you, I apologize in advance.
scotth266 said:
Zac_Dai said:
I was going to type another reasonable post to expand on my first about how he didn't actually steal anything.
But since you happily live by the idea that people should be eternally punished for such a minor crime as copyright infringement I realize there is no hope in you understanding.
The problem is that copyright infringement (by uploading) is not really a minor crime. It's not exactly high-grade crime either, but it's pretty high up on the ladder.
The term you're looking for is primary or direct liability. It isn't serious in regard to criminal code, but direct infringement can ruin your day if you get caught, as seen here.
Put this in the context of secondary liability, which includes the suit against Napster a decade ago, and the suits against some mom in Chicago back in '04. These cases you're going after a symptom, and as the RIAA learned this just doesn't work. Targeting the direct infringers is a much more valid option.
Uploading is the assistance of theft.[footnote]Piracy IS theft, just not in the traditional sense: I am not willing to concede that point in any way, shape or form.[/footnote]
This man has enabled mass theft by posting his ripping copy on the internet. It's not only that though: now that his cracked copy is on-line, it'll spread throughout the internet, and there's no real way of stopping it. There will always be a warz site with it in stock now. This means he has enabled the mass theft of that intellectual property for the remaining amount of time that the internet exists.
Again, piracy is a serious issue for the industry. For those claiming that it doesn't have a great effect, contemplate that the Music industry has shrunk by %50 in the last decade. Most of this is attributed to lost sales due to piracy.[footnote]Helpin, Mark. 2009. Digital Barbarism[/footnote] Combine this information with a simple question: what was the last triple A title you saw as a PC exclusive? Outside of the Sims and MMOs, the PC is simply too vulnerable to piracy for a developer to stick a title on it and NOT release it on the consoles as well. (If I had more time at the moment, I'd throw up some statistical data to support this, but for the moment, you'll have to make due with the argument.)
Seems to me that he deserves a pretty hefty punishment. Sure, 1.5 million is kind of absurd in terms of "he stole one copy", but when you realize that the amount of times a single upload can be downloaded can easily run into the tens of thousands on one site alone, it's an entirely different ballgame. Advance Wars 2 has almost 45,000 downloads from just one version of a ROM on ONE SITE[footnote]Did some research to prove a point. Luckily, I found a site that tracks their D/L numbers.[/footnote], and that wasn't even a first-party produced console title.
In terms of how absurd 1.5 million is. That's debatable. The key thing here is that Nintendo was asking substantially more. Based on my limited experience with civil suits it's not unreasonable to estimate the original requested damages at someplace between 20 and 50 million dollars.
Besides, it's not like he wasn't forewarned about the potential consequences. To be a uploader, you sort of have to know that it's illegal, in a big way. This is not some innocent dude who swiped a copy for his best bud: this is a dude who swiped thousands of copies in one fell swoop.
Actually,
not knowing that what you are doing is illegal has been attempted as a defense in a couple secondary liability cases. To the best of my recollection though, those cases fell apart when it was proved that the defendant was lying.
Think about this for a second. To actually prove someone is lying in court is a hell of a trick, and it's been successfully demonstrated every time someone's tried to claim this? (At least in the US and Canada)
Nintendo probably shouldn't have charged him that much, but if he settled for that, the actual fine must be a lot worse, or he was somehow making money off of the downloads. If it's the former, than I can see a legitimate argument for lowering the fines involved: but if it's the latter, I say he deserves to be charged every penny.
I suspect, and this is a guess, that he was originally charged with what Nintendo estimated in lost sales. I've no idea how they would have generated these numbers, but remember piracy has killed development studios (do a search on here on Iron Lore.)
Out of all of this no one has mentioned one critical word. "Bankruptcy". Sure, Nintendo will waltz off with his house, his car, his computers, and his internet identity, but he can make a fresh start of things. I'm not familiar with Australian bankruptcy law (as a general rule international bankruptcy cases are a ***** to sort out), but that's what it's basically there for. This isn't a criminal penalty that would follow him past a bankruptcy. This isn't like American child support payments, where you can't dodge them by saying "I've got no money to pay." This is what Bankruptcy is for. And sure it'll fuck up his ability to get some jobs, to get another car, and so on, but he isn't an indentured servant to Nintendo.
