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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.
Their three-paragraph response was miniscule in comparison to those filed by file-sharing defendants with professional representation.
Ok, there's their mistake, they didn't hire a lawyer. Three paragraphs? That's just crazy.
Hopefully they'll hire one before the time to appeal expires.
It's not a file sharing anything. It's a file transfer protocol.
that's all
I'm not 100% sure, but I do believe that I read a clause about this when I studied copyright law one year ago. Making copyrighted content available to others (online or otherwise) without owning the rights to the work is against the law. Like I said, I'm just going by memory here but I'm fairly certain that I read an older case dealing with this same issue in a non-online context.
Regardless, the article submitting shouldn't be so quick to dismiss a judge's ruling as foobar just because he doesn't like the outcome. I actually agree with the judge's decision, despite my strong disdain for the RIAA/MPAA and its friends.
Hero of Allacrost, a FOSS RPG for *NIX/*BSD/OS X/Win
private_property_dont_download This is where I keep all my albums that I riped from my cd's. Since you already know that anything in that folder is my private propery, downloading from it make "you" the thief.
o wnload_all_of_your_music
The folder that I download tracks to is named paying_canadian_recordable_media_levies_lets_me_d
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
They didn't 'leave their back door open' to a thief ... they effectively put a table on the front lawn piled high with music with a big sign saying 'come on in, copy all you want!'. ... and they shall get what they deserve.
... then don't buy the material, don't use it in any form - legitimate or pirated, don't consume the content in any way at all. If you actually have some talent, make your own!
Are they just idiots? There is no excuse here. They knew what their software was doing and if they didn't know they should not have been using it.
Don't like copyrights?
Only by completely ignoring the industry will they get desparate and be forced to relax the licenses they have legally chosen to apply to their property.
Is your life really so empty that you can't get by without your stolen music?
George Bush + Linux = "I will not let information get in the way of the fight against Windows"
It seems to me that putting files up for P2P sharing is the same as putting them on your web site which is the same as publishing. It also seems to me that both the publisher and the downloader are guilty of copyright infringement, assuming that any reasonable downloader would know that the publisher doesn't have the distribution rights.
Unless there are major changes in US leadership soon
In the USA, your options for leadership are
1. The We'll Say And Do Anything To Acquire And Retain Power Party (1), backed by the Oil Industry - currently in power
2. The We'll Say And Do Anything To Acquire And Retain Power Party (2). backed by the Media Industry
Good luck with that.
Look, if you provide the facilities for someone to copy copywritten material, you should be liable. There is no other way for copyright to work.
The 'leaving your back door open' analogy is not a good one. A better analogy is buying a book, scanning it, and posting it on a web page. In fact, it's EXACTLY the same thing, only with a different protocol.
paintball
Let's worry about the actual point being made:
To see how retarded this is, take this "making available" nonsense a few steps down the slippery slope to DRM hell, where sharing is a crime:
Citizen, have you been sharing your password access? Do you have the right to read anymore?
Copyright is supposed to encourage publication for the benefit of the public domain. It is supposed to be a temporary exclusive right to publish. People violating that exclusivity could be told to stop and sued in civil court by the rights holder. Punishing people who are actually performing copyright's original function, without actual proof of damages is little more than coporate welfare. Don't think for an instant that you will be protected in the same manner if some big dumb company takes your text, images or recordings and sells them. A $40,000 judgment is sure ruin to most people, but less than a slap on the wrist to the companies pushing these crazy cases.
If we give this kind of power to publishers, every education will create a life time's worth of debt for little more than access to textbooks. Imagine music industry methods applied to all human knowledge. As Newton understood, every person's contribution to human knowledge is dwarfed by the accumulated store. What you have will be held cheap and you will have to work very hard to get what you need.
Friends don't help friends install M$ junk.
I'm definitely a fan of limited copyright. But at some point, you have to realize that they're only going to have control over "you and 'your' data" as long as 'your' data consists of stuff that they own the copyright to. If you believe data should be free, don't consume data controlled by people who have the extreme opposite view. Even better, create your own data, and license it in a way that you approve of. Take the time you're not spending on consuming copyrighted content, and use it to create copyleft material of higher quality.
Slashdot needs a "-1, Wrong" moderation option.
The Urban Hippie
Good post. I enjoy all the analogies that come out of the copyright debates...leaving back doors unlocked ad nauseum. But you've hit the nail on the head - the RIAA have the upper hand because the amount of traffic going through Kazaa and the other P2P programs is copyrighted material. The way to combat the RIAA and their arguement is to produce heaps of good copyleft material.
God, if only we had that much choice. In reality, it's like this:
1. The We'll Say And Do Anything To Acquire And Retain Power Party (1), backed by the Oil and Media industries
2. The We'll Say And Do Anything To Acquire And Retain Power Party (2). backed by the Oil and Media industries
Property is theft.
There are also plenty of people out there that are stupid enough to "make available" without even realizing it. A supermajority of Windows users likely fall into this category.
Really? You REALLY think that most Windows users know what P2P systems are, have installed the client, and have accidentally put music that they've purchased into the file structure on their machine that "shares" that music with a couple million of their best-friends-for-life-that-they've-never-met?
No, I'd say that a minority of Windows users - of computer users in general - make a habit of grabbing up infringing copies of other people's work, and then place it in a bucket that a has-to-be-installed-to-work piece of software that in turn exposes it to the ranks of other to-cheap-to-pay-for-entertainment users. It's not like this stuff happens by default through the C$ share over the user's WAN connection. It requires action, and usually a weird (though, lamentably, more and more common) sense of entitlement, and usually some very small voice in the back of the head that says, "you're gambling against being caught, here, but - OMG! - I got that new Avril CD without having to pay for it!"
People who install P2P clients to download Linux distros or game patches can't complain about this either: that ISO image of some album they're making available through the same interface didn't get there by accident.
There are also plenty of people out there that are stupid enough to "make available" without even realizing it.
Yes, it's a shame that so many people who DO know better have polluted the landscape on this issue, somehow contributing to a loss of clarity on the central notion: that artists who choose to sell their work are not, actually, very happy when you rip off a copy. You can't seriously tell me that you think that MOST low-tech users who end up with a P2P client full of downloaded, copyrighted music they didn't pay for (and offering back up a folder full of copyrighted music) really think that their ISP's monthly bill somehow grants them unlimied Gwen Stefani recordings or the entire 2006 works of the NSO or all of the movies that they used to have to pay NetFlix to see, but which now, miraculously, they get for free from their best friends in... Russia? Belgium? The script kiddie next door? People DO know better. The thing they don't yet seem to understand is how much of a trail they leave behind them as they look for ways to avoid spending a flippin' DOLLAR for a song to listen to while drinking their $3 latte, or while jogging in their $200 shoes.
Don't disappoint your bird dog. Go to the range.
Turn that around: How do YOU sleep at night knowing that 'making available' a song that you don't own could wipe out your own savings? It's such a little thing, and SO easy to avoid... And yet, you do it anyhow.
Easy to avoid? People have been pointing out that we are rapidly approaching the day when, if you walk down a sidewalk whistling a tune, you'll be arrested and charged with unlicensed performance of a copyrighted work of music.
Fact is that the only practical way to avoid this now is to never say or do anything at all in public (which includes on the Internet). I've tested this a few times by asking a simple question: Suppose I have a tune in my head, and I'd like to discover whether it's something I "composed" myself or is a tune whose copyright is owned by someone. How do I do this?
I have asked reps of a couple of music publishers. Their answer, apparently said with a straight face as far as I can tell, is that I should buy a copy of everything they've published and search through it all. Of course, this only works with that one publisher; to actually answer the question, I'd have to buy a copy of every work of music ever published by anyone and search them all.
There is something of a shortcut. Here in the US, the Library of Congress (LoC) has copies of most of what has been published in the country. I could go to Washington and spend a few years searching through their archives. Then I could do the same in all other countries. This would only take a few lifetimes, not the thousands of lifetimes that the "buy and search everything" approach would take. But still, there's a certain limited practicality here.
Fact is, the only way I can determine in my lifetime whether that tune in my head is copyrighted is to publicly perform it, preferably in a recording, and wait to see whether anyone sues me.
Actually, there is a less reliable but more practical way that a number of musicians have been using: Put a copy online (either as music notation or a recording), accompanied by a note saying that you haven't determined whether it's copyrighted, and if anyone knows who owns the tune, send a message to <email-addr>. This isn't guaranteed to protect you, because the owner might be a bastard who will sue you for even this transgression.
And it still has the problem that, in practice, you get mostly copyright claims that turn out to be bogus. Publishers regularly claim copyright on music that's centuries old. If you can show this, they'll slink of to look for another victim. And sometimes this happens, because what happens is that someone sees your note and sends a message saying "That was published by So-And-So in London in 1793 as <title> in <book>." If you know this, you can use it as a weapon against the publisher.
But it's all very unreliable, and depends on the good will (or reasonable lawyers) of corporations, in addition to help from other musicians who stumble across your stuff. In general, there's no way to know that a random public utterance or idly whistling a tune won't be a copyright violation. The only really safe strategy is to be utterly silent in public. On the Internet, this includes learning enough about your computer's innards to guarantee that it isn't exposing any file to outsiders.
Those who do study history are doomed to stand helplessly by while everyone else repeats it.