Judge Rules Offering != Distributing

starrsoft writes "From the EFF's website: 'Judge Marilyn Patel issued a ruling (PDF) Wednesday that settles an important question in the ongoing Napster case -- whether under the law, simply offering copyrighted material to others means you're distributing it. Copyright holders have to prove that someone actually downloaded the file from you before you can be found liable for distributing. The simple act of offering isn't enough. It clarifies the law, providing a safeguard against the over-reach that the ART Act threatened.' Ernie Miller and Techdirt have more on this decision."

Comments

Ruling is Important

[starrsoft]

I think this is a very important development for P2P file sharing. It will make the threshhold of proof much higher for sharers to be sued. The one thing that it won't help is the MPAA & individual studios sending an infringement notice letter to the sharer's ISP and spineless ISPs suspending people's accounts.

Re:Ruling is Important

[Anonymous Coward]

The largest impact isn't on the sharers, but it's on the bittorrent tracker sites. The threshold of proof is raised not only for those offering files, such as in Kazaa, but most importantly, it's raised for sites that index torrents as well - at least that's how I read it.

Re:Ruling is Important

[Nikker]

Out of curiosity if there is a future ruling that goes against what the **AA's have been preaching in terms of law suits, can those who coughed up cash to avoid legal action get their money back?

Re:Ruling is Important

[LiquidCoooled]

Hang on, this means with software like kazaa, they can see I am offering all these files from all my shared folders, but have no way of knowing if other people are actively uploading from me.

With bitTorrent, they can sections of a single file only.

How exactly can they prove you sent a file to ANYBODY other than themselves?

Re:Ruling is Important

[mindstrm]

Don't read too much in to this ruling. All it says is you can't prosecute for distribution if your only evidence is "we connected to X, and it said the files were available, and we tried it, and it worked".

They have to gather some evidence that shows the files were actually transferred. That doens't mean they have to have eyewitness evidence of every singe instance, just that they have to have some way to convince the court you really DID distribute the file to other people, and on what scale... they can't say "Well he had it shared, so OBVIOUSLY people grabbed it"

Re:Ruling is Important

[shawb]

I'd guess not. They probably signed a contract stating that "I will not sue, this contract is final and binding, etc etc." That and it could potentially fit in ex post facto rulings. Basically ex post facto is when somebody is commited of a crime, but the action they took was before the law was in effect. It has been decided that laws can not be tried ex post facto, due to the high potential for abuse and persecution of certain parties that they provide.

Except I'm not quite sure if ex post facto actually applies to tort law, or simply to legislation. That and it could be argued that the contract was not binding since it was signed under threat of duress (even though duress is traditionally defined as a threat of physical violence, it could be stretched here. Especially if the RIAA/MPAA lawyers had lied about the situation that was at hand.)

Re:Ruling is Important

[sconeu]

It has been decided that laws can not be tried ex post facto,

Yeah, it was decided back in 1787, at least in the US.

Re:Ruling is Important

[suitepotato]

If they connect and download, does it count because they downloaded or not count because they own or oversee the IP and thus are only receiving their own property? IOW, do they have to catch a third party who doesn't have the right to the IP getting a copy?

This ruling is important in one respect in that they have no proof that the person with it sitting on their server has no right to it and no laws prohibit you from making your property open to theft/downloading. IOW, the *AA have no proof of the server copy being illegitimate and no standing to require the owner of that copy to keep it from being easily accessible. Is their a law against leaving your house wide open with the tacit expectation of someone taking some of your stuff and leaving some of theirs?

Re:Ruling is Important

[Minna Kirai]

It has been decided that laws can not be tried ex post facto, due to the high potential for abuse and persecution of certain parties that they provide.

That's ancient history now. The special federal "Terry Schiavo's Parents Act" has demonstrated a new congressional power to target individual named citizens.

Except I'm not quite sure if ex post facto actually applies to tort law,

If that were true, then it would've been impossible for the Sonny Bono Copyright Extension Act to retroactively lengthen the copyright terms of already-published works.

Re:Ruling is Important

[Anonymous Coward]

As one of those spineless ISP's, I must ask, why on earth should I protect you. Because you gave a couple pieces of silver?

Re:Ruling is Important

[Minna Kirai]

If they connect and download, does it count because they downloaded or not count because they own or oversee the IP and thus are only receiving their own property?

If an undercover cop buys cocaine from you, does it count because you sold or not count because narcotics officers in the course of their duties are allowed to handle illegal drugs, and thus are only receiving something they were allowed to get?

Re:Ruling is Important

[linsys]

That all depends on the state in question, in some states an undercover cop is REQUIRED to tell you they are undercover if you ask, so maybe there is a technological way around this.

Plus I don't think that is a fair comparison, since the "dope laws" don't say to be considered a drug dealer you have to get caught dealing dope, in some states for you to be charged with distribution all you have to be caught with is some "dope" seperated in different baggies (common people don't you all watch COPS?).

If you have an oz of coke for instance in one baggie they can't charge you with distribution (unless of couse they catch you dealing), but if they catch you with an oz of coke in 3-4 different baggies then you can be charged with distribution even if they don't catch you dealing dope.

Re:Ruling is Important

[julesh]

I think this is a very important development for P2P file sharing. It will make the threshhold of proof much higher for sharers to be sued.

Give it 6 months and you'll see a new law to close up this "loophole". Over here in Europe, we already have the EUCD (and national implementations thereof) that specifies that "storage [of a work] in an information retrieval system" is a protected activity, and by the definition of information retrieval system, any P2P client will necessarily fit.

Re:Ruling is Important

[Minna Kirai]

That all depends on the state in question, in some states an undercover cop is REQUIRED to tell you they are undercover if you ask, so maybe there is a technological way around this.

Oh really? Which state is that? You must mean some foreign nation, because that absolutely isn't true anyplace in the USA.

Re:Ruling is Important

[Anonymous Coward]

aaaaaaahahahahahahahahahahahahahahahahahahahahahah ahahahahahahaaaaaaaaaaaaaaaaaaaaa. you're so stupid.

Re:Ruling is Important

[confused.brit]

Does that mean that if a file is shared, and they dload it, it isn't proof, or does the fact that they dloaded it proves you were distributing? It still makes p2p grey afaics

Re:Ruling is Important

[mindstrm]

Err...

I believe that's urban legend, actually.. the law empowers the police to act in an undercover manner in certain situations.

If they don't catch you actually selling the drugs, then you will be charged with Posesssion with intent to distribute (if they have evidence you intended to distribute, such as baggies). Otherwise, they will chargge you with possession.

To actually charge you with distribution, they have to actually catch you distributing.

In either case, all of these are felonies, mere posession is illegal, and it's not a good comparison to copyright law at all.

Re:Ruling is Important

[jonbryce]

There is a difference.

You are not allowed to sell cocaine to anyone, not even a police officer. (It might be OK if it is on doctor's prescription, it is for heroin, I don't know about cocaine.)

You are however allowed to copy copyrighted works with the copyright holder's permission.

If the copyright holder or their agent requests a copy from you, you are copying with their permission.

What does it really mean?

[Greg Wright]

What is keeping *them* from just downloading a copy? If not them, they someone they hire or pay off. It is certainly a step in the right direction I think, and it might actually help Napster in this case, but in the long run I am not so sure how much of an effect it will have. At least it will mean that they probably don't have the correct evidence to sue a lot of people they wanted to, but all the new cases in the future won't have that problem I bet. Does anyone else see why this would mean more then just some old cases not having enough evidence?

Re:What does it really mean?

[DeathFlame]

It just means they didn't collect the right evidence in the napster case.

They won't make the same mistake again, so really this means not that much in terms of pirating on bittorrent for example.

Re:What does it really mean?

[starrsoft]

"What is keeping *them* from just downloading a copy? If not them, they someone they hire or pay off. Does anyone else see why this would mean more then just some old cases not having enough evidence?"

It will mean they will have to download each complete file for each person they want to sue. Do you know long it will take to download a 700 MB-1.5 GB movie from one person on a DSL or Cable connection? (182 min. on a fully used 512 Kbps upstream for a 700 MB movie. I don't allocate all my upstream bandwidth for P2P uploading; I know many others don't as well. Furthermore, any upstream capacity that you do set is usually shared among multiple files and multiple downloaders. In reality it would be way longer than 182 minutes.) Furthermore, the way many P2P networks are structured, they get chunks from different users. It would be nigh impossible to get a complete download from a single user.

This ruling is *extremely* important for limiting suing.

Re:What does it really mean?

[saberworks]

Not only should they have to prove that you distributed it, but they should also have to prove that you distributed it to someone who doesn't have the legal right to have it. This would further force them to go after the people downloading illegal material instead of the people who have it on their computer. If I downloaded SUPER MARIO, but I already own a copy (or 8) of it, then nobody committed a crime, right?

Re:What does it really mean?

[Negadecimal]

It will mean they will have to download each complete file for each person they want to sue.

Why wouldn't a chunk/fragment count? One minute of a film is just as copyrighted as the whole thing...

Re:What does it really mean?

[starrsoft]

I guess the next question would be: "What percentage constitutes fair use?"

Re:What does it really mean?

[rpdillon]

Yes, but the damages are much less. Further, distributing small segments of copyrighted works is sometimes protected under fair use.

It tends to make your case much less compelling...you cannot claim astronomical damages because a person saw 1 minute of your film as easily as you could if you said they saw the whole film. After all, what are previews?

Re:What does it really mean?

[starrsoft]

"Not only should they have to prove that you distributed it, but they should also have to prove that you distributed it to someone who doesn't have the legal right to have it. This would further force them to go after the people downloading illegal material instead of the people who have it on their computer. If I downloaded SUPER MARIO, but I already own a copy (or 8) of it, then nobody committed a crime, right?"

Wrong! You cannot download another copy from someone else even if you own the original. Doing so is ethical but illegal.

Re:What does it really mean?

[Anonymous Coward]

but how do the courts rule on distributing a copy to someone who has rights to the work? I ask this since distributing it without the right to distribute is still copyright infringement.

Re:What does it really mean?

[Theaetetus]

Wrong! You cannot download another copy from someone else even if you own the original. Doing so is ethical but illegal

Right, but wrong reason (and side) - you can download a copy from someone else if you own the article in question: if I have a CD of a song, I am legally entitled to format-shift it to MP3. Whether that happens on my computer or on another computer doesn't matter. I can obtain my format-shifted version any way I want.
However, the person who I got it from didn't have distribution rights, and is acting illegally by sharing it. So, while the process is still illegal, it's not the downloader who is in the wrong, it's the uploader.

-T

Re:What does it really mean?

[GoodbyeBlueSky1]

You can't just make up laws to fit your needs, ya know.

If you own a movie on DVD, US copyright law says you have zero right to download it.

Re:What does it really mean?

[Anonymous Coward]

Rather more importantly, is a portion of a movie FILE copyrighted? Usually, you need the entire file in order to have it be readable.

Hmm... are .rar's downloaded from multiple people immune to the law?

Re:What does it really mean?

[Buran]

Why wouldn't a chunk/fragment count?

If you don't download the file, you don't know whether it's the whole movie, or a review of it, or another work using a bit of it (you can republish small amounts of copyrighted stuff for a number of reasons) or just a mislabelled file. Don't forget that these are the same guys who've sued people for totally unrelated stuff that just happens to share part of its name with a movie or whatever.

Re:What does it really mean?

[Humorously_Inept]

One potential issue with the download-it-as-proof scheme is how you might go about proving that any single user uploaded the entire song/movie to you, assuming that this actually even makes a difference in the eyes of the law. When you're downloading from multiple sources, as most modern file sharing systems do, each user is generally only responsible for uploading small parts of the complete whole.

Re:What does it really mean?

[cpt kangarooski]

No, there would be no affect on the damages.

Either there is infringement, or there is not. If there is infringement (based upon the distribution of even a small part of a work) then damages are calculated normally.

Re:What does it really mean?

[cpt kangarooski]

Rather more importantly, is a portion of a movie FILE copyrighted?

As a rule, yes.

Usually, you need the entire file in order to have it be readable.

So?

Hmm... are .rar's downloaded from multiple people immune to the law?

No. I would also encourage you to bear in mind this rule of thumb: not only is it usually impossible to escape the law by being clever, but those who work in the law are clever too, and won't be deterred by the likes of you.

Re:What does it really mean?

[cpt kangarooski]

But since copyright infringement is a strict liability affair, if you do download it, and that download is infringing, it doesn't matter whether or not you knew that it was the movie or not. You're still responsible.

Re:What does it really mean?

[AuMatar]

First off- as a body acting on behalf of the copyright holders, they have a right to download it. So them downloading it is non-infringing.

Secondly, it opens up arguments of entrapment.

Thirdly, it means say goodbye to mass mailing of lawsuits, they have to dl every file from everyone they want to sue them over.

Re:What does it really mean?

[cpt kangarooski]

you can download a copy from someone else if you own the article in question

This is not true in the US. Perhaps there would be a fair use, but it's far from certain (and space shifting is not on solid ground anyway). IIRC, Napster tried to raise this as a defense, and failed.

Re:What does it really mean?

[Surt]

Well, this ruling says that they didn't do anything illegal just by sharing it, and your claim seems to indicate that they didn't illegally distribute it by sending it to someone who had the right to have it.

Re:What does it really mean?

[cpt kangarooski]

Not only should they have to prove that you distributed it, but they should also have to prove that you distributed it to someone who doesn't have the legal right to have it.

Well, you'd better write your congressmen, because as the law is right now, it doesn't matter who you distributed to, if the distribution is itself an infringement.

If I downloaded SUPER MARIO, but I already own a copy (or 8) of it, then nobody committed a crime, right?

Not enough facts to discuss whether or not it's a crime. It is an infringement, however, and that's a civil offense.

Re:What does it really mean?

[mindstrm]

Wrong.

The person who let you copy super mario did not have distribution rights, regardless of your own personal rights to own it. Though morally we could both agree that nobody has been deprived of anything, the law would disagree.

Re:What does it really mean?

[glimmy]

well what about the movie clips in commercials? are they protected by copyright too?

Re:What does it really mean?

[Anonymous Coward]

I am confused.....what is this "upload" of which you speak?

Re:What does it really mean?

[Anonymous Coward]

you can download a copy from someone else if you own the article in question:

No, you can't. At least not without breaking the law.

if I have a CD of a song, I am legally entitled to format-shift it to MP3

True, but entirely beside the point. The problem isn't that *YOU* are format shifting, but that someone else is, and then giving it to you.

I can obtain my format-shifted version any way I want.

No, you can't.

It's a commonly held misconception. Although the result is the same as if you were to rip it yourself, legally they are different, and you can be found guilty of copyright infringement.

Re:What does it really mean?

[amliebsch]

No. I would also encourage you to bear in mind this rule of thumb: not only is it usually impossible to escape the law by being clever, but those who work in the law are clever too, and won't be deterred by the likes of you.

+5 EXCELLENT ADVICE. Please, geeks, heed this warning.

Re:What does it really mean?

[amliebsch]

your claim seems to indicate that they didn't illegally distribute it by sending it to someone who had the right to have it.

Whether your recipient has a right to have it is totally irrelevant. YOU have to have the right to DISTRIBUTE it. You could distribute a copy back to the original owner, but if you don't have distribution rights, you are in violation of the law.

Re:What does it really mean?

[GigsVT]

Actually this situation is more similar to the MP3.com defense. MP3.com was sued over "beam-it" a service where you could insert a music CD into your drive, the software would verify which CD it was, then offer you the MP3s to download from MP3.com.

The court ruled that MP3.com was illegally distributing the MP3s, even though the people they sent them to had verified they had the physical CD.

Now, this confirms one part of the parent poster's argument, that the distribution side is illegal, even if you distribute to someone who owns a copy.

It doesn't specifically speak to the downloader's side of things, and that is still a gray area, as far as I know there are no precedents considering downloading copies of something you already own.

In fact there are very few cases involving downloading period. It's considered a much harder legal case to prove, and the music and movie industries have instead preferred to go after people uploading work they own, since that is pretty clear cut infringement under current case law. The way most of these networks are designed downloaders are also uploaders, so why try to prove the harder thing when the easier thing is almost always present?

The Napster defense was that there was no music on their servers, that they were merely an indexing service, like google. Napster should have won in my opinion, as this is a lot stronger case than MP3.com's. But they didn't win, and ruled that since their service had very little non-infringing use, they were committing contributory infringement.

This is why many poeple attempt to stress the non-infringing uses of technologies like bittorrent, because that was a key factor in determining the napster case.

Re:What does it really mean?

[amliebsch]

irst off- as a body acting on behalf of the copyright holders, they have a right to download it. So them downloading it is non-infringing.

Wrong, because you are still infringing THEIR rights to distribution. Whether they are legally entitled to possess the file is totally irrelevant.

Secondly, it opens up arguments of entrapment.

Wrong again, only the government can engage in entrapment. There is no private entrapment. "Only a government official or agent can entrap a defendant." United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987).

Thirdly, it means say goodbye to mass mailing of lawsuits, they have to dl every file from everyone they want to sue them over.

Well, one out of three isn't bad.

Re:What does it really mean?

[AuMatar]

Wrong, because you are still infringing THEIR rights to distribution. Whether they are legally entitled to possess the file is totally irrelevant.

And thats a legally arguable position. Copyright is not about distribution, its about making copies. The person who downloaded the copy, as an agent of the copyright holder, can be argued to have a right to make that copy. Will it hold water in court? Who knows, it would have to be argued in court first.

Wrong again, only the government can engage in entrapment. There is no private entrapment. "Only a government official or agent can entrap a defendant." United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987).

Thats valid in the 9th circuit. Its only advisory in the rest. Its not cut and dried as you make it out, and won't be until a supreme decision on such an issue. Meaning there's legal basis to contest based on this ruling. Wether those contests would win or not depends on the judge, lawyers, and facts of the case.

Re:What does it really mean?

[d34thm0nk3y]

What is keeping *them* from just downloading a copy?

Nothing. The important aspect is really that they can't demand billions of dollars in damages because you have loads of files in your shared directory. They can only claim on stuff they actually downloaded from you.

Re:What does it really mean?

[d34thm0nk3y]

Not only should they have to prove that you distributed it, but they should also have to prove that you distributed it to someone who doesn't have the legal right to have it.

Why? You don't have _any_ right to re-distribute. Regardless of who you are distributing it to.

Re:What does it really mean?

[__aailob1448]

and it might actually help Napster in this case

How?

Re:What does it really mean?

[amliebsch]

Copyright is not about distribution, its about making copies.

Let's go to the source. 17 U.S.C. 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

...

Re:What does it really mean?

[cpt kangarooski]

It doesn't specifically speak to the downloader's side of things, and that is still a gray area, as far as I know there are no precedents considering downloading copies of something you already own.

In fact there are very few cases involving downloading period. It's considered a much harder legal case to prove, and the music and movie industries have instead preferred to go after people uploading work they own, since that is pretty clear cut infringement under current case law. The way most of these networks are designed downloaders are also uploaders, so why try to prove the harder thing when the easier thing is almost always present?

Downloading is illegal, and there have been several cases -- including an earlier part of the Naspter litigation -- that have held so.

There might be a fair use defense if you're downloading a copy to space shift, but it strikes me as being very weak.

The actual reason for pursuing uploaders is that 1) they're easier to find, and 2) shutting down an uploader has a greater impact. Usually in these cases, one goes after the head of the snake. That's why originally they went after the companies providing the P2P network. The idea was that if they could be shut down, a lot of infringing activity couldn't occur. Now you go after uploaders too, since bringing one down will have collateral affects on numerous downloaders.

Shutting down a mere downloader doesn't provide any kind of real bonus. They're the tail of the snake.

But don't misread the fact that they're the least-suitworthy target into some notion that they're safe legally. They're not.

But they didn't win, and ruled that since their service had very little non-infringing use, they were committing contributory infringement.

No, Napster was not found liable because they were unable to use the Sony defense. In fact, they WERE able to use the Sony defense. Sony however, is only a defense to contributory infringement by means of the capabilities of the technology. It doesn't -- and didn't -- prevent being sued for contributory or vicarious infringement because of other things that they did. You should read the Napster opinion; it's all there.

And also, under Sony, a technology need only be potentially capable of substantial noninfringing uses. It doesn't matter what actual uses there are at the time. Of course, Grokster, due any time now, might change that.

Re:What does it really mean?

[Buran]

How can you be liable for infringing if you downloaded a file that isn't copyrighted (or is and the author permits free distribution)?

Re:What does it really mean?

[shmlco]

The person who downloaded the copy, as an agent of the copyright holder, can be argued to have a right to make that copy.

I'd have to say that argument is specious. First, as ruled in mp3.com, that download is not YOUR copy, in that it wasn't created from your copy.

Further, just because I'm an employee of Sony, or work for them, doesn't mean I have the "right" to aquire/copy/download/steal every piece of music and film in the Sony catalog.

"Sony" owns them, not me. I, even as an employee, am not the corporation.

Re:What does it really mean?

[cpt kangarooski]

Lucky them, then, since it doesn't make a real difference.

Re:What does it really mean?

[cpt kangarooski]

I tip my hat to you, sir. It's so rare to see people citing the actual law around here. Most people just make crap up.

Re:What does it really mean?

[Dachannien]

A bunch of people here are saying you don't have rights to redistribute, but I want to take the other side on this issue for a moment and argue that "distribution" is an insufficient term to describe that particular right held by copyright holder.

17 USC 106 delineates the rights granted by copyright:

(1) to reproduce the copyrighted work in copies or phonorecords;

It has already been documented that creating a copy of a work for archival purposes is not infringement. Both the uploader and the downloader are allowed to have an archival copy of a work.

(2) to prepare derivative works based upon the copyrighted work;

Obviously not applicable.

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

File sharing does not constitute sale, transfer of ownership, rental, lease, or lending, when both participants already are legally entitled to have a copy of a work.

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

I would argue that file sharing does not constitute a public performance.

That's it. That's the rights conferred by copyright, and the buzzword "distribution" is not, without qualifications, among them.

Of course, I'm not a lawyer, and I also have no desire to personally test my interpretation in court. It's still something to think about.

Re:What does it really mean?

[nolife]

At least it will mean that they probably don't have the correct evidence to sue a lot of people they wanted to.

My understanding is most of the evidence they have now for the individuals they have sued is nothing more then a list of file names from an automatted search and an ip address. I do not know how that is considered evidence at all. What makes it even worse is the RIAA and others have admitted to posting bogus files to P2P themselves.

Re:What does it really mean?

[cpt kangarooski]

You're not.

But not because of your mental state; because a prima facie infringement suit requires a copyrighted work, and an unauthorized act of infringement.

The elements of an infringement action are:
1) A copyrighted work
2) Where the plaintiff has the relevant copyright (or can bring the suit, at least)
3) And where the defendant did something that was unauthorized by the relevant rightsholder, and which is infringing.

If the plaintiff can show all of these, he wins, unless the defendant can put up a successful defense, or can show that one of those elements above isn't properly met.

What the defendant thought is not on the list!

If it were, it would say something like 'the defendant negligently did something,' etc. In copyright, doing it is enough.

Re:What does it really mean?

[F00F]

This is actually a point that's interesting to me but seems to keep getting neglected. Can any lawyers, almost-lawyers, once-lawyers, or pseudo-lawyers comment on the following questions?

1) Does downloading a copyrighted work place the downloader in violation of any presently existing U.S. federal statute or common-law precedent? If so, which one(s)? I.e. is downloading actually illegal (I'm almost convinced it is not!)? Is it duplication? For extra credit, make any relevant arguments about state-specific issues. I live in California, if that's interesting to you.

2) Presumably, voluntarily providing a copyrighted work for upload (specifically, one for which you do not own the copyright) violatates federal copyright law if that content is subsequently voluntarily downloaded, because the uploading is considered electronic distribution and duplication (yes?). But are there any mitigating factors that can absolve the uploader from liability? For example, suppose that copyrighted content was removed from the uploader's computer without his or her knowledge or consent. Has duplication taken place? Distribution? Is the uploader still liable? What if the downloading was performed automatically by a computer script, e.g. a virus?

3) Have any threatening lawsuits by copyright holders been issued naming downloaders as defendants (who were not also uploaders)? If such a lawsuit were issued (filed? submitted?), how would jurisdiction and venue be determined? Would such a lawsuit be, on its face, an abuse of process, in the sense that (depending on your answer to 1 above, downloading probably isn't actually a crime), akin to suing someone for being ugly?

I know slashdot is a horrible place for asking legal advice, but I have seen a couple of IAAL's making interesting and relevant points in the past...

Re:What does it really mean?

[LocoMan]

AFAIK yep, they are. The people that broadcast the commercials have to get permission from the copyright owner before showing them.

Re:What does it really mean?

[shawb]

Yes.

Re:What does it really mean?

[lildogie]

> What is keeping *them* from just downloading a copy?

They own the copyright. There is no infringement in them taking a copy of something they own.

Re:What does it really mean?

[zotz]

"The elements of an infringement action are:
1) A copyrighted work
2) Where the plaintiff has the relevant copyright (or can bring the suit, at least)
3) And where the defendant did something that was unauthorized by the relevant rightsholder, and which is infringing. ...

What the defendant thought is not on the list!

If it were, it would say something like 'the defendant negligently did something,' etc. In copyright, doing it is enough."

I know I am beaing stupid with this, but here goes...

I find I have a terminal illness and want to pass some money to someone or some cause.

I take a file that I have know is copyrighted by them and is not authorised for copying. I email copies from an anonymous account to a bunch of rich people with receipt confirmations turned on. A certain percentage of their email clients automatically confirm.

I supply evidence of this to the person I want to benefit. Game over? If email will not work, I arrange for downloads from the same people by subterfuge. Game over?

It would seem to meet your requirements, but I can't believe they would actually be liable.

Can you clarify?

all the best,

drew

Re:What does it really mean?

[Minna Kirai]

Further, just because I'm an employee of Sony, or work for them, doesn't mean I have the "right" to aquire/copy/download/steal every piece of music and film in the Sony catalog.

If you were instructed by the Sony chain-of-command to investigate unauthorized file copying, then distributing or recieving copies is part of your job. Depending on how you want to look at it, they either gave you permission, or YOU aren't recieving the copy- Sony is, and you are just a tool of the corporation.

But, that question isn't material anyhow- the recipient's right to a copy doesn't confer on others the right to send him copies.

Re:What does it really mean?

[Minna Kirai]

each user is generally only responsible for uploading small parts of the complete whole.

"It was only a small portion of the file" is not a complete defense against copyright infringement. It might work as an arguement for Fair Use, depending on what the purpose for transmitting the small portion is.

If it was to allow the recipient to get a small sample of a song to decide if she'd like to go buy the CD, that's fine. But if the intent is for the downloader to combine it with thousands of other small pieces obtained from other places, and then assemble a complete whole file, then that usage is quite illegal.

Re:What does it really mean?

[cpt kangarooski]

If anyone would be liable in that scenario, it'd likely be you; you're the one making things happen. You're just trying to set up other people to take the fall.

Plus, even if they do end up with some liability, it'd likely be minimal enough, given the circumstances, that it wouldn't be worth going to court over.

Re:What does it really mean?

[Anonymous Coward]

"+5 EXCELLENT ADVICE."

Sure. For retarded people.

oh...just a quick question...do you usually find your food cut into little pieces and you're only allowed plastic spoons?

Seriously, that's for the best. Please don't be upset.

Re:What does it really mean?

[Anonymous Coward]

"It's so rare to see people citing the actual law around here."

We generally try not to memorize things that are simply bought and paid for by the RIAA/MPAA. It makes us feel dirty inside.

I suspect you like that feeling. You are a lawyer, after all.

Re:What does it really mean?

[cpt kangarooski]

Heh. I guess you haven't seen some of my posts in favor of reforming copyright law, then.

Still, it's key to know what the law is. Both so that you don't run afoul of it, and so that you know how bad it is, and how important it is that we fix it.

Re:What does it really mean?

[the real darkskye]

I was curious about this, specifically how it fell under entrapment and wire-tapping laws (in you were packet sniffing a line to see the file being downloaded).
Could this be the first nail in the ??AA's coffins?

Re:What does it really mean?

[Anonymous Coward]

The problem isn't that *YOU* are format shifting, but that someone else is, and then giving it to you.


SO, Is it legal or illegal if I have the CD, and it's ripped on my computer, but someone else pressed 'Enter'?

Is it legal or illegal if I have the CD, and it's ripped on my friends computer, but I pressed 'Enter'?

What if I specifically give my friend the CD so he can rip to MP# for me, and then he gives me back the CD and the file son a HD?

Re:What does it really mean?

[Anonymous Coward]

IANAL.

I was just thinking about the whole situation and about how peer-to-peer networks work. Say the ??AA or an associate now wants to prove that someone is committing a crime. With this ruling they now have to download the file, to prove copyright violation, correct? Thinking about how p2p networks work, don't they require that you also offer parts of the file for other downloaders? This means that the agent acting on behalf of the ??AA is now committing a crime?

The ??AA might however want to give distribution rights to there agent, this then means that any body downloading the file is now legitimatately obtaining it.

I'm sure this is full of holes, but food for though at least.

Re:What does it really mean?

[dragons_flight]

(3) to distribute copies or phonorecords of the copyrighted work to the public...

Certainly gives plenty of room to argue that it is not distribution if the only documented download was to an agent of the copyright holder.

Re:What does it really mean?

[Vitamin P]

I have to butt in here and start a flamewar. What does converting a song you ripped from the original format to MP3 have to do with this? You have spent the energy/storage requirements to make a deriviative work of the orginal. Yes technically it is by ear the same as the orginal but is it really? I rip a song from a CD (which I legally own or have fair use rights to) and convert it to something that's entirely different.

Re:What does it really mean?

[91degrees]

And they have every right to do so under the 1998 Making Legal Crap Up Act.

Re:What does it really mean?

[Anonymous Coward]

You may like this. It answers some of your questions (But does not reference which laws make it illegal)

- Jax

Re:What does it really mean?

[zotz]

I knew I would be, that's why I put in the terminal illness bit. If I know I am dying in two months, what do I care. (This is hypothetical all around.)

It is just that the claim was that the intent/state of mind of the infringer/downloader is not relevant.

I set up a situation where someone could download a copyrighted work without intent to violate copyright.

Can you clear up a bit more what was meant and how the situation I set up differs.

all the best,

drew

Re:What does it really mean?

[Alsee]

You're right that it does not matter whether we are talking about an MP3 version or the entire raw CD version. Not in any of the examples.

It is legal to create a backup/shift/whatever. Whether it is to MP3 or raw CD format does not matter. How you accomplish it doesn't matter. You do not require the copyright holders persission. It is legal, even if the copyright holder is standing there screaming his head off that he does not "permit" it. You do not need his permission.

It is illegal to distibute without the copyright holder's permission. It does not matter if it is MP3 or raw CD that he is sending.

If a music store illegally presses 10,000 copies of a CD, and gives away a "free promotional copy" to everyone who makes any purchase... or perhaps even gives away a free copy to everyone who walks past the store... you are not breaking the law when they hand you one. The store is commiting infringement, you are not. You are now the proud LEGAL OWNER of that copy, and the store owes the copyright holder BifFatDamages to compensate the copyright holder for those copies.

Distributing is infringment. Receiving is not infringment. The "uploading music store" is infinging, the "downloader walking by on the street accepting the offered copy" is not infringing.

-

Re:What does it really mean?

[Anonymous Coward]

All of those would probably be okay, because the songs are being ripped from the CD you own. But you are not entitled to songs ripped from a CD that someone else owns (even if you own a copy of the same CD). It seems like an absurd distinction, but there it is.

Re:What does it really mean?

[Anonymous Coward]

are you just making this stuff up?

Re:What does it really mean?

[cpt kangarooski]

I knew I would be, that's why I put in the terminal illness bit. If I know I am dying in two months, what do I care. (This is hypothetical all around.)

Well, they can still bring a claim against your estate, if it has any assets.

I set up a situation where someone could download a copyrighted work without intent to violate copyright.

Can you clear up a bit more what was meant and how the situation I set up differs.

Well, let's say you go to web site and read a web page that was put up unlawfully. In order to read it, you necessarily make a copy of it in your computer, and that's been held to be infringing.

However, let's say that you run a proxy in between the two machines (the server and the client) in that example. The proxy is making copies too, in order to pass the data along to the user. But you just set it up -- it's the user who triggers it. So liability would probably go to the user, who chose what work to copy with it, and who could therefore control its use in that instance.

The main difference is that if you set up an automatic process that can be used to copy stuff, that's not enough for direct liability. Only when someone does use it to copy stuff, is liability appropriate.

So if you're sending materials to other people's computers, taking advantage of the fact that their email is downloaded automatically, etc. then it's likely not attributable to them. They didn't directly cause the reproduction to occur.

Of course, this sort of rather odd situation is also a good one to use fair use in, since it's an equitable defense, and it seems very unfair to hold people liable when they were set up. It doesn't quite mesh with the traditional four factors, but then, there's no requirement that those be all that a court takes into consideration.

Re:What does it really mean?

[runderwo]

As a rule, yes.

To what limit? How about if each sharer offers just one paragraph? A sentence? A word? A letter? If each sharer provides one letter and its index in the final assembled file, where is the copyright violation being committed?

I think this ruling is just inviting more legislation to "clarify" the use of BitTorrent and similar technology as copyright violations.

Re:What does it really mean?

[westlake]

this ruling says that they didn't do anything illegal just by sharing it

on a motion for summary judgement, the judge ruled that for Napster to host an offer to distribute was not distribution as the copyright statutes define it.
but when you can show actual traffic in files, all bets are off.

Re:What does it really mean?

[cpt kangarooski]

To what limit?

There is no limit, technically. The law is that you cannot, looking to a copyrighted source, reproduce the copyrighted portions of it, even in part.

It's not hard to see why courts would say this. If changing, or not reproducing any mere element would suffice, there'd be plenty of people that would change one word in a book, and print up copies with impunity.

The thing is, however, that you're only not allowed to use the copyrighted parts of works. So, for the musical West Side Story, the underlying plot -- which is from Romeo and Juliet -- can't be copyrighted. The songs, choreography, script, film version, etc. are all additions to that, however, and are copyrightable.

You're free to use West Side Story as the source for the plot of Romeo and Juliet, but not free to use the other parts.

In practice, courts have found infringement in cases with even very small amounts of use. For example, just a few notes taken from one song and used in another has resulted in liability.

Some courts have even found that there's no lower limit -- providing that what's used is copyrightable.

Note of course that where you don't draw from a copyrighted source, but independently create something, there's no infringement, no matter how identical it is. Though if you could have been aware of the prior work in such a situation, courts will usually find it too improbable to believe that you coincidentally came up with the same thing.

As for your example:

If each sharer provides one letter and its index in the final assembled file, where is the copyright violation being committed?

The person who puts together the 'final assembled file' has infringed, by making a copy of the copyrighted work, based upon it. All the people who helped are likely equally as liable, as contributory infringers, since they helped him do it, knowing what they were doing at the time.

Remember how I said that it wasn't a good idea to try to be clever? The infringement in your example is perfectly obvious, and no court is going to be stupid enough to not see it.

I think this ruling is just inviting more legislation to "clarify" the use of BitTorrent and similar technology as copyright violations.

No, not really. It's all pretty clear cut, if you take a look at the law.

Re:What does it really mean?

[zotz]

'I set up a situation where someone could download a copyrighted work without intent to violate copyright.'

I am not sure you really answered the question I was asking.

"Well, let's say you go to web site and read a web page that was put up unlawfully. In order to read it, you necessarily make a copy of it in your computer, and that's been held to be infringing."

Let me now respond to this.

So, if I tell you to visit this great link for info on vacations in Florida:

http://www.bahamasvacationguide.com/

and when you get there, it is not about vacations in Florida at all but is instead a web page that was put up unlawfully (that link is not one such to my knowledge though) then you will have broken the law? That doesn't seem right.

Perhaps I can put two different situations and you can say which if any you were referring to and which if any result in you commiting a copyright violation.

A. You make a copy of X intending to copy X. You think that you have permission or a legal right to make the copy when in fact you don't.

B. You make a copy of Y intending to copy X. If you had indeed made a copy of X as you intended, you would be ok as you had the right to copy X. As it is, you copied Y and you had no permission or right to copy Y.

Were you talking A or B or some other option?

all the best,

drew

Re:What does it really mean?

[cpt kangarooski]

So, if I tell you to visit this great link for info on vacations in Florida:

http://www.bahamasvacationguide.com/

and when you get there, it is not about vacations in Florida at all but is instead a web page that was put up unlawfully (that link is not one such to my knowledge though) then you will have broken the law? That doesn't seem right.

Yes, you will have broken the law. If you dislike this, I encourage you to write your Congressmen. Of course, there is a low likelihood of being sued for such, but since secondary liability requires a direct infringement, it's hardly unknown to see this sort of thing as the basis of a suit against a third party that helped the person looking at the website to infringe. This is basically what happened in Intellectual Reserve v. Utah Lighthouse Ministry.

As for your two scenarios, in both, there is infringement, but A was probably more along the lines of what I was talking about.

Re:What does it really mean?

[Anonymous Coward]

(2) to prepare derivative works based upon the copyrighted work;

Obviously not applicable.

A file on a disk isn't derived from a copyrighted work from some other medium, often different in terms of raw data (as in the case of MP3s and PCM CDs)?

I beg to differ.

Re:What does it really mean?

[Dachannien]

In 17 USC 101:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work".

Since a conversion to mp3 format (ripping a CD, etc) doesn't involve a creative modification to the work, I doubt that it's considered a derivative work. If there's legal precedent that disagrees with that statement, I'd be interested in reading about it.

Too bad you posted AC, because I probably won't hear back from you. :p

Re:What does it really mean?

[zotz]

First, than you for your kind answers.

"As for your two scenarios, in both, there is infringement, but A was probably more along the lines of what I was talking about."

OK, back to my original scene. Instead of emailing te rich marks the offending documents, I place them on a web site with a disclaimer that only x,y, & z have a right to copy.

I send a link to them by email. A certain percentage of them click the link. Now the web server logs show infringement on their part?

When do statutory damages become collectable? I believe the material on the page would have to be "recorded" with the copyright office. Is that the rigt word? (My brain does not want to work well yet this morning.) Are there any other requirements for sueing statutory damages?

all the best,

drew

Re:What does it really mean?

[GigsVT]

Downloading is illegal, and there have been several cases -- including an earlier part of the Naspter litigation -- that have held so.

Could you cite them? What's the legal standard? If I buy a Tivo that violated the GPL, am I committing infringement? If I buy a computer from a computer store that cheated on Windows licensing, I'm guilty of a crime? What about recording something off the radio? What if the radio station didn't pay their licensing?

All those are cases of the person distributing the copyrighted work in an infringing manner, but I can't see the recipient being held liable.

And also, under Sony, a technology need only be potentially capable of substantial noninfringing uses.

Thanks for clarifying this.

Re:What does it really mean?

[cpt kangarooski]

OK, back to my original scene. Instead of emailing te rich marks the offending documents, I place them on a web site with a disclaimer that only x,y, & z have a right to copy.

I send a link to them by email. A certain percentage of them click the link. Now the web server logs show infringement on their part?

Statements along those lines may or may not work. Given the overall course of action you'd be undertaking, I'd be surprised if a court didn't find that you had implicitly authorized the people you mailed to view the works, with all that entailed.

This is because you are essentially trying to run a scam, and courts will do everything they can to avoid having you benefit from it, even a little bit.

When do statutory damages become collectable? I believe the material on the page would have to be "recorded" with the copyright office. Is that the rigt word? (My brain does not want to work well yet this morning.) Are there any other requirements for sueing statutory damages?

You have to create a work. You have to register the work with the Copyright Office, which costs $30. There has to be an infringement. You have to file a complaint in federal court, which costs $250. You need to know how to do it correctly, and which court to file in, which probably means hiring a lawyer, if you can find one that's willing and able to participate.

The minimum damages awardable are $200 per work.

So it's likely you'd end up losing money. It's further likely that you'd end up getting sued yourself for trying to run the scam, and that angry judges would hold you in contempt if you tried it a second time.

I really would not try it, if I were you.

Re:What does it really mean?

[zotz]

"Statements along those lines may or may not work. Given the overall course of action you'd be undertaking, I'd be surprised if a court didn't find that you had implicitly authorized the people you mailed to view the works, with all that entailed."

Since in the situation I outlined, I would not have any rights to even make copies for myself much less authorize someone else to do so, I don't see how this can be so.

"So it's likely you'd end up losing money. It's further likely that you'd end up getting sued yourself for trying to run the scam, and that angry judges would hold you in contempt if you tried it a second time.

I really would not try it, if I were you."

Oh, I have no intention of trying something so crooked, or something so stupid.

I got into this whole line as a result of a statement that the intent of the person making the unauthorized copy did not enter into the matter. I tried to set up a situation where a person clearly had no intention to violate anyone's copyright end yet did make a copy of someone's copyrighted work without their permission to do so. The particulars were just some invented way to have this happen.

I still don't see you saying that, indeed it doesn't matter what they intended, they made a copy, they had no permission from the copyright holder to do so and thus they are guilty. (And under the statutory damages deal, they could face hugh fines.) Are they guilty? Would they face such fines if the work was registered?

You have taught me something I was previously ignorant of though (I think) as I did not know that the statutory damages deal had minimum and maximum fines. If I read you right, would you care to enlighten us further?

all the best,

drew

Re:What does it really mean?

[cpt kangarooski]

Since in the situation I outlined, I would not have any rights to even make copies for myself much less authorize someone else to do so, I don't see how this can be so.

Fair enough.

I still don't see you saying that, indeed it doesn't matter what they intended, they made a copy, they had no permission from the copyright holder to do so and thus they are guilty.

Liable, not guilty. Civil suits deal with liability; criminal suits deal with guilt. And there are higher standards for criminal infringement; they're not strict liability.

Anyway, yes, it doesn't matter what they intended. If they undertake an infringing action, they're liable.

You have taught me something I was previously ignorant of though (I think) as I did not know that the statutory damages deal had minimum and maximum fines. If I read you right, would you care to enlighten us further?

The relevant statute is 17 USC 504.

For infringement, the statutory damages are within the range of $750 - $30,000 per work, as the court finds to be appropriate.

If the plaintiff can show that the infringement was willful (this does get into the infringer's mental state), then the maximum is $150,000 per work, again, as the court finds to be appropriate.

If the defendant can show that he did not know, and had no reason to know, that he infringed, the minimum is $200 per work, as the court finds appropriate.

Re:What does it really mean?

[zotz]

"Liable, not guilty. Civil suits deal with liability; criminal suits deal with guilt. And there are higher standards for criminal infringement; they're not strict liability."

Sorry, OK liable. Not being a lawyer, I sometimes miss being precise in my words.

Which does bring up another question (sorry for having so many, I just hope the thread will serve to educate others as well.) Isn't there a criminal side to this whole copyright infringement business these days? If so, when does the criminal come into play?

"Anyway, yes, it doesn't matter what they intended. If they undertake an infringing action, they're liable."

OK then. That hurts. But after learning that the statutory damages are variable, the situation is not as bad as I had envisioned. Is it the judge who decides on the amounts in all instances? Is there ever a jury involved?

"For infringement, the statutory damages are within the range of $750 - $30,000 per work, as the court finds to be appropriate."

Wasn't there a $200 figure mentioned earlier, when would that come in?

"If the plaintiff can show that the infringement was willful (this does get into the infringer's mental state),"

Does it matter if the act was willful or if the intent to infringe was willful? As in:

I willfully made a copy knowing it was a copyright violation to do so, versus I willfully made a copy, but I thought it was not a copytight violation to do so, versus, I did not willfully make the copy, but I made it anyway.

all the best,

drew

Re:What does it really mean?

[cpt kangarooski]

Isn't there a criminal side to this whole copyright infringement business these days? If so, when does the criminal come into play?

These days being all the days since 1897. Criminal infringement is not new. The relevant statutes are at 17 USC 506 and 18 USC 2319, and 2319B. But unless the federal government prosecutes you for this, which is not terribly common, but does happen, it isn't an issue. Many, many more people face civil suits than criminal suits.

Is it the judge who decides on the amounts in all instances? Is there ever a jury involved?

Usually copyright suits are bench trials with no jury. But, if you want a jury to decide the amount, you have the right to have one per the 7th Amendment.

Wasn't there a $200 figure mentioned earlier, when would that come in?

Only if you did not believe, and had no reason to believe, that you were infringing, does the minimum drop from $750 to $200 per work.

Does it matter if the act was willful or if the intent to infringe was willful? As in:

I willfully made a copy knowing it was a copyright violation to do so, versus I willfully made a copy, but I thought it was not a copytight violation to do so, versus, I did not willfully make the copy, but I made it anyway.

It sounds like only the first of those three would satisfy the willfulness standard. Infringement is willful if you infringe the copyright and knew or should have known that it infringed the copyright.

In order to avoid being found willful, you need to prove both that you did not know, and had no reason to know, that what you did was infringing. This requires a good faith belief, obviously.

Re:What does it really mean?

[zotz]

Ok, thanks again for your patience and your kind answers.

I am not from the US, but these things interest me. I think our copyright laws have been changed within the last 10 or 15 years. I saw something in the paper the other day and asked around and have been told that here, simple possession of a cd or dvd that was burned (duplicated) in violation of copyrights can result in a 5 year prision term (it may have been 4 years, I can't remember now.

That seemed odd to me so I clarified and said suppose someone went into a normal everyday store and bought a cd or dvd that looked legit. They take it home. Later, for some reason, it is found to not be a legit copy. Is this person liable to jail? The answer I got was yes. (There is also a hugh fine that goes along with the possible jail time. Perhaps fine is not the right term, I don't know who would get the money.)

all the best,

drew

Re:What does it really mean?

[runderwo]

For example, just a few notes taken from one song and used in another has resulted in liability.

And to me, this is the limit of absurdity. Just because things are this way, doesn't mean they *should* be this way. Do you honestly not see a chilling effect on new development here? There are twelve tones in the musical scale and four subdivided beats in the typical measure. How long can you create music before one of your concocted measures happens to match one of somebody else's that is still under copyright, especially given that copyright terms are on the order of centuries now?

Remember how I said that it wasn't a good idea to try to be clever? The infringement in your example is perfectly obvious, and no court is going to be stupid enough to not see it.

It may be obvious that infringement is occurring, but you have not convinced me that the downloader is the one who is making the copy. Without the structural information provided by the others who have the file themselves, the infringement would not have been possible. That makes them an enabling factor and thus a contributor at least. But then why are people who operate warez FTP servers considered infringing themselves and the downloaders contributors? By your argument, it would be just as reasonable to conclude that the downloader invoked the copy and thus is responsible for the work's unauthorized reproduction. The FTP server is the enabler, and the downloader is the causal factor. In this case, the FTP server can be viewed in two ways: either as an enabler or as creating an unauthorized production itself on the operator's end when it makes a copy for transmission.

What about drugs?

[OrangeTide]

Don't they bust people for "offering" drugs, even when they don't have any real drugs. Usually they have some fake drugs (basil, powdered sugar, whatever).

Re:What about drugs?

[phoenix.bam!]

not at all. People are busted for Intent to distribute if they have a large quantity of drugs. You can be busted as a dealer even if you have a kilo of cocaine for personal use. Having less than a certain amount is only possession.

Re:What about drugs?

[Dogers]

Yeah, but possessing drugs is also illegal. Possessing music isn't. Yet.

Re:What about drugs?

[Anonymous Coward]

Drugs kill.
Downloads kill not.
At least not yet.

Re:What about drugs?

[The Ultimate Fartkno]

> Usually they have some fake drugs (basil, powdered sugar, whatever).

Basil?

Either you've never been in a kitchen before or your dealer has been completely ripping you off.

Re:What about drugs?

[FidelCatsro]

Drugs (as in those which are contraband) are illegal and criminal to sell , posses or distribute in any way , its a very diffrent thing.
Music is legal to own , posses and in some situations distribute and sell
It would be rather scary if they tried to apply the same thinking to civil cases as to criminal cases .

Re:What about drugs?

[Lord Kano]

Don't they bust people for "offering" drugs, even when they don't have any real drugs.

It's usually intent that they bust people for in those cases.

If an undercover cop is pretending to be a dealer, and it's your intent to purchase illegal drugs from him, that's the crime.

If they catch you immediately after buying drugs from a real dealer, that is a different crime(possession).

LK

Re:What about drugs?

[Maxo-Texas]

They bust them but they are likely to be found not guilty.

There is an article in today's houston chronicle that says about 1-2% of people who thought they were dealing drugs were actually unknowingly selling things like baking soda so their lawyer advised them not to plead guilty until the lab test results came back and proved the substance they had been selling was really an illegal substance.

I conclude from the article that either the sentence would be greatly reduced, or they might even be found not guilty if tried.

Re:What about drugs?

[Rei]

Who says downloads don't kill? The MPAA thinks that they do!

MPAA: International Copyright Piracy: Links to Organized Crime and Terrorism

Coming up next in Bizarro World: the Campaign for Safer Streets will be launching a 30 second ad segment pushing the claim that jay walking encourages terrorism.

Re:What about drugs?

[Locke2005]

The MPAA appears to arguing out of both sides of their ass. In order for the copyright infringement to be supporting terrorism, doesn't somebody have to be paying money for it? In other words, by the MPAA's own argument, distributing copyrighted material for free cuts off funding for terrorism! So by eliminating all copyright protection tomorrow, and having the government make freely available all previously copyrighted materials, we can cut off the flow of money to the terrorists, and win the war on terror!

Or perhaps the terrorists make a lot more money on things like opium then they do on "pirated" movies...

Re:What about drugs?

[Maxo-Texas]

I wonder if it would be like offering "Madonna - like a virgin.mp3" for download when it is really a recording of your opinion of the song?

Re:What about drugs?

[DerelictMan]

Music is legal to own , posses and in some situations distribute and sell

Yeah, it breaks down like this: it's legal to buy it, it's legal to own it and, if you're the proprietor of a music store, it's legal to sell it. It's legal to carry it, which doesn't really matter 'cause -- get a load of this -- if the cops stop you, it's illegal for them to search you.

Re:What about drugs?

[OrangeTide]

I've been thinking of starting a site with torrents with filenames based on popular film titles, but the file it downloads is just the 7 second mpeg of the FBI warning you find on DVDs and Video Cassettes.

But I know the MPAA would send me a nasty letter and possibly a summons without even examining the content (or noticing the files are under only hundreds of kilobytes, not many megabytes)

Re:What about drugs?

[Anonymous Coward]

Yes but theres a spcific law called solicitation of drugs. If you even have intent to sell they can get you.

Re:What about drugs?

[rbarreira]

Man, that link is really funny.

A vehicle driven by the pirates rammed the van transporting the Malaysian enforcement officials and MPA's anti-piracy investigators to the raid. Bat wielding pirates attacked the enforcement team. Only after the Malaysian enforcement officials fired their weapons into the air did the crowd disperse.

Am I the only one who can't avoid thinking about the Monty Python short movie with the pirates? :D

Re:What about drugs?

[nzkbuk]

It would be rather scary if they tried to apply the same thinking to civil cases as to criminal cases

But haven't they pushed through laws that make this illegal ?
How else are they getting the FBI to issue the terrorism type soupena's against ISP's for details if it's only civil.

Re:What about drugs?

[iantri]

Who owns the copyright to the seven second FBI warning?

<g>

Re:What about drugs?

[zotz]

Well let's see...

If the FBI wrote it and government publications are in the public domain...???

Anyone know the real details?

all the best,

drew

Re:What about drugs?

[SacredNaCl]

Don't they bust people for "offering" drugs, even when they don't have any real drugs. Usually they have some fake drugs (basil, powdered sugar, whatever).

That is a different matter. Some states have a "look-a-like" law, where if you were to misrepresent say chips of yellow soap as crack, and sold as such they could prosecute you under the look-a-like law. They can't prosecute you for selling crack, or posessing crack though. So you only get whatever sentence is handed down under that statute.

Now if you have any actual drug content in that soap, or better example say you had 1/2 of a gram of marijuana in that 10gram bag of basil, they would prosecute you for the entire weight of the mixture. The law in my state (and most states) spells it out as "marijuana or mixture containing marijuana" or "opium opium derivatives and mixtures thereof"..etc. So instead of getting charged for the law that applies to the half gram you could be charged under the one that applied to 10 grams. MANY people selling pharmacuticals go down for much longer sentences because of that, even though 99.9% of the pill is binder, or its combined with another drug that isn't controlled, they only consider the total weight of it as a whole.

In my state its better to sell 500mg of pure oxycodone powder than 3 oxycodone/apap tablets which = 15mg of oxycodone but over 2grams of actual weight, the difference is about 6 years in the potential sentence.

Re:What about drugs?

[iantri]

Well, here in Canada at least all publications are Copyright Queen's Printers', but they are licensed such that they can be used for non-commercial purposes without explicit permission.

My point, anyway, was that you just can't win at this copyright nonsense.

Re:What about drugs?

[OrangeTide]

Well 7 seconds is easily Fair Use.

Re:What about drugs?

[OrangeTide]

Most official publications in the US are public domain. If it was created by a third party it sometimes is copyright by that third party, depending on the agreement between the government and the contractor.

For example IRS forms, birth certificates, and social security cards are public domain.

They can download it themselves

[KiloByte]

Unfortunately, all it takes for ??AA is having an employee or an "unrelated" person to download the file to produce the proof.

Re:They can download it themselves

[MrByte420]

Entrapment?

I know this word is used way too loosely by people trying to make points about the law but aren't you forcing someone to break the law in order to sue them? Didnk't think you could do that.

Re:They can download it themselves

[KiloByte]

Right, that's why you get an "unrelated" person to do the actual downloading.

Re:They can download it themselves

[AKAImBatman]

I know this word is used way too loosely by people trying to make points about the law but aren't you forcing someone to break the law in order to sue them?

1. Entrapment only applies to law enforcement.
2. "when a person is predisposed to commit a crime, offering opportunities to commit the crime is not entrapment"
3. I'm thinking that someone who has permission to download files is not causing anyone to break the law by downloading from a site that is offering said files.

Re:They can download it themselves

[Negadecimal]

Entrapment?

Undercover cops nab prostitutes by offering cash and a passenger seat. Not entrapment there, either.

Re:They can download it themselves

[Joe5678]

They are not breaking the law if they are given permission by the copyright holder.

Re:They can download it themselves

[Anonymous Coward]

They can use the fact that you transmitted one file to go after you but upon searching your computer say you are liable for each and every copy of anything on your system and multiply that for 'damage' for sentencing purposes. Remember its not just civil suits its criminal as well so there can, and have been raids over it.

This also means that the *AA cant just get a list of what you are offering, get 1 file and sue you for every single thing they find in your list of offered products. They instead have to only go after you for what they downloaded or caused to be downloaded. It sets the bar higher for the millions they were going after individuals for and most likely makes the average amount a few thousand dollars tops.

Re:They can download it themselves

[Anonymous Coward]

that's why you get an "unrelated" person to do the actual downloading (emphasis mine.)

Yeah, that works *SO* well for the mob bosses that end up charged with murder by asking an "unrelated" party to kill a rival.

Re:They can download it themselves

[Anonymous Coward]

How much of the file to you have to send to to the other person to count?

With most P2P programs allowing you to download of many people 1 file is unlikly to come solely from one person.

Re:They can download it themselves

[rbochan]

1. Entrapment only applies to law enforcement.

Welp, considering who's writing laws these days and who's taking who to court, does that not bring to question just how the law enforcement actually is? The line seems to be getting thinner and thinner.

Re:They can download it themselves

[numark]

Entrapment can only apply to criminal cases. Copyright infringement is a civil matter, since you can't go to jail for it and only the party that is harmed can bring the case to court, not the government. As such, entrapment doesn't matter one bit in this instance.

Re:They can download it themselves

[Alsee]

Copyright infringement is a civil matter, since you can't go to jail for it and only the party that is harmed can bring the case to court, not the government.

Chuckle. You overlooked the NET act (No Electronic Theft act) passed in '97 or '98.

Uploading so much as a single file & downloading so much as a single file constitutes criminal infringment with a penalty of up to one year in prison.

Uploading 10 or more files/copies & downloading so much as a single file constitutes criminal infringment with a penalty of up to five years in prison.

A second offence is rates up to ten years in prison.

If the law were to be actually and fully enforced a very substantial percentage of the entire population would be imprisoned. The entire country would fall apart. We'd have to build roughly ten times as many prisons just to hold them all.

They redefined 'financial gain' to cover basic P2P use, and of course there are all sorts of crazy prison penalties for supposedly commercial copyright infringment.

Our copyright laws are LITERALLY written by lawyers employed by the publishing industry, and our legislators are told we need some new law to fight The Bad Guys and they often don't review or understand the details.

-

The Napster case?

[Wesley Felter]

Napster has been dead for a few years now; I can't believe there are still lawsuits going on. Give it up, RIAA.

Re:The Napster case?

[ScrewMaster]

Well ... when you've got a lot of otherwise underemployed lawyers on your hands you have to find something for them to do, I guess.

Re:The Napster case?

[Husgaard]

This case is not against Napster. It is against those who invested in Napster at that time. Yes, some of these investors are still alive.

I think RIAA is trying to sue them for some kind of secondary or tertiary contributory copyright infringement.

Common sense?

[Sv-Manowar]

This seems to me like a victory for common sense. Using the fact that someone offers you files named, checksummed or otherwise identified as a specific song/resource is and should be no proof that those files are either being transferred or distributed. There were cases of this kind of stupidity with the RIAA sending out threats to people with files named with artist's and track names, without even verifying the contents, and this is clearly overstepping the mark. Until they can prove and verify that what you're offering is the valid song, and that you have actually distributed copies of it, it would seem highly bizarre that they could claim you were performing those acts.

Re:Common sense?

[Otter]

I'm not qualified to have a legal opinion about this, but here's what seems like common sense to me: if you make a file available for upload on a service designed for sharing files and obscuring the details of transfers -- I'd call that "distributing". I agree with you about confirming the identity of the file, though.

But, that's just my notion of common sense...

Re:Common sense?

[geekee]

" This seems to me like a victory for common sense."

No, common sense says that if you are sharing a popular song on a popular p2p network, people are downloading it, and you are guilty. The law isn't based on common sense, however, but on the idea that you are innocent until proven guilty, so therefore, the RIAA needs to prove someone actually downloaded a copyrighted song you are sharing.

Re:Common sense?

[mindstrm]

Similarly, if I put a vending machine full of copies in my front yard, but nobody uses it, have I actually distributed?

Re:Common sense?

[doc modulo]

Another way to look at it:

As (semi)programmers we know that when a file is ready to be downloaded from a server. The person initiating the download is the person who is instructing the server to make a copy.

Who is the copyright infringer in this scenario?
I am not a lawyer but as I understand it, the law is against the act of making a copy, that's why it's called copyright. There's also a seperate law against illegal distribution.

Is the downloader creating the copy? He initiated the process of both the making of the copy and the start of the distribution process.

I know that it's morally true that the "server" operator is responsible in the real world but looking at the letter of the law, and the details of the process, it's the downloader that initiates both processes. It's also true that the person who set up the server is the one who made the whole process possible at all, however, he/she isn't the one who does it.

A good analogy would be a xerox copier just outside of your house with a couple of books next to it, everyone can walk by and copy the books. You're the one who put the copier there and providing the electricity and paper. You're NOT the one forcing people to make the copies and you're also not the person DOING the copying.

P.S. I would like people to discuss this with logical arguments for and against, in the same post if you want to. No twisting the facts with your emotions.

Re:Common sense?

[Minna Kirai]

It's also true that the person who set up the server is the one who made the whole process possible at all, however, he/she isn't the one who does it.

The legal system generally has little trouble holding multiple people liable for a single offense. Depending on the lawyer's exact mood, he could paint you as a conspirator, an abettor, an accessory before the fact, or even an additional defendant for the exact same act.

It's not as if they've never convicted two men for murdering a single victim.

Imagine if one man installs a bomb in a car, and another remotely detonates it. Who is responsible for any harm resulting? Both of them. Each did an action that could only be interpreted as intentionally leading to illegal danger, but which would've been ineffective without the other. No matter, common sense will win the day.

Re:Common sense?

[Anonymous Coward]

And it doesn't count if the RIAA themselves download the file in full? It would stand to reason that if the RIAA can download the file, then the person has distributed it. It would also now be required for proof that it is in fact the copyrighted material in question, and not entropy by the same name.

Ok, this is interesting....

[shatfield]

So now the RIAA will have to not only subpoena the names of the people sharing files, but the actual logs of the ISPs to be able to prove that someone actually downloaded the file.

How likely are the RIAA to get these logs? Do the ISPs by law have to keep these logs?

Re:Ok, this is interesting....

[kindbud]

How likely are the RIAA to get these logs? Do the ISPs by law have to keep these logs?

They will when the RIAA-sponsored Internet Copyright Infringment Evidence Preservation Act is passed. Their standard M.O. after getting spanked in court is to go buy a law that has the effect of overturning the unfavorable ruling.

Re:Ok, this is interesting....

[ciroknight]

Well, I think there are significant other legal standings saying the ISPs don't have to turn over those kinds of log files, and even if they did have to, all anyone would have to do is use a damned encrypting P2P system.

Besides, the ISPs couldn't POSSIBLY keep a log of every bit that went through their networks, and it's probably very hard to keep logs of just where those packets were going, though not impossible. Maybe we as consumers should start asking for guarenteed anonymity or move on to greener pastures.

Re:Ok, this is interesting....

[Lord Kano]

If they were somehow compelled to keep such logs, what would happen is that all traffic would be passed through an SSL tunnel.

An ISP would have logs to show that something was transmitted between you and the server in question, but they wouldn't know what.

LK

Re:Ok, this is interesting....

[Loki_1929]

"They will when the RIAA-sponsored Internet Copyright Infringment Evidence Preservation Act is passed. Their standard M.O. after getting spanked in court is to go buy a law that has the effect of overturning the unfavorable ruling."

Sure, but it won't be called that. Some bought-and-sold Congresscritter will introduce it as the "Securing And Verifying Electronically Transmitted Holdings Every Copyright Holder Is Locking Down Responsibly Every Night Act" - also known as the "SAVE THE CHILDREN act"

Re:Ok, this is interesting....

[Minna Kirai]

If they were somehow compelled to keep such logs, what would happen is that all traffic would be passed through an SSL tunnel.

Which becomes further evidence that the gangster terrorists are using military-grade encryption to destroy the economic-foundations of American culture, so Congress will need to bravely outlaw the use of any code lacking an NSA-backdoor for court-approved wiretaps.

Awesome!

[czarangelus]

This is totally awesome! It's going to put a major wrench in the RIAA/MPAA's tactics.

Too bad all those people who payed settlements rolled over for them... it looks like they had a chance to fight back with rulings like these.

Why don't they just DL the file?

[antispam_ben]

Copyright holders have to prove that someone actually downloaded the file from you before you can be found liable for distributing.

I'm not down with this P2P stuff, why can't they just get the file and find the IP address, thus demonstrating the file wasn't just "available", but was actually distributed?

Re:Why don't they just DL the file?

[ppswede]

In most countries (for example Sweden) the government cannot actually commit a crime in order to prove someone else was part of it. For example they can't buy drugs and nail someone for selling it. Also, I guess that this might have implications for example BitTorrent websites which aid in offering a pirated piece of information but not actually distributing it?

Re:Why don't they just DL the file?

[Anonymous Coward]

Shutup man! They are fairly clueless as it is, please don't give them any ideas that they haven't and wouldn't come up with on their own.

Re:Why don't they just DL the file?

[Husgaard]

I'm not down with this P2P stuff, why can't they just get the file and find the IP address, thus demonstrating the file wasn't just "available", but was actually distributed?

I don't think this would work. If the copyright holder initiates the download, this distribution is done with the consent of the copyright holder, and is thus probably not illegal.

They have to find proof that other people did a download.

Re:Why don't they just DL the file?

[antispam_ben]

I don't think this would work. If the copyright holder initiates the download, this distribution is done with the consent of the copyright holder, and is thus probably not illegal.

I don't see that. The person hosting the file has no way of knowing the person DL'ing it is the copyright holder unless the holder identifies himself as such (who obviously would not for the purpose of this DL).

An even stronger argument, for the DL to be legal, regardless of who DL's it, the host needs WRITTEN permission from the copyright holder, who obviously did not give it.

Re:Why don't they just DL the file?

[cpt kangarooski]

I think it would work. The problem is that in THIS CASE, it wasn't Napster that had the file at all. So the only thing they did that could be a direct infringement was providing the list.

I think it's good for people here to bear in mind that this one ruling isn't a huge deal; Napster still went down for a host of other reasons. This little win isn't going to bring back the golden days of P2P.

Re:Why don't they just DL the file?

[kidgenius]

Actually, the reason Napster got busted was because it did host the files, not merely point you to where they were at. That is why Kazaa, et al, are doing quite a bit better in court.

Re:Why don't they just DL the file?

[cpt kangarooski]

No it did not.

On Napster the indices were centralized; under their control. Thus they were able to have knowledge and contribution sufficient for liability at the same time. And they had the right and power to control user accounts, whilst running ads.

That, combined with the fact that users hosted files and were direct infringers by both uploading and downloading, is what killed them.

Later P2P networks have decentralized indices, so the provider of the technology can't control how its used, or by whom.

Re:Why don't they just DL the file?

[Khyber]

If the copyright holder initiates the download, this distribution is done with the consent of the copyright holder, and is thus probably not illegal.

Okay, so... basically... if (for example) LucasArts gives up for four or five days permission to download ROTS from their site, and ten people did download it, would that not mean that movie is in the public domain, and since they made the file "freely available for download" that those particular copies (being the authorized for public consumption version) woudl be legal to distribute? After all, it was advertised as free for public consumption.

Re:Why don't they just DL the file?

[julesh]

I don't see that. The person hosting the file has no way of knowing the person DL'ing it is the copyright holder unless the holder identifies himself as such (who obviously would not for the purpose of this DL).

Why should the fact that the person believes what they're doing is illegal make an otherwise legal action illegal? That makes no sense.

An even stronger argument, for the DL to be legal, regardless of who DL's it, the host needs WRITTEN permission from the copyright holder, who obviously did not give it.

AFAIK, you do not need written permission from the copyright holder to have a valid license.

Licenses can be granted implicitly, and I think them requesting you to make a copy is a great way of getting a license for that copy.

Quote: [...] you have an implied licence where all the circumstances suggest that the copyright owner expected you to use his or her copyright material in the way you are going to use it, even though this was never discussed and has not been written down anywhere (source)

Re:Why don't they just DL the file?

[antispam_ben]

Why should the fact that the person believes what they're doing is illegal make an otherwise legal action illegal? That makes no sense.

I don't see that it's "otherwise legal." Quoting the last sentence of the "Implied Licensing" section of the website you reference:
"Whether any particular material might be covered by an implied licence is something you will have to judge from the website you found it on, but you cannot argue that you have an implied licence where the material was on the Internet illegally in the first place of course."

Back to quoting parent:
AFAIK, you do not need written permission from the copyright holder to have a valid license.

I concede that point, but as the quote above makes clear, that doesn't give a valid license for something where the download is illegal to begin with.

Quote: [...] you have an implied licence where all the circumstances suggest that the copyright owner expected you to use his or her copyright material in the way you are going to use it, even though this was never discussed and has not been written down anywhere (source)
Interesting that you should quote that. The copyright owner clearly did not allow and would not have allowed it to be freely downloaded, but the way it's worded, and in this day and age, the copyright owner probably does and certainly should EXPECT the material to be "shared" on P2P/bittorrents, thus by that wording it's not a violation of copyright.

If that wording acurately represents the actual law, then copyright law no longer means much.

Re:Why don't they just DL the file?

[julesh]

I concede that point, but as the quote above makes clear, that doesn't give a valid license for something where the download is illegal to begin with.

You're right -- for the entire thing to be legal, the copy you were sharing would have to be a legitimate one (e.g. a file you downloaded from a correctly authorised digital music download store).

But the problem they face is this: they can't easily prove that it wasn't a legal file. Them downloading it from you does not cause an illegal action to take place. It's only if you downloaded it from somebody unauthorised (which they can't prove) or somebody else downloaded it from you (which they can't prove) that there's an issue.

The copyright owner clearly did not allow and would not have allowed it to be freely downloaded

True. But they can't prove that; they can only prove that they were able to download it themselves. And their computer sending a request to yours to make a copy and upload it could very easily be seen as a context which causes an implicit license to exist.

humm.

[LWATCDR]

So what does this mean for Bit torrent trackers?
They offer just a hash not the actual file.

Re:humm.

[Anonymous Coward]

Easy. They'll slap an MP3 header at the beginning of the hash and copyright it. It probably sounds as good as 90% of the tunes they release, anyway.

Re:humm.

[ScrewMaster]

Well, Napster got nailed not on direct infringement (because Napster wasn't directly transferring materials) but on "facilitation", instead. Presumably that attack would still work just as well on a tracker site.

Re:humm.

[Anonymous Coward]

Wouldn't incorrectly offering a file for download count as facilitation? Ouch. I don't get any of this.

Re:humm.

[Anonymous Coward]

No, because no copyright infringement has occured.

Re:humm.

[cpt kangarooski]

Basically nothing.

This ruling is that providing an index isn't a direct infringement. But it's still possible to be liable for indirect infringements, such as contributory infringement and vicarious infringement. Basically, if you help, or are sufficiently commercially involved with, an infringer, you're responsible too.

BT trackers are very vulnerable to contributory infringement actions, and often vicarious infringement actions too.

Remember, all Napster did was help uploaders and downloaders infringe -- and they got shut down. BT trackers aren't significantly different.

Re:humm.

[mindstrm]

It means nothing.

We need to get over the idea that someone is exempt from responsibility just because there is some technical obfuscation.

What this ruling is about is simply this:

You can't be charged with infringement just because you OFFERED some files.. they have to actually prove you distributed them, as well.

In the case of a bittorrent tracker, they may not be offering the files, but then, neither was napster... they were only facilitating the transaction (Contributory infringement).

On a more realistic note, legal wranglings aside:

If you run a tracker, and that tracker's primary purpose is to traffick in copyrighted material, and you damn well know it, it's absurd for you to pretend you did nothing wrong. In a lawful society responsible behavior is expected.

Re:humm.

[Moofie]

"In a lawful society responsible behavior is expected."

Wish we could expect the same of our corporate overlords. I mean citizens.

Re:humm.

[Anonymous Coward]

One time I was caught offering hash. The officers didn't seem to understand that it was just hash and not the actual thing. This should serve as warning that claiming it is "just hash" is not a valid defense in these days.

There are no logs

[Wesley Felter]

ISPs can't afford to keep packet logs of their subscribers's traffic.

New plan:

[Anonymous Coward]

1. Get some kind of copyrighted material NOT owned by the RIAA, say a novel written by a friend of yours.
2. Make 3000 copies of it, each one containing the material repeated until it reaches 3.2 or so megabytes, and name them all things like "Avril Lavinge - Happy Ending.mp3".
3. Put them up on kazaa.
4. Wait to be sued by the RIAA.
5. When sued, produce logs and demonstrate that the RIAA has -- in fact -- downloaded quite a lot of copies of your friend's novel.
6. Get your friend to sue the RIAA for illegally downloading his novel.

Re:New plan:

[starrsoft]

" 1. Get some kind of copyrighted material NOT owned by the RIAA, say a novel written by a friend of yours. 2. Make 3000 copies of it, each one containing the material repeated until it reaches 3.2 or so megabytes, and name them all things like "Avril Lavinge - Happy Ending.mp3". 3. Put them up on kazaa. 4. Wait to be sued by the RIAA. 5. When sued, produce logs and demonstrate that the RIAA has -- in fact -- downloaded quite a lot of copies of your friend's novel. 6. Get your friend to sue the RIAA for illegally downloading his novel."

One problem: Don't you think the RIAA might check the contents of the file before they sue?

Re:New plan:

[cft_128]

One problem: Don't you think the RIAA might check the contents of the file before they sue?

If recent history is any indication, no they won't check the file before they sue.

Re:New plan:

[Bloomy]

Maybe before they sue, but not necessarily before they threaten.

Re:New plan:

[Anonymous Coward]

In that case put the goatse picture in it. That way everyone wins.

Re:New plan:

[Anonymous Coward]

Everyone except the goatse guy.

Re:New plan:

[Jimmy_B]

It's not illegal to download something if it's authorized, directly or indirectly, by the author. If your friend agrees to let you put the file on KaZaA, that makes it legal. If he doesn't, that makes what *you're* doing illegal. And also liable for any damages stemming from the RIAA's downloading of that file, so any money your friend won would ultimately come out of your pocket.

The law is generally not conducive to silly schemes such as this one. Usually the only ways to make money off the courts are for someone to actually wrong you, to bully a smaller entity into settling, or to attempt fraud (which is unlikely to work).

Re:New plan:

[Anonymous Coward]

One problem: Don't you think the RIAA might check the contents of the file before they sue?

The RIAA and/or MPAA have:

1)Sent a letter to a DEAD WOMAN claiming she violated their Copyrights.

2) Sent a letter to a 12=year old girl.

3) Sent a letter claiming an 80-year old women WHO DIDN"T OWN A COMPUTER was, under the name "SmittenedKitten", trading files.

Do you RERALLY think they'll check the contents of the files?????

Re:New plan:

[westlake]

name them all things like "Avril Lavinge - Happy Ending.mp3". 3. Put them up on kazaa. 4. Wait to be sued by the RIAA. 5. When sued demonstrate that the RIAA has -- in fact -- downloaded copies of your friend's novel. 6. Get your friend to sue the RIAA for illegally downloading his novel.

Congratulations. You and your friend are now booked for an extended engagement at Club Fed.
The charges will include conspiracy and wire fraud. Song titles are copyrighted. Duh. Using them to seed a scam of the rights' holders is beyond stupid.

Re:New plan:

[jonbryce]

They aren't copyrighted. It would be a trademark violation though.

Re:New plan:

[cob666]

Song titles are copyrighted. Duh

Song Titles are not copyrightable

IANAL but you would most likely run into some problems if you used the artist's REAL name but naming the file Happy Ending.mp3 wouldn't be illegal.

Imagine how bittorrent is affected

[Free_Trial_Thinking]

So participating in a bittorrent may not be proof of wrong doing anymore. Would Fox now have to prove that someone actually came away from the swarm with a full Simpsons episode and that all of the bits came from me?

Discuss, discuss

Re:Imagine how bittorrent is affected

[Anonymous Coward]

I guess the ruling means that the website hosting the torrent files themselves are now free from guilt. However anyone who is a seeder, that is with a full copy is now subject to the full penalty of the law as seeders are activly distributing the file. These people's IP's are very easy to locate with many Torrent clients.

For example, with BitTornado you just start downloading a torrent and click the advanced link. A menu pops up displaying a list of everybody your connected with and a percentage of the file they have. Those people are now the ones who will be held responsable.

Re:Imagine how bittorrent is affected

[MooseGuy529]

I'll bite.

I found an interesting theoretical loophole in fair use and copyright law, albeit one that probably wouldn't stand up in court. Let's say you have a 5-minute song. You get 300 people to rip their CD's (using the same settings to ensure a valid file), and provide only 1 second of the song each. Fair use allows you to quote small portions of something, so the sharers wouldn't be at fault, and since offering a quotation isn't copyright infringement, collating them into a copy (that you don't redistribute) should work. Any thoughts?

Re:Imagine how bittorrent is affected

[cpt kangarooski]

So participating in a bittorrent may not be proof of wrong doing anymore.

Oh?

Would Fox now have to prove that someone actually came away from the swarm with a full Simpsons episode and that all of the bits came from me?

No. Depends on what they want to do, but at a minimum they just have to show that they have the copyright to the episode, someone made a copy of at least part of an episode, that you helped them do it (e.g. by providing some of that part), and that you knew it at the time.

Re:Imagine how bittorrent is affected

[Anonymous Coward]

Maybe they aren't in trouble regarding the copyright, but you (the one collecting all these clips) are.

Which is to say, downloading is illegal, uploading isn't (necessarily).

Re:Imagine how bittorrent is affected

[Anonymous Coward]

Also, if you only distributed a small part of the file in question - say 5% - then you can claim 'fair use'. Then if the final user made fair use 20 times from various sources... which is pretty much how a torrent works - except for the first download.

Re:Imagine how bittorrent is affected

[MooseGuy529]

But don't all the copyright pages say "reproduced or transmitted"? That would implicate the person who is transmitting it, not receiving it. And I don't think "possessing stolen goods" applies here. Maybe it does. IANAL, just a punky teenager who hates the RIAA like the rest of them. ;-)

Re:Imagine how bittorrent is affected

[julesh]

Would Fox now have to prove that someone actually came away from the swarm with a full Simpsons episode and that all of the bits came from me?

No; they'd have to prove that they came up with a greater proportion of a Simpsons episode than would be permissible under fair use exceptions, and that enough of the bits came from you that it was unlikely you were able to produce them yourself independently. IANAL, etc.

A victory

[FidelCatsro]

For those who have read a dictionary.
It may be a conspiracy to commit a crime , but it is not actualy commiting the crime , its commen sense .
Its a cival case anyway , so i dont think you can be convicted of conspiring to break civil law.
very silly legal battles ,

Re:A victory

[amliebsch]

Its a cival case anyway , so i dont think you can be convicted of conspiring to break civil law.

Read that FBI warning at the beginning of the next movie you watch. Copyright infringement is a civil offense, but it is also a federal criminal offense.

Re:A victory

[Lehk228]

only criminal if it is for profit infringement, like the $3 DVD's on the streets of NYC.

Re:A victory

[westlake]

only criminal if it is for profit infringement, like the $3 DVD's on the streets of NYC

That loophole was plugged in the The No Electronic Theft ("NET") Act of 1997.

Stupid ruling

[Reality Master 101]

As usual, people who simply want the "right to steal" will look at this as a win, instead of looking at the bigger picture.

If someone, say, gets ahold of medical information (or my credit card number, or my SSN number, or pick your private info) and offers it up on their server, I don't care if anyone has downloaded it or not -- I want the information off there and off now. It should make no difference at all whether anyone actually got it. If someone is making information available, that should be enough to nail their ass.

Of course, I once had a Libertarian try and convince me that it should be legal to fire guns at people, until you actually hit someone, so I'm sure there are people who think that anything should go.

Re:Stupid ruling

[cplusplus]

Is your credit card number copyrighted? How about your SSN number? No? Then you have nothing to worry about. This ruling covers copyrighted material, not confidential information. That's a whole other ballgame. I think your private info is still safe (although with all the security leaks lately regarding personal account info, I'd question how safe it actually is).

Re:Stupid ruling

[firephreek]

I would still think that this would be different. This ruling seems to apply primarily to Copyrighted Material. Having your personal information posted/stolen/available/etc would amount to privacy violation and/or theft. Two different beasts entirely.

Just becuase I have an mp3 in my 'shared' folder doesn't mean I don't own it. Doesn't mean I'm trying to distribute it (technically), just means it s there.

Re:Stupid ruling

[Reality Master 101]

Is your credit card number copyrighted? How about your SSN number? No? Then you have nothing to worry about. This ruling covers copyrighted material, not confidential information.

The point is that it's irrelevent whether we're talking copyrighted material or not -- it's still restricted material banned from distribution. The illegality is the publishing -- not the downloading.

Re:Stupid ruling

[kaiser423]

There are other laws protecting your credit card number, SSN, etc. Sure, distributing them with illegal intent is often a crime, but usually owning your personal, private information without a need for it is usually illegal.

Your analogy sucks anyways. We should have much tougher laws regarding personal information and privacy than we do have on publically available (but copyrighted) works. Some of the new privacy laws are getting there, but I don't think we're at that point yet.

Re:Stupid ruling

[arose]

Let's see if I understand you: someone else than you and your bank knows your credit card number and you worry about whatever or not they will distribute it?!

Re: Stupid ruling

[Anonymous Coward]

How can you people invent such arguments that defy logic and still think you're right ?!

The parent said "The ruling covers copyrighted material.". Which it does.

How can you possibly presume then that's "irrelevent" (sic) whether it's copyrighted material or not ? Mind boggling.

Re:Stupid ruling

[cpt kangarooski]

No, the requirements of an offense have to be satisfied.

Copyright laws deal with copyrighted works. You can't use them for anything else.

If you want a law involving confidential information (which would cover different materials than copyright anyway) then get one of those.

But you're trying to hammer a nail with an orange here.

Re:Stupid ruling

[Anonymous Coward]

Your libertarian friend simply failed to realize that it is action with the *intent* to hit someone with a bullet that is technically illegal, not actually hitting them. Intending to hit them and missing is attempted murder (or at least attempted assault with a deadly weapon), whereas hitting them by accident is not a crime at all (it might involve negligence, which can be a crime of its own, but that is another issue entirely).

Re:Stupid ruling

[fymidos]

>restricted material banned from distribution.

It's not "restricted material" like a credit card number. These are things you can get everywhere: you can buy them on the store, you can listen to them on the radio, and watch them on tv. By no means are they "banned from distribution", the quesstion is whether it's legal or not. A simple case.

In this case the judge simply pointed out the obvious:
when you put a song on a web page for download, you are liable for putting a song on a web page for download. You are *not* liable for distributing it, unless someone actually downloads it.

To use your own example, shooting at people *is* a crime, but you cannot be charged with murder if you don't kill someone.

Re:Stupid ruling

[Xyrus]

You're argument doesn't hold water. You're trying to compare personal, private information to a copyrighted work.

These are two very very different things.

Compare apples to apples.

~X~

Re:Stupid ruling

[Anonymous Coward]

The point is that it's irrelevent whether we're talking copyrighted material or not

Congratulations. You get the "stupidest post of the day award".

The entire story is about the scope of copyrights and you think this was about "restricted material".

Do you hear that sound? Its the gurgled scream of your 3rd grade teacher hanging herself as she wished she had taught you just a tiny smidge of critical thinking.

Re:Stupid ruling

[MenThal]

Of course, I once had a Libertarian try and convince me that it should be legal to fire guns at people, until you actually hit someone,

You didn't call him a monkey by any chance?

Oh wait, a Libertarian, not a Librarian.

Re:Stupid ruling

[swiftstream]

People definitely need to be more aware of what exactly copyright is. For example, as you say, copyright has no bearing on the redistribution of confidential information.

As an example, everything produced by the American government is in the public domain: intelligence reports, plans for war, records of top secret negotiations.

This has no bearing on the distribution of those materials which are sensitive/confidential/secret.

Re:Stupid ruling

[Anonymous Coward]

Whoa. Offtopic.
Firstly privacy laws should regulate sensitive information, and deal with abusers. Sadly, USA'ians don't have the EEC privacy laws, not even in their diluted state. Your 'Contract' with your HMO, or Bank finance sets out your 'rights' or complete lack thereof.

AN OFFER INVITATION TO TREAT MEAN ACCEPTANCE
Its not stupid, it alligns with what most folk know as contract law = Offering, of sending you a contract in the post, does NOT mean you have accepted it. Then other factors are looked at - intention, capacity, statutory rights.

Alas, the next step in sanity is measuring damages, so that time shifting and format shifting, and replacement of damaged goods (say virus attact) is decriminalised, and put back into civil jurisdiction.

Re:Stupid ruling

[Anonymous Coward]

Of course, I once had a Libertarian try and convince me that it should be legal to fire guns at people, until you actually hit someone, so I'm sure there are people who think that anything should go.

And then there are those who think that nothing should ever happen at all without Daddy telling them it's fine.

Among the differences here are:

[mcc]

Drugs can potentially kill you.

Re:Among the differences here are:

[NewWazoo]

HAH. I guess YOU'VE never listened to Judas Priest backwards!

B

Re:Among the differences here are:

[Anonymous Coward]

"Drugs can potentially kill you."

Like the dangerous substance dihydrogen monoxide. Lord only knows why that isn't more strictly controlled, it's potentially fatal!

Among other things that can potentially kill you:

Common household ammonia
Glass
Plastic Bags
Small inhalable bottlecaps
Commonly household electricity
Unprocessed food

Maybe all of those things should be banned. We could all live in filthy foam-padded houses in the cold and eat applesauce until we die, safe in the knowledge that nothing anywhere near us could potentially kill us.

Re:Among the differences here are:

[Anonymous Coward]

- a car can potentially kill you.

They may be "illegal," (for completely dubious reasons having absolutely zero to do with them possibly being harmful, especially in the case of marijuana) -

-but in my opinion unjust laws should be broken at every opportunity. Not to say that drugs are always a good thing, they are like anything else - a tool which can be used for good purposes or abused with bad results evil - I guess what I am trying to say is --> go smoke some dope, listen to some good music you downloaded, and say f#(k the MPAA/RIAA and their big money corporate control mechanisms

Re:Among the differences here are:

[Mr2001]

Drugs can potentially kill you.

That's right. Those hippies want you to think pot is safe, but a few kilos of marijuana could easily fall off a shelf and give you a concussion, especially if they're inside a lead box!

Re:Among the differences here are:

[mcc]

a car can potentially kill you

Perhaps this is why the government requires you to obtain a license to operate a car, and uses a separate licensing system to attempt to track exactly who owns every car in the U.S...

New Legislation?

[DCheesi]

What happened to the proposed legislation making the offering of even a single file a felony, even if it was never downloaded? It seems like that bill was specifically designed to counteract this kind of ruling...

I don't get it

[bender647]

This is very odd.

Using a bad analogy: I would expect to be busted for offering drugs for sale, even if nobody bought them.

Re:I don't get it

[Anonymous Coward]

Uh, yeah, it's called possesion, ahnd hence as you say, a bad analogy.

Re:I don't get it

[Anonymous Coward]

But how is this different from possesing illegaly obtained files?

Re:I don't get it

[VistaBoy]

You may legally be permitted to have the files you're offering to others. For instance, it would be perfectly legal for you to have some MP3s that you ripped from some CDs you own. However, it's against the law to start distributing those files over the Internet.

Re:I don't get it

[G00F]

You don't have to pay for everyoen downloading it, if no one downloaded it from you.

They alkso haveto prove you don't own it.

So all in all, looks like a win, it set down some legle ground work for people to stand on.

Re:I don't get it

[geekee]

"This is very odd.

Using a bad analogy: I would expect to be busted for offering drugs for sale, even if nobody bought them."

When a person is busted for selling drugs, even if he never sold any drugs to anyone before, he is guilty if he offers them to an undercover cop.

With file sharing, it's more passive, since you're not actually offering the files, they are just there for the taking. So you need to prove, in this case, that someone is taking.

Re:I don't get it

[mindstrm]

Distribution, yes, but just because ti was copied doens't make you guilty fo distribution. THere are still fair-use cases... hence the reason they want these guys to show evidence that actual distribution took place, not just an offer of a file. Otherwise a bad precedent is set, and you can never, ever leave any kind of copyrighted material where someone might get ahold of it, or you would be guilty of distribution.

Re:I don't get it

[fymidos]

Indeed, but you wouldn't be accused of *selling* drugs if you never actually sold any.

Re:I don't get it

[Xyrus]

Drugs = criminal offense.
Download copyrighted works = civil offense.

You cannot compare the two.

~X~

Universal

[camcorder]

Do those verdicts have any influence on International laws? or it's just slashdot becoming US centric again.

Re:Universal

[Anonymous Coward]

Dispite what people say, if you look at the very large picture, a lot of governments follow what the US is doing. The US sets world policy all the time, even if it's just subconsciously.

Re:Universal

[lifeblender]

MPAA and RIAA are American organizations, and have been the most aggressive pursuants of music downloaders. This ruling will (hopefully) affect the majority of their legal actions, i.e. those in the US. So, no it's not /. becoming US-centric, it's a US-based pair of organizations affected by the contents of the article.

Re:Universal

[Mike Buddha]

becoming? It's an American site, with 90% American posters. A little chip on your shoulder, perhaps?

Re:Universal

[westlake]

Do those verdicts have any influence on International laws? or it's just slashdot becoming US centric again.

It is not a verdict. It may not even survive appeal. It is simply a ruling in a preliminary proceeding that an offer to distribute is not distribution as defined in the statutes. Whatever victory has been won here is likely to be short-lived. Congress has been quick to close such loopholes before.

Re:Universal

[Pop69]

Odd, I always thought that .org meant worldwide non-profit not American only.

Re:Universal

[Kaorimoch]

This is actually quite important for international laws. Why? The US threatens sanctions / boycotts / action against countries that do not enforce movie and music industry laws US-style. What you see in the US at the moment is typically reflected in your country 4 years later thanks to MPAA/RIAA paid off politicians.

The US needs to ensure that such copyrights and laws are enforceable overseas as the US entertainment industry is one of its largest export industries and any perceived watering down of their rights to profit from these works will be attacked most vehemently. The entertainment industry is probably the industry of the future for the US since it is offshoring almost anything it can.

Examples-
U.S. Commerce Secretary Carlos Gutierrez threatens tariffs or import restrictions on IP laws unless they control piracy. It is really dangerous for the US to threaten China on anything at the moment especially since they need their help to put down North Korea.
Sweden gets threatened and shamed at the way they let piracy bittorrent sites run rampant. Lo and behold, legislation comes into effect on July 1 to curb this threat.
Australia signs an FTA where one of the conditions is that US IP laws are enforceable in Australia despite the fact that it is US law, not Australian law, superceding the right of that country to make laws to govern themselves.
Suits started in America against filesharers are starting to appear overseas.

Re:Universal

[Lehk228]

well actually it doesn't so stop trolling

Re:Universal

[julesh]

Becoming? Slashdot has always been US-centric.

Anyway, the ruling will have little effect elsewhere, particularly as all countries in the EU and many other countries already have laws that would make this ruling impossible that state that merely offering to make a copy is an offence.

Re:Universal

[idlemachine]

This is what passes for insightful these days?

I can be as appalled at the unrepenting jingoism apparent in some of the comments here as the next person but seriously, what do you want them to do? Only post articles that apply to the globe as a whole?

Overzealous nationalism isn't the domain of the US alone. With your apparent lack of understanding of causality, I really don't understand what value you derive from reading this site, apart from a lot of confusion and fear.

Re:Universal

[camcorder]

It's obviously most apperant in US nation, as far as I concerned. US stands more individual, and hardly check what other nations do most of times. I'm not calling this as a bad thing. But expressing everything as a norm of whole World, is what US mind usually do most of time, unfortunately. Hundreds of examples of this exist from varying subjects. For example, US terror is equal to World Terror. US understanding of freedom should be World understanding of freedom, and now US law with out any implication, served as norm law. For sure it's not bugging you, but it does to me, especially after recent US arrogance in Middle East and Far East.

Re:Universal

[idlemachine]

For sure it's not bugging you[...]

My govt whored out our culture and crippled our IT industry in exchange for a "free" trade agreement with the US.

Believe me, it bother's me.

Now what we need:

[oGMo]

Now what we need is that proof be required you willingly and knowingly offered and distributed works. Correct me if I'm wrong, but currently, are you not be liable for accidentally leaving an insecure/shared directory where someone downloaded unauthorized copyrighted material from you?

Re:Now what we need:

[lifeblender]

IANAL. That being said, the mantra I always heard was, "Ignorance of the law does not make you innocent." That might also be just a scare tactic, but it makes some sense to me. To continue the tangent, I think that enforcing laws (with at least a written warning) on first offenses committed accidentally is appropriate. That being said, let's say you accidentally leave a file online, people download it, and you get sued. Sure you should be able to claim ignorance, and the judge lets you off with a warning. But the next time, after that first offense, I would expect a judge to assume that you did it on purpose. You were probably instructed by the court to better secure your website after the first incident.

Re:Now what we need:

[oGMo]

Right, I understand that, but this isn't ignorance of the law per se. It's like having a DVD on, leaving the room, forgetting to lock your door, having some neighbors wander in, then getting sued by the MPAA for public performance.

Re:Now what we need:

[cpt kangarooski]

Now what we need is that proof be required you willingly and knowingly offered and distributed works. Correct me if I'm wrong, but currently, are you not be liable for accidentally leaving an insecure/shared directory where someone downloaded unauthorized copyrighted material from you?

Right now, copyright is a strict liability offense. It doesn't matter whether you infringe unknowingly, or by accident, so long as responsibility appropriately falls on you.

So if a virus makes your machine a zombie in a file sharing network, then you might be ok. But if you leave a share open and it's used to share files, you can be in trouble for that. Some ISPs have successfully argued that where they don't oversee what's on their servers, and the servers run automatically, that they should escape liability, however.

Your mental state can have an affect on the amount of damages, however. For the unwitting infringer, he might be so lucky as to pay no more than $200 - $30,000 per work infringed.

Re:Now what we need:

[Lehk228]

this has nothing whatsoever to do with "ignorance of the law is no excuse", "ignorance..." means that if you don't know an action is illegal you are still liable to be prosecuted, not that you can be prosecuted for something you didn't know you were doing at all.

Re:Now what we need:

[lifeblender]

"ignorance..." means that if you don't know an action is illegal you are still liable to be prosecuted, not that you can be prosecuted for something you didn't know you were doing at all.

I would say that that's exactly what ignorance of the law is about. Citizenship and full rights in a country also entails full responsibility for your actions, even those committed accidentally. Also, there isn't much difference between doing something accidentally and doing something that you didn't know you were doing. The law in the US is very forgiving for such acts, but prosecutes them nonetheless, with written warnings or lighter sentences.

I can see the distinction between accidentally doing something illegal and unknowingly doing something that you (had you known) would have known was illegal. However, both of those sound like ignorance to me, were they to be considered in the eyes of a judge. Both of those also sound like situations where said judge would tend to be lenient.

The concept behind "ignorance of the law is no excuse", as far as my schooling went, was that you have the responsibility to ensure that you didn't disobey the law in the country or region in which you had chosen to live. The fact that lots of people don't make or have much of a choice on that subject, nor are they lawyers, as I am not, is the reason that both situations I described are AFAIK treated leniently the first time.

And people are prosecuted all the time for things they did unknowingly. I saw a man speak to a judge about a speeding ticket he had gotten while his speedometer was broken. He hadn't known. The judge agreed to let him off, given that he brought a written statement from the mechanic who fixed the car that the speedometer was off by the given amount. The man was prosecuted, i.e. brought to court, and let off by the judge. If this doesn't have anything to do with "ignorance of the law", then you should have read more clearly when I said I Am Not A Lawyer.

The point is that accidental OR unknowing breaches of the law are generally forgiven or treated leniently. What I was trying to say to the (now great-grandparent) is that the situation they were describing wouldn't get people in much trouble, as far as I knew.

Re:Now what we need:

[lifeblender]

As far as I know, a judge sees the two situations identically. Both are breaches of the law, and both are committed unintentionally. "ignorance of the law" is also about personally responsibility. When you are unaware that there is a chance to accidentally break the law, and it happens, the judge and/or jury are lenient. When it happens again, you should have known better. Maybe they'll treat you leniently again, maybe not. That's the reasoning that I expect from lawyers.

It seems like people are kind of paranoid about this sort of thing. Go talk to a judge sometime, and ask them how they would handle the case. We have laws, and they're not designed to kill us. They're enforced by a big bunch of people, and most of them that I've met personally didn't want to hurt anybody.

Re:Now what we need:

[Lehk228]

accidental breaches of the law are not criminal, as a crime requires intent, now behaving recklessley is different because the crime is being reckless and causing harm, if you did not intend to do perform an acxtion which is criminal, you are not guilty of a crime.

Re:Now what we need:

[lifeblender]

Is that always true for civil law? There's a law in Texas about leaving spare tires out for three days after it rains. (That's how long it takes mosquitos to spawn in the standing water in the tires.) This is definitely a law concerning something you may not have known that you were doing, so I'm not sure civil crimes require intent.

Also, isn't 'involuntary manslaughter' a crime? Killing someone with your car while driving drunk is often given this charge. Certainly you didn't intend to kill them, or anyone. But you're still responsible for your actions, and so it's a crime.

Re:Now what we need:

[Lehk228]

however you did intent to drive drunk, which resulted in death, and leaving tires out sounds like a property code, with a civil fine rather than going to jail. involuntary manslaughter again requires you to be doing something you shouldn't have which caused someone to die.

Bittorrent Sites

[Jambon]

So would that mean that all the bittorrent sites that have been shut down were shut down illegally? All they do is point to the file. They don't actually distribute it.

Re:Bittorrent Sites

[Mike Buddha]

The Bittorrent sites weren'y shut down by the government. They were shut down by the lawyers threatening to sue the pants off of the owners. What they did was to threaten a lawsuit and the site owners voluntarily closed up shop. Perfectly legal.

Re:Bittorrent Sites

[VoidWraith]

http://elitetorrents.org/

Looks like its either them trying to garner support for bittorrent, or they actually got shut down criminally.

Re:Bittorrent Sites

[Anonymous Coward]

All they do is point to the file. They don't actually distribute it.

That argument won't fly. If they are knowingly facilitating the transaction, they can be found accountable.

If caught, the best they can do is plead ignorance and hope someone buys the story.

Re:Bittorrent Sites

[Lehk228]

that is SO fake.

Wait For the Appeal

[reallocate]

So, let me see. If you offer to share something but no one takes it, it isn't considered distribution.

In other words, if you post copyrighted material on the net but no one downloads anything, you're fine.

A flaky decision. Wait for the appeal.

Re:Wait For the Appeal

[mindstrm]

Define "post on the net"

What if I left it shared accidentally?

What if I left the file up on my webserver in a private location for only me, but someone found it by chance? Should I be guilty of distribution because it was potentially available to a billion people?

What if I leave my mac unlocked while I have guests over, and they could potentially go in and copy one of my CDs... should I be fined for not being responsible enough?

To fairly judge this, we need to know if a) distribution actually took place and b) If the distributor new about it, or was merely negligent. (not that negligence absolves you, but it changes things somewhat)

Without this requirement, a lot of bad things happen.

Re:Wait For the Appeal

[fymidos]

>If you offer to share something but no one takes
>it, it isn't considered distribution.

it's not considered distribution because it is not distribution. It might still be against the law, but it is different. You might call it "attempted distribution" (as in "attempted murder" vs actuall "murder":)

Re:Wait For the Appeal

[reallocate]

Putting a file in a publicly accessible directory on a publicly accessible server seems to be fairly simple to understand.

Re:Wait For the Appeal

[Minna Kirai]

Putting a file in a publicly accessible directory on a publicly accessible server seems to be fairly simple to understand.

No it isn't. Never underestimate the power of stupidity.

Many PC operating systems make it excessively easy to network share a directory, without noticing if it's open to just your LAN, or the whole Internet. If it weren't for consumer ISPs intentionally blocking SMB traffic, you'd usually see a new stranger in My Network Neighborhood each time you logged in.

Re:Wait For the Appeal

[reallocate]

Yeah, I know that. But the weaknesses of Windows aren't much of a defense when you're hosting thousands of files on a Linux web server.

"I'm innocent because Windows has problems that other people don't understand"?? Right.

No one's anymore concerned about copyright violations caused by this kind of Windows visibility than they are about copyright violations caused by allowing your neighbors to see the books you own when they come over for dinner.

Re:Wait For the Appeal

[Minna Kirai]

No one's anymore concerned

No. That is exactly what mindstrm was talking about when he asked the question. Obviously, he is concerned, or he wouldn't have asked!

Re:Wait For the Appeal

[reallocate]

So, are you seriously claiming that because some pseudonymous person posts something hysterical on a rag liike /., prosecutors and litigation attornies are going to go after everyone with an exposed Windows directory?

Again, there is no comparison between exposed Windows directories and the deliberate hosting of copyrighted files on publicly accessible servers for the express purpose of encouraging and enabling them to be copied by anyone with net access. The former is unwitting use of a flaw in Windows. The latter is deliberate commission of an act of, at the least, questionable legality.

Re:Wait For the Appeal

[mindstrm]

Of course not.

The whole point of the parent article we are here talking about is that the mere act that a file was SHARED is not enough to prove distribution.. you need actual evidence of distribution.

I believe the post I started out responding to said that the mere act of sharing should be enough to prove distribution.. I'm merely stating why it's not.

How should the law differentiate between file sharing networks and, say, a personal file share? how would you define this?

Re:Wait For the Appeal

[mindstrm]

So, how do we determine when something has been posted on the net in an illegal manner? How do you draw the line?

I'm sure we could both agree that:

- Setting up your new starwars XVID on a huge popular bittorrent warez tracker is definately intent to distribute
- Accidentally leaving some of your personal software and mp3s on an unprotected personal webserve because you were transferring them to your laptop while on vacation is probably NOT intent to distribute...
a precedent that says "if you posted it on the net, it's distribution" makes both these people equally guilty.

I'm in no way trying to protect copyrighted file sharers here... I'm only saying that requiring actual proof that distribution took place is sensible, and serves to protect those who DIDN'T distribute from unfair persecution for simply using technologies, or perhaps misunderstanding them.

Re:Wait For the Appeal

[Minna Kirai]

So, are you seriously claiming that because some pseudonymous person posts something hysterical on a rag liike /

Are you seriously posting inflammatory responses after only reading a randomly-selected 30% of the words in a post? Because that's about the degree of coherency you're exhibiting here.

Re:Wait For the Appeal

[westlake]

flaky decision. Wait for the appeal

On a motion for summary judgement, the law is traditionally supposed to be read in the light most favorable to the party oppossed to the motion.
The argument doesn't have to be rock-solid, just plausible enough to keep your case alive.

Publishing Offers

[Doc Ruby]

Since Napster only listed a catalog of filenames and URLs at which they might be offered, but didn't distribute, isn't it even less liable for illegal distribution in view of this decision?

Re:Publishing Offers

[brianconnolly]

the phrase is "in lieu of" not "in view of"

Re:Publishing Offers

[Anonymous Coward]

Your reading comprehension seems to be impaired. The GP's usage was correct, and your correction of it incorrect.

What the GP is asking is whether or not, in view of this decision, the Napster ruling was wrong, as no proof that Napster ever distributed files was offered.

However, the answer to that is no, as they were found quility of contributory infringement, which is the civil equivalent of aiding and abetting, I suppose.

Honeypot

[rehabdoll]

I've been thinking about this for a while now, and prehaps someone has already done it. I wonder what would happen if one was to set up, say a httpd offering files with names such as "mof-sith1.avi", "mof-sith2.avi" (star wars ep3) etc. Also, filesizes should be appropriate.

Now, these files would be generated with dd and contain random crap - nothing that would violate anyones copyright.

Im just curious what would happen:
1) Nothing, apart from angry emails from ppl who wasted a couple of hours downloading crap.

2) Would my ISP kill my connection, eventhough ive done nothing wrong?

3) Would MPAA send me angry emails threatening to rape me, myself and cowboyneal in court?

4) Something else.

Id do this myself, but i really like my cheap 10mbit connection :/

Re:Honeypot

[rpozz]

I would imagine that the MPAA (or whoever) would send you and/or your ISP a (probably automated) cease and desist letter asking you to remove the files. On failure to remove them, they'd download them themselves and verify them before persuing a court case.

IANAL though.

Re:Honeypot

[irc.goatse.cx troll]

Its been done, you don't even have to generate the files as long as you use a cgi/php script for it. Not sure what happened to it if anything.

Re:Honeypot

[Anonymous Coward]

2) Would my ISP kill my connection, eventhough ive done nothing wrong?

Check your ISP's TOS before you assume that running a "server" of any type is doing "nothing wrong".

Re:Honeypot

[Anonymous Coward]

3) Would MPAA send me angry emails threatening to rape me, myself and cowboyneal in court?

What's more, the MPAA would take you to court, present the real copyrighted material as evidence (not the bogus content you had posted), and you would be screwed.

You didn't think they would suddenly have scruples, did you?

Weird ruling

[Espectr0]

If i approach you on the street, and i offer you drugs, and you say no, am i not distributing it?

Re:Weird ruling

[cpt kangarooski]

No, just sounds like an offer to me. Of course, I generally avoid criminal law.

At any rate, it doesn't matter. Words can and often do have specialized meanings in different areas of the law.

Re:Weird ruling

[mindstrm]

I suspect you are not.
You are attempting to sell drugs, which is illegal.
If you happen to be offering it to a cop, who busts you and searches you and find drugs, then it's possession with intent to sell.

TO actually get you for distributing it, they need actual proof that you sold drugs. Video evidence, undercover buy by law officers, eyewitness testimony, etc.

At any rate, that's a whole different ball game in this legal climate, drugs are a criminal issue, this is civil.

Re:Weird ruling

[fymidos]

>If i approach you on the street, and i offer you
>drugs, and you say no, am i not distributing it?

Of course not. If i say yes, you might answer "hey, i was just joking, i don't sell drugs".
That's why the transaction must be completed before the cops break in :)

Re:Weird ruling

[Xyrus]

Drugs are a federal offense and prosecutable by the law.

Distribution of copyrighted materials for free is a civil matter.

These are completely different. Unless of course, you think people should go to jail for copying files.

~X~

Re:Weird ruling

[AmberBlackCat]

But drugs are illegal and music is generally legal. If I offered you a library book or rental car and you refused to take it, could I be arrested for distributing merchandise I don't own?

Re:Weird ruling

[Anonymous Coward]

Hmm.

Try this analogy.

If I keep drugs in my house with the door unlocked, am I distributing it?

Re:Weird ruling

[Anonymous Coward]

>Unless of course, you think people should go to jail for copying files.

Nah, a good old-fashioned public whipping is sufficient, I think. Let's see all the "Information wants to be free because I can't afford it/am cheap and it's all overpriced crap that I wouldn't have paid for anyway and it's isn't stealing it is copyright infringement" crowd spout their rhetoric after a few of those, televised via Pay Per View... and whip the parents of the offenders, too, when the offenders are underage.

I'm joking of course. Well, mostly. One thing that is apparent to me is that the parents of the pro-piracy posters either don't know what their children are doing online, don't care, or both.

ISP's Might Not Be Needed for Evidence

[reallocate]

If the law determines that only the fact of downloading has to be shown, not that a file went to a specific individual, then ISP's don't need to be involved. It's easier to show that files are being downloaded from a given server than it is to show that someone in particular is downloading them.

Re:ISP's Might Not Be Needed for Evidence

[jc42]

Indeed. So the rule about server logs for anyone running a web server should be:

Purge early; purge often.

Web-server logs do have a way of filling your disk. I've written a lot of little perl programs to scand the logs, extract some statistics, write them to a summary file, and then delete the log. Anyone running a serious web server needs to do something about those logs.

I can see a law being passed to require that I keep my servers' logs. If that happens, I'll do my best to force the gummint to refund this unnecessary expense, probably by including the price of the disks as a deduction. After all, they really can't force me to do their work for them; that's involuntary servitude. And I certainly have no business reason to keep anything other than statistics; nobody will ever pay me for the content of those logs.

Then there's the industry statistic that backups are unreadable roughly 50% of the time. It'd be too bad if the backups I made of those server logs just happened to be unreadable. But considering the sorry state of commercial backup equipment, well documented in the literature, is it my fault if I can't recover that data? If so, how much am I required to spend for reliable backup, and who pays for it?

Actually, to cross-reference another recent story, maybe what a small web-site operator should do is put the server logs online. Then google would save them forever ...

Re:ISP's Might Not Be Needed for Evidence

[reallocate]

The flip side of purging logs is that you are unable to provide evidence that such-and-such activity did not occur on your servers.

In the end, the issue will be resolved via some sort of technology that prevents reading files not obtained from an authorized server.

Re:ISP's Might Not Be Needed for Evidence

[Minna Kirai]

The flip side of purging logs is that you are unable to provide evidence that such-and-such activity did not occur on your servers.

Logs could never do that anyway:
"Your honor, this ascii text file which I copied from my hard disk 5 weeks ago contains no mention of the alledged uploads of Nov-04, thereby proving they could not take place. After all, to retroactively modify such a log would require computer science skills far beyond the likes of me, a lowly webmaster"

Re:ISP's Might Not Be Needed for Evidence

[deimtee]

The flip side of purging logs is that you are unable to provide evidence that such-and-such activity did not occur on your servers.
Ah Yes, the old argument of guilty until proven innocent. Justice reigns.

Re:ISP's Might Not Be Needed for Evidence

[reallocate]

In all likelihood, you or your organization would be served with a subpoena blocking deletion or editing of evidence such as logs. The logs would be examined by someone working for the prosecutors.

Re:ISP's Might Not Be Needed for Evidence

[reallocate]

It's got nothing to do with that. If you're sued -- it doesn't need to be about copyright -- and you need your logs to fight the suit, you're out of luck if they're gone.

That makes as much sense as a doctor routinely destroying his records because he's afraid a patient will sue for malpractice.

Re:ISP's Might Not Be Needed for Evidence

[Minna Kirai]

In all likelihood, you or your organization would be served with a subpoena blocking deletion or editing of evidence such as logs.

Right. Subpoenas magically arrive milliseconds after the offense is committed. You have literally NO TIME to edit them beforehand.

And of course, once the subpoena is there, it is impossible to disobey it.

Re:ISP's Might Not Be Needed for Evidence

[reallocate]

Wrong. If someone has reason to believe your servers are being used to illegally traffic files, the subpoena will arrive weeks or months beefore it goes to court.

Disobey the subpoena and go to jail.

Why bother with all that just to help thieves?

Re:ISP's Might Not Be Needed for Evidence

[iminplaya]

Why bother with all that just to help thieves?

Not everybody considers them to be theives. The same can be said about IP squatters. There are many reasons to protect "unauthorized" distributors. It's just another "prohibition", like drugs and alcohol. We can call this one "info prohibition". And to get those sitting on the fence with this issue, we now relate it to national security. I guess it would relate since it puts the whole Hollywood/CNN/FOX propaganda machine at risk of losing control of what we see. Hell, bootleg satellite recievers did more to bring down the Soviet Union than SDI. Can't have the same thing happening here.

Re:ISP's Might Not Be Needed for Evidence

[reallocate]

>> Not everybody considers them to be theives.

So what? The law says copyright violation is illegal. Arguing in court that "not everybody" agrees is no defense. (Although it is common for posters here present some weird exception as if that nullifies the more general case.

>> The same can be said about IP squatters.

There's no similarity between sitting on a domain name and copyright violation. If you bought the domain name, you own it.

>> There are many reasons to protect "unauthorized" distributors. It's just another "prohibition", like drugs and alcohol.

I can think of no reason to protect copyright violators. You're assertion that banning illegal activity is just another "prohibition" doesn't make sense.

Here's the point: If I make something, you have not right to it unless I say so. You have no right to copy it, to borrow it, or to distribute it unless I say you do. If I sell the right to make and distribute copies to a single person, then that single person has those rights, not you or anyone else. This is fundamental common sense and logic. The law protects my exclusive ownership of what I make, but it does not establish it.

Re:ISP's Might Not Be Needed for Evidence

[iminplaya]

You're equating illegal with wrong. That's a mistake. "Not everybody agrees" is a more than adequate defense, especially when it reaches the magical 51%.

There's no similarity between sitting on a domain name and copyright violation.

IP in this case=intellectual property. I wasn't talking about domain name squatters. The IP squatters I speak of are hoarders and speculators. I consider them to be theives. Some kinds of speculation are illegal. This should be the case here. It is most definitely wrong and bad. Two very good criteria for making it illegal. But it's not a hot button issue, so nothing will be done about it.

You're assertion that banning illegal activity is just another "prohibition" doesn't make sense.

When it involves consensual activity it most certainly does. Note: Murder is not consensual. Dealing in contraband is. IP law is turning information into contraband that only certain people should be allowed to possess and share with others. It is costing respect for all law. It can only bring chaos and mayhem in the end.

The law protects my exclusive ownership of what I make, but it does not establish it.

And I will maintain until the end of time that you have it backwards. Exclusive ownership can only apply to your instance of what you make. You will get nowhere with this arguement...Not now, not ever.

Re:ISP's Might Not Be Needed for Evidence

[reallocate]

More apples and oranges.

I said the "I don't agree" argument is no defense in court. Regardless of what you might argue, that remains a fact.

What is God's name are "hoarders and speculators" of IP? No one is under any obligation to share any IP with anyone else. So, how can you be hoarding something or speculating with it when you have no obligation to do otherwise?

Dealing in conttaband takes at least two people, but it is still illegal. If something is illegal, it is irrelevant if the people engage in it consensually.

>> IP law is turning information into contraband that only certain people should be allowed to possess and share with others.

You have no right to any information I create unless I say so. Information does not want to be free. It is a commodity like any other.

When I make something, I own it and every benefit that may be derived from it. It is clearly impossible for you, or anyone else, to own something before I make it, i.e., before it exists. Because it is impossible for you to own something before I make it -- including the benefits to be derived from it -- the only way for you to acquire the original or any of its benefits -- including the right to make copies -- is from me. Beyond specious argument about gthe greater societal good, I've no seen a rational argument that explains how that ownership gets transferred without the owner's consent.

Re:ISP's Might Not Be Needed for Evidence

[iminplaya]

What is God's name are "hoarders and speculators" of IP?

The people like Microsoft and IBM buying up as many patents as possible to fatten up their portfolio. It's a very good demonstration of hoarding and speculatiing. A very common practice in real estate and mining(or drilling).

When I make something, I own it and every benefit that may be derived from it...

You're just repeating yourself and not convincing me of anything on that subject.

Re:ISP's Might Not Be Needed for Evidence

[Minna Kirai]

the subpoena will arrive weeks or months beefore it goes to court.

Of course it will... which means I'm right.

Disobey the subpoena and go to jail.

Get caught disobeying and go to jail. Which means I'm still right.

Why bother with all that just to help thieves?

No thieves are involved in any of the potential offenses being discussed here. However, hypothetically if there were thieves someone, then it would be natural for them to edit the logs themselves, as a defensive measure. You've heard of "self-interest", right?

For a court to rely on the abscense of an entry in somebody's own log to exonerate him, they may as well just accept his verbal protestations of innocence at face value.

Re:ISP's Might Not Be Needed for Evidence

[Minna Kirai]

The law says copyright violation is illegal. Arguing in court that "not everybody" agrees is no defense.

It seems you are suffering from the weirdly common mental block where you think that every possible crime or illegal action is "theft".

In reality, there are other ways to break the law, and we can call those peoples murders, arsonists, pirates, rapists, violators, or even just "perpetrators".

Criminal copyright infringement meets neither the legal nor English-language definition of "theft".

Re:ISP's Might Not Be Needed for Evidence

[reallocate]

You show a lack of comprehension that qualifies you to bee a /. editor.

Look, hosting copyrighted files on the web for the purpose of allwoing them to be downloaded is a form of theft called copyright violation.

No one is talking about the absence of log entries to exonerate someone. it is not unreasonable to consider situations in which a corporation would be able to avoid prosecution or litigation by reference to what is, in fact, in their server logs. Arguing that such corporations should simply purge logs to aid and abet criminal activity is an act of blatant lunacy and moral bankruptcy.

Good news, but for how long?

[bloodstar]

this is nice for someone who does not fileshare and gives protection to someone who had momentarily left their system shared (or might be visible but behind a firewall...) and had the RIAA grab a list of files they had and ran a risk of having the hammer brought down upon them

I'm not condoning the downloading of music, but it means that someone who downloads a song to sample it and check out an artist before plunking down 10 - 20 bucks on a CD won't be reamed by the RIAA.

Of course, how long will it take for Congress to pass a bill that redefines the civil law to include having access to an index to mean you're offering and offering == Sharing.

actual litigation

[Anonymous Coward]

Anybody besides me have actual real world experience with the RIAA?

Typically they dont litigate these cases against end users, they talk tough then drop the case at the first sign of real resistance.Their evidence is typically weak at best and trial attys are $300/hr.

No ISP I know keeps logs like that

[Sycraft-fu]

Do you have any idea the sheer amount of data that you'd have to store to log every transaction a computer makes? I mean for something like this we are talking every sit they visit, every file they download with any protocol, etc, etc. It would be huge for just one computer, and get the fuck out of here for 10,000. Also, it would only work for known protocols. Your logger would need to know about a protocol and know how to see what was going on to log it, meaning constant updates.

Also, it is of no practical value. There's no reason to want all that info. Sure you may log traffic for a given computer, or port or whatever if there's a problem you need to check out, but logging all traffic gets you nothing you are interested in.

As for the legal side, as far as I can tell ISPs don't have to keep any logs legally. All they have to do is provide any logs they do have upon subpoena, and consistently administer their policy. So they can't destroy or refuse to hand over data they have, and they can't have a policy of logging things, but then not be doing it for this one account the cops are interested in.

We get subpoenas periodicly for things (not RIAA related) and often the answer is we don't have the information they want because it's too old, or not recorded. The FBI is fine with this, they just want us to hand over whatever we have, and if we have nothing, then so be it.

Depends.

[jd]

"Offering" is a very broad term, which can cover a multitude of sins. A hyperlink on a web page is "offering" the contents of the page it links to, but whether you have access to that page is not a function of that offer and not under the control of the offering page.

Likewise, it is arguable that a "securable" service that publicly offered a file, but where that file is not itself public but requires some sort of key or validation (which is how a lot of software is distributed by companies online, these days) is not actually offering the file in a usable state to everyone.

I don't know how well you could really apply that to most P2P networks, but it could certainly be argued that unless the plaintiff could prove that the file itself was public, it is not sufficient to argue that the label to it is. There would be sufficient grounds for reasonable doubt.

(Some other posters have noted cases where an offer IS sufficient, but those are typically cases where it is impossible for the offer to be legal, thus impossible for a mechanism to exist to only permit legal transactions.)

It does depend a little, though, on WHY the ruling was made. If it was for the reasons I've outlined, then it was a good ruling, based on common sense and more than a little technical savvy. Understanding the difference between a public index and a public document requires more than a little intelligence, even though it should be obvious.

Now, if we could only find a way to clone all of the smart judges...

Makes sense.

[Luke727]

Just because somebody is offering something does not mean that a transaction ever took place. However, don't drug dealers get nailed with "intent to distribute"? Isn't that what this really is? Why are you going to offer something if your intent is not to distribute? Granted drugs != copyright infringement, but I hope this leads to two offense. A relatively high "copyrighting infringement" penalty (where they can prove a transaction occurred), and a lesser "intent to infringe copyright" penalty (where they can't prove it). Then it will be up to the RIAA/MPAA/whoever to prove a transaction occurred. That makes sense to me, at least.

Re:Makes sense.

[DroopyStonx]

A dealer with a shitload of baggies marked off for sale knows what he's doing.

Just because someone has a ton of files doesn't mean they know what they are doing, nor does it mean they are intending to distribute.

A lot of programs force you to share by default, and as we can tell from the millions of people who repeateadly get slammed with trivial viruses, people still aren't tech savvy.

I think the ruling is good where it states that a copyright holder actually has to PROVE a download took place, as simply having the file available doesn't mean shit.

With prostitution stings

[NextGaurd]

At least on TV, they say the money actually has to change hands before the prostitution bust is valid... but then they don't require that sex actually take place.

Re:With prostitution stings

[twistedcubic]

Actually I saw a tv show where cops were doing a prostitution sting. One guy was driving by and told a cop, posing as a prostitute, that he'd be back next week. He got arrested. The cops were arresting people just for even hinting that they were interested. I forget the State where this happened.

Re:With prostitution stings

[morelia_nut]

That's called solicitation of prostitution, although from only your description it sounds pretty thin. On the other side, cops trying to bust prostitutes have to get the prostitute to ask for money for services redered in order to bust them, just asking for a "date" isn't enough. They have to name an act and a price.

File sharing is not distribution.

[tamrood]

If I point to a streetcorner and tell you that there are drug dealers there, I have not committed a crime.

Re:File sharing is not distribution.

[Mike Buddha]

Assuming of course, that pointing out drug dealers in not illegal. Promoting drug sales is illegal in most states, so your act of pointing out the dealers to a prospective customer would be illegal. You wouldn't be charged with dealing drugs, though.

Re:File sharing is not distribution.

[Anonymous Coward]

If I point to a streetcorner and tell you that there are drug dealers there, I have not committed a crime.

Maybe. Maybe not. It depends on the circumstances and your intent.

If someone can show that your intent is to "hook people up", then you can get into some trouble.

Re:File sharing is not distribution.

[geekee]

" If I point to a streetcorner and tell you that there are drug dealers there, I have not committed a crime."

I think you are actually guilty of a crime for helping people find drug dealers.

Re:File sharing is not distribution.

[Anonymous Coward]

Actually, in Texas, it is. An employee of an acquaintance of mine got arrested for exactly that reason a few years ago. Cop asked where he could get some drugs and supposedly he pointed someone out and they arrested him.

Re:File sharing is not distribution.

[Brandybuck]

Except to make the analogy fit file sharing better, it would be more like pointing to your own pocket and saying there's drugs there.

private property unlocked in public

[kpp_kpp]

Yeah, I put that MP3 out on my personal website for MY OWN usage not yours. It's your problem if you download it. Thief.

Kinda like if I leave my car unlocked on a public street it doesn't mean I'm giving permission for someone to come along and steal it.

Hmm...

Re:private property unlocked in public

[Anonymous Coward]

Kinda like if I leave my car unlocked on a public street it doesn't mean I'm giving permission for someone to come along and steal it.

But if you leave a rental car, out in the street unlocked with the keys in the ignition, and somebody steals it; the rental car company will come after you.
It does put the burden of proof on the copyright holder to show you did not take reasonable measures to prevent the file from being accessed.

Re:private property unlocked in public

[Travelsonic]

Kinda like if I leave my car unlocked on a public street it doesn't mean I'm giving permission for someone to come along and steal it.

Bad analogy, Einstine.

IF you steal a car, they no longer have it, if you steal money from a bank account they lost it, but if you copy a file, they still have it. You can violate IP rights, mutilate, copy IP, but you can not steal it. It may sound illogical, but as far as I know, it makes perfect sense, and apparently the law thinks so too.

Re:private property unlocked in public

[kpp_kpp]

sorry i forgot the "sarcasm" tag.

Re:private property unlocked in public

[Travelsonic]

oops... boy do I feel like an ass now. Maybe god's payback for making a girl in my school look line an ass during my stand-up comedy routine at a talent show I had last night.

Re:private property unlocked in public

[kpp_kpp]

even more concerning is that someone moderated me "insightful"

Re:private property unlocked in public

[Travelsonic]

People will find anything here insightful, informative, or funny for some reason.

Re:private property unlocked in public

[Anonymous Coward]

Good thing you weren't showcasing your l33t spelling and grammar skillz.

Re:private property unlocked in public

[Anonymous Coward]

We are especially amused when high-UID wannabes post inane conversations as though Slashdot was one of their favorite AOL chat rooms.

Re:private property unlocked in public

[Travelsonic]

And I am even more amused by somebody being such a hypocrite to complain about something and do it at the same time!

Re:private property unlocked in public

[Travelsonic]

At least my grammer isn't annoying as somebody who spells any word that ends with an 's' with a 'z'

Not necessarily entrapment...

[ari_j]

I'm not sure exactly how fair use is faring these days, but since the *AA already has a license to the content, it might not even be distribution per se for them to download it from you.

Now, an unrelated person could still help you infringe, and entrapment might lie. Entrapment is, as others have pointed out, generally confined to law enforcement officers, but this still feels similar to you grabbing my hand and hitting someone with it and telling the cops I assaulted the other guy, or you telling the other guy to pick a fight with me.

It's an ongoing saga.

Re:Not necessarily entrapment...

[mindstrm]

Regardless of this, you don't have a license to distribute it, and should not be offering it.

Entrapment only goes so far.. entrapment is when you are encouraged by law officers to commit a crime you would otherwise not have done.
Undercover cops buying drugs from a drug dealer (who also sells to many others) is not entrapment.
Likewise, downloading a file that is also being simultaneously offered to others is unlikely to be entrapment.

Entrapment would be if the RIAA guy, undercover, convinced you to set up a tracker and start seeding your mp3 collection.

The courts aren't saying sharing is okay, or allowed, they are just saying you can't prove distribution by simply showing the files were offered.. you have evidence to show that the content was actually distributed. In no way is this saying sharing is okay, or legal.. just setting the amount of evidence required to successfully prosecute.

Re:Not necessarily entrapment...

[amliebsch]

Entrapment would be if the RIAA guy, undercover, convinced you to set up a tracker and start seeding your mp3 collection.

Even that would be entrapment. Only a government official or agent can entrap someone.

Re:Not necessarily entrapment...

[mindstrm]

With criminal cases yes, however, in a civil case, can I convince someone to do something and then sue them for doing it? That would seem a bit odd...

Re:Not necessarily entrapment...

[cpt kangarooski]

Well, you could raise an equitable argument against this. But in the context of file sharing, it's not going to work. You don't get to rely on equity unless you have clean hands.

Side note...

[ari_j]

On a side note, the unrelated person that the *AA asks to go download your file is probably also guilty of a crime, but the *AA would be guilty of solicitation to commit the crime, even if the other person never downloaded the file. Of course the *AA is the victim and may have consented to it, but the rules on all this when it comes to copyright infringement on the Internet are ill-defined, at best, as this whole story goes to show.

This was a proper ruling unless you're French

[WillAffleckUW]

The thing is, unlike certain people like Monsieur Bush who believe we're guilty until proven innocent, that in America (and much of the world) you're INNOCENT until PROVEN guilty.

So this was an obvious conclusion.

If you think I've stolen your sharpe dog, you can't just lock me up and keep me in prison for stealing your dog because I have a sharpe dog that looks like yours. You have to prove that the dog I have is in fact YOUR dog. Plus, you also have to prove I STOLE the dog. I might have innocently picked up a poor stray halfway across town that was starving to death, which was your dog that a wandering minstrel let out of your yard when you said mean things to him.

Proof. Not accusations.

If you don't like our system of Innocent until PROVEN guilty, move to Iraq.

Re:This was a proper ruling unless you're French

[moogleii]

The thing is, unlike certain people like Monsieur Bush who believe we're guilty until proven innocent, that in America (and much of the world) you're INNOCENT until PROVEN guilty. Is that accurate? I always thought the opposite was more common throughout the world, and we were the backwards/correct ones. Or maybe that was just England. Is my information even up to date?

Re:This was a proper ruling unless you're French

[mankey wanker]

I think we're on the same side of the issue, but get your shit together, man. This is a civil case. It has nothing to do with the standard you discuss above.

The common standard in a civil case is a "preponderance of the evidence." But yes, they still have to have actual evidence. They can't just walk in and claim damages on mere suspicion.

I'll allow that it gets confusing because some of what is under discussion - the ART Act - has criminal ramifications.

The Napster case seems to be just plain old CAPITOL RECORDS, INC. et al. v. BERTELSMANN AG et. al.

Civil case.

Re:This was a proper ruling unless you're French

[pipingguy]

A sharpe dog is like a pointy kitty. Shar-pei.

Re:This was a proper ruling unless you're French

[Brandybuck]

You were correct the first time. The concept of innocent until proven guilty is uncommon. Much of the world does not have it. The grandparent just made up shit because he wanted to rag on Bush.

Peerguardian anyone?

[Anonymous Coward]

even if they consider a small segment proof that you're violating the copyright, programs like peerguardian and what have you should be enough to keep those C&D letters from coming...

Peer Guardian

[assassinator42]

This ruling actually means Peer Guardian might actually be useful. Well, more than it was. Although their probably using ips not blocked by it.

Not a stupid ruling

[JenovaSynthesis]

So if you install a P2P app and without your knowledge/consent it goes ahead and searches your hard drive and spots your MP3 collection that you created from ripping your CDs. You only intended to share "c:\downloads" but now "c:\MP3s\" is shared too.

So if this was a stupid ruling, then you are saying you should be prosecuted/sued because your MP3 collection was shared by the program.

minority opinion

[moviepig.com]

It seems that the person who offers the copyrighted file is guilty of something (...unless you think copyrights themselves are a clear and present evil). E.g., I bet it's not okay to leave porn mags lying in a playground...

Re:minority opinion

[amliebsch]

It seems that the person who offers the copyrighted file is guilty of something

The something you are looking for is probably "contributory infringement."

Re:minority opinion

[Anonymous Coward]

Porn mags on playground = $500 fine for littering

Doh...

[mangu]

What is keeping *them* from just downloading a copy?

The fact that they can't sue you for giving back their rightful property to them.

intent....

[808paulson]

Aren't there laws that criminalizes intent to commit a crime?

Shouldn't they change their lawsuits from distributing to intent to distribute.

Offering drugs?!

[jonnycowboy]

I can't really see how people are saying that these people that are offering mp3s for downloads can be legal! If a drug dealer was offering lets say cocaine to everybody walking down a street, that's like saying it wouldn't be illegal unless somebody actually bought some!

Re:Offering drugs?!

[s1amson]

well, until drugs are exchanged for money, its possession, not distribution. illegal drugs are just that, illegal. hence the reason for the possession charge. mp3s are not illegal, therefor one can posses them. until they have changed hands, there is no distribution. use common sense, this isn't even the same ball park as selling drugs. and to quote Pulp Fiction, it ain't even the same damn sport.

Re:Offering drugs?!

[Anonymous Coward]

Uncertainty principle.

He's offering cocaine, but does he actually have cocaine? Maybe he has flour. How do you find out? Inquire.

He's offering Brittney Spears's new album. Does he actually have it? Perhaps that .mp3 file is just the goatse image over and over again.

Re:Offering drugs?!

[SirPavlova]

It's a flawed analogy.

Drugs are bad, m'kay? They're illegal, it's part of criminal law. You are not allowed to even possess drugs, though the system does make allowances.

However, copyrighted works (in other words, MP3s) are quite legal; they are not a prohibited item. You are allowed to have them, though how you obtain them can change that. The point is that in & of themselves, they are not banned.

Furthurmore, copyright law protects a monopoly on the right to distribute & publish the work in question. If I offer a copyrighted MP3, I am not distributing or publishing or whatever. I'm saying "I've got this, you could copy it." Once copied, I have republished without permission, & so have infringed copyright.

Pretty simple really. Offering a file for download but not delivering doesn't infringe copyright, so it isn't illegal.

Cavéat: This isn't to say that you possess the file legally anyhow... but it has no bearing on the point you raise.

Drugs?

[SmileeTiger]

It would be interesting if the courts applied this to distributing drugs.

In that case just offering to sell drugs to someone wouldn't result in a drug distribution charge.

Re:Drugs?

[Anonymous Coward]

no kidding. the analogy I think their looking for is:

I own a gun, legally, but then leave it in my car, but leave my car unlocked. Someone then passes my car sees that it's unlocked, takes the gun. On the next block get stopped by the police and is busted for a weapons violation. Or to go out on a limb, on the next block kills someone. Am I responsible for either of those crimes?

For the drug analogy to work someone would have to pass by you on the street, stick their hands in your pockets then take your drugs.

I think it's forgotten that the people who're being sued aren't finding other users on the net and saying "hey buddy, download these U2 songs from me". Other users are actively searching them out.

Re:Drugs?

[Narchie Troll]

It's called "possession with intent to distribute." And it's criminal law. The ruling applies to civil law.

Re:Drugs?

[Xyrus]

Drugs are a CRIMINAL offense. It is a federal CRIME to posses, use, or distribute drugs.

Copying copyrighted material for free is a CIVIL offense. No jail time. This is why copyright owners SUE.

These are completely different.

~X~

Re:Drugs?

[Loonacy]

This would be more like walking down the street with a bag of white powder and trying to sell it, then when you get busted they find out it's just powdered sugar. They have to prove you actually had the drugs to prosecute you.

Distribution...

[Efialtis]

So, according to this interpretation, I can have drugs, offer them, but as long as no one buys them, then I can only be charged with possession? What about INTENT? Possession with INTENT to sell? This could be a bad thing for the law...

good ruling? it depends on the medium

[pyramis]

While this ruling may at first glance seem like a good thing by putting a greater burden of proof on copyright holders, I think it suffers the same problem that has plagued copyright enforcement in the modern age: it is tied to a particular technological implementation rather than based on general principles, and will cause trouble down the line as technology evolves.

Specifically, it assumes that there is a clear distinction between an "offer of distribution" and actual distribution. What about a copyrighted image or text posted to a website? If I view the page in my web-browser, I've already downloaded it to my hard drive. Is it being offered or distributed? Do I have to manually click "save as" before it becomes distribution?

You can't base law on which file types happen to be natively supported in a web browser.

Just because at present it takes more manual effort to "download" an mp3 doesn't mean there will always be such a clear separation of "offer" and "distribution".

Re:good ruling? it depends on the medium

[downsize]

i don't think this is a bad thing, having some separation will help the governments understand the technology and what/where the problem is - but moreso how they need to stop listening to the big corporates cry about lost/stolen rights.

The cache has always been an issue, but for some reason, many overlook it. Would Microsoft really bitch about 200million users having their copyright images on their hard drives from visiting msn.com only to loose 90% of them if a law was put in place taking backward steps in http/browser development?

I would like to believe that this is more of a process of elimination - rule out one part of this sharing/copyright/distribution issue, then another and another until finally corporations see that their bottom line is, in fact, helped greatly from sharing/distribution.

neway, my 2 .us nickels (= 2 .uk cents)

Only for movies not released

[Anonymous Coward]

I'm pretty sure that the felony charge would only be for movies not yet released..

Who's Offering?

[oahazmatt]

Correct me if I'm wrong. You don't simply "offer" a shared file on a P2P network, do you? As far as I can tell, yes, you tag a number of files for availability, but you don't flaunt them until someone has actually queried for that file, or something similar.

Case in point, Windows Update. That is an instance where something is blindly offered to you, but on a P2P network, you are not bombarded with the latest episode of the Simpsons until you actively request it.

And then, there has to be proven intent. If I had never adjusted the default settings on say, Acquistion, and composed music through GarageBand that I wanted to share through a P2P network, and by chance someone downloaded my entire U2 collection simply because those files were lall ocated in the same directory, does that result in charges against me including but not limited to negligence, conspiring, or even on the downloader's part, solicitation?

Re:Who's Offering?

[downsize]

are you forgetting that now, no proven intent is required. and even if you get declared clinically insane and get a crazy house sentance instead of the big house, negligence has never granted amnesty.

Re:Who's Offering?

[oahazmatt]

are you forgetting that now, no proven intent is required.

Wonderful. How long until no proven violation is required?

Re:Who's Offering?

[downsize]

I stopped watching it for now as work got in the way. However, when I heard of this news and had discussions with people about it - most (as they are of older generation and clueless as to these tech laws effects) applauded the law.

that's when I told them how they would change their mind in a court, attempting to defend that they had no idea their machine (even though M$ sets it up by default) was setup for sharing and that the accidentally downloaded the thing from the net, they did not even know it was happening - "there was this popup, and I tried to click it away"

I just hope this ruling is a step in the right direction, and from what I have read of it, I feel that it is.

Sweet!

[Grendel Drago]

Frickin' sweet! Now to throttle my P2P apps to never upload (or at least overprioritize things that people don't sue over so much, like PG books, Linux ISOs and German fisting porn), and go buck frickin' wild.

--grendel drago

What about BT?

[Anonymous Coward]

What happens when you are uploading the file at the same time as you download it, such as in BT or eMule?

Re:What about BT?

[SirPavlova]

Basically, you're screwed.

Fair use is complicated.

[Grendel Drago]

Fair use is complicated, and works on a case-by-case basis. But, hey, you're a private citizen (of the US, I assume, since you asked about fair use), and if a large multinational decides to sue you, you're pretty much fucked even if you have a case you'd be likely to win.

But in theory, fair use is based on four factors, which the law lists as:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

If you take screenshots of a movie to illustrate a movie review you write, that's probably fair use. If you take screenshots of a movie and use them to illustrate a children's book you've just written, you'd be quite liable. (Well, your publisher would slap you first, but if you self-published, you'd be liable.)

So the answer to your question is "a bathtub filled with brightly colored machine tools".

--grendel drago

Re:Fair use is complicated.

[pipingguy]

That's interesting. If I make a website that hosts video clips (less than 10 seconds per clip, let's say) to illustrate why The Simpsons is a great show, am I violating copyright?

Or does featuring the the clever, funny and topical writing/animation to someone that is unfamiliar with it encourage them to seek out and buy/watch the program?

the decision is the right one

[bravo369]

is possession of copyrighted material the same as possession of stolen goods? i think at most, that's what they can get you on. People are bringing up the drug analogy. if someone reaches into your pocket and takes your drugs, are you really liable for distributing it?

Re:the decision is the right one

[mindstrm]

That's a really good question, actually.. I've heard lots of comments, but never seen a real solid legal comment on that.

If someone reaches into your pocket and steals your drugs, you are not likely guitly of distribution. Mere possession was illegal, though.
If we are talking legally prescribed pharmaceuticals, then someone stole them from you, you didn't distribute.

I would suspect that mere posession of copyrighted works is not illegal by itself. Copyright law covers the act of copying, not posession.

Smart Judges aka...

[Anonymous Coward]

Anyone that agrees with our "Free Warze" agenda.

Cuckoo's egg

[Anonymous Coward]

also known as a cuckoo's egg.

Yay for freedom. Or not.

[Anonymous Coward]

I hate to burst your collective bubble, but anyone firing up their bittorrents thinking they can no longer be touched should stop immediately. While this ruling is important, it isn't as good a piece of news for file swappers as it might at first seem to be.

Why?

IANAL, but let's examine the *AA's tactics in suing people.

1) Lawyers for the *AA present to judge a bunch of IP's with the claim that the users behind those IP's are infringing on their copyrights.

2) Judge issues subpoena for ISP to reveal names behind those specific IP addresses.

3) ISP complies, having no other choice.

4) *AA sues person.

Now, whether or not a person is just sharing or distributing makes no difference here. The lawyer can just as easily download a file from the person sharing the file and claim copyright infringement. The judge will still issue the subpoena. The ISP will still give away the name. And the *AA will still sue. And since the *AA has a better lawyer than the average person, the *AA will win--or not wanting to see a protracted legal battle, the person being sued will settle.

Bittorrent is a little trickier, but the same logic applies. Especially as BT distributes the file as it is being downloaded, there is no doubt that laws regarding distribution extend to BT. It can be reasonably inferred that anyone on BT with the full file at any point is guilty of distributing the file. This especially applies to seeders, but it also applies to everyone. After all, what's the use of a file that's only 99% complete? It should be enough for a subpoena. In fact, a good lawyer would be able to argue that the person most likely distributed the whole contents of the torrent to at least one other person and large chunks of the torrent to many people. There is reasonable doubt that the person did not distribute the full torrent. However, this is civil court, not criminal. Reasonable doubt does not have the same significance. Nonetheless, few people as it is take such suits to the last step, so the point is largely moot.

Anyway, being that trackers are perfectly legal by this ruling, the *AA lawyers can just set up their own trackers and log ip's from there.

Professional criminals are required to thward professional law enforcement. The *AA hire professional law enforcement to assist them. Professional criminals usually don't bother with file sharing--the risk is not worth the return.

Not analogous. Re:Distribution...

[hacksoncode]

It happens, though, that there isn't a law against offering to distribute copyrighted material. There is only a law against actual distribution.

In the drug case there *is* a law against possession with the intent to sell.

In this case, RIAA was claiming that offering to distribute was illegal (ok, a tort) under a statute that doesn't prohibit what was actually done.

In fact, Napster didn't even offer to distribute it, they mentioned that there was someone somewhere that told them they were offering to distribute (without even having knowledge that the statement was actually true). Imagine that being illegal WRT drugs...

A lot easier to argue fair use via the Internet.

[johncheng]

IANAL...

This ruling gives you legal protection when you decide to put your songs, ebooks, or other copy-righted works on the Internet if you wish to prove yourself with easy access.

Without this ruling, merely having those works accessible from the Internet, even if you didn't mean to let others download them, can makes you a criminal*. More accurately, this ruling clarifies whether putting a copyrighted work on the net is legal or not. You might want to access a MP3 from work or while travelling to another country, and you may do so because it is protected by the doctrine of Fair Use. It only becomes illegal when it can be shown that the shared file is used in a way that is not protected by Fair Use. One example is if you start charging others to view your shared file. Now they can bust you for breaking the law. Note that using Gnutella to share your file, however, will probably still be considered illegal.

This ruling is consistent with the traditional American prinicpal of "innocent until proven guilty". If you "share" a file and no one is there to download it, does it still make you a criminal? No. This also puts a lot more burden of proof on the RIAA to demonstrate that your actions are illegal. It is no longer sufficient to say "His files are accessible over the Internet." Now they need to prove that actual harm has been down (someone without rights accessed these files). They may even have to prove criminal intent on your part (you knowingly allowed someone without rights to access these files). The last point can be a stretch, but it is a point you can argue in court.

* - More accurately, you have the probability of being a criminal. Since this was a legally unknown area before the ruling.

Don't talk law if you don't know it.

[abulafia]

Napster was found guilty of contributory infringment. The Sony decision is very clear on what 'contributory infringment' means. There are what non-law people think of as loopholes here. Other people doing the same thing in different ways will be judged differently. Law is funny. But be prepared to stand up for yourself. Fuckwads with money will fuck with you.

Is linking equivalent to distributing?

[Anonymous Coward]

What about the more important issue:

"Is linking equivalent to distributing?"

The original Napster was shut down because it merely linked to copyright-infringing files.

Google also links to files in a way that is substantially similar to the way the original Napster did:

Go to Google and enter: metallica mp3 "index of". The first page of results contains several links to sites that offer copyright-infringing downloads.

If Napster was shut down for merely linking to downloadable files, then what will prevent Google from being shut down for the same reason?

Easy to get around.

[nurb432]

The *aa just has to download something you are 'offering' and complete the transaction.

'Problem solved'.

Re:Easy to get around.

[Anonymous Coward]

What I thought.

I was convicted of a crime I didn't commit!

[Minna Kirai]

I mean, "attempted murder", what's with that? Do they give out a Nobel prize for "attempted chemistry?"

Re:I was convicted of a crime I didn't commit!

[Anonymous Coward]

Yes they do it called a PHD.

What Could This Mean for Torrent Search Sites?

[dmarx]

Does this mean that the actions that the MPAA took against sites like LokiTorrent, EliteTorrents, and TorrentSpy, are now invalid? After all, the sites only offered lists of material avaiable; any downloading of copyrighted content was done by individual users, not the websites.

nonsense

[BitterAndDrunk]

Possession with intent to distribute.

are you pickpocketed?

[BitterAndDrunk]

Or a complicit party to them taking the drugs?

If so, it will be distribution, in the same way that having someone enter your room, leave money on your table, and pick up a baggie from the table is distribution.

meh. sorry for double

[BitterAndDrunk]

To clarify above - if you ARE privy to the event and letting it happen, it's distro. If it's stolen/you're unaware, then maybe not.

Spineless? (was Re: Ruling is Important)

[Anonymous Coward]

Posting AC for obvious reasons.

There are two sides to every coin. The ISP I work for is anything but spineless. You think we disable accounts just because we receive these infringement notice letters? No, the real reason is to protect the user; if the user removes the offending file(s) as per our demand (not request), we will re-activate their account. All we can do though is take their word for it and warn them if it happens again the MPAA, RIAA, BSA, or whoever may take them to court.

Why? There are a couple of pending court cases against our customers. Yes, I said pending court cases. If the offending file is detected again, you can almost certainly bet that we will be served a subpoena, like we already have.

Re:Spineless? (was Re: Ruling is Important)

[dextroz]

what isp is this? any scope of shifting to it in MI? :-)

Not as good as it seems

[Anonymous Coward]

It'd be nice to think that this was a huge victory, but really, even if the RIAA only presents a list of songs with no evidence of you actually having the file, there's not much you can do. Fighting them still costs way more than most of their targets have to put up and when the settlements include "[Once this signed agreement is received, you will be dismissed] without prejudice as a defendant from the above-entitled action," it is really difficult to turn them down...trust me.

Wanna bet?

[Anonymous Coward]

You have just made yourself a middle-man and are completely open to being arrested for conspiracy to distribute and several other charges. Prisons are rife with guys whose only crime was to be dumb enough to tell an undercover cop where/who they can get drugs from. If you share that information, you have made yourself part of the chain of drugs in the eyes of the law. Don't do it. If you don't sell, you best not tell. Nothing sucks more than getting busted for someone else's crime cause you thought you were being helpful. Best bet, someone you don't know asks if you know where to get dugs, tell them to eff off or you'll call the cops. Cause asking is illegal too! (solicitation for illegal substances...gotta love the sheer number of federal laws they charge you under regarding drugs!)

WRONG!!!

[koko775]

The copyright holder has the right to determine distribution. Fair use entitles you to appropriate the material's derivative works or do what you want to be able to listen to your music as you see fit, but not to distribute the copyrighted content. (IANAL, but my father is)

Re:WRONG!!!

[julesh]

The copyright holder has the right to determine distribution.

Are you sure? That sounds like an unfair right to me. Over here in the EU, copyright holders can prevent copying, importation and public display of their works, but once a copy has been made that can be moved around however you want, and if you have a license for that copy there is nothing they can do to prevent it.

Oh, I guess you mean

[Anonymous Coward]

"but those who work in the law are clever too"

Potentially. But most who do are lawyers and clearly you don't mean them.

Not counting you, of course. You're too smart for me.

Dude

[Anonymous Coward]

I want to take you seriously, but your handle (koko) on /. is the name of an ape.

IANAL, but my father is

I think I understand your handle now.

Thanks.

Re:Dude

[Anonymous Coward]

It also means 'here' in Japanese.

[Note: I am not koko]

No, stupid comment.

[Anonymous Coward]

You make me want to give up on the human race. Your comment has all the insight of a fart in the bathroom.

I don't care if anyone has downloaded it or not -- I want the information off there and off now. It should make no difference at all whether anyone actually got it. If someone is making information available, that should be enough to nail their ass.

Which is peachy, except that your personnal information isn't copyrighted. Look at companies like Equifax. They have every bit of your personal information. I invite you to send them an email/letter and tell them you want it out of their databases because it infringes your copyright.

Not only would they not remove it, but they might haul your ass into court to have you committed to a loonie bin.

Let me say it again...your personal information isn't copyrighted. And on the off chance that parts are, none of those copyrights are held by you.

I once had a Libertarian try and convince me that it should be legal to fire guns at people, until you actually hit someone,

No, he was saying that he should be allowed to shoot at you until he hit you, presumably to prevent you from breeding.

Don't help him

[Anonymous Coward]

I suspect this guy is dumb enough to darwin himself before he can reproduce. Please don't help him last a day longer than necessary.

What a relief

[dtfinch]

Torrent sites will be a bit harder to sue. They'll have to go back to suing uploaders and sharers. Leeches as always have nothing to fear, since they don't upload. Though I guess it won't matter much now that Enterprise has been cancelled.

Go right ahead.

[Grendel Drago]

Go ahead and do it---the only way to know for sure is to test it in court. If Fox ignores you, you're cool. If Fox sends you a C&D, you can either knuckle under or fight it. If you fight it and win your fair-use ruling, you'll be financially ruined, but hey, you'll know that you were in the right.

Yep, that's what we call a chilling effect.

--grendel drago

Semantics

[fishbot]

Supply or intent to supply? If you go into a video shop and they have knock of copies on the shelves with pricing on, you can safely assume that they intend to sell them to the public. The intent was there. Sure, it may well be a 'lesser' issue, but the fact is that copies were made and offered for distribution.

If you get to the point of arguing the semantics of the letter of the law, you've already lost.

Re:Semantics

[NewStarRising]

"If you get to the point of arguing the semantics of the letter of the law, you've already lost."

I thought that this is what lawyers were paid to do.

There is a real difference between commiting a crime and Intent to commit that crime. Both may be illegal, but are treated differently.

I am a murderer...

[digid]

Basically the RIAA is using circumstancial evidence to make their case. It's like the police rounding up people who wear a t-shirt that says "I am a murderer"

Even though it's pretty unlikely that a file is going to be named something other than what it is the RIAA is going to court with the assumption that the files are there copyrighted work. That's assuming a lot.

People are innocent until proven guilty and not the other way around. And under what authority can the RIAA claim that someone is distributed their copyrighted works? I mean how is this verified. How could this evidence even be admitted in court? Again it's unlikely that the RIAA is going to falsely incriminate by claiming they were able to download a file. Do the courts just blindly believe the RIAA just because they are of course the RIAA!!

Mod Parent Up

[Anonymous Coward]

Mod parent, he is right. Mod grandparent down, he is speaking bullshit.

I'm not sure why some people post who have no idea what they are talking about and just make it up as they go along. Seriously, what is going on it their minds? They could misinform people, which is a bad thing.

So, mod parent up to correct the mistakes of the grandparent.

I feel like going off on one about how the grandparent is a cock for posting about things he has no idea about, with no sign of research into it, and things he has obviously just made up on the stop. But I won't.

RIGHT!!

[pant]

And who is distributing here, the downloader? No, it is who is uploading to him.Ask your Dad, but as far as I know, under US law, someone who downloads a file is not distributing anything, per se.

Not that I am trying to advocate copyright infringement, but call a spade a spade, not someone who rapes, robs, and kills on the high seas. Yes, I know it has been in the lexicon for decades, nay centuries, but, tell me, what do you think those folks were trying to do, maybe relate copyright infringment to one of the worst offenses imagineable at the time as a political gesture?

Ahem.

What if half each from two people?

[thebes]

What if you don't give someone a complete file? In analog world, you could give someone half a video tape and they could watch that part in their VCR, then get the other half from someone else. In digital world, especially BT you don't get sequential components and you rarely get an entire file from one person. So, since all someone sent was a few random bytes here and there, could he be found distributing under this ruling even though he never actually gave complete usable data?

But things are changing

[phorm]

Yes, but if offering is not illegal distribution... and a download must occur first, how hard is it to step to the next level where "a provenly illicit download must occur."

If offering isn't a crime, and somebody with a copy of the "Beatles Greatest Hits" downloads from me a song from that album in mp3 format, then there was in fact no true infringement occuring. We're taking baby steps here, but I can see the RIAA having to prove that:

a) A download occured
b) The download was illicit (downloader didn't own a copy of the material)
c) The download wasn't initiated by somebody working for the RIAA, which would be in a way entrapment and in another way imply RIAA condoning of such download.