That's not even an analogy, guy.

Thanks again for your patient explanation, I think I understand the line of reasoning now. The burden's on the defendant because he's the one who did the infringement in the first place, to put it crudely. Still sounds unfair to me, though.

If, as you say, "the statutory damage provisions were intended to be compensatory, rather than punitive," it would seem fair to me to have some indication by the plaintiff as to how this damage occurs. It would seem fairer to me to fine the downloader for his infringement and then have the plaintiff sue for damages.

I've already mentioned that it's hard, if not impossible, to prove something doesn't exist. Even if the defendant would claim that damages are half of what the plaintiff comes up with, he would be in the uncomfortable position of trying to prove he did inflict damage, but to a lesser amount, while that was clearly not the motive of the infringement.

Requiring specific damage amounts from plaintiffs would be unfair, but would it be unfair to ask for some indication as to how the damage is inflicted? Is there any serious research that shows that sales are, ceteris paribus, affected by downloads? Especially given the fact that, unlike bag counterfeiters, Tanenbaum was not doing it for a profit.

Showing that some damage is irrefutably done when someone's up- or downloading music is a burden that should be on the plaintiff, in my opinion. The calculation of damages in a specific case shouldn't be in physical CD's that haven't been sold or upload logs, but there should be a reasonable, well-researched method.

Thanks for your reply!

Your Prada analogy is helpful, yet I'd like to clarify that I wasn't proposing that plaintiffs should find all buyers of counterfeit Prada's, just a few. I was suggesting that the plaintiff should at least prove that downloads affect sales in a direct and strictly negative way. It seems to me that this could be more easily done in the counterfeiting case.

So the burden's on the defendant; he or she has to prove that the damages suffered by the plaintiff are not the amount the latter claims. What if the defendant were to claim there were no damages? It's notoriously hard to prove something doesn't exist (teapots in orbit, yeti's etc.).

As a side note, I've heard a few things from a reliable source about Turkish bag counterfeiters that made me smile: first, some of them make bags that are of better quality than Prada and Gucci. Second, they sometimes find that some type of bag doesn't sell to well. They then change the design and they sell better. It amuses me to think that these counterfeiters successfully improve designer's designs and, moreover, that their customers are buying bags that are obviously fake to a connaisseur. They just don't care, they want a cheap bag with the right label on it. Third, it is rumored that Gucci on occasion implements the changes made by counterfeiters, but of that my source wasn't sure.

IANAL and IANAAmerican, but it baffles me that plaintiffs don't have to prove actual damages. It seems that they not only don't have to substantiate the amount of damage, they don't even have to prove there is any damage in the first place. Wouldn't it be fair to have them produce statistics that say that music that is pirated more is sold less? Or to have them produce say five witnesses who testify that they didn't buy a song because Tenenbaum uploaded it?

Other similarities are that in a waltz, the dancers usually remain in closed position and that the pair makes circular motions. You know, like waltzing black holes.

A non-physical gadget is a widget. So XP and OSX are widgets. Wait, I'm confused.

You asked me how to do something I didn't say you should and I answered anyway. Of course it's very easy to kill of all of my little ideas, especially when you've decided beforehand you won't even consider going open source.

That's what you get when you remain vague about what your actual product is. If you'd tell me exactly what you sell, I might be able to be more specific. I might even tell you to forget about open sourcing altogether.

If you would be truly interested, there are ideas to be explored here. T-shirts sound funny, but I'm sure Mozilla made a lot of money that way. Is Red Hat making money? Is Google? Is Slashdot? Mark Shuttleworth? Michael Widenius? Sun? Linus himself? If they are, does that guarantee success for you too? Of course not. But it isn't impossible either (again, depending on what you do). Also, having a closed source app isn't a guarantee for success either.

I didn't say you could. Still, I'll bite.

The same argument has been made over and over by writers and musicians, and yet there are some of those out there that make money while giving away their work. If you'd seriously consider going open source, the 'while' is important. It's different from 'by'. Nobody makes money by giving away their work.

Some options to make money are to sell support, advice, custumization, books, t-shirts, talks or (most probably) get hired for something new as you've proven to be a competent programmer.

What's best depends on you, your skills, what you want and, of course, your product. I want to stress again that I don't say you SHOULD do this or that it would be a good idea in your particular case.

'Only' is the key word here, I'm sorry if that wasn't clear. As you point out, there are lots of good, valid reasons for developing closed source software, but hiding your source can't be the only basis for your income.

By the way, if I built a Gulfstream replica and sold it, I probably would get sued.

A programmer who claims he can only earn money by keeping the source closed is like a plumber who only wants to fix your sink when nobody's home and the door is locked.

Although I sympathize with your desire to keep your business running, I think that there should be more to it than just the black box you're selling your customers right now. I'm not saying that everything should be open source (I don't know how that would work out), just that your arguments sound a bit RIAA-like: locking everything down is better, because it forces people to keep buying from us.

A few others have made that point and I remember how installing Debian, Gentoo and Suse was around then. It wasn't pretty, but XP, with all of it's manufacturer's support, wasn't doing a great job.

My point, however, is that I still wonder how many users switch, how they do it and what their reasons are. If you say that average users don't install OS'es, then either somenone else does it for them or they don't switch. The latter would imply that the percentage netbooks sold with Linux on it would be a fair indicator of de facto market share.

Neither does yours, I think:

I wonder how many 'average users' switch (either way) and why.

I did not.

Thanks for the insight. I'll not be installing Win7, unless for friends, but I'm glad MS's got this ironed out.