RIAA Wants to Include Song Files it Can't Produce

NewYorkCountryLawyer writes "In UMG v. Lindor the RIAA is trying to include song files it doesn't have copies of as part of its 'distribution' argument. The defendant Marie Lindor is asking the Court to preclude them from doing that. She points to the RIAA's own interrogatory response in which the record companies swore that their case was based upon their investigator seeing a screenshot and then downloading 'perfect digital copies'. They produced eleven (11) copies of song files, but want to be able to prove twenty seven (27) other songs for which they can't produce the files."

Comments

Sounds like....

[bchabot]

Sounds like they're going down the same road as Chief Justice William Stoughton's acceptance of spectral evidence...

Re:Sounds like....

[iamplasma]

Not really. While I know it's trendy to join in on the usual RIAA-bashing, and as a matter of evidence it's really quite sloppy of the RIAA not to have actually downloaded the copies, and I think the misstatement in their filing is even more sloppy (but, honestly, they don't seem to be trying to actually mislead) I'm not really seeing the grounds everyone is going beserk on here. Basically, the difference is between "we searched Kazaa/eDonkey/whatever and this user was offering Metallica's album for download" and "we searched Kazaa/eDonkey/whatever and actually downloaded Metallica's album from this user". The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.

Now, while I suspect as a matter of pure legalism this motion has a good chance of success, I don't think many people would seriously argue that the person being accused here wasn't illegally sharing files based on this evidence. Of course, "proof" in practice and "proof" in law are often two totally different things, but before going beserk and calling the RIAA a bunch of fraudsters, keep in mind they're presenting what is realistically proof enough if you leave the red-tape of legalism out of the equation. Yes, I do know there have been occasions where the RIAA has come up with some possible false positives, and mislabelled files certainly exist, but it's more the exception than than the rule, so on the balance of probabilities, a person who shows up as having a Metallica album on a p2p program more likely than not does, it's as simple as that.

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.

Re:Sounds like....

[Paul Jakma]

The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.

Don't they also pay companies to flood P2P networks with junk files?

I don't see how a filename is indicative of anything, other than the string concerned having been distributed. Not even on balance of probability.

Re:Sounds like....

[Ritz_Just_Ritz]

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.

Spare me. When you're trying to prove someone is guilty of a CRIME, you need to go the extra mile and make sure it's air-tight. If you can't be bothered to do that, then you've got no business taking your case to court. We're not talking about some farmer assuing his neighbor of stealing horses here. This is a big fat well-funded group that has the resources and teams of lawyers/investigators to gather the evidence correctly.

Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?

Re:Sounds like....

[wfberg]

Yes, I do know there have been occasions where the RIAA has come up with some possible false positives, and mislabelled files certainly exist, but it's more the exception than than the rule, so on the balance of probabilities, a person who shows up as having a Metallica album on a p2p program more likely than not does, it's as simple as that.

The problem lies with
1) RIAA agents areknown to put mislabeled files on p2p programs. Ouch!
2) they claim 27 files, and voluntarily introduce 11 they downloaded; they are holding themselves up to a level of evidence they can't fulfill for most of their claim.

They're already basically involved in a sting operation, and are known for having crappy evidence (sueing people that don't even own computers etc.). They're operating a scare campaign. A campaign of terror if you will. Given that so many of their cases are baseless, and the dollar amounts of damages they seek, I can see a judge holding them to a more stringent standard of evidence than, say, some schmoe sueing his neighbor in small claims court over overhanging tree branches.

Re:Sounds like....

[cpt kangarooski]

Well, it may be indicative of something. It's not very good evidence, but it is evidence. The degree to which it is belivable is up to the jury. Clearly, if you were on the jury, you wouldn't believe it. But so long as a reasonable juror might believe it, there doesn't seem to be anything wrong with taking it to them. It's their job to decide this sort of thing.

Besides, even if they downloaded a file and had it, it's difficult to prove that that file came from the defendant's computer. It still largely comes down to how trustworthy a jury would find the RIAA witnesses and evidence to be.

Re:Sounds like....

[dangitman]

You don't get a legal ruling against somebody because they were "probably" doing something. That goes against everything the justice system stands for. Do you think we should send people to jail because they were "probably" burgling a house, just because somebody says so? I'm not sure why you are beiong an apologist for the RIAA, and for invalid evidence in general.

Re:Sounds like....

[cpt kangarooski]

When you're trying to prove someone is guilty of a CRIME, you need to go the extra mile and make sure it's air-tight

Well, this is a civil case, so as it happens no one is trying to prove anyone guilty of any crime. I guess they dodged a bullet there.

Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?

Sure. And a jury can decide which of the two possibilities is most likely to them (since that, and not the stricter 'beyond a reasonable doubt,' is the standard here), and then whichever possibility they find to be most likely is true, for the purposes of the case.

So if you were a juror, and you were being fair to both sides, and they asked you what you thought the file was based on the name, which do you think it probably would be, even if that probability was only a 51% likelihood?

Re:Sounds like....

[cyclop]

The problem is, it should NOT be a crime.

Re:Sounds like....

[NewYorkCountryLawyer]

Yes they do flood the internet with junk files which look like song files but aren't. The only way to tell if it's a real song file is to listen to it from beginning to end. See Reply Memorandum of Law at pages 2-4. As you can see from the deposition testimony excerpted there, the company that 'investigates' for the lawsuits and the company that floods the internet with junk pseudo-song files is the same company.

Re:Sounds like....

[NewYorkCountryLawyer]

They're claiming 38 songs, but they can only produce 11 of them. (Actually I don't think even the 11 are legitimate).

Re:Sounds like....

[denebian devil]

You're mixing up criminal with civil, which have two very different standards for how much evidence is "enough." What would you define the word "probably" as, in terms of a percentage of likeliness? One of the definitions of "probable" is "having more evidence for than against, or evidence that inclines the mind to belief but leaves some room for doubt." Does that sound like at least 51% likely? If so, then it has met the civil burden of proof, which is what the RIAA needs.

Re:Sounds like....

[1u3hr]

I don't think many people would seriously argue that the person being accused here wasn't illegally sharing files based on this evidence. ... so on the balance of probabilities, a person who shows up as having a Metallica album on a p2p program more likely than not does, it's as simple as that.

For one thing, there is no "person who shows up as having a Metallica album on a p2p". There is a node on a P2P network identified by an IP. Connecting that to a particuar computer, let alone human being, is fraught, and though you might feel it likely it belonged to a particular person, that depends on the perfection of the ISP's logs, which were never designed for use as legal evidence, and whether anyone has spoofed it. If you're going to put someone through the hell of the legal process and demand thousands of dollars (for notional, not real) losses, you need a higher standard. That the RIAAA has avoided arguing their cases on their merits and depended on intimidating accused into settling is the point of taking this case to court.

Re:Sounds like....

[EzInKy]

Yes they do flood the internet with junk files which look like song files but aren't. The only way to tell if it's a real song file is to listen to it from beginning to end. See Reply Memorandum of Law at pages 2-4. As you can see from the deposition testimony excerpted there, the company that 'investigates' for the lawsuits and the company that floods the internet with junk pseudo-song files is the same company.


More curiosity than anything else since I believe our copyright laws are totally fubar'd anyway but since everything is copyrighted by default wouldn't even sharing junk pseudo-song files be an infringement?

Re:Sounds like....

[oohshiny]

Well, this is a civil case, so as it happens no one is trying to prove anyone guilty of any crime. I guess they dodged a bullet there.

Are you simply too stupid to figure out what the GP was saying, or are you deliberately trying to confuse the issue by focussing on this irrelevant technicality?

The RIAA demands compensation that amounts to more than what many criminal cases result in, and they may well ruin people's lives with that. The least we can ask of them is that they produce decent evidence.

which do you think it probably would be, even if that probability was only a 51% likelihood?

"Preponderance of evidence" doesn't necessarily mean that; the legal system can well demand stricter proof, even in civil cases.

Re:Sounds like....

[The Only Druid]

One thing it is perfect evidence of is the mens rea of the person sharing those files (if we assume the screenshot hasn't been altered). If the person had a file in their share-list, we know they intended to share that file. If that file is undeniably (big if) a file they had no legal right to share, then we've established that the person intended to violate the legal rights of the rightsholder.

Notice the limitations here: it means nothing if we don't know whether the file was, in fact, a copyrighted file; it means nothing if the trustworthiness is in question.

Re:Sounds like....

[The Only Druid]

Frankly, you're being intentionally obstinate and daft. The OP makes an extremely important distinction: a criminal case carries possible penalties including imprisonment, fines and a permanent criminal record (and all that entails), while a civil case carries only the possibility of fines. In one case, you're a misanthrope, in the other case you're just someone who is a jerk and intentionally violated someone else's rights.

If you think it's so permissible for people to violate others' rights, please post your address, passwords and user names, etc. so all of us can interfere with your rights. That'd be fair, right?

However you feel about the RIAA (e.g. its crappy tactics, its awful music, etc.) they have legal rights. Just because you don't believe in those rights doesn't mean you can ignore them. If you don't think those rights are legitimate, you're welcome to participate in the same legislative process as the rest of us.

Re:Sounds like....

[Paul Jakma]

Only creative elements can be copyrighted. I.e. a bunch of random bits can't be.

That said, I gather sometimes they distribute things like folk music, even porn films rather than junk, under the name of popular albums. So the RIAA (or agents acting on their behalf) apparently are quite happy to violate other people's copyright to "defend" their own (well, their member's copyrights).

Re:Sounds like....

[betterunixthanunix]

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.

Undeniably correct? Which accusation are you referring to, because I know it wasn't the part about their business being significantly damaged by file sharing. In fact, that claim is undeniably FALSE, as this study points out: http://www.unc.edu/~cigar/papers/FileSharing_March 2004.pdf#search=%22file%20sharing%20record%20sales %22. Notice, in the abstract: Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. This would seem to make sense, as most of us should be familiar with the sales reports from Kazaa's high point, which showed the CD sales had more than recovered since Napster's debut -- and Kazaa had far more traffic than Napster, further weakening the claim that the RIAA would be bankrupted by file sharing.

Perhaps this theory would help: most people who use file sharing networks would not have purchased the album in question anyway, so no actual sales were lost. Think about that statement, and think about who is using file sharing networks. Before Napster came out, were college students out buying hundreds of CDs (the equivalent of the thousands of MP3s that some had downloaded and shared)? Certainly not, most cannot afford to spend upwards of $5000 on album collections. So downloading those tracks should not be counted as a lost sale, any more than sharing CDs in a dorm building should (but I wouldn't put it past the RIAA to count it that way). This is why I am always skeptical of economists who say that millions of dollars per year are lost to piracy, because I am forced to ask whether or not the people using pirated music, movies, books, or software were actually going to buy these things to begin with (especially with software, especially when it costs more than $100). The problem is that basic economics does not apply here; the fact that music is available for free does not mean that people will automatically flock to the free stuff, as we learned that they should in economics 101, and the reasons behind this are still being studied.

Re:Sounds like....

[Hikaru79]

Are you simply too stupid to figure out what the GP was saying, or are you deliberately trying to confuse the issue by focussing on this irrelevant technicality?
The only one being 'too stupid' here is you if you think the distinction between a civil and criminal case is an 'irrelevant technicality'. If you had bothered to read the rest of the post, you would have seen him describe the important major difference between a criminal and civil case -- in a criminal case, you need to prove guilt BEYOND A REASONABLE DOUBT (which the RIAA is not doing here), and in a civil case you need to prove it in a BALANCE OF PROBABILITIES, meaning over 50% likelihood (which I'm sure we can all agree the RIAA is doing here. A lot more than 50% of files labelled "Metallica" are indeed Metallica, especially when they've found 11 other correctly-labelled files from the same person).

Whether or not what the RIAA is doing is morally right is certainly in question (I agree with the Slashdot groupthink that it's not), but to try and imply that the RIAA is using its influence to fudge the legal process and get away with things they shouldn't be is simply unfair. This is valid evidence in a civil case, and its up to the jury to decide whether or not to believe it.

Re:Sounds like....

[kfg]

Now, while I suspect as a matter of pure legalism this motion has a good chance of success, I don't think many people would seriously argue that the person being accused here wasn't illegally sharing files based on this evidence.

You are not arguing to the point of the RIAA's claim. The reason for claiming the largest number of files possible is to claim larger damages. Larger damages, with the cocommitant criminal activity that comes with them, are more likely to result in an out of court settlement, for a larger amount of money.

It's an intimidation tactic. The accused is choosing to put up the best fight rather than be intimidated; and everyone here understands that despite their claims, the RIAA has not actually identified an individual who did the sharing, but merely the individual whose name the account is in?

KFG

Re:Sounds like....

[Maxo-Texas]

1) If they had 11 copies they did download.
2) I'd probably believe that the other copies were real too.
3) Then I'd jury nullify anyway most likely.

Re:Sounds like....

[Maxo-Texas]

It is up to the jury to decide if they believe it AND if they agree that the case is morally right.

You shouldn't do something evil just because it's legal when the government has been corrupted as badly as it has.

I think the people are doing something wrong and should be fined a reasonable amount (11 songs is worth 3 bucks via allofmp3.com or $11 via itunes or way less via yahoo all you can listen tho you are renting there).

If someone stole $11 worth of product from a store, what is the proper punishment?

If someone read $11 worth of books in a store but did not take the books, what is the proper punishment?

It's somewhere in that continuem. So I'd probably jury nullify to the best of my ability.

Re:Sounds like....

[phulegart]

If the RIAA was paying companies to distribute junk files that were named after legitimate songs, and then attempted to turn around and point to the existance of those "junk" files that appeared to be real songs as proof of people downloading illegally distributed music, that would make the RIAA guilty of fabricating evidence to assist their case.

It would not be the first time an organization (any Police force, for example) used a fake material (something that looked like cocaine) in a sting operation, for just the act of buying what you THINK is cocaine from an undercover operator, is enough to get you convicted of the same crime as ACTUALLY purchasing real cocaine.

This is different though. If the RIAA was simply distriuting junk files, then monitored who downloaded the junk files to prosecute them, that would be a sting operation similar to the one I laid out above. Based on precedent, that would be completely legal of them. If, however, the RIAA is distributing junk files, then throwing a screaming fit for prosecution based on just the existance of those junk files, that is the same as planting a gun on someone to implicate them in a crime they did not commit.

COnsidering how much trouble the RIAA would get in if they were attempting to ENTRAP people, and combined with the fact that there are more than enough people currently downloading music illegally at this very moment, I highly doubt that the RIAA is paying companies to distribute junk files.

If the RIAA provides screenshots of a P2P program screen, showing that a particular song is being downloaded BY 200 people, while it is also being seeded by another 150, I'd say that is proof of the fact that 150 people have a questionable file, and another 200 are getting it illegally. I don;t believe they have to actually go to one of those person;s house, and watch the song download.

Re:Sounds like....

[Maxo-Texas]

I'm actually not sceptical that millions of dollars are being lost. It's a big industry.
I could easily see that they lose 25 cents per customer per year due to music trading.

For example, when they started charging $20 for a 60 minute CD that i knew cost $1 to physically make, while 2 hour movies with huge budgets were about $15.00, they started losing 2-3 sales per year to me. I chose other locations for my entertainment dollars because they were too expensive.

And when they started suing customers, they lost the last $30 to $45 per year from me and have continued to lose this amount every year.

Re:Sounds like....

[Maxo-Texas]

I agree with your 150 / 200 numbers with this one caveat.

I read here on /. a while back taht RIAA made $54 million off of suits last year.

That is a LOT of financial incentive to fake data.

Re:Sounds like....

[Ritz_Just_Ritz]

Frankly, I think you're being intentionally obtuse. Whether your intention is to injure someone through criminal proceedings or by using the government's gun to bankrupt them, the end result is the same. The accused person is harmed.

The entity that is filing these frivolous lawsuits needs to prove that they are being injured AND they need to produce some evidence against the accused. Producing half-assed evidence (or, INCREDIBLY, no evidence at all in some cases) isn't good enough. The RIAA and their respective thugs are well funded so they don't even have the excuse of financial hardship (just laziness or unwillingness) to justify their lack of evidence.

So please spare me your equal rights plea for the man.

Re:Sounds like....

[Joe The Dragon]

they did the same thing to O. J. Simpson and he got off also many people contend that Simpson would have been found guilty had there not been so many mistakes and irregularities.

Re:Sounds like....

[cpt kangarooski]

No. First, mens rea is not an element of copyright infringement. Infringement is a strict liability offense. At most, mens rea is only relevant in computing damages. Second, intent to infringe is not infringement or any other offense. There must have been actual infringement to support the case. So the contents of the file are crucial to the case. If the file contents were the plaintiff's copyrighted work, then that helps the plaintiff. If not, then that helps the defendant, since there is nothing wrong with sharing a misnamed file which is otherwise lawful to share, even if it's done unwittingly.

However, so far as we can discern what the contents were based on the name, which is a jury question, it's still possible to win a suit without actually showing what the contents are. But I wouldn't like to have to do that, since it's not a strong position.

Re:Sounds like....

[jelton]

I'm pretty sure the RIAA's attorney would have dismissed you during jury seletction.

Re:Sounds like....

[Dantu]

I am forced to ask whether or not the people using pirated music, movies, books, or software were actually going to buy these things to begin with (especially with software, especially when it costs more than $100). The problem is that basic economics does not apply here; the fact that music is available for free does not mean that people will automatically flock to the free stuff, as we learned that they should in economics 101

While I agree with your main point, I think you missed the bit about "basic economics".. I fact I took Econ 101 (at U Waterloo) not too long ago. If music is essentially free & unlimited, you move very far along the 'demand curve' to the point where it isn't worth the effort to download more. If music costs $10-$35 / CD (or $1/track) then you move WAY BACK because, as you said, students don't have much money. Product differentiation is why CD sales themselves don't go away (a downloaded track is not completly interchanable with a purchased CD). So really is IS basic university economics, but not basic "joe sixpack" economics.

Re:Sounds like....

[Maxo-Texas]

I've been selected for juries before.

It's pretty easy to get deselected.

But if I'm not going to admit that I believe in jury nullification.

I just don't believe in the justice system any more. They've criminalized so much- we've seen innocent people sent away to bolster a prosecuting attorney's record so many times- and seen attorney's not just defend but get people off on a technicality that they know are scum. It's just a big game to them.

The law, and it's enforcement, is increasingly arbitrary and random.

Re:Sounds like....

[tepples]

Only creative elements can be copyrighted. I.e. a bunch of random bits can't be.

Given the controversially broad scope of exclusive rights that the court system has recognized in musical works[1], it is likely that even randomly generated music may be substantially similar to a copyrighted work.

That said, I gather sometimes they distribute things like folk music, even porn films rather than junk

You're talking about cuckoo eggs, right? If you write your own folk songs, how can you be sure that you didn't subconsciously copy a copyrighted song into your own work?

under the name of popular albums.

Ooh, an excuse to get sued under trademark law too.

[1] For those playing at home, "musical work" is roughly a work that can be fixed in copies called sheet music. An audio CD is a phonorecord of both a musical work and a sound recording of the work's performance.

Re:Sounds like....

[Maxo-Texas]

They may have been intentionally sharing a file they owned copyright to (say a 3 meg picture file of themselves) that they renamed to "stones-gloria.mp3" because they are vehemently against copyright infringement.

Re:Sounds like....

[tepples]

If someone stole $11 worth of product from a store, what is the proper punishment?

Amputation of the dominant hand, according to some scholars.

If someone read $11 worth of books in a store but did not take the books, what is the proper punishment?

Nothing, as no reproduction was made. The brain is not deemed a tangible medium and thus cannot become a copy or phonorecord.

Re:Sounds like....

[tepples]

that depends on the perfection of the ISP's logs, which were never designed for use as legal evidence

Yet. The copyright industry wants the US Congress and foreign counterparts to force some minimal logging policy on all ISPs that have customers in more than one state/province.

Re:Sounds like....

[BakaHoushi]

I do sort of agree with you. While I do understand the necessity of seperating criminal cases and civil cases, it is, essentially, a legal mugging here. The RIAA can't hold a man up with a gun to the head or heart, so they hold it up to his wallet.

Just because a man can't be put in jail for a lawsuit doesn't mean, though, that the evidence should be any less sufficient, in my opinion. I cannot say I'm informed enough to say whether or not this is "sufficient evidence" I do know that the "evidence" put forth by the RIAA before in other cases has often been questionable at best. In this case, I think that the biggest problem is that, how can the RIAA prove that it's being "harmed?" I'm saying in a sense that, when you catch someone shoplifting at your store, you have prove that you're being harmed. You cought someone making off with YOUR property. In this case, though, it isn't theft. It's copyright infringement. And we have to wonder, are these people losing sales to this? Is anyone losing anything? I don't buy the argument of "every download is a lost sale" (For a number of reasons, which are too numerous to list here and I'll assume they're obvious enough).

To me, it feels like if I went to a mall, and a shop owner pulled me over and said, "We print and have copyright over that design on your shirt. We're sending a team of investigators over, on your expense, to make sure you obtained that legally and aren't making shirts yourself."

Essentially, a company is charging someone to prove their innocence, or, for a slightly lower cost, you can plead guilty and they'll go easy on you. I'd certainly like to see some more concrete evidence before these things go to trial, and have the RIAA pay the legal fees of the innocent.

Re:Sounds like....

[jandrese]

Is that net or gross though. Lawsuits are expensive and it's easy to see how a few stubborn eggs could really increase your legal costs and cut into the bottom line.

Re:Sounds like....

[VTMarik]

This isn't evidence, this is conjecture. If someone was shot, and then the DA held up a picture of you holding a gun similar to the one used to shoot that person, would that be real proof that you did the shooting? No.

I hope the court does the right thing and disallows the use of these other 'songs,' which may or may not be actual.

Re:Sounds like....

[Dun Malg]

As for the latter comment: "I just don't believe in the justice system any more." Maxo, let me assure you that the justice system, in fact, does exist. Maybe I can stop believing in morons...

The phrase "believe in" also can mean "have confidence in".

Re:Sounds like....

[freakmn]

Between your comment, and your parents, I just had a horrible thought. What if the RIAA copyrighted the junk files it's paying people to distribute? I mean, they can give permission to the people they are paying to distribute it, but no permission to the people distributed to. So really, you might be able to be sued for distributing the junk files. I have no legal background, so perhaps this is a bunch of crap, but it is a horrible idea, I think. On a side note, wouldn't it be ironic if someone was attempting to download some pop music, and got a junk file, but liked the junk file better than what they attempted to download? I'd suppose with some of the crap that is out there, that a junk file has a decent chance at being better.

Re:Sounds like....

[evilviper]

Only creative elements can be copyrighted. I.e. a bunch of random bits can't be.

So several seconds of complete silence is a "creative element"?

Re:Sounds like....

[evilviper]

since everything is copyrighted by default wouldn't even sharing junk pseudo-song files be an infringement?

No. The people who own the copyright on those files, are explicitly making them available for free download on P2P networks. That precludes them suing others for doing the same, since you have at least implicit permission from the copyright holder.

Re:Sounds like....

[rolfwind]

Honestly, if I were on the jury, I would first try to see what the little guy is getting sued for (how much $$$). Then I will see if this was someone trading peddling files left or right or if it was someone trading a few files much like kids used to do with CDs in the schoolyard.

If he was a peddler, I would weigh whether the jury can fine him or if the judge. If the jury can fine him, I'd be willing to put in a guilty verdict and the appropriate fine for a peddler. The person who trade a file here and there I would let off.

If the judge decides the fine, then I would put in a innocent vote under all circumstances. No one's life is worth ruining over a few songs.

I would not listen to any judge's or court's directions (nor yours parent poster) on how to vote either as this is an infraction against the power of a jury and voting by conscious (and ignoring the judge) is perfectly okay and is called Jury Nullification.

Re:Sounds like....

[Jah-Wren Ryel]

However, so far as we can discern what the contents were based on the name, which is a jury question, it's still possible to win a suit without actually showing what the contents are. But I wouldn't like to have to do that, since it's not a strong position.

I have not seen the screen-shots mentioned, but if they include the file's hash, and the RIAA can produce their own copy of the file that has the same hash and is an actual copy of the work in question, that ought to be sufficient. Unless they wish to argue that the defendent's software was handing out bogus hash, which might result in a bad trip.

FWIW, I know a guy who regularly shares non-American, and presumably non-MPAA, movies via his preferred p2p apparatus. He recently told me that he decided to stop sharing Blood Rain for fear that the MAFIAA wasn't smart enough to distinguish it from BloodRayne.

Re:Sounds like....

[Khyber]

There's an even larger problem here. Most P2P programs download chunks of a song, not the whole song (usually unless there's only one source) from many different computers. So, she's not even technically giving the whole song, just chunks of it. What means was the RIAA using to access her shared files? If they were using soulseek, I could understand them saying they got the files from her computer. If they were using limewire/kazaa/emule then I'd be a little wary of the evidence. Oh, and as someone else mentioned, don't the **AA's pay P2P networks to host up bogus files, as well as the **AA using their own connections to cloud the results further? How can they be sure all the songs she's sharing aren't their bogus crap?

Re:Sounds like....

[NMerriam]

The people who own the copyright on those files, are explicitly making them available for free download on P2P networks. That precludes them suing others for doing the same, since you have at least implicit permission from the copyright holder.

There's no such thing as "implicit permission" to redistribute a copyrighted work. Either you have explicit permission or you don't have the legal authority to distribute.

Re:Sounds like....

[Soporific]

I'd have to say you are right on the money (no pun intended) with that one. I actually just bought 2 CD's for the first time since the pre-Napster era and both were $9.99 which I didn't feel ripped off about. The funny thing was that I mostly did it to feel like I used to when I'd go to Tower Records, buy a CD and plop it in the CD player of my car before driving out. It brought back some memories I'll tell you that.

~S

Re:Sounds like....

[wwphx]

If the concern is that RIAA is matching on file hashes, why not alter the file to ensure the hash values don't match. Add a second of silence to the front or back, or speed it up or slow it down 1%? Most people wouldn't notice the diff (yes, there are plenty of people who can hear a 1% pitch change, I don't think most people could hear it in a less than perfect acoustic environment.)

The next step would be to modify the ripping software to do a random alteration during the ripping process, perhaps doing a double-rip so that the true hash is known to ensure that the altered version's hash doesn't match.

It wouldn't stop the RIAA if they actually took time to download and listen to the music, but it would slow down any form of auto-search for matching hashes.

Of course this is purely an intellectual exercise, I have no idea how the RIAA investigates someone for file sharing. The only music sharing that I do is between me and my wife, and I'm sure the RIAA would like to put a stop to that.

Re:Sounds like....

[evilviper]

There's no such thing as "implicit permission" to redistribute a copyrighted work.

You're apparently not a lawyer.

(not that I am, either, I've just studied the issue)

Re:Sounds like....

[arth1]

One thing it is perfect evidence of is the mens rea of the person sharing those files (if we assume the screenshot hasn't been altered). If the person had a file in their share-list, we know they intended to share that file. If that file is undeniably (big if) a file they had no legal right to share, then we've established that the person intended to violate the legal rights of the rightsholder.

It's a bigger if than most people realise. The record companies don't own any and all performances of a tune -- they hold the copyright to specific recordings. If Virgin holds the copyright to all Artist X CDs released in the US, that doesn't give them the copyrights to the song I legally downloaded from the artist's own site, nor the vanity 12" single.

Finding a song that they hold rights to doesn't prove anything, as I can have a different performance of the same song -- they have to prove that they hold the copyrights to the particular performance that I have a copy of.

Regards,
--
*Art

Re:Sounds like....

[matt4077]

Don't forget that even the junk files are protected by copyright. Anyway, these are civil cases, meaning they don't need definite proof. And personally I don't find it impossible to believe that people are downloading copyrighted material. People tell me it really happens sometimes.

Re:Sounds like....

[Karzz1]

"So several seconds of complete silence is a "creative element"?"

Apparently silence can be copyrighted.

Re:Sounds like....

[tcc3]

Dear Mr Ritz,

I has come to our attention that your Aunt Milly performed a licened work without permission at her recent piano recital. Her flagrant abuse of our IP prevented poor Lars from buying a second Gold plated Ferrari. She must stop this criminal activity immediately or face the consequences.

Your Pals

The RIAA

Re:Sounds like....

[lunadog]

The only way to tell if it's a real song file is to listen to it from beginning to end.

... and even then it's pretty hard to tell with most of the RIAA shi^h^h^h quality offerings..

Re:Sounds like....

[oohshiny]

and in a civil case you need to prove it in a BALANCE OF PROBABILITIES, meaning over 50% likelihood (which I'm sure we can all agree the RIAA is doing here.

First of all, it's called "preponderance of evidence", not "balance of probabilities". Furthermore, it is logically and legally incorrect to weigh each individual piece of evidence under that standard; "preponderance of evidence" only applies to the case as a whole. Individual pieces of evidence can very much be thrown out (and often are) even if they support the conclusion 100%.

but to try and imply that the RIAA is using its influence to fudge the legal process and get away with things they shouldn't be is simply unfair

It's not unfair at all--it's exactly what they are doing. They had the opportunity to collect and present strong evidence but they chose not to. Either they are being sloppy, or they are trying to set a precedent that file names and screen shots are sufficient. Neither of those is acceptable behavior, and the evidence should get thrown out. Whether we believe these pieces of evidence to support the conclusion with more or less than 50% probability is irrelevant.

Re:Sounds like....

[LadyMatika]

no shit they are about to lose and so they do what assholes do best cheat !!!!!!!!!

Re:Sounds like....

[iamplasma]

They may have been intentionally sharing a file they owned copyright to (say a 3 meg picture file of themselves) that they renamed to "stones-gloria.mp3" because they are vehemently against copyright infringement.

Heck, it could be a complete fluke of quantum probability, what with there being a non-zero but impossibly small chance that the file spontaneously formed on the hard drive. However, it's not very probable, just as it's not very probable that it's someone hosting a fake file, doubly so when it's already been established by downloading 11 songs from the person in question that they don't seem to have any problem with copyright infringement. The overwhelmingly probable explanation is that the person who is purporting "Metallica - Enter Sandman.mp3" is in fact hosting that song, and so is infringing on copyright.

Re:Sounds like....

[iamplasma]

They're claiming 38 songs, but they can only produce 11 of them. (Actually I don't think even the 11 are legitimate).

Why don't you think the 11 songs are legitimate? It's not like it's hard to track down copyright violators online, there's no reason for the RIAA to try to frame someone, and as far as mistaken identities, while there are some rare examples where it appears to have occurred, I don't see any real reason at all to believe it has occurred here.

Re:Sounds like....

[kimvette]

Independent law firms are expensive.

Staff attorneys (of which major labels have many) are not, and in all likelihood they have a bunch of paralegal interns doing the grunt work and the staff attorney probably just signs whatever paperwork they produce and shows up at the token court appearances for the few folks who bother to stand up against the tyrants.

Re:Sounds like....

[NMerriam]

You're right, I'm a professional artist who consults with intellectual property attorneys on this topic on a regular basis. My entire career is based on copyright. My rent is paid with copyrights and my food is bought with copyrights. 99% of the contracts I've negotiated in the past 15 years of my life have been about copyright.

There is no such thing as implicit permission to redistribute copyrighted material. There is Fair Use, and there is explicit permission, but nothing in-between. You could argue in court that damages should be lower because you believed you had implicit permission, but you would still be guilty of violating the copyright holder's exclusive authority to distribute. There is no way under current US law to transfer any right of reproduction or distribution without an explicit statement.

Re:Sounds like....

[0x0000]

it's trendy to join in on the usual RIAA-bashing

Aye, that's true enough - probably a good reason for it, too - I suspect it's part of a more general trend that has people supporting the Rule of Law (as opposed to the more pernicious Rule-of-the-Company-with-the-Biggest-Stick-and-the -Meanest-Thugs that the RIAA has been making their millions out of for so many years now..)

Of course, bucking the trends is also quite trendy - has been pretty much since the beginning of time, so you're not quite so outre as you seem to believe yourself to be, either.

The RIAA aren't making evidence up here

I remember a time within my lifetime when - as we talked about these things (Law and Courts) - when we all understood that in the US Justice System there was a principle of presumed innocence. That is, the defendant is innocent until proven guilty beyond a reasonable doubt before a jury of their "peers"... Now, I'll give you that in practice this has not always worked as well as we might like (particularly in retrospect), but I am constrained to point out that in this case the burden of proof is on the RIAA to prove the defendant guilty - the defendant is not required to prove their innocence - in fact, the defendants should be presumed innocent until we have some reason to believe otherwise. So your statement there is disingenuous, at least, and more likely a deliberate attempt to mislead - especially given the way you follow it up...

it's simply the question of if search results are proof enough.

Not really. It is still an open question as to a) whether or not it is illegal to share music on the internet, and b) whether some alleged viewing of a search engine result list constitutes proof - I think this last is one of the things they're trying to set a precedent for, here.

Note that sharing songs on the internet is not illegal just because RIAA sez so. There has to be some legal activity to establish it as a point of Law. Then there has to be some guidelines about proof in such cases.

I don't think many people would seriously argue that the person being accused here wasn't illegally sharing files based on this evidence.

Huh. So do you want fries with that? There seems to be some hearsay evidence by a contracted third party that the invdividuals had some files on their drive, and that those files were accessible via some file sharing service. What the RIAA has not done (at least not to my satisfaction) is prove that this file haring is illegal. I guess that will have to be up to the jury - there is a jury, right?

Anyway, guys, quit the RIAA bashing.

Uhmmmm ... no? I could make a plausible case for self defense and "the public good" for this "bashing" of the RIAA - they are, after all, racketeers, gangsters, and thugs who are known to have killed off musicians when the musicians became "inconvenient" to hold to a contract. The RIAA are scum - they're right up there with insurance companies and lawyers. How the fuck are you going to tell me not to bash them? If they don't like it, they can fucking sue me. I think I could can make a plausible defense against their slander and libel charges ["bashing"]. Clue: It's not slander if it's true, it's just journalism.

don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.

Sounds like you've been watching too much Law & Order. That's just pathetic. Of course they're a pack of liars - Perhaps you could give us a good reason to believe them? They are known to be liars. Why should we believe their djinned up hearsay evidence is anything at all except a stage show designed to lend some misbegotten appearance of legitimacy to their sociopathic behaviour? The RIAA are the criminals here...

You're simply cheerleading for the RIAA's model of reality. You sound like a cyber-turfer - who signs your paycheck?

Re:Sounds like....

[mrchaotica]

Hash-matching is also how the P2P apps figure out when two people have the same file, so that it can be downloaded from multiple sources at once. So, doing what you suggest would screw up the RIAA but would screw up the P2P network too.

Re:Sounds like....

[mrchaotica]

wouldn't even sharing junk pseudo-song files be an infringement?

Those junk pseudo-songs were intentionally distributed via P2P in the first place! It would be fucking ludicrous for the legal system to accept a party giving the damn thing away on P2P and then suing the people they just gave it to for copyright infringment!

So, to answer your question, yes (because the legal system is fucking ludicrous).

Re:Sounds like....

[number11]

Most P2P programs download chunks of a song, not the whole song (usually unless there's only one source) from many different computers. So, she's not even technically giving the whole song, just chunks of it.

I'd expect that uploading a chunk is pretty much the same as uploading the whole thing, from a copyright perspective. A chunk is still a copy of (part of) the copyrighted work.

Re:Sounds like....

[paraax]

The RIAA has no authority to sue on behalf of any copyright holder who has not agreed to be represented by them.

If they could then the following scenario would also be possible:

1. I am working in a school computer lab.
2. I witness someone on the computer in front of me download something which I suspect they do not have authorization to do.
3. I witness that person copy that file to a media, leaving the original download in the tmp directory.
4. Lets even say I happen to know said person, so identity is not in question.

Given these facts I would then be able to sue that person for "not more than $150,000." While a fun possibility, the actual act precludes this. At most I could notify the copyright owner and agree to serve as a witness to the act if they decided to bring the case. Similarly, the most RIAA could do in the P2P case is find the copyright owner and notify them, agreeing to provide the information that have collected.

Re:Sounds like....

[cpt kangarooski]

What if the RIAA copyrighted the junk files it's paying people to distribute?

It would depend on what the file consisted of, but it's entirely possible.

Re:Sounds like....

[Achromatic1978]

First of all, it's called "preponderance of evidence", not "balance of probabilities".

Actually, in many jurisdictions (although presumably not the US, which is the relevant one here), it is called "balance of probabilities".

Re:Sounds like....

[Schraegstrichpunkt]

Unless they wish to argue that the defendent's software was handing out bogus hash

Or somebody was executing a man-in-the-middle attack.

Re:Sounds like....

[Mistshadow2k4]

It's quite amusing to call a dead woman a "possible" false positive. What, she was file sharing songs in Heaven or Hell? I'm sure a case could be made that the copyright laws don't apple there.

Re:Sounds like....

[Maxo-Texas]

The other person pretty much covered it.
They have lawyers on staff with para legals so the costs are fixed.
If you think about it, that is even more incentive to make at least enough lawsuits to cover those fixed costs.

Re:Sounds like....

[Maxo-Texas]

Yes I could have said
I don't have confidence in ...
I don't have faith in ...
I don't think the justice system is just any more...
I can't count on the justice system to be fair any more
etc.

However, I believe that it is accepted usage the way that I wrote it.

Re:Sounds like....

[Maxo-Texas]

I agree that if you downloaded real songs from them, then it is probable that the rest are. However, a SCREENSHOT showing they have more songs, doesn't prove a lot when Riaa has so much money to earn for each copy they sue for.

However, from what I hear on some file sharing services your odds of getting a bad song is pretty high.

They may even be serving something that they think is Sandman but is really a trash file uploaded by riaa's agents.

Re:Sounds like....

[cpt kangarooski]

No, that's evidence. Juries are intended to engage in conjecture. After all, they're given two different stories of what happened, a variety of facts, many of which might disagree with one another, and are told to sit down and figure out what they think really happened. Figuring out the true facts is precisely what juries are meant to do.

Conjecture would be if a witness speculated as to what happened, instead of simply saying what he knew and letting the jury draw their own conclusions. Showing the screenshots as pretty much the sole evidence of the act of infringement isn't conjecture. Just weak evidence, which the jury is free to believe, or not believe, or only partially believe, as they see fit.

Re:Sounds like....

[cpt kangarooski]

In this case, I think that the biggest problem is that, how can the RIAA prove that it's being "harmed?"

Assuming that they're seeking statutory damages, and that they are able to get them, both of which are very likely, the law does not require that they be harmed, or that they prove that they were harmed.

Re:Sounds like....

[evilviper]

Apparently silence can be copyrighted.

That was precisely my point.

Re:Sounds like....

[evilviper]

There is no such thing as implicit permission to redistribute copyrighted material. There is Fair Use, and there is explicit permission, but nothing in-between.

So you're saying in no uncertain terms, is that it is absolutely, positively illegal for anyone to download absolutely anything (not public domain) from Bittorrent, even if the AUTHOR of the work is making it available?

Re:Sounds like....

[rtb61]

So facts before a court of law become probabilies. Just like the original probability, that a computer in someones house only carries out the desired commands of the person in that house who has the internet account in their name (viruses and trojans and microsoft unwarranties do not exist). Copyright infringement is against the individual, not the individual's computer or their internet account. The RIAA must prove the individual they are suing carried out the infringement, not that they were likley to based upon the circumstantial evidence produced by currently unwarrantable technological solutions, benefit of the doubt under the law, is always with the defendent.

At no point is a person hosting anything. An IP address is the only thing that is giving an indication of anything at all. A claim of IP address validity is clearly questionable as it can not be proven to be reliable, and has already shown to be legally invalid on many occasions (all those dismissed cases the RIAA walked away from). At the moment these cases are being launched based purely upon the opinions of the paid agents of the RIAA and the only evidence is the evidence that those agents digitally created upon computer hardware that they have control over.

Could the evidence be faked, absolutely, where the evidence has pointed to an IP adress which was clearly false, then the probability that the agents faked the evidence is the only solution according to their own logic because the IP adress produced by the internet is 100% reliable according to them, so where it is false, then the only solution is that they fabricated false evidence.

Re:Sounds like....

[NMerriam]

It would be a violation for you to redistribute what the author makes available to you, unless the author specifically states that it is okay.

Whether or not Bittorrent constitutes redistribution is something for the courts to decide. Assuming the tracker is authorized by the copyright owner to distribute the material, since it is coordinating who is allowed into the peer group it would make sense to say the tracker is really controlling the distribution from a legal standpoint. But we've seen crazier decisions about what constitutes redistribution and duplication.

There is also a huge difference between what is technically a violation and what anyone actually cares about. Like traffic violations, most of us unintentionally commit copyright infringement on a regular basis, but 99% of it is pretty harmless an even if the creator was standing right next to you he wouldn't care. Every artist I know photocopies the work of other artists to send to each other and we don't give it a second thought, even though we know it is technically wrong. We just assume the original artist isn't a total douche who goes around suing people for distributing copies of his sketches to other artists. But there are some who don't like it, and people respect that without requiring lawyers to get involved.

Re:Sounds like....

[MacWiz]

I highly doubt that the RIAA is paying companies to distribute junk files.

Then you haven't been paying attention.

Sept. 26, 2002, in a House subcommittee discussion about peer-to-peer, Hilary Rosen told Congress the following:

"We have to look at things like spoofing. The New York Times yesterday gave credit to spoofing for spurring the development of the legitimate marketplace, exactly what this Committee and what everybody should want to achieve.

"Unfortunately, this week, we saw this announcement, that Sharman Networks in their new KaZaA download has decided that they're going to hamper spoofing. They can get away with technical measures against us, but all of this public outcry about technical measures to support ourselves. So spoofing has been effective, but it is at risk. Because of this, we have to be able to keep up."

There was never a question of whether they are doing it or not.

Re:Sounds like....

[evilviper]

It would be a violation for you to redistribute what the author makes available to you, unless the author specifically states that it is okay.

I would be happy to look through any case histories or precidents you can list on this topic.

Every artist I know photocopies the work of other artists to send to each other and we don't give it a second thought, even though we know it is technically wrong.

The quickest way to a police state is to enact laws that are only selectively enforced.

Give all the roads ridiculously low speed limits, then the cops can arrest anyone they happen to dislike for any reason.

Re:Sounds like....

[NMerriam]

I would be happy to look through any case histories or precidents you can list on this topic.

The US Code spells it out pretty clearly. Of course, any book on copyright will say the same thing, and probably in a more readable form. Tad Crawford, who taught the first class I ever took on the subject, has written a few dozen books on the subject specifically geared towards visual artists. I know the laws on audio recordings and motion pictures have slight variations. Also keep in mind that we are signatories to the Berne Convention, which generally strengthened author's rights and requires a bit more formality when the courts interpret it since it is an international treaty.

The quickest way to a police state is to enact laws that are only selectively enforced.

You won't find much disagreement with me on that. But copyright is generally enforced through civil litigation, so it isn't usually an issue of police enforcement. Since civil lawsuits cost money to start, it wouldn't make sense for people to go after every minor violation. I certainly wouldn't like to be required for some reason to shell out thousands of dollars every time someone photocopies a drawing of mine without asking first.

Re:Sounds like....

[LittleBigLui]

So several seconds of complete silence is a "creative element"?

A musical composition which apparently consists of only silence, but thereby actually focuses the listener on the sounds that the audience (and the environment) produce, showing the actual impossibility of "silence" in such a context?

I'd certainly call that at least as creative as the gazillionth composition using the same basic set of instruments, song structure, melody, harmony, rhyhtm, optionally lyrics and topics that have been done to death for hundreds of years.

Re:Sounds like....

[tinkerghost]

Interesting point, because you can use short segments of a copyritten work without the copyright owners permission. In other words I do not need to pay royalties to play the first 4 bars of some song. It's part of the fair use portion of copyright law. So in theory, since torrents never serve the whole thing, the technical mechanism of serving files via torrents may sidestep copyright rules. Of course I wouldn't want to be the person trying to get that past a jury.

Re:Sounds like....

[NewYorkCountryLawyer]

There were only 9 listed with the complaint. No reason for them to have omitted the other 2 if they actually had them.

Re:Sounds like....

[From A Far Away Land]

Wouldn't it be a hoot if the RIAA secretly hired someone to get sued, then fight the lawsuit, then lose because the defendant's case was fixed to be very bad? That would make a decent MPAA movie years later.

Re:Sounds like....

[BryanL]

If I was on the jury I would push for Jury Nullification.

Re:Sounds like....

[wwphx]

So it would. In the immortal words of Emily Letilla: "Nevermind."

Like I said, I don't do P2P, so I was unaware of that. I did some for a friend several years ago who needed some Billy Joel tracks for a school project, and her disc was DRMd. I remember searching for titles, I never thought about how the system streamed from multiple sources.

Re:Sounds like....

[NewYorkCountryLawyer]

If this goes to a jury trial, I expect to win the jury trial without the need for "jury nullification". Ms. Lindor has never even used a computer in her life. There is no way the RIAA can prove its case, and they know it. The only reason they are keeping the case open is that a pending litigation is a very convenient platform for an investigation, because it gives the RIAA lawyers subpoena power.

Re:Sounds like....

[cpt kangarooski]

That would result in severe sanctions for everyone involved, and would result in the case becoming void once the scheme was discovered. I strongly doubt it would happen, particularly since there's no need: plaintiffs in copyright cases have an extremely strong position to begin with.

Re:Sounds like....

[NMerriam]

even if you want to limit it to redistribution only

That's how the law limits it.

think Google's cache & the Internet Archive, both of which are still up last time I checked... They seem to get by with implicit permission, at least until someone makes it explicit that they're not allowed to any more.

They get by with the claim of Fair Use, which requires no permission. If you check earlier Slashdot stories you'll see that some publishers are challenging even that, and winning in some courts. It comes down to the practical matter of most people finding it more beneficial to be indexed/cached by Google than exerting their full possible rights to exclusive control.

Re:Sounds like....

[cpt kangarooski]

In other words I do not need to pay royalties to play the first 4 bars of some song. It's part of the fair use portion of copyright law.

That is untrue. Fair use permits for fair uses, regardless of length. Length might be a factor (using only a minor part of a work is more likely to be fair than using all of, or all of the important part of, a work) but length is not determinative of the issue. There is no blanket exception for the first four bars, or so many words, or any other nonsense.

So in theory, since torrents never serve the whole thing, the technical mechanism of serving files via torrents may sidestep copyright rules.

That's about as stupid as arguing that a court lacks jurisdiction based on the flag in the courtroom. You would have no chance of success with that argument, and since it's a legal argument, not a factual one, a jury would never even hear it. The judge would kick it out instantly, it is so laughably bad.

Re:Sounds like....

[cpt kangarooski]

So facts before a court of law become probabilies.

No. But the rule is whatever the fact finder feels is the most likely set of facts out of what he has been presented with, is what happened. For a given computer, odds are the primary user is the one who would've used it to infringe. If the defendant thinks that the plaintiff's evidence is enough to make the case on, it is up to him to rebut the evidence with evidence of his own that helps him, such as evidence that the computer was infested with malware that allowed for outsiders to control it. Then the fact finder can consider the evidence of both sides, and make their decision.

Clearly, you think the RIAA witnesses and evidence aren't trustworthy. If you were on a jury, it would be your perogative to disbelieve them (but not for irrational reasons, e.g. 'all copyright holders lie'). But given what you did believe, you'd be required to determine what probably happened, and thus, as far as the courts would be concerned, what did happen.

then the only solution is that they fabricated false evidence

Of course, sometimes people make mistakes. A good rule of thumb is to not assume things happen out of malice when they can be adequately explained by stupidity.

Re:Sounds like....

[tinkerghost]

Actually, it's not quite as stupid as it sounds. What does a torrent do? It breaks a file into many - several thousand - small pieces, and mails them to different people at different times. The concept of de minimus applies. If I choose to E-mail each sequential word from the Websters New World Dictionary to different individuals, I have not violated copyright. Each E-mail is construed as a seperate communication, and each communication contains such a small portion of the parent work as to be negligable.

A torrent is the same, each packet is a seperate request containing a negligable amount of the whole. Also note that it is a factual argument. Copyright infringment can only occur for non-insignificant portions of a work. Is .01% of a work significant? A jury would have to decide that. Sure the second slob might get hit with 10,000 counts of infringement, but if each of those counts is .01% of a whole, each count by itself can be argued as a non-infringing use due to its insignificance in relationship to the whole.

As I said, I certainly wouldn't want to try and argue the case under that theory, but it stronger than the 'right-to-backup' theory that has been argued. I will also note that it's a lot weaker than the "it's not infringing because I already paid a liscensing fee when I bought the digital media". Both US & Canadians pay a fee on every piece of recordable digital media (DAT, CDs, & DVDs in the US. HDs also in CN IIRC) which goes to the RIAA/MPAA/related orgs to cover losses caused by piracy. If I have already paid to cover their loss, then they can claim no damages. Damage to the merchantability of the original product is one of the tests for fair use.

Re:Sounds like....

[cpt kangarooski]

Actually, it's not quite as stupid as it sounds.

It's actually stupider than it sounds.

What you're forgetting is that this is an attempt to game the system by being clever. The problem with it is that the courts are packed with people who are every bit as smart or smarter than you. These people can make good arguments against you, and often are the ones with the discretion to agree or disagree with you; you are relying on them going along with you in order to make your scheme work. These are people, they are not computers. They do not act mechanically, and thus are not as easy to fool as a computer might be. They can look at the big picture.

Thus, when you serve a torrented file, even though a downloader might only download a single byte from you, you participated in what was, overall, an infringement that was by no means de minimis. And you'll be on the hook for it. Even attempting your inane argument will only make the court upset with you for trying to be clever with them.

Both US & Canadians pay a fee on every piece of recordable digital media (DAT, CDs, & DVDs in the US. HDs also in CN IIRC)

I can't speak as to Canada, but you're quite wrong with regard to the US. You're thinking of AHRA, which only covers certain media, and is only a shield under quite limited circumstances.

If I have already paid to cover their loss, then they can claim no damages.

That's irrelevant to the AHRA argument, which also has no connection to fair use at all.

I suggest you keep your day job and avoid playing armchair lawyer. You're awful at it.

Re:Sounds like....

[Random832]

The above is precisely why you will never be allowed to participate in a jury.

Re:Sounds like....

[packeteer]

Becuase they created the filed they own the copyright. You dont need to apply for a copyright for one to have an effect.

Re:Sounds like....

[rtb61]

I seem to remember a general instruction from judges, the benefit of the doubt is always with the defendent. The defendent just has to establish doubt, not prove innoncence.

Re:Sounds like....

[cpt kangarooski]

You're largely thinking of criminal trials, in which the prosecution has the burden of proving their case beyond a reasonable doubt (and thus can be defeated if they can't manage, or if the defendant can rebut with a reasonable doubt).

This is a civil case, in which the plaintiff has the burden of proving their case by the preponderance of the evidence. Which is to say, in order for them to win, they have to show that the defendant is more probably liable than not, even if this is a 51%-49% matter. While the plaintiff still has the burden of making his case or else the defendant wins by default (which is all that the presumed innocent rule means), it's a lot easier for the plaintiff. The defendant has a harder time then, in that if the plaintiff can make his prima facie case, the defendant has to show that his side is what's most likely. Mere reasonable doubts are not sufficient.

Lack of evidence...

[Spock the Baptist]

RIAA SOP,
make accusations
fail to provide solid evidence
hope pure intimidation works.

Profit?

STB

Re:Lack of evidence...

[quentin_quayle]

This could be important.

If the copyright cartel enforcers are required to have downloaded copies from the alleged infringer in order to maintain a suit, then something like Peer Guardian becomes more effective: p2p'ers can be seen online, yet they're safe as long as they can succeed in blocking connections to or from all the enforcers' addresses.

If on the other hand, the enforcers can maintain a suit without showing that they downloaded copies from the alleged infringer, then they really have no logical way of proving that what the p2p'er was sharing was infringing, rather than something with the same name and maybe filesize.

Re:Lack of evidence...

[wfberg]

If the copyright cartel enforcers are required to have downloaded copies from the alleged infringer in order to maintain a suit, then something like Peer Guardian becomes more effective: p2p'ers can be seen online, yet they're safe as long as they can succeed in blocking connections to or from all the enforcers' addresses.

Hardly. Peerguardian can only ever block IP addresses that are known to belong to *AA agents. Nothing prevents them from using cable, dialup, wifi, etc. to get online.

In fact, to the *AA it would be interesting to see that a certain peer can be contacted from an untainted IP address, but not from a tainted one. That way they know you're using PeerGuardian. If I were them, I'd go after those people just to scare PeerGuardian users. They can even use the fact that you used PeerGuardian to argue that you knew you were doing wrong.

Re:Lack of evidence...

[DRJlaw]

If on the other hand, the enforcers can maintain a suit without showing that they downloaded copies from the alleged infringer, then they really have no logical way of proving that what the p2p'er was sharing was infringing, rather than something with the same name and maybe filesize.

I'm sorry, but there is a very logical way of establishing what the "p2p'er" was sharing was infringing, and it's called an inference based on circumstantial evidence.

Let's be quite clear
1. The plaintiff's agent, "the enforcer", obtained someone's IP address and a list of shared songs.
2. The plaintiff's agent actually downloaded 11 of the shared songs, so that the plaintiff was presumably able to verify that the songs actually corresponded to the file's name and/or metatags.
3. You have a list of shared filenames and quite possibly metadata tags, and concrete evidence that items on the list actually are what they purported to be.
4. You can quite logically draw the conclusion that the shared filenames really are what they purport to be.

The burden of persuasion on in a civil case is not "beyond a reasonable doubt," but a "preponderance of the evidence." If you can stand up before a jury or ordinary people and convince them that it really is more likely than not that each file downloaded from this source was really something other than what it claimed to be, then you need to start your own law practice. Also, the defendant in the case is arguing that they shouldn't even have to make that argument to a jury, simply because "the enforcer" did not download each and every file.

I'm reasonably sympathetic to the defendants in these cases given the haphazard manner in which the license holders are initiating their lawsuits and the excessive penalties, but one you get beyond matching an IP to a subscriber, the arguments that the defendants are making quickly start to become ludicrous. Open wireless access points are attractive nuisances. Children using the office computer to amass a thousand songs are negligently supervised. You can surely argue against these points if there is a de minimis infringement, but when someone is building a trading a library of a thousand songs, it's hardly tenable to argue that ignorance is an excuse.

Feel free to argue that you must have all the evidence you need to win a trial before filing a lawsuit, and to argue that you must have actual copies or physical specimens of each an every infringing work or device. When a corporation is a defendant, it will be more than happy to use those ludicrous arguments to its advantage to make it even more difficult for individuals to prove and obtain relief for copyright infringement, patent infringement, theft of trade secrets, and the like. It won't actually happen, and the defendants are going to lose these types of arguments, but the intellectual breadth of the typical Slashdot legal analysis continues to astound me.

Re:Lack of evidence...

[aussie_a]

If the copyright cartel enforcers are required to have downloaded copies from the alleged infringer in order to maintain a suit

But hang on, when you download something, aren't you forced to upload as well on most p2p networks/bittorrent? If so, then does the RIAA have permission from the "artists" to distribute content in such a manner? If they don't, can't they then be sued by the people they're supposedly representing?

Oh please all of my answers be correct. Then someone find some wealthy artist who isn't too happy with the RIAA!

Re:Lack of evidence...

[Nick Harkin]

I'm pretty sure that the agents the RIAA represent (the record labels themselves) own the copyright to the songs they're chasing, not the artists themselves.

Re:Lack of evidence...

[Ph33r th3 g(O)at]

In fact, to the *AA it would be interesting to see that a certain peer can be contacted from an untainted IP address, but not from a tainted one. That way they know you're using PeerGuardian. If I were them, I'd go after those people just to scare PeerGuardian users. They can even use the fact that you used PeerGuardian to argue that you knew you were doing wrong.

There's a paper I've skimmed describing exactly that approach. Can't find a link right now, but it was basically what you described--use a known PG-blocked address and a consumer DSL or cable connection, and bust those to whom you can connect with the latter but not with the former.

Re:Lack of evidence...

[penix1]

Feel free to argue that you must have all the evidence you need to win a trial before filing a lawsuit, and to argue that you must have actual copies or physical specimens of each an every infringing work or device. When a corporation is a defendant, it will be more than happy to use those ludicrous arguments to its advantage to make it even more difficult for individuals to prove and obtain relief for copyright infringement, patent infringement, theft of trade secrets, and the like. It won't actually happen, and the defendants are going to lose these types of arguments, but the intellectual breadth of the typical Slashdot legal analysis continues to astound me.

It goes to damages. The damages are determined on a per-violation basis. The RIAA is arguing that they don't need the actual files to be obtainable to prove damages. I have evidence that says that they do:

From:

http://blogcritics.org/archives/2002/10/04/081226. php

In one case, Warner Bros. demanded a particular subscriber be disconnected for illegally sharing the movie "Harry Potter and the Sorcerer's Stone." But the computer file identified by Warner Bros. in its letter indicated that it wasn't the "Harry Potter" movie but a child's written book report.

and...

Another letter, to Internet provider UUNet, wanted a subscriber cut off because they were sharing songs by former Beatle George Harrison. But some files were not songs at all. One was an interview with Harrison, and another was a 1947 photograph of a "Mrs. Harrison."

So yes, they need the actual files given this track record especially when they are seeking $150,000+ per file.

B.

Re:Lack of evidence...

[9mind]

If it is monetary compensation per song... then yes... they should have absolute evidence that each and every song was the violation they are trying to prove. Guilt has been established for what was downloaded, but wihtout the evidence to support the rest of the songs, they should not have to pay for any songs not proven.

Yes it is qubbling... but it is not quibbling over penies.

Re:Lack of evidence...

[NewYorkCountryLawyer]

Just to clarify, the RIAA companies own the rights to the recording, not the song itself. The rights to the underlying song could belong to the artist but usually belong to a music publisher.

Re:Lack of evidence...

[jp10558]

The one thing that I think is missing here, while everyone chases various boondggles regarding how many of the songs are the real deal (an issue to be sure, but not necessarily the biggest one), is how exactly they are tying the IP address to a person.

Has it been decided that you are legally responsible for everything that comes from your IP address? Because that seems like a problem to me - given how many machines get compromised in one way or another for botnets, stash nodes for large scale pirates, whatever. Are you responsible for a robbery if someone steals your car from your driveway and uses it as a getaway car? Cause this is getting to be like that - many people just don't understand how to protect themselves from being compromised - heck, major businesses with professional IT admins have been rooted in the past and their machines used for various things, including FTP dumps for pirated material.

I think it's pretty shaky to assume that because they found a file at one point at one IP address that they can say the owner of the IP address (well, the leasor or whatever, subscriber) is the one doing the filesharing. There's some legitimate debate as to whether just having files on your PC indicates you were the one who put them there, given all the porn downloaders for instance.

Finally, this seems a chilling effect on PC sales as this gets wider known, though not owning a PC apparently won't save you (HOW the heck /did/ the RIAA get someone's name that didn't own a PC linked to an IP address?).

I really think there needs to be slightly higher standards for allowing a case to go forward if the RIAA has sued people who cannot by definition have an IP address as they don't have a PC. And this shows the weakness of the enire concept that an IP identifies a person.

Finally, this entire thing seems like Prohibition or the "War on Drugs" - neither has had much effect, and I doubt this will going forward either. The fact of the matter is that no matter how bad or wrong something is, if enough people think it's OK, society will slowly change - be it from those people moving to congregate as the puritins left England or through a change of culture like prohibition being ended. With studies showing 60 million people having illegially downloaded a song, and continuous users estimated at ~9 million in the US and growing, things will change. You can't throw that many people in jail.

download them

[managementboy]

How about starting that donkey and downloading them? A copy is a copy, isn't it?

Why don't they share with us what format they got the first few "perfect" copies... Monkey Audio?

Re:download them

[Technician]

How about starting that donkey and downloading them? A copy is a copy, isn't it?


Um no. If the RIAA shows up in court with a file with a different checksum or length (diffrent rip) they throw a big shadow over their whole case and the defendants would be all over it like flies. They don't need a Microsoft style demo in a courtroom.

Reverse it

[LiquidEdge]

How about someone sue the RIAA for having kiddy porn on the RIAA web server? No, I can't prove it. But I just said it was there didn't I?

Re:Reverse it

[Anonymous Coward]

this just isn't justice, what's to stop then from editing screen shots, it's not like they can't afford a copy of MS paint

Re:Reverse it

[cp.tar]

Well, you could show the court some screenshots... who could prove you edited them?

You don't need the files anyway.

Re:Reverse it

[JonathanR]

If you could demonstrate a personal loss as a result of the RIAA hosting the iddy porn, then yes, you're welcome to launch a civil suit. I don't think, however, that the average Joe-Citizen is able to launch a criminal case against anyone.

Re:Reverse it

[kfg]

I don't think, however, that the average Joe-Citizen is able to launch a criminal case against anyone.

The vast majority of criminal cases are launched not by police action, but on the complaint of an average Joe-Citizen. In fact, most cases cannot even go forward without such a complaint, even in the clear presence of a crime, since prosecution requires a faceable accusser.

KFG

Re:Reverse it

[cp.tar]

Ah, so that's the ??? part which comes before Profit!

Re:Reverse it

[JonathanR]

Sure. I agree with what you are saying, but the context of the discussion is prosecuting the RIAA based on false/fabricated evidence. You're welcome to try it, but don't be surprised if it bites you in the bum.

stupid court system

[JeremyALogan]

If I were them I'd really like to beat my hands against my chest and cry "innocent until proven guilty, mother-fuckers", however this is civil, so they basically don't have to prove anything. We have a broken legal system.

Re:stupid court system

[i41]

If I were them I'd really like to beat my hands against my chest and cry "innocent until proven guilty, mother-fuckers", however this is civil, so they basically don't have to prove anything. We have a broken legal system.

Next time you're butt-raped in a broom closet you can thank our "broken" legal system that a judge can choose to believe the victim.

Re:stupid court system

[awol]

Well not really broken in the way that you say. The purpose of the civil system is different to the criminal one. It is designed to redress loss and so the standard of culpability is lower once the loss has been demonstrated. This is a good thing. But not the precursor to the lower standard is "once the loss has been demonstrated".

In this case (and most others that the RIAA would run) where the brokenness rears it's head is that there is no loss for the RIAA to demonstrate and the presupposition that the existence of "illegal" files as the proof of loss is the problem.

Re:stupid court system

[larry bagina]

The judge doesn't get to choose who to believe

They do when it's a judgement.

Re:stupid court system

[Tim C]

however this is civil, so they basically don't have to prove anything

Yes they do - they have to prove to a jury "on the balance of probability". In the end, it still comes down to the evidence and the skill of each party's representatives; the bar is just that little bit lower for the plaintiff. It's definitely not the case that you just drag someone to court and take all their money, as you seem to be implying.

Mitigation?

[Faaln]

Isn't this more or less just an attempt to reduce the completely ridiculous amount of money they're going to have to pay? Because even if they *only* have 11 copies they confirmed could be had (and I'm using confirmed very loosely with these guys) then isn't the defendant still liable to pay well over $10,000 even if the other 16 that weren't produced? What does this really win them, a kick to the balls vs. a shot in the cranium?

Re:Mitigation?

[jrumney]

Isn't this more or less just an attempt to reduce the completely ridiculous amount of money they're going to have to pay?

They haven't lost the case yet. They are reducing what they have to defend against, or if their client is going to admit guilt, possibly reducing the amount of any potential settlement.

Re:Mitigation?

[Elemenope]

I don't know about you, but I think it is a rare person indeed who thinks 'kicked in the balls' is anywhere on the same level with 'shot in the head'. It's not a hard choice.

Re:Mitigation?

[NewYorkCountryLawyer]

They're locked in to proving $750 per recording. They've already been precluded from trying to prove more than that.

Ms. Lindor is arguing they are limited to 11 times 750.

They are trying to be able to recover 38 times 750.

Evidence

[Toba82]

Evidence isn't needed when you aren't expecting to win. The RIAA doesn't care about winning the case, they care about scaring people. It still works.

Re:Evidence

[babbling]

Suing people without any evidence works better at scaring other people, in fact. Absolutely anyone could get sued!

Re:Evidence

[uucp2]

"Listen. And understand. That RIAA is out there. It can't be bargained with. It can't be reasoned with. It doesn't feel pity, or remorse, or fear. And it absolutely will not stop, ever, until you are sentenced or will settle."

Re:Evidence

[Sancho]

See, except that they do have evidence. The question is whether what they have counts when it gets before a judge. They aren't picking IP addresses out of thin air and making up that this person was violating copyright, they're saying, "This person is sharing files which look quite a bit like our music. I'm not going to download it to verify, but I'm going to sue." Realistically, a judge is going to assume that you are actually sharing the file, and I doubt you could convince him otherwise, particularly if the RIAA has 11 other songs that they did download.

And don't argue "what ifs" or "but I'd do it just to screw with the RIAA". What matters is appearance, here, because ultimately the RIAA could take any mp3 and claim that they got it from you. How could anyone possibly prove otherwise? When we're talking about something as nebulous as a digital copy of music, it's virtually impossible to determine the origin of a file.

Re:Evidence

[Technician]

The RIAA doesn't care about winning the case, they care about scaring people. It still works.

It works enough I'm afraid to buy a CD anymore. I can't buy enough insurance to protect me for what my kids might do with one. It's another reason to stay on dial-up. It's too slow.

Most swimming pools no longer have a diving board even though they were about as common as swimming pools due to the legal liability. I'm thinking I-pods and internet connections are next.

The liability is certainly killing open Wi-Fi access points.

Has anybody noticed the ripple effect from these lawsuits?

Re:Evidence

[kamapuaa]

> Has anybody noticed the ripple effect from these lawsuits?

Does OSHA count? Most people are in favor of consumer protection and civil liability.

WTF? Copies? Files?

[prionic6]

Ok, I was drunk yesterday and I'm not a native speaker, so maybe the problem ist with me. But even after reading some of the linked pdf and articles I can't comprehend. Can someone tell me in plain words, who has copies of what and would like to have other files that were not produced (babble babble babble). I understand that it is about music and filesharing, I'm not dumb. Is this about an agent of the RIAA downloading files from Ms. Lindor, then they sue her about those and additional files that were there but that they did not download? Or what?

Re:WTF? Copies? Files?

[larry bagina]

The lady was using eDonkey or whatever. The RIAA downloaded 11 songs from her and filed a lawsuit. They have a screenshot showing that she was sharing 27 songs and want all them included in their lawsuit, even though they didn't actually download/verify 16 of the songs. That's my understanding, at least.

Re:WTF? Copies? Files?

[prionic6]

Ok, that makes sense in a way. Thank you.

Re:WTF? Copies? Files?

[incabulos]

Perhaps these 'songs' were recordings of the Plaintiff saying 'Bite my shiny metal ass' ?

Using a screenshot which may easily faked showing names of songs that may never have been RIAA property is about as legally compelling as sworn testimony from an alcoholic wifebeater who claims that his TV talks to him and tells him to molest small animals.

The RIAA should have their asses handed back to them on a plate with a heft fine for wasting the courts time.

Re:WTF? Copies? Files?

[Kaenneth]

I really don't see the issue; an authorized agent of the content producer asks an automated system for copies of files they own, an automated system provides them.

If they wern't working for the recording companies, then it would be wrong to provide the files. But since someone working on behalf of the legal copyright holders specifically requests a copy, what exactly is the offense?

Re:WTF? Copies? Files?

[JonathanR]

Perhaps a good defence would be to hand over a CD with 27 audio files saying just that (make sure you get the file size correct by padding the end with sufficient random white noise). It would be good to get some audio file of "RIAA are fucking arseholes" heard as evidence in court.

I presume, as part of discovery, the defendant could ask for a copy of the files the RIAA downloaded?

Re:WTF? Copies? Files?

[NewYorkCountryLawyer]

They have eleven song files they claim to have downloaded from the computer in Ms. Lindor's apartment. But they announced that they are trying to recover damages for thirty eight (38) recordings. Ms. Lindor's says "how can you prove 38 when you only have 11?"

Re:WTF? Copies? Files?

[penguinbrat]

Wayyy back when, somewhere in the middle east - David saught out Goliath.

In the US - Goliath seeks out David...

Re:WTF? Copies? Files?

[Svartalf]

I'd also ask for proof that they DID, in fact, come from my machine.

With this little game, I doubt they actually did their homework there either.

Re:WTF? Copies? Files?

[pjt33]

Is it seeking someone out when you respond to a challenge they issue to the tune of "I'll take any one of you on"?

Continuing the spread of crap...

[Tsuki_no_Hikari]

"Our investigator saw a screenshot of an IP address we traced back to them."

"We used a reverse DNS lookup to find out that this was the computer used for the downloading."

"Our investigator downloaded a perfect copy of the file downloaded by the defendant in a process of reverse spectral resonance."

"We figured 'To hell with it' and crossed the beams. Once we realized the universe didn't end, we found a burn mark that resembled the offending computer's IP address."

What new wonders of the universe will the RIAA educate judges on next week? :D Oh, I can't wait!

Re:Continuing the spread of crap...

[TERdON]

The swedish Antipiratbyrån already has got people convicted with screenshots as the only evidence. You'll better hope they won't teach **AA that...

Re:Continuing the spread of crap...

[dangitman]

The swedish Antipiratbyrån

Is that some kind of large rodent?

Re:Continuing the spread of crap...

[Lemm]

I can't be sure, but I think byrån is Swedish for bastards.

uhmm...so?

[91degrees]

They still have the copyright on the song don't they?

Re:uhmm...so?

[NewYorkCountryLawyer]

They don't have the copyright on the songs, just the 'sound recording copyright' on these particular recordings of those songs.

Re:uhmm...so?

[MerrickStar]

no, the RIAA is an organization that represents record labels. They do not hold any copyright on songs that come into question.

Re:uhmm...so?

[91degrees]

Okay. I've read the replies to this comment. I just totally misunderstood the argument.

Well...

[d3m0nCr4t]

Shoudn't the RIAA start to sue themselves ? They downloaded copies of songs to there computer, and now they are shareing them with a judge...

Re:Well...

[StrongAxe]

Shoudn't the RIAA start to sue themselves ? They downloaded copies of songs to there computer, and now they are shareing them with a judge...

First of all, copyright protects the right to make copies. So, technically, if I download a file from you, I am asking for you to make me a copy, and you do so. You are the one violating copyright, not I. So if the RIAA gets a file from your computer, they aren't getting you for downloading it, they are getting you for sending it.

Second of all, the copyright holder has the right to make whatever copies they want, and to provide permission to anyone they choose to do the same. So if they or their agents download, or upload, or do anything else they want to do with their own data, they have the right to do so.

Re:Well...

[RandomPrecision]

Wait, so if I download a song from someone who actually works for the RIAA, or a movie from someone who works for the MPAA, I'm asking them to make me a copy of the file, and they do - and being the holders of copyright, there's nothing illegal here, right?

Re:Well...

[StrongAxe]

Wait, so if I download a song from someone who actually works for the RIAA, or a movie from someone who works for the MPAA, I'm asking them to make me a copy of the file, and they do - and being the holders of copyright, there's nothing illegal here, right?

Assuming they own the rights to that file, that is absolutely correct. HOWEVER, unless they also have given you explicit reproduction rights, that does not allow you to re-share it. And if you are using a P2P network, chances are, while downloading one half of the file, you will be sharing the other half. So they will catch you red-handed. What will likely happen in this case is they will upload a file that is 1) poisoned (you won't want to listen to it, and will likely trash it as soon as you hear it, so it's useless to you) 2) copyrighted (has identifiable fragments of copyrighted material) and 3) traceable (it might have a message such as "We don't approve of file thieves - signed the RIAA", so you have no excuse that "I didn't know it was copyrighted")

boycott the music industry!

[AlgorithMan]

not even videos are allowed as evidence in courts, how do they think "I saw a screenshot" could be allowed as evidence? allowing this as evidence in court would be dictatorship!

do it like the german chaos computer club and pirate party, BOYCOTT THE MUSIC INDUSTRY! LISTEN TO CREATIVE COMMONS MUSIC! it's great music and it's free and the damn music industry can't prosecute you for listening to it for free!

http://wiki.creativecommons.org/Content_Curators
http://www.garageband.com/htdb/index.html

What's really funny...

[technopinion]

What's really funny is that the RIAA themselves seeded all sorts of fake files mislabelled as songs on the p2p networks. So how is the court supposed to know that what they think are real copyrighted songs are actually songs at all, when the RIAA didn't download them to find out?

Re:What's really funny...

[NewYorkCountryLawyer]

Correct. See Gary Millin deposition testimony at pages 2-4 of Reply Memorandum of Law, where he admitted making bogus files that looked like song files, and littering the internet with them. He admitted that the only way to tell if it was a real song file was to listen to it from beginning to end.

Re:What's really funny...

[cpuffer_hammer]

Does not matter the "junk" in the file no matter how little sence it makes is still their copyright "junk". Now one might be able to claim it has little economic value.

Re:What's really funny...

[91degrees]

Might not be copyrighted. If it's white noise, then recordings of white noise are in thepublic domain.

That, and we can argue implicit permission to copy since they were deliberately seeded on P2P networks. I'm sure the lawyers will be able to come up with much better arguments than those both for and against.

Re:What's really funny...

[cpuffer_hammer]

Point one: In one sence you are correct. But it is still a series of numbers and it is copyright, It might have meaning in another format, is the copyright holder required to explain the meaning, and/or convince the judge or jurie that of the meaning. (this could make it hard to maintian copyright or religus documents)

Point two: I that is true also, But I can also put copies of a story I wrote up on the bulleten board a work. People are free to take them and read them. I can even give permition to make a copy(as in one copy from the original) for personal use. But if someone puts my story in a book. or makes a copy of a copy they are violating my copyright.

But with this thread has all but ended. :-)

Re:What's really funny...

[kimvette]

Where can I sign up for that job? The RIAA can pay me to download everything from Kazaa, listen to tracks from beginning to end, and report to them which are real and which are bogus? How much would that job pay?

Meh. I'll stick to listening to classic rock stations, talk radio, and classical, and simply avoid getting exposed to new material as much as possible. Screw you, RIAA.

it really is bad

[oohshiny]

Basically, the difference is between "we searched Kazaa/eDonkey/whatever and this user was offering Metallica's album for download" and "we searched Kazaa/eDonkey/whatever and actually downloaded Metallica's album from this user". The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.

Yes, and it isn't enough. Why not? Because if the RIAA can establish a principle that merely offering a file name that in some way resembles a song is sufficient proof of copyright infringment, the Internet as we know it is in trouble.

In order to demonstrate copyright infringement, the RIAA should have to show, for each instance, that the content is actually something they represent the copyright holder for. It's easy to do and there is no reason for them not to do it. That's a principle from which we should never deviate.

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard

The RIAA is ruining people's lives by enforcing laws that are contrary to public opinion and sentiment. Even if they did everything by the book, there is certainly ample justification for criticism. But what they're doing is even worse: they are actually trying to do what they're doing with shaky evidence, and they are doing it for clients of questionable ethics and with dubious contributions to society. If that would not be reason for harsh criticism ("bashing"), I don't know what would be.

Re:it really is bad

[tepples]

if the RIAA can establish a principle that merely offering a file name that in some way resembles a song is sufficient proof of copyright infringment, the Internet as we know it is in trouble.

But does offering potentially mislabeled files constitute trademark infringement? (Or should I shut up so as not to give the major labels' legal departments any ideas?)

if a screenshot is the only prove

[aitan]

Well, I'm safe because right now I've made it very clear that I'm not sharing anything with copyright. A screenshot would look like this:
This is not Metallica - Enter sandman
This is not Madonna - Confessions On A Dancefloor
This is not King Kong (Peter Jackson)

Re:if a screenshot is the only prove

[AmberBlackCat]

And the news article six months from now will read, "RIAA gets court to accept evidence that people are not sharing files as evidence that people are sharing files."

It's not any more stupid than what they're doing right now, if this is for real.

Re:if a screenshot is the only prove

[SunTzuWarmaster]

Directory structure:

Tom Jones' (this person doesn't live in apt302) hard drive
-This folder is not shared
--CLEARLY not pirated music
---This is not Metallica - Enter the sandman.mp3

all that's left is to say the network was unsecure, ANYONE (including that bastard Jom Jones from down the hall) could have put the file there, even the RIAA

Re:boycott the RIAA

[NewYorkCountryLawyer]

I agree with you. I've been collecting a list of links to sources of non-RIAA music which I call Liberated Music. I've added garageband.com to it (I already had Creative Commons in there). Incredible the wealth of music that's out there once you liberate yourself from the monotony of the 4 big record companies.

Custom Hash

[rabel]

I wonder, is there any way to tag files on one's computer with a unique key that stays with the file when it is downloaded and can be modified by others after they have downloaded the file?

What I mean is, say I download a Metallica MP3 file from eDonkey. What I would like to do is then tag that file with my own little "key" that is based on a key encryption system of some sort. Perhaps I make the tag "rabel" and this tag is then encrypted and the encrypted tag is attached to the file itself. If I then share that file on my P2P program and other people download it, they would then be able to overwrite the encrypted tag with thier own encrypted tag (if they feel like it, they don't have to).

Later during my trial when the RIAA says I was sharing Metallica's music, I can simply insist that they produce the encrypted key that I personally placed on the files.

Perhaps I provide the judge with the unencrypted tag and my private key and the RIAA provides the judge with the encrypted tag. If they don't match then the case is thrown out.

Of course, this assumes that I want to cooperate and I suppose that if I'm sharing copyrighted music online I'm pretty much writing my own guilty plea. On the other hand, the RIAA would pretty much have to download the songs before they could prosecute someone.

Re:Custom Hash

[epee1221]

Yes, there does seem to be quite a strong incentive to mis-sign the copyrighted files. You'd need a P2P system that would only accept validly-signed files, otherwise every copyrighted file would just be signed "deadbeef" or something.

Digital signature schemes work great when people want to prove that the files came from them -- not so much when they want to prove that the files didn't.

discovery

[sideswipe76]

Yeah, then follow it up with a motion for discovery.

Why should a sample not be adequate proof?

[Gnavpot]

It goes to damages. The damages are determined on a per-violation basis. The RIAA is arguing that they don't need the actual files to be obtainable to prove damages. I have evidence that says that they do:

Seems to me that they saw 38 files which could be music, protected by copyright.

They then took a sample consisting of 11 of those files to test if they actually were. All of those 11 files were the real thing. Then they conclude that the remaining 27 files with sufficient propability is the real thing too.

This is not saying "We do not need the actual files."

It is saying "We do need actual files, but an adequate sample must be enough to render probable that all files are what they seem to be".

Re:Why should a sample not be adequate proof?

[penix1]

A "sample" isn't good enough when you are talking per-violation damages. The only thing the "sample " establishes is that those 11 files are 11 violations (if they can show they hold the copyright that is). They are asking for damages for 38 files so they should be able to show FOR EVERY INSTANCE that they are violations. The second story I posted especially shows why. You are asking a jury to grant you damages for items you can't show are violations.

B.

Re:Why should a sample not be adequate proof?

[topham]

I caught you speeding yesterday.
I caught you speeding the day before.

I'm giving you a ticket today because you must have been speed since you did in the past.

Thankfully that type of logic isn't actually considered evidence.

Re:Why should a sample not be adequate proof?

[Tim C]

Car analogies should be banned, they're always flawed in some way...

A closer analogy would be that on 20 occasions, I saw you drive past going at what appeared to me to be faster than the speed limit. I measured your speed on 8 of those occasions, and you were indeed speeding. Therefore, it seems likely to me that on the other 12 occasions you were also speeding.

Of course, even that isn't really the same, as speeding is a criminal matter, while copyright infringment is civil, and the level of proof required is different...

Re:Why should a sample not be adequate proof?

[DRJlaw]

They are asking for damages for 38 files so they should be able to show FOR EVERY INSTANCE that they are violations. They are able to show that. Through the circumstantial evidence of the list. At this point, the defendant has to come back and show and those files are not what they purport to be, but something else that is presumably non-infringing. It makes no sense to require the plaintiff to download every single file that a P2P user appears to be sharing. The defendant, if it is the correct party, is a participant in the case and the defendant, not the plaintiff, is the party in possession of, and likely the party most familiar with, the actual contents of those files.

Re:Why should a sample not be adequate proof?

[Gnavpot]

caught you speeding yesterday.
I caught you speeding the day before.

I'm giving you a ticket today because you must have been speed since you did in the past.

Bullshit analogy.

Try this instead. Also a really bad analogy since it does not take into consideration that you do not need the same level of proof in a civil case. But anyway, here goes:
On 38 occasions I saw you driving by with a big LED display on your car: "Right now I am driving 82 mph.", "Right now I am driving 73 mph" etc.

On 11 of those occasions I actually measured your speed and was able to confirm the reading on the display. I consequently trust that your display was telling the truth on the other 27 occasions.

Re:Why should a sample not be adequate proof?

[penix1]

In the US, the burden of proof is always with the plaintiff. They have NOT shown proof of violation with the list or more to the point I can show that their list is often wrong. The burden of proof is on the plaintiff to show the violation not the defendant to show that it isn't. I have shown that the list is faulty. If she had a good attorney (which she does since they are asking for them to be thrown out without the files) the attorney would show the same thing.

B.

Re:Why should a sample not be adequate proof?

[DRJlaw]

That's it. I've had enough of you. I am a lawyer. I practice law. More to the point, I practice intellectual property law and litigation at a major regional law firm, and have litigated cases against the likes of General Electric. You do not know what you're talking about. I suggest that you expose your head to sunlight and read a textbook on the law of evidence under the Federal Rules, at a minimum, before you attempt to play Matlock.

Re:Why should a sample not be adequate proof?

[NewYorkCountryLawyer]

I understand your frustration at being engaged in a legal debate with people who are not legally trained, who may be a bit overconfident, and who may have overstated the defendant's case; but don't you think you have overreacted a bit by suggesting that the defendant has the burden of proving that thirty eight (38) alleged files "are not what they purport to be". I know you know that plaintiff has the burden of proof as to everything it is alleging.

Re:Why should a sample not be adequate proof?

[DRJlaw]

Actually, I don't think that I've overreacted. The plaintiff has the burden of persuading the triar of fact that the 38 files infringe. The downloaded files and the list of files likely fulfill this burden, but it is a question of fact for the jury. The defendant has the burden of producing rebuttal evidence that shows that the 38 files do not infringe. If the defendant cannot even argue that the 38 - 11 = 27 other files do not infringe, then there is no reason for a court to treat the 27 files any differently from the 11 that "the enforcer" actually downloaded. There is also little reason for a triar of fact to treat the 27 files any differently from the 11, in that "I didn't do these 11 bad things and you didn't meet your burden of proof that I did these other 27 bad things just like them" is a spectacularly weak argument for paring down damages in a civil case. If you're making that argument, you're praying for a compromise finding by a jury. The burden of persuasion always lies with the plaintiff, but the defendant cannot pretend that the circumstantial evidence concerning the 27 other files doesn't exist. The Federal Rules of Evidence clearly allows both parties to argue facts based on circumstantial evidence. "B." is arguing that as a matter of law the plaintiff has to have actual possession of each and every sound file. Bollocks. That is the world-as-he-wishes-it-to-be, not the world that I live in. Nevermind the fact that the actual argument in Lindor concerns a twisted sort of discovery violation, where the defendant's attorney is arguing that since the 27 other actual files were not produced in discovery, the plaintiff should be precluded from introducing the circumstantial evidence in support of its claim concerning those 27 files at trial. This motion is a creative bit of lawyering that is doomed to fail.

Re:Why should a sample not be adequate proof?

[Random832]

as speeding is a criminal matter ... and the level of proof required is different...

The level of proof required in traffic court is zero. All that's required is that the officer shows up.

Cuckoo eggs and substantial similarity

[tepples]

The only way to tell if it's a real song file is to listen to it from beginning to end.

But even if one does not copy a sound recording from beginning to end, isn't copying a substantial portion of the recording still infringement? A cuckoo egg may sample 30 seconds of a copyrighted recording and thus be "substantially similar" to the recording.

The RIAA has sued minors

[tepples]

If you don't think those rights are legitimate, you're welcome to participate in the same legislative process as the rest of us.

The RIAA and its major labels have sued minors, who by law are not "welcome to participate in the same legislative process as the rest of us."

This is a fine idea

[goldcd]

We locate the spam-seeder - take a screen grab of the file names - report them to the RIAA and watch them sue themselves.

Where the heck are they getting these damages from

[P3NIS_CLEAVER]

10,000$ per file? that would mean 10,000 dowloads from itunes... People seem to mostly download porn in my experience.

Re:Stay on target, stay on target....

[FLEB]

The real issue is whether a person or company can have legal domain over a series of infinitely replicable 1s and 0s

You're diminishing the value. It's not 0s and 1s-- P2P filesharing wouldn't be nearly as popular if people only played their MP3s and ISOs in a hex-editor. It's content.

when enforcing such domain hurts the public more than allowing its free public exercise hurts the company.

That's not the case though. I'd be inclined to agree with infringement in cases from patented AIDS drugs all the way to the legality of mash-ups, but face it: Most of the cases the RIAA is taking action against... and most of the cases out there right now... are a matter of simple unauthorized copying and distributing of readily-available and non-essential content. There's no "great public interest", short of the public's great interest in getting specific content for free.

Egg on their Face....

[AVryhof]

I'm going to start sharing files composed of data randomly generated to mimic the file size of the other files with that name being shared by others.

Right up the alley of the DeCSS that was spread intentionally which was a piece of software to strip stylesheets from html documents. The RIAA needs to learn a lesson here, they need to learn that not every file named after a song they produce/sell actually is that file.

The idea is to flood the net with enough false leads that the real thing is more difficult to pick out.

Obstruction of justice you say?

I think it is my right to do something completely legal, whether it obstructs you from carrying out a civil case or not. Take one for the team! Create your own collection of phony files (just like the RIAA is releasing) and show big business that they don't own citizens.

karma whore? Post linux distros with album names from the top lists.

Re:Yawn

[Cederic]

Balance of probabilities? Looking bad..

Extremism is the flavor of the decade

[1310nm]

I want to see exhibit B.

They seem to target blatant file sharing such as idiots who use Kazaa and the like with no counter-measures. I don't think en masse content piracy is OK, but the extreme measures they're using to fight it is killing the nature of entertainment media. Music and theater used to be enjoyable things to partake in, but nowadays, you have to put on a guilty conscience and resign yourself to the potential, unknown consequences of everything you hear and see.

- I should be able to share all my music and movies with my immediate family
- Using my computer should not be a gauntlet legal run
- Non-profit piracy should NOT have such severe consequences. People aren't selling crack or guns on Kazaa.

Re:Extremism is the flavor of the decade

[NewYorkCountryLawyer]

Exhibit B is the RIAA's response to the followup interrogatories. It's the 8th document listed in the article.

Re:Extremism is the flavor of the decade

[1310nm]

I guess I was mistaken (IANAL at all), I expected Ex. B to be the screenshot. Too much Matlock I guess.

Re:Extremism is the flavor of the decade

[NewYorkCountryLawyer]

Exhibit B to the complaint is the screenshot.

Re:The lawsuits are not frivolous...

[epee1221]

The lawsuits are not frivolous as evidenced by how many people settle them out-of-court, or just lose.

Your grasp of this issue is wanting.

Except

[jgoemat]

HOWEVER, unless they also have given you explicit reproduction rights, that does not allow you to re-share it.

HOWEVER, they are fully aware of the uses of the P2P network. Its very purpose is to enable more people to download and share files, offloading the bandwidth from you to others that have already downloaded the file. One could argue that the sharing of a file on a P2P network gave implicit permission for others to upload it to users of the same network.

Re:Except

[StrongAxe]

HOWEVER, they are fully aware of the uses of the P2P network. Its very purpose is to enable more people to download and share files, offloading the bandwidth from you to others that have already downloaded the file. One could argue that the sharing of a file on a P2P network gave implicit permission for others to upload it to users of the same network.

The purpose of a P2P network has no relevance under the law. Copyright law permits them to share the file with you, but forbids you to share it with anyone else unless they give you permission (which they don't). Their sharinng of files in this way is a flagrant abuse of the P2P network, but the law has nothing to say about that.

It is quite possible for companies to put files on web sites for free download, but the rights to those files must be acquired (usually purchased) elsewhere. For example, you download an encrypted file and they email you the key, or they download a program that won't run until you activate it, and they mail you the activation key. The fact that they put the file on a publicly-accessible medium (web, p2p, etc.) does not give you any implicit rights per se.

the self killing industrie

[PermanentMarker]

Just thinking, while RIAA tries to protect old artist. Young new artist do everyhting to get attention and provide their music for free at myspace So in the future you have a company like RIAA owning a lot of music who no-one wil listen since the most populair young people cannt pay money anyway for expenisve CD (their not cheap in europe) so the young people turn to free music in their myspace community. So in the end RIAA is killing itself this way by making music unpopulair. I think this is a great time of new media entertainment and new communities. In the end we dont use TV or RADIO broadcasting only a few channels. But we find our peers on the internet live in those communities of people with a simmilair interest, and share music the same counts for video (your tube) that's a same type of how we people use the internet as medium to socialize to a group where they want to be part of. Oh note it's not that i'm against bands. Altough i do think the few large bands where made by the media as hypes. While young bands can be as good as them, and play often live; their incomme is much lower... I hope now these young bands will brake trough and get payed by live stages

Re:the self killing industrie

[Mana Mana]

"So in the future you have a company like RIAA owning a lot of music who no-one wil listen since the most populair young people cannt pay money anyway for expenisve CD (their not cheap in europe) so the young people turn to free music in their myspace community." Spare me. Teenagers are lamers! Most of you were thinking it but did not say it. Teens drool over whatever Madison Avenue deins will be the group, star of the moment.

Tongue-in-cheek response

[smbarbour]

My computer system is configured to only allow file transfers to computers that have the appropriate rights granted by the copyright holder(s). The appearance of the files in the search result only proves that the requestor did, in fact, have the appropriate rights.

(You could actually argue that peer-to-peer constitutes fair-use. Fair-use allows an excerpt to be used. Since (most times) the file downloaded does not come from one source, any one computer has only provided excerpts. The downloading computer combines them into the whole file.)

Re:Tongue-in-cheek response

[StrongAxe]

My computer system is configured to only allow file transfers to computers that have the appropriate rights granted by the copyright holder(s).

How can you configure it to do this? Is there some universal standard by which files can be marked as "I have the rights to distribute this file"? Or that says "I have the rights to distribute this to you, but you don't have the rights to distribute this further"? (Of course, pirates will, of course, find a way to forge this, so its validity becomes moot).

The appearance of the files in the search result only proves that the requestor did, in fact, have the appropriate rights.

This assumes that nobody ever shares files that they do not have rights to. Thus, piracy does not exist. What a wonderfully safe and non-controversial world we all live in!


NOT.