13 September 2011
Valuing Electronic Content that is Illegally Converted
So, the police find a computer with data or programs which can be proven to have been obtained in contravention of Virginian criminal law. How is the value of the data or programs to be proven?
Of course, the easiest way to prove value would be to use the price the data or program is sold for on the market. Data includes songs, videos, ebooks, etc. A song is probably worth .99$ because that's what it would cost to buy it on iTunes; a movie might be worth $2.99 if that was the price on Amazon; an ebook at Baen could be $6.00. The cost of a program would also be determined in this manner. The most commonly pirated program in the world (outside of Windows) has probably been Photoshop. If someone has an illegal copy of Photoshop its value can be easily found ($549.00). Similarly, value for programs such as Word, StarCraft II, or Final Cut Pro would be fairly easy to find.
The place where difficulties could arise here is in the valuation of older versions of a software title which are no longer sold or in inferior copies of an original. If someone downloads a copy of Word which is from five years ago, does it actually have a value? It's no longer on the market and, with free word processors such as Lotus Symphony, Abiword, and
Open Office, the prosecution would be hard pressed to show that but for the illegal download the company would have sold a single copy of its current program. Of course, this does not mean that the converted program has no value; it merely means that the indeterminate value would mean that a misdemeanor would have to be charged instead of a felony.
Similarly, if a song is .79$ at Amazon, but the illegally downloaded copy has half the kilobytes per second, does that mean the value of the copy is half the cost at Amazon? Perhaps. However, I think that this would probably be an affirmative defense after the prosecution has shown the usual cost of the piece of data on the fair market. As well, it usually wouldn't be worth the effort on the part of the defense. Unless the prosecution could prove that a large number of songs were downloaded as part of a single file (zip, torrent, etc) almost all data downloaded (songs, movies, ebooks) will not individually rise to felony level. Unless there is a statute allowing the aggregation of separate thefts each of the data items converted will be a separate misdemeanor whether the value is .79$ or .40$. Now, 432 misdemeanor electronic fraud cases (one for each song or video) would be nothing to sneeze at, but it would probably end up with less of a punishment than 10 felony frauds and be more painful for the prosecution to try.
Author: Ken Lammers on 9/13/2011
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Ken, thanks for posting this series about how stolen items are valued. It's fascinating how the law is trying to strike a reasonable balance between the need for accuracy and the need for bright lines, or at least decisiveness.
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