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.

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?

[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;

...

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.

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.

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: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: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: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:

[Anonymous Coward]

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

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