Judge — "Making Available" Is Stealing Music

JonathanF writes "If you were hoping judges would see reason and realize that just using a program that could violate copyright law is about as illegal as leaving your back door unlocked, think again. An Arizona district judge has ruled that a couple who hosted files in KaZaA is liable for over $40K in damages just because they 'made available' songs that could have been pirated by someone, somewhere. There's legal precedent, but how long do we have before the BitTorrent crew is sued?" The New York case testing the same theory is still pending.

Comments

Minimal precedential value

[Goobermunch]

IAALBNYL*--

The precedential value of this case is very low. It's a single ruling by a trial judge. In all likelihood, the actual opinion won't even be published.

Now, if these folks decide to appeal this ruling, and the relevant Court of Appeals decides to affirm, then there's a real precedent you've got to worry about.

--AC

*I Am A Lawyer, But Not Your Lawyer

Re:Minimal precedential value

[Goobermunch]

Absolutely. Circuit splits are one of the key ways to get the Supreme Court to grant a writ of certiorari (which is fancy lawyer-speak for "listen to a case"). However, the Supreme Court may exercise discretion and not hear these cases based on a split between only two circuits. It often likes to allow the different Courts of Appeals to consider the issues and develop their own ways of interpreting the law. This lets them reap the benefits of all the brain damage the circuit courts have inflicted on themselves.

--AC

Re:Minimal precedential value

[NewYorkCountryLawyer]

1. The Greubel and Duty cases did not hold that making available was distribution; they said they could not understand the technology sufficiently to pass upon the question and deferred ruling until after pretrial discovery.

2. The second Napster decision to which you refer specifically held that making available is not distribution.

3. The Hotaling case specifically noted that normally there can't be distribution without actual dissemination of copies. It then carved out an exception because the defendant was a library which kept no circulation records therefore making it impossible to find out if there had been dissemination of the concededly unauthorized copies which the defendant had scattered throughout its library branches.

Legal peer-to-peer providers need to band together

[MichaelCrawford]

I operate a torrent tracker and full-time seed for some Creative Commons music downloads. These torrents are perfectly legal and posted with the permission of the copyright holder. (It's just my music, but there will be more from other artists soon.) Other legal torrent sites are Legaltorrents.com, Jamendo and bt.etree.org.

Also many Free and Open Source software projects distribute installers via BitTorrent, notably Ubuntu Linux and OpenOffice.org.

All of these torrents are completely legal. Yet many ISPs block BitTorrent traffic - that happened to me with Eastlink back in Nova Scotia. I was therefore unable to check that my own torrents were operating properly! One can try to work around such blockage by using non-standard port numbers, but I understand that it's possible for ISPs to filter based on the content of packets, and not just the port numbers.

I can see the day coming when all peer-to-peer traffic, whether legal or not, is blocked either due to new laws or record and movie industry lawsuits. All of us who have free content and software to distribute will lose out.

Those of us who offer legal files via peer-to-peer networks - not just BitTorrent, as Jamendo also offers eMule - need to work together to lobby both national governments and local ISPs to do away with this filtering. There are many ways to download both music and software that are perfectly legal; we need to dispel the myth that free downloads are somehow necessarily violating the law.

Re:Bittorrent is not a p2p file sharing program.

[AKAImBatman]

Actually, it will. The judgement is directly against people sharing files with an obvious intent to infringe on copyright. How that compares to the legality of a download acceleration service (BitTorrent) is beyond me. Even the BitTorrent search engine doesn't make the files directly available. It simply links to torrent files that describe the network for downloading the file. They also (as I understand) yank illegal torrents from the search on request. So I don't really see the parallel that the submitter is trying to make.

copyright infringers get sued != BitTorrent is an illegal technology

Re:US Intellectual Property laws

[Goobermunch]

IAALBNYL*--

Actually, the United States Code has had provisions for criminal copyright infringement since at least 1982. It's not really anything new. Think back to when you first rented a VHS movie, and the FBI warning came up . . . the find and imprisonment mentioned therein were the penalties for criminal copyright infringement.

While I understand the difference between intellectual property and personal property (especially as it relates to the term theft), intellectual property right holders do suffer losses from the unrestricted copying of their property. Generally, in this country, when a person's rights are being violated they have two options: go to the police or go to court. It's not uncommon for there to be both civil and criminal penalties to protect an individual's rights. For example, if you steal my car, you can be prosecuted for theft. I can also sue you for conversion (and in some states, civil theft). The criminal prosecution is brought in the name of the People and is meant to extract justice for society. The civil suit is meant to compensate me for my losses.

Criminal copyright infringement (as opposed to a civil suit) is meant to serve the same purpose: justice for society.

--AC

Re:Geek Speak Criminal Definition

[Lane.exe]

Eh. No.

If you are caught possessing over a certain amount, it can create a statutory presumption (depending on the applicable law) of intent to distribute. A presumption means that this is something that, absent evidence to the contrary (generally a clear-and-convincing standard, or perhaps preponderance. Again, it depends on the law), the State does not have to affirmatively prove. For instance, let's say that possession of Sprite is criminalized, and possession of over a six-pack of Sprite creates a presumption of intent to distribute. You get caught with a case. If you can show, through evidence, that you intended to consume all of the Sprite yourself, you'd have rebutted that presumption.

You're not "automatically guilty" of anything. The reason why this is so that possession of a large amount of a substance is itself evidence of an intent to distribute. It may not always be the case, but the Legislatures have deemed that it is often enough the case that intent ought to be presumed unless you can show otherwise. This doesn't violate due process because intent is only one element of the crime, and the State must still prove the other elements beyond a reasonable doubt.

Re:That's not the point being made. Crazy Law Ahea

[Pieroxy]

2. Having sex, creating babies, who later grow up to break the law - will that make the parents liable?

I don't know where you live, but where I do, until the children are of age (18 in france), their parents are legally responsible for their acts. So yes, they are liable.

Pro se case

[NewYorkCountryLawyer]

The key is that this was a pro se case. Defendant was not represented by counsel.

Re:I see

[DukeLinux]

Absolutely true. Money equals outcome in America. For example, I wanted to put an addition on my house. Not a chicken coup, but a viable addition which would allow them to up my taxes, etc. The ONLY way to get a property improvement approved is to hand over $1,000 to an attorney who is a friend of the township solicitor and bingo...you get to build your new addition. No money - no approval. If you have enough money you can slash your wife's throat and kill an innocent bystander. We all know that. If your a Senator you can molest children. The "system" is rigged so that you MUST pay to play. If a mortgage, kids and braces get in the way, then you lose. This is why Shakespeare was correct regarding lawyers.