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Judge Rules Shared Files Folder Not Enough
NewYorkCountryLawyer writes "In UMG v. Lindor, Judge David G. Trager rejected Ms. Lindor's objection to a Magistrate's Report, in which Ms. Lindor complained that the Report could be read to imply that 'the mere presence of a shared files folder on an individual's computer would ... satisfy the requirements of 17 USC 106(3)', saying that the Report of Magistrate Robert M. Levy could not be so read, since '[t]he report and recommendation does not comment on whether or not the mere presence of a shared files folder satisfies 17 USC 106(3). Instead, it makes clear that plaintiffs will have the burden of proving actual sharing. [Report and Recommendation, at 5] ('At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs.') (emphasis added)'"
...but I doubt it makes for much of a defense. To imply that "shared files" == infringement would criminalize everything from SMB shares to god knows what. I expect in practise this just means they'll have to explain how it applies in a specific case. The "You can't prove anyone downloaded from me, even though it's advertised through file searches and I'll send it to anyone that asks" is a razor thin defense to begin with.
Live today, because you never know what tomorrow brings
It's trivial to meet the "preponderance of evidence" standard by the RIAA having connected to the defendant's torrent (or other P2P session), receiving one block fron data from them, and then inferring that because the protocol require reciprocal exchange of data, that the defendant's machine passed on blocks data to the other people in the torrent.
There's no requirement that the whole work be downloaded to demonstrate infringement, AFAIK.
Uh, do we really need a blow-by-blow for this case on here? I mean, this is an interesting decision, but it seems to be more a procedual ruling rather than setting a precedent of any strength. Posted on a legal blog I could understand, but I doubt that enough of Slashdot's readers are fluent enough in legalese to get much sense out of it, or even get particularly interested in an intermediate step like this if they do understand it. Disclaimer: IANAL, so this is wide open to being contradicted to someone who is actually in the field.
So hang on... so the judge dismissed an objection to a report that implied that having a Shared Files folder would satisfy the terms of 17 USC 106(3). Er, is this good or bad news?
One that actually believes you have to be shown to sharing copyrighted material before being found guilty of it. Merry fucking Christmas.
Tiny steps. Maybe next year we can get a judge who recognizes that the RIAA "settlements" are pure extortion and the entire calculation for how much financial damage was caused by sharing a file is pure bollocks. Eventually one who realizes that an IP address!=identity and they shouldn't be allowed to just ask ISPs for IP address and get any kind of information at all. And that it shouldn't be a crime to punch the RIAA layers and moguls in the face... one can dream.
Reality must take precedence over public relations, for nature cannot be fooled.
And I think the solution may be for this judge to talk to the one(s) that have ruled that just linking to copyrighted material is infringement.
Copyrighted files on a shared folder is indeed not equal to sharing copyrighted files. However doesn't this show "intent to share" ? Don't know a lot on the US justice system (criminal, civil etc.) but I guess the proverb "stupidity doesn't mean innocense" still holds. To me it seems the plaintiff needs to prove actual sharing in order to get damages (?)
Shouldn't the RIAA get a couple of rock solid cases to win in court instead of extort^H^H^H settling for money? If piracy is that rampant, shouldn't they be able to get some slam dunk cases in court? Couldn't they link a case or two and have involved third parties testify? Like a druggie or undercover officer testifying against a drug dealer? IANAL, so I don't know how that would work in a civil case.
Shared folders are not evidence that you're running p2p programs. My freakin Windows XP Media Centre PC came with shared folders that I still can't get rid of.
I like NYCountyLaywer. But..... that headline was terrible. A summary should, in LAYMAN's terms, describe why I should spend a few moments reading about the issue.
... satisfy the requirements of 17 USC 106(3)', saying that the Report of Magistrate Robert M. Levy could not be so read, since '[t]he report and recommendation does not comment on whether or not the mere presence of a shared files folder satisfies 17 USC 106(3).
Ms. Lindor complained that the Report could be read to imply that 'the mere presence of a shared files folder on an individual's computer would
Seriously , do you really think that 95% of the readers are going to know off the top of their heads what 17 USC 106(3) is? I like playing armchair laywer, so I bothered to find out, but that headline made my eyes bleed. I suspect I would have started channeling Lewis Black if I hadn't posted this.
Had the finding gone the other way administrative shares in windows would have automatically become infringing activity.
We complained that Magistrate's report implied that merely have a shared files folder on the internet would be a copyright infringement.
Judge said "no, it doesn't say that, it means that the RIAA will have to prove that defendant actually did share files".
Ray Beckerman +5 Insightful
Case one: In some locales having a sufficient quantity of drugs in your possession does make you a drug dealer. What if you are just a bulk-shopper with a large habit and like to save a few bucks?
Case two: I lend you my car (license you some music). You park it legally in front of a bank and go inside to speak to a teller. Those naughty bank robbers opt to use my car as the getaway vehicle. You leave the bank and the car is gone. Did you participate in the crime? I can sue you for actual damages because I can't get to work now. I can also sue the robbers for the same thing.
... Since it's entirely possible the downloader wouldn't have wanted (or even been able) to pay the market price for the files.
But... I am still confused...
Is this saying that if they can prove you had a shared folder and that folder contained copyrighted works, then you are guilty of copyright infringement? OR do they actually have to prove that someone downloaded a copyrighted work from that shared folder before they can use this as evidence of copyright infringement?
That kind of scares me if the first is true...
No, I think the decision specifically negates the first possibility.
Ray Beckerman +5 Insightful
In order to distribute the person with the shared folders had to have an intent to distribute otherwise no criminal law was broken. The key word is intent, because simply making them available through negligence is not unlawful yet. In a civil case negligence is no defense, but in a criminal case it makes all the difference in the world. So in your example, the violation is for a criminal act, which means the intent clause has to be satisfied. If it can be shown that a computer operator at the basic level should know and understand the shared folders concept then a civil case is more than satisfied. Unfortunately, the average user cannot be held to such a high threshold of knowledge, considering Microsoft makes the whole issue so complicated.
Is this saying that if they can prove you had a shared folder and that folder contained copyrighted works, then you are guilty of copyright infringement? ... ...
That kind of scares me
As well it should. The obvious parallel that occurs to me: I have a lot of copyrighted works sitting on bookcases in my living room. Right at this moment, both our front and back doors are unlocked. (It's late Saturday morning here, and we've been going in and out of the house.)
If the prosecution's claim here is valid, then I'm also guilty of copyright infringement. After all, anyone could walk in off the street and take one of those copyrighted works off my shelf. They wouldn't even have to steal the book. There's a copier over in a corner, so they could copy a few pages, walk out with them, and I'd never know. Until someone sues me for "distribution", and uses my unlocked door as evidence of intent.
Now, obviously a computer directory full of files is physically different than a bookcase full of books with a copier in the corner. An unlocked door and a shared folder are physically different. But as far as the "intellectual contents", these two cases seem quite similar.
What's the legal difference here? Are there any lawyers here that can explain? Or am I taking a severe risk by not hiding my bookcases behind locked doors at all times?
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
Uhh... Hasn't it been well established in previous cases that you don't own the music. You only own a license to listen to the music? Now, I think that all of those cases were incorrectly determined, but if the legal system says having posession of the file when you have paid for it in a store doesn't constitute ownership, then there is no way that letting someone else copy the file could be a 'transfer of ownership'.
Read some of the case law http://www.firearmsandliberty.com/kasler-protectio n.html/.
... not even if you've been granted a protection order.
The police have no duty to protect you
Your analogy also fails because there is a charge for "attempted robbery" just as there is one for "attempted murder" and there is not one for "planning" to kill someone.
Wonder if the laws the RIAA bought included an "attempted copyright violation"?
If you're planning on breaking the law, even if a police officer knows about it, you can't be held for anything unless you commit an act in furtherance of the crime. If you just sit around planning in your head and somehow a police officer finds out, there's no crime committed. If you go out and buy a gun and start stalking your victim that's one thing, but a police officer can't just stop you from say leaving your house because he knows you're planning on committing a crime. Unless you do something (and not something completely trivial) towards committing a crime, you can do all the planning you want.
And as the poster above me pointed out, the police have no affirmative duty to help you unless you're somehow in their care (say you're in custody for something already).
I wonder how this compares to finding somebody else's papers in your office stacks, or finding marijuana amongst apartment clutter. Is mere existence on your property/area enough to make one guilty?
Table-ized A.I.
Folder?? Does anyone use "directory" anymore? Bah, I refuse to acknowledge I'm living in the past...
"Is it just me or do most of the stories that get posted by Zonk involve a /. user who is link whoring their companies and/or blogs?"
Yeah, it's a huge surprise that a site that posts user submitted stories ends up with submissions from people excited about a product. What an evil horror. Thanks for bringing this to our attention! We wouldn't want to read about products that cost money!! That'd be like advertising!!!
So... um.. anyway, why'd you bring that up in this particular story?
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
It's just you.
Ray Beckerman +5 Insightful
Let me just say, thank you. You are one of the most impressive /. posters. You consistently respond to posters on several websites, many of which are out and out trolls, and that is impressive. You take the time to explain things over and over again, and that is impressive. You always respond in a kind and positive way, even when the posters are trolls, flamebaiters, or just plain ignorant & lazy.
Anyhow, thanks for being on the people's side. I know there is more money on the other side, but less satisfaction I hope.
I really dont get what any of it means...
It seems like Lindor actually came out on top, even though her complaint was rejected. Oh so very confused. If i read it correctly it seems Lindor's lawyers wanted the wording of some document changed that said that "just having a shared files folder wasn't enough" to be illegal, that failed, but the judge still went with the "you must prove she actually shared copyrighted material" anyway.
If some thing is in an area that you control, it is assumed that you are the owner of that thing.
Of course, if you can demonstrate that you are not the owner of that computer/marijuana/whatever, then more power to you.
They don't grade fathers, but if your daughter's a stripper, you fucked up. --Chris Rock
Why do you think the decision negates the first possibility?
As I understand it, you asked if merely having a shared folder on the internet would be copyright infringement, and the judge said "no".
But as I understand the "first possibility", he asked if merely having a shred folder on the internet that contains copyrighted works would be infringement. In this case, how can you argue that distribution of copyrighted works via a shared folder on the internet is somehow not distribution of copyrighted works?
They don't grade fathers, but if your daughter's a stripper, you fucked up. --Chris Rock
I neither a lawyer, nor an apologist for the RIAA. I merely call them like I see them.
To a layperson, it sure sounds to me like if I open up a shared folder or other resource, place copyrighted works in it (and I do not own the copyright), and then advertise this resource, that that would meet the requirements for a distribution.
Is it a distribution to the public? Yes.
Of phonorecords or copies? Of copies.
For sale, transfer of ownership, lease, rental, or lending? I dunno. Lending, I guess?
Look, all I was doing was asking a question. You don't have to jump all over me. If you feel that I owe you an apology for something, and you'd like to tell me what for, I'd be happy to apologize to you (assuming there is something reasonable to apologize for). I did not mean to offend you with my question.
If you've already answered this question, I wouldn't ask you to repeat yourself. I'd be happy to read your explanation elsewhere, if you tell me where you have explained it.
At any rate, I would think that you would welcome such a question outside of a courtroom. Better to react like that in front of me than to blow up at a judge, no?
They don't grade fathers, but if your daughter's a stripper, you fucked up. --Chris Rock
I never claimed to be a lawyer.
I'm not convinced that I owe you an apology. I'll give you another opportunity to tell me what I did to you to owe you an apology. Would you be happy with a generic, superficial apology, knowing full well that I couldn't have possibly meant it since I don't even know what I'd be apologizing for?
When you share a folder on a p2p network, your computer advertises the availability of that share. Otherwise, how could you possibly share anything? Call it what you will, but at some point, peers need to know how to find you and your shared content. To my untrained ear, that sounds an awful lot like advertising.
Look, I am not a lawyer, and do not represent the interests of the RIAA. I don't even like the RIAA.
But I do like to call a spade a spade. Am I wrong? Tell me how I'm wrong. I'll listen.
All you have done is claim that I sound like an RIAA lawyer and demand some type of apology. In fact, I would go so far as to claim that I have been nothing but courteous to you, yet you have been rude to me.
If my ego were any bigger, I'd probably be demanding an apology from you.
They don't grade fathers, but if your daughter's a stripper, you fucked up. --Chris Rock
And for the sake of us all, I hope you have better luck in court than you did in this thread.
They don't grade fathers, but if your daughter's a stripper, you fucked up. --Chris Rock