RIANZ sought $4,675 for 11 songs

December 3rd, 2012 at 10:00 am by David Farrar

I’ve been supplied a copy of the submission made by seeking $4,675 from a woman for file-sharing 11 songs!! This is $425 a song.

RIANZ dropped the prosecution after the woman’s lawyer pointed out she had never received any of the three notices required under the Act (detection, warning, or enforcement). None of these were sent to her billing address – the ISP (Slingshot) just sent them to the e-mail address that was established with her account (which she had never used or accessed or has a password for). So the first she knew of the issue was when she received the tribunal proceedings seeking $4,675, which is $425 a song.

It is good RIANZ dropped the prosecution when they become aware that she had never received the notices. Of course, they risked losing the case if they had proceeded. But regardless what is concerning is the amount of damages they were seeking.

The cost of each song is $2.39 and the Copyright Act says that should be what damages are based on. RIANZ however construct a hypothetical scenario saying they think each song would have been downloaded by 90 other people, while she made it available for upload (note she didn’t even know that bittorrent software made it available for upload – she thought it was just a downloading tool) and hence she should be fined for the estimated 90 copies other people may have uploaded. I’d be very unimpressed if the Copyright Tribunal starts handing out penalties on the basis of hypothetical ratios of possible uploading – rather than on the actual evidence of any infringing.  Her lawyer says this would be penalising her on the basis of assumed or hypothetical activity, rather than established fact.

RIANZ use their hypothetical maths to say she should pay $1,175 for the songs, but then claims that is not a sufficient deterrent! They seek an extra $3,500 on top of that.

The lawyer for the woman pointed out that $425 per song compares to the following:

  • $500 + $133 court costs for the average first time drink driver (20% over)
  • $500 + court costs for the average driving while disqualified
  • $500 + court costs for the average common assault
  • Diversion and a $200 donation to charity for first time cannabis use

The lawyer submitted that an appropriate fine, if she was found to have infringed is $315 which is $30 a song approx. This would cover the filing costs for RIANZ and the cost of the songs if purchased.

This case was dropped, but eventually RIANZ will manage to find a case which isn’t so flawed that they have to drop it. It will be interesting to see how the Tribunal rules on their heroic attempts to seek punitive damages based on hypothetical additional infringing.

The RIANZ submission is below.

20121130184431260

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52 Responses to “RIANZ sought $4,675 for 11 songs”

  1. tristanb (1,127 comments) says:

    Sucks to have a government that supports this crap.

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  2. bhudson (4,741 comments) says:

    Yep. Next they’ll be outlawing theft too.

    [DPF: It’s not theft, but even if it was, would you expect $12 of shoplifting to result in a $4,000 fine?]

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  3. Weihana (4,621 comments) says:

    And yet the same songs are available on Youtube for the cost of an advertisement (or 5 sec until the skip button appears).

    https://www.youtube.com/watch?v=tg00YEETFzg (Rhianna – We Found Love)
    https://www.youtube.com/watch?v=qQkBeOisNM0 (Fun – Some Nights)

    Don’t like the ads? Want to watch it later or convert to other formats?

    http://www.keepvid.com/ (or another similar website)

    And yet somehow some unlucky few are deemed to have caused thousands of dollars worth of harm while the songs are practically being given away.

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  4. Kleva Kiwi (292 comments) says:

    Cant see the problem here. Maybe if a few people where charged astronomical amounts the example will be set and people will stop stealing stuff.

    Theft is theft, no matter how rose tinted your glasses may be…

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  5. Weihana (4,621 comments) says:

    Kleva Kiwi,

    Indeed, theft is theft. A tautology. But copyright infringement is not theft. It’s not so much a matter of having rose tinted glasses as it is knowing what the law is.

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  6. UglyTruth (4,554 comments) says:

    Copyright infringement is not theft, and fair use of a copyrighted work is not copyright infringement.

    RIAA reportedly wants 72 trillion in damages from Limewire for alleged copyright violations.

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  7. dime (10,224 comments) says:

    SHARING????

    really DPF??

    Would you be unhappy if someone SHARED your car?

    “(note she didn’t even know that bittorrent software made it available for upload – she thought it was just a downloading tool) ” didnt think ignorance was a defense in court?

    [DPF: Ignorance is not a defence for guilt, but it is for penalty]

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  8. anonymouse (705 comments) says:

    the ISP (Slingshot) just sent them to the e-mail address that was established with her account,(which she had never used or accessed or has a password for).

    The Act is very clear on how notices should be issued,

    122 C (5) Notices issued to account holders must be sent by whatever method the IPAP uses to communicate with the account holder for billing purposes, unless the account holder and IPAP agree in writing to use a different method.

    This is an interesting avenue for avoiding prosecution, you sign up to slingshot and tag it to your credit card, they bill you each month and email the bill to your slingshot webmail account,

    Provided that you never open this email box, you cannot be prosecuted under the act, Slingshot cannot post you the notifications unless they start to send hardcopy bills to your address,………which you ring and complain about and get cancelled when ever a paper bill turns up,

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  9. thomasbeagle (77 comments) says:

    And here’s the details of another case that was dropped by RIANZ due to a number of errors: http://techliberty.org.nz/rianz-withdraw-one-of-first-cases-to-copyright-tribunal/

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  10. dime (10,224 comments) says:

    Weihana – its not the downloaders that are getting nailed. it is the uploaders. Dime would never upload. But i may be partial to the occasional download :D

    dudes are earning their living through “sharing” files.

    then of course they are the file hosting sites like rapidshare, mega, freakshare etc etc etc

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  11. Chris2 (775 comments) says:

    RIANZ’s method of”calculating” the fine they want imposed is the same method they use to calculate the supposed level of piracy, ie: it’s just made up out of thin air.

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  12. Glen (1 comment) says:

    im also confused about there method of calculation. I mean upload in new zealand is terrible. Unless this person had the knowledge to run an overseas seedbox or the like she would never be able to upload 90 times without leaving it running for a year or so. With most “legit” files downlaoded through bittorrent the best ratio you get is 1/0.1 that makes the fines not worth the court time

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  13. bhudson (4,741 comments) says:

    [DPF: It’s not theft, but even if it was, would you expect $12 of shoplifting to result in a $4,000 fine?]

    DPF,

    I wouldn’t comment on the damages sought – that would be up to the court to determine.

    I do support our copyright infringement law, however. Including damages being awarded in the event that a case is successfully argued in court.

    [DPF: I have never argued against that]

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  14. tristanb (1,127 comments) says:

    Dime:

    Would you be unhappy if someone SHARED your car?

    Bloody leacher! :D You mean if someone had another car of the same make, model and colour. He might be a bit pissed off, but it’s not his car – it’s just a copy.

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  15. Pete George (23,836 comments) says:

    The cost of each song is $2.39

    That’s the equivalent of $20-30 for a CD. About the same as the cost of a CD, with all it’s manufacturing costs, distribution costs, goods not sold, retail markups etc.

    Obviously there’s some costs involved in digital distribution, but something doesn’t add up.

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  16. dime (10,224 comments) says:

    [DPF: It’s not theft, but even if it was, would you expect $12 of shoplifting to result in a $4,000 fine?]

    Depends, could that $12 item be sold over and over and over?

    Its theft.

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  17. anonymouse (705 comments) says:

    @Glen, these are MP3, not movie files, @256 kbs its about 2MB per minute, so a 3 minute song is about 6 MB,
    90 times is give or take 500MB, but its over a period of a Month, so its only about 20MB per day,

    even on a ADSL with 128Kb upstream you will only need about 20 minutes per day to upload a 3 minute file 3 times,

    So its not impossible

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  18. davidp (3,585 comments) says:

    dime>Would you be unhappy if someone SHARED your car?

    I certainly wouldn’t mind if someone took a photo of my car. Even if they showed the photo to their friends.

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  19. dime (10,224 comments) says:

    davidp – not quite the same thing though is it. when people “share” music, the people dont just look at the track info and go “nice”. they actually use the thing. a lot.

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  20. DylanReeve (167 comments) says:

    Weihana – its not the downloaders that are getting nailed. it is the uploaders. Dime would never upload. But i may be partial to the occasional download

    dudes are earning their living through “sharing” files.

    In this case the law is entirely targeted at downloaders. And, in fact, only at those who download through one specific medium (BitTorrent). While uploading also takes place during the download it would be incredibly uncommon that it reaches the 90:1 ratio that RIANZ are claiming, unless they count every peer that receives any packets as a unique ‘share’.

    No one is making money uploading files to BitTorrent. There are certainly ways in which people do profit from file sharing, but BitTorrent isn’t one.

    Unless it can be proven a person is deliberately profiting from the distribution of copyrighted works it’s seems unreasonable to impose penalties that significantly exceed the market value of the goods involved.

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  21. Weihana (4,621 comments) says:

    “72 trillion in damages from Limewire”

    What kind of neanderthal uses Limewire? :)

    But it is amusing that the recording industry considers they have suffered losses several times the annual value of the entire US economy.

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  22. DylanReeve (167 comments) says:

    dime: And the loss to a recording company from a person illegally downloading a track is really only the potential sale of that track to that person. They still have the ability to sell and profit from the track to others.

    If I steal your car you are entirely deprived of it’s benefit.

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  23. bhudson (4,741 comments) says:

    I certainly wouldn’t mind if someone took a photo of my car. Even if they showed the photo to their friends.

    I don’t think RIANZ will be trying to prosecute anyone for taking a photograph of a song title and showing other people.

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  24. bhudson (4,741 comments) says:

    They still have the ability to sell and profit from the track to others.

    Not if that first person has given it to the others (or made it available to them at a lower cost, or free of charge.)

    [Edit: Which is not to claim copyright infringement is theft – legally it is not. It is it’s own offence.]

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  25. dime (10,224 comments) says:

    dylan – “really only the potential sale of that track to that person” lol ummm really? you mean every person that downloads it from the illegal uploader right?

    Nah i just mean “share” his car. like turn up on a Tuesday arvo and take it for a few hours :) afterall its SHARING and sharing is nice.

    This woman is a moron. No doubt she had no idea she was illegally uploading. Making an example of her isnt going to stop anything. i just wish we didnt fall into the leftist trap off rebranding awful shit. its illegal uploading or some equivalent. not SHARING.

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  26. davidp (3,585 comments) says:

    dime>not quite the same thing though is it. when people “share” music, the people dont just look at the track info and go “nice”. they actually use the thing. a lot.

    Which isn’t too different to listening to the music on the radio or via YouTube. Psy has 800million plus downloads on YouTube… and hasn’t suffered a single song economic loss of $340billion at RIANZ figures.

    But I really fail to see why I can download a video and song for free from YouTube, play it as often as I like, and all my friends can download and play it as often as they like. But if I share that video and song via BitTorrent then I have caused $425 worth of damages to the record company.

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  27. DylanReeve (167 comments) says:

    Dime: The law makes no attempt to target uploaders specifically or originators. They are only attempting to target downloaders and someone who downloads a song has only deprived the record company of a single sale. In a system like BitTorrent they also contribute to the overall availability of the song while they are seeding it, but they are not specifically or appreciably enabling it’s distribution.

    File sharing is really the most accurate way to describe the situation, especially on BitTorrent. There’s nothing specifically “leftist” about it.

    The larger issue is the march of technology – the sharing of media has been going on for as long as it’s been possible to make copies. People copied out sheet music to share, home taping was going to kill the music industry and VHS was supposed to be the death of Hollywood and the TV industry. Technology has now got to a point where this stuff is incredibly easy and no amount of legislation or enforcement is going to make a significant difference. It’s incredibly challenging for the industries involved but they do have to find new ways to exist in the environment because they can’t really change that environment.

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  28. DylanReeve (167 comments) says:

    Not if that first person has given it to the others (or made it available to them at a lower cost, or free of charge.)

    At some point someone has made something available, yes. But the law here makes no effort to find or penalise those people. We’re solely interested in people downloading content using a single specific technology. It would be impossible for RIANZ to argue that any person they are targeting has damaged their business to any greater extent that the lost sale represented by their download. Even if they have, as part of the use of the BitTorrent, shared some of the files they’ve downloaded, they were not pivotal in that. Their lack of involvement would have made no difference at all to the ability of others to download that track.

    None of the people RIANZ are targeting have enabled others specifically to download tracks.

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  29. eszett (2,450 comments) says:

    bhudson (2,836) Says:
    December 3rd, 2012 at 10:06 am
    Yep. Next they’ll be outlawing theft too.

    I am curious, have you ever borrowed a CD and then copied or ripped it?
    And do you consider that theft?

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  30. wreck1080 (4,002 comments) says:

    It all depends on your definition of theft.

    Copying a CD borrowed from a library does not seem like theft as in like stealing a car, but, probably is.

    I guess what counts, is the legal definition of theft. Not anyones opinion.

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  31. wreck1080 (4,002 comments) says:

    Oh, one more thing…since telecom upgraded my plan to 500gb , i joined spotify and pay $12 a month for all you can consume music.

    Makes my personal mp3 collection pretty much redundant.

    Now that there are some decent music subscription services, I think there should be less tolerance toward illegal downloads.

    After all, wasn’t one of the pro-piracy arguments that the music industry were not offering a decent online music delivery service?

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  32. Alan Wilkinson (1,938 comments) says:

    It’s the same fallacious logic that claims everyone who illegally downloads anything would have otherwise paid the full price. Most simply would not. Yes, there is a loss of sales but it is much less than claimed.

    I expect the Tribunal will eventually rule there should be a penalty component as well as the restitution, but that it should be appropriately scaled commensurate with other offences.

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  33. dime (10,224 comments) says:

    “File sharing is really the most accurate way to describe the situation”

    no. illegal uploading and downloading.

    DavidP, youtube – viewing is different to downloading. pretty sure youre not allowed to download the content.

    “Which isn’t too different to listening to the music on the radio or via YouTube” – artists get paid for radio airplay. thats the difference. a lot of youtube vids are taken down for copyright violation. the official vids usually provide revenue.

    it just baffles me that people get blinded by internet piracy. youd see it different if someone could rip off your work/ income.

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  34. BeaB (2,166 comments) says:

    In Hamilton you can get a fine of $15,000 for digging up some old bottles from a so-called historic site!

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  35. mpledger (425 comments) says:

    The RIANZ have a cost that they are willing to bear to give people notice that they are infringing. That gives some indication of the value to them of people not infringing. When they complain it is too high (as they have done) then they are really saying that stopping that illegal download was worth less than the enforcement cost to stop it happening. As such, the penalty shouldn’t be more than the costs they are willing to make to stop it happening i.e. cost of infringement (+ court costs+ song cost).

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  36. Weihana (4,621 comments) says:

    wreck1080,

    After all, wasn’t one of the pro-piracy arguments that the music industry were not offering a decent online music delivery service?

    It’s a nice argument, but really people just want free music. Is this unreasonable when it is practically free already and legally available on Youtube?

    People talk as if there is some sort of objective value that rights holders are entitled to such as “potential lost sales” and people make analogies on that basis with the theft of real property. But there is no way to objectively calculate potential lost sales. One can’t really know whether a download would have otherwise amounted to a retail sale and the retail price itself is not even determined in a competitive market.

    Real property has a value determined by supply and demand in a competitive market (ideally). But copyright grants *exclusive* rights and thus the retail price is set purely to maximize profits to the rights holder rather than to obtain an equilibrium between supply (which is infinite) and demand.

    But is it the objective of copyright law to enable artists to generate the most profit for themselves or rather is the objective to maximize creative output for the benefit of society? I would say it is the latter and there comes a point where additional profit ceases to encourage creative output so it is difficult to see what interest society has in granting such unnecessary rights.

    We are in a world where the song itself is not so much the product as it is the advertisement for the concerts, merchandise and all the other hype that continue to generate considerable revenues for the recording industry. If online piracy were really the threat to the industry that is claimed then the industry would have long since gone under. But it hasn’t and that has nothing to do with the industry’s faltering attempts to impose draconian new laws on the internet.

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  37. Weihana (4,621 comments) says:

    dime,

    DavidP, youtube – viewing is different to downloading. pretty sure youre not allowed to download the content.

    What is the difference? In order to view content that content must be transmitted to your computer. Even if software does not allow a permanent save the content is still downloaded to your computer even if only temporarily. And if you want a permanent copy there are websites that will send you a copy of the Youtube video.

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  38. Weihana (4,621 comments) says:

    dime,

    it just baffles me that people get blinded by internet piracy. youd see it different if someone could rip off your work/ income.

    Except that most people’s work/income is priced according to a competitive market. Copyright does not operate in a competitive market. There’s only one “Billy Jean” or one “Stairway to Heaven” and one is not interchangeable with another. The rights accorded to these works are determined arbitrarily by government. Government invents a number out of thin air and says “You have these exclusive rights for 50 years (or whatever) and then it enters the public domain”. If these rights are already limited arbitrarily I see no reason why they can’t be further limited without discouraging creative output and in order to better maximize the benefit to society at large.

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  39. davidp (3,585 comments) says:

    dime>youtube – viewing is different to downloading. pretty sure youre not allowed to download the content.

    I haven’t seen anything telling me not to. It is trivially easy to do with the Firefox DownloadHelper plugin. And I don’t have any issues with this… it is just like watching the online copy again, but without using up bandwidth.

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  40. Rick Rowling (816 comments) says:

    https://i.chzbgr.com/completestore/12/11/13/lGh4dWwQNEm08hwnzhDpIg2.jpg

    You wouldn’t share a car

    You wouldn’t share a television

    Downloading is sharing

    Sharing is against the law

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  41. dime (10,224 comments) says:

    “I haven’t seen anything telling me not to.” – im not sure thats a defense either :P the fact they dont have a save or download button and you have to use a plug in should imply youre not meant to download. i guess it depends on the content too.

    weihana – “What is the difference? In order to view content that content must be transmitted to your computer.” when you watch the downloaded video, does it display adds to the side of your media player? :P there is a difference.

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  42. Kimble (3,955 comments) says:

    Depends, could that $12 item be sold over and over and over?

    Its theft.

    Does “stealing” the item prevent it from being sold over and over?

    does it display adds to the side of your media player?

    So wouldnt an ad-blocker also be considered stealing?

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  43. SGA (1,281 comments) says:

    @dime – “the fact they dont have a save or download button and you have to use a plug in should imply youre not meant to download. i guess it depends on the content too.”

    In order to watch a youtube clip, you have to “download” it, don’t you? Like Davidp, I can’t see how saving it using downloadhelper or suchlike (rather than watching it again on youtube) has a negative impact on anyone.

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  44. Weihana (4,621 comments) says:

    dime,

    If I don’t watch the ad is it stealing? :)

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  45. DylanReeve (167 comments) says:

    it just baffles me that people get blinded by internet piracy. youd see it different if someone could rip off your work/ income.

    I work in the television industry. My industry is affected and thus, potentially, my work and income are threatened.

    I also understand technology and I see that this stuff isn’t going to be stopped. The industries that are built on generating content for people to consume need to adapt, because people like consuming that content and they will do so in whatever ways are available.

    The movie and TV industries fought hard against home video, but in the end it was a massive gain for the industry. The internet is similar – iTune and similar services have been a massive benefit to the industry. And even better they are actually putting artists closer to their audience and giving them greater control over their work and income.

    There are (and always) have been a number of people who want to get things for free. They’ll continue to exist. They can’t be stopped. But for many people it’s simply a matter of ease. Audio piracy dropped massively when iTunes became popular. For most people it’s easier to get music legitimately from iTunes or a similar service.

    The content industries will have to change, and they are doing so in many ways, but they’re also resisting that change and are taking that fight, bizarrely, to individuals.

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  46. davidp (3,585 comments) says:

    Dylan>I work in the television industry. My industry is affected and thus, potentially, my work and income are threatened.

    You can either adapt, or you can be like these guys putting up a strange losing battle against the evil of cable TV:

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  47. Kleva Kiwi (292 comments) says:

    You have to laugh at all the people who justify illegally downloading songs as not stealing by saying they would not have bought it anyway. Like it is some sort of vindication for their theft. It does not matter that you may not have bought it, you have no right or entitlement to take it.

    I guess since I was not going to buy that Ferrari anyway, when I go break into it and take it for a joy ride it wont be theft…

    Generation Entitlement aye. Theft is theft.

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  48. Weihana (4,621 comments) says:

    Kleva Kiwi (41) Says:
    December 3rd, 2012 at 3:21 pm

    You have to laugh at all the people who justify illegally downloading songs as not stealing by saying they would not have bought it anyway. Like it is some sort of vindication for their theft. It does not matter that you may not have bought it, you have no right or entitlement to take it.

    Surely a “Kleva” kiwi like yourself should know the difference between taking and copying.

    I guess since I was not going to buy that Ferrari anyway, when I go break into it and take it for a joy ride it wont be theft…

    An example of taking.

    Generation Entitlement aye. Theft is theft.

    A is A, B is B, but Kleva kiwi may not be a Kleva kiwi. :)

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  49. tristanb (1,127 comments) says:

    It’s sad to see so many people here supporting copyright laws – you’d think this was The Standard or something.

    Copyright law is typical left-wing dogma. Basically it’s a government-enforced income and monopoly, of a non-productive industry, with restrictions on what private citizens can do with their data.

    Especially in NZ where we already shovel money into our “artists'” pockets, yet get most of our music from overseas. We’d be best off allowing non-commercial, private copying of songs and movies, so we don’t keep pissing more money overseas on bennies buying Rihanna CDs. We should reduce length of copyright to 5 years too – that’s long enough to get money for nothing.

    Everyone else has to go to work to do a job every day. We can’t record one day on video tape, play it back to our boss then get the government to force him to pay us! Why should we let that be the rule for drug-snorting, left-leaning, ego-tripping musicians? If they want money – play in a concert. If they complain, they can get a job that doesn’t require a whole section of government just to support it!

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  50. UglyTruth (4,554 comments) says:

    For those of you who don’t know what theft is, here’s a definition from Black’s legal dictionary:

    Theft. A popular name for larceny. The taking of property without the owner’s consent. People v. Sims, 29 Ill.App.3d 8 1 5, 33 1 N.E.2d 1 78, 1 79. The fraudulent taking of personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.

    Property. That which is peculiar or proper to any person; that which belongs exclusively to one.

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  51. Scott1 (593 comments) says:

    The law is about what you can get to work. clearly the music industry is fighting a loosing battle.

    If they dont get beaten by the pirates they will get beaten by the rest of the entertainment industry even if they get the full support of the state aparatus. so lets not waste our effort no matter how excited one might get about the moral status of copying a song.

    The good news is they have pleanty of time to adapt and the world wont be any worse off if they have to cut back their budgets even by a large percentage.

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  52. UglyTruth (4,554 comments) says:

    LOS ANGELES, Nov. 16, 2011 /PRNewswire/ — A large coalition of singers, songwriters and performing Artists have joined Internet media mogul Alki David and, through their counsel, Baker Marquart LLP, have re-filed a massive copyright infringement lawsuit implicating millions and potentially billions of dollars in revenues obtained by CBS subsidiaries CNET and CBS Interactive through fostering and popularizing piracy of copyrighted works.

    ….

    This David versus Goliath lawsuit further underscores the hypocrisy of CBS by highlighting Shelby W. Bonnie who held seats simultaneously on the boards of both CNET and Warner Music for two years. During this time, Warner CEO Bronfman was suing LimeWire for copyright infringement and very publicly complaining about the huge monetary damage it had inflicted upon his company while at the same time having a sitting board member who was also serving as a director of the biggest distributor of LimeWire software (distributing more than 220 million copies of it).

    http://www.ctsmastering.com/blog/?tag=limewire

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