New Dismissal Motion in File Sharing Case

Exactly. I'm waiting for a case. by Nomihn0 · 2005-09-29 14:14 · Score: 2, Insightful

This is why I am waiting for an uploader case to go to COURT. Let's have a martyr ... and watch him live to tell the tale.

IF the motion is not denied.... by GenKreton · 2005-09-29 14:16 · Score: 5, Insightful

If this motion is not denied, regardless if he wins or not, at least this may make the extortion process a bit more expensiver per a person for RIAA, assuming this instills enough fear that they attempt to properly develop a case on a per-person basis. It maybe just whishful thinking on the other hand.

Re:IF the motion is not denied.... by Frogbert · 2005-09-29 15:21 · Score: 4, Funny

At least this may make the extortion process a bit more expensiver per a person for RIAA
Thats unpossible!
Re:IF the motion is not denied.... by Low2000 · 2005-09-29 15:30 · Score: 2, Insightful

Unless the RIAA can legaly force the person to pay their legal fees =/
Re:IF the motion is not denied.... by Anonymous Coward · 2005-09-30 02:56 · Score: 0

Unless the RIAA can legaly force the person to pay their legal fees

Which, since the music has no value anyway is exactly what you're paying.
Re:IF the motion is not denied.... by lordofthechia · 2005-09-30 04:30 · Score: 1

Regardless, any form of legal victory, however small embiggens the little guy.

--
Georgia Tech, the leader in Chia(tm) technology.

This is a very bad precedent. by Anonymous Coward · 2005-09-29 14:17 · Score: 5, Funny

If this continues, we might start to see a rash of people defending themselves against lawsuits, rather than sticking to the time-tested system of out-of-court-settlements our nation is founded on. Who knows what effect that might have on our national justice system?

Re:This is a very bad precedent. by mikek3332002 · 2005-09-29 14:35 · Score: 3, Informative

People of the USA would have justice for all, instead of justice for rich bastards and multinational corporations
Re:This is a very bad precedent. by Mr.+Underbridge · 2005-09-29 14:48 · Score: 2, Insightful

People of the USA would have justice for all, instead of justice for rich bastards and multinational corporations
You left out the piece of shit deadbeats who file frivolous lawsuits based on bullshit injury claims.
Re:This is a very bad precedent. by Anonymous Coward · 2005-09-29 14:52 · Score: 2, Funny

The DMCA allows the RIAA to pay one lawyer to file 500-1000 John Doe lawsuits at once to learn the identities associated with IP addresses. They don't pay any more court fees for all those suits than they would have if they filed only one suit. Then they pay one marketing droid to issue a press release attacking thieving piratecriminals and sit back and watch the fear campaign work its course in the media.
Their next step is hiring a direct marketing firm to send out threatening letters to the victims instructing them to call a "settlement center" in India to negotiate a multi-thousand dollar extortionate fine or face a $100,000 judgment per infringement ($infringements == $num_songs * 1000). No expensive lawyers are involved at this step.
When defendents force the RIAA to bring lawyers into the picture they break this extremely profitable business model. Its interesting that all the moral high ground defenders of intellectual property types don't find anything ethically challenged with a business model based on such a horrendous abuse of the justice system. It's legalized extortion, pure and simple.
Re:This is a very bad precedent. by ocelotbob · 2005-09-29 14:57 · Score: 2, Insightful

Most of those people are looking for a quick settlement. They put the figure low enough so that it's cheaper to settle than to fight, but sometimes, the other side does fight back.

--
Marxism is the opiate of dumbasses
Re:This is a very bad precedent. by SavvyPlayer · 2005-09-29 15:19 · Score: 5, Insightful

The trouble is there is little risk in these types of lawsuits. The big players sue the little guy all day every day knowing full well their suits will be settled for a net profit, while the little guy with a pro-bono attorney in other cases also have a good shot at settlement. Personally I see no morality in either situation.

If judges were required on the other hand to impose upon a losing plaintiff the defendant's legal fees, the number of frivolous suits on both sides would fall dramatically -- perhaps to 5% of today's levels.
Re:This is a very bad precedent. by EvanED · 2005-09-29 16:25 · Score: 1

If judges were required on the other hand to impose upon a losing plaintiff the defendant's legal fees, the number of frivolous suits on both sides would fall dramatically -- perhaps to 5% of today's levels.

You'd also see a sharp falloff of risky but legitimate suits, and that's a bad thing.

What judges need is the leeway to order payment of the defendant's legal fees if the suit is particularily absurd; the requirement to do so makes the situation worse.
Re:This is a very bad precedent. by ZachPruckowski · 2005-09-29 16:28 · Score: 3, Insightful

Maybe it should voluntary, the imposing legal costs thing.

The problem is that the rich guy can use his money to crush the little guys. The suits don't even have to be for a profit, they just need to kill off the big file sharers, and they wager that the cost of getting rid of the major distributors will greatly hurt filesharing. And they think that a 10% to 20% reduction in piracy would greatly boost their shares, which reduction is what I guess they'd get from forcing a less centralized system and higher costs of the file sharing world.

Of course, if one guy wins, it totally forces them back to square one, esp if the winning guy shares the legal strategy that brought him victory.

In this case, I'd say the sharer is in the right, because don't you have to know exactly what you're being charged with? I mean, I can't sue someone for breaking my stuff, I have to be more specific. The same standards apply here.
Re:This is a very bad precedent. by SilverspurG · 2005-09-29 17:22 · Score: 1

If judges were required on the other hand to impose upon a losing plaintiff the defendant's legal fees, the number of frivolous suits on both sides would fall dramatically -- perhaps to 5% of today's levels.
Then it becomes poker. Big companies can bluff out smaller player all day every day 24/7/365. There is a solution... but this isn't it.

--
fast as fast can be. you'll never catch me.
Re:This is a very bad precedent. by SilverspurG · 2005-09-29 17:25 · Score: 1

The DMCA allows the RIAA to pay one lawyer to file 500-1000 John Doe lawsuits at once to learn the identities associated with IP addresses.
HOLY CATS! The RIAA is a front for the religious right in its pursuit to track down all the dangerous pr0n surfers! They don't care if the RIAA loses, so long as they get the goods on the IP addresses.

We're all screwed.

--
fast as fast can be. you'll never catch me.
Re:This is a very bad precedent. by aussie_a · 2005-09-29 17:38 · Score: 1

Actually, they have the FBI for that. I wish I was joking.
Re:This is a very bad precedent. by Baricom · 2005-09-29 18:15 · Score: 1

Intellectual property laws are important. The RIAA is a gang of selfish, money-hungry corporations engaging in legalized extortion. These opinions are not mutually exclusive. I think we just need to figure out some sensible middle ground - say, 10 years for copyright/patent protection and no DRM allowed.

The purpose of IP laws are to enhance public domain. When viewed this way, the general principle (though possibly not the implementation in the U.S.) makes a lot of sense.

Somebody I know once suggested making copyrights non-transferable (i.e., the performer owns the copyright, and can't sign it over to the RIAA). I think that should be explored further. It might lead to interesting possibilities.
Re:This is a very bad precedent. by Stone+Pony · 2005-09-30 00:07 · Score: 1

If copyright was non-transferable, artists would undoubtedly employ agents to handle the day-to-day administration which they would create. After all, the alternative would be that artists would have to spend all their time trawling the internet looking for illicit p2p copies of their work.
In essence, this is the same position as we have now. Artists could distribute their work themselves, could earn all their money from live appearances and sell their CDs at gigs, could cut out the middleman altogether, in fact. They make a choice not to. In Slashbot-land, this happens only because evil RIAA whores have stitched up radio airplay outlets and tricked naive, fawn-like artists into pernicious contracts. In real-world-land, though, it has more to do with the fact that artists are perfectly happy to have this sort of ancilliary activity done for them by a third party, just as we might pay an accountant to do our tax return.
Apart from that one point, yours seems like an eminently sensible, fair-minded post; so you'll probably get buried by the mods.
Re:This is a very bad precedent. by AndersOSU · 2005-09-30 00:11 · Score: 3, Informative

Completely off topic but

I read your linked article, and found it interesting, but it overstated its case. There is a legal (IMHO valid) difference between porn and obsenity, and obsenity is not protected by your first ammendment rights. The difference is determined using the Miller Test, which the article does an excellent job of explaining includes, among other things, community standards. He then goes on to express dismay that the government is judging whether something is art or not, completely ignoring that the Miller test explicitly involves the community.

Community standards are determined by calling people in your community and asking them what they find exceptable - which is more than you might suspect.

My concern, like the author's is that this is a high priority for the AG. I also wonder about charging someone on a federal level, when it seems to me that it should be left to local law enforcement where the content is produced.
Re:This is a very bad precedent. by Mr.+Underbridge · 2005-09-30 00:36 · Score: 2, Insightful

Most of those people are looking for a quick settlement. They put the figure low enough so that it's cheaper to settle than to fight, but sometimes, the other side does fight back.
That number can run well into the 10's of thousands of dollars and still be cheap enough to settle. That's high to me, and crap like that is why we all pay high insurance rates.
Re:This is a very bad precedent. by AndersOSU · 2005-09-30 00:44 · Score: 1

In Slashbot-land, this happens only because evil RIAA whores have stitched up radio airplay outlets and tricked naive, fawn-like artists into pernicious contracts. In real-world-land, though, it has more to do with the fact that artists are perfectly happy to have this sort of ancilliary activity done for them by a third party, just as we might pay an accountant to do our tax return.

I don't think the RIAA has tricked the artists, but I do think that in the current situation it's impossible to "make it" on a national level without the labels. Personally I think that slashdot worlds take it much more reasonable than an artist sucessfully lobbying clear channel and MTV for airtime, and borrowing enough money to play a national tour of venues that seat more than 200.
Re:This is a very bad precedent. by Anonymous Coward · 2005-09-30 01:28 · Score: 0

This is like the example of farmers who sued to prevent airplanes from flying over their fields because property rights had extended to the heavens for hundreds of years under common law. When airplanes were invented exercise of that right became unworkable.

So it is with community standards applied to electronic speech on a worldwide computer network. Whose community standards have legal authority? The community where the server is located, or is it where the client is located? What if the publisher is an anonymous individual and the "server" is a distributed p2p network spread across 40 countries?

The infrastructure necessary to track down guilty parties alone would act as serious threat to free speech. We'd need thousands of separate great firewalls of $community to enforce widely varying community standards and thousands of locally elected censorship boards to determine what to censor.

Can the judicial system handle the inevitable litigation that would result against overzealous and corrupt local censors who constitute this massively parallel, distributed bureaucracy? When problems emerge, I'm sure the censorship lobbyists will be around to suggest a simplified "whitelist" solution whereby acceptable content can be registered for mass consumption for a fee affordable to corporate content providers, most likely similar to the patent office. "Consumer generated content" like blogs and web boards have been stealing revenue from corporate coffers for quite a while without recourse. They'll throw around some feel good buzzwords like accountability, resposibility, safety, security, and trust, and your rights will go straight to the toilet.

There's a reason obscenity laws aren't enforced. The infrastructure needed to censor information that supports a thriving market and appeals to a significant proportion of the population would trample privacy and free speech rights. It would also be extremely expensive without serving any major corporate interest or promoting economic activity.
Re:This is a very bad precedent. by AndersOSU · 2005-09-30 01:43 · Score: 1

This isn't a slippery slope, technology hasn't changed enforcement, and obsenity laws are enforced.

Obsenity Laws don't filter consumption, they go after producers. If a DA has an obsenity producer in their jurisdiction they are free to spend the money (from their budget) to track him down if they see fit. If they press charges this isn't like an RIAA threat, they actually have to provide the material to the grand jury/judge/jury. The ACLU will represent you - thats what they do. If the material fails the Miller test you can be held accountable whether this is your profession, of you are an amature blogging obscene material. (Note its damn near impossible for written works to be found obscene under the Miller test)

That being said I still think obscenity enforcement should be limited to local government, not the federal level. The reason is twofold, first the Miller test depends on "community standards," and second if the USDA gets overzealous there are fewer avenues of recourse for the accused.
Re:This is a very bad precedent. by AZURERAZOR · 2005-09-30 02:50 · Score: 1

I agree that there is no doubt that as the most litigious society in history, we are in dire need of legal reforms. Lets look at a couple of the problems.

1) Contingency legal fees - Especially abused in the personal injury/product liability (Car accidents and Vioxx) arena. I am not sure the solution, but the fact that on the day following the FDA pulling Vioxx there were radio ads for lawyers claiming "If you or a loved one believe you may have been injured by the criminal negligence of this drug maker, please call now for your free consultation." Our system has developed to promote this type of behaviour from lawyers. They know that they will get a settlement offer even if the case has NO MERIT. The big companies will almost without fail offer a settlement, because a trial COSTS big $$$$$$. The people behind these personal injury cases would be less likely to pursue them if the money had to be spent upfront to retain counsel. I understand there are some whose only recourse in a valid case would be through these contingency lawyers, so we cannot totally do away with this idea. But there is little doubt that this aspect of fee structure contributes to the problem.
2) Defending against lawsuits is expensive. Note that contingency fees are not used for DEFENSE because there is little change of a successful counterclaim. So individuals in the RIAA example above must spend a significant amount if they are even to investigate the idea of resisting these lawsuits. Compared to the cost of settling... it just doesn't make sense to pursue, when the cost of pursuing the suit is more expensive than "losing" through a settlement, with little to gain even if you defend successfully.

So what's the answer? Heck if I know ;) But we need to find something!
Re:This is a very bad precedent. by AxelBoldt · 2005-09-30 03:25 · Score: 1

If judges were required on the other hand to impose upon a losing plaintiff the defendant's legal fees, the number of frivolous suits on both sides would fall dramatically -- perhaps to 5% of today's levels.
In Germany, which has a loser-pays system, most people carry legal insurance. So whether they sue or are sued, whether they win or lose, they never pay lawyer's fees or court costs.
Re:This is a very bad precedent. by sjwaste · 2005-09-30 04:05 · Score: 2, Informative

Well, technically speaking, in the federal court system, a judge CAN impose the defendant's legal fees for an obviously frivolous action.

See Federal Rules of Civil Procedure, specifically Rule 11(b)(2), which specifies that claims must be based in law or in a nonfrivolous extension of law. Rule 11(c) covers possible sanctions.

Now, Rule 11 isn't designed as a cost shifting device (this is an actual quote from memory, but I can't remember the actual case), but will be used as one in obviously frivolous cases. Read all of Rule 11, which has to do with proper representation of a claim. FRCP can be found here: http://classaction.findlaw.com/research/frcp.pdf

I'm a first year law student, so don't take my claims as actual legal advice!

Re:Exactly. I'm waiting for a case. by Nomihn0 · 2005-09-29 14:18 · Score: 2, Interesting

(*and be resolved in court-- not settled outside*)

IANAL, but... by Brandon+K · 2005-09-29 14:18 · Score: 2, Interesting

makes no attempt to describe the specific acts of infringement

Now, IANAL, but how much more descriptive can you be? They're practically handing them a printout with what illegal files had been being shared, are they not? What else is necessary?

Re:IANAL, but... by Anonymous Coward · 2005-09-29 14:22 · Score: 0

I think that this is what they're complaining about--that they DIDN'T recieve something like that.
Re:IANAL, but... by Larmal · 2005-09-29 14:25 · Score: 5, Informative

no, they're handing a printout with what files were available to be shared - there's no proof, however, that anything was actually shared - which is the point of the grandparent. If memory serves me correct, this is exactly why the judge in Canada threw out the case (i think - can i get a confirmation on this?)
Re:IANAL, but... by chphilli · 2005-09-29 14:28 · Score: 5, Interesting

It looks like what the RIAA provided was just a list of file names that the defendant had available for downloading. However, this does not show that any files ever were actually transfered.
According to TFA, prior cases have shown that for a copyright to be infringed, a specific instance (or instances) of infringement must be shown. For example: "On the [day] of [month] at [time], the file [filename] was transfered from [defendant] to [recipient] by means of [transport medium]. The file in question is [of some relation] to our copyrighted work: [copyrighted work with copyright information]. At least, that's my take on it. (IANAL)

--
Please ignore any obvious problems in this post.
Re:IANAL, but... by ciroknight · 2005-09-29 14:30 · Score: 2, Interesting

How about a little proof other than a file name and an IP address? But then of course, the only way they could (reasonably) do this, is to download a copy of the song from that person. But then, doesn't that mean they're committing the same crime as they are charging the person with? Is it legal to steal something back if it was stolen from you to begin with? (of course, this is a bad example; copyright infringment isn't theft, and it certainly isn't tangible, along with a civil action, not a criminal one.. yet).

But seriously, the RIAA typically railroads people simply by saying they did it, showig some IP traffic, and settling. Too many people are unwilling to fight the charges because they feel it is futile to fight the charges, or out of guilt.

Personally, it won't stop me. Even if they do catch me, paying for the lawsuit is most likely going to cost less than if I had purchased the media itself, and even if I had purchased it, it wouldn't be as useful to me as downloaded media as I would have to rip it anyways, and then it'd end up on my shelf for the rest of its life. *shrug*

--
"Victory means exit strategy, and it's important for the President to explain to us what the exit strategy is." G.W.Bush
Re:IANAL, but... by Anonymous Coward · 2005-09-29 14:30 · Score: 2, Informative

The motion implies that the RIAA did not make any specific allegations of infringement. It claims that it is not enough to show that a person had copyrighted material that _could_ have been downloaded. What is necessary, according to the motion, is to show that a person actually distributed copies of protected works to the general public. Since the RIAA didn't have any specific claims of what works were distributed, when the were distributed, or to whom they were distributed, it does seem like a reasonable line of argument.
Re:IANAL, but... by twiddlingbits · 2005-09-29 14:31 · Score: 4, Interesting

It depends on the laws covering indictments in that State. There is an old lawyer saying that "You can get a Grand Jury to indict a ham sandwich" which means the prosecutor gets a lot of leeway at that level and does not have to be specific. However, at the real trial there generally needs to be a lot of SPECIFIC evidence to convict. If it is a criminal offense evidence must be "beyond a shadow of a doubt", civil cases just need to be "preponderance of evidence". And then again juries are funky, they can convict or set free based on how thier perceive the defendant and the prosecutor. OJ got off but Scott Peterson got nailed. Neither case really had a lot of evidence that directly proved murder. This case could also end up settling out of court, unless those who are being sued have deep pockets or a pro bono [no charge] lawyer. The RIAA or defendant can always subpoena the logs from the IP provider (assuming they kept any) that should settle a lot of things. If the RIAA has logs they have to turn them over to the defense as per the Rules of Evidence.
Re:IANAL, but... by zxnos · 2005-09-29 14:34 · Score: 1

anyway to prove that that those screenshots are legit? sow the seeds of doubt that the RIAA forged the screenshots... IANACS but even if the RIAA had a log showing that they downloaded from this guy, is it hard to forge log files etc? wouldnt they need log from his computer to prove what was uploaded? do these logs even get created by filesharing software?

--
always mosh clockwise
Re:IANAL, but... by ari_j · 2005-09-29 14:38 · Score: 1

How about a little proof

Proof is for trials - simple allegations are for complaints, the document that a motion to dismiss goes up against.
Re:IANAL, but... by ari_j · 2005-09-29 14:41 · Score: 2, Informative

I think this is a civil case - no indictment, no grand jury, no prosecutor, no conviction. And the Rules of Evidence don't require the RIAA to turn over any logs it may have. The Federal Rules of Procedure certainly may, but there are a lot more details to know before they'd be required to hand over their logs.
Re:IANAL, but... by twiddlingbits · 2005-09-29 15:26 · Score: 2, Insightful

Yes, it is a civil case but I read the complaint and I can't see a claim in there. The Federal Rules of Evidence might apply here depending on if it is heard by a Magistrate Judge but in any case each side has to fully brief the other side otherwise how can they prepare a complete defense?. Of course you can play games and keep them in the dark as long as you can get away with it. No surprises like on TV ;) IANAL, but I know quite a few.
Re:IANAL, but... by InvalidError · 2005-09-29 15:45 · Score: 2, Interesting

In eMule, there is an option to save logs to disk but it is not enabled by default.

If the RIAA followed due process, they would have filed a complaint with the RCMP or local police, the police would have investigated the lead and verified the *AA's claims, then they would have requested a warrant and raided the house.

The RIAA takes justice in its own hands to extort money from people through out-of-court settlements. Last time I checked, justice self-service and extortion were both illegal in the USA, Canada and most other civilized countries. All we need now is a good definition for the MAFIAA acronym to would accurately represent the MPAA/RIAA/etc.'s self-serving extortionist nature.
Re:IANAL, but... by EvanED · 2005-09-29 16:30 · Score: 2, Insightful

But then of course, the only way they could (reasonably) do this, is to download a copy of the song from that person. But then, doesn't that mean they're committing the same crime as they are charging the person with? Is it legal to steal something back if it was stolen from you to begin with? (of course, this is a bad example; copyright infringment isn't theft, and it certainly isn't tangible, along with a civil action, not a criminal one.. yet).

Yes, it is a bad example, and flat out wrong on a couple points.

First, in the matter at hand, it would be perfectly fine for them to download from someone. They own the copyright, and have full rights to it.

Second (and much more shakily), I think that in most jurisdictions it IS legal to reclaim stolen property provided you don't break any other laws in the meantime. Perhaps SWIAL (someone who is a lawyer) can shed some light?
Re:IANAL, but... by ZachPruckowski · 2005-09-29 16:42 · Score: 1

Yes, proof is for trials, but in the American legal system, you have to meet a certain standard in order to get to trial. If RIAA has no actual claim that their copyright was ever infringed, they have no case, and hence get no jury trial. They need to have some sort of evidence to bring it to trial. It's a far lower bar than "reasonable doubt", but it still has to be met. If they can't get their accusations straight, they shouldn't waste 12 people's time.
Re:IANAL, but... by DaveLatham · 2005-09-29 16:48 · Score: 2, Informative

If it is a criminal offense evidence must be "beyond a shadow of a doubt"

Make that "beyond a reasonable doubt". There's very often a shadow of a doubt. It's just not always reasonable.
Re:IANAL, but... by ari_j · 2005-09-29 17:18 · Score: 1

I'm not sure if copyright actions are entitled to a jury trial on their own - many federal claims are not. But regardless of that, yes, you do have to at least allege facts sufficient to support your claim. And later there will be a motion for summary judgment that says, "even after discovery, you have no hope of winning, jackass," all before a jury would get involved.

People who think the jury trial is the devil don't realize how hard it is to get to a jury.
Re:IANAL, but... by mankey+wanker · 2005-09-29 17:44 · Score: 1

This is exactly correct. The filing is saying that the RIAA is not making any actual claims, just noting the potential for claims - there is a difference. When you claim a damage you have to be very specific, right down to the penny.

Where? What? When? Why? etc...

And finally: what can the court do to help you recover?

You must state a claim AND a proposed resolution in settlement of the claim.
Re:IANAL, but... by anonymous22 · 2005-09-29 18:46 · Score: 0

MAFIAA is... "MAFIAA-Artists-Fucking-the-Innocent Association of America."

--
Anyone who runs is V.C. Anyone who stands still is well-disciplined V.C.
Door Gunner, Full Metal Jacket
Re:IANAL, but... by Kythe · 2005-09-29 20:27 · Score: 1

Now, IANAL, but how much more descriptive can you be? They're practically handing them a printout with what illegal files had been being shared, are they not? What else is necessary?

Evidence that some sort of illegal activity actually occured (e.g. the copying of copyrighted material).

It's not enought to claim someone made copyrighted material available for copying. Otherwise, the RIAA could, for example, sue anyone who left a CD in an unguarded place.

I don't think that's a can of worms we want to open. The judge may see otherwise, of course, but it looks like the law and precedent are pretty clear on this (to my unlawyerly eyes, anyway).

--

Kythe
Re:IANAL, but... by Kythe · 2005-09-29 20:31 · Score: 1

Proof is for trials - simple allegations are for complaints, the document that a motion to dismiss goes up against.

Yep. And if the RIAA starts losing these things in trials, and has the charges dismissed with prejudice, and has to pay attorneys' fees and court costs, I think we may see either a drastic reduction in the number of lawsuits or a drastic increase in solid evidence of illegal actions in the lawsuits (e.g. files actually downloaded from the defendant). Either way, it's a good thing, IMHO.

--

Kythe
Re:IANAL, but... by Keichann · 2005-09-29 21:06 · Score: 2, Insightful

All we need now is a good definition for the MAFIAA acronym to would accurately represent the MPAA/RIAA/etc.'s self-serving extortionist nature.

Music and Film Indictment Axis of America ?
Re:IANAL, but... by KeithIrwin · 2005-09-29 22:05 · Score: 1

The RIAA has been stealing my money. I used to have a bunch of fives and tens and twenties. Now I don't have them any more. The RIAA has lots of fives and tens and twenties. Clearly, they should be arrested and all that money given back to me.

What do you mean you want to know when they stole it from me and how? I told you what they stole. What more is there?

Keith
Re:IANAL, but... by mrogers · 2005-09-29 23:31 · Score: 1

Second (and much more shakily), I think that in most jurisdictions it IS legal to reclaim stolen property provided you don't break any other laws in the meantime.
That may or may not be true for stealing, but I'm curious to know how it would work for copying (unless by "break any other laws" you mean the second law of thermodynamics). ;-)
Re:IANAL, but... by Joakim+A · 2005-09-30 00:07 · Score: 1

The RIAA or defendant can always subpoena the logs from the IP provider (assuming they kept any) that should settle a lot of things. If the RIAA has logs they have to turn them over to the defense as per the Rules of Evidence.

The ISP logs doesn't prove a thing. Either it only shows the data volume passed to/from the user or the logs are more detailed and show sessions and IP addresses and ports. Even with detailed logs the only thing you can show is that xMb was passed from IP1:port1 to IP2:port2.

Reasonably the prosecutor need to show that Edwin_Starr_-_War.mp3 was copied at a specific time/date and that the file really is what the filename implies (and that the original is copyrighted).
Re:IANAL, but... by twiddlingbits · 2005-09-30 00:30 · Score: 1

YOu ever seen a web log from a server? I have and I can tell you exactly what was done when if you have the right options turned on. If you know how to read it you can pretty much tell the tale. Of course it takes LOTS of disk space for these logs and they are dumped every few days so there may not be a record.
Re:IANAL, but... by xtracto · 2005-09-30 00:38 · Score: 1

Music, Art and Film Industries Association of America

--
Ubuntu is an African word meaning 'I can't configure Debian'
Re:IANAL, but... by xtracto · 2005-09-30 00:43 · Score: 1

But then, doesn't that mean they're committing the same crime as they are charging the person with?

1. No, downloading is not illegal, Sharing it is.
2. Anyway the RIAA (or Elektra or Sony or whoever is there) OWNS the actual copyright of the intellectual art, so they could do whatever they want to it.

And please stop calling it stealing. File sharers are infringing a law but, it is not the "do not steal" one.

--
Ubuntu is an African word meaning 'I can't configure Debian'
Re:IANAL, but... by Anonymous Coward · 2005-09-30 04:11 · Score: 0

One problem I saw, is that if RIAA didn't download the actual file and match it with the corresponding Hash key ( tiger tree or wathever it was used to identifi the file) there is no way to prove that the file was actually shared. On top of that how do you make sure that the actual name of the file was describing the actual content of the file??

We know that there is a certain amount of companies that are paid to throw garbage files on the network , so if they don't download the file and verify its content there is no way they can prove that the file description is actually real or not .

So they have to:
1} download the file ( and prove that it was at least partially downloaded from the incriminating computer, maybe communication logs )
2) prove that the file downloaded is the actual file shared ( maybe done with an assemented downloader and using the uid system) ... i don't think its really easy to implement
3) prove that the file actually match the name/desciption ( can be garbage or hidden prOn etc..)
4) bring everything to the court and present so it can be actually used ..

Step two is the hardest one ( and maybe four ... presenting to non technical people technical information can be very hard ) , but step 1 and 3 are the most time consuming. If the RIAA is forced to present solid proofs of pirating it would be to expensive to implement for them i think

Sorry for ortho/grammar , english is not y native langage
Re:IANAL, but... by sjwaste · 2005-09-30 04:12 · Score: 1

If the RIAA had activity logs, wouldn't it be pretty straight forward to discover them under Rule 26? They're certainly not privileged, and if the RIAA is going to introduce them as evidence, they've pretty much foregone the irrelevant argument. However, the RIAA could argue that the defense ought to subpoena them from the source, rather than from them, but facts aren't necessarily not discoverable from the other party directly (or at least, thats what I've been taught in my first year civ pro so far).
Re:IANAL, but... by ari_j · 2005-09-30 05:05 · Score: 1

Welcome to law school (I'm a 2L and I loved CivPro). Discovery covers anything that might even reasonably lead to admissible evidence, so relevance arguments are generally irrelevant. I think I would send them a request for production of documents (Rule 34) about the logs. The only objection to the discovery I can think of right now is that it's attorney work product or prepared in anticipation of litigation, but an interrogatory about the existence and source of the evidence would at least get you close.

I wonder if other Slashdot lawyers/law-students enjoy the rules classes as much as I did. :)

Re:Exactly. I'm waiting for a case. by saucercrab · 2005-09-29 14:19 · Score: 5, Informative

Correct me if I'm wrong, but isn't death a pre-req for becoming a martyr?

Re:Ye ole cowboy by Pantero+Blanco · 2005-09-29 14:22 · Score: 3, Interesting

I've been wondering when someone would trade several hundred gigabytes of legit stuff from a monitored connection, just to set up the RIAA for a smackdown.

Who can sue for copyright infringement? by Anonymous Coward · 2005-09-29 14:24 · Score: 2, Interesting

If A copies file F copyrighted by B, can C sue A for copyright infringement?

If so, A could still have a license from B to copy F. Does A have to show such a license for his defense, or is A assumed innocent and the burden is placed on C to demonstrates that A couldn't possibly have a license from B?

This is a general question. F can be software, music, movies, your brother's wedding pictures etc. B and C can be various organizations, laywer firms, artists, producers, your brother.

Re:Who can sue for copyright infringement? by indaba · 2005-09-29 14:49 · Score: 4, Informative

I think your question is really about burden of proof in a copyright case.
Although it's evident that C can't successfully sue anyone, for anything because C is NOT the holder of the copyright (B is) ; that may not be evident at the outset.
In Australian law, the burden of proof as to ownership of a copyright is presumed to rest with the plaintiff (C), unless the the defendant (A) makes it an issue.
See : http://scaleplus.law.gov.au/html/pasteact/0/244/0/ PA002330.htm
I would imagine it's the same in the USA ?
INAL, just a law student.
http://law.flindersclubs.asn.au/wiki/index.php?tit le=Main_Page
Re:Who can sue for copyright infringement? by aussie_a · 2005-09-29 17:49 · Score: 1

Given that C has an exclusive right to distribute music from B, person A can't possibly be distributing it legally. If person B gave person A permission to distribute the license, then person B is going to be in deep shit (and person A would need to prove this in court, as I imagine if it's made an issue in court by person B, then C will merely get A to testify).
Re:Who can sue for copyright infringement? by indaba · 2005-09-29 20:04 · Score: 1
John,
I think there is a bit of confusion re the various rights that copyright encompasses.
The original post was talking about the copy right, or more technically the reproduction right.
Your post is talking about the distribution right -which is an entirely separate right to the reproduction right!
Now, the original post did not say expressly say that C had a exclusive right to distribute from B , although it may have implied it.
But, for the sake of argument, let's assume that C had been assigned distribution rights by B.
Does C now own all of B's copyright ? No. B still own's whatever rights they have NOT assigned.
A license to distribute, does not automatically equate to assignment of the entire copyright. A license to copy does not equate to a license to distribute.
Copyright is a bundle of rights that can be assigned and split up in a virtually unlimited number of ways.
from : http://www.ucop.edu/ott/crbasics.html

The term *copyright* actually refers to a bundle of rights that allow the originator of the work the exclusive right to:
- make copies of the work
- make derivative works based on the original work
- distribute the work
- perform the work publicly
- display the work in a commercial setting
In the case of visual works, the author also has the right to:
- claim authorship of the work (attribution)
- prevent others from attributing distorted works to original author (integrity)
Hope this helps.
darren
Re:Who can sue for copyright infringement? by aussie_a · 2005-09-29 21:57 · Score: 1

Now, the original post did not say expressly say that C had a exclusive right to distribute from B , although it may have implied it.

But, for the sake of argument, let's assume that C had been assigned distribution rights by B.

I took the scenario in the context of the RIAA and its lawsuits. Sure, re-reading his post I can see that there is plenty of room to nit-pick over details, I was talking about the RIAA.

Does C now own all of B's copyright ? No. B still own's whatever rights they have NOT assigned.

Given the above assumption for my post, I think it's safe to assume that "C" (or the RIAA) haven't made any lawsuits against people that was about anything BUT the music that the RIAA has received an exclusive distribution license for (re-reading my post, I can see where there is some room for confusion, I thought it fairly clear given the subject matter of this article).

A license to distribute, does not automatically equate to assignment of the entire copyright. A license to copy does not equate to a license to distribute.

Interesting point (and carefully re-reading the OP I can again see why you made that distinction), but again in the context of the RIAA, they're only suing people who they believe have distributed copied content (however the point of this article is, it appears they can't actually prove it occurred). So not really that important.

If you want to take away the context of the RIAA and its lawsuits, well of course random entity C can't sue on B's behalf, unless they've been assigned a role by B (or someone B has nominated to assign such a role) allowing them to sue.

You also can't sue because because you copied someone elses content for personal use, if you've brought it (can you be sued for downloading it? I don't know). Fair use protects your ass there (although thanks to the DMCA I can be sued for HOW I copy the content).
Re:Who can sue for copyright infringement? by usernotfound · 2005-09-30 02:04 · Score: 1

Why dont we sue the RIAA for not protecting the artists music in the first place? Clearly the negligence caused artists to lose money, and without money they cannot but copius amounts of inspiration (drugs, hookers, booze, whathaveyou). Thus their most recent album sucked: causing me much suffering. About $200,000 in emotional damages. Metallica anyone?

--
You call it excessive, I call it ambitious.
Re:Who can sue for copyright infringement? by sweetnjguy29 · 2005-09-30 02:51 · Score: 1

>I think your question is really about burden of proof in a copyright case.

I think the question is also about a legal concept called "Standing". Obviously, your brother or a random organisation could not sue for copyright infringement if he doesn't have some sort of relationship to the copyright holder.

To have standing to sue, plaintiff must be the "legal or beneficial owner of an exclusive right under a copyright." However, the U.S. statute does not expressly exclude anyone from bringing a copyright suit. The law is fairly murky about this, unfortunately.

An industry group, such as the RIAA, could have standing to sue, since they could legitimately claim to represent the interests of recording artists. Sorta like Greenpeace being able to sue the government for allowing whale hunts.

What does not kill me only makes me stronger by ReformedExCon · 2005-09-29 14:25 · Score: 5, Interesting

Here's what happens now. RIAA makes the request to Congress that ISPs open up, on request, records indicating upload (the main problem) transfers citing the obvious rampant criminal sharing going on on the network. Congress, in response, seeing both an opportunity to pad the coffers of its reelection campaigns as well as a chance to strengthen the rights of IP holders, decides to strike a blow to the 4th Amendment and force upload data to be opened upon subpoena.

Both sides in this equation (file uploaders and the RIAA) are in the wrong. You simply can't decide that you don't have to follow the law because you 1) don't like the law and 2) that technology allows you to violate the law easily. Moreover, the RIAA is continuing to alienate its customer base by using heavy-handed tactics on fairly low-level criminals. In addition, by continuing to violate the law and thumbing their noses at the industry, the file sharers themselves are forcing the lawmakers into strengthening IP laws.

I do not blame this guy for fighting the lawsuit. It takes a lot more guts to stare down the RIAA than to give in and pay them their due. But by forcing the RIAA to be more thorough in the future means that future lawsuits won't get away so easily.

And since this is just a motion for dismissal and not an actual dismissal (who knows what judges will do?), the judge may decide that the RIAA has enough evidence to prove that this guy was a file sharer and toss out the dismissal.

--
Jesus saved me from my past. He can save you as well.

Re:What does not kill me only makes me stronger by EngMedic · 2005-09-29 14:43 · Score: 2, Insightful

You simply can't decide that you don't have to follow the law because you 1) don't like the law and 2) that technology allows you to violate the law easily.

Sure you can! You resign yourself, however, to suffering the full penalties of a law, even if you consider it invalid. It would probably be a gross overestimation to ascribe to any significant proportion of filesharers any kind of truly well-concieved ethical stance, though.

--
filter: +3. Hey, look! all the trolls went away!
Re:What does not kill me only makes me stronger by phauxfinnish · 2005-09-29 14:53 · Score: 5, Insightful

You simply can't decide that you don't have to follow the law because you 1) don't like the law and 2) that technology allows you to violate the law easily.

I hate this line of reasoning. You absolute can violate a law because you don't like it and/or have an easy time doing it. The fact that you can do something doesn't make it morally or legally right, but you can still do it. When a large number of people loose respect for a law, the will of these people being what gives the law validity in the first place, it is time for the law to be reconsidered. When the people want to repel a law, or decide how that law be applied, it is the government's job to accommodate to the extent that the Constitution allows. If the Constitution does not adequately fulfill the needs of its people then it is up to the people to work within their government to modify it.
Laws can be broken. Perhaps laws should be broken. I think everyone should intentionally break a law once and a while, just to remind yourself how thin the line is between order and chaos. And how thin a line order is within the surrounding chaos. Society lacking structure opens itself to rule of the strongest, but the government that too firmly restricts its citizens will fall at their hands.

A balance must be struck. The people must be secure in their ability to control their government, and a government must depend on her citizens to behave in a civilized fashion. For either to overstep their place would be disastrous.
Re:What does not kill me only makes me stronger by garcia · 2005-09-29 15:11 · Score: 2, Informative

Here's what happens now. RIAA makes the request to Congress that ISPs open up, on request, records indicating upload (the main problem) transfers citing the obvious rampant criminal sharing going on on the network. Congress, in response, seeing both an opportunity to pad the coffers of its reelection campaigns as well as a chance to strengthen the rights of IP holders, decides to strike a blow to the 4th Amendment and force upload data to be opened upon subpoena.

And here's what happens to defeat that. You have your traffic monitor run, use the information for what you need, and then you remove the logs immediately.

If it's going to cause undue problems for the ISPs I see no reason to travel any other route.
Re:What does not kill me only makes me stronger by Anonymous Coward · 2005-09-29 16:26 · Score: 0

Note to readers: I don't advise taking advice from someone who can't spell "lose".
Re:What does not kill me only makes me stronger by Anonymous Coward · 2005-09-29 17:55 · Score: 5, Insightful

Great post.

I'd like to add, when the populace, in large numbers, chooses to willfully break a law, or thinks they would not be acting *unjustly* if they were to do so, this is often an indication that the law itself does not reflect the actual will of the people. In today's climate, where it is often the wealthy and powerful minority that make or influence the laws, rather than the "will of the people" (in representative form), it's important to note this point.

Of course, the public also sometimes seeks to resist laws that they don't like simply because the laws are designed to benefit society at their individual expense (Social Security, Medicare, smoking bans, taxes in general).

And finally, the public is often so misinformed, easily manipulated, and easily swayed by persuasive (but fallacious) arguments by friends, colleagues, and celebrities, that they form unreasonable beliefs about whether certain laws are just, similar to how the public is so easily manipulated into voting for politicians who promise to serve the public interest if elected/re-elected, despite having prior *public* voting records that demonstrate the emptiness of those promises. My point being, society is often wrong about what's good for itself, so it should always be with a large grain of salt that any particular credence is given to demonstrations by "the will of the people."

However, if the people are in strong opposition against a particular law, that *should* motivate the smarter people to take a hard look at the law and examine whether the law is in fact not in the populace's best interest.
Re:What does not kill me only makes me stronger by Anonymous Coward · 2005-09-29 18:31 · Score: 0

so... you never speed eh?
Re:What does not kill me only makes me stronger by mankey+wanker · 2005-09-29 19:26 · Score: 1

> It would probably be a gross overestimation to ascribe to any significant proportion of filesharers any kind of truly well-concieved ethical stance, though.

And here you would be dead wrong. There is a giant fucking 800 pound gorilla of a problem that no one wants to talk about when it comes to copyrights and patents or any kind of "intellectual property" scheme:

WHEN YOU GRANT COPYRIGHTS AND PATENTS TO THE PRIVATE SECTOR,
YOU TAKE FROM THE COMMONS.

There, now it's been stated so that it can be understood. These kinds of legally created rights just do not exist by any other means except as a creation of law. The Founding Fathers of the U.S. had all kinds of reservations about creating such laws and did so under very limited conditions. If you think these rights are somehow inherent, or deserved, or should be extended - then you are just drinking the corporate kool-aid that dictates that "what is good for [corporate name here] is good for the U.S." - and that's just utter bullshit.

Y'all realize that patents and copyrights are intended as legally created benefits for creative and inventive INDIVIDUALS and not corporations, right? And then, such rights were intended to be limited so that a creator could have the exclusive monetary gain from an invention for a short period of time (not his whole life or during the existence of his surviving estate, btw) and that then the "intellectual property" would lapse into the commons for the benefit of all - to keep the market of ideas lively.

Destroying the commons effects both the marketplaces of ideas and commerce. Neither ideas nor money should ever be consolidated into the hands of the too few. Ultimately, you own nothing and are just passing through anyway - why not give back to the society that made your wealth in ideas and money possible in the first place?
Re:What does not kill me only makes me stronger by Anonymous Coward · 2005-09-29 23:33 · Score: 0

In other words, legality does not define morality, nor does it define fairness or justice. That is exactly why for me, the zero aggression principle trumps all government laws. I have absolutely no remorse or moral guilt about violating government's laws; like any citizen, I violate at least some of government's laws every day (there are now so many that it is impossible not to). And I'm quite happy to do so, because any government law which doesn't directly enforce the zero aggression principle is necessarily a violation of the zero aggression principle (government is, after all, founded on the principle of aggression -- and majority rule doesn't change that).
I firmly believe that the one, fundamental prerequisite to peace is voluntary association, and I hold that moral value above any law concocted by government or majority. As Ghandi, MLK, and other great leaders taught us, there is absolutely no moral justifaction for the initiation of force -- even when it is subsidised or delegated to government.
Re:What does not kill me only makes me stronger by xtracto · 2005-09-30 00:52 · Score: 1

And finally, the public is often so misinformed, easily manipulated, and easily swayed by persuasive (but fallacious) arguments ..

There is plenty of people that knows that they are getting screwed, the problem srtrives in the subtle point that it is not "Common Knowledge" so people do not KNOW for sure that there is other people in the similar situation and that these people KNOWS the same.

But, I think the MAFIAA is helping on that, why do you think that people is starting to fight?, well because they know there is other people with the same problem and that they are fighting, read a bit of the book "Rational Ritual" by Michael Suk-Young Chwe, it is quite interesting.

--
Ubuntu is an African word meaning 'I can't configure Debian'
Re:What does not kill me only makes me stronger by EngMedic · 2005-09-30 01:58 · Score: 1

i'm not nessecarily disagreeing with you, here. BUT, my point still stands: most people who download stuff (and believe me, a good 80% of it is ashlee simpson and related garbage) aren't thinking about what you're talking about, simply because they lack the braincells.

--
filter: +3. Hey, look! all the trolls went away!
Re:What does not kill me only makes me stronger by serutan · 2005-09-30 11:33 · Score: 1

Both sides in this equation (file uploaders and the RIAA) are in the wrong. You simply can't decide that you don't have to follow the law because you 1) don't like the law and 2) that technology allows you to violate the law easily. Moreover, the RIAA is continuing to alienate its customer base by using heavy-handed tactics on fairly low-level criminals. In addition, by continuing to violate the law and thumbing their noses at the industry, the file sharers themselves are forcing the lawmakers into strengthening IP laws.

You might want to consider that Congress is also wrong here. Every time they extend copyrights they break a contract between copyright holders and the public -- a contract that the public has been keeping faithfully by paying for copyright enforcement year after year, expecting material to become public domain at a specific time. If you have been making house payments for 29 years on a 30-year mortgage, and Congress suddenly declares that it's a 60-year mortgage, are you "wrong" to refuse to move out of the house? When Congress makes laws for hire, it's hard to respect either them or the laws they write, and even more difficult to respect the righteous posturing of the recording industry and other entities that buy those laws.

Re:Ye ole cowboy by Anonymous Coward · 2005-09-29 14:25 · Score: 0

You mean like naming stuff "Famous_Artist-New_hit_Single.mp3" but actually having it be your own bands music? Talk about a way to get people to listen to your stuff, and bust the RIAA at the same time. You'd become someones hero.

This is going nowhere... by WebHostingGuy · 2005-09-29 14:26 · Score: 5, Interesting

As a former federal practice attorney this motion is going nowhere.

Federal rules allow a plaintiff in a lawsuit to just give enough notice to the defendant so they have a clue; a small clue. Further procedures such as discovery, document requests and depositions are meant to bring out the specifics of how and why. Federal Judges allow alot of leeway in these because that's what the case law lets them do. And, even if the defendants were to show that the plaintiff didn't provide them with enough notice 99 times out of 100 the Judge just rules that the plaintiff has to file a restated complaint with more information. (I have rarely heard of any case which was thrown out because of failure to plead.) Further, the cases these attorneys rely upon are mainly just district court opinions which are presuasive but not necessarily binding. The two appeals court cases they do rely on don't really help--one is out of the appellate circuit which does not make it binding and the other in circuit is just a general clarfication. This is nothing but a drive by the defendants attorneys to rack up billing hours or gain media attention.

--
Quality Hosting e3 Servers

Re:This is going nowhere... by Anonymous Coward · 2005-09-29 14:45 · Score: 0

I ANAL, but I'll happily talk out of my ass anyway.

The dismissal motion goes beyond the concept of the lack of specific claims in the complaint going against civil procedure. It goes on to note numerous cases where mere sharing is insufficient to show infringement, meaning that proof of a specific act of distribution is required. Either (a) the RIAA has no such proof, in which case the suit will (should) eventually be dismissed, even if not in response to this motion alone; or (b) the RIAA has proof in the form of actually downloading the file, either by themselves or through a representative.

If (b) is the case, it either means that they also committed copyright infringement, or it means that a question I've been wanting to see an answer on for quite some time may arise from this case - namely, whether it is legal to download music when you have a legitimate license to use that music (i.e., you already bought the CD), and whether in such cases it is legal for the uploader to upload it to you, since no new access to the music is created in the process.
Re:This is going nowhere... by WebHostingGuy · 2005-09-29 14:46 · Score: 4, Informative

The reason for allowing a low barrier intitially is that history has shown that if you don't do so you can get stuck in just figuring out what the plaintiff is trying to sue over. The Federal rules basically want to avoid this and get the parties into the meat of the suit--whether they did it or not. Some states still require very specific pleadings. That is, the plaintiff has to spell out in specifics what the defendant did. However, this leads to a lot of legal ploys. One time in a state which required specifics as an attorney for the defense I delayed the lawsuit for eight years withoug getting into any meaningful discovery or even allowing the plaintiffs to move the case forward. Compared to that I'll take the low barrier anyday.

--
Quality Hosting e3 Servers
Re:This is going nowhere... by WebHostingGuy · 2005-09-29 14:49 · Score: 2, Informative

The other cases don't mean anything to the motion though. The motion is not on the merits of the case but rather whether the plaintiff included enough facts in the complaint. That's it. The Judge will not rule on the merits of the case at all. They (the cases) were thrown in their to start persuading the Judge the defendants should win the case now rather than later. Legally, they will be ignored.

--
Quality Hosting e3 Servers
Re:This is going nowhere... by uncreativ · 2005-09-29 14:51 · Score: 1

Why not require more specificity in a lawsuit complaint? If plaintifs were required to do so, wouldn't that cut out at least some of the flat out frivolous?

IANAL, so I have no way to judge your assertion, but it sounds like a good enough justification for why the dismissal motion will go nowhere. Is there such a thing as a "please tell me wtf you are talking about" motion? Or is what the lawyers did in this case the only way to get a better idea of what the other side has before going through the mess of starting the whole discovery process?
Re:This is going nowhere... by Anonymous Coward · 2005-09-29 15:08 · Score: 0

You're right in that the judge will undoubtably grant leave to ammend, but there is some meat to this 12(b)(6) in that they failed to plead that actual files were downloaded, e.g. that copyright actually occured. Now, considering that the RIAA has been involved in so many cases and has been involved in the cases that established the burden to both persuade and plead as to actual download/violation, the RIAA/their attorneys could be looking at Rule 11 sanctions because 1) they failed in a sufficient investigation of the law to realize they had to plead actual violation 2) there complaint as it stands attempts to assert that offering to download is a violation, which is against clearly established precedent and therefore violates 11(b)(2).

Also, a failure to state any time in the pleading falls below even the liberal 8(a) requirement of the Fed. Rules. Civ. Proc.
Re:This is going nowhere... by Tankko · 2005-09-29 15:13 · Score: 1, Informative

Why not require more specificity in a lawsuit complaint?

Because, a lot of the time you can't "prove it" until you've done discovery and the defendant has handed over emails, records, etc.

The term "information and belief" is a catch all that means "we know they did it, and as soon as they turn over their records, we'll prove it".
Re:This is going nowhere... by Anonymous Coward · 2005-09-29 15:15 · Score: 0

Your facts are no match for our blind zealotry! Get the pitch forks, boys!
Re:This is going nowhere... by cpt+kangarooski · 2005-09-29 15:19 · Score: 1

whether it is legal to download music when you have a legitimate license to use that music (i.e., you already bought the CD), and whether in such cases it is legal for the uploader to upload it to you, since no new access to the music is created in the process

When you buy a CD in the store, you do not get a license. You just own a copy. Since copyright does not prohibit listening to music (as opposed to making copies, publicly performing the music, etc.) listening to the CD is one of the many things that you can do with it because you own it. You could also use it as a frisbee for the same reason.

This being the case, it is infringing to download it, and to upload it.

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:This is going nowhere... by NewYorkCountryLawyer · 2005-09-29 15:42 · Score: 1

Dear WebHosting Guy: You're missing the point. They don't HAVE "more information" with which to file a "restated complaint".

--
Ray Beckerman +5 Insightful
Re:This is going nowhere... by Anonymous Coward · 2005-09-29 15:46 · Score: 1, Informative

IANAL, but...

(b) the RIAA has proof in the form of actually downloading the file, either by themselves or through a representative. If (b) is the case, it either means that they also committed copyright infringement

First of all, you can't infringe on your own copyright, just as you can't "violate your own rights" or "steal from yourself." And while the RIAA may not itself own the copyrights in question, only the party who owns the infringed-upon copyright can file an infringement complaint, so don't expect to see record labels suing their own trade group anytime soon (I take that back, I can almost see situations where that could happen). In any event I'm sure the RIAA has some form of contractual agreement releasing them from any infringement complaints by their member companies.

or it means that a question I've been wanting to see an answer on for quite some time may arise from this case - namely, whether it is legal to download music when you have a legitimate license to use that music (i.e., you already bought the CD), and whether in such cases it is legal for the uploader to upload it to you, since no new access to the music is created in the process.

This is sort of like asking "if a person breaks the law but nobody is negatively impacted, did the person break the law?" The answer, of course, is yes, the law was still broken. "Since no new access to the music is created" is just a fancy way of saying "no sales were lost," which, again, is a philosophically important point, but doesn't change the fact that the act is (or may be) illegal.

An infringement of copyright occurs when a right that the copyright holder reserves, such as the right to redistribute the work, is enacted by a party from whom that right is reserved. When you own a copy of a copyrighted work, you own only the copy. The copyright still belongs to the copyright owner, and all rights that are exclusively reserved by the copyright owner remain reserved. Translation: owning a copy of a piece of music does not typically grant you redistribution rights to the music, except as permitted under Fair Use laws.

HOWEVER, as you "own" the copy, you are usually granted ownership rights associated with that copy, including the right to sell the copy or give it away. This is true insofar as music CDs are concerned, though it's not universally true. There are products you can buy that you are not legally allowed to resell, it all depends on the fine print. But, in the case of music CDs, this is why no one cares when you give away or sell, or let someone borrow, your CDs. But when you upload your music to others, you are in effect copying the work (your copy still exists on your hard drive, and every person who has downloaded the music constitutes an additional copy). This is illegal, because you (usually) don't have the right to redistribute the *music*. You can redistribute your COPY, but once you start effectively giving others copies of your (legally unique) copy, you are redistributing the copyrighted work, not your personal copy.

In theory if your copy of the music existed originally as a digital audio file, and whenever you upload it to someone you then delete your copy, repeat ad nauseum, you would not be violating the spirit of the law (though you might still be technically in violation because you're essentially just making a copy and destroying the original, which means you're still guilty of making a copy, something you're not allowed to do). However, this point is mostly irrelevant, because the record industry, wisely, doesn't offer their music in DRM-free digital file formats. It's in CD format, and by ripping the CD you are making a *new* copy of the work, as well as changing it to a new form (which has some legal implications that I'm not familiar enough with to speak of). Fair Use may permit this for personal use, since you have a certain amount of leeway to do what you want with your copy of the work, but if you give that ripped MP3 to anyone, regardless of a
Re:This is going nowhere... by Anonymous Coward · 2005-09-29 16:07 · Score: 0

Dear Ray,

Stop making us look like idiots on Slashdot.

Love,

Ty and Dan

P.S. Dan really has to pee.
Re:This is going nowhere... by ari_j · 2005-09-29 17:13 · Score: 4, Informative

Is there such a thing as a "please tell me wtf you are talking about" motion?

Yes, there is. The Federal Rules of Civil Procedure lay out the types of motions available. Rule 12 is the one we're dealing with here. I didn't RTFA, but a motion to dismiss for failure to state a claim is covered by Rule 12(b)(6). (Scroll down to "(b) How Presented" and find subparagraph (6).) Now, check out Rule 12(e), "Motion for More Definite Statement," which reads:
If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

Basically, "You have 10 days to tell us WTF you mean, or the case is dismissed."
Re:This is going nowhere... by Errandboy+of+Doom · 2005-09-29 19:00 · Score: 1

WebHostingGuy is basically right, we heavily utilize "notice pleading" under the Federal Rules of Civil Procedure: the complaint only needs to give the Defendant a heads up, a "btw - you're being sued."

But even if there's the tiniest chance this motion will get the case thrown out, you have to shoot for it. Victory for basically no money = awesome. To not take the chance, even if somewhat remote, flirts with malpractice.

The discovery period is the next stage before the trial, it's the big investigation part, and it allows all the specific allegations to become more definite. If there are no clear claims by the end of this second, investigative stage, then the Defendant can make another motion: a motion for summary judgment. Keep your eyes peeled for that one. If the RIAA still hasn't landed on any specific allegations, then the case will still be thrown out before the trial.

The real exciting stuff will come with any Rule 11 motions. Rule 11 is designed (in part) to punish lawyers and parties for strategic litigation. If the RIAA is just trying to harass/frighten teens and exploiting the chilling effects of frivolous claims here, Rule 11 has ways to punish them. It's sorta the equivalent of our old D&D house rule, "Don't Be a Dick." Rule 11 is hard to prove, but it could result in the RIAA getting slapped HARD, and cripple their willingness to push future lawsuits. Again, a chance I don't think anyone should pass up.

So while this motion probably won't be successful, it was still probably necessary. And don't panic, there's still plenty of time to get the suit kicked out of court and get the RIAA slapped by a judge.
Re:This is going nowhere... by Anonymous Coward · 2005-09-29 19:07 · Score: 0

12(e) motions are basically never granted except for averments of fraud and/or claims under certain shareholder lawsuits where the rules or statute require pleading with paticularity. Either way, the defendant would much rather persue a 12(b)(6) than a 12(e). A 12(b)(6) requires the judge to decide to give leave to ammend or not (See 15(a)), whereas 12(e) would automatically allow one to ammend.
Re:This is going nowhere... by Kythe · 2005-09-29 21:09 · Score: 1

Ray,
I've read your blog with great interest. Now, I'm not a lawyer, but I would imagine it's fairly rare when a case comes along that so blatantly pits heavy-handed bad guys against those who are barely capable of defending themselves. The last such one that comes to mind involved the tobacco companies.

Anyway, you guys are on the side of angels, here. The RIAA either needs to get evidence that people are actually infringing, or stop extorting money from the defenseless.

A few questions:

1) if the RIAA wanted to put together a decent case, could it actually download the files itself, or hire someone to do so, then file infringement based upon the files downloaded?
2) is there a chance of a class-action (or some other type of) lawsuit that would reclaim all the settlement money that's been extorted out of individuals by the RIAA?
3) can you forsee some sort of legislative effort to allow RIAA to bring successful copyright lawsuits against people based only on the evidence they now have? One which would withstand judicial review and not simultaneously open a huge can of worms?

--

Kythe
Re:This is going nowhere... by ari_j · 2005-09-30 03:31 · Score: 1

The question wasn't whether a judge would actually grant the motion, just whether such a motion existed. :)

Re:Exactly. I'm waiting for a case. by Pantero+Blanco · 2005-09-29 14:26 · Score: 5, Insightful

Technically, to be a martyr, he'd have to lose. Otherwise he's a hero, which is just about as good. :)

At Last.... by zappepcs · 2005-09-29 14:26 · Score: 5, Interesting

At last, finally, it comes down to "show me when and where and how they broke the law" instead of OMG, they have P2P software, they must have broken the law. Maybe the wildfires in CA are because of their exploitation of the world in general? Well, maybe not, but its about time someone made them prove illegal file sharing actually took place.

My opinion? The Internet is so big, so anonymous, so unstoppable... to try to stop it is just ignorant. Litigation in these cases is so much like trying to stop the tide from coming in with buckets. Get over it, your business model is gone... nobody likes you... start selling your product with at least 20th century means. Joining the 21st century would be better.

When will the world learn that TCP/IP and the Internet are far more than they know how to deal with?

It gives me more glee to see the *AA in a bit of trouble than it does to see MS losing ground in their marketplace...... I don't even care how much trouble, the fact that they have to prove something is just a very good thing. and it is about time.

--
Support NYCountryLawyer RIAA vs People

Re:At Last.... by analog_line · 2005-09-29 16:18 · Score: 1

My opinion? The Internet is so big, so anonymous, so unstoppable... to try to stop it is just ignorant.

Your opinion seems to be based upon as much ignorance. The Internet is very much stoppable. Governments could very easily make Internet access illegal merely by passing laws. Data lines can be cut with a nice heavy pair of scissors. Governments are VERY powerful. People seem to forget this in this day and age, because the US government dances to a corporate tune these days. While outlawing the Internet might be a stupid move in the long run, it is VERY easy for any government to do it, and enforcing it isn't that difficult. At worst it's a whack-a-mole game. Daring a government to do something about what you're doing is a good way to make sure that they do, and double sure you're not going to like what they do.

start selling your product with at least 20th century means

I wasn't aware that the Compact Disc was invented in the 19th century. Or the 8 track, magnetic audio tape, or vinyl records. I haven't seen any wax cylinders or aluminum foil drums on sale in the record stores lately. This "iTunes Music Store" and "Napster" stuff must just be figments of my imagination, too.
Re:At Last.... by zappepcs · 2005-09-29 16:33 · Score: 0, Flamebait

"While outlawing the Internet might be a stupid move in the long run, it is VERY easy for any government to do it, and enforcing it isn't that difficult."

You fool, go ahead, stop commerce, stop the Internet, try it... you obviously have no clue that you live in the empire of the doller.... pitty you.

You obviously paid out for $250/plate dinners for political people that never got anywhere. You have no clue what commerce in the real world is.

The Internet has enabled commerce, both in North America and the world that the affected governments could not have accomplished. Yes, you think isolationist, keep that up, and you will be one of the people that my tax dollars are used to support. Get off your face and realize that the world is small these days. You can't be isolationist, unless you want to wither and die. Commerce happens on a global scale now, the Internet is global, and its unregulated... plus (read this next part slowly so you understand) its functioning better and more efficiently than any government on the face of the earth. Free trade actually works, when its actually free....

Your belief in certain people to rule how your business is run is absolutely foolish. Business runs best when there are no restrictions, or government subsidies of certain industries... Just let one airline fail and the rest will soon be in a boon situation... everybody eventually benefits. Arggghhh I so dislike when you 'special' people think you know how to run the global economy by not participating in it.

geeez, can we get a 'fsck you' here?

--
Support NYCountryLawyer RIAA vs People
Re:At Last.... by Anonymous Coward · 2005-09-30 02:07 · Score: 0

you obviously have no clue that you live in the empire of the doller
I, for one, welcome our new doller overlords...
What the heck is a doller?
Re:At Last.... by Phisbut · 2005-09-30 02:10 · Score: 1

The Internet is very much stoppable. Governments could very easily make Internet access illegal merely by passing laws. Data lines can be cut with a nice heavy pair of scissors.
True, but if Bush shuts down the Internet, he won't be able to use MapQuest or Google Maps anymore to figure out where the hell Afghanistan or Iraq is...

--
After 3 days without programming, life becomes meaningless
- The Tao of Programming

Well, this is just silly. by doublem · 2005-09-29 14:26 · Score: 2, Funny

The RIAA accused them, so they MUST be guilty!

The RIAA has whole teams gathering evidence. They wouldn't accuse an innocent person.

--
"Live Free or Die." Don't like it? Then keep out of the USA

Re:Well, this is just silly. by E8086 · 2005-09-29 14:50 · Score: 1

Yes, they have teams of monkeys who would have a better chance of rewriting A Tale of Two Cities then generating reliable evidence.
Monkey #1 go get a list of IPs owned by an ISP serving a low income neighborhood
Monkey #2 pick X from the list
Monkey #3 here's a list of our most popular songs, pick X dozen
Monkey #4 make up a time stamp to be "generated" by our tracking software

There's a thing called reasonable doubt and my doubt is becoming less resonable with every RIAA lawsuit where I don't see some reasonable proof. Yes, there are many guilty people, but the RIAA is doing a bad job of producing any proof I'd believe. Come on now, downloading and uploading and distributing information is a little unspecific, sounds a lot like what I'm doing now. My browser sent or "uploaded" a request to slashdot.org, then received or "downloaded" this posting, when I hit submit my comments will be "uploaded" amd "distributed" for all to see.

RIAA: "yeah, so ahh um we think these people are using some software that we think could possibly be used to "pirate" material that we might own the copyright to?

--
F7 doesn't work, ignore spelling and grammar
Re:Well, this is just silly. by jonfr · 2005-09-29 15:24 · Score: 0

" The RIAA accused them, so they MUST be guilty!

The RIAA has whole teams gathering evidence. They wouldn't accuse an innocent person."

Tell that to the dead granny they did sue last year (or was it 2003 ?). I wonder who dead pepole defend them self in court....

(Fact: Dead pepole don't defend them self in court, for obivus reasion..)
Re:Well, this is just silly. by gstoddart · 2005-09-29 15:38 · Score: 1

The RIAA accused them, so they MUST be guilty!

The RIAA has whole teams gathering evidence. They wouldn't accuse an innocent person.

Man. That's like the prosecutorial equivelant of the Chewbacca defence. And it's shockingly accurate to the way they seem to do their cases.

--
Lost at C:>. Found at C.
Re:Well, this is just silly. by Anonymous Coward · 2005-09-30 02:48 · Score: 0

--
I tell it like it is. Even if pepole hate me for it.

Unfortunately spelling it like it is seems to be beyond you...

Re:Exactly. I'm waiting for a case. by Anonymous Coward · 2005-09-29 14:27 · Score: 0

You wouldn't expect anything less than death from the RIAA when their valuable intellectual property has been stolen.

Finally by the-amazing-blob · 2005-09-29 14:28 · Score: 1

Nice to see people noticing that accusing tons of people with broad statements is bad. :D

a question by heeeraldo · 2005-09-29 14:28 · Score: 0

if this goes through, would it mean that the lawsuits filed using the same language would also have to be dropped, or would that depend on the other lawyers citing this precedent?

Re:Exactly. I'm waiting for a case. by Coniptor · 2005-09-29 14:30 · Score: 3, Insightful

In long past, yes I believe so.
I don't think death would require status as a martyr in todays age.
If they are fined and so heavily burdened to the point of "cruel and unussual"
punishment for something petty dumb and stupid according to a absurd ruling
it could work. But only if the public at large left and right are condeming
the bought finding and those behind it and calling for people to "swing."

Not a chance. by glrotate · 2005-09-29 14:32 · Score: 1

8a - "plain and simple".

Re:Ye ole cowboy by Pantero+Blanco · 2005-09-29 14:33 · Score: 1

Well, if you actually gave them genuine reason to believe you were violating copyrights, winning the case wouldn't make as much of a point as if they had sued you using something vague and pointless, like amount of data transferred over a p2p network.

Discovery is the proof of the pudding by Anonymous Coward · 2005-09-29 14:34 · Score: 0

We should all be familiar with the SCO case, should we not? We have seen judges grant an obviouly vexatious litigant all the discovery it wants. In other words, the plantiff gets to examine all the evidence the defendant may be holding, no matter how flimsy the case. The bar the litigant has to clear to get discovery could be described as rather low, could it not? You are right, this motion is going nowhere. Bah, humbug! A pox on the whole damned system.

The End of "blanket" accusations? by thatedeguy · 2005-09-29 14:35 · Score: 2

Could it be? The RIAA has gotten away with these silly, "you've been downloading, so it must be illegal" accusations quite a bit over the last year. Maybe it is finally time for the users to finally stand up and say "Oh yeah? Prove it!"

--
A Linux flavor for every Month!

RIAA is just being lazy by andrewman327 · 2005-09-29 14:36 · Score: 1

This is a pretty bad case of the RIAA being lazy. I'm sure that they could have provided a list of specific activities, but that would require many more man-hours of work per case. The RIAA is trying to scare people en masse and it appears that they care more about quantity than quality of cases.

--
Information wants a fueled airplane waiting at the hangar and no one gets hurt.

Re:RIAA is just being lazy by NewYorkCountryLawyer · 2005-09-29 15:45 · Score: 1

Wrong, their lawyers are anything but lazy. They don't HAVE evidence of specific activities, that's why their cases are improper.

--
Ray Beckerman +5 Insightful

Copyright law in general by Council · 2005-09-29 14:36 · Score: 2, Interesting

There are so many issues like this -- there was that questionable BigHack paper about the illegitimacy of digital copyright in the first place, and so many questions of intent that really haven't been addressed. I'm glad to see that . . . you know, I don't care right now.

I know it's a big deal, freedom of speech and information in the digital age, but sometimes I just get tired of it all. I'll care again tomorrow, probably. But right now . . .

http://www.xkcd.com/drawings/copyright.jpg

Anyone wanna go out for a drink?

--
xkcd.com - a webcomic of mathematics, love, and language.

File contents by Scrithy · 2005-09-29 14:40 · Score: 4, Interesting

I've heard that they give defendants a list of files...but how do they know the contents of these files? If I upload something called yesterday.mp3 how do they know it isn't a recording of me singing the song?

Re:File contents by DoubleRing · 2005-09-29 14:53 · Score: 1

I've heard that they give defendants a list of files...but how do they know the contents of these files? If I upload something called yesterday.mp3 how do they know it isn't a recording of me singing the song?

Well, if you're doing that, you're still doing copyright infringment. You're using the lyrics and melody of "Yesterday". You'd be caught by the this material is not distributable in any form...blah blah blah clause.

--
Before you die, you see DoubleRing...
Re:File contents by 6*7 · 2005-09-29 14:58 · Score: 1

"me singing the song?"

The song Yesterday as is _THE_ song Yesterday by the Beatles?

If it is the one by the Beatles you did get permission to distribute your version of Yesterday from mr. Jackson, didn't you?
Re:File contents by ohmypolarbear · 2005-09-29 17:34 · Score: 1

In that case, suppose he wrote his own song, titled it "Yesterday" and happened to save it to his 1337 up104d3r folder. What proof does the *IAA/M. Jackson have that the file in question contains the song in question? If they download the file via something like BitTorrent to find out, and it's really Scrithy's new song, wouldn't they now be violating his copyright to his IP?

I believe Scrithy's real question is: how do they know that the suspiciously-named files have content that would constitute a copyright violation?

Corollary: If they're downloading everyone's music collections to check the contents, the RIAA must have a massive server farm somewhere storing all of their "evidence"... anyone want to find it for me? ;)
Re:File contents by TractorBarry · 2005-09-30 00:04 · Score: 1

Now that gives me an idea...

How about recording yourself saying (in a stupid voice) "Oooh... This is a very good song and I like it a lot" as a WAV file (insert other random daft stuff as you see fit). Now use a WAV Editor to copy & paste this out to about 3 minutes before converting the resulting "meisterpiece" to MP3 (using high quality VBR of course :)

Next copy the resulting file into a shared folder multiple times and call the files things like "Beatles_Yesterday.mp3" (i.e. build up a BIG library of files with "infringing", "illegal" names) Next simply wait for the *AAs threatening letter, go to court and have a good laugh when you play back the offending "songs" to the jury.

Of course you'll also piss off a load of P2Pers but if you name your files after the crappy "manufactured artistes de jour" (i.e. "Britney" etc.) who cares ?

The *AA are idiots. The world has changed and they can no longer control the flow of information. The genie is out of the bottle and is not going back in. Watching their antics always makes me think of King Canute.

--
Sky subscribers are morons. They pay to be advertised at !
Re:File contents by Anonymous Coward · 2005-09-30 00:59 · Score: 0

Actually, let's go a step further.

Make a recording, the first part of which is "I grant permission for anyone other than employees, family members of an employee, etc. [basically, anybody associated with ... it's the list of people that the fine print of contests always say are not allowed to participate in the contest] of the Recording Industry Association of America (RIAA) or the Motion Picture Association of America (MPAA) to distribute, listen to, etc. this recording. I expressly prohibit any employee, family member of an employee, etc. of RIAA or MPAA from distributing, listening to, etc. this recording."

Then record a commentary/critique of the song in question, with clips from the song included where appropriate, to try to fall under fair use.

Now if the RIAA or MPAA try to sue you for copyright infringement/piracy in your use of the song, you can countersue them right back for violating your copyright and bring the countersuit to the attention of the media.
Re:File contents by MooseTick · 2005-09-30 02:38 · Score: 1

I can't believe someone hasn't tried something like that already. They could load up a PC with 1000 mp3 with popular song titles. They could all be the same file of that same person reading the Constitution. When the RIAA scans the network and sees that person sharing 5000 mp3s they will send them a notice. The person can then fight it and say they were sharing nothing that violated copyrights. When the PC is submitted to court the RIAA will look foolish. After that, the RIAA will have to do a lot more legwork to be sure someone is a legitamite violator and not someone screwing with them.

It would be like me giving away flour on the street corner and getting busted for distributing cocaine.

--
Ninjas don't carry tic tacs
Re:File contents by mei_mei_mei · 2005-10-03 21:26 · Score: 1

Good idea!

I for one... by rock217 · 2005-09-29 14:40 · Score: 1

Welcome our inept quotation mark using overlords... Seriously, preview button""

--
Wah Sig!

You Would Think ... by hagrin · 2005-09-29 14:41 · Score: 1

... that if you're going to make a blog and then post your picture on it as a law firm you would:

1) Make sure your jacket and tie look slightly better than a hobo trying on donated formal wear at the local Salvation Army and
2) That you have some type of correct spacing when taking the picture.

Just from the picture alone, I wouldn't hire them. Their transparent publicity stunt is going to work due to the Slashot effect of users here who think they should be able to download/upload/share anything without it being "stealing", but you would think that they would at least link to a professional corporate site and not a free blogger site with a half-assed picture.

--
Hagrin.com

Re:You Would Think ... by Dachannien · 2005-09-29 14:52 · Score: 1

Holy shit, a real law firm. Linked right underneath their half-assed picture, no less.
Re:You Would Think ... by Anonymous Coward · 2005-09-29 15:19 · Score: 0

Dear Hagrin,

Sorry we don't live up to your standards, but we're lawyers, not (1) models, (2) haberdashers, (3) web site designers, or (4) PR people.

We put up the blog to give information to people who are being sued, and to other lawyers who are willing to fight back against the RIAA.

By all accounts, people are finding our blog very helpful.
Re:You Would Think ... by NewYorkCountryLawyer · 2005-09-29 15:28 · Score: 1

Dear Hagrin, Sorry we don't live up to your standards, but we're lawyers, not (1) models, (2) haberdashers, (3) web site designers, or (4) PR people. We put up the blog to give information to people who are being sued, and to other lawyers who are willing to fight back against the RIAA. By all accounts, people are finding our blog very helpful.

--
Ray Beckerman +5 Insightful
Re:You Would Think ... by hagrin · 2005-09-29 15:50 · Score: 1

Well, when you make a blatant attempt at self-promotion over "filing a motion", don't expect me to jump to the skies in your support. Go get yourself a verdict or summary judgement in your favor and then the Slashdot community will rejoice in your efforts. In fact, I'll be the first one to tout how impressive your victory is to all my friends (especially with me being a NY resident). I just can't see how the filing of a motion (whether by your firm or some other) for dismissal based off your notion of inadequate evidence that is not going to withstand the scrutiny of the courts being newsworthy is beyond me I guess.

To be honest, it's not your fault. The fact that an editor found a motion filing "news worthy" just goes to show how Slashdot has fallen off.

--
Hagrin.com
Re:You Would Think ... by NewYorkCountryLawyer · 2005-09-29 16:36 · Score: 4, Interesting

It's not about self promotion. It's about grassroots organizing on the internet.
It's about getting the word out to (a) other lawyers and (b) other filesharing lawsuit victims, that there are things they can do.
The RIAA is organized. All of its cases nationwide are handled by a single firm located in Kansas City, Missouri.
The people it is suing, and their lawyers, are scattered all over, and until my blog haven't had a way of getting centralized information to each other, or even of knowing of each other's existence.
If you think lawyers can get rich representing kids with file sharing accounts, or their moms, you are sadly mistaken.
I agree with you that getting victories (or sustaining defeats) will be the most important news, but until now there have been almost no contested cases, so there have been almost no victories or defeats, only giving up.
In that kind of world, the fact that people are fighting back -- and what they are fighting with -- does happen to be news.
Your statement that the motion "is not going to withstand the scrutiny of the courts" is curious, to say the least. I wonder what knowledge of copyright law you have, superior to that of the courts which we cited, that you are basing that on. In the Santangelo case the RIAA's 500+ lawyer firm could not find any authority that contradicted the arguments we have made. Interesting that you can.

--
Ray Beckerman +5 Insightful
Re:You Would Think ... by hkmwbz · 2005-09-29 21:47 · Score: 1

If you are really one of the guys behind this blog, then I applaud your efforts, and I certainly hope you will gain massively from it, with more customers from positive PR or whatever. I see nothing wrong what so ever in fighting for individuals who would otherwise not be able to fight, and gain something from it.
I bet you have the support of most of the rational individuals on this site, and as long as you are doing the right thing, you deserve credit for that.

--
Clever signature text goes here.

Civil Disobedience by Anonymous Coward · 2005-09-29 14:41 · Score: 0

Quote: "You simply can't decide that you don't have to follow the law because you 1) don't like the law..."

i would have to disagree.... alot of the country thought at one time that black folks should ride in the back of the bus, drink from separate water fountains, etc. until one girl decided to break the law...

Re:Civil Disobedience by gfody · 2005-09-29 15:09 · Score: 2, Informative

dude, ghandi was teaching civil disobedience waay before rosa parks had her ego trip. some people take "black history" way to literally.

--

bite my glorious golden ass.
Re:Civil Disobedience by ari_j · 2005-09-29 16:41 · Score: 1

Just remember: The distinguishing feature of civil disobedience is that you get arrested.
Re:Civil Disobedience by aussie_a · 2005-09-29 17:51 · Score: 1

Sorry, grandparent should have specified "you simply can't decide that you don't have to follow the law and expect to get away with it because you 1) don't like the law..." Yes, in the past people have committed civil disobediance, but they had to pay the consequences of those actions long before the laws were changed. And they did so willingly. They didn't hide in their parents basement.
Re:Civil Disobedience by Anonymous Coward · 2005-09-29 18:13 · Score: 0

That's passive civil disobedience, Ghandi-style; the object is to cause a public outcry at the number and type of people arrested/charged/punished. However, America has also seen - during the Prohibition - active civil disobedience, in which the object is to make the enforcement of the law ludicrously difficult; here, the object is to avoid being arrested, and to make the action so commonplace the law becomes largely irrelevant. Both are viable protests, working against a different model.
Re:Civil Disobedience by Jim_Callahan · 2005-09-29 22:29 · Score: 1

You're referring to civil disobedience. The thing you're quoting is referring to simple criminal activity. You can tell because of the phrase "don't have to follow the law", implying that you feel you should get away without a penalty just because you're in the right, or whatever. Civil disobedience, on the other hand, does precisely nothing unless its adherents pay the full legal penalty for their actions, as the massive amount of resources that a government must spend on enforcement is what actually drives the change in the lawbooks. So, if this were a case of civil disobedience, the tone wouldn't be 'oh, i should get off with a slap on the wrist, file-sharing isn't really that bad', it would be more like 'yeah, I shared (x gigs) of copyrighted material, listed here. Go ahead, fine me, you heartless bastards, I don't need to afford a mortgage anyhow'.

Basically it's the 'whiny bitches don't inspire massive amounts of people to enact social change' principle. People like Ghandi, who cooperate fully with the authorities, even to the extent of aiding their own prosecution by admitting their disobedience up front, are another matter entirely, and frankly are quite absent from this whole file-sharing situation. Being a Martyr is expensive, and thus they don't pop up generally unless there's REAL opression going on.

--
...it's really a sad day for America when we require a goddamn ACT OF CONGRESS to make our DVD players work properly. ~
Re:Civil Disobedience by AK+Marc · 2005-09-30 06:46 · Score: 1

Then what was the type of civil disobedience for Prohibition? That was such that the government also realized the error of their ways and repealed it. But there, the people believed the law wrong and worked hard to violate it and not get caught, much like P2P now. Back then, the government eventually gave up, made it legal, and regulated it for a little "sin tax".

Those that tossed tea into the harbor didn't confess and ask to be arrested, either. No, I think that this country has used the "break the law and hide" disobedience as much or more than "break it and get arrested."

--
Learn to love Alaska
Re:Civil Disobedience by EzInKy · 2005-09-30 11:06 · Score: 1

Yes, in the past people have committed civil disobediance, but they had to pay the consequences of those actions long before the laws were changed. And they did so willingly. They didn't hide in their parents basement.

Actually, they did hide in basements.

--
Time is what keeps everything from happening all at once.

Strike Two! ....[a hush falls over the crowd] by FFFish · 2005-09-29 14:43 · Score: 1

Will they swing again, or they gonna go for the easy bunt? Bases are loaded, tension is high... will this be the one that makes or breaks their game?

--

--
Don't like it? Respond with words, not karma.

Re:Strike Two! ....[a hush falls over the crowd] by TCQuad · 2005-09-30 01:34 · Score: 1

Will they swing again, or they gonna go for the easy bunt? Bases are loaded, tension is high...

You almost never bunt with two strikes, since a bunt rolling foul would be a third strike. Plus, bunting with the bases loaded makes no sense since it would be a force play at home. Squeezes are nearly impossible on force plays, where the catcher only needs to touch the plate, but are more successful in the absence of a force, when the catcher needs to tag the incoming runner.

Sorry. I have very little to say about the article itself, but your analogy was kind of bugging me.
Re:Strike Two! ....[a hush falls over the crowd] by FFFish · 2005-09-30 04:57 · Score: 1

Obviously, I don't play or watch baseball enough to make a good analogy! Sorry.

--

--
Don't like it? Respond with words, not karma.

A strategy for RIAA by Ogemaniac · 2005-09-29 14:45 · Score: 1

Before they sue anyone, simply have one of their employees download a few songs to their private PC from the defendant's system.

There you go. Actual distribution. Actual copyright infringment. Known date and time.

Re:A strategy for RIAA by deathy_epl+ccs · 2005-09-29 15:18 · Score: 1

... and then you can also threaten the employee if he doesn't keep his performance up.
Re:A strategy for RIAA by dagr8tim · 2005-09-29 15:46 · Score: 1

Before they sue anyone, simply have one of their employees download a few songs to their private PC from the defendant's system.
There you go. Actual distribution. Actual copyright infringment. Known date and time.
I'm no legal expert, but that sounds like entrapment to me.

--
"Does your computer have IP on it?"
Re:A strategy for RIAA by Bodysurf · 2005-09-29 16:22 · Score: 1

>Before they sue anyone, simply have one of their employees download a few songs to their private PC from the defendant's system.
>There you go. Actual distribution. Actual copyright infringment. Known date and time.

I'm no legal expert, but that sounds like entrapment to me.

This is a civil trial -- there is no "pleading the 5th ammendment", no "court appointed attorney if you cannot afford one", and no "guilty beyond reasonable doubt."

And there is no entrapment.

Only law enforcement or government agents can entrap. That John Q Public induced/encouraged Suzy Q Public to commit a crime is no defense for Suzy Q Public.

And even then, entrapment can only be claimed during a criminal trial, not under tort law.

Sucks, huh?
Re:A strategy for RIAA by Anonymous Coward · 2005-09-29 19:13 · Score: 0

Isn't that called entrapment? And anyway, I don't think the judge would think they have much of a case.
Re:A strategy for RIAA by balloonhead · 2005-09-30 01:51 · Score: 1

If they own the copyright, then they are authorised by themselves to make the download. If they get someone else to do it, they are still acting as their agent. They would have to monitor someone else make a transfer.

--
This idea was invented by Shampoo.

Re:Filesharing in Linux by Anonymous Coward · 2005-09-29 14:47 · Score: 0

Use synaptic.
Synaptic is easier than setup.exe.
With synaptic you can install several hundred programs at once.

MOD PARENT UP by TheComputerMutt.ca · 2005-09-29 14:48 · Score: 0, Offtopic

I didn't meant to post that. lOLOMFGI'MUSINGAIMFORTHEFIRSTTIMEMODMEDOWNASTROLLO RSPAMORWHATEVER ...

Lameness filter encountered. Post aborted!
Reason: Don't use so many caps. It's like YELLING. ...

This should be better.

Re:Ye ole cowboy by MHobbit · 2005-09-29 14:48 · Score: 1

Yet, it may actually inspire people and open up their eyes to see that the RIAA is really just looking for settlement fees (that'd they'd receive) and striking FUD into everyone... People would then realize "oh hey, the RIAA is just making claims against a random bunch of people based on guesses".

--
Debugging? Klingons do not debug. Bugs are good for building character in the user.

boycott!! by Anonymous Coward · 2005-09-29 14:49 · Score: 0

since all these bullshit lawsuits ive made a personal boycott againast buying new CD's or DVD's just because i know id be putting my hard earned money in the pockets of these assholes that have nothing better to do but waste the governments time and tax money on these frivilous lawsuits

So basically by Neo-Rio-101 · 2005-09-29 14:52 · Score: 2, Interesting

So basically it appears to me that this means that putting a file in a directory, available to whoever is looking to download the file, is not essentially breaking the law if it cannot be proven beyond reasonable doubt that the file was downloaded or disseminated in any way. Furthermore even if it was, then it is not the uploader's fault. By simply placing the file in an available directory it does not constitute illegal copying (assuming that the uploader has a right to the file in the first place)

They'll have a hard time trying to prove intent as well. Simply by placing a file in a directory does not assume intent or conspiracy to commit infringement any more than leaving a Harry Potter book you own lying around so someone can steal it and scan the pages.

It seems that the burden of piracy is then on the downloader... but even then the downloader has no real way of knowing what they are downloading - and if it is a legit file or not.

--
READY.
PRINT ""+-0

Re:So basically by cpt+kangarooski · 2005-09-29 15:28 · Score: 2, Informative

So basically, you don't really know that much about copyright, do you?

First, civil actions for copyright infringement use a preponderance of the evidence standard, not beyond a reasonable doubt. Second, an uploader not only engages in reproduction (because copies are made within their computer) but also in distribution, which does occur if someone downloads the file. Third, copyright infringement is a strict liability offense; intent is irrelevant. It might play a factor in the amount of damages, but you can infringe a copyright accidentally and still be sued and found liable. Fourth, what the hell do you mean, 'conspiracy'? Again, it's a civil action. Fifth, going back to intent, it doesn't matter if the downloader doesn't know for sure what he's getting; if he makes a copy (as he must when he downloads) then he's liable.

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:So basically by Kjella · 2005-09-29 15:42 · Score: 3, Informative

Third, copyright infringement is a strict liability offense; intent is irrelevant.

Intent is irrelevant if you performed the act, but what if you didn't? I'll take the only other strict liability issue I can remember, fucking minors. It doesn't matter if you intended to or not. But intending to or conspiring to fuck a minor is also illegal (cops pick up peeps from chatrooms on that). Because as far as I know, the RIAA has no evidence that a copyright infringement did actually occur. Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine). Yes, the file is available for anyone to download. Did anyone actually do it? The best they can shoot for is intent to violate copyright law.

Kjella

--
Live today, because you never know what tomorrow brings
Re:So basically by cpt+kangarooski · 2005-09-29 16:23 · Score: 1

Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine).

Why wouldn't that work? I haven't heard of courts refusing to consider that to be infringing. Got a cite?

The best they can shoot for is intent to violate copyright law.

Which isn't an offense, so they're not shooting for it at all. Probably they can find some evidence of infringement during discovery, or at least think they can.

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:So basically by sullyfish · 2005-09-29 16:44 · Score: 1

Of course they downloaded it from you. Why would that not be legal? They own they rights to the music. Say you are robbed and they steal your VCR. Two weeks later you see a pile of stuff with a free sign on your neighbors porch. It is not illegal for you to take it..... then you realise it is YOUR VCR. You can prove your neighbor put it out there. He is guilty of possesion of stolen property.
Re:So basically by Kjella · 2005-09-29 17:10 · Score: 1

Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine).

Why wouldn't that work? I haven't heard of courts refusing to consider that to be infringing. Got a cite?

Sorry, I don't got a cite but I'm trying to apply logic (never a good thing when dealing with the law). I can see it being taken as proof that the file was authentic and actually available for download (some share files with ports closed, fake clients etc.), but I can't see it be accepted as counts of infringement.

RIAA: Let's try a download... hey, we got an infringer, that's one count.
RIAA: Ok let's try that one more time. Hey, still works. Two counts.
RIAA: Third time is the charm. Hey what do you know, three counts.
...
RIAA: We'd like to file suit for hundred counts of copyright infringement, your Honor.

If that is the case, where do I apply to work at the RIAA? I can hear the cash registers chiming so hard, they're about to burst. I can't understand anyone being held liable when the recipient is the sole and direct cause of that instance of liability (read: that specific download). If I'm so sadly mistaken, I'd really like a lecture on liability law.

Kjella

--
Live today, because you never know what tomorrow brings
Re:So basically by Neo-Rio-101 · 2005-09-29 17:13 · Score: 1

an uploader not only engages in reproduction (because copies are made within their computer) but also in distribution, which does occur if someone downloads the file.

Which is what I said, but you're making it sound like I'm saying something different.
Assuming that the uploader actually has rights to the copyrighted file in question (let's say for arguments sake that the uploader downloaded something from itunes and neglectfully configured a P2P application to share the itunes download). Your second point assumes that somebody actually downloads the shared file, and you have verifiable evidence.

but you can infringe a copyright accidentally and still be sued and found liable
...but not without proof, which is the issue at hand here. The question is who is responsible. Perhaps it's safe to say that the uploader is negligent because of the P2P configuration and deserves to get sued though.

--
READY.
PRINT ""+-0
Re:So basically by cpt+kangarooski · 2005-09-29 17:22 · Score: 5, Informative

This just brings us back to your needing to get more familiar with the law. All this stuff is covered in 17 USC 501 et seq.

For copyright infringement, there are a couple of different remedies: injunctive relief, damages, seizure and destruction, and costs and fees.

Injunctive relief (i.e. a court order whereby the infringer is told to stop infringing) has no connection with whether there was one infringement or a thousand. A plaintiff is satisfied with a single injunction.

Damages are calculated one of two ways, at the copyright holder's option. First, either the actual damage caused to the copyright holder, plus the net profits of the infringer. In your typical downloading case, these are too negligable to care about. So the second option is statutory damages. There, the infringer has to pay an amount set by the court, within a range set by the statute, and which goes up or down depending on whether the plaintiff can prove that the infringement was willful or the defendant can prove that the infringement was in good faith. But this amount is determined, not per infringement, but per work infringed! If you upload one copy of an mp3 or a thousand copies of the same mp3, it's all the same. The statutory damages can only increase in you're infringing multiple works.

Seizure and destruction are usually more aimed towards professional infringers. The copies they've made, and the tools they've made them with can be confiscated and destroyed. This is unlikely to be applied to John Filesharer, however.

And finally court costs and reasonable attorney fees can be imposed on the loser, if the court wants.

So there's no way for the RIAA to increase the amount of damages just by downloading more than once. Now, if there are multiple works being shared, then that can increase the damages spectacularly, but it's difficult to see why that's an inherently bad thing. After all, RIAA would _not_ be the party responsible; it's the defendant that put up all those different files for download.

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:So basically by Kjella · 2005-09-29 17:51 · Score: 1

If you upload one copy of an mp3 or a thousand copies of the same mp3, it's all the same. The statutory damages can only increase in you're infringing multiple works.

Well, I admit I've misread this section to be per infringment, not per infringed work. None the less, I feel you're still "making your own pot of gold". It's like renting out a car to someone, making them liable for damages during the rental, then smash up the car to cash in on damages. The fact remains that unless they had actively caused an infringment to happen, it is possible that there would be no infringement at all.

--
Live today, because you never know what tomorrow brings
Re:So basically by cpt+kangarooski · 2005-09-29 17:56 · Score: 1

Perhaps it's safe to say that the uploader is negligent because of the P2P configuration and deserves to get sued though.

Sigh.

Negligence is irrelevant. For a strict liability offense all that matters is that you did it. No one cares what was going through your head, or whether you breached a duty of care, or anything. If you do it, that's it, end of story.

The only way you can avoid liability for this sort of thing is to show that you didn't do it. For example, if you can prove -- and this would be quite difficult in this context -- that someone else set up your computer to share the files, then you'd be off the hook. But 99.44% you are not going to be able to get away with infringement based on some sort of involuntariness defense, unless you're in unusual circumstances (e.g. you're an ISP that can't rely on the 512 safe harbor).

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:So basically by cpt+kangarooski · 2005-09-29 18:05 · Score: 1

None the less, I feel you're still "making your own pot of gold". ... The fact remains that unless they had actively caused an infringment to happen, it is possible that there would be no infringement at all.

This is not true, due to the nature of the infringement.

The offense here is that the uploader distributed the files. It doesn't actually matter who is on the other end of the distribution. They are not allowed to distribute copies to anyone. Not even the copyright holder.

The infringer can't claim that he was permitted by the copyright holder to do what was otherwise an infringing act, as he (pretty certainly) had no idea as to the identity of the person on the other end. He was content to share the files with anyone, and it's just his bad luck who he turned out to do it with.

Just because an unknown party asked him to infringe (by distributing) doesn't mean that the infringer is not responsible when he does it. No one made him, and it's flat-out illegal. He is expected by the law to refuse to upload. When he uploads, he can get in trouble.

I have plenty of beefs with the current law, as we all do, but this is not one of them. It's fair enough.

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:So basically by Kjella · 2005-09-29 19:07 · Score: 1

"unless they had actively caused an infringment to happen, it is possible that there would be no infringement at all."

This is not true, due to the nature of the infringement.

The offense here is that the uploader distributed the files.

You're operating under the assumption that there would be a distribution. Granted the odds are pretty good, but it is not certain. Without the copyright holder causing a distribution, there could be zero uploads, zero distributions, zero infringements. How could that not be true? If I move a copyrighted file into my shared folder and out again five minutes later with no transfers, what law have I broken?

Now let's assume instead that during those five minutes, the copyright holder downloaded a copy. We'll discard all other transfers since the copyright holder has no knowledge or evidence about them. Yes, he made me an offer to do something illegal and I (well, my computer) accepted. Unless he had asked me to do it, nothing would have happened. Granted, I could have rejected to send him the file as well, but no infringements happens without his action. That makes the copyright holder's actions the cause for an infringement and a liability where there otherwise would be none. And I still think it's wrong to be able to cash in on a liability you create yourself, even if you're using someone's dishonesty to do it.

--
Live today, because you never know what tomorrow brings
Re:So basically by cpt+kangarooski · 2005-09-29 19:36 · Score: 1

Without the copyright holder causing a distribution, there could be zero uploads, zero distributions, zero infringements.

And? Distributing to the copyright holder, at the copyright holder's request, is still distribution, and therefore infringement. Why should it matter who's on the receiving end? That's not part of what constitutes the offense.

It's similar to drug busts. It's illegal to sell drug A. If you sell it to an undercover policeman, you're likely to get arrested, prosecuted, and convicted for it. The police did not force you to break the law. They merely provided an opportunity for you to do so of your own free will.

Basically all that's happening is that the copyright holders are asking the uploaders, 'will you break the law by sending this file to me?' and getting a positive response, with the file to prove it. The copyright holder is hardly cashing in on anything; they're identifying infringers in a very direct manner.

I really don't think you'll get far with an argument that boils down to 'It's not fair to catch me breaking the law when I did so right in front of you at your request.'

Really, why should illegal activity be tolerated when it's blatantly obvious to investigators and not coerced in any way? People that are actually law-abiding wouldn't do this no matter who asked.

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:So basically by Kjella · 2005-09-29 20:39 · Score: 1

People that are actually law-abiding wouldn't do this no matter who asked.

Never underestimate people's incompetence with computers. I'm sure there's people clueless enough out there to not even realize they're sharing files. But that is a completely different discussion, and this one was long enough as it is :)

--
Live today, because you never know what tomorrow brings
Re:So basically by fyoder · 2005-09-29 22:42 · Score: 1

They'll have a hard time trying to prove intent as well. Simply by placing a file in a directory does not assume intent or conspiracy to commit infringement any more than leaving a Harry Potter book you own lying around so someone can steal it and scan the pages.
Actually, having an application that acts like a file server responding to requests for things would be more like sitting in a booth where people can come up and say "Do you have Harry Potter and the Philosopher's Stone?" then you say, "Yes, I do", then they say "Give me a copy", then you give them a copy.

--
Loose lips lose spit.
Re:So basically by Vegeta99 · 2005-09-30 00:14 · Score: 1

Illogical argument. This is INTELLECTUAL property, not REAL property. If I went to the store and bought a VCR your company made, and I put it into a xerox machine and made copies of it for the world, and you took one for a backup, I DID NOTHING WRONG. That is, you're already allowed to have a copy, and since you can't prove I gave any copied VCR to anyone who DIDN'T have a VCR license, you can't prove I did anything wrong.
Re:So basically by sullyfish · 2005-09-30 10:29 · Score: 1

Huh?
A xeroxed copy of a VCR is worthless and cannot be used for anything so no one would care if you distribute it.
So I think that analogy is kinda off.
If you bought a VCR took it apart, made a PDF file with exact copies of the PCB boards and electronics and distributed that for anyone to manufacture the company that designed and built that VCR could sue you.

In the case of MP3s, just having a file that they can prove came from P2P is illegal, even if you own the CD. You have the right to backup that CD, but not to download it from some other very dubious source.

OJ & Scott Peterson by ag-gvts-inc · 2005-09-29 14:52 · Score: 1

Call me a cynic, but I'm less inclined to think that the jury's perception of the lawyers involved had anything to do with OJ getting off the hook and Scott Peterson getting convicted. OJ had been a popular (remember "the juice is loose"?) celebrity-type person with money that everyone thought was guilty, while Scott Peterson was some nobody that everyone thought was guilty.

Re:OJ & Scott Peterson by twiddlingbits · 2005-09-29 15:10 · Score: 1

IIRC, I said perception of the DEFENDANT. Lawyers too maybe, some lawyers juries seem to love and some they hate. For silly reasons like the way they look or the way they express themselves.
Re:OJ & Scott Peterson by ag-gvts-inc · 2005-09-29 15:35 · Score: 1

You mean I should _read_ comments instead of shooting something off from the hip? Ain't gonna happen... ;)

Re:Exactly. I'm waiting for a case. by Bullfish · 2005-09-29 14:53 · Score: 2, Insightful

Actually, a hero would be better.

The money factor by merc · 2005-09-29 15:00 · Score: 4, Insightful

The RIAA won't care if someone wins a dismissal. The defendant had to pay for a lawyer and spend time fighting the case. As long as they sell the tech community on the idea that infringement will cost you something if you refuse to settle they still win, at least idealogically.

--
It's true no man is an island, but if you take a bunch of dead guys and tie 'em together, they make a good raft.

Re:The money factor by DoubleRing · 2005-09-29 15:05 · Score: 1

The RIAA won't care if someone wins a dismissal. The defendant had to pay for a lawyer and spend time fighting the case. As long as they sell the tech community on the idea that infringement will cost you something if you refuse to settle they still win, at least idealogically.

This is one reason that I'm considering persuing a career as a lawyer. I would work pro-bono for cases like this, just to make a point idealogically (and get famous??). The RIAA is screwing enough people over as it is (the artists, for one). Plus, a pro-bono case every now and then wouldn't hurt your finanances much (an average lawyer gets paid about 50 dollars to an hundred an hour, compared to the average engineers $35)

--
Before you die, you see DoubleRing...
Re:The money factor by NewYorkCountryLawyer · 2005-09-29 15:39 · Score: 3, Interesting

They will care, because the grounds set forth in the motion are fully applicable to ALL the RIAA complaints, which are identical boilerplate. A dismissal will be a precedent that may force the RIAA to reconsider its whole strategy which has been to sue people right and left, without evidence of any copyright infringement having been committed by them.

--
Ray Beckerman +5 Insightful

Re:Well... by Anonymous Coward · 2005-09-29 15:04 · Score: 0

"I for one welcome our new... :\ ... :D"

Got me wondering about something really dumb... and a quick whois checked confirmed..

Domain ID:D104884689-LROR
Domain Name:BACKSLASHDOT.ORG
Created On:13-Sep-2004 22:13:10 UTC
Last Updated On:14-Sep-2005 01:32:14 UTC
Expiration Date:13-Sep-2006 22:13:10 UTC

*cough* uhm.. yah... anyways...

Re:Exactly. I'm waiting for a case. by Propagandhi · 2005-09-29 15:09 · Score: 4, Funny

While that may be the most probable path to martyrdom, there are alternatives:

For instance, the defendent in this case could forgo a traditional, or "rational", defense, and instead commit ritual seppukku on the steps of the courthouse. The effects could be wide ranging:

- The judge decides the case in favor of the defendent (he was so moved by the ritual sacrifice)
- The RIAA renounces its single-minded persuit of wealth (because the defendent reminded them how fragile life is) and the record companies go back to advancing music as an art form.
- Ritual suicide becomes an acceptable means of getting almost anything you want (post-humonously, obviously)
- We get to download tons of w4r3z!!!

Let's try not to be narrowminded about this.

Why the law and lawyers get a bad rep by Morgaine · 2005-09-29 15:12 · Score: 2, Insightful

The very clearly reasoned and yet utterly unreasonable legal position that you describe illustrates admirably why the law is held in such low regard these days and lawyers are viewed as bloodsucking scum.

Strategies, counter-strategies, technicalities, 10 million stages to the legal "game", and every move achieving almost nothing except a transfer of money into the wallets of lawyers. Absolutely wonderful.

Meanwhile, sight is lost of whether the alleged wrongdoings actually constitute a loss for the plaintiff, rather than free advertising no different to that in radio broadcasting. All that matters for you and your colleagues is that the divine handle of law continue to be cranked, regardless of whether it is right or wrong.

WebHostingGuy, your ex-profession is morally bankrupt.

--
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra

To be a martyr by reezle · 2005-09-29 15:14 · Score: 1

To be a martyr, wouldn't just sacrificing a small portion of your life, and a large portion of your life savings be qualification enough?

Re:To be a martyr by Velox_SwiftFox · 2005-09-29 17:50 · Score: 2, Funny

(checks KJV Matthew 19, v16-23)

No, that just makes you an apostle.

Sounds great but... by StarWreck · 2005-09-29 15:15 · Score: 2, Funny

The RIAA want to sue everyone so they'll stop downloading music and actually pay for it. Sounds great, but what about their customers? Broke-ass college students may download the music for free now but would become addicted to always having new music and when they graduated and had massive mounds of disposable income would begin buying CD's in earnest. Why would a college graduate want to buy a CD from a company that sued their best friend back in college? Sounds good in theory, but doesnt work - like communism. In summary - suing your customers is advertising for communists.

--
... and in the DRM, bind them.

Re:Well... by TheComputerMutt.ca · 2005-09-29 15:15 · Score: 1

backslashdot.org
Currently in Development

Silly strategy by Rocketship+Underpant · 2005-09-29 16:07 · Score: 1

"Before they sue anyone, simply have one of their employees download a few songs to their private PC from the defendant's system."

But if the RIAA owns the copyrights to those songs (or acts as an agent of the copyright holders), then uploading a file to an RIAA member isn't infringement, is it?

Moreover, in such an instance, the RIAA would be participating and even encouraging the distribution. You can't sue someone for behaviour you incited, can you?

--
He who lights his taper at mine, receives light without darkening me.

Re:Silly strategy by Anonymous Coward · 2005-09-29 17:54 · Score: 1

Selling crack to an undercover cop isn't a crime, is it? After all, cops can possess illegal drugs. So obviously it wouldn't be illegal to sell it to them.

No, you see, that logic doesn't work. Distributing the material is illegal for anyone not licensed to do so, regardless of whether or not the person you are distributing to has the legal right to receive it.
Re:Silly strategy by Vegeta99 · 2005-09-30 00:20 · Score: 1

Ah, grasshopper. You better watch out or that RIAA gestapo truck might arrest you for unclean thinking next! The police, as corrupt and useless as they can be, were given that power by the people. RIAA WAS NOT GIVEN AND NEVER SHOULD GET SUCH POWER. Distributing a copyrighted good is perfectly legal if you're distributing it to someone who has a license to have it... such as the RIAA.

Selling crack is illegal ALWAYS. So yeah, selling it to a cop would be bad. Selling a copy of a CD to a cop would be bad, too, unless you told him "You must be buying this for backup purposes"

Not entrapment, kid by Anonymous Coward · 2005-09-29 16:25 · Score: 0

Entrapment is where you lure someone into committing a crime.

No one has lured anyone into uploading copyrighted files. Everyone who uploads files knows what they are doing.

Similarly, the RIAA doesn't need to have proof of download to prosecute (which is why this motion will be rejected). They only have to show that the defendant was uploading files and thus distributing the copyrighted materials.

Someone who bootlegs CDs and tries to sell them on the street is still in violation of copyright, even if no one buys from him. It is the intent to distribute that determines culpability. Having actual records of downloads is just gravy, as far as the RIAA is concerned.

THEY HAVE YOU COLD by sullyfish · 2005-09-29 16:29 · Score: 1, Troll

They have downloaded one or many files (or even just a partial) from your computer. Of course it is legal for them to download. They OWN the music, see? Now that they have a file from you, they analyze it. There is digital information in the file that proves that it has been transfered over the internet and how many times. So....... you got it from the internet and you made it available through the internet to anyone who wanted it, and THEY CAN PROVE IT. That's it,you're done. I have an idea about how to combat this RIAA inquisition. Feel free to tell me I'm nuts, or critique my idea- The second you get a notice that you are being sued........ run out and buy a wireless router. Go to court and say " I personally didn't download OR upload anything illegal AND nobody in my houshold used my computer to do so either. Someone must have snuck onto my network. 90 % of all wireless home networks are not secure so I am not criminally negligent AND I am inocent of copyright infringement" TADA !!!!!

Re:THEY HAVE YOU COLD by The+Real+Nem · 2005-09-29 16:43 · Score: 1

That doesn't prove anything. You assume the sharer created the .mp3 or whatever. If you say bought the CD from some artist, then downloaded their tracks from the internet, you have already licensed the right to listen to the tracks and are not violating anything. You can't help it if someone else may have also downloaded the same track from someone else. And just what digital signature are you talking about? It is perfectly reasonable to assume that a .mp3 ripped on your machine could be identical to a .mp3 ripped on another. They just need the same basic ripper setup. Most popular applications will be setup the same way.

Take a look at this quote:

See also Obolensky v. G.P. Putnam's Sons, 628 F.Supp. 1552, 1555-56 (S.D.N.Y.) (publisher did not infringe on copyright owner's right of distribution of copyrighted book by listing the book in a trade publication as belonging to publisher where publisher neither copied the book nor sold any copies of the book; "there is no violation of the right to vend copyrighted works ... where the defendant offers to sell copyrighted materials but does not consummate a sale")

As you said it is not illegal for the RIAA to download music from you that they own. Also, I doubt they'd get away with getting some third party to do it for them (without also having to sue them :P). And the article gives several precedents (see above) that say merely offering copyrighted works is not illegal. I don't see much of a case for the RIAA...
Re:THEY HAVE YOU COLD by sullyfish · 2005-09-29 16:56 · Score: 1

Sure you may have a right to that MP3, BUT they downloaded a copy from you! You didn't check to see if they had the right did you? So you broke the law. Here is more on the digital fingerprint idea. The digital fingerprints of each file can be use to identify a pirated song or movie. The industries use a collection of digital fingerprints (hashes) that uniquely identify copyrighted files traded over file sharing services. The RIAA or MPAA compares the hash of a music file on the infringer's computer to those in its collection to determine whether the file originated from a CD or DVD or a file-sharing service http://www.unc.edu/courses/2005spring/law/357c/001 /projects/getz/individual%20liability.htm
Re:THEY HAVE YOU COLD by The+Real+Nem · 2005-09-29 17:58 · Score: 2, Insightful

Maybe I'm a little thick, but I don't get this whole digital signature thing. It's a file hash, right? If you created a file in notepad with the text "hello" in it, it would have the same hash as if I created a file in notepad with the text "hello" in it. Likewise, if you ripped a song to a .mp3 using the default settings in CDex (or some other software) and I ripped the same song from the same CD using the same software and the same default settings (not an unreasonable assumption), it would again have the same hash. The hash proves nothing other than that fact that the files are quite likely identical. It does not prove their origin.

Now lets say the MPAA plants a file on the web with some hidden watermark and you download it from a p2p network. They would then have strong proof that you downloaded a copyrighted file. But by placing it on the web they implicitly gave you permission to download that file (and perhaps possibly to distribute it). They can't prove you uploaded the file to anyone any more than they can prove they only uploaded it to one person. They could, of course, download the watermarked file from you again. But what would that prove?
Re:THEY HAVE YOU COLD by meringuoid · 2005-09-29 20:01 · Score: 3, Insightful

They have downloaded one or many files (or even just a partial) from your computer. Of course it is legal for them to download. They OWN the music, see?
In which case no law has been broken. That copy was perfectly legal, since it was the RIAA doing it!
Now that they have a file from you, they analyze it. There is digital information in the file that proves that it has been transfered over the internet and how many times.
No there isn't.
So....... you got it from the internet and you made it available through the internet to anyone who wanted it, and THEY CAN PROVE IT.
No, I got it from somewhere, who knows where, and I made it available to only the RIAA themselves as far as they can prove. And making music available to the RIAA, I strongly suspect, is not illegal in any way - how am I infringing copyright if I allow the copyright owner himself to copy my music collection?

--
Real Daleks don't climb stairs - they level the building.
Re:THEY HAVE YOU COLD by sullyfish · 2005-09-30 09:57 · Score: 1

Yes.... they can prove it.
Again...they are sneaky digital fingerprints in these files.
You can say "no there aren't" all you want but they are there. It is a fact.
The RIAA downloaded it from you.... you downloaded from someone else and made it available to ANYONE.
They can prove this. It is illegal and there is no wiggle room at all.
They have big bucks for lawyers and tech gurus to make sure they have you dead to rights.
The main point to my post had nothing to do with "what can they prove".
I gave a defense strategy that seemed promising. The wireless netowk defense.
Re:THEY HAVE YOU COLD by dhazard · 2005-09-30 15:19 · Score: 1

I gave a defense strategy that seemed promising. The wireless netowk defense.
Actually it sounded dumb.
Re:THEY HAVE YOU COLD by sullyfish · 2005-10-01 10:12 · Score: 1

Well....that's not very constructive. Why do you think it's dumb? Got any ideas about a defense? BTW I meant wireless NETWORK defense, just in case you think it's dumb because it was misspelled. Heh.
Re:THEY HAVE YOU COLD by sullyfish · 2005-10-01 10:25 · Score: 1

I may be a little thick as well but... It is my understanding that some of these digital fingerprints are generated just by the act of transfering files via P2P. So I don't think the RIAA has to make their own MP3s and put them out there as that could be seen as entrapment. Jeez, look at score for my original post. I have been labeled as a TROLL. That's a shame, I just thought I could shed some light on what is clearly misunderstood. Ok. I quit.

It wouldn't be entrapment anyway by Ogemaniac · 2005-09-29 16:33 · Score: 2, Informative

Entrapment works the other way. If a secret RIAA member came up to you and said "Give me this file, please" and you gave it to them, that would be an example of entrapment, though as you noted, this is irrelevant in civil cases.

In this case, we have the opposite. The uploader is saying "Hey, you wanna have a file?" and the RIAA member is simply saying "OK". This is not entrapment.

It works the same way for drugs. The cops cannot initiate a drug sale and then bust you for possession. They can, however, participate in a sale that you initiate, and then bust you.

Re:It wouldn't be entrapment anyway by Kjella · 2005-09-29 21:11 · Score: 1

It works the same way for drugs. The cops cannot initiate a drug sale and then bust you for possession.

Actually, they can. To use entrapment as a defense, you must prove three things:
1. It wasn't your idea
2. You were coerced
3. You weren't already ready and willing

"Presenting an opportunity" is not coercion, even if they initiated it. And even if both the first were true, it doesn't matter if you were planning to anyway. Actual case: Guy with a kilo of cocaine(? some drug) convicted even though the police initiated it and coerced him, because it was taken as evidence that he was already looking to sell drugs.

--
Live today, because you never know what tomorrow brings
Re:It wouldn't be entrapment anyway by Bodysurf · 2005-09-30 03:43 · Score: 1
In this case, we have the opposite. The uploader is saying "Hey, you wanna have a file?" and the RIAA member is simply saying "OK".

Not really.

The RIAA member is asking what files do you have available. And the uploader is saying this is what I got. The uploader is not soliciting, per se, potential downloaders.

(As an aside, I do not think that the RIAA member ever says "OK", downloads, and verifies the defendents have what they claim to have.

The only "proof" the RIAA has I believe are logs that show the defendent claims to have files that infringe on their copyright. An interesting defense would be to state that these files did not contain what the titles suspect the RIAA believes they contain. The problems with any defense are those inherent with tort law:
- Can't plead the 5th ammendment unless you suspect your testimony might cause criminal charges to be filed against you. And even if you do suspect they might, and you do plead the 5th, a "negative inference" can be had.
- No court appointed attorney. If the plaintiff has deep pockets, they can bleed the defendent in attorney fees. WORST PART: If the tables were reversed and "you" were the RIAA and the RIAA was "you", you wouldn't have a snowball's chance in hell of winning for this same reason.
Finally, even though we know the RIAA is on a fishing expedition with these lawsuits, the problem still is that if you did it, committing perjury in Federal Court is not worth it. The $3,000 range settlement is far less painful than risking being exposed for categorically lieing under oath to the Court.
This is not entrapment.

Again, I agree. But, as I stated, for different reasons.

Re:How many people... by bwcbwc · 2005-09-29 16:40 · Score: 2, Informative

actually obey the speed limit on the interstate? I would estimate about 40% where I live. If you're willing to pay the consequences, you can violate any law you want.

I see his point though. Is music/software/video piracy a social good when practiced on the scale enabled by the internet? I've seen the arguments on both sides for years, so I'm old enough to be cynical about both sides.

Most pirates download because they're cheap and want instant gratification, instead of waiting until they've paid down the credit card a bit. Others are simply avoiding being completely exploited by the media conglomerates. They use a work for a few weeks and then toss it. From the RIAA's point of view, they should pay full price for each product, but as a practical matter, it doesn't make sense. They need to rent at a fraction of the current pricing scheme. If they were forced to pay, they probably would only buy one or two a month anyway. Then there are the hoarders, who just want to brag on having the latest/most/best collection of stuff. Basically piracy is just a defense mechanism media consumers have come up with to satisfy the addiction to novelty created by media advertising.

The **AA's aren't exactly in business to help the artist either. Anyone who believes that they file these suits to get the money that the artists are owed must be living in a bubble. Standard industry practice is to shave off as much as possible off of royalties as "expenses" and then only pay more if the artist gets a lawyer and an accountant. The only worse center of greed, scams and corruption than the media industry is the federal government.

--
We are the 198 proof..

Re:Exactly. I'm waiting for a case. by ejito · 2005-09-29 16:51 · Score: 1

Hyperbole. Learn what it is. Do lady killers kill ladies?

A good person can be called a saint, although they don't qualify under church doctrine. I can only imagine the fits you have when that happens.

What is copywritten ? by Tsiangkun · 2005-09-29 17:01 · Score: 4, Interesting

What exactly does the copyright cover on a musical work ? The notes, the chords ? The lyrics ? a likeness to a song ?

Is the copyright for the entire piece ?

If I downsample something to a 4 bit audio sample, is it a violation of copyright ?

If I get some shitty song stuck in my head and keep singing it, is it copy right infringement ? What if I tape myself ? And Distribute the tapes ? For a fee ?

If I translate a copywritten text to heiroglyphs, poorly, is it still compyright infringment, or just a story with the same plot and same basic them ?

When does something stop being copyright infringment and become something else ?

Re:What is copywritten ? by Anonymous Coward · 2005-09-29 18:23 · Score: 3, Informative

Both the song (music/lyrics) and the performance itself is copyrighted (not copywritten -- we're talking about a right to copy, not writing copy). The song is copyrighted by the songwriter, and is subject to compulsory licensing which means that anybody can perform it by paying a set fee to the songwriter. Recording a variation of the song not covered by fair use will require negotiating a license.

The performance is copyrighted by the performer and is only subject to compulsory license according to very strict rules (i.e. any radio station can play music over airwaves but not necessarily over the Internet). In order to copy, sample, or play the song for an audience, one must pay the performer (or more likely the company that recorded the song so that they can withold royalties from the performer). Note that a copy that you recorded yourself at a concert would be copyrighted by the performer and any recording company that the performer may have a contract with would have no say in the deal.

dom
Re:What is copywritten ? by Anonymous Coward · 2005-09-29 18:42 · Score: 0

I know that you cannot copywright a chord progression. If that were so, the music of the 70's and 80's wouldn't exist.

wait a sec...
Re:What is copywritten ? by PeeAitchPee · 2005-09-30 00:25 · Score: 2, Funny

If I downsample something to a 4 bit audio sample, is it a violation of copyright ?

No, it makes you a remixer. ;-)
Re:What is copywritten ? by Anonymous Coward · 2005-09-30 04:00 · Score: 0

Separate copyrights are likely to apply to the song and the performance. Copyright law does spell out what usages are in violation or not. Generally you can use excerpts of a work for critical or review purposes, or you may parody it, but reproducing something verbatim (even if it's downsampled) in it's entirity is certainly going to be in violation.

If you record yourself recording someone else's song, then you are not going to be in violation of copyright of their recording, but presumably would be in violation of copyright on the song itself unless it's public domain. Of course a group may choose to ignore someone else performing cover versions of their songs, but if they own the copyright I believe they could sue if they chose to.

I believe you could parody a work in it's entirity without violation, but a translation that was an effort to faithfully reproduce it (however poorly) would hardly be covered.
Re:What is copywritten ? by Anonymous Coward · 2005-09-30 09:11 · Score: 0

Funny, I would think it is the music from the last 10 years that wouldn't exist. If in addition to redundant chord progressions, you add overly compressed mixing, you could extend it by another 10 years or so.

You don't have all the info without the 5 W's. by SeaFox · 2005-09-29 17:01 · Score: 1

Now, IANAL, but how much more descriptive can you be? They're practically handing them a printout with what illegal files had been being shared, are they not? What else is necessary?

If someone wanted to press charges against an individual for flashing them, the police wouldn't take the report if the person didn't specify when and where the acts occured, even if the victim had a long list of different dance moves the guy did in the buff.

Re:Well... by aussie_a · 2005-09-29 17:34 · Score: 1

I got interested in another site...

Domain ID:D104218484-LROR
Domain Name:COLONSLASH.ORG
Created On:12-Apr-2004 04:11:52 UTC
Last Updated On:01-May-2005 22:56:09 UTC
Expiration Date:12-Apr-2006 04:11:52 UTC

This is sad to read by Zoomshare · 2005-09-29 17:44 · Score: 1, Interesting

every week there is another case and its a shame. I think the internet giants like Microsoft, Google and Yahoo should buy the copyrights to these songs and sell them at the actual value of the song = .60 cent each. It takes a real man to stand up to the Labels, i.e Steve Jobs, until someone relieves the record industry of their sagging sales you can expect a lawsuit a week. But the itune model is being thought about by tons of business. Someone will make a play at the market to bring by consumer confidence in record sales.

Re:This is sad to read by gsslay · 2005-09-29 22:22 · Score: 1

Where did this 'actual value' of 60 cents come from? You know, other than pulled out from your arse? There is no 'actual value', the only 'actual' is costs. The value is entirely decided on by the market, is variable, and is entirely dependent on how much people are willing to pay for it. No-one gets around this rule. Not Steve Jobs, not the 'itune model', not Microsoft, not Google nor Yahoo.
Re:This is sad to read by Zoomshare · 2005-09-30 04:51 · Score: 1

Well if I can purchase a song on Itunes for .99 cent that would mean that the actual of cost of the song is below that. You have to factor in the cost of mark-up so .60 would be the actual price. Also a CD of 12-18 songs can range from 10-12 dollars. So .60-85 cent is the actual cost of the song, I will never purchase a cd again because I want the ability to customize a cd of all the songs I like. So the itune model is scarying the record label because they have marginalize the cost of a song to .99 cent. So the thought is not out of my arse! It's actually looking beyond the sticker price and understanding how low the labels will go. If they went as low as .99 for Steve Jobs then they will go even lower for Google or Yahoo.
Re:This is sad to read by gsslay · 2005-10-06 21:23 · Score: 1

so .60 would be the actual price
No, that would be the actual cost. As I said, the price is determined by the market. If the market says people will pay .99 in sufficient numbers, then .99 is the price chosen. If you don't like this price, don't pay it. If enough consumers reach the same conclusion then the market will determine a lower price.
If you don't like how this works, start the revolution and overthrow the capitalist system. Steve Jobs won't help you, and I doubt Google or Yahoo will either.
Re:This is sad to read by Zoomshare · 2005-10-07 05:39 · Score: 1

Funny how you think the record labels won't go as low as .60 cent. The whole point is that a yahoo and google won't have a huge markup on the actual cost. The market determines the cost and that could be illegal downlads, .99 itunes, or $10 cd's. The plan is to reach the illegal download market and one way of doing that is putting the cheaper cost in their face over and over and over again through ads. So you might not think that those companies will go that far down in price. However, you have no idea what the demand curve looks like at .50 cent for a song. Profit could triple at that cost making it a great move, Itune has settle on the users it can get at a buck a song. No one cares about the people that have itune accounts. This battle is over the illegal download users. So just sit back and witness what happens. I won't tell you why i feel this way but I have a huge interest in offering legal downloads in the next two month.
Re:This is sad to read by gsslay · 2005-10-09 23:37 · Score: 1

Funny how you think the record labels won't go as low as .60 cent.
I didn't say that. The record labels will price their product where-ever it makes most profit. If that's .60, then so be it. If it's .99, then ditto.
The plan is to reach the illegal download market and one way of doing that is putting the cheaper cost in their face over and over and over again through ads.
I would suggest that no company can compete in a market with 'something for nothing'. This is why they have to use the force of law to try to stop illegal downloading.
However, you have no idea what the demand curve looks like at .50 cent for a song. Profit could triple at that cost making it a great move,
Indeed it might. Do you think record companies haven't consider this? If they thought that .50 would maximize long-term profits, then that's what they would price at.
I think that the record companies know far more about the music market than any of the self-appointed experts on slashdot mouthing off about "business models", as if they all have MBAs and better ideas.
Re:This is sad to read by Zoomshare · 2005-10-10 04:54 · Score: 1

thanks for the conversation

Hear hear! by Anonymous Coward · 2005-09-29 18:11 · Score: 0

mod parent up!

Re:Exactly. I'm waiting for a case. by deaddrunk · 2005-09-29 18:17 · Score: 2, Insightful

the record companies go back to advancing music as an art form.

When did they ever do that?

--
Does a Christian soccer team even need a goalkeeper?

It is not entrapment by Ogemaniac · 2005-09-29 19:53 · Score: 1

Read your own definition. First, entrapment, in the legal sense, can only be done by government. But in any case, entrapment involves approaching someone who was not doing anything suspicious and offering them the chance to commit a crime. It is not entrapment if the suspect is asking you to participate in the crime.

I fail to see why this would be irrelevant. An actual crime would have been committed. It is obvious that the crime is likely to have been committed many other times.

Re:It is not entrapment by meringuoid · 2005-09-29 20:26 · Score: 1

But in any case, entrapment involves approaching someone who was not doing anything suspicious and offering them the chance to commit a crime. It is not entrapment if the suspect is asking you to participate in the crime.
So. The RIAA sent a message to my computer saying 'Hey, would you send me a copy of Latest_Britney_Album.mp3?' My computer replied 'Sure, here you go', and the RIAA then sued.
Who approached who here? Who actually made it happen? I think the RIAA approached me. I never went up to them and offered them music. I never asked them to participate in anything. They came to me and asked for the piracy to take place - piracy that wasn't piracy anyway, becauce the recipient was in fact the agent of the copyright holder himself!

--
Real Daleks don't climb stairs - they level the building.

You are doing the approach by Ogemaniac · 2005-09-29 20:39 · Score: 1

Your computer has been sending out a broadcast "Hey, come over here for a copy of LatestBritneyAlbum", or some variant thereof (depending on which system you use). RIAA or any other downloader is not searching all computers on earth randomly.

It is not entrapment if you put up a sign "For some good crack, come over to 123 Main", to which an undercover cop comes over and makes a purchase, and then busts you. But this is a pretty good analogy for how you file share.

Re:You are doing the approach by meringuoid · 2005-09-29 20:51 · Score: 1

Your computer has been sending out a broadcast "Hey, come over here for a copy of LatestBritneyAlbum", or some variant thereof (depending on which system you use). RIAA or any other downloader is not searching all computers on earth randomly.
As far as I'm aware: me arse it does.
The only other computer on the network that should know the complete list of files I'm sharing is my supernode. If a query comes to the supernode asking for LatestBritneyAlbum, it gets referred to me. Equivalent, in the drugs analogy: the cop asked the barman in a dodgy pub about who could get him some crack, the barman pointed me out, and the cop then asked me for crack. Still entrapment.
However, it now occurs to me that the RIAA might be running supernodes, and thereby obtaining the lists. In which case the conversation goes:
RIAA: 'Hi, I'm a supernode. What are you sharing?' Me: 'LatestBritneyAlbum.mp3.' RIAA: 'A-haaaaaa!' Much the same, really. And in any case if they're running supernodes, then they're facilitating any infringement themselves, and I'm pretty sure that would hurt their case in court.

--
Real Daleks don't climb stairs - they level the building.
Re:You are doing the approach by MWojcik · 2005-09-29 23:38 · Score: 0

Equivalent, in the drugs analogy: the cop asked the barman in a dodgy pub about who could get him some crack, the barman pointed me out, and the cop then asked me for crack. Still entrapment.

This is not entrapment. You were already trading the drugs before the cop approached you. And you were willing to trade them to someone else without cop's offer.

It would be entrapment if you did not deal with drugs at all and cop convinced you somehow to start the drug business.
Re:You are doing the approach by meringuoid · 2005-09-29 23:53 · Score: 1

This is not entrapment. You were already trading the drugs before the cop approached you.
Right, now prove that. All you have is hearsay from the barman. He hasn't ever actually seen me dealing crack, he just heard me mention once that I had crack, and so when the undercover policeman came asking for crack he directed him to me.
Similarly, the supernode (in the role of barman) knows what I have available and passes along appropriate incoming searches to me, but has no knowledge at all of whether any of those searches lead to actual downloads. Even given that I had those files listed, and even given that I transferred one to the RIAA's agent, there is still no proof that I ever transferred any other file to anybody else.
I realise the civil courts have a lower standard of proof, but if this was a criminal case (and we're so often told that piracy is theft, aren't we?) then it would (or at least IMO should, and IANAL) be thrown out of court every time.

--
Real Daleks don't climb stairs - they level the building.
Re:You are doing the approach by MWojcik · 2005-09-30 00:09 · Score: 0

This is not entrapment. You were already trading the drugs before the cop approached you.

Right, now prove that. All you have is hearsay from the barman. He hasn't ever actually seen me dealing crack, he just heard me mention once that I had crack, and so when the undercover policeman came asking for crack he directed him to me.

But he did. You sold it to him. He did not order you to sell it, you were not unwilling and had to be persuaded. He asked "can you sell me some crack" and you did.

Entrapment is when the police induced an otherwise unwilling person to commit a crime. However, when a person is predisposed to commit a crime, offering opportunities to commit the crime is not entrapment.

Of course proving that in court is different matter.

MOD PARENT UP by werewolf1031 · 2005-09-29 21:55 · Score: 1

Yeah, I know it was an AC, but that was a damn good post, and should be ready by many.

My only criticism to parent, why post that as AC? Karma's not everything, but it's there for a reason, and sometimes it's well-earned. Don't hide behind AC when you've got something useful to say. :)

Re:Exactly. I'm waiting for a case. by 91degrees · 2005-09-29 23:07 · Score: 1

When did they ever do that?

Between January 29th and Febrary 3rd 1972. They decided it wasn't for them.

MOD PARENT UP by BushCheney08 · 2005-09-30 00:07 · Score: 1

A nice brief explanation of the different aspects of copyright.

--
Be a real patriot: Question authority. Think for yourself. Formulate your own conclusions.

If it's granted, this is a VERY good thing by ChrisPaget · 2005-09-30 00:48 · Score: 1

Think about it. If the RIAA has to prove that you've distributed files to other people, that means that either you or they have to be keeping logs - which AFAIK no current P2P programs actually do. Either that, or they'd have to sniff the traffic as it goes through the various ISPs between the two people, which they won't be allowed to do.

Either that, or they'll have to download something off you themselves - which I believe puts them on very shakey ground since you could probably class that as entrapment. They could argue that since you have all this content on your hard drive that you must have downloaded it illegally at some point, but if I read the article right you have to specify times as well - they'd have to prove that timestamps on files are accurate.

If this case gets dismissed and the P2P apps continue to not keep logfiles, things could get a lot easier for file sharers and a lot harder for the RIAA.

Re:If it's granted, this is a VERY good thing by Anonymous Coward · 2005-09-30 03:38 · Score: 0

The way the RIAA, HBO, etc, find out about P2P downloads is by running their own (potentially modified) clients which capture the IP addresses of those offering files for upload (involuntary if you're using bitorrent to download). They could be doing the same thing for downloads by offering downloads themselves, which, although it seems like entrapment, is no different than an undercover cop posing as a hooker busting a wannabe customer.

Grammar/spelling Nazi by chihowa · 2005-09-30 01:12 · Score: 1

Note to readers: I don't advise taking advice from someone who can't spell "lose".

Note to readers: I don't advise taking advice from someone who can't put punctuation in the correct place.

--
If you want a vision of the future, imagine a youtube comments section scrolling - forever.

Re:Exactly. I'm waiting for a case. by Anonymous Coward · 2005-09-30 03:00 · Score: 0

Can someone please tell my Mom that?

Thats like.... by ramseypawlik · 2005-09-30 03:05 · Score: 1

Reporting a stolen car but not being able to provide the time it was last seen or the color of the car. Wow, what a great concept, it works for the RIAA so it may work for me too!! I'm calling the police now...

To paraphrase Star Wars... by Chordonblue · 2005-09-30 03:16 · Score: 1

Don't be too proud of this technological terror they've constructed. The ability to pirate wares is insignificant next to the power of the government.

I mean sure, you might be able to sneak in a few things here and there, but it's only a matter of time before controls catch up - and in many ways have already caught up. Take a look at Saudi Arabia for instance. They Blue Coat their ENTIRE localized Internet connection! Firewall from HELL! China's moving in that direction too.

Don't believe that the U.S. is so much 'freer' than them. Our gov't seems to do nothing but the **AA's bidding in these matters so it is probably only a matter of time before ISP logging and filtering is required. Ultimately, someone will always find a way to crash a party that gets too big (Like Nap/Grokster).

--
"...Well, there's egg and bacon; egg sausage and bacon; egg and spam; egg bacon and spam; egg bacon sausage and spam..."

Nelson Mandela by dsanfte · 2005-09-30 03:59 · Score: 0, Troll

Nelson Mandela was a martyr for the cause of South African liberty. He (obviously) didn't die.

Liberty of course means liberty in the classical sense: freedom from the racist, near-genocidal oppression of the Apartheid government, as opposed to freedom to hand out no-bid contracts to your friends at Haliburton.

--
occultae nullus est respectus musicae - originally a Greek proverb

Re:Ye ole cowboy by Anonymous Coward · 2005-09-30 06:20 · Score: 0

Make files of the same size and name as traded ones, fill them with your copyrighted information.

turn off peer guardian

Agreed by Ogemaniac · 2005-09-30 10:59 · Score: 1

The supernode is no different than the bartender or the sign in my earlier analogy.

If you advertise that you want to participate in a crime, it is not entrapment. Period. Putting your name on a supernode (this doesn't happen by accident!) negates any possibility that this would count as entrapment.

Oregon Woman Countersues Against RIAA by NewYorkCountryLawyer · 2005-10-01 22:03 · Score: 1

I think you'll be pleased to learn that an Oregon woman has countersued the RIAA, under Oregon's RICO act, and numerous other laws. And she's demanded a jury trial. Recording Industry vs. The People

--
Ray Beckerman +5 Insightful

RIAA Victim Sues Back by NewYorkCountryLawyer · 2005-10-01 22:07 · Score: 1

An Oregon woman, Tanya Andersen, has countersued against the RIAA, in Atlantic v. Andersen. She has demanded a jury trial, and is suing for fraud, invasion of privacy, electronic process, Oregon RICO violations and other things.

--
Ray Beckerman +5 Insightful

Re:RIAA Victim Sues Back by chawly · 2005-10-01 23:35 · Score: 1

I think we should all wish this lady a lot of luck - she's already got a lot of pluck.

--
How many beans make five, anyhow ? ... Charles Walmsley

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New Dismissal Motion in File Sharing Case

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