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The trick behind a fair and effective penalty for a crime is that there both has to be a realistic expectation of actual enforcement (there's no way a person ca

The trick behind a fair and effective penalty for a crime is that there both has to be a realistic expectation of actual enforcement (there's no way a person can afford to pay $80k for a song unless their last name rhymes with Mates or Muffet, even if caught), and the expected value has to be obviously negative under most circumstances--that is, the probability of being caught times the expense must be much more negative than the value gained by committing the crime. We can see this principle at work in the fines for things such as littering, illegal parking, and drunk driving. Individual instances of these crimes gain a person a small amount of value; the fines for being caught are around one or two orders of magnitude greater than this (at first--often repeat offenses raise the expense another order of magnitude in the form of either jail time or increased insurance costs), in line with the approximation of being caught a non-negligible fraction of the time. By comparison, illegal file sharing has a vanishingly small chance of getting your life completely destroyed. The problem with this is two fold. First, it isn't at all calculable what the expected value is; there simply isn't enough data to accurately determine what the probability of getting caught from any single illegal act is. Second, the enforcement rate is sufficiently low that, even if it were reliably calculable, people would not emotionally treat it correctly--the same emotional detachment from strongly negative consequences occurs here as the one that makes people take other sorts of extreme risks such as teenage unprotected sex, extreme sports, and going to war as a foot soldier (note that I am not saying that these always have negative expected value; merely that people are not good at estimating these sorts of risks). The problem the RIAA faces is that enforcement to the degree necessary for a lower level fine to create sufficiently negative expected value is a practical impossibility; there's no reasonable way to effectively catch and fine even 1% of file-sharers (a rough estimate of what order of magnitude of enforcement is necessary to make people effectively able to gauge the risk--such an enforcement rate would not stop illegal file sharing altogether, but it would at least slow it down, much like my other examples). The only long-term option is to change business models to one less completely invalidated by the advance of technology.

seertaak 17y ago
You raise some interesting and valid points IMHO. I fully agree that the expected cost/benefit balance has to be redressed. Personally, the way I see that occuring is via a variant of the three-strikes rule proposed in France. I think that rule is too draconian; I do think that the internet has enjoyed a penetration level in society similar to that enjoyed by other basic amenities such as water and electricity. So shutting someone off from the internet is a highly draconian measure, perhaps infringing on someones human rights. But what if rather than cutting someone of completely, you just limited their bandwidth to a size to make, say, reading email and news practical, but make it impractical to fileshare music in any reasonable volumes. What's good about this is that the penalty fits the crime: you'll still be able to enjoy the internet, just not media-intensive stuff. Certainly a nuissance and displeasurable to the perpetrator, but it seems to me a proportionate and fair response, and it directly affects their ability to continue engaging in the illicit activity.
- gambling8nt 17y ago
  Assuming that a defendant must be caught and informed of the loss of their first two strikes (as versus being caught once for a least three instances of the crime, and losing them all at once), such a solution--if enforced effectively enough--is not terribly far from ideal (at least from what should be the RIAA's long term perspective), in that the emotional effect of having been caught twice ought to be a sufficient deterrent for any reasonable individual not to continue to illegally download music. That said, the third strike is still perhaps too stringent to actually be enforced, even as a bandwidth limiter rather than a complete disconnect, and the fear of enforcement is a crucial part of an effective deterrent. I would be more inclined to suggest limitations on internet usage for 2^N months (or some reasonable facsimile) for an Nth offense. Of course, any such scheme is dependent upon dramatically better enforcement, in much the same way that, due to ineffective and uneven enforcement, drug laws are not an effective deterrent.
- cabalamat 17y ago
  > But what if rather than cutting someone of completely, you just limited their bandwidth [...] Certainly a nuissance and displeasurable to the perpetrator, but it seems to me a proportionate and fair response Most 3-strikes proposals, including the HADOPI one, say that someone should be punished on being accused of filesharing by the entertainment industry, not on being found guilty of anything. Is it fair to punish someone if they've not been given due process and been found guilty by a court of law? I say it isn't, but 3-strikes proposals, including the HADOPI one, say that someone should be punished on being accused of filesharing by the entertainment industry, not on being found guilty of anything. Is it fair to punish someone if they've not done anything wrong, but if amember of their family or a flatmate has? I say it isn't, but 3-strikes proposals say that everyone using an Internet connection should be punished, for what one of them does. This is collective punishment, it's repugnant to the English Common Law legal tradition, and if you do it in wartime, you're a war criminal.

seertaak 17y ago

You raise some interesting and valid points IMHO. I fully agree that the expected cost/benefit balance has to be redressed. Personally, the way I see that occuring is via a variant of the three-strikes rule proposed in France. I think that rule is too draconian; I do think that the internet has enjoyed a penetration level in society similar to that enjoyed by other basic amenities such as water and electricity. So shutting someone off from the internet is a highly draconian measure, perhaps infringing on someones human rights. But what if rather than cutting someone of completely, you just limited their bandwidth to a size to make, say, reading email and news practical, but make it impractical to fileshare music in any reasonable volumes. What's good about this is that the penalty fits the crime: you'll still be able to enjoy the internet, just not media-intensive stuff. Certainly a nuissance and displeasurable to the perpetrator, but it seems to me a proportionate and fair response, and it directly affects their ability to continue engaging in the illicit activity.

gambling8nt 17y ago
Assuming that a defendant must be caught and informed of the loss of their first two strikes (as versus being caught once for a least three instances of the crime, and losing them all at once), such a solution--if enforced effectively enough--is not terribly far from ideal (at least from what should be the RIAA's long term perspective), in that the emotional effect of having been caught twice ought to be a sufficient deterrent for any reasonable individual not to continue to illegally download music. That said, the third strike is still perhaps too stringent to actually be enforced, even as a bandwidth limiter rather than a complete disconnect, and the fear of enforcement is a crucial part of an effective deterrent. I would be more inclined to suggest limitations on internet usage for 2^N months (or some reasonable facsimile) for an Nth offense. Of course, any such scheme is dependent upon dramatically better enforcement, in much the same way that, due to ineffective and uneven enforcement, drug laws are not an effective deterrent.
cabalamat 17y ago
> But what if rather than cutting someone of completely, you just limited their bandwidth [...] Certainly a nuissance and displeasurable to the perpetrator, but it seems to me a proportionate and fair response Most 3-strikes proposals, including the HADOPI one, say that someone should be punished on being accused of filesharing by the entertainment industry, not on being found guilty of anything. Is it fair to punish someone if they've not been given due process and been found guilty by a court of law? I say it isn't, but 3-strikes proposals, including the HADOPI one, say that someone should be punished on being accused of filesharing by the entertainment industry, not on being found guilty of anything. Is it fair to punish someone if they've not done anything wrong, but if amember of their family or a flatmate has? I say it isn't, but 3-strikes proposals say that everyone using an Internet connection should be punished, for what one of them does. This is collective punishment, it's repugnant to the English Common Law legal tradition, and if you do it in wartime, you're a war criminal.