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

[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.)

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

[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.

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....

[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

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

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...

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: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:New plan:

[Bloomy]

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

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?

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.