Should someone go to jail for pirating software? Is translating a book and distributing it something sufficient to deprive you of your liberty? Does protecting someone’s potential livelihood outweigh the rights of freedom? Does the current justice model support punishments that fit the crime?

Background

After reviewing this topic from the perspective of the "victims", there seem to be many reasons in favor of locking up people who intentionally violate people’s copyright and get caught.  Many large software and digital rights owners see every copyright violation as money being taken directly from their bottom line.  They consider that if there were no copyright violations then they would have a much larger customer base who would purchase their products. 

Using this logic, the more an individual is responsible for depriving them of income, the more they should be held accountable for those actions.  Considering that some individual pieces of software can retail for thousands of dollars, and the revenue for a book may be larger, even a small time "crook" is theoretically depriving copyright owners of the equivalent of many months of the average salary. Small time fraudsters may be imprisoned in most jurisdictions for crimes that amount to much less value…. The logical extrapolation of this "victim" mentality is that those responsible should go to jail.

I am not convinced that this is logic is the correct solution to this copyright violation epidemic.  I do not think people like the sixteen year old Frenchman who is reportedly being held for translating Harry Potter should be going to jail for his actions.  Whilst jail may be an appropriate measure in some circumstances, those a are limited to me for the extent of the intent of the crimes.

Intent

In Common-Law based jurisdictions, many crimes that result in sentences of imprisonment require two elements.  The first of these elements is the commission of a crime, defined by statutes.  The second aspect that needs to be established in these crimes is the element of Mens Rea - the concept of a guilty mind or "intent". Much copyright law is solely centered around the first element, that being was the copyrighted material dealt with in a way that is inconsistent with the true copyright owner’s wishes? If so - go to jail, do not pass go, do not collect $200.

The lack of intent being considered feels that the whole story is not being told.  The intent should not just be did the copyright violator intend to deal with the content nefariously - but did they deal with an intent that is not socially acceptable?

Who Should Be Punished?

If, for example someone is deliberately trying to subvert the legal system by deliberately and systematically removing copyright from thousands of products and distributing it, be it for financial gain, or not , I do not think that this is socially acceptable.  I propose that people should be discouraged from doing this, even if it is a response to the perverse measures imposed by copyright bodies and ridiculous prices charged by the copyright owners. 

If someone is downloading something for their own personal enjoyment, who does not benefit from it financially and is not trying to harm the original owners then I do not think that the punishment for this should be severe, rather a light punishment where damages are at most equal to the cost of the product pirated should be sufficient.

Additionally if someone is trying to fill a void in a market because the original copyright owner was unable or did not want to fill that gap; and the intent was not to harm the copyright owner then I do not think there should be a harsh punishment.  I see this as being applicable for fan translations, fan videos on YouTube and other similar "positive" copyright breaches.

What is the correct punishment?

If we have established that an individual should be punished because they had both criminal acts and intent how should this be done?

I am not convinced that the threat of imprisonment will reduce the rate of this particular crime.  Jail is not appropriate in most circumstances because there has been no provable hurt to anyone (either physically or financially) as there is in most cases that merit detention.  The dilemma is that working out what the appropriate punishment is not as easy as it first seems. 

Large fines may be very difficult to pay and if not paid then imprisonment would be the eventual outcome anyway. Community based detention orders may not be feasible or sufficient to convey the merit of the problem.  Solely recording a conviction on record for the individual may have financial and unexpected serious ramifications and may not be ethical in the circumstances. Because of this dilemma there potentially needs to be a different method of punishing people, something that discourages, is not easy but not impossible for the violator to get over, but contributes to the society.  If anyone has a solution to this problem, without any of the above drawbacks - please let me know and I’ll back it to the hilt.

 Is the "Victims’" Argument Correct?

I am not a software pirate, but find some of the claims of the industry hard to believe.  The argument that they have lost income because of someone who was never going to buy their product using an illicit copy seems to be counter intuitive.  If the companies were never going to get paid, because something was not going to be consumed this seems like wishful thinking to make up for other deficits in the industry. 

There are others who contend that piracy is as a direct result of the the software companies not being able to respond to the needs of the masses. Even if this is so I do not think that the logic that the software companies are victims and the perpetrators of the crime should go to jail has merit.  If the software company deficiency argument holds then at least the "victims" should be guilty of some sort of contributory negligence and the punishment should be lessened for it.

Conclusion

Software pirates and other copyright infringers should be judged not just by their actions but their intent. They should only be punished to the extent of the impact of their crimes and potential losses should be gauged.  I am a strong believer that the punishment should fit the crime, the fact that the current lawmakers and judges are unable to find the correct formula for this growing problem should not result in people who harm another’s intellectual property languishing in jail.