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Boston University Student Challenges RIAA
NewYorkCountryLawyer writes "A Boston University student identified only as one of the 21 'John Does' in Arista v. Does 1-21 has challenged the RIAA's alleged right to get his or her identity from the school, bringing a motion to vacate the ex parte discovery order obtained by the RIAA, and to quash the subpoena served on the university. John Doe's court papers (PDF) argue, among other things, that the RIAA's papers are 'based on a flawed theory that having copyrighted music files on an individual's computer or on an assigned folder on Boston University's server is a "distribution" of such copyrighted music files, where such folder is merely accessible by others.'"
If i leave my car outside unlocked are you free to take it? Of course this is different because data can be duplicated, but just because something is there doesn't mean it has to be taken.
So if I leave a CD laying on a table where someone else might see it, am I "civilly negligent"? What stupidity.
Ignoring the intent and other issues I find what constitutes 'distribution' interesting. I personally think it should include intent. As you've stated it it seems you imply that leaving a CD on a park bench is 'civil negligence' and should lead to charges...
A book in a library is still copyrighted. If you use the libraries photocopier to make an illegal copy of the work "You" are infringing not the library. I believe that that is basically his argument.
Essentially, as I read it he's arguing for no criminal liability for illegal redistribution due to having no intent to distribute. Yet he admits to having placed copyrighted works in public folders on a public university system, which allowed others to copy his work. Further, he must have had the ability to set filesystem permissions to intentionally prevent redistribution. I think he's liable. If they can't prove criminal misconduct, at the least by his own admission they can prove civil negligence.
This argument would damn every soccer-mom and burger-flipper who plugs a home computer into their cable modem without remembering to set up a firewall. I think that, reading the citations in the motion, they make a good point -- copyright infringement, they argue, requires both intent and commercial gain, not to mention actual infringement (which nobody has proven even happened).
Though I've grown weary of all the crazy analogies flung around on Slashdot of late, I feel the need to provide one of my own: You're sitting in a university library with your laptop, and the guy across the table from you gets up to search the stacks for something, leaving his folder of music CDs on the table. You grab one, stick it in your laptop, and in a couple minutes have ripped a perfect digital copy of it, before the guy even returns. Is he then criminally liable for having permitted you to infringe the copyright of that CD, because he didn't lock up the discs or take them with him? Or, worse, if you have the ability to do exactly what I just described, but don't take advantage of it, is he still liable just for having provided the opportunity for infringement?
BTW, I'm not sure this motion is on the behalf of a single defendant, but all of them (it's listed as representing Does 1-21).
as much as I'm against the RIAA, I'd actually have to agree with them on this case.
If you have copyrighted media on your computer, in a publically available share, that is pretty much distribution.
Example: You live somewhere, where the is street traffic. Now, lets say within arms reach of the street, you place [something]
[Something] is either
(a) Illegal to distribute (not necessarily posses, just distribute)
(b) Illegal to distribute to minors
(c) Illegal to distribute to others not possesing a license.
Are you breaking the law by putting it out there in the open, where anyone can access it trivially?
As a few examples:
Illegal narcotics
Pornography
Guns (regular or automatic)
Perscription medications
etc. etc.
However, just because the files are there, does not mean they were put there with the intent to distribute them to the populace in general. While the folders may have been public, the fact is no one is under any obligation to change the permissions on a folder. And it's also possible that changing the permission might make the content inaccessible to some form of media player that would access the folder. Also, even if the permissions are changed, that does not stop someone with adequate knowledge or superuser permissions from altering the permissions or copying the content despite the permissions.
Just because the files are there doesn't automatically mean he was intending to share them or anything else. They simply are. Implying that the existence of something proves guilt is a bit of a flawed argument. The RIAA has to prove intent and they don't have the evidence.
GetOuttaMySpace - The Anti-Social Network
fairness never had anything to do with what the riaa is doing or has done. the riaa is pursuing control. control ossified into "law" when laws on the subject matter only applied to a handful of distributors of music. but now that everyone with an internet connection is a potential distributor of music, the "law" is basically antiquated bullshit
you should stop asking questions with the idea of fairness in the forefront of your mind. instead work along the mental model of schoolyard bully trying to get what he wants, then the answer to your questions are obvious:
"no, you can't do that, because i don't control it. that's not fair? too bad"
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
Digital copying and copyright infringement are two hot topic issues that affect practically all geeks in some way. If you'd rather hear about obscure single-line improvements in the Linux Kernel,all the time, this isn't the place for you.
I never spellcheck and I freely admit it. Save your karma for more worthwhile "lol erorrs" replies
So... public libraries are illegal because anyone can check out a book and photocopy the contents of copy righted material? What about the music CDs of movies that you can access there? It's the same principle, in my opinion.
They've already convinced the courts.
Hence the charge is "copyright infringement" and not "theft"
The actual guy (not the guy in your analogy) had better hope that he didn't send out email to any of his friends saying "Hey Guys, I've got free music in my public folder". For that matter, he'd better hope he never mentioned it in casual conversation - because his friends may not be willing to risk going to jail for perjury (or even obstruction of justice) if such a conversation did take place and he wants them to hide that fact.
I suppose that the Napster argument won't go very far these days but maybe he could make the Napster argument just for himself - particularly, if he could show that the only way he could make the files available to himself from elsewhere on the network was to put them in his public folder.
Book publishers seem to be kicking themselves for not organizing into crime syndicates like the RIAA and MPAA, otherwise libraries WOULD be illegal.
More Twoson than Cupertino
It's worth noting that everything you listed there is considered in some way harmful by someone. No one really considers music (overall) to be harmful*. If you went and set a stack of CD's on the street that said "take one", no one is going to freak out.
*Yes, I know some people rail against explicit lyrics, but that says nothing of other forms of music. Let's not get pedantic here.
-dave
http://millionnumbers.com/ - own the number of your dreams
But what if his intent was only to give himself access to his data from any location on campus?
In that case, it is not distribution. It is giving himself location free and operating system unlimited access to his purchased content.
If possession is 9/10ths of the law, then my receipt says I can do whatever I want with my legally purchased content so long as I don't produce copies for financial gain.
There is law against selling copies of content without access to copyrights. There is law against copying content without access to copyrights. There is no law against making one's legally purchased content accessible to oneself (unless you break encryption in the process).
Resistance is futile. Your technological distinctiveness will be added to our own. You will become one with the morgue
(a) Illegal to distribute (not necessarily posses, just distribute)
(b) Illegal to distribute to minors
(c) Illegal to distribute to others not possesing a license.
Are you breaking the law by putting it out there in the open, where anyone can access it trivially? So you think it should be illegal to leave your keys in your car? That covers (b) and (c).
You can't take the sky from me...
A better analogy would be to say he has some music files, and he puts it on a shared folder somewhere.... oh wait...
But seriously *WTF* is with all the analogies. The original concept is not that hard to completely understand. If he put it in his home directory, and the default permissions were open (i.e. umask being set stupidly), then I would say he has an argument. However, if he had to explicitly change permissions on it, or put it in something analagous to a 'public_html', intent to distribute can be argued. If you put a big sign on your drive saying 'I put music on here, feel free to copy it', it's obvious you are inviting the activity.
XML is like violence. If it doesn't solve the problem, use more.
I think that's a key point. Say you're in a public wilderness area and you leave your gun laying against a tree while you're in the outhouse, you could be liable if some kid came along and shot himself with your gun but it's unlikely you'd be prosecuted for "distributing" guns, per se.
Similarly, if you left your prescription medication on the table in a coffee shop by accident then you probably wouldn't get prosecuted for "distributing" prescription medication.
Pornography is a little trickier because if a man walks up to a woman and shoves a naked picture of himself in her face then he can get prosecuted for some form of sexual assault. On the other hand, if some guy was giving away old Playboy Magazines at a yard sale then the understanding would be that they were only for adults - even if the magazines were not specifically guarded aginst minors at all times.
As a few examples:
Illegal narcotics
Pornography
Guns (regular or automatic)
Perscription medications
etc. etc. There are laws that regulate the posession of narcotics, guns, prescription medications and porn. They are illegal when found in the hands of the wrong people. These same rules do not apply to music.
I say good for him, the RIAA bears the burden of proof and if they don't have proof anyone downloaded the music, then he didn't break any laws.
I went to eat some animal crackers and the box said, "Do not eat if seal is broken." I opened the box and sure enough..
I think the analogy works even better if you replace "car" with "children's playground in a public park" and "case of beer" with "unlocked cooler with a 'Free Kool-Aid!' sign on it."
I think that your comparison is fallacious. A more apt comparison would be if I made a set of CD's with music that I own, ripped to MP3 for my use and then burned to a CD. I then take a stack of those CD's and place them in my truck, tucked into the CD holder I have strapped to the visor. Then, when I park my car, I leave the window rolled down.
Now, the comparison to the RIAA's case is -- a police officer walks up to my truck, reaches in and takes the disks out of the visor.
And then he arrests me.
And *I* get charged with a crime.
If that's the legal definition of distributing copyrighted materials, then we have a much bigger problem with our legal system then just the RIAA.
Life, the Universe, and Everything... in my image.
They need to use the Library argument of putting a photocopier in a library.
Just because the means to commit copyright infringement is in place, doesn't mean that it is happenning.
How wrong you are. If they had their way you'd pay each time you hear the song on the radio or sung it kareoke or whistled it. Don't put them in such a good-hearted light. There is no end to greed, especially the greed of a corporate entity.
Reading through this thread, for some reason, reminds me of the two citizens of the former USSR sitting in a cell together, one having just arrived and one having been there for years:
Old inmate: "What are you in for?"
New inmate: "I got 20 years for doing absolutely nothing."
Old inmate: "That's nuts! You only get 10 years for doing absolutely nothing...."
"All great things are simple & expressed in a single word: freedom, justice, honor, duty, mercy, hope." --Churchill
It boils down to these questions:
1) Is it illegal to borrow a legally published version of copyrighted material?
2) Is it illegal to copy borrowed material?
2b) If 2 is true, who is at fault when material is copied, the copier or the lender?
Given libraries are legal, 1 is a definite "no". 2, I think, is most likely illegal. The key question here is 2b.
I can't see any viable way the vendor/lender can be held responsible for items sold/lent being used illegally. With the possible exception of regulated/dangerous items such as guns or other weapons, it's not criminal for a store to sell someone a hammer without making them sign a statement claiming they won't use it for illegal purposes. It's not the store's fault some nut bought pencils and started killing people with them.
Similarly, if it is legal to "borrow" music but not copy it is not the student's fault the files were copied. The other users could simply have listened to the music files from the shared folder without copying them, and thus "borrowed" them. That they weren't content to simply "borrow" the music isn't the fault of the student who opened his music collection to the public.
That's how I see it anyway.
Thunderclone: ONE MAN ENTERS! TWO MEN LEAVE! ONE MAN ENTERS! TWO MEN LEAVE!
By that logic, doesn't a library placing a photocopier out in the open for the public to use just like putting a sign up saying "copy anything you want"?
So just put a README in the folder that says that others are NOT allowed to copy the files without permission from the copyright holder... That should be enough.
The library isn't at fault because its very design is to provide fair use to the public for copyright documents.
But as for the homeowner that leaves the liquor cabinet unlocked, you're damned right that they're liable. They're liable for what their children do: If their child gets drunk and then goes out driving and kills somebody, then the parent is responsible to some degree for not parenting enough.
And in the case of the ax, well, that's silly, because the primary purpose of an ax is not chopping people's heads off, whereas the primary purpose of having music files in a publicly accessible area is specifically to allow for downloading.
It's the opposite of the argument that Diebold was trying to make when somebody downloaded the source code for their voting machines from a public Diebold FTP server. They were claiming that the person had no right to download it, but the assumption must be made that when files are put in the open, they are given permission by the person hosting them to download them. In the Diebold case, they owned the copyright to the files and thus the person downloading them had a legal right to assume that they had permission from the copyright holder to download them. In the case of music files on a public server, the person downloading does not have the legal right to assume this, because they know that the files' copyrights aren't owned by the person who put them there. The person who uploaded them has the responsibility to reasonably make an effort to prevent them from unauthorized access. Again, nothing has been done wrong until the download happens, but once it does, the person who made them available is at fault just as much as the person who downloads it. This is specifically because the person who uploads them, just like Diebold, has to assume that if it's available, it's going to be downloaded.