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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
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.
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.
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.
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
'' Soliciting to a crime or attempt to commit a crime is 'sometimes' punishable, sometimes it isn't (criminal law). Publicly sharing a folder feels to me like an attempt to commit a crime, but could be diminished by the user's stupidity (not knowing how to set permissions and such) ''
Well, there are different kinds of crime. If you plan to steal my wallet, and a police officer knows about it, he can wait until you take my wallet and arrest you afterwards. If you plan to kill me, and a police officer knows about it, he cannot wait until you kill me; he has to stop you before you do it or even try to do it. Therefore there is a good reason to make it a crime to plan or attempt to kill someone; there is much less reason to make it a crime planning to steal my wallet.
Also: Not knowing that sharing copyrighted files is a a copyright infringement is not an excuse.
Not knowing that files you shared were copyrighted is some amount of excuse (if I give you some music, claiming that it is in the public domain, you share it, and it turns out that I lied to you, that is an excuse for you).
Not knowing that you are sharing files _is_ an excuse (unless you should have known).
So if I have a window in my house overlooking a screen from a drive-in and charge deaf people to sit and look out my window, is that copyright infringement?
Hmmm... perhaps I should make a new name "TerribleAnalogyGuy"