I used to work for an expert witness who testified on valuations in IP infringement cases. I really lost faith in the way the US handles IP infringement in that job. I know patents are contentious in tech, but sometimes I think copyright is just as bad. I know it's not a popular opinion, but seeing how things actually play out really made me feel for defendants in those cases.
Regardless of what you think of the effectiveness of IP protection, the way damages are calculated (and ultimately determined by courts) is just awful. I haven't looked at the specifics of that $65M calculation, but if the real number were closer to $650k I wouldn't be surprised-- 2 orders of magnitude was a pretty typical spread between plaintiff and defendant expert witnesses' valuations in the IP cases I worked on.
There is a very real cost to society to provide patent and copyright. We have to have additional law enforcement, court, and prison capacity. It’s not clear at all to me that society is getting its money worth in defending essentially rent seeking behavior from big business. It’s also not clear that either patent or copyright in their current form actually “promote progress in the useful arts”.
I hate the terms “intellectual property” and “piracy” because patent and copyright are not much like property at all, and because actual piracy is a crime of violence and nothing like infringement. And it’s not clear to me that the punishments inflicted are reasonable given the impact of the “crime”.
Given that, I believe that we would be better off without patent or copyright, or with only a very modest time period of a couple years.
It isn't 1900 anymore. With things with additive manufacturing and other innovations you can go from prototype to product faster than ever. A few year head start should be sufficient reward for most innovations. Perhaps you could handle the special cases (ie. somebody spends a billion dollars to invent a engine that runs on water) as one offs.
Same with movies, television shows and music. They just don't have the impact they used to. You can do special effects for a few grand that cost a million dollars a few decades ago. As it is faster and easier than ever to make a movie, we don't need to offer such a long period of time for exclusivity.
Any reason to think being creative in general is somehow easier for people than before? Whatever solution you offer should also apply to the base case which is writing a story or a song, both of which are “cheap” in terms of required tools and yet extremely difficult for most people to do well. So maybe we don’t want to discourage the creators just yet?
In 1790, copyright term in the US was 14 years (if registered) plus 14 more years (if renewed), for a maximum total of 28 years. As of 1998, the copyright term is 95 years after publication (or 75 years after the author's death). So if creativity is equally as difficult now as it was in the past, I would ask why copyright terms have been so substantially expanded.
It's also worth pointing out that, since the vast majority of works generate almost all their profits within the first few years of publication, such a lengthy copyright term primarily benefits rights holders of the extremely elite set of works that remain popular after decades of publication. In practice, this mostly winds up being companies like Disney, Sony, Universal, and so on. Meanwhile, the group that is most directly harmed is not the public in general, but everyday artists—who are less free than they were in the past to build on previous works, remix them, or use them as supporting elements in a larger project.
Consider that, whereas consumers wanting to enjoy an older (let's say WWII-era) work usually face a choice between paying a small fee and getting an unauthorized copy somehow, creators face a choice between enduring a difficult and extremely costly licensing ordeal or opening themselves up to substantial legal risk. Creators often lose heart when faced with this dilemma—and many projects, at least a few of which would probably have been great, will never be made because of this.
Disney's Sleeping Beauty (1959) could not have been made until 1986[1] if the current rules were in effect (The ballet it was based on was from 1890, and copyright is 95 years).
That's my go-to example for why this entire "creators vs consumers" narrative is so bogus. Copyright today is no less of a lottery ticket than getting noticed by the Medici family was 100s of years ago.
1: In theory they could have licensed it, but I suspect a theoretical person in charge of maintaining the dignity of Tchaikovsky's works might have balked at giving Disney free reign to make a cartoon version and add lyrics for children to the instrumental music. Also, I don't think a ballet writer would feel particularly incentivized to know that someone would pay their estate to make a cartoon movie 60 years after they die.
Do you think open source code is worse off for the fact that copyright has been removed (via the various licenses, all of which reduce copyright's restrictions)?
In my mind, open source code has been an excellent experiment showing that eschewing copyright doesn't mean people are less creative. Certainly, I've seen more creative open source code than I've seen creative proprietary code.
Similarly, there are huge swathes of fanfiction out there which are incredible pieces of creative writing which are not charged for, are not created for commercial interest, and while technically copyrighted, the author may not even realize that.
There are masses of people producing tiktok videos and spotify music for an audience, with no explicit expectation of copyright protection.
People clearly want attribution, not control to the point where they can say that their work cannot be remixed into a new tiktok video (a common thing), or used as fuel for a new creative endeavor.
On the other hand, copyright is largely used to stop such remixing, to prevent making creative derivative use of a work. If it were used just for "you must attribute me" (what open source licenses reduce it to), I would have no complaints.
> Do you think open source code is worse off for the fact that copyright has been removed (via the various licenses, all of which reduce copyright's restrictions)?
Open-source code doesn't mean it's not copyrighted, and in fact copyleft licenses are explicitly designed to use this copyright as a coercive/protective mechanism the same as any other copyright.
But as a general statement, everything anyone produces is copyrighted from the moment they produce it. Your "hello world" that you write in a demo project and never open again is copyrighted. Your phone snap of your dog is copyrighted. MIT/BSD licensed code is copyrighted.
A license providing grant of permissions is not the same thing as not having a copyright. Open-source code still has an author, and that owner can also offer other licenses if they want.
People don't seem to consider what it would be like for authors (and similar) if copyright disappeared overnight: just as quickly, their work will be published and distributed by for-profit entities who can still turn a profit on it but don't have to give them a dime. Congratulations, you've made it impossible to make a living---or even part of one---as an author, except as an employee of a corporation that also controls distribution (e.g. your Disneys, your HBOs, and so on).
I don't want to live in a world where the importance of storytelling [in media] is marginalized even further than it already is. A lot of people seem to have a "how hard could it be?" attitude toward it; the answer is, really fucking hard.
> People don't seem to consider what it would be like for authors (and similar) if copyright disappeared overnight
We know very well what things were like pre-copyright. People still came up with compelling stories. Creativity flourished. Of course we've seen an increase since then, but that's the effect of industrialization and overall prosperity not copyright per se.
> Congratulations, you've made it impossible to make a living---or even part of one---as an author
The success of distributed patronage platforms like Kickstarter is a very real challenge to this assumption. People are in fact making a living by producing content that can be freely copied and distributed. Meanwhile, the average self-proclaimed author sees their content languishing in utter obscurity. This can hardly be called a "benefit" of copyright.
> We know very well what things were like pre-copyright. People still came up with compelling stories. Creativity flourished. Of course we've seen an increase since then, but that's the effect of industrialization and overall prosperity not copyright per se.
Do you think differences in how stories were copied and distributed "then" vs. today might have some bearing on the question of whether the absence of copyright "then" implies that authors don't benefit from it today?
For instance, in the year 1400 AD, the cost of reproducing a written work of any significant length for mass distribution was beyond exorbitant. Today, it is essentially zero.
> The success of distributed patronage platforms like Kickstarter is a very real challenge to this assumption. People are in fact making a living by producing content that can be freely copied and distributed.
If copyright is done away with, making money on works before they're released to the public might indeed be the only way for independent authors to make money. Right now it's an alternative to self-pub that's really only available to authors who already have a large established following, e.g. Brandon Sanderson; if people can just wait for you to finish and get the work for free, I doubt they're going to put money up front before you've even finished it unless they're already big fans of your work.
So---in short---no, I don't think the Kickstarter model will protect most independent authors from the effects of a dissolution of copyright law. But I welcome any challenges to the above reasoning.
> Meanwhile, the average self-proclaimed author sees their content languishing in utter obscurity. This can hardly be called a "benefit" of copyright.
What's the relevance of this bitter little nugget? Somebody who has written something is perfectly free to release it to the public domain if they like, and indeed many authors do just that. They are not bound to hold onto exclusive rights to their work just because copyright grants those rights by default.
Twitch is a reasonable argument to the contrary. You can watch Twitch completely for free with 0 impairment whatsoever to your experience (so long as at least have an ad-blocker), yet there are vast numbers of people making a living streaming, with a small chunk even becoming millionaires from it all, largely from people donating a few bucks at a time. Like you're saying there's always a big get bigger type phenomena, but that's an issue everybody has to deal with regardless of the system. And examples like Richard Bachman [1] would suggest its deterministically surmountable.
There are also countless other examples of things like DRM free products selling just fine in spite of the fact you can get a byte identical copy for free in about 2 seconds with a torrent. The point I make with this is that people are willing to part with more than enough money for people to make a living off of, even when they are not coerced into doing so.
People donate to/tip streamers because they perceive that it will strengthen their parasocial relationship with the streamer in question, and more generally because they're watching a performance where tipping the performer(s) is directly encouraged and culturally normalized. It follows that for e.g. a writer to make money from this model, they have to either a) turn the act of writing itself into a performance compelling enough to extract donations/tips from an audience, or b) perform on stream when they aren't writing.
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Given how competitive streaming already is (most streamers seem to report working long hours just to maintain their audience, however large or small, and burnout is common), I don't think it's unfair to equate streaming with more or less a full time job. If you aren't writing on stream, then, you've got your day job (presumably, for 99% of writers and early-career streamers), plus your streaming^[1], plus actually writing. It feels untenable to me, and it's also wandering further from "making money as a writer" as an abstract concept---at what point are you making money as a streamer/performer instead, and how important does your writing end up being to whatever success you find?
So I think we can say option b) is not a good replacement for making money off your writing directly, by selling published written works to people who want to read them. It introduces many extra steps, requires a skillset many writers simply don't have and shouldn't be expected to have (performance), and finding meaningful success will likely marginalize your actual writing practice.
As seems to be the case with many "variety streamers", you'll probably just end up playing video games in a crop top and cat ears.^[2]
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Option a), actually writing on stream, will not be an option for most writers who haven't allowed the nature of that performance to erode the quality, complexity, and/or volume of their work. Writing is a full brain thing that requires you to hold a thread of complex context in your mind (a bit like programming, actually), and it's not visual, which is going to make an audiovisual performance centered around it that much more difficult to execute well.
Seriously, imagine pair programming except it's a thousand people looking over your shoulder and your livelihood depends on making each one of them believe you're their friend.
I know writing streamers do exist. Right now on Twitch the viewer counts are very small, but I'll check them out later because I'm curious. However, the fact that some of them exist doesn't change any of the above; the vast majority of writers aren't doing it.
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> Richard Bachman
From the linked Wiki page:
> King concludes that he has yet to find an answer to the "talent versus luck" question, as he felt he was outed as Bachman too early to know. The Bachman book Thinner (1984) sold 28,000 copies during its initial run—and then ten times as many when it was revealed that Bachman was, in fact, King.
Beyond that, I'm not really sure what point you're getting at by invoking Bachman. Writing is a talent and a skill, and King is supremely talented and skilled at it. From a 'determinism' angle, it makes complete sense that he could write a book under a pseudonym, get it published, and see some amount of success on the market. The average debut author starting at his level could expect the same.
However, the average debut author is not at his level. King has (famously) done a lot of writing, and it shows. One has to wonder how that would have gone if the only way for him to find success as an author was to run a successful Twitch channel at the same time.
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tl;dr: Streaming is not writing, and they go together like oil and water. Other media might integrate better with audiovisual performance, e.g. drawing. Either way, losing rights to their work will strip independent creators of important avenues to profiting from it.
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> There are also countless other examples of things like DRM free products selling just fine in spite of the fact you can get a byte identical copy for free in about 2 seconds with a torrent. The point I make with this is that people are willing to part with more than enough money for people to make a living off of, even when they are not coerced into doing so.
It's naive to think torrenting is an accessible option for the average person. It would probably take me hours spread across multiple days to get my wife set up for it, for instance.
"DRM Free" content, unless I'm mistaken, still allows the original creator(s) to maintain the copyright. This prevents big distribution channels that are accessible to normal consumers (e.g. Kindle) from selling the work without giving the creator(s) a cut. If I publish a novel "DRM Free" in some indie-ish context, I can still sell it through other channels, and I have some recourse if somebody rips it off. Not so, if copyright is dissolved.
> coerced
This word choice is totally absurd. Nobody is being coerced, with a few notable exceptions (students who need certain overpriced textbooks to graduate, etc.). Is it coercion if I list an old lawnmower on Craigslist for $100, and when somebody shows up to buy it I expect them to pay?
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^[1] Obviously, hypothetically, you expect streaming to pay your bills. Bootstrapping an audience big enough for that is the problem; if you already have a following big enough to make a living on, maybe you will have the time and creative energy to write on the side to do a little writing, but this goes back to the Kickstarter problem: you have to build your platform first.
^[2] Not that there's anything wrong with that, but it isn't writing.
I suspect we'd see a shift towards "give the first one away free". If you're a new author, you're going to have to release some compelling teaser to get people to subscribe to the second installment.
It sort of reminds me of how anime series tend to trail behind their source material, or cut off after a few dozen chapters-- there's a real expectation it's a teaser for buying the serialized books and magazine releases.
Free software / open source licenses have effectively made copyright disappear for open source code.
Red Hat certainly does package up a large collection of open source work and sell support for it, but that has not caused authors of open source software to despair and quit writing code. It is not common for a commercial entity to republish open source software, and Red Hat is an exception.
Sure, there are a vast number of open source developers who do it on the side, or are not compensated... but that is also true of professions where copyright remains. Most authors, most artists, they write or draw on the side, post their work to substack or twitter or deviant art or such, and never see a dime.
I think open source software is a good example of what happens when you get rid of copyright - people still feel ownership for what they make, people are still creative, and a tiny fraction of people manage to make a profit off their passion projects.
Copyleft / GPL licenses require copyright law to have any threat of enforcement.
Otherwise anyone could just ignore the terms of a copyleft license and use open source under any terms they wish.
> Free software / open source licenses have effectively made copyright disappear for open source code.
[...]
> I think open source software is a good example of what happens when you get rid of copyright - people still feel ownership for what they make [...]
I think this is a quite a stretch given the prominence of copyright in popular open source licenses, including (for example) the extremely popular and permissive MIT license. You can copy it, modify it, distribute it, etc., but I still own the copyright, and you still have to give me credit for the initial development. I can choose whatever license I want, which may or may not impose restrictions on who can use my code in derivative works, etc., and how.
In a very real sense, I do own the FOSS software I've released to the world. If legal codification of that ownership isn't important to open source developers, why are so many pixels spent discussing it?
Public domain / UNLICENSE style licenses are less popular, but still have the same qualities I mentioned of people feeling ownership, even though there is zero copyright in that specific case and their is no legal codification of ownership.
I understand that MIT etc are copyright licenses, but they remove the majority of copyright's requirements. They only require attribution, and are a statement that the other parts of copyright, the restrictions on distribution and modification, explicitly do not apply.
They remove the part of copyright that people typically think of when someone says copyright.
Sure, some developers are cool with public domain; the same is true with writers and other creatives working in pretty much any medium you can name.
The fact remains, copyright is very much relevant to the open source community today. It's absurd to say otherwise, given the amount of discussion the topic generates. On that basis I categorically reject your statement that "free software / open source licenses have effectively made copyright disappear for open source code."
> They remove the part of copyright that people typically think of when someone says copyright.
"People" don't know the first thing about copyright, because (besides the obvious lack of technical knowledge) it's invisible to them when it's working in their favor and highly visible when it isn't.
What does copyright mean to creators, to whom it is granted? Does it mean ownership, in some vague, ill-defined sense? Guaranteed attribution wherever their work ends up? The right to ensure their work is used only for applications they consider ethical? A guarantee that nobody will be able to make money off it? A guarantee that nobody will be able to make money off it but them? A guarantee that movie studio X won't hire a hack writer-director for a cash-in sequel that ruins the original's reputation? The answer is that it means all these things, and more, to different creators.
As a creator of copyrighted works (of both FOSS and fiction, as it happens), copyright means something in particular to me. It means something else to other creators. I wouldn't speak for them, and I'm kind of astonished by how many people with (apparently) little or no skin in the game are willing to do so.
They are not. You still have strings attached: the requirement of attribution and the disclaimer. With 3-clause and 4-clause BSD, there are even more strings attached.
You can't just take MIT-licensed code. You have to take the code and the full copyright notice and license grant with disclaimer.
> Free software / open source licenses have effectively made copyright disappear for open source code.
And some of those licenses are being rethought by companies as they realize that that Amazon/Google/Microsoft can just take their work, put it on AWS as SAAS and capture most if not all of that value.
I watched a talk somewhere that argued that Amazon/Google/Microsoft selling SaaS access to software massively increases the size of the market for that software and in the process actually increases the revenue of existing businesses in that market, while still decreasing their market share. With a savvy team and a good relationship with the big SaaS vendors, you could definitely ride that wave to increased success.
We ran that experiment of dramatically shorter copyright terms, and it produced much of the culture you know and love before 1975. Copyright has been extended in 1976 and then again in 1998 mostly at the behest of rent seeking corporations who bought the culture after it’s creation and after paying the authors handsomely for it. Calling Disney’s business “marginalized” seems ridiculous to me?
I'm advocating for copyright from the perspective of independent creators, not big media conglomerates. Additionally, my comment is (explicitly, if you read closely) addressing the case of copyright being completely dissolved, which---as crazy as this seems---is an idea some people apparently support. You need look no further than this thread to prove this to yourself.
I am not necessarily against shorter copyright terms. Honestly, since the main reason I support copyright is because it protects independent creators' rights to their own work, I would be totally fine with completely striking the postmortem copyright period for non-corporate authors (certainly, 70 years is insane) and cutting the pseudonymous/corporate terms in half.
Then I think we are in violent agreement. People who say “copyright has gotten out of control” or “is the cost worth it to society” largely are complaining about the current state of copyright where it lasts generations in my experience. Nobody hates the creator of culture they love, the hate the lawyers strangling anyone’s ability to participate in that culture in any way other than as a consumer. If we turned back the clock to 1975 levels of protection, we would get a public domain again which is good for creators, and creators would still have long periods to profit off their labor. The next Disney could be born as the first Disney was, by remixing the rich public domain. Of course that wouldn’t be good for the current disney monopoly and so it’s unlikely to happen.
I think there's middle ground between "throw away all copyright protections" and "throw copyright infringers into prison for years".
I'm more inclined toward leniency than the draconian laws we have now.
I mean, 95 years of copyright protection? Is society really going to be destroyed if Disney has to release some of their IP under creative commons after 30 years instead? I doubt it.
I don't really disagree with any of this. Big business has corrupted the modern implementation of copyright law (e.g. erosion of fair use) and something should be done to turn it back in favor of independent creators.
Of course, big money runs everything, so that probably isn't going to happen.
I hate to say it but I think society is pretty full up on creativity these days. If the richest 1000 musicians stopped composing, would there be no music? Would it be worse than what we have now?
Point of view is everything. From at least one point of view the answer is yes.
Say I'm a small unsigned singer/songwriter, grinding along looking for a break. I write one good song. Elvis hears my song, and is free to just perform it himself. No copyright, no payment to me. His release is a smash hit, making him millions.
His performance of the song contributes a lot to his success, but the song itself is valuable too.
Of course elvis is signed by a record label, who pays him. The other record label buys one CD, and copies it (as they are entitled to do - no copyright remember.) they make millions selling it cheap (no need to spend on artists or marketing.) In fact they have a chain of stores where you can by any CD ever at half price.
So the real winner here is the person who sells to the customer, and pays not a penny upstream.
Musicians and song writers and audience builders upstream all work in construction doing their day job, and the cream of that crop can't afford to spend much time on creating. Their secret sauce is lost, and we are all poorer because of that.
Which personally, for me, sounds like a much worse system.
I think for smaller creators, what you are saying makes a lot of sense. While writing a song or story doesn't require much equipment cost, it does take a lot of time and effort, and that's time and effort that would be impossible to justify if the returns don't at least pay for food and housing.
But for big business media, it feels like the usual justification that rightsholders use for aggressive enforcement is that if too many people "steal", then there won't be enough revenue to even break even, let alone make a profit, and so no one will make movies anymore. Which is technically true, but I don't think we've ever seen infringement on a level that would make these sorts of creations financially infeasible to make.
Actually, going back to small creators: it's not like current copyright terms are reasonable, anyway. I mean, let's say it takes you a year of full-time work to write a novel and get it published. So you could say that's a year of "lost" wages. Maybe copyright terms should be floating. As soon as the author recoups the "lost wages" plus some percent for creation-related expenses and profit, then it goes into the public domain. Why should creators (and often their descendants) get to milk their work for decades? I get that something like this would be a nightmare to handle legally, so maybe it makes sense to set a shorter copyright term based on some sort of average time to break even (or perhaps say 30th percentile or whatever, to make it more inclusive of some works that take longer). That's still difficult; I imagine you'd have to have different terms for different types of work. But it might be a lot more fair to the public commons.
Regardless, current terms for copyright are ridiculous: 95 years after publication, or 75 years after the death of the creator. I mean... what? That's nuts. Before Disney and Sonny Bono got greedy about all this, max term was less than 30 years, which sounds a lot more reasonable... though IMO still high! If the cost to create has gone down over time -- which for many types of creations I believe it has -- then copyright terms should be adjusted downward, not upward!
Sure. To be clear, I'm not saying I buy the movie studios' rationale here; I'm merely pointing out what they often say.
I think a question we should also ask, though, is: is there artistic and entertainment value in massive-budget blockbuster films? I think yes, there is. I mean, I certainly enjoy plenty of them. But is that worth our current copyright regime? I would say no. But, like anything else, I expect the sweet spot is somewhere in the middle. I don't think I would advocate for no copyright at all, but I would want it to be much more limited than it is now (even more limited than in the 90s, with 14+14-year terms, I'd say).
Honestly? I do think that video and song writers are overrated for different reasons.
Movies. It isn't that they aren't worth what people pay to watch. But after ... say three to five years at most, it HAS entered Public Domain in a practical sense - just not legally... A more fun way to measure it, once you can stop using [spoiler alert] in a public forum about a movie, it is in the Public Domain.
Why a shorter period of time now? Availability. In the 1930's seeing a movie was tricky business compared to streaming on every device any time. Nowadays, after three years, anyone who really wants to see your movie has had sufficient time to do so.
Song Writers. Have you seen some of the lyrics they come up with? Teen Spirit for example. These are not literary masterpieces. But the performance is key. Dolly Parton's "I Will Always Love You" did ok with her own performances, but blasted out of the park when Whitney Houston covered it. Yet Dolly made money for a song that had been out for 20 years? Damn, that's a good racquet if you have the connections - because song writing talent is only 5% of this equation. The performance, publicity around the movie etc etc made that happen.
As for - "but it will make it hard for creators to make money"
Yes, the future will be different. Not all people will be able to make money from art. But a large chunk of this of down to democratisation of tools. Just because you too have an Apple laptop and Garageband doesn't mean you should be able to make money.
Ultimately, all the people wanting to make big $ out of music are looking at the 60's-2000's time of music where corporations milked the scale of selling copies of music rather than performances. Now that bubble has popped.
Will your song be a masterpiece in a gallery earning you a lifetime of riches? Likely not. But that is the same for most painters in history.
Looking at the long list of credits of most recent effects heavy movies I don't think it's quite true that special effects are cheap. Sure, I get that anyone with enough motivation and Blender can making something cool. But at least at the moment, looking at any 3D movie or animated movie, it's 1000s of people for 1-3 years of work to make them. That's way way WAY UP from what it was 10-20-30 years ago.
> Looking at the long list of credits of most recent effects heavy movies I don't think it's quite true that special effects are cheap.
>> You can do special effects for a few grand that cost a million dollars a few decades ago.
You can definitely do the same special effects that were available 10-20 years ago by yourself for free today. If you want to do special effects that match today's standards, yes that's going to be much harder. I don't think that's what the OP meant though. I think they were saying that what used to be very difficult and cost tons of money, can now be done by one person relatively cheaply or even for free.
None of the special effects artists, sound engineers, editors, costume designers or other associated professionals are getting royalties at all. They get paid for the work they do once and that's it. Actors get royalties, but if you're not one of the top names in the film, the checks will maybe buy a dinner out occasionally.
Not quite? The reason they have money to pay the salaries of special effects artists, sound engineers, editors, costume designers or other associated professionals is because of previous movie income.
> Same with movies, television shows and music. They just don't have the impact they used to. You can do special effects for a few grand that cost a million dollars a few decades ago. As it is faster and easier than ever to make a movie, we don't need to offer such a long period of time for exclusivity.
There are a lot of problems with your comment (are impressive special effects the only thing you need to make an "impactful" movie or television show? can you show your work to prove your claim that music, film, and television today are less "impactful" than in the past?) but I think this is the most obvious one: we are, evidently, spending more to make blockbuster movies today than we ever have before. This would seem to put your "faster and easier" claim on very shaky ground.
Many of those most expensive films spent much of their budgets on major actors. That’s a function of Hollywood accounting where actors need to be paid upfront for the potential value of the income generated rather than paid based on how well a film does.
The most expensive film on that list Pirates Of The Caribbean: On Stranger Tides (2011) out of a nominal 378.5 million paid $55 Million for Jonny Depp. Orlando Bloom made 11 million on that same film etc.
By comparison Orlando Bloom made got $175,000 For The Lord Of The Rings trilogy and 21 million for the Hobbit trilogy.
> Many of those most expensive films spent much of their budgets on major actors. That’s a function of Hollywood accounting where actors need to be paid upfront for the potential value of the income generated rather than paid based on how well a film does.
A brief Google safari suggests that while this may sometimes be the case, it's far from universal, and can't really account for the overwhelming trend of recent films appearing on the list I posted.
So where's the source? Where's the inflation-adjusted budget breakdown equivalent of what I posted?
The budget breakdown you just linked is fine for what I am describing.
The logic here is a little strange but it does explain why more recent movies especially sequels dominate that list. More recent films have larger audiences due to population growth and ticket prices have kept up with inflation. That means more recent films have a larger likely revenue stream especially sequels for popular movies. https://en.wikipedia.org/wiki/List_of_highest-grossing_films EX: Ben-Hur the most expensive movie that had been made in 1959 at the equivalent of 158 million and pulled in the equivalent of 900 million would hardly worth mentioning as a major film today.
Actors/directors/screenwriters/music rights holders/etc are going to negotiate based on the potential revenues therefore the larger the potential revenue the more they want to be paid upfront.
Now, that doesn’t directly impact shooting or special effects budgets, but if you’re already spending 100+ million on the “Actors/directors/screenwriters/music rights holders/etc” then there is little reason to economize on the special effects budget. Trying to economize at that point is just not worth the risk especially when the budget is fixed before you start. Might as well keep things padded at that point.
Ok, I think I see what you're saying. I would definitely expect the expanded market for modern blockbusters to be a big factor in driving the upward budget trend. As you say (I think), most or all of the different production departments will then get a bigger piece of pie.
I used to think that patents were essential, but the reality is that they don't provide much protection to ordinary inventors and are mostly used in rent-seeking and extractive behaviors by major entities.
The reality is that a patent or copyright is not a protection, but just a ticket to a lawsuit. That lawsuit will take years and 6-figure dollars to prosecute to a usually unsatisfactory result. When it costs well into 5-figure dollars merely to get a patent, it's not worth it for a small inventor and is just the cost of business for a patent troll.
Other than marketing value of "we have 5 patents on the tech in this product!", it's generally better to go trade secret, IMO...
Copyright, is better in that it doesn't cost much to assert one, but going beyond a decade or two after the life of the author is again only something that favors some large corporate entities.
Remember, the entire purpose of both of these is to benefit society and the country as a whole - to promote innovation. Promoting large corporations rent-seeking and extractive profits fails to do that.
>> Remember, the entire purpose of both of these is to benefit society and the country as a whole - to promote innovation
This is inaccurate. Patents are designed to promote innovation.
Copyrights are designed to promote creativity, not innovation. My novel is not innovative, it is creative. Copyrights allow me to monetize my creations if I choose to do so.
Patents are designed for people to monetize invention.
Conflating the two is both common, and unhelpful, as they both need different reforms in different aspects.
Of course they are distinct and need somewhat different reforms.
However, they have much more in common
They are both legal structures creating and enforcing the concept of "intellectual property" and supporting monetization of that property for the creators.
I read the phrase "promote creativity" as indistinguishable from "promote innovation in the non-STEM (artistic, literary, etc.) fields" — sure, in general, "innovative" connotations differing from "creative", but in this discussion, it is a distinction without a difference.
Maybe I'm missing something, and I agree that they both need reforms in different aspects, but that is primarily because they have different sets of laws, not because of some distinction between the two words you've highlighted.
"Intellectual Property" as a term covers more than monetization though. For example it covers Trade Marks which has more to do with ownership (ie a "brand") than with direct monetization. I don't sell my trademark.
The distinction is important because one can be pro, or against, monetization - for or against ownership, pro or against copyright and so on. Incidentally copyright isn't as much about monetization (almost no creative works make any money) - it's more about control over the creation.
>> I read the phrase "promote creativity" as indistinguishable from "promote innovation in the non-STEM (artistic, literary, etc.) fields"
I understand where you are coming from, but I would argue that there's a big difference between innovation and creativity, and conflating the two does not necessarily lead to progress in reforming either.
>>"Intellectual Property" as a term covers more than monetization though. For example it covers Trade Marks which has more to do with ownership (ie a "brand") than with direct monetization. I don't sell my trademark.
Interesting example, but it is still all about monetization, even if slightly indirect. E.g., every franchise operation licenses it's trademark to it's operators - You and I can setup a hamburger restaurant, but we'd better not call it McDonald's or Wendy's without signing up to their franchise agreement and paying the fees.
I've worked in both software and now in mechanical engineering fields, and I'm also having a hard time seeing both how innovation is not merely creativity applied to one field and the arts are creativity applied to another. Whether I'm creating a new widget, or way to make the widget, or you are creating a new painting, song, or written work, we're both applying our training, knowledge, experience, and creativity to create something new.
Even more so, I don't see how making this distinction inhibits making reforms.
In both cases, we need to reform the system so that it is not merely a tool for corporations to implement restrictive rent-seeking regimes to extract profit and inhibit progress. Any further detail you can provide?
Physical property and intellectual property are fundamentally different legally and philosophically. The terminology causes much confusion, especially among those with classical liberal leanings.
As far as I understand, there is no criminal penalty associated with patent infringement.
With copyright violations you can in theory get prison time (as the warning on a DVD informs us), but it's very rare — on the order of a couple hundred people a year, and mostly for selling bootlegs, not for downloading movies off The Pirate Bay. I don't believe that the extra prison capacity required to house that many people is really much of an argument (even in small part) for removing all copyright and patent protections for everyone.
Keep in mind that the work of every independent artist — writer, musician, game developer, whatever — is enabled by being able to sell their work, rather than have a perfect knockoff sold on Amazon for $.99 the day after it's released.
Re: "intellectual property" and "piracy," I agree. The terms are problematic and misleading. How about "intellectual monopoly" and "infringement" as more accurate, neutral terms?
The concept of "intellectual property", which is a blanket term to include trade marks, copyright, patents, trade secrets and more is unhelpful because this covers multiple parts of the law, which were developed independently with different goals.
While there is a lot of good in there, (not much complaint about trademarks), some mixed (copyright is good, 95 years is excessive), some bad (software patents) it's very mixed, and so lumping it all together as "intellectual property" is unhelpful. If for no other reason than it is too broad a topic that is too easily distracted to get anything resolved.
Ive always been in favor of the idea that only a person(s) can hold said copyright or patent and not the company, instead the company can have a license that protects their specific version of said work.
New drugs are one thing (though even there, prizes and academic grants are a meaningful alternative to patent protection), but do we really need big-budget movies? They seem like a total waste. Most of them have trouble ever making a profit, and that's in spite of extreme levels of copyright enforcement (at least wrt. average users, not dedicated pirates).
If that were true, most of the big-budget movie studios would be going out of business regularly. But that isn’t happening, by and large. They do sometimes want you to think they’re not making money. Having worked in the film & games industries, I’ve witnessed some of the creative accounting that gets used.
> do we really need big-budget movies? They seem like a total waste.
Well, people pay for them, and our IP laws are designed to protect the business of creations and inventions. Most of the pharma industry is also peddling stuff we don’t need and is wasteful, however it is big business.
It is interesting, but should be taken with a couple pretty big grains of salt IMO. It does a good job of discussing the many varied sources of cost and income. But the secret unsourced data of unnamed movies that is “trust me” better than what’s on Wikipedia and Box Office Mojo… really big red flag. I absolutely do not buy that the average profit is 3.7%. I worked on one of the movies he discusses (Shrek 2) and the paragraph about it is misleading, which for me makes me wonder how many other paragraphs are misleading. I also worked for a 2nd major film company and watched first-hand how they account for production budgets, which can involve trading costs with other nearby productions to make the expenses appear larger in order to do things like justify restructuring decisions, hide gains and losses, divert money toward or away from bonus pools. What really happens is impossible to know even as an insider, but the outcomes of this industry reveal that despite what they claim, it’s quite healthy for the big-budget crowd.
It's worth understanding that "profit" is usually not the goal, and in any business can be easily made to go higher or lower.
For example if I want my business to make more profit, I can stop paying me a salary. I can just take the same money out as profit. Or vice versa. Ultimately I end up optimising my salary/profit ratio according to the tax laws.
Notice the studios managed to spend 8 billion on "other stuff". That's not "profit" (so less to pay people who have profit share) but it certainly went somewhere. And those feeding at the $8b trough certainly view big budget movies as a massive win.
Sure Hollywood Accounting is well known, but it's no different to any business. Profit is a meaningless number and ultimately the flow of money is optimised for many other things.
If you abolished patents you'd have to reduce regulations on drug discovery enough that university teams can make new ones (like in the bad old days of the 1950s). Big budget movies we can just do without.
On a related note: If you reduce the regulations on drugs you could go back to the good old days where new drugs cost under a hundred million dollars to make. This would let smaller companies make new drugs and drug companies would get slightly less insane margins (your average big pharma company gets $2 for shareholders for every $1 they spend on R&D, manufacturing, admin, advertising, etc).
Lots and I really do mean lots of drugs are funded almost entirely by governments and basic research at universities. Covid vaccines being one example.
If you look at where the money for research comes (for new drugs, not for variation of existing drugs) from in big pharma you'll see a significant part of it is government money.
But ethically do you think it is okay for big pharma to keep the intellectual property on medicine that can very well save lives? I think you have to make a very good case for patents being a force of innovation to justify keeping this medicine out of peoples reach. Let's not forget when bill gates spent millions of dollars distributing information in Africa against the copyright waiver the government was planning in order to make AIDS medicine affordable. Rent seeking on medication is, in my opinion, one of the worst use cases for copyright.
And then, from there, isn't access to culture also a human right? Personally I think it is. Of course in our current societal and economic system it is extremely punishing to be an artist. But to me, that indicates there is something wrong with our system when artists have to rent seek or starve! We do have to question the basis of what makes our society tick more carefully. There are always trade offs, but I think the direction we've taken... The direction of strenghtening rent seeking behavior is probably at odds with creativity and freedom of expression.
I mean, look at "memes". These images with funny text that people make. These are often anonymous pieces of work that are meant to be copied and distributed for free! I think the proliferation of talent and artwork is related to the disruption of access rather than copyright. Look at the amount of free work that is produced on the internet, from tiktok to memes to fanfiction. 60 years ago it took a lot to be a writer, publishing was very expensive so of course there needed to be a system to support that. But that's no longer the case, the internet gives you a way to reach millions of people instantly. Anything that can be digitalized is on a whole other level now.
So to me, the cost of maintaining copyright has to be put in the balance with its benefits... And I'm not sure we wouldnt see big budget productions without it. I mean, wasnt game of thrones the most pirated show ever anyway?
Isn't it also just generally impossible to say if a sale was lost because of piracy? A pirated copy may never have actually been a sale and how would anyone know?
A lot of early studies on piracy suggested that it actually promotes sales more than it removes them. It's just that this is mainly on the side of the less famous musicians, artists, etc, because it gives them more reach (in the case of music people were less likely to try out their stuff if they only had a limited budget to buy records and little opportunity to listen to albums beforehand). It's mainly the biggest mainstream acts that see reduced sales.
Personally I don't have much of an issue with that. Of course, this was before streaming was a thing so who knows if the effects of piracy on sales have shifted again as a result of that.
And then there is of course the angle that we're artificially limiting supply of digital goods anyway, but that's an entirely different can of worms.
The flip side of this is that sometimes copyright owner may not even care about sales, they simply don't want people to get their work for free.
Of course it's almost never the case for large companies which are profit driven, but I once saw an indie Japanese artist said things similar to (when reacting to his work being pirated) that (paraphrasing) "I didn't care if it helps promote my work or the fact I won't lose sales anyway (since I don't sell my work overseas); I just found it's not fair for people who actually paid".
I personally is still on the fence, but his comment did make me think.
You could say the same of a stolen DVD. Would the thief have otherwise paid for the DVD? At least in the case of a physical good, you could argue that the item being stolen "may" have prevented someone else from buying it, but even then there's no guarantee.
Devil's advocate, it's not that simple. Producing a DVD is cheap, the seller can produce them for almost nothing per unit (not zero though).
It could be that this stolen DVD allows N people to discover its content and buy the DVD. The seller wins from this stealing even for a small N. N could be bigger than when downloading the movie instead, because the DVD can be seen in a shelf for example.
Is it fundamentally different? (it's a genuine question, I have not studied anything on the matter).
The only difference I see is that almost nothing = zero when downloading the DVD's content instead of stealing the physical object.
edit: I actually see a difference, there's no guarantee that a stolen DVD does produce any sale, and so there is a loss even if it is small, but I think the question is still not simple to answer.
> Producing a DVD is cheap, the seller can produce them for almost nothing per unit (not zero though).
That's true, although I was thinking more about retailers who presumably pay much more than the marginal cost (though still much less than the retail price). It's also probably true that copyright laws are responsible for the vast majority of the commercial value of physical copies of digital media. Perhaps an easier way to see the fundamental difference is that when you're downloading a copy of a movie from BitTorrent, all the parties actively involved are willing participants.
> It could be that this stolen DVD allows N people to discover its content and buy the DVD.
This is also a real possibility, and is a strong argument for copyright holders to rethink their business models (and, in my view, for societies to rethink copyright laws). But I don't think it's a strong argument for treating the theft of a physical DVD and someone torrenting a movie as being remotely comparable.
It is possible that movie (DVD, Blueray) sales are similar to book sales. The stock is only paid for when it is actually sold. That allows shops to hold huge stock on day 1 with less financial risk and also to price-match all other shops regardless on when they received their stocks.
By the time the DVD is licensed and produced and shipped and put on a shelf taking up space, that's most of the price tag accounted for.
Even if you used the wholesale price for theft, it wouldn't make a big difference. There's a real burden there that's very close to a lost sale even if it's not actually a lost sale.
With piracy none of those costs exist, and any costs that do exist are paid for by the pirate.
How about buying a preowned DVD? If we decide that what you're paying for is the entertainment and joy of watching a movie, are we not stealing from the content creators by reselling and purchasing used DVDs?
Edit: I'm making it clear I absolutely despise this argument of course :D Being able to buy/sell used physical media is my favorite reason to buy physical and never buy digital.
I'm sure there are many owners out there that hate the fact physical media is resellable. I'm sure this is at least part of the reason everything is becoming more restricted by copy protection, streamed, proprietary downloads, etc. Everything is becoming harder to own and share without "pirating".
The thing I really hate about not owning content is the access is so damn unreliable. One day I have an album in my playlist, the next day it's gone because licensing or whatever. Then I randomly have to log back in. Maybe on a device i dedicated for playing music that's a pain in the ass to interact with.
I could play Mp3s on a 20 year old computer. That 20 year old computer won't work with apple music lol.
Hell, I can play DVDs that I bought 6 months ago on my 17 year old PowerBook G4!
A stolen DVD seems more likely to be a lost sale, than an unauthorized digital copy. The person stealing the DVD has gone there in person and is willing to risk a possible interaction with staff/security. So they probably want the DVD, and would buy it otherwise. The person who downloads the movie might just be randomly browsing and not really all that interested otherwise.
> A stolen DVD is very clearly a reduction in the number of DVDs the seller can possibly sell.
But that's not true; you would have to assume that the number of DVDs the vendor orders is independent of the number of DVDs the vendor loses to all forces including both sales and theft. That assumption is obviously false. If you run a store, you're not limited to ordering a single shipment of whatever DVD; if it sells well, you can order additional shipments.
If I steal 50 Disney DVDs from a store (and they aren't recovered by the police) the store's insurance will reimburse the store for the loss, and then the store will order more DVDs to refill their stock. Disney actually comes out ahead in that case, believe it or not
And in the case of the stolen DVD, the DVD is physically gone from where it was. In the case of digital copies, nothing is lost besides the potential for one particular sale.
The damages are at least the wholesale price of the DVD (probably half the consumer price) in that case. With piracy that becomes harder because the marginal cost is zero.
In many cases copyright infringement doesn’t result in a lost sale. If the copyright holder refuses to sell the product, then surely the damages are zero.
The majority of copyrighted material is not available for purchase
Over time I have honestly went from "Copyright must be reigned in" to "Copyright must be abolished". Some limited kind of author's rights should remain, but copyright itself seems to have an entirely negative utility.
Well in this case, we're talking about a industry espionage and modchip crew that has been around since the first Xbox. I personally know people who used their products and (as the result) never ever purchased a game that they played. So my experience would suggest that Xecutor modchips were really popular. I'm pretty sure $65m is a rather conservative estimate of the lost sales that they caused.
There have been periods of my life where I pirated almost every game I played. If it wasn't for piracy... I wouldn't have bought any games, because I didn't have any money to spend on them.
Then Steam and Actually Having a Job happened and I didn't do that any more.
I still pirate games, but it's only ones that aren't being sold any more, so I don't see who's missing out there.
Gabe Newell was absolutely right when he made it clear that piracy was a demand being unmet.
I suspect part of the Steam Summer Sales being as deep as they are is to give a chance for people who can't afford AAA games normally to have a way to snag them at 80-90% off. A big AAA title makes the majority of its money in the first few months of sale, then fucks off for the rest of its lifetime, so doing deep cuts in the summer makes it profitable through volume.
I like to buy them at about 50% off, and forget about them until I try to buy them again at 90% and remember that I already own it and haven’t even downloaded it yet.
If they pirated 100 games, maybe they would have bought a handful at retail price, even given unlimited funds. A few more on discount.
Anecdata, sure. But it speaks to the point that game pirates don't really play the vast majority of what they pirate, they try them out a bit and move on mainly because the time cost is virtually nil.
If the chips didn't exist though would they have actually bought every one of those games? Would they have bought the console? I doubt this is information that could actually be gathered and calculated accurately as damages.
There's likely millions of people in a situation like me. If each of them only didn't buy one single $60 game because of the modchip, then that sums up to $60 mio.
I agree that pirated copy != lost sale. But if you play 20+ games and buy 0, I'm pretty sure without modchip it would even out at maybe buy+play 5 games. Plus there's games like the Zelda series that every hardcore fan will play. So for those games, I think it is fair to assume 50% of piracy would have been a lost sale.
And lastly, how do you know that people didn't "buy" their cracked games? When I was traveling Asia, you could buy a modchipped Switch and bootlegged games in the same store. So then you still pay $5 for a new Switch game, it's just that the money goes to some Chinese counterfeit group, not to Nintendo.
It sounds pretty much right to me. Consoles have a typical tie ratio of around 8-10 games, and people who mod their systems (who, if anything, would skew towards people who would otherwise buy _more_ games) typically buy zero.
Sorry for the somewhat obvious reference, but I thought that The Right to Read by Richard Stallman [1] would probably have predicted something similar. Of course, it had:
There were ways, of course, to get around the SPA and Central
Licensing. They were themselves illegal. Dan had had a classmate in
software, Frank Martucci, who had obtained an illicit debugging tool,
and used it to skip over the copyright monitor code when reading
books. But he had told too many friends about it, and one of them
turned him in to the SPA for a reward (students deep in debt were
easily tempted into betrayal). In 2047, Frank was in prison, not for
pirate reading, but for possessing a debugger.
People may quibble about the specifics here "It's a game, not a book", but to me it honestly sounds like we are firmly on the trajectory to this horrific reality.
No one should ever go to prison for a lot of things, but "allowing people to play computer games" sounds like it should be pretty high on those lists. I have never owned a Nintendo device, and will continue to avoid them now that I know about the terrible consequences of their profit-seeking.
I just can't really feel any animosity toward Gary Bowser (or his business partners) here. The amount that Nintendo "lost" is probably a couple orders of magnitude less than the damages that Nintendo claims. An illegally-obtained copy of something does not equal a lost sale! It's of course not surprising, but is ultimately gross, that rightsholders keep trying to claim that every unauthorized copy is one that the recipient would have paid for if it hadn't been available illegally, when we know at this point that's far far far from the truth. The vast majority of people who obtain illegal copies would never pay in the first place.
I think it would suck if a small creator got screwed over to this degree by a group of infringers like this. But the true loss to Nintendo here is far less than it costs them to litigate, and is a rounding error when compared to their total revenue numbers over the years involved here. It's only profitable for them to litigate because they're able to obtain awards in such ridiculous excess of their actual damages.
I don't think I'm really strictly in favor of this sort of organized copying, especially for profit. But I just can't get even a tiny bit riled up about it, either. I think, up to a certain point, companies should be forced to just accept this sort of thing as a cost of doing business. Sure, figuring out what that certain point is might be really difficult to agree on. But I think this particular case falls well below that point. Remember that copyright is a social and legal construct. It's up to the public to decide what rights it confers, and what remedies are available to rightsholders who feel harmed by infringers. There's nothing inherently "correct" about the rent-seeking behavior our current laws enable.
>An illegally-obtained copy of something does not equal a lost sale
Not one to one, but easy availability of pirated content certainly results in a non-zero number of lost sales. So then the argument is about the size of the damages and not whether damages exist.
There's also an argument to be made that piracy increases sales in some cases, most of my music/game/tv/film tastes as an adult can largely be traced back to content I pirated as a teenager who didn't have money to spend. Now most of my spending on entertainment either goes to artists/franchises that I was introduced to via piracy, or on services that are more convenient then piracy (Steam, Apple Music, Netflix, etc.)
I really like the Switch. I bought it solely to play Breath of the Wild and I regret nothing. Actually if I could play it on PC in 4K that would be nice but we live in the world we live in.
But Nintendo has had some pretty despicable practices when it comes to so-called IP infringement and this is just one example of that. As i understand this case, the guy merely sold devices that would allow others to play pirated games. Is that correct? That's insane. He's not even selling thos pirated games (AFAIK).
So called "unauthorized" use of a device you ostensibly own should never be a criminal offence.
If Nintendo wanted to sue the guy in civil court to shut him down, that'd be one thing. But getting the criminal "justice" system to do their dirty work? Can you really look at that and not be convinced that the governments works for and on the behest of the capital-owning class? Really?
Want another example? Steven Donziger [1] helped Ecuador win a $9.5B judgement against Chevron for their massive and egregious pollution in Ecuador to which a US Federal Court judge empowered a private oil law firm to criminally prosecute him in the US for fraud. He was held on $800,000 bail and was under home detention for years over "misdemeanour contempt of court* charges.
But I digress...
Another example of Nintendo's heavyhandedness: Nintendo used to copystrike streamers for streaming their games. I don't believe they do it anymore and I'm not sure when exactly they stopped.
But that just goes to show just how insane this IP situation is. Most stremers are technically in violation of copyright law. It's just that the copyright holders aren't choosing to enforce those rights. Even if they don't, you can still get a strike for, say, music in the game (eg the GTA games suffer from this).
Team Xecutor was not merely selling devices to "run homebrew software on your Switch". They specifically marketed it for piracy, and according to the US Dept. of Justice:
> To support this illegal activity, Team Xecuter allegedly helped create and support online libraries of pirated videogames for its customers, and several of the enterprise’s devices came preloaded with numerous pirated videogames.
I know there are unofficial ways of doing this but the assets and even the engine aren't designed this high a resolution. Upsacle all you want. It's not the same thing.
The Axios piece linked gives an entirely different view of the case. Like the judge saying
>“What do you think?” Lasnik asked Nintendo’s lawyer at one point. “What else can we do to convince people that there’s no glory in this hacking/piracy?”
And what would a judge who uses copyright monopolist terminology like "piracy" even know about hacking?
> District Judge Robert Lasnik noted that TV and movies glorify hackers as “sticking it to the man,” suggesting that “big companies are reaping tremendous profits and it’s good for the little guy to have this.”
> What else can we do to convince people that there’s no glory in this hacking/piracy?
> There would be a large benefit to further education of the public
This judge is actually asking the monopolists worth billions how he can help to indoctrinate the population into accepting their eternal rent seeking. Then he sends this guy to jail to send a message.
I would prefer the opposite: what can we do to convince companies that this sort of thing is just a cost of doing business, and they should just put up with it and be happy with all the ridiculous profit they still make in spite of it?
Of course, the answer to that is "nothing", because companies will always use every legal tool at their disposal to increase their revenue and profit, and shut down anyone who threatens that even a tiny bit. Well, I guess "nothing" isn't the answer, it's "enact drastic changes to copyright law", but I don't expect that to happen, either, so... "nothing" it is.
> The anti-circumvention aspect of the DMCA is absurd.
I mean, I get it. It's like going after the drug dealers rather than regular drug users. Except where it isn't, since building tools is inherently neutral (screw the idea of "must have significant non-infringing uses"), as it's up to people who use them to decide to use them for good or bad.
Is this a DMCA violation for using modchips to defeat an IP protection scheme ?
I am not up to date on the current jurisprudence here - if I clean-sheet reverse engineer (Nintendo hardware) is it considered illegal to create and market modchips based on that ?
Or did they have proprietary code/firmware/loaders copied into them ?
He pled guilty to the anti-circumvention part of the DMCA. Any attempt to bypass DRM is illegal, save for a number of exemptions listed by the Library of Congress every two years. So yes, your reverse engineering would be illegal.
How can that be possible? What if I made the worlds worst DRM and then sued everyone who bypassed it? How can bypassing DRM even be illegal? If someone owns their hardware then you can do any hardware or software modifications you want to it.
The difference I think is that the lock on your front door is on your front door. Whereas I think even if there's no other copyright violation, it's still illegal to break DRM.
Picking the lock involves trespassing your property. Breaking the DRM is illegal regardless of if it's trespassing on anyone's property.
Regardless of the merit of the rest of the argument, the quality of the DRM doesn't really matter for the same reason the quality of the lock of my front door doesn't matter. Most locks are shit that can be picked by a toddler in a minute. Their goal is mostly to make sure that if you open the door, you meant to.
I believe the wording used is "effective technological protection measure". So it's presumably up to the courts to decide whether the DRM was "effective" in the first place. (I am not a lawyer etc. etc.). I suspect it largely comes down to intent. To make an analogy, you'd still be on the hook for breaking-and-entering, even if your victim's front door was made of cardboard.
> How can bypassing DRM even be illegal?
Same way anything else can be illegal, they made a law saying so.
>a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
Iirc there is case precedence for Adobe successfully invoking the DMCA with a ROT13 protection system. That’s the software equivalence off a child’s decoder ring and can be done in BASH built in (`tr`)
I agree with you on all the other bits, but I'm curious as to why you believe it's unconstitutional. Not trolling here; I don't think I've heard constitutionality arguments against the DMCA, and I'm curious if there's something there.
Not GP, but I assume they mean that publishing DRM circumvention tools is or should be protected expression/speech (as is publishing any other type of software or code).
I get your incredulity, but that's the law as it stands now.
> If someone owns their hardware then you can do any hardware or software modifications you want to it.
In practice, this isn't something you'd get in trouble for. But if you were to distribute tools and how-tos to help others modify their hardware, that's the bit that really gets you in trouble. I believe there's a carve-out for tools that have significant non-infringing uses, but I'm not sure how well that defense usually holds up.
But yeah, overall it's stupid, and disgusting that this has been the law of the land for over two decades now.
Under the anticircumvention clause of the DMCA, if I xor every 7th byte of 8 byte blocks with the value in the 8th, and you figure that out, and then wrote a program that (un)did the xor, you'd be in violation of the DMCA.
Doesn't matter outside of that, the law is poorly written, any means or attempt to break the circumvention is a violation.
> What if I made the worlds worst DRM and then sued everyone who bypassed it?
That was exactly the case with YouTube's DRM (video URL is encrypted with a key that is embedded in the javascript for the web page) and was the basis for the takedown against youtube-dl. I am not sure what the court would rule, because in that case everyone from GitHub to Google told the RIAA to pound sand and people didn't get sued.
"What if I made the worlds worst DRM and then sued everyone who bypassed it?"
Any damages would be eaten up by lawyer's fees. The legal fees are (arguably?) worth it to protect a whole system's games from being freely available but the lawsuit itself would not be profitable.
> "What if I made the worlds worst DRM and then sued everyone who bypassed it?"
Sklyarov was taken to court, and ~I believe is still in jail~, for bypassing Adobe's use of the amazingly secure ROT13 cypher.
EDIT: Charges were dropped a year later, because of the insanity of charging someone for using such an insecure mechanism. But only after both the EFF and Adobe came out in support of Sklyarov.
Almost none of the plaintiffs would ever pay. Like this case, Nintendo is supposed to get ~5 times the amount of money they claim he made. How would he ever pay that, more so while in prison?
It's an interesting story, I used to be part of the modding community so I can lend some insight here.
In the early days of Switch hacking, there were mostly people just poking and prodding at different parts of the console to see if it would spit out interesting stuff. Fairly rudimentary stuff, like checking for secret Amiibo with custom NFC tags, hacking together Joycon drivers and even opening the device to play with the exposed hardware: all of it perfectly legal. Eventually though, someone found the secret switch on the bookshelf (shorting out one of the physical controller connector pins if you're curious), and the community was off to the races to design a custom bootloader/firmware like they did on the 3DS and Wii.
This is where the problems start, as I'm sure most people here would know. Messing with software is a dangerous thing (legally speaking), and so effectively 2 camps were formed:
- Team Xecuter, a close-knit circle of devs who intended to hack the Switch come Hell or hard-modding. They had no stipulations against using leaked code, directly profiting off their customerbase or inflaming their community, when it came down to it.
- Team Atmosphère, an open-source project that went with the "slow and steady" approach, attempting to find an ethical softmodding solution that could easily be applied to any Switch without fear of legal repercussion.
Both of these teams would fight each other viciously over the course of 2 or 3 years. Team Xecuter was first to figure out game piracy, but Atmosphere had a working warmboot before Xecuter did. Atmosphere was able to install games locally before Xecuter could, but Xecuter figured out booting from attached storage before Atmosphere did. The groups traded blows like this continually until, like Napoleon looking out on the Mediterranean, there were no more features to conquer. Xecuter had an easy-to-install commercial hardmod that was almost exclusively designed for piracy, while Atmosphere had polished off a more difficult but rewarding softmod, with emulation and homebrew capabilities (and eventually piracy, too).
So, what was Team Xecuter's crime? Putting the signing keys in the hardmods they sent out. With every successive Switch firmware update, Nintendo would issue a new list of attestation keys that came with each game purchase. To allow unsigned games to be booted, TX packed in these keys (and offered them on a monthly basis afterwards to hardmod owners), which really sent Nintendo off, leading to arrests like the one mentioned here. Atmosphere remains thankfully untouched today, and even though the odds looked stacked against them, they have delivered the most polished Nintendo Switch modding experience you could ask for. It's quite wonderful stuff, especially if you've ever wondered "how would this Python script run on Switch...?"
...oh, and the Switch modding community was absolutely insane for those few competitive years. There were a few other noteworthy community villains like Blawar, but that's a story for a different time.
You’re giving TX way too much credit here. Most of what they were selling was GPL-violating rebranded Atmosphere code with piracy tools preinstalled. They were screwing over the open-source hacker community and Nintendo at the same time. They probably don’t deserve a prison sentence this harsh, but I’m not particularly sympathetic toward them.
Hah, I largely feel the same way towards them. It's a real "play stupid games, win stupid prizes" situation, but even as someone who loved the Atmosphère project, I think TX deserves at least some credit for being competitive. Yes, they cheated and cut corners (and eventually paid the price), but that doesn't make them monsters. Bowser's arrest is fair, and while it is sad that team is facing health troubles, that's something they should have considered before taking a multinational corporation head-on.
All of this could be seen from miles away from the beginning though. Thoughtfully-built software tends to live longer than hastily made products, Atmosphère had already won the second TX decided to step in the ring.
> Nintendo have had a conflicted stance about community projects over the years. From threatening UltraHLE (early Nintendo 64 emulator) developers back in the late 90s to largely ignoring the Wii exploits and homebrew scene in the mid-to-late 2000s to attempting to hire private investigators to identify and implicate 3DS homebrew developers in 'illegal' activities.
Ultimately I think if Xecuter did not have their product so closely intertwined with enablement of piracy and distribution of copyrighted content it would leave Nintendo less legal ammo to use against them and potentially make it not worth pursuing.
Important to note the RCM exploit only works for the first revision of Switch units. This does not justify other potential crimes Xecuter may have done but certain previous mod-chips for certain previous consoles have been open-source in a clean-room design not including copyrighted content by the original vendors thus potentially removing issues of copyright infringement. Sad the Switch scene could not be the same.
I believe they were selling software packages that ran due to the modchips that were advertised to enable piracy.
Had they not shipped code-signing patches and advertised this as a way to private games, I'm curious if the defense would have been easier. What'd they get him on -- the DMCA?
"Conspiracy to Circumvent Technological Measures and to Traffic in Circumvention Devices"
Defending your IP as the name implies would obviously consist of defensive moves, noticeably different than aggressive retaliation.
You don't need to know much about copyrights or patents to instantly recognize when you see overagressive predatory enforcement, versus straightforward defense.
For some people it's not enough to halt a violation, their team is truly motivated to fully inflict torture on the identified violator.
For those reading this on mobile, the following uBlock filter lets you actually read the article, instead of a garbage autoplay video taking up 30-40% of the screen and being impossible to dismiss:
kokatu.com##div.autoplay
I really hope at some point we have some way of challenging these arbitrary "lost sales" figures. Just because someone can't pirate something does not 100% guarantee that they'd buy a legit copy.
I was under the impression that there was hard data showing that most illegitimate copies would not be replaced with a legitimate sale if the illegitimate copy didn't exist. Is that not the case? I'm hoping this hasn't just been wishful thinking on my part...
But of course it's up to judges and juries to be swayed by this data; clearly they haven't been, if it exists.
Most of them I'm seeing were from about 10 years ago, it'd be really interesting if the results are the same today, especially with the huge changes in TV/movie streaming options.
I hate the stupid argument that "white collar crime" is just as bad. No, hurting a company's profits isn't as bad as stabbing someone. These are very different things.
While "just as bad" is a useless statement (ethics can't be quantified like this) I'd argue that's it's a worthwhile sentiment.
Not all white collar crime is stories of underdogs swindling faceless corporations. Some crimes destroy the life savings of thousands of people, ruin thousands of livelihoods. Mass incidences of fraud can bring down entire economies like in 2008 - it's not direct but it will certainly cause far more death and misery than any one stabbing.
I think that's another reason why "white collar crime" is too broad a category. Some WCC has real regular-Joe victims that are hurt (think financial crimes like Ponzi schemes), and the people who perpetrate those sorts of crimes should have the book thrown at them. But other WCC is like what we're seeing here. The Switch is still ridiculously profitable for Nintendo despite copyright infringement. I'd prefer to live in a society where companies were forced to just accept small-scale (when compared to total revenue) infringement as a cost of doing business.
Prachett has a good look at it in his book Going Postal - each “victimless crime” just has its victims spread over a large number of people. You’re slicing hours/days from people instead of lifetimes.
So when windows blue screens 67,000 times and we have to wait 100s for a reboot (78 people years) is that the equivalent of an auto manufacturer killing someone?
They didn’t do their job, and now the world is on hold for them. No, life goes on.
is this everyone on HN's first time reading that prison is not very good for people? kids get longer sentences for stealing candy bars. the entire prison system is state organized torture and it basically shouldn't exist.
We arrest criminals, throw them.in a torture chamber for years and then are surprised that they aren't rehabilitated.
If harsher prison sentences "deter" people from crime, why does the US not have a lower crime rate than Europe or Japan? Clearly other factors are at play, including, I think, the high degree of alienation in our society.
I think it's important that we think abour abolishing orisons and looking at the brutality ans arbitrariness of the system.
>I'm all for doing something, but what do you use to replace the prison system? Just don't arrest people?
In most cases, yes. Many crimes, like drug possession, speeding, jaywalking, etc. can be eliminated altogether, or made civil rather than criminal offenses. Much of the money and energy put into law enforcement, arrest and incarceration could be put to better use improving social services, access to mental health services, housing, education, healthcare, etc, acting as a better deterrent to crime than prisons do.
Even in the rare cases where incarceration might be necessary, the process should focus on education and rehabilitation, and respect for human rights and dignity, rather than simple punishment. Yes, that means treating even the most vile among us like people rather than subhuman animals. It means spending taxpayer dollars making sure the scum of the earth have access to food, shelter and medical care, even education, rather than locking them in a cell for 23 hours a day to satisfy society's primate need for catharsis.
And that's not even touching the can of worms that is the deeply entrenched systemic racism and white supremacy within the American judicial system and among the police. Many people think that system can't simply be reformed at this point, it has to be torn down entirely and rebuilt from the ground up, and maybe replaced with a system where police are actually respected members of the community with a responsibility to protect citizens, and that probably aren't even armed most of the time.
I mean, hell, as many Americans as there are armed to the teeth, we can let the "well armed militia" take up a lot of the slack, and probably even reduce gun crime with a comprehensive licensing and training program (Second Amendment issues notwithstanding) and, I don't know, actual public policing and militia groups that aren't all Nazi cosplayers. I'll bet the parents of those kids who got shot in Uvalde, Texas would have been willing to go in and stop the shooter if they could have. And I'm saying that as someone who's strongly pro gun-control. We can do better than the outdated Wild West slavecatcher system we have now.
> Many crimes, like drug possession, speeding, jaywalking, etc. can be eliminated altogether, or made civil rather than criminal offenses.
With you on drug possession, but in most jurisdictions, speeding and jaywalking already are not criminal offenses.
I think the matter at hand is a perfect example, though: copyright infringement as a criminal offense just doesn't make sense in a civil society (something I wish we lived in!). It's just big business getting the government to enforce their profit margins by threat of prison. No one should ever go to prison for copyright infringement, ever.
It also occurs to me that -- as far as I know -- there are no criminal penalties for patent or trademark infringement. Why the discrepancy? Well, I think it's obvious: big businesses have lobbied Congress to make it riskier to infringe copyrights, because they believe copyright infringement to be a huge risk to their bottom line. While double checking this point, I found this article[0]; clearly there are nutjobs out there who want to make patent infringement carry jail time! Ridiculous.
Part of the problem is we’ve gotten rid of all possible punishments save fines and prison time. You can’t sentence someone to mental healthcare or to true rehab, etc. sometimes you can make parole dependent on it, but it’s not very workable.
The untold story is that the victims of crimes are often people nobody cares about so it’s not a “big deal”.
> The 2nd amendment talks about a "well regulated militia" not a well armed one
FYI “well regulated militia” in that 18th century sense meant “armed and dangerous as a fighting force at whatever scope of operation that is needful” hence the admonition not to infringe on the supporting “right to keep and bear arms”…
> Not every case is the same and nor is the punishment.
This is how the American justice system already works for the most part. I have several acquaintances from high school and college that got "arrested" for drug possession. But all that meant was they paid a fine, and at worst spent a night in jail. Jail, not prison.
Edit: And I'll just add a bit of anecdata suggesting prison can rehabilitate people. My cousin went to prison for 2 years for being a drug dealer, and since being released he has turned his life around. There's way to many variables involved in this stuff to cast huge generalizations and then make a decision based on that huge generalization.
> I have several acquaintances from high school and college that got "arrested" for drug possession. But all that meant was they paid a fine, and at worst spent a night in jail.
I was actually just watching a Last Week Tonight segment about this (well, about kids getting arrested in general, not specifically for drug crimes). Even if the reason for arrest is incredibly dumb, and charges are never filed or are dropped, the kid will still have an arrest on their record (and juvenile records often fail to get sealed upon adulthood). They'll have to answer "yes" on any college or job application that asks "have you ever been arrested", which can put them at a significant disadvantage. And we're not at the point yet where there are laws in place prohibiting questions like that. Regardless, I believe this will show up on a background check as well.
> And I'll just add a bit of anecdata suggesting prison can rehabilitate people. My cousin went to prison for 2 years for being a drug dealer, and since being released he has turned his life around.
That's great, and I wish your cousin well, but how common is his experience? Seems like he's one of the fairly rare good outcomes. But still, consider that prison is a pretty shitty place to be. Could your cousin have still turned his life around, but without having to experience the awfulness that is the US prison system? (Assuming this is in the US; apologies if I've misunderstood.)
Has anyone actually looked at the Switch piracy situation? There are dozens of people running pirate eshop clones run of Google Drive hosting all games and DLC, people just connect a client to it and download whatever they want. The domains are on bulletproof TLDs and the Google accounts rotate, often using free university accounts with terabytes of storage.
I guess Nintendo don't care because the number of hacked Switch devices is pretty low, and targeting hardware modifications is easier than going after the elusive software end of things.
Believe it or not, that's actually legally very difficult to prosecute. NSP and XCI files are unusable without a signing key that attests the owner has purchased the game, which makes them a perfect candidate for the "backups and archives" clause of the DMCA act.
On the other hand, what Bowser did was pretty much indefensibly a crime. He distributed Nintendo's private signing keys to customers for a profit, something he knew was privileged IP, but he continued to sell them anyways.
> NSP and XCI files are unusable without a signing key that attests the owner has purchased the game, which makes them a perfect candidate for the "backups and archives" clause of the DMCA act.
This is false. NSPs distributed by pirates contain the decryption ("title") key (there is no signing key that asserts ownership, only integrity/validity), and XCIs are not encrypted by a title key at all.
You never know, Sony's private keys were found because they failed to implement ElGamal correctly (reused the nonce, making it possible for the signing key to be determined from two official signatures). I doubt you'll find any of their secrets encoded directly in the binaries they ship, but a company as old-fashioned as Nintendo will probably run into crypto trouble at some point.
I think Nintendo would have a hard time pressing charges. As long as you haven't tampered with the DRM mechanism, there should be no problem with copying and even (in a limited capacity) distributing it.
Team Xecuter are heroes in my book. They risked and lost everything to fight for my right to do what I want with hardware I bought, and I don't really care if they made a couple bucks doing it. Their end also brought the end of the xecuter community, probably the friendliest and least hateful gaming community I've ever seen.
As someone who followed this scene pretty closely for a while, they absolutely are not seen as heroes by most. The primary controversies being their use of Atmosphere components and promotion of piracy. Atmosphere being a free open source gplv2 project that does much of the same thing as Team Xecuter's SXOS. They benefited greatly from this existing project while violating its license by keeping SXOS closed source and profiting off of it. Their main addition being tools to support piracy.
Additionally, at one point SXOS contained anti reverse engineering code that attempted to brick or at least temporarily disable the console of those investigating their cfw. https://twitter.com/hexkyz/status/1012363017957380096
Definitely not a group to idolize imo.
Other people have been working to get homebrew running without charging for it or making it explicitly geared towards piracy. Let the homebrew community be your heroes, not these folks doing actual crime and making real money on it.
I'm supporting piracy, hacktivism and everything. But these guys motivation was purely greed, so good riddance.
If you wanna RE and hack something, you can do it in a way that nobody will ever find you.
Not if you're running freakin' eshop in your name, lol.
Nintendo really is extra nasty with these types of things. Sometime last year they sent a 27 year old man to prison for trying to sell modified save files for Breath of the Wild. That is, a prison sentence for selling cheats for a single player video game.
This sounded fishy to me, so I checked the articles written about it. A guy was arrested, but there is nothing to suggest he was ever sent to prison (the thing you specifically emphasised and repeated).
>Nintendo sent someone to jail for selling cheats for a single player game. To jail! (emphasized and repeated)
No, it's not splitting hairs. He was arrested. At least where I'm from, that basically means being escorted to a police station and questioned.
Perhaps you know some specifics about the Japanese legal system that I don't, and everyone over there that is arrested spends a week in jail waiting to be heard by a magistrate.
But as far as I can tell, there's nothing to even suggest that he was charged.
No, you're spending time in jail, which is still not great, but is absolutely not the same thing. Prison means that you've been convicted of a crime and put away, which is a pretty important distinction.
(This is a US-centric definition; apologies if this doesn't match your jurisdiction.)
In American English there is a convention where different terms are preferred for different types, but even then a jail is not just pre-trial. [1]
I think the main point of the parent was the problem of societies that like to start inflicting punishment on people accused of crimes even before they are sentenced, as a response to the great grandparent which talked specifically about being sentenced.
I'm not being pedantic. The person higher up in the thread claimed that they looked into this and found "there is nothing to suggest he was ever sent to prison". Since, as someone upthread correctly pointed out, people often spend time incarcerated pre-trial for whatever reasons, the "jail" vs. "prison" distinction is pretty important here. Especially considering that the full phrase "sent to prison" is usually used to imply a conviction and sentence, not pre-trial detainment.
Definitions and word use are important! Frankly this entire subthread is silly and kinda pointless, though...
Yes, this. They'll even consider time spent in "jail" as part of your sentence. There are many folks who have been convicted and not spent any further time in jail because of "time served" waiting to be convicted.
And if they hadn't been convicted? Their problem, apparently.
> They'll even consider time spent in "jail" as part of your sentence.
True, but kinda irrelevant to the point being made? @bogwog specifically claimed that Nintendo's actions earned a 27-year-old a "prison sentence" (their words, not mine). That implies a trial, conviction, and sentence.
@AussieWog93, when fact-checking, was clearly skeptical of the conviction and sentencing aspect: "sent to prison" would be a pretty unusual thing to say when talking about being arrested and put in jail pre-trial.
The point is that someone said, in effect, "Nintendo got someone convicted and sent to prison". Someone else said "Hmm, I looked into this and couldn't find any evidence that it went that far". Yes, the guy may have spent some time in jail pre-trial (assuming there even was a trial; it's possible charges were dropped), and that's still super shitty, but it is orders of magnitude less shitty than being convicted of a crime and sentenced to a prison term.
That is why I only play Nintendo game on emulator. I love their game, but I deeply hate them. A little bit like Disney movies. I only watch them if doing so does not give money to Disney.
With skills like these he could have landed a job _anywhere_. Even if he didn't have any hardware skills as the article says, he still is a top-notch salesman. Maybe he had a chance to land jobs at Nintendo hardware division for his entire team.
Instead, he had chosen to do what exactly? Why? For cheap thrills? And I'm supposed to sympathize why?
There's nothing sad in this story. The rules are simple (most of the time) and you either play by them or find out, and while most of us play by them, sometimes someone finds out.
I wish to thank team Xecuter and the whole hacking community working tirelessly under very real threat of physical harm to give us the freedom we deserve. If it weren't for you guys, my childhood would have been much blander and sadder. You are real heroes, thank you.
> I personally haven’t got the vaccine, and the reason, I am skeptical with my medical condition, how it will affect me, and I haven’t been able to actually have proper medical treatment because I haven’t been able to have a one-on-one with a doctor to see if the vaccine would be possible with my health conditions. When I first got arrested, I was 410 pounds. I had to use a wheelchair.
The lack of proper healthcare for someone in custody is an embarrassment to the country.
First: He's probably been told that he can get the vaccine just fine which is why he puts the condition of having a "one-on-one" there. He was likely told based on a doctor reviewing his medical history and condition.
However, healthcare for the incarcerated in general is pretty poor. In this regard, he's not really outside the norm.
Yeah I agree we don’t know the full circumstances. But the data coming out of the pandemic in particular has been a mess. Like the stories of inmates having to improvise masks.
what hn imagines: a nurse or prison paramedic taking the concern seriously and relaying it to a doctor familiar with the patient's charts and medical history "I checked with your doctor and he said it's fine"
reality: a prison guard with his own health problems from a TBI in iraq who did AED cert for the extra $.50/h just meeting this patient for the first time "I checked with your doctor and he said it's fine"
Yeah I'm gonna trust the prisoner's estimation of how trustworthy the medical advice he's receiving is.
Reality: a nurse relays the inmate's concerns to a doctor overwhelmed with patients who is not familiar with this particular inmate's medical background, unless that inmate is already a regular in the infirmary.
Prison doctors are actually doctors. But like most doctors these days, they're usually too overwhelmed with patients and too underwhelmed with resources to do much more than triage.
The vaccine is safe for almost everyone. There are incredibly few people who would have adverse reaction. You are way more likely to have a severe case of COVID if/when you catch it than you will have an adverse reaction to the vaccine.
Those are simply the facts. Borne out by the billions of doses that have been given out so far.
This is a man who has likely severely damaged his liver through his lifestyle. But, here, this is where he has "concerns". Fuck that noise.
You are going to catch covid. I am going to catch covid. Everyone is going to catch covid. At 410 lbs, life is a death trap, prison doubly so, vaccine or not.
I don't understand why any of this is even considered a crime. At worst it should be a civil liability for damages incurred. All they did was sell solutions that allow customers to overcome technical limitations of their own property that they legally own. We're supposed to be a capitalist society, why are we arresting somebody for selling a product that people want?
Imagine if Ford was suing companies that make aftermarket parts. This is ridiculous.
I have always felt that Nintendo consoles and games were way too expensive compared to their quality, because of that I have never owned anything Nintendo. With this piracy case my feelings are justified: Nintendo just wants your money, no matter how. This makes me actually despise Nintendo and anything they stand for.
NOA's current president has the same last name (but doesn't appear to be a relation). A fact which Nintendo played off of in Nintendo Directs: https://m.youtube.com/watch?v=9dsfr0q1wSc
> I personally haven’t got the vaccine, and the reason, I am skeptical with my medical condition, how it will affect me, and I haven’t been able to actually have proper medical treatment because I haven’t been able to have a one-on-one with a doctor to see if the vaccine would be possible with my health conditions.
He talks as if he's one of the first obese persons to be eligible for the vaccine.
We've all heard it before: if you don't want to do the time don't do the crime. It doesn't matter how stupid or inhumane the law might be - that's a different fight. Fight that fight if you like, but don't break the law in the meantime cause someone will want you in prison. 40 months? Seems like a lot. Probably wanted to think twice about what they were doing.
As a practical matter, you're correct. But I think it's important to consider that the consequences for breaking a law should not be to be held in jail pre-trial under inhumane, unhealthy conditions. (If you're not sympathetic toward people who eventually are convicted, at least consider that pre-trial detention shouldn't screw over people who eventually are acquitted.) And it's important to discuss what we think about the laws in question.
And regardless, there's nothing wrong with showing some empathy for someone who ended up in this situation, even if it was through their own risky actions. If you don't feel that empathy, that's fine, but don't begrudge the rest of us our prerogative to feel that way.
Inhumane conditions are horrid, period. I'm not even sure they are legal, if they are - we should change the law, if they aren't - the jailors should be held accountable.
Regardless of what you think of the effectiveness of IP protection, the way damages are calculated (and ultimately determined by courts) is just awful. I haven't looked at the specifics of that $65M calculation, but if the real number were closer to $650k I wouldn't be surprised-- 2 orders of magnitude was a pretty typical spread between plaintiff and defendant expert witnesses' valuations in the IP cases I worked on.