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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.'"
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.
Its your American right to distribute music! It's lude, crude, litigious, OUTRAGEOUS!
So if I leave a CD laying on a table where someone else might see it, am I "civilly negligent"? What stupidity.
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?
I don't distinctly remember which one it was, but I remember reading it.
Apparently a judge (most likely federal) told them that they *must* sue individuals and not large groups of people, unless those people were all involved in the alleged lawbreaking as a whole unit (ie. conspiracy) or a single occurance. Basically the judge told them they couldn't do this just because it was convenient for them. What it amounts to is that a single case with 21 "John Doe" persons = 1 filing fee (read; less money). But since each person's alleged infringement has no relation to the other's, they are *supposed* to file 21 separate cases (read: significantly more money).
Also, by doing it this way, it costs more money for the court to send out the proper notices to the participants. Money that they aren't getting from the RIAA.
*Money that we pay in our taxes.*
Patience is a virtue, but haste is my life.
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?
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.
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.
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.
Click on "Preferences" in the menubar just below the /. logo. Then click on "Homepage" on the next menubar. Scroll down to "Customize Stories on the Homepage" and change the radio button next to "Your Rights Online" (last option in the list) to the big red no sign.
Warning: Apple/Nintendo fangirl. Likes her electronics cute & cuddly. May be rabid.
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
who are illegally distributing music to me through the solid walls of my friend's house from three blocks over.
Sometimes they distribute music to her from 5:30am to 2am.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
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...
faster then NYCL ;-)1 7_austin_severance_order.pdf
texas it was
In re Cases Filed by Recording Companies, W.D. Texas, Austin Division (2004)
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/200411
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 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
If one more person posts an analogy involving a CD left on a table in a public place, I will club this baby seal to death.
Ceci n'est pas une sig.
This is a particularly interesting point - the general legal standing seems to be that the use of an unsecured wifi AP without the explicit permission of it's owner is illegal, the presumption being that not securing your AP does not imply consent. If we apply this concept to a publicly accessible shared folder - shouldn't not securing it also not imply consent, thereby placing the responsibility in the hands of the person accessing the shared folder?
Admittedly, it could (and has been in other posts) be argued that the default state of a folder on a network is not shared. My thought on that is that the default state of a wireless AP is unplugged - and plugging it in does not imply consent to public access.
Furthermore, can it not be argued that an unsecured shared folder can be used strictly for personal use, just like an unsecured wifi hotspot? If I have multiple machines all connected to the BU network, and I want to access my music from all of them - am I required to secure my shared folder in order to avoid copyright infringement? Essentially - it all boils down to intent, and I don't believe that intent to encourage infringement can be established without an explicit public advertisement of the share - i.e. posting a file to a p2p site, or putting fliers all over campus saying "Download my music! Go to XXX.XXX.XXX.XXX to leech off my music collection!."
The secret to creativity is knowing how to hide your sources. - Albert Einstein
Ray Beckerman +5 Insightful
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.
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..
Just out of curiosity: if I leave my car unlocked on a publicly accessible street, do you feel I am "distributing" the contents?
Nothing to see here. Move along.
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.
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."
The best place to learn about the RIAA's "making available" theory, and the arguments pro and con, is the case file in Elektra v. Barker. Be sure to read the transcript, in which the Judge skeptically questions the RIAA lawyer about it.
Ray Beckerman +5 Insightful
It was a federal court ruling by Judge Newcomer, in the Eastern District of Pennsylvania, but that is not what this motion is about. In this case, the RIAA is requesting that Boston University reveal the identities of 21 John Does. The defendants have responded saying that the RIAA cannot go on a fishing expedition for their identities without having proof that the 21 individuals have done something wrong.
Well, there's spam egg sausage and spam, that's not got much spam in it.
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.
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!
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.
Ray Beckerman +5 Insightful
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.
"I think that your comparison is fallacious."
For a second there, I read "your comparison sucks"
That would be, "Your comparison is fellatious."
Sorry, I can't believe I actually typed that...
Life, the Universe, and Everything... in my image.
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?
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.
Relax I just want some peanuts.
We are the fire that lights our world.. and we are the fire that consumes it.
What you described is probably not distribution. Distribution isn't just a word. It's a term defined in 17 USC 106(3). What you described wouldn't fit the definition.
Ray Beckerman +5 Insightful
The following is a list of the record company plaintiffs in Arista v. Does 1-21:
Arista Records LLC
Warner Bros Records Inc.
Atlantic Recording Corporation
Virgin Records America, Inc.
UMG Recordings, Inc.
BMG Music, Inc.
Capitol Records, Inc.
SONY BMG Music Entertainment
Motown Record Company, LLP
Maverick Recording Company
Elektra Entertainment Group Inc.
LaFace Records LLC
Interscope Records
Please pass it along so people will know which record companies not to patronize.
Ray Beckerman +5 Insightful