Downloads - moral and legal issues

[Dave2002]

We have discussed the issues of sending CDs and DVDs as gifts before. There is no problem with that, as each recipient receives a physical article which is paid for. OTOH sending downloads as gifts does present issues. One can send a gift token (I don't like those things ... ***) to allow the recipient to choose a download, but suppose one wants to send a particular track, album or collection to another as a gift. The easiest way might be to put everything on a memory stick and hand it to them.

The copyright holder, or seller have virtually no way that I can see of preventing this, or policing it - apart from blatant copyright infringement on a large scale for profit.

Some sites offer the possiblity of doing multiple downloads - that is more than one copy of a single item - but unless this is somehow reconciled with the actual downloaded material the difficulty of establishing that each copy sent as a gift has been properly paid for remains.

One could assuage personal guilt as a donor by payiing for more than one download copy. Alternatively one could provide the means for the recipient to do the download and "pay" - but that passes the problem on, might be inconvenient, and there is no guarantee that the particular downloads will be available when the recipient wishes to finalise his or her gift.

*** one reason I don't like tokens is because they might come with time restrictions and other issues. They are not quite the same as real money, which has no such problems.

[richardfinegold]

CAn't you create an account with the download site that allows the recipient of the gift to download the item to their own computer, while you pay for it?

[Dave2002]

Can't you create an account with the download site that allows the recipient of the gift to download the item to their own computer, while you pay for it?

Obviously one can, but it's not going to work in every case. There are a number of possible situations which could arise.

[Cockney Sparrow]

I realise that it probably, if pushed to the strict legalities, doesn't meet your criteria (and would strictly speaking, probably be a breach of copyright) but you could:

1) Buy the download, transfer the file to your recipient and delete your own. Preserve a copy of the receipt / invoice (pass a copy to your friend?).

2) Buy the download twice. Ditto (invoice) for the one you transfer to your friend.

In my take, there has been no financial loss to the holder of the rights there, so if there were to be a legal claim, what would the rights owner put down as the amount to be claimed?

(Copyright breach does, of course I agree, have people who suffer loss - printed music, recorded music. But in circumstances like these, where there is no mechanism, then correcting any loss as best as possible is surely adequate?).

[Dave2002]

I realise that it probably, if pushed to the strict legalities, doesn't meet your criteria (and would strictly speaking, probably be a breach of copyright) but you could:

1) Buy the download, transfer the file to your recipient and delete your own. Preserve a copy of the receipt / invoice (pass a copy to your friend?).

2) Buy the download twice. Ditto (invoice) for the one you transfer to your friend.

In my take, there has been no financial loss to the holder of the rights there, so if there were to be a legal claim, what would the rights owner put down as the loss to them?

(Copyright breach does, of course I agree, have people who suffer loss - printed music, recorded music. But in circumstances like these, where there is no mechanism, then correcting any loss as best as possible is surely adequate?).

I have done this recently, but how many people would bother?

It's tempting not to - once one has the original download. Also, if several different copies were made, "honest" mistakes could be made, and then would the legal issue not come down to whether there was intent, or would a strict interpretation be adopted.

[Cockney Sparrow]

Copyright infringement is a civil matter - I've never seen reference to a criminal offence there (Edit - added: in this sort of context). Short answer - nothing to worry about.

Long answer. In civil litigation, in this scenario I suggest you need to claim a financial loss - or to stop some actions which are detrimental. So, as an inveterate giver of downloads as a present, you might come to the attention of a rights holder. Once you have evidenced no financial loss, they might assert you must stop infringing the strict terms of copyright and do it no more. So your undertaking not to do it would, almost certainly, suffice. (Undertakings are commonly used in civil matters to avoid the expense of litigation and I am fairly sure any party forcing the issue to go before a Court would come away without their costs and a stinging rebuke, where an undertaking had been offered).

This all seems pretty unlikely, surely we really don't need to worry about it, even in the theoretical sense discussed here. Seems to me, worrying about our own conscience in this situation is more important in a practical sense?
From a commercial point of view, I can't see anything happening other than pointing you to gift vouchers (e.g Presto have them) and cards (e.g. iTunes). The cost of setting up the IT would surely outweigh the rewards? A commercial decision.

(Intention is most often a criteria to be met in a criminal prosecution and should be considered by prosecutors before a case goes to to the expense of a trial. If it were in some way an offence, and you had paid for the download in question and had no copy, I can't see any prosecutor considering taking it further as it would not meet the public interest test).

[Bryn]

Copyright infringement is a civil matter - I've never seen reference to a criminal offence there. Short answer - nothing to worry about.

Long answer. In civil litigation, in this scenario I suggest you need to claim a financial loss - or to stop some actions which are detrimental. So, as an inveterate giver of downloads as a present, you might come to the attention of a rights holder. Once you have evidenced no financial loss, they might assert you must stop infringing the strict terms of copyright and do it no more. So your undertaking not to do it would, almost certainly, suffice. (Undertakings are commonly used in civil matters to avoid the expense of litigation and I am fairly sure any party forcing the issue to go before a Court would come away without their costs and a stinging rebuke, where an undertaking had been offered).

This all seems pretty unlikely, surely we really don't need to worry about it, even in the theoretical sense discussed here. Seems to me, worrying about our own conscience in this situation is more important in a practical sense?
From a commercial point of view, I can't see anything happening other than pointing you to gift vouchers (e.g Presto have them) and cards (e.g. iTunes). The cost of setting up the IT would surely outweigh the rewards? A commercial decision.

(Intention is most often a criteria to be met in a criminal prosecution and should be considered by prosecutors before a case goes to to the expense of a trial. If it were in some way an offence, and you had paid for the download in question and had no copy, I can't see any prosecutor considering taking it further as it would not meet the public interest test).

Perhaps you should take a look at this.

[Cockney Sparrow]

I was editing my post, as you posted - adding a rider. Only time for a quick look at your linked page but doesn't look like it would give any cause for an honest (per my previous post) present giver to have any anxiety.

Anyone thinking of doing this on a commercial scale perhaps needs to take legal advice.

Got to go now, things to do......

Has Roger Scruton written on this issue? If so, this thread could run and run.......

[Dave2002]

Perhaps these issues are one reason why streaming now seems to be gaining over downloads. Presumably with streaming it's the streaming service which handles the legal and copyright concerns. OTOH streaming still doesn't work for people who want copies to use in places where there's no internet - either broadband, wifi or 4G.

In the world of gamers one person who distributed games to quite a number of people - and made no money out of it - was fined (or required to pay damages, which is perhaps not quite the same thing) a rather large (crippling..) amount. Presumably the issue there was loss of revenue, and possible loss of reputation, so effectively damage to the business.

[Bryn]

Perhaps these issues are one reason why streaming now seems to be gaining over downloads. Presumably with streaming it's the streaming service which handles the legal and copyright concerns. OTOH streaming still doesn't work for people who want copies to use in places where there's no internet - either broadband, wifi or 4G.

All further complicated by the ready availability of free software which facilitates near-perfect recording of incoming audio streams.

In the world of gamers one person who distributed games to quite a number of people - and made no money out of it - was fined (or required to pay damages, which is perhaps not quite the same thing) a rather large (crippling..) amount. Presumably the issue there was loss of revenue, and possible loss of reputation, so effectively damage to the business.

The miscreant was, perhaps, fortunate not to get the up to 2 year prison sentence avaiable for such crimes.