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

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: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: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.

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: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: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: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.

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: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]

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?

[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]

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: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.

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.