Making Files Available Breaking the Law?

lordhathor2001 writes "The RIAA has argued in one of their cases that simply "making files available for distribution" violates copyright laws. This means that regardless of the legality of a file somebody has on their computer, just putting it in a shared files folder that can be accessed by other people is illegal. Although it's asinine, it really shouldn't come as any surprise given the RIAA's legal campaign that's more about what it believes than what the law actually says."

Comments

Oh bloody hell

[PunkOfLinux]

oh, guess i better take the music I'VE made (which is free and legally distributable) out of there too, because i guess I (the owner of said music) have broken the law, too.

Re:Oh bloody hell

[Anonymous Coward]

You're just choosing the most outlandish interpretation of a vague statement so you can ridicule it.

Note: lawyers never, ever do this. Ever. Because that would just be unethical.

do you really think they're arguing copyright holders can't distribute their own files?

Let me explain this because you have apparently spent the last century in a cave... on Mars... with your eyes shut and your fingers in your ears.

Yes. You see, thanks to the way our legal system is constructed, many things that most people would consider absurd or, at the very least, counterintuitive, are in fact true in a legal sense. For instance, you don't actually own any CDs or DVDs, you have, in fact, leased the content on them when you paid for them.

In other news, you can be legally innocent of a crime but still, somehow, civilly liable for it.

Somewhere in this country, at this very moment, a lawyer is arguing that black is, in fact, a shade of gray... that ketchup is a vegetable... that pulling your fingernails out with pliers isn't torture...

Now you think about what you said.

Brilliant!

[graveyardduckx]

So now owning Windows is illegal due to the default shares enabled! I hope the slashdotters are happy about this one!

Thoughtcrime?

[The evil non-flying]

Somedays I get the sinking feeling Orwell was an optimist.

Great sources, guys.

[aardvarkjoe]

The article links to a blog (Techdirt) that says exactly the same thing as the Slashdot post. The Techdirt post links to another blog (Digital Music News) which says about the same thing, though at least apparently the Techdirt poster had the decency to reword the summary. There are no links to any even semi-credible source (like, say, the documents where they supposedly said this.)

Could Slashdot at least wait until there's actually some proof before posting this crap?

Info

[mendaliv]

The case in question is Elektra v. Barker, and here's some of the legal docs and stuff.

Complaint
Exhibit A
Exhibit B, Part 1
Exhibit B, Part 2

Does that include...

[msauve]

The file at http://www.riaa.com/images/pics/pic2.jpg, which is served by their web site?

Look...

[HunterZ]

Dear RIAA,

Let me make this simple for you: I learned on Sesame Street that sharing is GOOD. It's going to be more difficult than you think to reprogram the inner-workings of my psyche that were molded by watching educational television as a child in the 80s.

Sincerely,
Me

Poster didn't RTFA at all...

[henrythehorse]

The post seems to imply that putting anything on the web or in a shared folder is under attack. Not so. And clearly many responders also didn't bother to RTFA.

Putting _copyrighted_ files (for which you don't have a license to distribute) on the web or in a shared folder is under attack. The only "news" here is that they're arguing that you may have committed a crime before the first download of your pirated mp3 occurred.

You may all hate the RIAA, but you have to admit that putting Kelly Clarkson's new single in your shared folder is different than putting your own jpg's on the web.

OMG Teh Google is GOD

[TubeSteak]

http://www.lifeofalawyer.com/riaa/atlantic_does1-2 5_rogersaffidavit.pdf

Teh Google CacheL http://64.233.167.104/search?q=cache:www.lifeofala wyer.com/riaa/atlantic_does1-25_rogersaffidavit.pd f+%22making+files+available+for+distribution%22

They've said this type of thing before, in public and obviously have said it in court filings.

In Public: They aren't trying to make a nuanced argument. They just want to get the point across that sharing files = teh badness

In Court: Fucking n00bs. That's what they get for not trying to get across a nuanced idea to the public. The lawyers end up making the same argument they see over and over in the press releases.

I skimmed that affidavit and I wonder how that trial came out. It seems like the plaintiff (an RIAA company) filed a seriously defective lawsuit.

This article is hysteria

[wealthychef]

Did anyone read the linked-to material? They are saying that putting *copyrighted* materials in a shared folder is illegal. Not just sharing any files. I'm no defender of RIAA, but let's try to get a fact straight.

Below is some material quoted from it, by one of the attorneys for Ms. Barker.

Opposition Papers in Elektra v. Barker in Manhattan Argue for Expansion of Law

[Legal]

In opposition papers served yesterday in Elektra v. Barker in Manhattan federal court, the RIAA has argued that merely making files "available for distribution" is in and of itself a copyright violation.

Were the courts to accept this misguided view of copyright law, it could mean that anyone who has had a shared files folder, even for a moment, that contained copyrighted files in it, would be guilty of copyright infringement, even though the copies in the folder were legally obtained, and even though no illegal copies had ever been made of them.

Re:This article is hysteria

[Kadin2048]

Yes. If the website with the copywritten material didn't have permission to post / republish it, it's obviously illegal. That's uncontroversial, and not what the issue here is about.

Essentially, what the RIAA is trying to do is eliminate the line between making something available for distribution, and actually distributing it. That is, right now there's a distinction between offering something that's not yours, and actually going through with it and transferring the property-that's-not-yours to somebody else. At least as I understand it, currently no crime is committed until the transfer actually occurs. I could have ten million MP3s on an FTP site, and as long as all anyone does is browse the directories, no harm done. When somebody downloads one, I'm in trouble.

What's new is that they want to make putting a copyrighted file into a shared folder (or FTP site, whatever) an act of distribution, in and of itself, regardless of whether anyone actually takes you up on the offer and downloads/transfers the copyrighted file.

It makes a certain twisted kind of sense, since putting the file into the folder is the only action that the sharer actually takes -- therefore, it's demonstrative of their intent (to redistribute).

I'm not sure that I agree with this, but I'm willing to play along for a moment, because I think this line of thinking could lead to strange places. I tend to wonder, if this actually became accepted, whether it wouldn't move the liability for copyright infringement from the downloader, to the sharer/provider. I.e., if you downloaded something from somebody else's shared folder, you'd begin to have a bit of a defense that you thought it was legal, because it would be illegal for them to put anything in the shared folder that wasn't authorized. It's basically a movement of responsibility.

And this, I think, is why the RIAA is so interested. It's difficult to track down the myriad individuals that download content, but it's relatively easy to track down the people that are sharing or seeding content. By moving the legal burden onto them, rather than on the downloaders, it gives them a much stronger hand. It's no longer necessary for the RIAA to prove that somebody downloaded a particular file from your computer, just that you offered it up for that purpose.

Like I said, it makes a twisted kind of sense.

Re:This article is hysteria

[orthogonal]

Did anyone read the linked-to material? They are saying that putting *copyrighted* materials in a shared folder is illegal. Not just sharing any files

Technically, any creative work is copyrighted. If I write some code, is it illegal for me to put it into a shared folder? What if I write it, like most employed coders, as work for hire, such that my employer owns it? Have I broken the law by putting in a shared folder? Have I broken the law by uploading it to a publicly read-able CVS repository?

Hey, my briefcase has a copyrighted book in it. I accidently left my briefcase open, next to copy machine, where anybody could have made copies of that book. Am I guilty of illegal negligence, or am I just a straight up "thief"?

I own a bunch of copyrighted books. There's a Kinkos down the street. Is it illegal for me to leave my front door open? Can I put my books on the porch? Can I lend one to my next door neighbor, or is any of that illegal too?

This is a bizarre criminalization of mundane, innocent, and customary activities, solely intended to create a climate of fear.

More and more, our every-day right to "pursue happiness" is being taken away by those who profit by making us fear.

• Fear the terrorists, submit to a an invasive search every time you go to the airport.
• Fear the kiddie porn addicts, live in fear that your Google searches will be misinterpreted.
• Make a mistake on your taxes, live in fear of an audit or jail.
• Carry a sign in protest, live in fear of arrest.
• Donate to the "wrong" political party, live in fear of not being allowed to do your job.
• And now, accidently put an mp3 in a shared folder, live in fear of jail time.

Look, I agree, the record companies have a right to copyright. But Americans have a right not to live in fear. We've got thousands of people living in fear in order to provide fancy cars and three houses each for a few record company execs. It goes too far.

It's time for all of us to draw a line in the sand, and say we won't live in fear anymore. America's turning into Orwell's worst nightmare, the dirty drab gray life of a rat hiding in the shadows to avoid the stomping jackboots.

If this bullshit is "safety" from "the terrorists" I don't want to be safe anymore.

If living in fear is the cost of listing to the latest boy band from Sony, it's not worth it anymore.

It's time for Americans to get up on our hind legs like men and tell the fear-mongers that we've had it with them.

Calm down, you schmucks.

[cpt kangarooski]

Most of the posters here so far have been flying off the handle over nothing.

One of the links in the story post tells us that the cases is Elektra v. Barker. While we don't yet seem to have the argument referenced there in front of us, we do have the original complaint from about mid-2005, here, thanks to one of the few people that's posted here whilst keeping there wits about them.

Basically RIAA is merely saying that Barker ran Kazaa, and was sharing some music with it. They're suing her for having done so.

Copyright does include an exclusive right of distribution (17 USC 106(3)) which has frequently been held to cover serving files. And just to preempt some people who will surely latch on to that, note that there are many different rights within copyright, and this is but one of them. Making copies of files, which necessarily happens when you download, is also covered under copyright, and can be infringing as well.

Obviously the RIAA is not saying -- as many people here assume -- that putting any file on a server is illegal. That's beyond even them. What they are saying is that where the files are copyrighted, and the copyright holder hasn't authorized it, and there's no applicable exception in copyright that would permit it, then it's illegal. Certainly as a civil offense, and possibly also as a criminal offense. (Compare 17 USC 501 with 506 and 18 USC 2319)

So if Alice writes a book and puts it on the Internet for anyone to download, that's fine. If she puts a public domain book on the Internet for people to download, that's fine too. But when she puts up Bob's book, without permission, she's got some trouble.

So far this seems to be an amazingly boring case. And, if the facts are as RIAA says, it's probably open-and-shut in their favor. Like it or lump it, copyright suits are generally pretty simple.

So what could be interesting about this? Well, and I'm just guessing here, since I have not seen anything recent about this from the plaintiff, I suspect that the plaintiff said that making the files available to be shared via Kazaa was unlawful distribution, even if no one ever downloaded the files.

This runs contrary to another case, where the court held that an offer to distribute (which is what placing a file in a share is) is not actual distribution, and that only the latter is unlawful. So RIAA or another plaintiff has to catch a defendant actually serving the file to someone. I would not expect that it matters who it is served to. If the copyright holder were to download it themselves, in order to gather evidence, that would probably suffice. (And before someone claims entrapment, let me remind you that that only applies where one is coerced into doing something that one would not have otherwise done. If you were going to share the file with anyone who requested to download it, then the fact that you did so with the wrong person is bad luck for you, but won't get you off the hook)

If the plaintiff never d/l'ed the file, then this also raises the question of whether the files were actually copies of the music in question, or if they were just labeled that way. Given that the plaintiff appears to have the file listings in hand, they'll probably win this. In a civil suit, which this is, the standard of proof is a preponderance of the evidence. It is not the beyond a reasonable doubt standard reserved for criminal suits. In this case, reasonable doubts as to the facts will not save the defendant; instead whatever is felt to be most likely, even if only by a hair's breadth, is considered the truth. In my experience, when someone (other than RIAA et al) puts up a file claiming to be an mp3 of a song, it usually is.

All told, it seems like a humdrum case that is not worth getting worked up about (unless you think P2P of this sort should be legal, in which case lots of cases are worth getting worked up about). There

Re:Lying assholes

[houstonbofh]

RIAA Web Developer: "Oh shit Bob!" RIAA Manager: "What?" RIAA Web Developer: "All the files on our website ARE IN A FOLDER!"

But understandable

[WindBourne]

This has never been about theft of music. This is about stopping the independants. More and more of the new music is showing up on the net and labels are not needed. If RIAA can not control all the downloads, then it is only a matter of time before they are out of business.