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Boston University Student Challenges RIAA

Posted by kdawson on from the back-off dept.

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.'"

21 of 381 comments (clear)

  1. his argument seems flawed by maynard · · Score: 2, Interesting

    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.

    1. Re:his argument seems flawed by brunascle · · Score: 4, Interesting

      how is that different that leaving a CD physically out in the open? someone else is able to grab it and copy it. would that make me liable for leaving it there?

    2. Re:his argument seems flawed by Psmylie · · Score: 5, Interesting

      I think a better analogy would be: If you had a case of beer in your unlocked car and some kids opened the door and took it, would you be liable for distributing alcohol to minors? I don't know the law in this case (NAL), but it seems stupid to charge the person who bought the beer in this case. Unless, of course, they can prove that he got out of his car, looked over at a bunch of kids, and said, "Gosh, I sure hope nobody takes any of this beer out of my unlocked car, wink wink" then walked away

      --

      psmylie's dictionary: Godzillion (noun) Any number large enough to destroy Tokyo

    3. Re:his argument seems flawed by Maximum+Prophet · · Score: 3, Interesting

      If you leave a CD lying around, and someone walks by and steals it, they are guilty of theft. I don't see that you'd have any liability. If on the other hand, someone walked by and copied it, they are guilty of infringement, you also should be without liability.

      If you loan a paperback book to a friend, that's ok. (Libraries do it all the time) If the friend copies the paperback, they are guilty of infringement, but I don't see any liability for you.

      I'd say he has a good case, unless he intentionally put an electronic sign on his files, saying "Copy These Please!!!"

      --
      All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
    4. Re:his argument seems flawed by Seraphim_72 · · Score: 3, Interesting

      The college that I work at has photocopy machines in the library. So whose fault is if I walk home with a copy of Harry Potter, the host, the technology, or me?

      Sera

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      Slashdot, where armchair scientists get shouted down and armchair theologians get modded up.
    5. Re:his argument seems flawed by Marxist+Hacker+42 · · Score: 5, Interesting

      Actually, to be exact- you left a Flash Card of some sort on the front seat of an unlocked car. You come back, the Flash Card is still there. Somebody else copied it in the mean time, but you haven't lost anything- you still have the data on your flash card. Was it your fault that the data was copied?

      --
      SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
    6. Re:his argument seems flawed by moderatorrater · · Score: 4, Interesting

      I think it's going to come down to how the publicly accessible folders are generally used. If they're usually used for storage and the student never advertised the music, then they'll have a good chance of the case being dismissed on the grounds of no intent. However, if the folders are generally used for sharing music and there's a culture of everyone browsing and copying from everyone else's folders, then I would imagine the judge would find intent based on the music being in the folder.

    7. Re:his argument seems flawed by JustAnotherReader · · Score: 2, Interesting
      >Actually, to be exact- you left a Flash Card of some sort on the front seat of an unlocked car. You come back, the Flash Card is still there. Somebody else copied it in the mean time, but you haven't lost anything- you still have the data on your flash card. Was it your fault that the data was copied?

      This is a much better analogy because it shows that the owner of the flash card neither gave permission to copy the data nor did he have any way of recognizing that the data had been copied. Both of those points are well made within the motion to squash. Furthermore, he never invited anyone to copy the files. The RIAA would have to show that placing the files on an unsecured hard drive is the same as offering the files for other to copy.

      However, the John Does could easily have had a reasonable expectation of security. Certainly it would seem that your files should be secure from sources outside of the school (i.e. people without school network login IDs). The RIAA agents were (apparently) neither students nor faculty of the school. Therefore the John Does would not expect them to have access to the files. Since the RIAA agents are the ONLY ones whom the RIAA can prove accessed the files and that access broke through a reasonable expectation of security then it would be quite a stretch to call placing those files in a directory "distribution".

      The section in the motion to squash about how the John Does did not place the files on the hard drive for profit and how they did not offer the files to the RIAA agents may be a spurious argument. I don't think the RIAA has to show that the John Does intended to profit. I believe that they only have to prove that they were damaged. However, all of that hinges on the idea that the John Does placed the files with the intention of damaging the RIAA. While that may be true, the RIAA doesn't seem to have provided actual proof.

      Now, if they were to prove that other students were copying the files within the school's network then they might have a better case. But as it stands I think they've lost this one.

      IANAL

    8. Re:his argument seems flawed by Red+Flayer · · Score: 2, Interesting

      You would have to prove that it is your very work that gave them that increase
      Not at all; that didn't need to be proven in Napster, so why should it need to be proven in a library case? Any use would constitute increased traffic, which would be considered contribtuory to increased funding.

      I think it's a crock, btw, but that's what happens when laws and courts can be bought and sold.
      --
      "Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
  2. A few questions... by EonBlueApocalypse · · Score: 5, Interesting

    I just have a few questions which probably are irrelevant to all this but, what happens if you have 4 or 5 people split the cost of a few albums equally and then listen to the music between themselves on a folder available over a network connection... is this breaking the law? If that so when does it become legal? Would they have to be living with each other for example having music available to other family members over a network in the home? Or am I not even supposed to be doing that?

  3. Security hacking and online storage by geek2k5 · · Score: 5, Interesting

    This could lead to some interesting complications when dealing with online storage.


    For example, if a person has music online and believes that it is secured, would they be liable if someone breaks in and makes it available to others? I could see instances where this other person breaks in, makes the music available and then reports to the RIAA after a number of downloads are done.


    Now some people would say that security is your responsibility, but how do you handle environments where someone else is providing a service and you don't control everything?

  4. Interesting approach by RichMan · · Score: 3, Interesting

    If I play music over my speakers others can hear it.
    If I stream music off my hard drive, how is this different than playing it over the speakers?
    If people play it off my hard drive how is that different than playing it over the speakers.

    The above assumes private playing of a valid music source.

    There is a very fine distinction to be argued here. That will have to cover buffering, decoding and all sorts of stuff.

  5. Re:*Ding* by NewYorkCountryLawyer · · Score: 4, Interesting

    I have no idea where you got that quote from, but whoever wrote it is referring to Fonovisa v. Does 1-41, where the RIAA was ordered, in 2004, to cease and desist from the illegal practice of joining multiple John Does for its own convenience in a single case. The RIAA has been ignoring that order ever since. This Boston case is yet another example of the RIAA ignoring the Fonovisa v. Does order.

    --
    Ray Beckerman +5 Insightful
  6. Lost iPod on train... by gsfprez · · Score: 3, Interesting

    lets say i lose my (80gb) iPod on a train...

    does that mean that i have to throw away all my CDs at home? I mean, if that iPod is now in someone else's hands, i've "distributed" music - and would be liable under the rules... remember, a CD is nothing more than shiny plastic... i'm given a license to listen to that music... i don't "own" anything but the shiny plastic.

    what if i was robbed? As far as i can tell, not only would i have been robbed of my iPod, but i'd have to go home and throw out my CDs on top of it, else, i'd be liable for distributing hundreds of CD's worth of copyrighted materials.

    --
    guns kill people like spoons make Rosie O'Donnell fat.
  7. Re:I say... by Wolfger · · Score: 2, Interesting

    If you have copyrighted media on your computer, in a publically available share, that is pretty much distribution.
    Hmm. So by that logic, anybody broadcasting unsecured wi-fi into your laptop's airspace is distributing internet access. Unfortunately, the law disagrees with that assessment. There have been multiple cases now of people being arrested for accessing such "distributed" resources.

    Just out of curiosity: if I leave my car unlocked on a publicly accessible street, do you feel I am "distributing" the contents?
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    Nothing to see here. Move along.
  8. When I Broadcast My Music... by Nom+du+Keyboard · · Score: 3, Interesting
    I have one of the great little devices available plugs my MP3 player into a small FM transmitter, allowing me to wirelessly listen to my music over my car radio. Here I don't just have files sitting on a mass storage device, I'm actively broadcasting music copyrighted by record companies affiliated with the RIAA. And someone manufactured and sold me this device with this precise use in mind. Other people also have radio receivers, and this broadcast is unencrypted.

    Am I breaking the law?

    Are the people who made and sold this device breaking the law?

    If yes to the above, why haven't they been sued out of existence yet?

    (Note: this is an illustration to prove the ridiculous positions that the RIAA has attempted to stretch existing laws.)

    --
    "It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
  9. They already cover your basic premise... by Junta · · Score: 3, Interesting

    http://www.copyright.gov/title17/92chap1.html

    "if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space"

    So if you set up a sound system that can scale to a larger venue, you can be considered to be intentionally broadcasting it. Putting data in an explicitly shared would be considered analogous to that.

    These 'gray lines' people like to jump on in terms of real-world analogies have been recognized and answered in law already. You can probably reasonably tell whether the person's share was intentional or incidental (most modern OSes and large-scale networks make it hard to accidentally share data such that people can get it without circumventing or bypassing a mechanism meant to prevent it). If his directory was by default world readable, there is a fair argument he was using it for his own purposes never realizing the world could get at it. If he put it in something like public_html, it's hard to argue that he didn't mean it. In which case, public_html would be like putting a few hundred speakers throughout a town and playing the music, and then claiming you didn't mean for anyone but you to hear it.

    --
    XML is like violence. If it doesn't solve the problem, use more.
  10. Re:Exhibits in Elektra v. Barker by NewYorkCountryLawyer · · Score: 2, Interesting

    NewYorkCountryLawyer, The Exhibits in Elektra v. Barker appear to be screenshots of file sharing software (and a list of infringing files compiled by an unknown party). Surely, this can't be all the evidence that was presented in that case, can it? Screenshots can be easily forged and do not necessarily identify the person using the file trading software. Is this the sole basis of their case? Of course that's not the only evidence they have. They have a few more easily forged, and obviously doctored, printouts which also do not identify the person using the file sharing software. See transcript of deposition of Dr. Doug Jacobson and exhibits 6, 10, 11, 13, and 14 (exhibit 12 being the screenshot).
    --
    Ray Beckerman +5 Insightful
  11. Re:I say... by SpecBear · · Score: 4, Interesting

    Let's try a different take:

    I make some modifications to my copy of Linux. I leave a copy of the compiled version in a directory that's accessible to anybody on the internet who knows where to look. When someone demands the source code, I tell him to go to hell because I'm not distributing anything. Can I get sued for violating the GPL?

  12. Re:I say... by Anonymous Coward · · Score: 1, Interesting

    It is the same principle... up here in Canada at least! You're not the first to make this argument. Canadian Federal Judge Konrad von Finckenstein came to exactly the same conclusion way back in 2004:

    http://news.com.com/2100-1027_3-5182641.html

    The case this student is making in the U.S. today has been precedent in Canada for over three years now.

  13. Re:I say... by KKlaus · · Score: 2, Interesting

    Isn't it more like you left those CDs next to a computer with a burner and left a sign saying something to the effect of "anyone who wants to copy these CDs, feel free, just bring your own blanks"?

    The whole damn point of this debate is what the intent of the person with the share folder was. You can't give an analogy that essentially strips out all the intent of the student to let the files be copied freely, and then use that to prove that the intent didn't exist in the original situation. He didn't just "leave his window rolled down." He intentionally adhered to a setup that has no other real world function other than copyright infringement.

    That setup should carry weight. Ever go tricker treating when you were a kid and someone left a bowl of candy out on their front step? I don't think they could take you to court if, after you took a piece, they jumped out from behind a set of bushes and claimed theft. The implication of what a bowl of candy on Halloween is intended for is too strong for them to claim reasonably that it was intended for something else, and that you should have known that.

    So to the student, he can claim all he wants, but if his main point is "well, I never intended for it to be used THAT way!" then I don't think he's going to win. It's just too unreasonable to believe that he never intended for copyright infringement to occur, and then when it did, none of it is his fault. And say what you want about the RIAA, but the law then makes his actions illegal.

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