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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)'"
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.
Actually it makes a good defense. The person providing files is not breaking any law. It's when you actually download it that you do break it. They have to go after the people downloading. That's a BIG difference.
In question is 17 USC 106(3):
"to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;"
One downloading could actually OWN the work they are downloading. Is that infringing? I doubt you could sell that to a jury...notice that all of these include a monatery exchange.
Yes, it's amazing how many people seem to misunderstand this. Making a file available for download is like leaving a book on a photocopier. At most it's an invitation to someone else that might amount to contributory infringement. It's the person who initiates the actual copying (if any) who is directly infringing.
I think it's actually quite significant.
I'm not aware of another decision, among the 25,000 or so cases that have been brought so far, where the Court has (a) laid out the standard of proof the RIAA will have to meet at trial, or (b) made it clear that the RIAA's theory -- that merely having a shared files folder is in and of itself a "distribution" -- won't cut it at trial.
If you or any other reader is aware of any such decision, please bring it to my attention. Thanks.
Ray Beckerman +5 Insightful
Hm.. so having a gun does show "intent to kill"?
I know it's different, but i think the choice to not make it illegal to "just show intent" is a good one anyways.
If they find someone with "intent to share", they have reasons enough to observe and get an actual case, in which the ones shares, if he does. Or find out if he tries to.
If the police gets to know that i intend to murder, they try to stop me before I do, and can get me in front of law for this. But they can't get me in front of law because of murder. I could, right before doing the act, think otherwise and just wouldn't have done anything. Nobody can prove the murder as long as it didn't happen.
But showing intent is another delicti. I mean, if they get one sharing 100ths of gigabytes of copyrighted material over bittorrent or similar (i think they mean such shares, not windows shares.. it's just common terminology), they can react, but they can not bring him to case for sharing as long as they haven't proved it.
This is just right.
Sorry LordPhantom, will try to do better next time.
I have a lot of pressure on me from a lot of directions.
One source is the RIAA, which has been scouring my internet writings and keeps trying to discredit me with the Judge. Just the other day, when I wrote to the Judge to submit the decision of the District Court of Utrecht in the Netherlands, and the independent expert report upon which it was partially based, they tried to "strike" my submission, and in support of their motion to "strike" sent the judge a page from my blog. It's all here.
Mainly, I've come to this decision: I'm under so much time pressure, I have to concentrate on what is the most important contribution I can make, and leave the rest to others. The most important contribution I can make is get accurate news and information out there. So I try to concentrate on that and let the rest of the world take care of the rest. Excellent commentators such as p2pnet.net, Ars Technica, TechDirt, Digital Music Web Log, Boing Boing, and others, can often make it more understandable. I got a laugh when Grant Robertson of Digital Music Weblog wrote that my article "How the RIAA Litigation Process Works" read like dry toast, and wrote his own version of it designed for non-lawyers.
Ray Beckerman +5 Insightful
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.
Except... the other judge did not say that. The guy in question wasn't just "linking to" someone else's content... he was embedding someone else's copyrighted videos in his own site, making it look like it was his material, while still burning up the other guy's bandwidth. It was classic leeching, and he was making ad money off of doing it.
Don't disappoint your bird dog. Go to the range.
Ray wrote: "Sorry LordPhantom, will try to do better next time" /. crowd". See http://yro.slashdot.org/comments.pl?sid=213318&cid =17347570
you already showed that you can do better. (better in terms of "understandable for non-lawyer
maybe for your next submissions you could make it this way: one short introduction sentence in english what the following legalese sentence, that contains also all the links, mean.
And with regards to "[...]the RIAA, which has been scouring my internet writings and keeps trying to discredit me with the Judge", I believe the Honorable Judges Trager and Levy have peeked into your blog in their sparetime already and they are able to see that RIAA-Richard's trials to smear you are useless since you keep your postings generally objective and pure on a fact topic.
Next Time RIAA-Richard makes 100 screenshots and delivers only 1, maybe you should attach a screenshot of the same posting to your answer to the judge too.
But not only your headlines like he did, but also the comments visible. That way the judge has it in the file that not you to be blamed (if even any is to at all), but the bad boy Alter_Fritz.
-- Alter_Fritz
... Since it's entirely possible the downloader wouldn't have wanted (or even been able) to pay the market price for the files.
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.
It would not be illegal since the screen, in this scenario, is visible to anyone in the public, even if they are only able to see it from your residence or ones near you. Because it is being broadcast in the open it isn't illegal. The motion picture group might want royalties from what you charge and the government might want to collect taxes but there'd be no legal infringement. You can equate it charging to have someone listen to a CD that you picked up off the street. I found a CD once that was in good shape. I didn't like the music so I gave it to a friend.
One would also have to argue that your charging is in fact causing any damage to the movie industry.
You can lead a man with reason but you can't make him think.