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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)'"
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.
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
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
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