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

US Intellectual Property laws

[Zombie Ryushu]

It seems like gradually an inch at a time, the US is 'criminalizing' protocols it doesn't like. This will probably end badly. Remember that guy who was convicted of 'criminal copyright infringement'? Isn't copyright infringement supposed to be a civil matter? Well its not anymore. The IP Holders make the laws, and if they say if you go to jail for 20 years sharing one song, then so be it. (Just as an example.)

Unless there are major changes in US leadership soon, and there won't be, living in the US has very undesirable prospects in my opinion. Geeks are a minority and Geek opinions are not going to be respected. IP laws or not, this can only end badly. Maybe its time we start asking the 'if not the USA, where?' again and seriously start looking for other countries to live in.

Now I know what you are going to say, 'but why can't we vote people into office to change the rules?' Well, theoretically we could. but Geeks are such a small minority compared to the hordes of 'values voters' out there, any issue you voice out on will be drowned out.

So that begs the question, what are the best Geek friendly countries?

Re:US Intellectual Property laws

[cpt kangarooski]

Actually, the United States Code has had provisions for criminal copyright infringement since at least 1982. It's not really anything new.

1897, IIRC. But not all copyright infringement is criminal.

Nevertheless, I don't think that it should be criminalized. The societal harm of infringement is too minor -- after all, it merely reduces the benefit to society of copyright because the author in question isn't getting enough compensation to incentivize him. The civil remedies revolve around compensation, however, solving that issue, while the criminal penalties don't restore the social benefits at all. Nor do the penalties for infringement seem to have any effect as a deterrent. And I sincerely doubt that society gains any sort of value out of retribution for copyright infringement.

Patent infringement is not criminal. Trademark infringement traditionally has not been, and that only recently changed, and is likely a bad idea in most cases (I could see it if someone was proximately harmed by it, but it's hard to see how existing criminal statutes wouldn't already apply adequately). Why should copyright be special?

Very different

[intx13]

Providing a copyrighted file for uploading by a third party and writing a Bittorrent protocol client are very different. What this couple did is not equivalent to leaving your back door unlocked - they were actively sitting on the back stoop giving other people's stuff away. Whether or not you feel the copyright law is valid as written, they did break it, so the fact they were sued shouldn't be some big surprise.

Also, for a community of people that goes to great pains to point out the difference between "stealing" music and breaking copyright law, the headline of this article doesn't do us much good. Come to think of it, that's quite a sarcastic and vitriolic summary - and seeing as this story doesn't bring anything new to the table with respect to the whole file-sharing issue, why is this even news?

I know, I know, I must be new here!

The term 'Publish' is in need of overhaul

[mcrbids]

As the Internet permeates every aspect of our lives, and the entire world slowly becomes directly entwined with every other part, the definition of "publish" will have to be changed.

Traditionally, publishing was something done via a newspaper, book, or some other "official" work. Duplicating Intellectual Property has long been formal and obvious. The reasons for copyright were clear, intellectual property was expensive and difficult to distribute, and overcoming the cost of distribution benefited all.

Enter the Internet. Suddenly, Intellectual Property can be distributed to anybody at any time simply by posting on a $5/month website.

I have a web server on my home DSL line with MP3s (legally obtained) that I stream via Apache on a non-standard port, that automatically closes every night. (I have to manually open the port on any day I intend to listen) I do not intend to "publish" these, simply listen to them when and where I happen to be.

But, while the port is open, I'm legally "publishing" these files, and based on this ruling, I'm liable for it. Now, I'm pretty sure the risk of my getting caught is pretty slim, but it's not zero. And the truth is, there will be more and more examples of "publish" simply because putting ANYTHING on the Internet is has always been easy, is easier than it used to be, and is getting easier every day.

At what point are you NOT publishing something? If I record a video of my wife lip-syncing to Green Day and post it on my family website, am I "publishing" their song?

There are millions of examples, and I'm sure there are plenty of bad-car analogies coming soon, but the truth remains: the rules are being changed, and we need to PAY ATTENTION!!!

Re:Ok, which is it.

[GISGEOLOGYGEEK]

Yes, the consensus thing here is interesting.

A few years ago I posted time and time again about how wrong it was for the USA to invade Iraq, how there was no evidence of WMD's, how Saddam actually kept Al Queada out of Iraq, how Iraq was already fully contained, how Bush lied about Iraq trying to import yellow cake uranium ... a plan that had been foiled 8 years before and how when this was exposed, it eventually led to the USA outing one of their own spy's identities.

I got modded down down down ... yelled at as if I had stood in the whitehouse and dared to call freedom fries by their proper name, french fries.

But the ignorant consensus was shown to be wrong. Many years too late, but they know they were wrong nonetheless, and they will be shown to be wrong again this time.

By the way dumbass ... copyright infringement IS theft because you are not paying the owner of the content you've taken. You've stolen that cash from them. It's amazing how many people eagerly deny this reality.

Geek Speak < Criminal Definition

[Nymz]

Sorry, but you are quibbling over accuracy or truth or something. That's like claiming you didn't murder someone with a 45, but a 38.

Legal Precendent: If one is caught with a small ammount of an illegal substance, they can be charged and convicted of dealing, even if they have never dealt. Getting caught with one can of Coke is personal use, but if you get caught with a 12-pack then you are automatically guilty of dealing Coke. Strange but true, because accuracy isn't important, punishing people like you is important.

Re:Bittorrent is not a p2p file sharing program.

[Anonymous Coward]

This is why I think it is important to stop buying any digital music. Buy the hard copy (cd/tape/records) and transfer to digital yourself. I know, I know...... "your sooooo 1996" but "pay per listen" might actually be a reality in the not too distant future. It sounds crazy now but many things we take for granted now were science fiction just a decade ago.

Wrong, and the intelligence of Leechers

[kiwioddBall]

The write of the Slashdot interpretation of this article seems to have the wrong end of the stick.

Using software that potentially shares copyrighted data is not illegal - what the judge found illegal was that copyrighted data was actually being shared and made available for download. The difference between potentially sharing data and actually sharing data is being ignored by this snippet.

I tend to agree - if you are sharing copyrighted data you are making that data available for piracy. It seems to me that if you are making data available for download then you are pretty stupid, as it is so easy to detect. Leechers are given pretty bad press by the various networks (for good reason) but the fact is that if you are a leecher you're probably exposing yourself to the least risk possible.

How Is It NOT Illegal?

[smackenzie]

If I made unlimited copies of the Sunday New York Times or the most recent Harry Potter book and put them out on a street corner -- and people started taking them -- why would I not be responsible in some capacity?

Now, to make the argument technologically more applicable, what if I put up a copier in my house that would automatically copy the New York Times or Harry Potter and then send it in the mail to anyone who asked? Kind of think I'm still responsible...

Note that this is different than making tons of copies of the most recent Harry Potter book and scattering them all over my own home so that I could read Krugman's latest op ed or all about Ron's latest crush in every room. (I believe that I have a right to do this!) But opening up these copies to the general public and making it extremely easy for other people to read them? Sounds like I should be accountable for something.

Just because the technology is different, doesn't change the essence of the argument or the net result.

Where does my logic break down?

Re:How Is It NOT Illegal?

[jmv]

If I made unlimited copies of the Sunday New York Times or the most recent Harry Potter book and put them out on a street corner -- and people started taking them -- why would I not be responsible in some capacity? ...
Where does my logic break down?

In at least four places:
1) In the "book on the street corner" example, it's obvious whether some people took copies because there are less copies left than when you put them there (assuming it's possible to prove how many you made)
2) If you put a stack of books on the corner, then you've *already* made the copies, whereas with file sharing no copy is made until someone downloads the file.
3) Putting the books on the street corner is more like uploading files to a website. File sharing would be closer to putting the books in your front yard (or back yard, depending on interpretation).
4) If you make copies and bring them on the street, you can't say you did it by accident, so the intent is clear. If it's available on your machine from P2P, then it's at least *possible* that it wasn't intentional (unlike uploading the content to a remote public website).

Re:Let them Fry!

[BitterOak]

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.

Isn't that what public libraries do? They have bookshelves stacked with (mostly) copyrighted books, they generally have one or more public-use Xerox machines right next to said bookshelves, and they open their doors to the public.

Re:Let them Fry!

[GISGEOLOGYGEEK]

I don't have a good answer to this.

You do pay for your library card, whether it's directly or through local municipal taxes or student fees etc, but i doubt any of it is passed on to the publishers beyond buying the books. The copyright holders have fought for years about the photo copying. While I was in university every photocopier had a sign reminding you not to break copyrights, a few years later here in Canada a judge declared library photocopiers to be 'fair use'.

I think it could still swing either way.

Re:Let them Fry!

[GISGEOLOGYGEEK]

Let me clarify.

They knew their software was making the music available for others to download. Most P2P softwares encourage you to make your files available. Some have quotas related to how much you've 'given back'.

Knowing HOW the software does what it does, and whether or not it is doing other potentially nasty things is a different story. We were talking about the most basic and obvious functions of the P2P software afterall.

Re:Geek Speak Criminal Definition

[Nymz]

What laws, please? I'm going to be a prosecutor in less than a year. I'd really like to know about this great boon to my profession.

Without singling out any one state, federal quidelines from the Anti-Drug Abuse Act of 1986 redefined mandatory sentances, ammounts as small as 5 grams of crack cocaine automatically get the 5 year minimum (and 50 grams get a 10 year minimum). Note that this if even for first-time offenders, with no history of any crimes, and no evidence but the ammount found. Exactly what is he going to deal? 1 gram each to 5 people?

and I got it for a song ...

[twitter]

... 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.

Ah, but there's already an infinite supply of canned music. Those 42,000 concerts listened to one a day would take 115 years. If you include the other music and movies there, you could spend every waking moment of the rest of your life and not hear and see it all.

The value is not in the can. It's beautiful and it takes real skill to make and can it, but the value is in the sharing. Going to a concert is fun, and it's profitable for the musician. Sharing what's in the can with your friends is fun. Making your own is even more fun. When you get over the music and movie industry hype, what you realize is that a song and dance can be both priceless and worthless at the same time.

This kind of lawsuit has got to be the most disgusting abuse possible for music. A $40,000 judgment for making a song available. How do the lawyers sleep at night knowing that their victims have just had their life savings wiped out? Will the judge go help them move out of their home when the bank comes to take it? How can they feel justified? Fuck the industry by never giving it another cent for entertainment they don't know how to enjoy themselves. Discover and support real artists instead.

Re:He who has the gold rules

[Skreems]

That's not quite what I was saying... the post I responded to was bemoaning the fact that copyright holders have legal control over your actions while using your data. That implies, to me, that they acknowledge the copyright statute.

Re:And it damn well should be.

[dhalgren]

I think at least one important difference is that the photocopier can reasonably be presumed to be for fair use only in most circumstances. Are you really prepared to stand there and photocopy a book for anybody who wants a copy? Remember, you have to pay the copying cost and take the time to do it. I'm guessing most people wouldn't find this rewarding. So I'm willing to assume that the guy at the Xerox with the textbook is probably just copying something for study or review, not distribution.

Ripping a CD or similar for backup or using in a different format, I would also consider fair use (note: I'm a musician and I do earn royalties). I would expect to be allowed to do the same; as a teen I often stayed up late waiting for good reception from Vancouver radio stations (I grew up in northern B.C.) so that I could tape songs and listen to them on my Walkman. I don't think anybody really would have begrudged me that, and I wouldn't consider that any different from putting an old tape on CD so I could listen to it that way. These days, why should ripping a CD to play on a solid state digital player--portable or PC--be any different?

So that's OK then. IMHO and IANAL, of course. ;)

Now, I've got my encoded, digital, and supposedly perfect copy on my drive. The next step is: where do I keep it? To my way of thinking, if I put it in a private, non-shared location, that should be fine. But if I put it in a directory which I know to be shared or accessible to the public--no matter the protocol--then I would say that I have made a conscious decision to distribute it. Whether I charge for this or not is irrelevant; I still know that others will now be able to make use of the content. That is obviously no longer fair use, unless it's a snippet or excerpt for use in a critical review or essay of some kind.

Note that I wouldn't object to someone doing this with any work from which I receive royalties; I would prefer that people hear the music. But then, I make my living programming; my music royalty cheques suffice to maybe get my wife and me a night on the town once every few months (or more recently, they pay for a few packs of diapers and some stain remover).

That all said, I think this judgement is horse shit. Having Kazaa or any other p2p sharing software installed doesn't imply intent to distribute, and AFAIK there is no real way to say that it was or was not set up for sharing. The only evidence to this that I see in TFA is the defendant's statement that it was not. I'm willing to buy that; I have often used eDonkey2000, limewire, bittorrent, and a bunch of others over the years, but I have never shared anything I knew to be protected. And of course I think it's ridiculous to think that mere possession of a tool indicates the intent to use it in the worst way. I own a truck; I do not run over people. I have owned rifles and shotguns; never once did I even point one at a human. I have an axe and a machete, but they are for wood-splitting and brush-clearing, respectively. They are tools. Kazaa is a tool. Owning it does not mean anything in itself.

So: rip your music. Play it on different devices. Make mix CDs for friends. But if you put it up for everybody to download then as far as I can tell you're in the wrong. And the RIAA still needs to be "dipped in Gravy Train and thrown to a crazed pack of poodles" (Berke Breathed wrote that; I don't think he'll sue me).

Torben

So... Now they can sue the library

[Cyphertube]

Wonderful precedent set. We seriously need a pro bono group to aid people being sued by the RIAA and MPAA, because they have seriously overreached their bounds.

If 'making available' is now tantamount to theft, then basically all libraries are now engaged in stealing. I'm sorry, but the additional thought is that people are stupid, people don't secure things, and so at what point is something considered making available?

Yes, of course, I believe that setting up file sharing for others to download is a bit more than accidentally leaving windows file sharing on without a firewall, but then again, I'm not familiar with all software, and I can't be certain that the software itself doesn't seek out files to share. Was that shown in court?

At any rate, again, 'making available' is a bad precedent. I mean, if I borrow a DVD and rip it, or a CD and copy it, will the MPAA and RIAA be able to go after the library?

Reality is, if these people didn't download the files, and created them under 'fair use' (which I know the MPAA and RIAA don't believe in, and will lobby until that aspect of copyright law is removed), then under most jurisdictions, they did not commit a crime, as they were not distributing.

This, of course, would change if they were operating a program by which they were rewarded for the number of downloads they made available. But then, there is a compensation being received.

Re:One of my soulseek folders reads

[StormReaver]

"Since you already know that anything in that folder is my private propery, downloading from it make "you" the thief. "

Not only that, but the downloader may also be sued under the DMCA since you can argue that your folder name is an effective means to control copyrighted material under the (retarded) law.

Re:I see

[Zontar_Thing_From_Ve]

So judges in this country can't reason if I don't hire a $200/hr lawyer?

I'm not saying it's fair, but in the USA if you don't have a lawyer, you are asking for trouble in court. Part of this may be in the old days that some clients used to represent themselves when facing jail time and then after they lost, they would argue that they had "incompetent representation" and thus deserved a new trial. The argument didn't hold up, but it could have been chaotic had a few crazy judges bought into it. Also, judges were practicing attorneys at one time and they don't like the idea at all that anyone can adequately defend themselves without 3 years of law school because it makes what they do look like it's just not all that hard.

My best friend from high school has successfully represented himself a number of times in court. Most of the cases have been child support issues involving his ex-wife. It's really helped him that she has consistently hired the most incompetent, bottom of the barrel attorneys to represent her. My friend has told me stories about his time in court and the lack of preparation he's seen by her attorneys is shocking. I know that his ex-wife doesn't have a lot of spare cash and she gets the cheapest and thus lowest quality attorneys she can. A few times he's had stuff decided by arbitrators, not judges, and in those cases you don't really need an attorney. I get the impression that the judges don't like it when he represents himself, but he reads up on case law and has evidence to back his position up and given that he consistently faces incompetent attorneys in the stuff he has to deal with, so he wins every time because the opposition basically can't refute his evidence. I don't think he would represent himself for something that was life or death, but basically the stuff he does is just slam dunk stuff where he can prove conclusively that his ex-wife is not living up to her legal obligations with regards to their kids and she can't disprove it, so it's pretty easy for the judges to rule in his favor. I suppose the point of this is that you can represent yourself for things where you can conclusively prove your side is right, but only a fool would represent himself when facing a case like the one in the original post. My friend doesn't really need the child support he always has to sue her over, but she abandoned him and the kids to chase some crazy dream of restarting a relationship with her old high school boyfriend, so it just makes him determined that she will live up to her obligations and he represents himself to keep costs down.