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

I see

[nomadic]

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.

Re:I see

[RallyNick]

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.

So judges in this country can't reason if I don't hire a $200/hr lawyer? What if I've got 5 kids to feed and don't have money for a lawyer? That means everything the other side says is true regardless of whether or not they proved it?

Re:I see

[paganizer]

Bingo.

Re:I see

[Angostura]

Or alternatively - judges judge based on the quality of the case and evidence presented to them?

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.

Re:I see

[Kjella]

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

Judges are supposed to be neutral and judge. If you can put together a coherent defense, the judge should listen. But if you don't, it's not the judge's job to be defense lawyer. Perhaps it should be easier to get free legal representation, but to keep that clear separation between your team, their team and the referee is vital.

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.

Bittorrent is not a p2p file sharing program.

[LOTHAR, of the Hill]

It's not a file sharing anything. It's a file transfer protocol.

that's all

Re:Bittorrent is not a p2p file sharing program.

[Scrameustache]

It's not a file sharing anything. It's a file transfer protocol. Yeah, logic. That'll stop 'em.

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:Bittorrent is not a p2p file sharing program.

[Scrameustache]

I don't really see the parallel that the submitter is trying to make.
copyright infringers get sued != BitTorrent is an illegal technology I think his point was to get people talking... a bit o' light trolling, if you will.

My point, however, was that although your logic is flawless, they don't act on logic. They act on a series of baby steps towards a goal: Pay per listen.

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.

Re:Bittorrent is not a p2p file sharing program.

[jms]

More importantly, buy the cd/tape/record USED, not new.

When you buy a new CD, you are putting money into the pockets of
the RIAA. When you buy a used CD, you put your money into the
pocket of whoever last bought the CD, and the RIAA doesn't get
a penny.

Bizarre...

[RazorDaze]

The files weren't transfered, but they were available, and that's supposed to be the same as distributing?

Is that like being too fugly to get laid, getting busted for prostitution?

Re:Bizarre...

[ArsenneLupin]

You must not watch COPS, because you would know that there is no such thing as too fugly to be a prostitute. I think he's speaking about the customer, not the supplier.

Re:Bizarre...

[FreeGamer]

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. I'm sorry but this "back door" analogy is bogus and we're shooting ourselves in the foot trying to play dumb like this. Using Kazaa/whatever is more like posting a sign on your FRONT door saying, "I have music, come grab a copy."

Don't get me wrong - I disagree with the extent of the damages and the litigation in the first place but playing dumb and equating file transfers (copies you implicitly sanction by using file sharing software) with burglary (somebody breaking into your house and removing your personal affects) will only help them bring down any attempts to justify file sharing protocols.

I agree the result in this case is ridiculous but the Howell's really should have hired a lawyer or at least got legal advice on their defense. They needed to emphasize that no illegal activity had occured. The galling aspect to this case is that they have been punished for future crimes - essentially the judge didn't buy their argument that they were only intending private sharing and that they would have gone on to share files with other Kazaa users in the future.

I think Kazaa need to change their logo. "Fast, safe, free." The terms 'safe' and 'free' are false advertising.

Re:Bizarre...

[mark-t]

Copyright doesn't govern making something available, it governs making copies. That's ALL it governs. It does not govern distribution. If you make a copy of something that is copyrighted without permission from the copyright holder, that's copyright infringement right there, unless the purpose of the copy made was one that allows it to be exempt from infringement. Thus, the act of copying a copyrighted work by itself is not, by itself, a prosecutable offense unless you do something with the copy that demonstrates a purpose that isn't exempt from infringement. Making copies that are not for personal use is not generally exempt from infringement (unless the copyright holder allows it), so making a copy of a copyrighted work publicly available could certainly be considered evidence of such a purpose (and therefore shows infringement of copyright)

To rain on your parade...

[RootsLINUX]

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.

One of my soulseek folders reads

[future assassin]

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.

The folder that I download tracks to is named paying_canadian_recordable_media_levies_lets_me_do wnload_all_of_your_music

Re:One of my soulseek folders reads

[larry bagina]

And where do you keep your spell checker?

Re:One of my soulseek folders reads

[Per Wigren]

You actually pay the recordable media levee?
I always figured people who steal music should use stolen media on which to store it. Only seems right. Stop it, please!
Comparing physical stuff with virtual stuff is stupid. It doesn't work. At all.
Also, mv is not cp. Even you know the difference.

There are some valid arguments against file sharing but equaling stealing physical things with copying virtual things only make you look unintelligent.

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.

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

[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:US Intellectual Property laws

[Swampash]

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.

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?

Re:US Intellectual Property laws

[mqduck]

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

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!

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.

Let them Fry!

[GISGEOLOGYGEEK]

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.

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? ... 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!

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?

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:Let them Fry!

[X0563511]

Goddamn it it IS NOT STEALING.

If it were stealing we would not need copyright laws, as we already have laws and punishments for stealing!

Re:Let them Fry!

[VGPowerlord]

You won't be going to jail for stealing when you send music to other people. You'll be running afoul of copyright laws.

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.

He who has the gold rules

[Anonymous Coward]

There are many wealthy companies (and individuals) who became wealthy because of copyright law. They obtained the copyrights from the artists who created the content, paid the artists a few pennies, and then went on to make millions from the content.

Naturally enough, they are keenly interested in ensuring as heavy-handed an enforcement of copyright law as possible.

The more control they can maintain over YOU (and what you do with any and all data in your possession) the more money they can make from you.

It is an uphill battle for those interested in personal freedom. But I guess that's nothing new.

Re:He who has the gold rules

[Skreems]

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.

Re:He who has the gold rules

[seriesrover]

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.

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:He who has the gold rules

[QuantumG]

Yes, because 'higher quality' is what consumers of commercial music are looking for. When they give up their rights, they give up my rights. No amount of counter-culture can fix that.

Re:He who has the gold rules

[Hatta]

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.

But the fact is, data is as free as you make it. And they don't control it as well as they'd like you to think. Ubiquitous P2P is civil disobedience which is direct democracy overturning the copyright regime.

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!!!

Publishing

[Citizen of Earth]

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.

And it damn well should be.

[raehl]

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.

Re:And it damn well should be.

[Anonymous Coward]

"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."

Yeah - like all those photocopiers in the public library - sue those assholes man! What do they think they are doing leaving copyrighted material around like that.

Re:And it damn well should be.

[Divebus]

Xerox is a doomed company then! So are all copy paper manufacturers! As ludicrous as your point is... it's unfortunately very accurate.

Re:And it damn well should be.

[Seven001]

Kudos to you for pointing out the flaw in that analogy. I, and no doubt many others, recognized it immediately and rolled my eyes. To be honest I'm surprised that nobody modded you down for it. It's not as if I'm an RIAA advocate, I despise the organization as much as the next slashdotter. However, when people share their files on P2P networks such as Kazaa, they either do so knowingly of the consequences or in ignorance. I think most people know that ignorance is not a defense that works in the legal system. Furthermore, I am of the opinion that people know in some way that sharing music is not exactly on the right side of the law. We live in a society that is pretty much run by capitalism and very little is free. "If it seems too good to be true, it probably is" comes to mind. I don't see any reason free music should be considered exempt from that age-old analogy.

I for one don't think this has set a bad precedence, just an obvious one.

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

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.

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:Ok, which is it.

[Mattintosh]

Copyright is not theft.

Theft requires two things.
1) The thief must take something.
2) The victim must be deprived of the item the thief took.

Copyright infringement is morally and ethically similar to theft, but it consists of the following corresponding steps:
1) The infringer copies something.
2) The victim is deprived of the benefit potentially gained by the use of the copy.

It's the distinction between outright pain and mere inconvenience. Geeks like to think of everything as true/false, digital decisions, but the fact is that life and human nature is analog. Copyright infringement is at its base far less damaging than outright theft.

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.

That's not the point being made. Crazy Law Ahead!

[twitter]

Let's worry about the actual point being made:

the Howells argued that their file-sharing program was "not set up to share" and that the files found by Media Sentry were "for private use" and "for transfer to portable devices, that is legal for 'fair use.'"

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:

1. By putting copyrighted files on a shared computer, I'm making them available. At least one company has already been destroyed by the RIAA for letting their employees load music to an ftp server.
2. By lending you my CDs, I'm making them available. This applies to libraries as well.
3. Publishing any material that other people might copy is making it available.

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.

Re:Geek Speak Criminal Definition

[Lane.exe]

Heh heh, and if that were true, how would one prove their innocence 'through evidence'... drink the 6-pack? :-)

Well, yes, but I'd recommend against that. :) You might try calling a witness and putting on testimony, or testify yourself. Testimony is evidence.

but now the laws have been incrementally changed to the point where just over one usage is consider proof, yes proof not intent, of dealing.

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.

Re:Geek Speak Criminal Definition

[zigziggityzoo]

all this talk of guilty and innocent...

You all seem to be mixing up one thing here: This is not a criminal case. This is not stealing we're talking about. It's infringement of rights.

Guilty until proven innocent, I'm afraid.

Assless Chaps are the answer

[GISGEOLOGYGEEK]

I think that to really show the defendants the error of their ways, they should be given the punishment of having to wear assless chaps to a gay bar.

I bet they never 'leave their back door open' again!

Re:Geek Speak Criminal Definition

[Beardo the Bearded]

Law is even weirder than that.

Right now I'm wearing a red shirt.

Let's say I murdered someone tonight and all the witnesses thought I was wearing a blue shirt. If I was convicted, then my shirt is now blue from a legal standpoint. This is despite the fact that is is really a red shirt. Legally, it's blue. Logic and sanity are not necessarily used when determining the finer points of the law.

This is the same shirt I was wearing when I asked my law professor about this question. (I might have been wearing the blue one. It was the one mandatory law class, three years ago.)

What this means is that if you are convicted of using BitTorrent to transfer mp3s over your modems, then the protocol is a program, the T1 is a modem, and you're doing more time than a bank robber.

IANAL. YMMV. CYLDFD. WDTAM?

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?

A few quibbles

[Infonaut]

Copyright is supposed to encourage publication for the benefit of the public domain.

Copyright serves two primary purposes. One is to provide incentives for publishers of creative works. The second is for the benefit of society at large. The public domain is the vehicle for that enrichment, not the end in itself

It is supposed to be a temporary exclusive right to publish.

Actually it is a negative right. Copyright gives you the right to exclude others from publishing your work for a period of time. Because it is a negative right, the onus is on the holder of copyright to police that copyright and go after infringers. This is a seemingly minor distinction, but it matters because even though Big Media wants everyone else to police their copyrights, Intellectual Property Clause of the Constitution is quite clear in placing that responsibility on copyright holders.

People violating that exclusivity could be told to stop and sued in civil court by the rights holder.

Yep. That applies whether you're Random House Publishing or Berke Breathed. The big guys and the little guys are bound by the same rules of copyright. The casebooks are full of instances where larger, more monied operations were swatted down by the courts when they infringed copyright held by individuals.

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.

There are no shortage of copyright attorneys who will represent small defendants. Frequently, the small defendants win. Look at the litany of RIAA cases and you'll see what I mean. Big firms, advocacy shops like the EFF, and other legal outfits are stepping up to help. They're also coming up with some interesting new legal theories (like using the RICO statute to go after the music cartel). The reason Big Media is pushing so hard for legislation that protects their interests is that on balance they have been loosing in the courts.

Back in my day...

[kn0tw0rk]

... we were lucky to have used toilet paper to hold over the raised hiroglyphics to take rubbings of with the bloody stumps of our fingers, and we counted ourselves lucky to be edumacated.

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:and I got it for a song ...

[Aladrin]

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.

(I'm obviously not pointing fingers at you in particular, as I have no way to know if you've done this or not.)

Anyone who is surprised that the RIAA is suing has NOT been on the internet, and thus they don't have to worry about it. Everyone else has been warned for quite some time now, and it's not like they had no clue it was illegal before the lawsuits even began.

Re:and I got it for a song ...

[Prof.Phreak]

How do the lawyers sleep at night knowing that their victims have just had their life savings wiped out?

Very well I'd imagine.

Re:and I got it for a song ...

[ScentCone]

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.

Re:and I got it for a song ...

[jc42]

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.

Re:and I got it for a song ...

[kryptkpr]

How do you manage to get on a 'file sharing' network without understanding that if you put something in the 'shared' folder, it'll be shared?

Trivially easy, I see it all the time. It goes something like this:

User: Where can I download new music?
Local geek: P2P
User: Huh?
* Local geek installs P2P on User's machine
User: Thanks!

Re:and I got it for a song ...

[Elemenope]

kryptkpr, above, made a good point on this issue. I'd make another one; even if it is clear to the user that by installing a P2P application and placing files in their 'shared folder' is tantamont to sharing copies of the file, it is not clear to the layman, especially a minor, that such an act of sharing is illegal. Many people do not think in computer terms, and think that the paradigm of sharing in the modern age is not different in kind from the sharing of yesteryear, such as loaning a book or record to a friend. Most people would not implicitly expect such behavior to be wrong, and probably would not know that it was (according to the law) until they were told.

Even prior copying activities have been protected in the past, and there is not an average adult today that would question the legality of taping their favorite show on TV to watch at a later time, or even loaning or giving that tape to a friend. The minutiae of 'fair-use' are not even on the radar screen for such people; they've been doing it for years, don't see sharing songs as any different, and are basically unaware of the underlying legal arguments either way.

Re:and I got it for a song ...

[Rinikusu]

/* Going to a concert is fun, and it's profitable for the musician */

I've posted about this before, so I'll rehash it here:

Touring is generally not profitable for most bands. Even when you factor in sleeping on sofas/in vans, eating road pasta, and the good will of your fans, it's break even, at best. I know, I've been there, and I have a large circle of friends who do the same. Some of which have rather large followings in many countries. Most of us have to scrimp and save during our 40 hour work weeks to save up a couple thousand dollars so we can take off a few weeks to travel around the country. Yeah, gas is that bad these days (when you're hauling around gear and 5 or 6 adults, a hybrid ain't gonna cut it), but even at lower gas prices, it was still a struggle.

A buddy of mine went to Europe with his band for 3 months. Played 6 nights/week for 6 weeks, took 4 weeks off, then did another 6 nights/week for 6 weeks and came back. His band had guarantees, etc. He went to Europe with a hundred bucks in his pocket and came home with about the same. He did have a great time, however, and got to see parts of the world, and there's really no price tag on that.

Anyway, the point is, quit propagating the myth that bands make money on tour. Most of us don't. And if we were making that much money, you could bet your ass that the venue owners would quickly start moving in on the action even moreso than it is, now.

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.

Is this the real world, or the Matrix? :p

[Duncan Blackthorne]

Wait, what?

Are we now going to be held criminally liable for what we might do?

Did I wake up this morning in Minority Report?

Are they also saying, then, that since the version of PING that comes distributed with, say, Fedora Core or Redhat is a DoS tool and therefore illegal to own, simply because you could use many copies of it spread out over many computers, run with maximum message size, no delay, and running ad infinitum? Or that if I happen to have tools in my garage that could be used to break into someone's house, that it's the same as actually committing breaking and entering?

Oh, wait! I have the math and physics skills to determine critical mass! I must be teh terr0ri$t! Everybody panic!

What's next, then? If you have a Bittorrent client that you use only to download completely legal files (like, say, Fedora Core) that by association, Fedora Core must be illegal because you use an "illegal" piece of software to download it?

I'm being a little rediculous -- but only a little. This is exactly the sort of mentality I'm coming to expect these days. :p

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[account_deleted]

Comment removed based on user account deletion

Re:Geek Speak Criminal Definition

[richie2000]

This is the same shirt I was wearing when I asked my law professor about this question. (...) (It was the one mandatory law class, three years ago.) Please take off your t-shirt and step away from it, right now. The sanitizers are on their way.

Man, I am lucky!

[Derek Loev]

Good thing I have Comcast, now I don't have to worry about making ANY files available with bittorrent.

Pro se case

[NewYorkCountryLawyer]

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

Re:Awful title

[Dunbal]

Let people think for themselves!

      You sound like a terrorist. Please report to the Ministry of Love immediately.

Re:Geek Speak Criminal Definition

[djw]

Federal mandatory sentences were found unconstitutional in 2005 and are now interpreted merely as guidelines. The district and appeals courts now have full discretion over sentencing. So even if your claim was once correct, it's not so correct anymore.

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.

Hey, it's Arizona!

[Master of Transhuman]

The home of Sheriff Arpaio.

'Nuff said.

You want "justice" - stay out of Arizona, Texas and the rest of those "hanging judge" blue states. Not that the rest of the US is all that sharp in that regard...

Should have let Mexico keep 'em - let them enjoy "Mexican justice."