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| Authored by: argee on Thursday, June 21 2012 @ 01:06 PM EDT |
If I run a red light, but I did not see it because I
was distracted by a pretty girl on the sidewalk, it is
still intentional. I was driving the car, the car was
moving and I was directing the car. It was not malicious,
I did not intend to run a light, just didn't see it. But
the act was intentional. Non intentional would be like if
I was a passenger on a bus that ran the red light, and was
accused of running the light.
As for the kid with music vs commercial infringers. You
left one factor out. It is not the kid vs the pirate,
it is more subtle than that.
Agreed. If I get music I don't own, print CD's or put
up a for pay web site for people to buy the music, I am
breaking the law diffetently than the kid that shares
music with ten buddies.
But that kid ... he can do several things. He could get
an iPod with an iTunes account and pay 99c a cut. So
far so good. If he then hacks the AAC file and gives it
his buddies, he is illegally copying.
But what if he is listening to the radio, or to someone's
CD, records the song, converts it to MP3 and puts in his
iPod? Or his hard drive? He doesn't give it to anybody.
He could even be one of the ten kids the one above "shared"
with. Regardless, he is still culpable to the tune of
$150,000 a pop.
But along comes Google, they ran the red light. Never
mind they told the outfit not to do it; the fact is they
did it (the outfit is guilty too), and Google put the
code in without adequate vetting. Malicious? No. But
intentional? Oh, yes.
So, we know the infringed. They should pay the statutory
amount of no less than ($750 ?) and no more than $150K.
They also shared those files, not with Android users but
with Android developers.
I find it hard to reconcile the $0 amount, while the lady
with songs in her hard drive, who never was proven to
have anyone else get them from her, gets fined way worse
than Google did.
I just don't understand the ruling. If Judge Alsup had
fined Google $1K a file = $37K, and the 9 lines were
in one file, so another $1K, I would have been mollified.
But at $0 it seems to me that it not only flaunts the
word of the law, but also its intent.
The judge, not the jury, is the one that sets the amount.
He could have gone from $750 x 38 = $28.5K minimum, to
$150K x 38 = $5.7 million. He could have said, it was
not malicious, so we will go for the $28.5K. If that
had happened, Oracle would have been stimied, I think.
And at $5.7 million, Google would have cried ouch, but
also stimied. At $0, then I think its an error.
My 2 cents.
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argee[ Reply to This | Parent | # ]
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