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

[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.

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?

[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?

[starrsoft]

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

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?

[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?

[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?

[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: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?

[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.

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.

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?

[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.

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....

[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

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.

humm.

[LWATCDR]

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

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.

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.

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

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

[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.

Universal

[camcorder]

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

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: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.

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.

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...

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

[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: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.

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: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.

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.

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:Bittorrent Sites

[VoidWraith]

http://elitetorrents.org/

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

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

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.