EFF Takes On RIAA "Making Available" Theory

NewYorkCountryLawyer writes "In Atlantic v. Howell, the Phoenix, Arizona, case in which a defendant who has no legal representation has been battling the RIAA over its theory that merely 'making files available for distribution' is in and of itself a copyright infringement, Mr. Howell has received some help from an outside source. On the last day allowed for the filing of supplemental briefs, the Electronic Frontier Foundation filed an amicus curiae brief agreeing with Mr. Howell, and refuting the RIAA's motion for summary judgment. The brief (PDF), which is recommended reading for anyone who wants to know what US copyright law really says, points out that 'contrary to Plaintiffs' arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work.' This is the same case in which the RIAA claimed that Mr. Howell's MP3s, copied from his CDs, were themselves unlawful."

Comments

Consequences?

[Naughty Bob]

This looks to be open and shut, so, does anyone know- If the judge is sane, and applies the law as he should, what sort of legal precedent will be set? (I'm a stinking U.K.-er, I just want to know)

Re:Consequences?

[NewYorkCountryLawyer]

This looks to be open and shut, so, does anyone know- If the judge is sane, and applies the law as he should, what sort of legal precedent will be set? A very good one.

Re:Consequences?

[WaltBusterkeys]

The EFF's view isn't any more "what copyright law actually says" than the RIAA's until a judge rules on it. And even then it's subject to appeal.

Re:Consequences?

[Wonko the Sane]

Your mother must be very proud.

Re:Consequences?

[Naughty Bob]

I guess I mean 'What rights will a good decision establish, and for whom?'

Re:Consequences?

[russotto]

Unfortunately, "contributory" and "vicarious" infringement cases looked to be open and shut also. There was no law on the books making those actions unlawful. But judges extended copyright infringement law to cover those cases. A friendly judge (which the RIAA has no shortage of) would certainly be willing to add "making available for infringement" to that list.

Re:Consequences?

[morgan_greywolf]

The EFF's view isn't any more "what copyright law actually says" than the RIAA's until a judge rules on it.

Oh, I think NewYorkCountryLawyer knows what he's talking about. You know how people say IANAL? Well, he doesn't say that because he is a lawyer. And one that has particularly been defending copyright infringement cases lately. This is a reading of existing law, not necessarily trying to establish a 'new law' via legal precedent (which, BTW, isn't all it's cracked up to be.)

Re:Consequences?

[DustyShadow]

Actually contributory and vicarious liability has full support in 17 USC 106 where it says it is unlawful "to do and to authorize any of the following"

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Furthermore, the legislative history supports this construction of the statute in which Congress stated: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."

In contrast, however, there is nothing in the statute or the legislative history that suggests that the making available should be infringement. It is one reading of the statute from a case in the 4th Circuit and the opinion itself was meant to be limited to libraries. (at least how I read it)

Re:Consequences?

[russotto]

The term "to authorize" is insufficient to cover contributory infringement as it's used today. Consider the Betamax case, which almost killed the consumer VCR in its infancy. If the question was merely whether Sony, by selling a video cassette recorder, "authorized" the reproduction of copyrighted materials, it certainly wouldn't have gone as far as it did. Furthermore, the court in that case even described the tort of contributory infringement as "nonstatutory".

Re:Consequences?

[NewYorkCountryLawyer]

Oh, I think NewYorkCountryLawyer knows what he's talking about. Thank you, Morgan. Of course I wasn't saying that the EFF has the power to make law.... I was saying that in my opinion the RIAA's creation of the 'making available' theory is not copyright law, and that in my opinion the EFF brief correctly states the law. (Of course anyone who's ever read the statute, or the caselaw, or the treatises... would agree with me.).

By the way, the proof that even the RIAA lawyers know that their theory is baseless is that they have abandoned it and omitted it from all of the complaints they've filed during the past 5 months or so. See "RIAA Abandons "Making Available" in Amended Complaint in Rodriguez case" and "RIAA Abandons "Making Available" in New Complaints Being Filed"

Re:Consequences?

[instarx]

This looks to be open and shut, so, does anyone know- If the judge is sane... The courtroom is such an alien environment that people often make the incorrect assumption that legal arguments are the same as scientific arguments. Neither the EFF nor the RIAA has the least obligation to present any data that supports the other side's position. So it is a mistake to read only one side's brief and come to the conclusion that it looks to be "open and shut".

Re:Consequences?

[NewYorkCountryLawyer]

The courts have repeatedly made it clear that 'authorizing' is not copyright infringement, that there has to be an underlying infringement of one of the rights.

Re:Consequences?

[DustyShadow]

I was simply responding to the statement that contributory and vicarious liability have no support in the statute. The OP was correct in stating that they are court made doctrines but Congress was aware of them when it was drafting the '78 Act. The legislative history further states that a "well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers."

And yes, it would make no sense to hold one liable for copyright infringement when no infringement actually took place (or is proven). That is the result the RIAA is seeking and it was the result in the Hotaling case.

Re:Consequences?

[defile]

Sometimes I wonder if judges ever even read these things.

Is there oversight? What's to stop a judge from siding with one party over another without a stating a reason?

Re:Consequences?

[KDR_11k]

Isn't that what appeals are for? A judge that does not act impartial can probably be removed from office as well.

Re:Consequences?

[NewYorkCountryLawyer]

Sometimes I wonder if judges ever even read these things. Yes, but not with this particular judge. This judge -- although he has an unrepresented defendant here -- and a gang of bullies on the other side, is nevertheless asking all the right questions, and struggling to make a proper decision. Which is why it is so excellent that the EFF came in and presented him with a good brief that explains what the law really is.

Re:Consequences?

[russotto]

Courts can change their minds on that, given enough impetus.

Today's courts are generally pro-authority; the 2600 decision and the Blizzard v. bnetd decision underscore that. The RIAA has the patina of authority, and the to the court the defendants look like crooks trying to wiggle out on a technicality. Arguing fine legal points like "no direct infringement occurred" is likely to get a judge to decide to change that doctrine rather than the decision.

Re:Consequences?

[NewYorkCountryLawyer]

Well, the statute's pretty clear, too... and they can't change that.

Re:Consequences?

[russotto]

I guess it's not surprising for a lawyer, but you have a lot more faith in the legal system than I do. As far as I can tell, in most cases the courts decide the prevailing party first (based on their own prejudices), and work backwards from that to the facts in order to get their argument. The exceptions (like the Miranda case) are, well, exceptional. So in this case, where the Big Kahuna Copyright Holder's Representative is going against the gawd-darn thief who just wants music for free, the court is going to want to rule for the RIAA. If you point out that the law requires that there must be a direct infringement before any secondary infringement claims can be sustained, well, the court will just carve out an exception to that doctrine. Probably using the same language the RIAA uses -- right from the plaintiff's arguments into the decision, just like the Verizon case in the District court or in the Blizzard v. bnetd case.

Re:Consequences?

[Brad Eleven]

You seem to have missed the semi-recent controversy over the dismissal of US attorneys, i.e., it follows by extension that if attorneys can be dismissed for their unwillingness to be partial, then judges can stay in office by eschewing impartiality, when prudently aligned with The Appointer.

Is this a good thing?

[FroBugg]

Really, is this a good thing?

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?

Yeah, yeah, yeah. The RIAA are bad guys, we all have to hate them. I agree that the judgements they're going after are ridiculous. But is the EFF really trying to say that it's ok to try to commit copyright infringement, but only wrong if you get caught completing it?

Re:Is this a good thing?

[Wonko the Sane]

You're already falling into a fallacy when you equate "infringing vs non-infringing" with "right vs wrong"

Re:Is this a good thing?

[webmaster404]

It is a good thing in that it is showing the true colors of the RIAA. Even though he might lose the case, its a battle lost but we could win the war. The more people realize that the RIAA is trying to attack us doing the simple act of ripping CDs to MP3s, Joe Sixpack might actually give a second thought if he really wants/needs to spend the $15 to get a new CD. It also could help when a senator/representative finds out that this is what the RIAA has been doing all along and those who actually knew about technology were right, they could take down the DMCA and other atrocious laws. This also might make bands less likely to join a record company that's part of the RIAA (because they are music listeners too) and also start labels breaking away from the RIAA because people won't buy DRMed songs and they don't believe that "piracy" is the same as ripping MP3s. If anything, this should give more evidence into persuading people that the RIAA truly is opposing our freedoms.

Re:Is this a good thing?

[houstonbofh]

This difference is if I say?
"Wanna buy some crack? Just kidding..."
In one case I sold crack. In another I made a bad joke.

Re:Is this a good thing?

[Graham MacRobie]

If you read through the brief, you get the sense that the EFF couldn't possibly care less about this particular defendant, and is much more worried about the (possibly far reaching) precedent that will be set as a result of this case - especially since the defendant is appearing before the court pro se.

Re:Is this a good thing?

[tgrimley]

So what if he sets it all up and the file sharing program sees it and others see it but he's set up his network to refuse to pass through those packets?

Re:Is this a good thing?

[shark72]

"The more people realize that the RIAA is trying to attack us doing the simple act of ripping CDs to MP3s, Joe Sixpack might actually give a second thought if he really wants/needs to spend the $15 to get a new CD."

This has already been covered endlessly. He isn't under scrutiny for simply ripping the CDs. The record companies claim that he does not have authorization to rip CDs for the purpose of placing them into his Kazaa share folder.

Those eleven words at the end of the sentence may seem inconsequential but they make all the difference. It may not make sense to some people, but in the eyes of the record industry, a ripped MP3 file goes from "authorized" to "unauthorized" when it's placed into your P2P share directory... even though it's the same file.

Re:Is this a good thing?

[larry bagina]

intent.

Re:Is this a good thing?

[Anonymous Coward]

Yes, that's just what they're trying to say, for the simple reason that it's TRUE.

Imagine that you want to kill some guy. You buy a gun and ammo, and wait for him outside his house; however, he doesn't show up, and a cop busts you instead. According to your logic, you'd have to receive exactly the same sentence now as if you actually KILLED him.

In reality, of course, you didn't kill him. You didn't even try to kill him; you merely planned to. Same here: he obviously DID intend to infringe on some copyrights, but that's not the same as doing it, and not even the same as trying; and FWIW, it's not as if trying is even illegal.

The EFF is doing exactly the right thing here.

Re:Is this a good thing?

[flibbidyfloo]

I've been trying to come up with a physical world equivalent of this issue. The digital world is certainly different than the "real" one, but since our laws are based in the physical, how could we compare for reference?

What if you bought a CD, made one copy of it, and then took that to the student union (or any other gathering place) and just left it, sitting in a box with a sign that says "free CD", like a free puppies sign or something?

If no one takes it, have you committed a crime by leaving it there, available for theft?

What if you make 20 copies and do the same thing? It seems like even if no one takes them, it shouldn't be legal. However, it certainly doesn't seem like you should have to pay a bunch of cash to the RIAA, since none were taken.

Finally, what if you did this, then came back a week later and the box was gone? If the staff claim they threw the CDs into the furnace and they don't know if any were missing at the time, what's your punishment, if any? You've no idea how many were taken, or if any were at all. Should you get off scott free?

Re:Is this a good thing?

[Invidious]

No, that's not what happened, or at least, you cannot infer that.

This guy took some CDs and ripped them to his hard drive. The folder he ripped them to happened to be shared by the filesharing program. I've seen some of these programs attempt to share entire drives, so the user may or may not have been aware of this behavior.

Re:Is this a good thing?

[piojo]

My (perhaps flawed) understanding is that some music downloads are okay. They still violate the copyright act, but so does all fair use. That doesn't make them "not okay" or "not fair use", but it means that anybody that sued you over these violations would probably lose.

I want those with legitimate reasons to be able to get content (I know these reasons may be uncommon, but I don't really care. We may need to find a different way to stop piracy than to prevent everyone from sharing.)

Re:Is this a good thing?

[Anonymous Coward]

I guess the EFF is saying he *didn't* commit any copyright infringement, because nodody got a song from him even if he put them on a shared folder. Perhaps he got the intention to share them, but you cannot punish the intention! I frequently have the intention of killing my mother-in-law but I will probably never do it, should I be sent to jail for murder anyway?

Re:Is this a good thing?

[theonlyaether]

I've worked on a few computers in my life. More than a few, who even cares - The point is, they made their music, software, and just about everything else, available to me. I may have even decided I wanted a thing or two I saw and I might have taken it. The point is I'm the one who made the violation, even if the computer owner was making the data available to me. Get it?

Re:Is this a good thing?

[gnasher719]

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement? As the article explains, the law says quite clearly that there is no such thing as "attempted copyright infringement". Either the music was distributed or it was not. If it was not distributed, and if there is no evidence of distribution, then there is no case. Intention doesn't count.

Re:Is this a good thing?

[danomac]

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program.

I've always wondered about that. If he makes them available, and no one downloads them, how is that infringement? It's reasonable to think he ripped them for himself. I really doubt a P2P program can be used to manage a portable player, so you can't use that argument either.

Then again, if they do prove it (by them themselves downloading one of the "available" songs) aren't they still in the same boat? They've probably hired someone to go fishing, and they've downloaded an unauthorized copy of the song in question. From a legal sense, the person downloading it to prove that someone copied the song would be liable, no?

I'm kind of sleepy now, so tomorrow I'll probably wake up and wonder why the hell I wrote this.

Re:Is this a good thing?

[LainTouko]

Copyright was supposed to regulate the publishing industry. Its regulation of private citizens, who didn't really copy stuff back then, came about essentially by accident. When the charge is out of keeping with the spirit of the law, one shouldn't be ashamed of a defense which is out of keeping with the spirit of the law.

Re:Is this a good thing?

[Anonymous Coward]

"The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?"

I don't know what the defense is claiming, but I know in the case of some of my friends and family (computer novices) they have NO CLUE that by using the built-in ability to rip a CD in a P2P program, they are effectively making those same tracks available to complete strangers around the world. Likewise, they also do not understand that by downloading a track from elsewhere they are then serving that same track to others (i.e., in both cases, 'making available'). All they think they are doing is downloading the track for themselves -- which in some countries is completely legal, especially if they already own the CD or LP and are just too lazy to rip it or re-record it themselves.

I think the argument that the EFF is trying to make is that "making available" isn't sufficient on its own. If it were, then the fact that a library has copyrighted books in it and a publically-available photocopier would mean that they could be in enormous trouble for essentially the same thing. They are "making available" books, and even providing the equipment that could facilitate the copyright infringement. For some types of copying, "fair use" clearly applies, for some types it doesn't, and there's a wide grey zone in between. It's my understanding that libraries are obliged to try to communicate the difference to their patrons, but they aren't the ones doing the copying, are they? If someone does clearly infringe on copyright with no "fair use" exception is the library on the hook for the deed? Should they be sued by the copyright holder for someone else's infringing act?

To use your expression, it is not the "trying" that matters, it is the question of who is doing the infringing -- the person "making available", or the person who actually downloads that track (or both)? Once someone else infringes, does that make the person "making available" culpable and guilty? If I leave a book on a table outside and someone comes along and copies the whole thing (not practical but imagine if it were easy), should I be sued for leaving it out there or only the person making the copy?

This person may have thought (incorrectly) that all they were doing was making their own copy from their CD onto their computer. I know that ignorance is not much of a defense, but ignorance is widespread for P2P programs and I think intent counts for a lot in a case like this.

On the other hand, if they did know exactly what the P2P software was doing and knew that it was copyright infringement, I see no problem with them being prosecuted for it (although, as you have said, the judgements the RIAA are requesting are crazy).

Re:Is this a good thing?

[jamstar7]

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?

RIAA is trying to say that ripping the CDs down to mp3s made them available for illegal distribution. Whether or not he actually shared them is immaterial to them, they are openning a new legal front with the act of ripping. Their theory is, he made them into mp3s with the sole intent to share them in violation of legal distribution, and that ripping them was in no way 'fair use'. Remember, these are the guys who claim 'fair use' means they get to make you pay and pay and pay for your music, even if you don't listen to it.

Re:Is this a good thing?

[brinebold]

What if you bought a CD, made one copy of it, and then took that to the student union (or any other gathering place) and just left it, sitting in a box with a sign that says "free CD", like a free puppies sign or something?

You violated copyright law by copying the CD for the purpose of distributing it.

If no one takes it, have you committed a crime by leaving it there, available for theft?

Yes, again, not for leaving them there to be stolen but for creating the copy for the purpose of willingly giving it to others.

What if you make 20 copies and do the same thing? It seems like even if no one takes them, it shouldn't be legal. However, it certainly doesn't seem like you should have to pay a bunch of cash to the RIAA, since none were taken.

Quantity doesn't matter for the purposes of determining guilt, just for the "counts" you would be found guilty of.

Finally, what if you did this, then came back a week later and the box was gone? If the staff claim they threw the CDs into the furnace and they don't know if any were missing at the time, what's your punishment, if any? You've no idea how many were taken, or if any were at all. Should you get off scott free?

Once again, the infriging act is the copying with the intent to permit others to take them as those copies are not covered under fair use laws.

However, I should point out that all of the above are illegal only because at some point you decided to create a copy of the song with the purpose of sending it to other people and NOT because you made it possible for them to take it. If, for example, you create a copy of all your CDs and forget to lock your door one day then you are not guilty of copyright infringement no matter how many of your CDs burnt for personal use people walk into your house and take. You are also not guilty of copyright infringement if someone you invite into your house makes a copy of your CDs without your assistance or knowledge.

What would this mean in practical terms? A burden of proof for the RIAA that this INDIVIDUAL placed copyrighted material in this folder for the purpose of sharing it with others. If they could somehow prove intent to distribute then they can easily make the claim that the copy being made was not part of "fair use". Otherwise the user is simply exercising their fair-use right to make personal backup copies of copyrighted material they purchased.

Re:Is this a good thing?

[civilizedINTENSITY]

Actually they did contend that the act of ripping the CD to MP3s was in itself a violation of copyright.

The judge had asked whether the copies were themselves unauthorized. The RIAA has taken the position, in testimony at the Capitol v. Thomas trial, on its web site, and in congressional testimony, that copying files from a cd onto one's hard drive is a copyright infringement (despite the fact that its attorneys had stated otherwise to the US Supreme Court). The RIAA was answering the question "yes".

Re:Is this a good thing?

[civilizedINTENSITY]

Its not "available for theft". The sign saying "free" indicates they aren't stealing the CD. If someone broke into a backpack and took the CD, then that would be theft. You could say they had made it available for infringement...

Re:Is this a good thing?

[civilizedINTENSITY]

Fair use doesn't violate the copyright act. Fair use is an exception that acts as a defense against claims of copyright infringement.

Re:Is this a good thing?

[cdrguru]

Unfortunately, you are missing the target of most of the people on the planet right now.

Piracy == getting stuff for free.

Paying is for losers. Sharing is for winners. As long as people believe this and have it drilled into them in universities all over the world, there is no stopping piracy. Look at the numbers in the PDF - there are hundreds of millions of people using P2P networks to share files and not pay. What possible occurrence could make these people stop sharing and start paying? My belief is nothing, nothing at all.

If you expose something in digital form, your chance of getting revenue from it is zero. Because people believe that there is nothing wrong with "sharing". The EFF expresses the opinion that distribution electronically does not constitute publishing - which means you can't violate copyright through electronic distribution.

Sort of makes a mockery of GPL, doesn't it? Pretty much means that if it is digital, it is free. Perhaps in 20 years the only things with value will be those that are not and never have been in digital form.

Re:Is this a good thing?

[Linuxmonger]

My local library buys books, then places them in an area comparable to "public domain", they even have a copy machine there on the premises. Should this be considered copyright infringement? I've bought more books since going to the library as a child and developing a love of knowledge (O'Reilly seems to get a quarter of my pay), and I've bought more CDs since downloading a few songs and developing a love of music.

We have burned books in the past, bridges also, neither was a good course of action.

Re:Is this a good thing?

[44BSD]

Here are some possible situations for you to consider.

1. The file-sharing SW was loaded by someone else (such as a child of the defendant's).
2. The defendant intended to share only those files which he was permitted to, but misconfigured his filesharing software?

Finally, consider this. If intending to share files illegally and actually doing so are so close to being the same thing, let THE LEGISLATURE do something about it by reflecting this reality in law. Under the Constitution, that's what they are there for.

Re:Is this a good thing?

[digitalchinky]

There are some legit reasons for P2P. Doesn't Kazaa scan your entire hard drive for files to share if you just blindly click through the installation process? Could he not just swing it as a case of negligence?

Re:Is this a good thing?

[phliar]

Keep in mind that:

1. The EFF has very limited funds and cannot join every case they'd like (or should).
2. A legal brief means exactly what the words in it say (like source code), it either makes the case or it doesn't, there is no "between the lines".

And it could be argued that in our system precedents are much more important (to society, hence as news) than the individual's suffering.

Re:Is this a good thing?

[Jerry Coffin]

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program.

There's your fundamental mistake -- at least as far as I can see, he did not load the MP3s into a file sharing program. Rather, he:
1) loaded the MP3s onto his computer
2) completely separately installed a file sharing program
There seems to be no evidence at all that he really took any action to connect the two -- rather, the file sharing program, by default, shares the directory where he happened to put the files. He probably didn't even explicitly select that directory for the files -- it was probably selected by default as well.

He sounds to me a lot more careless than evil.

Re:Is this a good thing?

[Jerry Coffin]

It may not make sense to some people, but in the eyes of the record industry, a ripped MP3 file goes from "authorized" to "unauthorized" when it's placed into your P2P share directory... even though it's the same file.

That's certainly one way to interpret what they've filed, but it's far from the only one. In any case, the position does not seem to be supported by the law, which specifically says that such an infringement requires an actual copy to an unauthorized individual, such as somebody else downloading the file from the shared directory, not just putting the file into the shared directory in the first place.

To make a long story short, you may be right about what the industry believes (or wants to believe), but even if you are it makes no real difference. This position does not appear to be in accord with the plain meaning of the law, or the positions taken by the courts in the past.

Re:Is this a good thing?

[Jerry Coffin]

If you read through the brief, you get the sense that the EFF couldn't possibly care less about this particular defendant, and is much more worried about the (possibly far reaching) precedent that will be set as a result of this case - especially since the defendant is appearing before the court pro se.

That's more or less the natural result of this being an amicus curiae brief rather than a brief directly on behalf of the defendant.

Re:Is this a good thing?

[hedwards]

In this case it might not be good. But in other cases where the shares are inadvertently made public the making available argument could cause serious trouble. Or if the program itself is only designed to allow access from a remote location by design, but malfunctions to allow other people to access it besides the owner it could cause trouble.

There's also the issue that if the RIAA gets its way, this will be infringement like any other, and the penalty will be 10k per song. I don't think that is reasonable in a case where there's no proof that any of the songs were downloaded by unauthorized parties.

The whole point of the making available argument is that the company investigating was given authority to download the files as part of the investigation. It wouldn't be any different than when the ITMS allows people to download files from their store. The individuals in both cases are granted rights to do it. There are also issues involving entrapment, if the issue isn't just making available. If the requirement for the activity being a violation is somebody downloading the files in addition to somebody else making them available, then there is the possible issue of entrapment. An illegal transfer wouldn't have happened had the investigating party not initiated the download.

IANAL and as such I have no idea how an actual judge would rule on any of that, but the making available standard is just a means of undermining the normal legal standards for evidence to stack things in favor of the plaintiff.

My personal feeling is formally make the act of providing copyrighted files without permission infringement, and put a max of $20 per file. It is reasonable for the act of making available to be litigated, but make it a realistic amount. Something to deter, but something which also keeps in mind the reality, that the copying is the problem, not the availability.

Re:Is this a good thing?

[Anonymous Coward]

By your logic, he could not have ripped them if the clients of the RIAA hadn't put them on a CD to begin with, so the RIAA and it's clients should be sued by themselves for copyright infringement.

Re:Is this a good thing?

[mithras invictus]

Maybe the files were not downloaded at all.
Maybe they were only downloaded by people who have legally bought a CD but for whom downloading is easier than ripping their own copy?

Re:Is this a good thing?

[volkris]

Many filesharing programs have those internal libraries. Maybe he wanted to put all of his mp3s in the same library and thought that adding them to the shared folder was the proper way.

Re:Is this a good thing?

[NewYorkCountryLawyer]

As the article explains, the law says quite clearly that there is no such thing as "attempted copyright infringement". Either the music was distributed or it was not. If it was not distributed, and if there is no evidence of distribution, then there is no case. Intention doesn't count. Correct. The issue being discussed is whether there can be a "distribution" under subsection 3 of 17 USC 106 where there is NO evidence of ANY of the requisite elements of a "distribution":
-dissemination
-to the public
-of physical copies
-by a sale or other transfer of ownership, or by a lease, license, or lending.
The RIAA had evidence of NONE of the above, let alone of all 4 required elements.

Re:Is this a good thing?

[asuffield]

This part of the case is not really about whether he committed a crime or not. This is about whether or not the RIAA should have to prove that he actually committed a crime, or whether they can wave their "we're rich" stick in the air and get him convicted.

The RIAA are treating this whole affair as a profit centre, by cutting their "investigations" to the point where they spend pretty much nothing on them, and pushing for fast settlement. The result is a fairly arbitrary cash-grab by a large corporation that is targetting vulnerable individuals who may or may not have actually done anything wrong - it's a safe bet that at least some of them didn't, but settled anyway when the RIAA explained that this would be cheaper than fighting them in court.

This has to stop. The way to stop it is to force the RIAA to do a proper investigation. That means throwing out all their "we don't need no stinking evidence - come on mate, you can see he's guilty, it's written all over his face" lawsuits.

Re:Is this a good thing?

[Anonymous Coward]

Apparently yes they are. No surprise to me, but the general slashdot view is that the EFF are heroes and the RIAA are the enemy, so it doesn't matter what laws you break, whether or not you gave a fuck about the artists, or whether or not you are guilty, as long as 'teh evil RIAA' lose.
Welcome to slashdot.

Re:Is this a good thing?

[smallfries]

Really, is this a good thing?

Yes

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?

Buying CDs is convenient way to get wav files rather than mp3s. This is changing but is still mostly the case. I doubt he wanted to lug around those wavs so he encoded them into his own preference for compression. He fired up a file-sharing program (many of which will automatically scan your harddrive and add any media files that you have to your shared folder). Regardless of why he intended to do this the law has to focus on what he has actually done, and so far he has not yet broken any laws. If he goes on to share files then he may break laws.

But is the EFF really trying to say that it's ok to try to commit copyright infringement, but only wrong if you get caught completing it?

No. They're not saying it is ok, and they do agree that it's wrong if you get caught. But the getting caught is an important aspect. People should not be taken to court because we assume that they have broken the law - there should be some proof that that they have commited an offence. The burden of proof on the accusor should be to show that the defendent commited an offense - not that he did a bunch of things that are related to commiting an offence but fall short. This is a basic principle enshrined in most Western legal systems.

Dislaimer: Substitute law-breaking for copyright infringement above if you feel picky. I know that they're different but it sounds torturous to phrase it that way.

Re:Is this a good thing?

[aussie_a]

Not everyone has your morals. Some of us actually believe copyright infringement is wrong. Some of us also believe perpetual copyright terms are wrong. And calling it a fallacy doesn't make you any more right and us any less right.

If someone doesn't agree with you, that doesn't make them wrong.

Re:Is this a good thing?

[Wonko the Sane]

It's the difference between a civil court and a criminal court.

The law already recognizes the distinction.

Re:Is this a good thing?

[aussie_a]

You're already falling into a fallacy when you equate "infringing vs non-infringing" with "right vs wrong" What has this got to do with criminal versus civil?

Re:Is this a good thing?

[Wonko the Sane]

Criminal acts (murder, rape, theft) are more generally "wrong", while civil infractions are generally ambiguous.

Note that copyright infringement is not theft, as defined by the law. The attempts by the RIAA and others to redefine it as such are propaganda.

If you want to go to extremes, they are all just words you can use them however you want. It's just a lot easier to communicate if we all stick to consistent usages. Using the same adjective to refer to an action that causes real, objective harm to a human being as well as to violations of artificial government-granted monopolies which can not be proven to harm anyone is a little disingenuous.

Re:Is this a good thing?

[Anonymous Coward]

no its hows the true colors of the whining idiots in the EFF. They will defend any bullshit, however tenuous if it lets them advance their pathetic ccommunist ideal that all corporations should make everything available for free.
Its time the EFF grew up.

Re:Is this a good thing?

[aussie_a]

while civil infractions are generally ambiguous. That's fine if you believe that and in a lot of cases I might agree. This isn't a case where I do agree. That doesn't make you right and me wrong.

Too rich to be guilty

[Lije Baley]

With all that money in his trunk, why would Mr. Howell need to steal music? Plus, I don't think they even have broadband on that island.

Re:Too rich to be guilty

[camperdave]

Maybe that telephone trunk line washed up on shore again.

Re:Too rich to be guilty

[esecasco]

perhaps they found another one of those cross-Atlantic phone lines, except this one is fiber-optic? Besides at the rate of inflation, his suit-case full of money is probably worth less than a song on the iTunes store.

Re:Too rich to be guilty

[Adambomb]

Packet Over Message In A Bottle.

Really high PL and latency though.

Re:Too rich to be guilty

[_KiTA_]

Plus, I don't think they even have broadband on that island.

Your forgetting how the Professor made a Satellite Modem and TV out of coconuts in Season 5.

Gilligan was a /b/tard.

Thought crimes

[flyingfsck]

Well, is it wrong to contemplate committing a crime and then not do it, or should the person be incarcerated same as if he actually did it?

Re:Thought crimes

[stubear]

Ever hear of "conspiracy to [commit some crime]"? You can be held responsible for actions that would have led to a more serious crime. Just because no one downloads the files does not mean his intent was to illegally distribute intellectual property for which he did not have the rights to do so.

Re:Thought crimes

[TheVelvetFlamebait]

It's not a thought crime. He performed an action of which the consequences can only be unlawful. There's no persecution of thought here, just of the actions taken, and the damage indirectly done.

Re:Thought crimes

[jotok]

This isn't the same as "contemplating" a crime.
The laws that govern the use of force by, e.g., law enforcement personnel and the military, in most (if not all) nations recognize the idea of "intent." There are clear markers for judging whether or not a reasonable person intends to do something hostile.

If you think all day of how you would like to blow up Congress, then you are guilty of nothing that can or should be prosecutable.
However, if you think all day of how you would like to blow up Congress, then acquire explosives and study blueprints to find out how to bring the building down...well, now you are actually on the road to making your thoughts a reality. If you are caught before the bomb goes off, you cannot use "This is thoughtcrime!" as an excuse. This is also why we have laws against "attempted murder" or "attempted rape" on the books.

Re:Thought crimes

[stinerman]

Yes, I have heard of conspiracy to commit X. As of this writing, there is no law on the books for conspiracy to commit copyright infringement, although I believe some congressmen are trying.

Re:Thought crimes

[Anonymous Coward]

I'd say this is similar to him walking into a bank with a note saying he was robbing the place. He then puts the note on the counter, but nobody notices it, so he walks out, leaving the note behind. What the implications of that action would be are beyond me.

Re:Thought crimes

[wizardforce]

in this case the only difference between it being a crime or not is whether anyone found your files to download. same exact action, one being a crime and one not, does that make any sense? no, no it doesn't.

Re:Thought crimes

[Wonko the Sane]

the consequences can only be unlawful

You didn't read the article. A major part of their argument is that when the authorized agents of the copyright holders downloaded the material as part of the investigation that this did not violate the Copyright Act.

Re:Thought crimes

[gnasher719]

in this case the only difference between it being a crime or not is whether anyone found your files to download. same exact action, one being a crime and one not, does that make any sense? no, no it doesn't. Of course it makes sense, once you remove your mistake that anything here is a crime in the first place. It is not a crime. You don't go to jail for it. It is about damages and liability. Trying to distribute records, but without success, doesn't cause damage. That is also a major difference for example to theft. Theft is a crime, and the police will arrest you. Copyright infringement (in cases like this one) is not a crime.

Re:Thought crimes

[Socguy]

I'm not sure where you are based, but here in Canada, no that is not a crime nor is it a conspiracy to commit a crime. In order to commit theft, you have to take something away from the lawful owner so they don't have it anymore. In terms of copyright infringement, you are allowed to make a copy of virtually anything for personal, non-commercial use. Until the laws are changed, personal copies can come from downloading off the internet.

Re:Thought crimes

[wizardforce]

under current law copyright infringement *is* a crime, should it be that way? perhaps not, but legally it is. You can argue the legality of distributing data in the form of music/art etc. all you want, it doesn't alter the fact that two actions although exactly the same are treated differently because of whether or not anyone thought of taking advantage of the offer. that's the idiotic part that doesn't make any sense what so ever. Either it's a crime and the two actions treated equally [because they are] or it isn't a crime and the argument about all of this is mute anyway.

Re:Thought crimes

[ShinmaWa]

A major part of their argument is that when the authorized agents of the copyright holders downloaded the material as part of the investigation that this did not violate the Copyright Act. I think this is one of the weakest arguments I've ever heard. Unless the defendant knew (or had reason to know) that the parties downloading the material were authorized to obtain the material, then any agreements the downloaders may or may not have with the RIAA is completely moot as the defendant was not a party to, or privy to, this third-party agreement.

The uploads by the defendant took place in spite of any authorizations given to the downloaders by the RIAA, not because of them.

Re:Thought crimes

[Jah-Wren Ryel]

This is also why we have laws against "attempted murder" or "attempted rape" on the books.

1. Do you realize that the crimes of "attempted murder" and "attempted rape" require that the person actually try to commit murder or rape? That simply preparing to murder or preparing to rape is not enough to qualify?
   
2. As at least one other has already pointed out, there are no laws on the books against "attempted copyright infringement" much less "preparing to infringe copyright."

Re:Thought crimes

[Anonymous Coward]

under current law copyright infringement *is* a crime, should it be that way? perhaps not, but legally it is. You can argue the legality of distributing data in the form of music/art etc. all you want, it doesn't alter the fact that two actions although exactly the same are treated differently because of whether or not anyone thought of taking advantage of the offer. that's the idiotic part that doesn't make any sense what so ever. Either it's a crime and the two actions treated equally [because they are] or it isn't a crime and the argument about all of this is mute anyway.

I hate spelling nazis, but, goddamnit, if you're going to try to practice law on slashdot, at learn the difference between mute and moot. The law is governed by precision.

And while you're attending Difference School, learn about the difference between crimes, misdemeanors and violations. Quit propagating the obscene, filthy lie that copyright infringement == crime or theft. For Christ's sake, copyright infringement may become a crime, but only when it reaches egregious levels. Most of the time, it does not, except in the alleged minds of RIAA pimps (that's Anglo-Saxon for "lawyers").These bastards should be wiped off the face^H^H^H^Hass of the earth for felonious mopery.

Re:Thought crimes

[Khyber]

Screw conspiracy to commit a crime, ever hear of conspiracy to witness a crime? Mississippi will arrest you for seeing a crime happening and not reporting it (regardless whether or not you have any means of contacting the police, or even if you cannot physically talk, they will arrest you!)

Re:Thought crimes

[Anonymous Coward]

I was making a point damn it, who gives a fuck that I used the wrong word, my point remains.

copyright infringement == crime or theft. For Christ's sake, copyright infringement may become a crime, but only when it reaches egregious levels.

I don't give a fuck what it is technically called, I was making the point that two actions that are exactly the same should be treated as such nothing more nothing less. the legality of infringement isn't the fucking point, the fact that two fucking identical actions are treated differently arbitrarily *is* the problem. that's why we have attempted murder when someone fails to kill someone, attempted rape for a failed attempt to rape someone etc. this has been pointed out by earlier posts but none of you seem to be picking up on it.

I mean damn dude at least attempt to understand the point being made!

Re:Thought crimes

[Lumpy]

Here in the USA it's that way, or at least they desperately want it that way and are pushing it hard.

Hell they daily tell us that you Canadians are dying in your hospitals due to poor heath care, you pay 80% taxes, and other blatent lies to keep us subdued.

And sadly most of us down here eat it up and believe it.

Re:Thought crimes

[TehZorroness]

"Conspiracy to *" might as well be called thought crime. Too bad lawmakers loose sight of what's most important all the time. Anyone who calls the US the "land of the free" can either go blow it out their ass, or become pope and change the laws.

Re:Thought crimes

[jotok]

Sure. But he wasn't "preparing" to share the files in any sense but the same as that a man with a loaded weapon pointed at your head is "preparing" to shoot. His preparation phase was when he ripped the CDs and dumped the files in the shared directory.

Your second point is valid and I'm not arguing it (I think this is the thrust of EFF's argument), quite the contrary. But to equate what this guy did with "thoughtcrime" as if all he did was think about sharing music shows a profound lack of understanding. Anyone espousing such a viewpoint should re-read 1984. I have several copies I can loan out.

Re:Thought crimes

[Wonko the Sane]

But the only evidence of any uploads whatsoever were initiated by the RIAA.

If they had never performed that investigation, would there every have been an infringement?

Re:Thought crimes

[Anonymous Coward]

The problem is your point is worthless. This is your point "two fucking identical actions are treated differently arbitrarily"--except this isn't so. It's not illegal for me to shoot a gun safely, while it is illegal for me to shoot a gun unsafely--loading a firearm and pulling a trigger is an identical action in both cases, but the distinction being made isn't arbitrary here, nor is it a problem. Similar actions clearly merit examination to distinguish legality from illegality, regardless of similarity.

The same is being said for copyright infringement here: ripping songs and putting them in a shared folder is an identical act, but may or may not constitute a crime both under the law and under any ephemeral sense of justice--this distinction isn't necessarily arbitrary. If a copy is provided to someone unlicensed to receive a copy, a minor crime has been committed. If a copy is provided to someone licensed to receive a copy (a class comprised of all license holders/music owners, not just the RIAA), a crime has not been committed. If no copy is made, no violations have occurred. Far from arbitrary, these distinctions seem to me carefully considered. To say someone has committed a criminal act appears to presume an illegal action has occurred. The distinctions used here provide for distinguishing between legal dissemination of copy-protected material, illegal dissemination, and non-dissemination.

Until having the ability/opportunity to commit a crime becomes as illegal as actually committing it, it's very difficult to see why drawing distinctions based on the consequences of actions should not be the primary basis of legal intervention.

To be honest, if simply placing copyright material in a place where it is 'available' for infringing users to acquire is a crime, I've often committed copyright infringement by performing backups using an FTP server on my home LAN, despite being licensed to possess the music, and certainly allowed to backup my disk. Kazaa, at an application level, is not significantly different from this FTP transaction, which if improperly managed is similarly open to abuse. Certainly I do not disconnect my gateway from the greater internet before bringing my FTP server online--I also do not encrypt traffic between endpoints on my LAN--I may have just made available copyright material, even to unlicensed users, yet despite this, I doubt very much I'd be found guilty of copyright infringement. You'll see that even despite similarity of consequences, 'distinctions' (arbitrary or otherwise) are employed to mitigate the level of legal intervention employed.

Ultimately, the law is the law, and the law as interpreted thus far requires the illegal distribution of copyright material before a crime has been committed. This is the EFF's position, as I understand it, and represents the status quo. While your point that "two fucking identical actions are treated differently arbitrarily" may or may not have intrinsic value here, it doesn't have any value as it applies to this case. And I also disagree--the distinction is far from arbitrary, is also very necessary, and in my opinion both beneficial and just.

Re:Thought crimes

[nurb432]

While that is true, and does exist on the books, is it considered "conspiracy to commit" when its a *civil* act involved and not criminal?

Re:Thought crimes

[Myopic]

Yes, you are correct, that's why downloading songs without paying for them isn't theft -- it's copyright infringement. The difference is just as you say -- you must deprive the original owner of enjoyment of the thing stolen. If I download a song from you, you can still enjoy the song, so it isn't theft, and people who claim it is theft are knowingly pushing lies. It isn't at all like stealing a car, in which case you could

And while we're on the topic, it also isn't theft to skip commercials, or to time-shift, or to place-shift, or to resell anything you own, or to loan anything you own. Furthermore, libraries doesn't facilitate theft. The entire concept is so totally wrong and bad for humanity - it's frustrating to hear such lame arguments made.

Re:Thought crimes

[Derekloffin]

As I understand the Conspiracy laws, you actually have to Conspire with someone. In this case, you actually need more than one party, not just the person themselves, and there must be a serious belief that said event to break the law is actually planned, not just making something up for the plot of a novel let's say, although no actual act to go forward with said plan is required to prove a Conspiracy.

Re:Thought crimes

[TheRealPhilKenSebben]

One cannot commit conspiracy when acting alone. Unless, of course, your name(s) is(are) Smeagol(Gollum).

Re:Thought crimes

[Anonymous Coward]

here in Canada,... you are allowed to make a copy of virtually anything for personal, non-commercial use.

Perhaps you should check with a lawyer. I just skimmed the statue

http://www.cb-cda.gc.ca/info/act-e.html#rid-33389

and I see no such exception. In fact, the exceptions listed are very similar to the "fair use" examples in US law -- education, criticism, news reporting, and so on -- but there's no blanket "personal use" clause.

Re:Thought crimes

[Myopic]

No. Thinking about a crime isn't conspiracy to commit the crime, it's premeditation, which isn't illegal, but does make a crime more serious and susceptible to greater punishment. To commit conspiracy you must take your criminal premeditation, convert it into outward communication, and engage another human being in your criminal planning.

All countries I know of, however, DO have thought crimes: drug prohibition. Think about it: what does a drug do to you? It changes your brain chemistry, which is another way of saying it changes your thoughts. Drug prohibition, then, is making it illegal to have those thoughts. That is, literally, thought crime and thought control. Does that make drug prohibition bad public policy? Maybe not, but it is a pretty significant limitation on freedom.

Re:Thought crimes

[Anonymous Coward]

I was making a point damn it, who gives a fuck that I used the wrong word

How are we supposed to get the point you're trying to make if you "use the wrong words" to make it?

Why should we give any consideration to your point if you don't even understand the meaning of the words you used when trying to make it?

Re:Thought crimes

[pjbaldes]

it is if dateline NBC is there.... not that there is anything right with it....

Re:Thought crimes

[Anonymous Coward]

-except this isn't so. It's not illegal for me to shoot a gun safely, while it is illegal for me to shoot a gun unsafely--loading a firearm and pulling a trigger is an identical action in both cases,

except that you realize that intentionally shooting into a crowd where it is reasonably expected that eventually someone is going to get shot and shooting on a firing range with proper controls would reasonably not result in harm. This guy made a choice that would reasonably result in a law being broken. the fact that he failed doesn't change the nature or intent behind what he was doing any more than holding a gun to someone's head, pulling the trigger and failing to kill that person because the gun jammed. there's even a few words devoted to it: attempted murder. the only difference being that you feel that copyright infringement is so far below murder in severity that the attempt shouldn't even be a crime. Personally, I don;t think infringement should be a crime for non-commercial use but as far as using weak excuses as to why the guy that tried to break the law shouldn't face any of the consequences that someone who succeeded would is illogical. I suppose as far as these points we agree to disagree.

Re:Thought crimes

[Myopic]

under current law copyright infringement *is* a crime, should it be that way? perhaps not, but legally it is.

This is contrary to my understanding of copyright law. My understanding is that it is a tort, not a crime. In fact, I'm really really sure that's the case, so unless you can cite a law showing copyright infringement to be a crime, I'm going to go on with my life assuming you don't know what you're talking about.

To be clear, a crime is prosecuted by the government and results in punishments like jail, probation, community service, etc; a tort is prosecuted by a civil entity, and results in punishments like monetary damages, injunctions, etc.

Also, I'm in the USA, so if you're talking about another country, perhaps one outside of Western civilization, then your jurisdiction might be different.

Also, you make a point about the act of preparing files for copyright infringement being treated differently based on whether anyone actually downloads the files or not. You say it's dumb to treat the same action differently just because of circumstances, but I'm not really following your argument, because the law does that all the damn time. If you don't shovel your sidewalk and someone falls on it, you may be sued and lose a court judgment. But if nobody falls, there is no lawsuit. I could come up with examples like that all day long, but my watertight correct counterargument is that circumstances not only can but almost always do change the legal liability of actions.

Basically, I can tell you know nothing about the laws which govern the United States. I hope for your sake that you don't live in the USA or any country with a similar legal tradition, or else you are bound to suffer greatly for your ignorance.

Re:Thought crimes

[tftp]

Mississippi will arrest you for seeing a crime happening and not reporting it

As we know, the police can arrest anyone for any reason at any time, and if you don't like it (or remember your rights, hardly the safe option these days) they will tase you until you change your mind or die, whichever comes first.

A very different question, though, is how to prove that you saw anything to begin with, and even if you did it's unclear if you understood it as a crime. There is only a small list of obvious crimes that everyone knows (murder, for example.) However if two guys are pummeling each other in the side street, is it a crime or not? If two men at 11pm carry boxes out of a house and load them into a truck do I witness some theft or it's just two brothers, homeowners, preparing for an early trip next morning?

If you report the men with the truck to the police and they are in fact thieves, and gone by then, the police will probably arrest you instead (they seem to always arrest whoever reports the crime, makes their life easier by having a suspect early on.) Or if the thieves are not yet gone, and caught, they will make a note of you, and make sure to do something nasty to you when they are free on bail (something nasty means "slice your belly open", "set fire to your house", "rape your daughter" or something along these lines.) The court will make sure that their bail is set low, since they haven't killed anyone [yet] [as far as this court knows.]

Or if those two are not thieves, but are roughed up by the police, do you think they'll love you for what you did? That'd be one neat way to make friends in the neighborhood. You might as well sell your house and leave town.

Re:Thought crimes

[Anonymous Coward]

Furthermore, libraries doesn't facilitate theft.

No, but they do facilitate grammar. You should visit one sometime.

Re:Thought crimes

[Obyron]

Conspiracy is when two or more parties form an agreement (implied or expressed) to perform a criminal (or tortious, in the case of civil conspiracy) act. Remind me what this has to do with one guy ripping a CD to a directory that may have been shared in a file sharing program? Are we going to legislate what directories we can and can't store files in?

You can't possibly be breaking the law until you actually do something illegal, with all the requisite burden of proof that any sane legal system demands. If I walk into a store, and I pick up an item of merchandise and put it in my pocket, it's still not shoplifting until I leave the effing store. If no one downloaded the files, nothing illegal happened. Prove that it happened and make your case, but don't pull all this thoughtcrime bullshit about what his intent was, or what he thought about doing.

I thought about not paying taxes this year. How about you?

Re:Thought crimes

[iron-kurton]

I respectfully disagree with your assertion that drug prohibition is a form of thought control. We only need to look at the history of drug prohibition -- taking cocaine as an example -- to see that it was fueled by a racist, fear-induced, politically-charged agenda.

Here are some links relating to drug prohibition:

http://www.drugpolicy.org/communities/race/historyofpro
http://thedea.org/prohibhistory.html

Re:Thought crimes

[Anonymous Coward]

No, there is not. Because thats not how the law is written, its telling you what you CAN'T do with it, anything not expressly forbidden is 'fair use'

The only way to apply that law for file sharing would be

(b) distribute to such an extent as to affect prejudicially the owner of the copyright,

You'll notice even the distribution clause specifies a scale of distribution, so even then you'd have to show that the copies in my shared folder represent a serious risk to your distribution model, sure the orignal napster fell into that easily, but in todays distributed networks, and especially Bit torrent where its more than possible i never even uploaded a full copy to a single individual its fairly hard to demonstrate im personally responsible for that scale of distribution.

Re:Thought crimes

[Anonymous Coward]

I suppose my point is that the distinctions made are not arbitrary; not-distributing-illegally is and should be not-infringement. I would also say that copyright infringement and murder are both illegal, regardless of their social-severity (the "severity" of the crime has no bearing on a question of legality, but would have bearing on the question of punishment). I am not dismissing this man because his purported crime is petty, I am dismissing this man because the standard "making available" for infringement does not meet the standard for the crime of copyright infringement (yet). I don't care whether what he did was right or wrong, only legal or illegal. As for punishment, may it fit the severity of the crime.

Re:Thought crimes

[taj]

Why this got rated as informitive is beyond me. It has an honest mistake which is very misleading.

"Yes, you are correct, that's why downloading songs without paying for them isn't theft -- it's copyright infringement."

downloading songs is not illegal. Even downloading copyrighted songs is legal. What is illegal is giving someone a copy of copyrighted material.

As an example from when copyright laws made more sense in the 1750's.

I buy a book from England. I setup my printing press in the USA to make a copy of the book. One page at a time. Its a labor of love. It feels patriotic. It really is the american way. Sure there are laws that predate the future USA that came from England. Our colonies all adopted these laws but it is time for a change; these taxes do not make sense. After a printing of the book and when I sell the book for a fraction of the price of the books comming over the pond, I have commited copyright infringment. The person that purchased (downloaded) the book did nothing wrong.

Long live the printing press.

Re:Thought crimes

[coke_scp]

Tell that to demonoid.

Re:Thought crimes

[Jah-Wren Ryel]

But he wasn't "preparing" to share the files in any sense Oh really? If ripping and putting files in an open directory doesn't qualify as preparation, then just what would? Turning on his computer?

Re:Thought crimes

[toriver]

If you move your story to 1800 you are even more in the clear: U.S. copyright law did not include foreign works so you could copy them as much as you liked.

Re:Thought crimes

[Anonymous Coward]

"Yes, you are correct, that's why downloading songs without paying for them isn't theft -- it's copyright infringement." --> No, its not even copyright infringement (in many countries). Here in Austria (and I guess in Canada too), I may legally download from P2P networks without doing something unlawful. It's only forbidden to upload stuff (without the approval of the copyright owner). And I may even legally copy the data to my friends, as long as I do it on a non-commercial basis.

Re:Thought crimes

[jotok]

I think you need to re-read my post.

It says that he was preparing to share in the same way that a man with a gun pointed at your head is preparing to shoot. Read it again.

Re:Thought crimes

[Anonymous Coward]

Shit, shooting people in the head changes their thoughts too. THOUGHTCRIME! AIEE!!

Re:Thought crimes

[Anonymous Coward]

The Best KZ campers, trailers and RV's in Michigan Cliffs

In Germany concentration camps were called KZ in short.

Re:Thought crimes

[KDR_11k]

These days they'd evacuate the whole building because the note might explode.

Re:Thought crimes

[aegisvirgae]

First you must understand what a conspiracy is. A conspiracy is generally an agreement with the intent to further a crime. If someone just placed an mp3 up in a place where it could be downloaded then it is still not conspiracy unless you can show there is an agreement. Generally, there must be at least more than one person for there to be a conspiracy. There must be some agreement, though in some jurisdictions it can be a feigned agreemnt ergo a cop agreeing to do a crime with a criminal while actually lacking a true intent, and thus conspiracy is not done in this fashion.

Historically, at the common law, a conspiracy didn't even have to be a crime. Conspiracy could be for anything immoral. In most modern jurisdictions this is rejected and you still have to have a crime.

I think the crime you are looking for is attempt. This may be attempted copyright infringement because he has gone beyond mere preparation for a crime and performed the last act necessary for it. There are many tests to determine attempt, but actually making it available could be construed as the same thing as an attempted infringement. Now, whether attempted infringement is a crime or not I can't speak to.

Re:Thought crimes

[aegisvirgae]

This has nothing to do with conspiracy. This is a law against omissions. Normally you have no duty to act to save anyone or prevent any crime except under some very explicit exceptions. This law creates a legal duty to act. You don't have the right of omission anymore. You must at least report it ot the police. Minnesota has a similar statute. It requires that you must aid someone when their life is in danger. This aid must at least consist of contacting the authorities or you have committed a misdemeanor. I think it is even a gross misdemeanor. The law that you are referring to is of this category.

Re:Thought crimes

[hawkinspeter]

Why should the onus be on the defendant to ensure that other people are authorized? Bad Car Analogy 1: If I lend my car to a friend, would it be my responsibility to ensure that they comply with the law? How am I supposed to ensure that they don't speed or drive recklessly? As I understand it, the potential downloader/borrower is responsible for whether their own actions are in compliance with the law.

Re:Thought crimes

[Anonymous Coward]

Actually no, shooting yourself is perfecly legal. Please try it sometime.

Re:Thought crimes

[ShinmaWa]

Why should the onus be on the defendant to ensure that other people are authorized? Because he's the one distributing it. Plain and simple.

Instead of a bad car analogy, how about a better one:

This is no different than a guy on the street selling pirated DVDs and an undercover officer buys one in a sting operation. The cop is authorized to buy pirated goods as part of the sting, but the seller doesn't know that. That doesn't make the act of selling it to him any less illegal.

In much the same way, the downloader was authorized to download the music, but the distributor didn't know that. That doesn't make the act of distributing it any less illegal. The fact he DIDN'T know that is actually detrimental to his case. He can't reasonably say "the only reason I distributed it to them was because I knew they were allowed to have it". No -- he was distributing it under the assumption those getting it were NOT authorized.

The only difference is that under US law, our street seller is committing a crime (personal gain involved) where as our defendant committed a tort (no personal gain). However, other than that, the situation is the same.

Re:Thought crimes

[Anonymous Coward]

the point is mute, which is why you didn't hear or understand it.

Re:Thought crimes

[bzipitidoo]

Several problems with your arguments. First, undercover officers are agents of the government, and are obliged to follow a number of procedures and rules to ensure they are not entrapping, enticing, or otherwise unfairly pressuring their targets to commit unlawful acts. The RIAA employs unlicensed private investigators who are not bound by these restraints, and who may also have and be blessed to have excessive incentive to skew their investigations to favor particular outcomes.

Second, how do you know that the only possible reason to "make available" a song is for copyright infringement? Time and again, we've covered all kinds of reasons why a song might be available for upload. Among those are that the user didn't realize some p2p program would take it upon itself to make material available, without the user's express permission, that the copyrighted status of the song was not clear and the user genuinely thought it was legal to upload it, and so on. Now, I know you're thinking those are all just weak excuses. Well, no, they aren't. There really is quite a lot out there that is "copylefted", or was copyrighted but the copyright has expired, or appears to be legitimate but is not and moreover has had the copyright notice removed by another party, or is a alternate and possibly inferior recording that actually isn't protected, is a parody, is public domain, and so on. You seem to think the copyrighted status is always easily determined. For most works, perhaps so, but not for all, not by a long stretch. Nor can you assume that most potential downloaders would not have a legitimate claim on a copy. What of all those people who have a copy on CD, but find it more convenient to download an mp3 than to install ripping and encoding software so they can make the mp3 themselves? Or those who bought and lost an mp3, and are merely replacing their loss? Or those who live in nations such as Canada, where sharing is totally legal?

To use another car analogy, the only possible reason cars have speedometers that read above 75 mph is so people can commit the infraction of speeding, right? Or, to put it on a finer point, the only reason a driver's speedometer would ever be reading more than 75 mph is if he's committing the infraction of speeding, right? Of course not! What if the speed limits are raised again? What if it's an emergency? A mechanical malfunction? What if the user put on very small diameter wheels so that the speedometer reads considerably faster than the actual speed? What if the user is on a race track or private property? You just can't make blanket assumptions, not on speedometers and not on p2p file sharing either. Life isn't that simple.

Such being the case, the third reason your arguments are poor is they are shortcuts, enabled by those blanket assumptions. The RIAA would love to get away with those shortcuts. Why bother doing a proper investigation and demonstrating that actual copyright infringement has really taken place when it's so much easier to make logical leaps that on the surface seem reasonable but are not? Where does this slippery slope end? Next, maybe owning a DVD burner will be enough to convict someone of copyright infringement, because the only use for a burner is copyright infringement, right? No one should be allowed to get away with such arguing, not the RIAA, and not anyone else. If the RIAA doesn't have to obey the law, why should anyone else? We have standards, but the RIAA seems to feel it should be excused for what boils down to the really weak reason that life is extra tough for them.

Re:Thought crimes

[ShinmaWa]

Several problems with your arguments. Okay.. let's hear them.

The RIAA employs unlicensed private investigators who are not bound by these restraints Straw man. That's why we have courts. Next!

Second, how do you know that the only possible reason to "make available" a song is for copyright infringement? I didn't even use the term "make available", let alone argue for or against it. I said that the EFF's argument that merely because the downloaders were agents of the RIAA that no copyright violation occured. I said that argument--in and of itself--was weak. My argument was to that one point and that point alone. Just because the agents were authorized, does not mean that no copyright violation occurred. Furthermore, the fact the downloaders were agents of the RIAA makes no difference in this case because the uploader did not know this and was not acting on that information.

I'll concede that its possible that no copyright violation occurred for other reasons (say, inadvertant distribution, for example) but that was far beyond the scope of my argument. Please do not expand my argument above and beyond what I said. Also, please stop putting words in my mouth and then arguing against them. That's called a "straw man" and its really poor style.

Re:Thought crimes

[hawkinspeter]

Hmmm - I'm not sure your analogy is that much better. The guy on the street is actually making the copy, whereas with p2p, the recipient is making the copy - which is not infringing copyright if they are authorised. A policeman being authorised to buy unauthorised copies is different to an authorised person making a copy over p2p.

Re:Thought crimes

[ShinmaWa]

The guy on the street is actually making the copy, whereas with p2p, the recipient is making the copy I certainly understand your point, but I'm not sure the court will share your view in this technicality.

If we want to get to this level of technicality, where is the actual copy being made? It's being made on the uploader's computer just-in-time. One copy stays on the hard drive and the other being transmitted over the network by the uploader -- in this case, by the uploader's digital proxy of the p2p software. I don't think the law really cares at what point in the distribution the copy is actually made (the day before or just-in-time). However, there's no question in my mind that the uploader (and the uploader's software) is doing the copying, not the downloader.

The downloader makes the request and receives the goods, but the downloader does not actually make the copy. The uploader -- which accepts the request, processes the material, and provides the material to the downloader is making the copy.

I will presume for the sake of argument that the uploader willfully installed the software, configured it, and ran it. If this is the case, the p2p software was acting as a proxy for the defendant and the defendant is responsible for it, IMHO. Now, if the downloader broke into the computer and made a copy, the computer was NOT acting as a proxy of its owner and therefore really can't be held responsible.

(BTW, I hold the same view of "the uploader makes the copy" on HTTP servers and FTP servers too. The downloader makes a request, the uploader fulfills the request by making a copy and sending it along.)

Re:Thought crimes

[bzipitidoo]

Straw man. That's why we have courts. Next!

No, not next. Not a straw man. Huge waste of the courts' time and taxpayer money to sort out whether investigators were following established standards for collecting evidence. There have been too many cases where some private investigators and expert witnesses had interests in the outcome and fabricated evidence in some fashion. In short, they had powerful motivation to lie, and often they did. And you want to shrug that off? Let the courts sort that one out, because it's their job? That's the way patents are handled right now: grant them, collect the fees, and let the courts sort out the validity. And it's a mess. We can avoid this problem by using professional investigators who are disinterested in taking sides and want only to find the truth. Speaking as a taxpayer, I resent having our money spent to double check the RIAA's slipshod and biased investigating, or even to do all the work, jumping at shadows only the RIAA sees. Over and over, the RIAA has tried to turn 3rd parties into their IP cops, demanding for instance that colleges and ISPs collect and store information about users' Internet usage, then trying to get real investigators to spend time mining this data, getting the police to raid homes of suspected hackers with warrants that should not have been authorized, and of course hiring unqualified people (unqualified in the sense of not being properly disinterested, not in the sense of being technically inept though they may be that too) to investigate and expecting their findings to have the same standing as a real investigator's.

You did indeed say "distribute" not "make available". But this article is about "making available". The RIAA hasn't proved that distribution to an unauthorized party has occurred. They're only claiming to have shown that the suspect "made available" some copyrighted data, and that they don't have to do anything more to win their case, because of course the only possible outcome of copyrighted data that has been "made available" is copyright infringement. Read again that analogy about the only reason a speedometer could ever be reading more than the maximum speed limit is because the driver is speeding. If I have put words in your mouth, you have read words into the article's text, arguing about "distributing" instead of "making available". You're the one who has made a straw man with that word "distribute".

Now, as to whether copyright infringement has occurred: of course it happens all the time! Most people have done it, some unintentionally but many even when believing that they were committing an infringement whether or not they really were. This is reason to reexamine copyright, not give the likes of the RIAA a free pass in court. Otherwise, because so many people have done it, it could conceivably be argued that anyone the RIAA drags into court should automatically lose because they are more likely to have committed copyright infringement than not. Civil case, with the much weaker standard of more likely to have done it than not, yes? Of course we can't do that for practical reasons, or soon half the nation would be owing the RIAA damages. I would prefer copyright be drastically reformed, but in the meantime, holding the RIAA to the same standards as everyone else will stop this RIAA crusade and inquisition against their own customers from getting out of hand any more than it already has.

Re:Thought crimes

[NewYorkCountryLawyer]

You did indeed say "distribute" not "make available". But this article is about "making available". The RIAA hasn't proved that distribution to an unauthorized party has occurred.......
.....holding the RIAA to the same standards as everyone else will stop this RIAA crusade and inquisition against their own customers from getting out of hand any more than it already has. Well spoken, bzipitidoo.

Re:Thought crimes

[hawkinspeter]

You're probably right about the law not caring about the details. However, I don't agree that the uploader is making the copy. I'm no expert on p2p, but isn't the uploader just reading the data and sending pieces of it over the network - the copy doesn't exist until the downloader saves to disk. It'll be interesting to see how the case continues - I'm rooting for the EFF as I believe there has to be proof that copyright was infringed, not just an intention to infringe. I personally believe that copyrights have outlived their usefulness in this age - technology is advancing too quickly for the law to be able to keep up.

Error Will Robinson, Error!

[fredNonesuch]

While I greatly appreciate your work in helping reign in yet another greedy monopoly abusing their powers, I have to post a correction to the original post. They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa. There have been numerous follow ups to the original assertion, including Techdirt, Gizmodo and Slashdot (noting the Gizmodo retraction) The RIAA has even clarified their position in a somewhat weasel worded quote. In essence, if you don't share, we (probably) don't care.

Re:Error Will Robinson, Error!

[NewYorkCountryLawyer]

I am aware of the 'controversy' but I disagree with you. You might want to read Wired.com's well researched discussion or my statement that Mr. Fisher was right and the Washington Post "correction" was wrong.

Re:Error Will Robinson, Error!

[vux984]

They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa.

NO. They DID say ripping a copy to the computer was unauthorized.

HOWEVER the LAWSUIT was because he'd put those files into his Kazaa shared folder.

I.e. he wasn't on trial for ripping a CD. But they did say they were unauthorized, nonetheless.

Re:Error Will Robinson, Error!

[Artraze]

> They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa.

Well, they actually did say that to a degree, but more to the point, the "making available" bit is the problem here. While anyone putting songs in a shared folder probably intends to share them, that's not necessarily the case. Many people used to share their entire hard disk, often causing data they didn't want to share to be publicly available.* Now supposing they _did_ intend to share it, intent is only rarely a crime and usually requires is a major burden of proof. If you claim that your "My CDs" folder was automatically shared by Kazaa, then that pretty much kills the case.

*Many identity thieves would seach programs like limewire for soc numbers and the like and were quite successful.

> In essence, if you don't share, we (probably) don't care.

There is a major difference between something being legal, and something being illegal but generally not prosecuted. You may say the precedent that ripping your CDs is a copyright violation is only used to make cases against file sharers, and you may be right. But still that means they now only have to prove you ripped a CD in order win their cases. This would open the door for suing pretty much anyone whether they really were sharing files or not. After all, pretty much everyone that has a computer and a CD has ripped it.

Re:Error Will Robinson, Error!

[celle]

All the guy has to do is rip his song and place it into his collection. If kazaa's receive settings are pointed to the same place or even if he pointed them there, then he's sharing because the receive and sharing system works on the same directory by default. He might not have even known about it as its automatic and doesn't often indicate it unless asked. I can't remember if kazaa even lets you split the receive and share directory(functions) up. Many programs didn't, just allowed you to add on more directories.

Re:Error Will Robinson, Error!

[Anonymous Coward]

I have to post a correction to the original post.

If *I* were about to correct someone so closely involved and so demonstrably competent in this issue, I would pause and consider that perhaps my correction was not quite as correct as I thought.

It's silly to think he wouldn't be aware of both the facts and the supposed correction. And so that he would deliberately write something contrary to that would, to me, be a strong indicator.

Trying to break the law is not a crime.

[riseoftheindividual]

Planning on breaking the law is not a crime. Actually breaking the law is what defines a crime. Granted, if you've planned on breaking some law and your planning constitutes conspiracy to commit a crime by definition of a law against conspiracy to commit a crime, then you've broken the law in so far as conspiracy is concerned, not as far as the actual crime you conspired to commit(unless you actually committed it).

Re:Trying to break the law is not a crime.

[FroBugg]

He did more than just plan to break the law. He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.

Re:Trying to break the law is not a crime.

[Anonymous Coward]

Aren't copyright cases civil damages? Can you award damages to someone because something almost happened or could have happened? Do you not have to prove and ACTUAL loss? I trip over a loose piece of clothing in Wal-Mart and almost fell and got hurt, can I sue for damages for the work time I could have lost if I would have fallen?

Re:Trying to break the law is not a crime.

[Charbox]

Putting files up for everyone to grab is not making the copies. The people who download them are making the unauthorized copies. Under your theory, libraries can't have photocopiers because they are just putting it up for everyone to grab copies out of books and magazines.

Re:Trying to break the law is not a crime.

[LM741N]

I beg your pardon. With 2 or more individuals planning a crime is called conspiracy and they are generally felonies.

Re:Trying to break the law is not a crime.

[jotok]

Yah, and the sticky part is that, in the spirit of the law, he was committing conspiracy; but I don't think there's a law against "conspiracy to commit copyright infringement."

Of course, the spirit of the relationship between us consumers and the media outlets should be one that includes fair use. If it did then maybe people wouldn't want to dick them over so much.

Re:Trying to break the law is not a crime.

[Artraze]

It certainly does appear that attempted to. And indeed if that's what he was being charged with, then he probably would be found guilty (as well he should be I suppose). HOWEVER, he is not being charged with _attempted_ infringement; he is being charged with _actual_ infringement. The EFF is just saying that unless the RIAA can _prove_ that the infringement happened, the guy shouldn't be found guilty of infringement. Seems reasonable to me. If we need a law against "attempted copyright infringement" then so be it, but people shouldn't be ruled guilty of infringement just because we don't have one.

Re:Trying to break the law is not a crime.

[Anonymous Coward]

Isn't that the same as putting my expensive stuff on the front-lawn and waiting for someone to steal it?

Or was he in fact working for the RIAA and using the old entrapment thing, trying to get a nice precedent? (or is that way too paranoid? :D)

Re:Trying to break the law is not a crime.

[jorghis]

You know back in the days of Napster everyone was screaming about how horrible it was to go after Napster because it was clearly the individual sharers that were breaking the law. Now we hear everyone getting excited because there is the possiblity that someone who admitted to deliberately sharing copyrighted material online might get off on a weird technicality.

I think that some people just got on one side of the issue because the RIAA wanted to criminalize file sharing in general and now they instinctively take the opposite side of the RIAA every time no matter what. I mean, to a person on the street a guy who admitted that he deliberately made copyrighted material available for distribution online from his computer would be an open shut case.

A lot of people on websites like this arent capable of looking at individual cases objectively and so they take this guys side even when he is obviously guilty and the RIAA is obviously in the right. Effectively people have already reached the conclusion they want (that he should get off) and then rationalize the reason why he should get off. (weird legal technicality)

Re:Trying to break the law is not a crime.

[riseoftheindividual]

He did more than just plan to break the law.

I didn't say otherwise. I'm attempting to explain the situation as I've read it.

He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.

Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.

That's not what's happening here. You say he admits to doing everything he needed to do to have commit copyright infringement... if that's the case, then he did commit and he's guilty. But that's not what's being argued here. What's being argued here is that he did not cross the neccesary threshold for having broke the law.

I'm not sure what your opinion is on the concept of "the burden of proof lies with the accuser", but I don't find that concept ridiculous at all. If he attempted to break the law, but did not in fact break the law, then he should not be punished. Have you committed copyright infringement by just putting digital copies on your computer? Have you committed it by putting them into a directory shared by file sharing software(something that can be inadvertently done due to user carelessness)? Or have you broken it once you have actually transfered a copyrighted work to another person?

I always fall back to the simple reasoning, no harm no foul. If no copy was disseminated, then the RIAA can not show they've been victimized, then he should not be punished. In my opinion, anything beyond that is unreasonable control over individual liberty. That's my take.

Re:Trying to break the law is not a crime.

[NMerriam]

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.

Nobody is saying he's not at fault, just that he hasn't committed copyright infringement according to the law. Attempting to commit a crime and failing is not illegal (though you might be committing another crime in the attempt), you have to actually commit a crime.

For example, if you saw a car parked on the street with keys in it and you took it for a joy ride, thinking you were stealing it, it wouldn't be illegal if it turned out the car was purchased for you by your parents. It doesn't matter what your belief or intent is, if what you're doing isn't actually breaking the law you aren't guilty of any crime. That's what is at the heart of this issue -- is it a copyright violation if the material is never actually distributed to anyone, regardless of whether the guy intended for it to be distributed?

Re:Trying to break the law is not a crime.

[A beautiful mind]

He did more than just plan to break the law. He attempted to.

Attempting to break the law is not against the law, unless there is specifically a law that makes it a crime for you to attempt to break the law (and convict you even if you don't succeed).

Copyright infringement is not a criminal offense for a good reason, that would get you automatically prosecuted. It is breaking the law only if a.) the act of copying takes place b.) it is not fair use c.) the copyright owner does not give you permission d.) the copyright owner sues you for it and wins the court case.

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement

Again,the matter is not something that would get prosecuted automatically, nor should it be. If someone copies a song and the copyright owner never sues for it, in the eye of the law it is perfectly legal and deserves no punishment. There is a huge difference between a criminal case like attempted murder where even the attempt is prosecuted and between a copyright case where you're saying that it is ridiculous that an attempt is not prosecuted, which in order to realistically work would automatically mean making copyright infringement a criminal offense.

Re:Trying to break the law is not a crime.

[jorghis]

> Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.

Um, ok, sure. IANAL but I suspect that if I get a sniper rifle and shoot at the president "its ok I missed" wont stop me from getting thrown in jail.

Re:Trying to break the law is not a crime.

[gnasher719]

He did more than just plan to break the law. He attempted to. Attempting to break the law is not breaking the law. There are cases where the law says that attempting to commit a certain crime is itself a (lesser) crime, like attempted murder is a crime, but a lesser crime than murder, but unless the law says that attempting something is a crime, it is no crime. In the case of copyright infringement, the law explicitly says that only actual distribution is copyright infringement, attempting it is not.

Re:Trying to break the law is not a crime.

[Wonko the Sane]

Attempted murder is a crime because some legislature passed a law criminalizing it.
"attempted copyright infringement" is not a crime, because it does not violate any current law.
Just because it seems wrong to somebody does not make it a crime. Crimes are defined by laws, not your feelings.

Re:Trying to break the law is not a crime.

[gnasher719]

You know back in the days of Napster everyone was screaming about how horrible it was to go after Napster because it was clearly the individual sharers that were breaking the law. Now we hear everyone getting excited because there is the possiblity that someone who admitted to deliberately sharing copyrighted material online might get off on a weird technicality. I wouldn't call "look at the law, look what it says is illegal and what is not illegal, and you'll find that what I did isn't illegal at all" a "weird technicality".

Like if you were in court for murder, and the victim is actually alive, then I wouldn't call this a "weird technicality".

Re:Trying to break the law is not a crime.

[Invidious]

Actually, no. The distributor's computer creates the unauthorized copies at the request of the client computer.

Re:Trying to break the law is not a crime.

[jorghis]

I am pretty sure that in your example you would still go to jail for attempted murder if you had tried to kill the victim. The same way that the RIAA will sue you if attempt to commit copyright infringement if you post material that they own the copyrights on onto the internet.

Re:Trying to break the law is not a crime.

[Charbox]

So? The photocopier creates the copy at the request of the person pressing the button.

Re:Trying to break the law is not a crime.

[jorghis]

Well, if it isnt illegal (and I suspect that it is illegal) then it really should be. I am sure that if this goes through then the RIAA lobbyists will go to congress and point out how ridiculous it is that this is legal. So either way it wont be a legal loop hole for long. (nor should it be)

Re:Trying to break the law is not a crime.

[Naughty Bob]

Actually, no. The Library's photocopier creates the unauthorized copies at the request of the sneaky book thief.

Re:Trying to break the law is not a crime.

[gotzero]

I think the EFF as a digital ACLU. They often protect the liberties of people doing something I think is wrong, but when I move back and take out the specifics, I often realize they are fighting to keep me safe. I think on the whole the EFF does wonderful work. I have had to listen to little kids explain to me that file sharing is wrong after the RIAA went INTO THEIR SCHOOLS and tried to push this crap into their heads. If this is going to get fought by protecting a guy that messed up, then I am willing to overlook.

Re:Trying to break the law is not a crime.

[Wonko the Sane]

Well, if it isnt illegal (and I suspect that it is illegal) then it really should be.

Everyone is entitled to his opinion. I'm more inclined to the view that copyright as it is currently practiced is a "legal loop hole" that shouldn't be around for much longer.

Re:Trying to break the law is not a crime.

[ScrewMaster]

For those guys? It's hard to be too paranoid.

Re:Trying to break the law is not a crime.

[jorghis]

A better analogy:

The library puts a photocopier out that will instantly print out a complete copy of "Tales of the ACME company" at the touch of a button. It does this in spite of the knowledge that the author of the book holds the copyright and doesnt want you spitting extra copies out of your little machine. In this case the author would have a pretty good case for a lawsuit against the library.

Just because a photocopier CAN be used for copyright infringement doesnt mean that it actually is, and most of its use in a library falls under fair use. Copying entire songs on the internet does not fall under fair use.

Re:Trying to break the law is not a crime.

[Kjella]

In civil law, you shouldn't award damages for things that didn't happen. If I attempted to embezzle a million dollars and failed, should I still owe the company a million dollars? If I attemped to infringe on copyright and failed, should I still owe the RIAA 750-150000$/song? These are not criminal trials, they are civil suits by a company for alledged damages. The proof of intent may be overwhelming, but unless the actual act was committed I don't see that the RIAA has any claim to damages.

Re:Trying to break the law is not a crime.

[jamstar7]

Actually, no. The 'distributor's computer reads the file and sends it to the client computer which then creats the unauthorised copy.

Re:Trying to break the law is not a crime.

[webmaster404]

Why should it be illegal? Its opening up huge new legal opportunities for the government to decide to mess up again with technology. Hasn't anyone realized that whenever the government tries to do something involving technology it is us, the citizen that always, always, always loses? The DMCA, is just one example, and there are many others. Whats next, being thrown in jail for googleing a band name, or a software product because you were "looking for files to download"? Either you are a troll or can't look at the past and draw a conclusion. We need less copyright law and less law in general when it comes to technology, if the government stays out of the way problems solve themselves otherwise, expect to fight very very hard for the few freedoms we have left.

Re:Trying to break the law is not a crime.

[baileydau]

He did more than just plan to break the law. He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files. If you read TF-PDF from TFA ( http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_howell_080111AmicusBriefOpposSumJudgMot ), you will see that they argue that there are a number of precedents that confirm that you must actually distribute the item to infringe, not just "make available".

Apparently there are other IP areas (eg Semi-conductor mask copyright and patents) where there is explicit infringement for "making available", but this is NOT the case for general copyright.

They point out that there has been some discussion to amend the copyright legislation to include making available as an infringement, but this has not yet happened.

How their arguments eventually fly in court is yet to be seen, but they do seem reasonably well researched and argued.

Others in this discussion seem to be arguing that this is intent to commit a CRIME. However, as this is a CIVIL proceeding, this is NOT a CRIME (ie criminal proceeding), and I don't think there is such a thing as intent to commit a civil infringement (except where explicitly stated in appropriate legislation / precedent etc, which it is not in this case)

Re:Trying to break the law is not a crime.

[jorghis]

Well, I am not looking to get into a debate about whether or not violating copyrights should be illegal or not. But if you are going to make violating copyright illegal it only seems logical that serving copyrighted files you dont own to the entire world should be illegal also.

Re:Trying to break the law is not a crime.

[cpt kangarooski]

Copyright infringement is not a criminal offense for a good reason

Some copyright infringement is criminal, actually. Take a look at 17 USC 506, for example. It's just a fairly low priority for the DOJ is all.

Re:Trying to break the law is not a crime.

[Anonymous Coward]

He did more than just plan to break the law. He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.

Horseshit. My guilt or innocence (or liability) should not be able to be determined by the independent action of a third party.

It's bad enough that this is the de facto case in reference to unauthorized computer access and to trespassing.

In these cases, "conslutants" will routinely advise the "victim" to engage in extravagantly expensive "investigatory" practices with the sole purpose of running up bills large enough to raise the access or trespass to the level of a felony.

Cases in point -- businesses are advised to hire "experts" to review every computer in a corporation after a "breakin" to verify the extent of "damage" when it is obvious that only a single machine was involved. Also, when some guy clean-climbed the Transamerica pyramid in San Francisco some years back, they went full bore and hired a team of engineers to carefully examine the surface of the building for "structural damage". The building likely suffers more damage from the results of acid contained in a single instance of a pigeon shitting on the stone facing.

Either practice automatically adds thousands of dollars per hour to the total of "damages". But in each case, the "damages" suffered are the result of the computer or building owner's choice of what action to take, not on the action actually taken by the "offender".

Re:Trying to break the law is not a crime.

[cpt kangarooski]

It doesn't matter what your belief or intent is, if what you're doing isn't actually breaking the law you aren't guilty of any crime.

Sort of. There are two kinds of mistakes: mistakes of fact, and mistakes of law. If you make a mistake as to a fact, e.g. you try to kill someone with a voodoo doll, or you steal a car thinking that it belongs to someone else, or you shoot a corpse when thinking that it was a living person, then you're still culpable. It's only if you make a mistake as to the law, e.g. you try to smuggle a roll of dental floss into the country, because you think it is banned, that you're off the hook. This is because, as you say, it's not actually illegal to bring dental floss into the country, even if you thought that it was; your weird beliefs don't define what the law is.

Note, of course, that that's a matter of criminal law. Civil law can operate differently. For example, if you tried to steal a car that belonged to you, then there's no tort, since no one was harmed. And in any kind of law, mistakes involving intent may be relevant (though usually not in copyright law, actually, which is strict liability); for example, if you drive off in a car because you honestly thought that it was yours, and it wasn't, your innocent intent can save you.

Re:Trying to break the law is not a crime.

[geekboy642]

I think, regardless of law or morals, if you're on the side opposing the RIAA, then you're the good guy. The honest acceptance of pure tribalism makes life so much simpler.

Re:Trying to break the law is not a crime.

[Anonymous Coward]

Copying entire songs on the internet does not fall under fair use.

sure it does. I play each song equally making it quite fair!

Re:Trying to break the law is not a crime.

[The Empiricist]

Nobody is saying he's not at fault, just that he hasn't committed copyright infringement according to the law. Attempting to commit a crime and failing is not illegal (though you might be committing another crime in the attempt), you have to actually commit a crime.

Sure you can. In the People v. Dlugash, the Appellate Court of New York held that a defendant could be found guilty of attempted murder for shooting a dead body that the defendant thought was still alive (but that might be dead). The court upheld the Legal Impossibility defense: the defendant was not guilty of actual murder. But the defendant was not completely off the hook.

All this talk of crime may be beside the point because these suits are all civil in nature, not criminal (remember O.J. being acquitted for murder but being found liable for "wrongful death?"). The burden of proof in civil cases is only a "preponderance of evidence," scales balanced between plaintiff and defendant, not the "beyond a reasonable doubt" requirement of criminal conviction, scales heavily tilted in favor of the defendant.

The judge might decide that the Howells have a defense based on the assertion that only the RIAA-authorized investigators downloaded the copyrighted materials. On the other hand, lets say that you drop off a really nice suit with the dry cleaners. You only authorize them to clean the suit. You think that they might be lending clothes out before they are picked up a la Seinfeld. Thus, you hire a private investigator to go the dry cleaner and offer to rent the really nice suit. The dry cleaner does not know that you hired the private investigator. The dry cleaner takes the private investigator's offer, exchanging the suit (for a short period of time in exchange for some payment). You sue.

Would the judge deny relief to you because you had authorized the private investigator to make the offer?

Re:Trying to break the law is not a crime.

[cgenman]

He did more than just plan to break the law. He attempted to.

Making copies for other people would be attempting to break the law. His action, by itself, is not breaking the law.

If you put drugs into a gumball machine, and stuck the gumball machine somewhere, you haven't *actually* sold anything until you've actually sold something.

He had to do absolutely nothing to actually break the law except wait for someone to download one of those files.

And, as you so rightly point out, if nobody has downloaded the file then nobody has actually broken the law.

One of the potential offshoots of this argument relates to the ridiculous fines being leveled on offenders. If you put up a moderately sized MP3 collection... let's say 1,000 songs, you don't actually have to have all 1,000 downloaded to be hit with full infringement value. They may only have had 5 or 10 downloaded total. If you're a music fan (aka college student) and you put up 300,000 songs, at 175$ minimum fine per song you've got a 52 million dollar fine. If, however, it can only be shown that you've actually uploaded 100 songs to various people, you're only liable for 17k dollar fine. This is arguably a hell of a lot more in-balance. But even then, that keeps liability to the level of actual infringement, which seems more in keeping with regular legal practices. Of course, the RIAA have been known to go after 150k dollars per MP3, but that's still another issue.

Re:Trying to break the law is not a crime.

[Kilz]

Thats just it, there is no law that says making a copyrighted work available is against the law. The law says you have to distribute it to someone to break the law.
That the RIAA will have a hard time proving it happened isnt the defendants fault, he doesnt have to help the RIAA prove he did anything. The RIAA has to prove he distributed the file to break the law. What might happen , or if he wanted to break the law makes no difference.
An example. If I want to run red lights in my car, and place a sign on the car saying "I want to run red lights". I can drive down the street. But until a cop sees me actually run one I cant be convicted of a traffic offense of running a red light. Its not against the law to ride down the street wanting to run red lights, even if I advertise I want to do it. Neither can the cops pull me over and say because they are going off duty and cant see me drive I should get a ticket for running red lights anyway.

Re:Trying to break the law is not a crime.

[fahrbot-bot]

Attempted murder is a crime because some legislature passed a law criminalizing it.

Although, an actual attempt has to take place (and presumably fail) in this case, otherwise you're talking about something else. Simply thinking about killing someone (and in many cases even threatening) isn't a crime. Otherwise, we'd *all* be in trouble :-)

Re:Trying to break the law is not a crime.

[Wonko the Sane]

Threatening would more often fall under assault than attempted murder.

The main point that the law defines many murder-related crimes: performing it, attempting it, planning it, threatening it - but for copyright infringement only actually doing it is illegal.

Re:Trying to break the law is not a crime.

[Casualposter]

As the law and the courts have repeatedly stated. . . "attempting" to violate the copyright act is not a crime and is also harmless to the copyright holder. SO it is legal to put your files in a shared folder. However, if you do that AND someone unauthorized by the copyright holder makes a copy of the file, then you are liable for a violation of copyright law.

Re:Trying to break the law is not a crime.

[webmaster404]

only seems logical that serving copyrighted files you dont own to the entire world should be illegal also.

You mean that right now it is about serving copyrighted files to the world with little evidence that it took place. If this becomes precedent it will become standard to have almost no evidence. It has always started out small with these things. Think back 4-5 years ago when Richard Stallman and others spoke out about DRM and trusted computing, everyone laughed at them and ignored it, till it came true. It is always the radicals that will point towards the right direction, today it may be this case, but what about tomorrow?

Re:Trying to break the law is not a crime.

[tftp]

There is a crime of attempted murder. There is no crime of attempted infringement (an infringement is not a crime to begin with.) As Yoda would say, "you infringe or you do not, there is no try."

Re:Trying to break the law is not a crime.

[rcw-home]

It's just a fairly low priority for the DOJ is all.

But but but but teh INTERPOL has expressed its concern about motion picture and sound recording policy to all of its member national police forces!!!11111one!

TEH INTERPOL!

Re:Trying to break the law is not a crime.

[schon]

The distributor's computer creates the unauthorized copies at the request of the client computer. So you're suggesting that the RIAA file charges against the computers then?

The thing is that the *PERSON* who is making the unauthorized copy is the person doing the downloading.

Re:Trying to break the law is not a crime.

[celle]

Does anyone explain how these programs work? The file receiving directory is the same as the transmitting directory by default, you often can't separate the two functions. Most people set the receiving directory to their music collection directory so they don't have to move the files around once they get them. Hence, their files are public by default because the transmission and receiving point is the same. Malice has nothing to do with it as its just a function of the program that the user has little knowledge or control of besides pointing the program to some other directory which would then be their music collection and still shared out. The RIAA is playing on the design of the program, which is to make files(information) available on the network, any files, to anyone. Thats why its called filesharing, by design, what you receive from everyone else, everyone else can receive from you.

Will someone show the judge how the program works and the way it does its thing. The guy didn't intend to break the law he was using the program for downloading and probably didn't realize the program auto shares everything you get and whatever else is in the receiving directory.

Re:Trying to break the law is not a crime.

[TimboJones]

Yeah, big lose for citizens on all that stuff DARPA did...

Re:Trying to break the law is not a crime.

[LeafOnTheWind]

As we already explained before - attempted murder is a special case. This is because of the nature of our criminal justice system - namely that each criminal offense has two sections: actus rea and mens rea. By shooting someone who she thought was alive, she fulfilled the mental part of the crime, mens rea. Now, because the law is defined as "attempted murder" it is literally punishing you for committing a possibly deadly act with the requisite mens rea. This is most unusual, as the actus rea in this case is largely dependent on the mens rea. In most other cases, they are separate - in copyright, for example. Copyright infringement is defined with a clear actus rea which the defendant in this case in no way fulfilled. Thus, unless I'm missing a technicality in the wording of the law, that would present this defendant as manifestly innocent.

Note: IANAL, I have only had a small amount of informal training.

Re:Trying to break the law is not a crime.

[Grayraven]

Actually, libraries can't even have books because people can make copies of them!

Re:Trying to break the law is not a crime.

[arkhan_jg]

Copyright infringement is not a criminal offence, it's a civil one. At it's heart, the copyright owner is suing the alleged filesharer for monetary loss, by making available their works without permission. However, by only showing that he 'made available', without any evidence of distribution actually taking place, no harm can be shown. It therefore seems unreasonable, especially given that is how the law is drafted, to order the man to recompense (plus punitive damages) the copyright holder for monetary loss, when no monetary loss can be proven.

Re:Trying to break the law is not a crime.

[aussie_a]

Lets say putting a photocopier there is copyright infringement, aren't libraries exempt anyway thanks to some special law?

Re:Trying to break the law is not a crime.

[hacker]

Attempting to break the law is not against the law, unless there is specifically a law that makes it a crime for you to attempt to break the law (and convict you even if you don't succeed).

I'll give you one example: Suicide

Re:Trying to break the law is not a crime.

[Torvaun]

It's a shame you're an AC, because this is the best analogy I've seen yet for 'making available' as a crime.

Re:Trying to break the law is not a crime.

[erikharrison]

Would the judge deny relief to you because you had authorized the private investigator to make the offer?

Of course not, but if you read the brief that is specifically addressed. The Plaintiff's burden when an investigator is hired is to either have the investigator witness infringement by third parties, or provide sufficient circumstantial evidence that infringement seems likely.

The first didn't occur because of the nature of Kazaa, and the second didn't occur because the sheer number of Kazaa users makes it unlikely that singles from multiplatinum records were downloaded from these specific users - if all you are sharing are files of which there are _hundreds of thousands_ or readily available copies in the same network, it is rather unlikely that anyone other than the investigators themselves downloaded the songs.

It should be pointed out, of course, that the EFF's filing is specifically to prevent summary judgment in the RIAA's favor, not to ask for favorable judgment for the defendant. Summary judgment in this case would constitute (in the opinion of the EFF) a dangerous and untenable expansion of copyright law. The RIAA seems to agree since they've removed these very claims from suits filed in the last five months.

Re:Trying to break the law is not a crime.

[Anonymous Coward]

That depends on what you mean by serving. Serving by my definition, would be actually transmitting the copies to someone, which is illegal. All the RIAA seems to have evidence of is that he offered the files, and they don't have evidence that he served the files to anyone other than the RIAA authorised agents, which doesn't count because they were authorized to make the copy. The real point being argued here is the standard of evidence to prove someone guilty of copyright infringement.

Re:Trying to break the law is not a crime.

[aegisvirgae]

Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.

That is actually not correct. There are several attempt crimes. An attempt occurs when someone makes an overt act that takes their involvement beyond mere preparation to commit a crime. I agree with your the burden is on the accuser part. However, one of the tests for attempt is the essential element test. This says that if at any time every element that is essential to the commission of a crime is present, then the crime of attempt has occurred. Let us reference another of your sentences:

You say he admits to doing everything he needed to do to have commit copyright infringement... if that's the case, then he did commit and he's guilty.

Certainly looks like you agree he performed every essential element. That's an attempt. It is a crime if the federal code allows for an attempt crime for infringement, but that's not committing infringement unless he infringed.

Re:Trying to break the law is not a crime.

[Scudsucker]

That is actually not correct.

Yes, it is.

There are several attempt crimes.

Not for copyright infringement there isn't.

Re:Trying to break the law is not a crime.

[aegisvirgae]

It may be true that there is no crime of attempted copyright infringement. That is NOT what you were proposing however.

You said:

Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.

That is not correct. Attempting to break a law is a crime when the legislature places it as a crime. Sometimes a legislature determines that only certain crimes can be attempted. And yes, criminal copyright infringement may not be covered. I don't know because I have not studied the case law or the statute. However, your generalized statement is incorrect. Some states don't even require that a specific crime's attempt be codified. There are several states with general conspiracy and general attempt statutes that state that ANY thing in the criminal code may be the object of a conspiracy or an attempt. I do not agree with your generalized statement that "Even attempting to break the law is not a crime." This is false. I hope this clarification helps you understand what I disagreed with.

Re:Trying to break the law is not a crime.

[Scudsucker]

Hasn't anyone realized that whenever the government tries to do something involving technology it is us, the citizen that always, always, always loses?

Thanks for the boilerplate anti-government rant. Yes, because the space program was such a bust, not that it made thousands of workers good money and brought technological improvements that we enjoy to this day. Or the Internet, that was *such* a lame idea. Those Koreans really hate them 100 megabit connections to their homes for $20 a month. And the FCC has done such a piss poor job of keeping broadcasters and devices from interfering with eachother.

As soon as this country gets beyond childish soundbytes and slogans, the better off we'll be, as government action can be good for all players involved. Take HDTV for example - the technology has been around for decades, but has only really taken off in the last few years once standard out of 40+ was hammered out. Adoption was glacial, sets have been incredibly expensive. This is because no one but rich early adopters were willing to spend $4,000 on a TV that might make for a very large, very expensive boat anchor in a couple years.

Compare that to a hypothetical situation where the FCC was given the authority to force manufacturers to come to a standard. It would have been a win for consumers as they could buy an HDTV and know that it would still work in 5 years, barring malfucntion. It would have been a win for the industry as they could have been selling HDTV's at the current rate a decade ago. People could have been upgrading to HDTV's at the same time they were upgrading their video library from VHS to DVD. The switch to digital broadcasting would be far less painful as most Americans would already have a hi def set by now.

But nope, we "let the marketplace settle it", to the cost of both consumers and the marketplace.

Error, Nig Robinson, Error!

[Anonymous Coward]

Lost In Harlem

Amicus Curiae

[Graham MacRobie]

Had to look it up myself...

amicus curiae - A friend of the court; a nonparty who interposes, with the permission of the court, and volunteers information upon some matter before the court.

Re:Amicus Curiae

[Anonymous Coward]

Had to look it up myself.

The Court: A court is a public forum used by a power base to adjudicate disputes and dispense civil, labour, administrative and criminal justice under its laws. In common law and civil law states, courts are the central means for dispute resolution, and it is generally understood that all persons have an ability to bring their claims before a court. Similarly, those accused of a crime have the right to present their defense before a court.

Look, if you don't know basic terms used in a society, that means you are a fucking moron. Stop karma-whoring, bitch.

Will all music eventually be free?

[dasButcher]

OK, the internet killed the record store. What kills me is that the music labels are still searching for the magic formula. I was reading in Baseline (www.baselinemag.com) that Sony finally dropped its digital rights management protection on CDs, clearing the way for greater digital distribution. Is this the beginning of the end? http://blog.baselinemag.com/security/content001/encryption/sony_abandons_drm_and_its_about_time.html

Re:Will all music eventually be free?

[ScrewMaster]

OK, the internet killed the record store.

Yes, and on top of that Video killed the Radio Star. I suppose the RIAA's logic would say that by posting that link I just facilitated copyright infringement.

What kills me is that the music labels are still searching for the magic formula.

What they're searching for is a magic button that will restore their iron-fisted control of content distribution. What's taking so long is for them to realize that the button doesn't exist because there's no such thing as magic.

Re:Will all music eventually be free?

[r_jensen11]

The internet didn't kill the record store. Big-box retailers like Best Buy did.

Bit off topic..

[pionzypher]

But is anyone else worried about this guy going to bat without representation and possibly allowing precedent to be set by his actions? Is this considered by those who would consider later cases based upon the decisions that will be made in this one?

Re:Bit off topic..

[kramer]

Trial courts don't set precedent. Courts only set precedent for courts of a lower level. Trial court is the lowest level, therefore trial courts don't set precedent.

There are a few minor variations to this general rule, but they don't really apply here.

Re:Bit off topic..

[larry bagina]

What about Jamie? She went to court with the facts against her, she intentionally turned over the wrong drive to investigators, and her defense consisted of "I didn't do it". Result -> the first RIAA jury win. There are dozens (maybe hundreds) of people wrongly targeted by the RIAA, but that selfish bitch made it harder for everyone.

But yeah, this clown was almost as bad.

Re:Bit off topic..

[cpt kangarooski]

That's incorrect. A trial court certainly may establish a precedent; it's just that the precedent would be influential, rather than binding. Influential effects of precedents are very common, in fact. For example, one appellate court might follow in the footsteps of another appellate court at the same level; courts in one state may look at the opinions of courts in another state as to similar laws; a state court might find that the interpretation of state law by a federal court is worth following; a court in one country might take guidance from a court in another country, and so on.

Frankly, people cite trial court opinions all the time. An appellate court opinion to the same effect is better, of course, but that doesn't mean that the former isn't a precedent.

Re:Bit off topic..

[Kjella]

I think any court system will take into consideration other cases dealing with the same issues, it'd border on the absurd not to. It is the binding precedents that differentiate the US system from those that at least in theory base it solely on the law. I in general prefer the Norwegian system, both parties can appeal which means unresolved matters of law end up at the supreme court rather quick and the lower courts listen. From my understanding of US law, somone has to be ruled guilty all the way to the top before the supreme court can come in and clear this up.

Re:Bit off topic..

[cpt kangarooski]

From my understanding of US law, somone has to be ruled guilty all the way to the top before the supreme court can come in and clear this up.

First, this is a civil matter, so the issue is whether or not the defendant is liable; guilt is not at issue.

Second, in the US system -- and I'm simplifying things here, a bit -- any party can appeal if things are not entirely to its liking, though in practice, it is usually one or the other. But for the US Supreme Court (as distinguished from the various state Supreme Courts), it can choose which cases decided below it wishes to hear, in order to make the most of its limited resources. IMO, this is not a question they would probably wish to spend time on unless there is a circuit split (i.e. various parallel appellate courts adopt different interpretations and the S.Ct. has to step in to set a single standard for everyone).

It is the binding precedents that differentiate the US system from those that at least in theory base it solely on the law.

No, we're in the English common law tradition, and most English-speaking countries do the same thing, AFAIK. Frankly, I've never understood how the civil law system you refer to can work on any reasonable basis. I guess it takes all kinds.

Re:Bit off topic..

[Kjella]

No, we're in the English common law tradition, and most English-speaking countries do the same thing, AFAIK. Frankly, I've never understood how the civil law system you refer to can work on any reasonable basis. I guess it takes all kinds. Much the same way, of course they look the higher courts and what they have done. However, if they disagree with the precedent for the case at hand they are free to rule differently. Those kinds of cases are just begging for an appeal, where the appeals court will typically say "Umm... you're right, we didn't mean for this to apply here" or "No, we really mean it to apply here as well". It usually goes to scope and applicability, rarely to the core issue decided by the supreme court, but that too has happened. It is my impression that courts in the US are a bit too interested in broadly applying precedent even when it shouldn't.

To take a specific example, we have a law against "offensive" pornography that until only a few years ago applied to sale of hardcore pornography. City court - aquittal against precedent. Appeals court - aquittal against precedent. Finally the supreme court decided to rehear it - obviously, since it went dead against precedent set in the 1970s - finally aquittal again. The point is, the lower courts don't take it as binding. They certainly took the supreme court precedent into consideration, but decided that in their own opinion that this was not offensive. It's probably a bad example because it's almost a change of law through the court system, but it's an example that precdent is *not* binding.

Re:even my lawyer smokes it

[ScrewMaster]

--- The time to legalize marijuana in California is at hand ---

What that has to do with the RIAA and the Howell case? Dude, if you want to spam Slashdot do it in some forum that at least has some relevance to your topic. Otherwise you're just irritating people and you'll get modded to oblivion anyway.

Besides, the way things are going, Californians will be able to legally smoke pot, but they'll be in the dark because they won't have any electricity.

getting old

[bwy]

These stories are getting old. We've been hearing about stuff like this for years now. At some point there has to be a truce. I would like to think that most people want to enjoy music while respecting the rights of people who make the music to make a living. I'm not sure what the answer is, but perhaps it is time for the entire middle tier (the record labels) to get ripped out of the equation and for the RIAA to be dissolved. The Amazon store shows progress- at least we are free from DRM hell.

I'd like to see a model where when you pay for music you actually receive a license of some sort for the given song or album. This would be good for a lifetime, and when a new media format comes out, you could get the album or single reissued to you just pay for the price of the media and handling charges. As it stands I had some albums on cassette that I subsequently bought on CD and eventually lost the CDs and ended up buying the digital DRM version. I'll also have to buy the non-DRM version now if I want it. This is total B.S. and seems to be in direct contradiction to the argument that you aren't "buying music", you're "licensing" it.

Re:getting old

[$RANDOMLUSER]

Dude. If you're gonna talk reasonably then you can't have a conversation with the RIAA. The current generation of "leaders" there are the guys who got rich (re)-selling Beatles and Zepplin CDs to the people who already owned (and didn't realize they were going away) the LPs of those same albums. These clowns have an "I'm entitled to make a shitload of money" attitude, not based on the quality of the product they're putting out today, but on the format change that put the last forty years "greatest hits" on sale (and desireable) all over again.

Re:getting old

[ScrewMaster]

The "middle tier" are the problem, and the only real problem, and I believe that adding more law is not a solution, in fact we need to repeal a lot of damaging copyright revisions put in place at the behest of big media.

Face it, the "compensating the artists" mantra is just a smokescreen put out by big media, and we shouldn't even be discussing it as an argument against downloading. As long as there is a middleman (or in this case, multiple layers of middlemen) pigging all the copyrights and picking off the bulk of the proceeds for themselves there will be no question of the artists ever being fairly compensated. That's also why the RIAA's plaintive cries of "we're only defending the rights of the artists!" and "downloading is stealing!" largely fall on deaf ears. I mean, once it got out that the music studios were grabbing the lion's share the profits, it became impossible to convince anyone with a broadband connection that they were taking food from the mouths of the artists. At best they were taking Lamborghinis from the garages of the executives.

The big studios are crooks, all of them, who have been stealing from their own suppliers (the musicians themselves) for over a century. It's about time something better replaced them entirely. Once your middle tier is out of the picture, artists will get compensated because they'll own the rights to their own music and will be back squarely in the driver's seat. Believe me, once I know that my hard-earned money isn't lining the pockets of people who contribute nothing to the music, I'll be more than willing to pay.

Re:getting old

[russotto]

These stories are getting old. We've been hearing about stuff like this for years now. At some point there has to be a truce.

No, there doesn't. And it's like the middle east; if there is a truce, it will only be until one side sees an advantage in breaking it.

I'm not sure what the answer is, but perhaps it is time for the entire middle tier (the record labels) to get ripped out of the equation and for the RIAA to be dissolved.

That's a good idea, but that's not a truce; that's victory.

Re:getting old

[Lunarsight]

I do agree that a middle ground needs to be reached. Should an artist have some right to control how their music is distributed? Yes.

While I'd argue P2P potentially could be used by innovative artists to get all sorts of exposure for their music, the ball should be in their court whether they want to allow this or not. (A lot DO allow this - take all the artists who post full albums to Jamendo, for instance.)

As far as the corporate record labels go, they need to stop extorting money out of consumers by threatening to sue them over unfounded piracy allegations. I have sworn I will not give one red cent to them until this ends.

Furthermore, the record labels need to apologize. I'm not talking some wussy, spin-doctored apology like the one the Warner CEO gave. I mean a -real- apology.

While they're at it, they should completely dissolve the RIAA. The damage done to the RIAA's reputation is irreparable. They should create a new entity and start fresh [and not do any of the obnoxious things the RIAA did!]

---
Mike/AMUC
http://www.soundclick.com/AMUC

Re:getting old

[cdrguru]

Nobody is going to respect any rights in the digital domain, ever.

We've grown up a generation that thinks if it can be sent over a wire, it should be free. If I can find a way to download it, I took it for free. Therefore, I'm a winner and the people paying are suckers and losers.

If you honestly believe that "content creators" and their agents should have any rights, you must be over 30. I'm over 30 but I don't know many people under 30 that believe that - the Internet is free, everything on it should be free and whatever you can download is yours for free. Or so the thinking goes.

I do not see any "middle ground" in this. Nor do I see a good way to extract revenue out of recorded music or movies that can be transferred digitially. Back in the 1980s it was a common belief that new Apple II games would sell two copies, one on the East Coast and one on the West Coast - everyone else would get their copy via the BBS network. This is where we are with music today and shortly to be there with movies.

I think the entire system is headed for a crash and it will be interesting to see what can be cobbled together from the wreckage.

Re:getting old

[cdrguru]

Why would anyone ever, ever pay after experiencing half a lifetime of downloading for free?

The "artists" better find some other way of getting paid other than making music and selling recordings. Begging on street corners with a guitar works.

No way is anyone under 30 I know going to some day wake up and decide they are going to start paying for music suddenly.

Re:getting old

[ScrewMaster]

Well, I don't know about. Sure, there are people that would never think of buying anything if they don't have to, but I don't believe that is necessarily the bulk of Internet users. Netflix still makes big money even though movies are online for free: I have an account with them though I'm perfectly capable of going to mininova or ThePirateBay and grabbing a movie with Azureus. Furthermore, downloading songs via Gnutella or Bit Torrent isn't very convenient for most people and the quality is uneven at best. There's a huge untapped marketplace of people that can barely use a computer who still like music, and have disposable income available to spend on it. IF there was a well-designed service that could give me all the DRM-free MP3 downloads I wanted for twenty or thirty bucks a month I'd cheerfully hand over my Visa number. But there isn't, and don't bother mentioning iTunes. See, it's not just a matter of free vs. not-free ... it's that not free is outrageously expensive for what you get and the whole P2P phenomenon is a reaction to that.

Re:getting old

[Lunarsight]

Sadly, you're right - people kind of expect anything they find online to be free.

However, I think even if people were to not share music of musicians who didn't want their music to be shared, capitalism would begin to make these musicians obsolete anyway.

Those musicians who give away their albums online as a promotional tool, and then find other ways of cashing in [live shows, etc.] - they have a potential competitive advantage over those musicians who want consumers to purchase their music first before hearing the majority of it.

I think if you can get an entire album on somebody's iPod, that's a great deal of exposure for you (especially with those iPod users who like to use the 'shuffle' playlist.)

--
Mike/AMUC
http://www.soundclick.com/AMUC
*Old fogey / Age: 32*

Re:getting old

[Anonymous Coward]

The artists generally don't get paid for making music and selling recordings; the companies that make up the RIAA pocket most of the money from that. It's why they're screaming so loudly about the "infringement"; not because the artists are losing money, but because THEY are losing money.

Most artists make money via touring and promotion.

Re:getting old

[bwy]

We've grown up a generation that thinks if it can be sent over a wire, it should be free. If I can find a way to download it, I took it for free. Therefore, I'm a winner and the people paying are suckers and losers.

This is a very valid point. Also, look at how most people use the Internet and how much those things cost the people the run the services. Most of it has no revenue model other than advertising. Trying to get people to pay to use a service over the net is difficult. I think that most people think that they can fire up Google Maps for free because they pay $50 for a broadband connection. I am soooo skeptical of Google- IMHO they may be considerably overvalued. They give just about everything away for free and I don't feel that an advertising company (lets face it- that is all they are) can really be worth as much as companies like Coca Cola that have such a stronghold in their marketplace. It isn't likely a new soda will come along that will cause Coca Cola to go crashing to the floor. I'm not sure Google has the same strangle-hold in their market space however. Maybe they do, maybe I'm wrong. Maybe 20 years from now the whole world will be nothing but Google.

I know that is a small tangent from digital content but I think the two are tied at the hip. By the same token, many people think their $50 broadband bill is what entitles them to fill their hard drives with copyrighted content. Either way I think you are right- this whole thing is going to crash.

Re:getting old

[Anonymous Coward]

Part of the problem from the RIAA's side is that is really hard for joe six pack to feel guilty 'stealing' music.

Anybody whos done even the most cursory research into known that the RIAA has raised taking money from the artists to an art form.

Come on I dare you, work your self into a guilt trip for that music download when you know that most artists see 10% or less of that album sale. If I sent each artist their 'cut' for each song I download its a good bet my postage costs more than their share.

Re:getting old

[aussie_a]

I would like to think that most people want to enjoy music while respecting the rights of people who make the music to make a living. I'd like world peace. Sadly if the majority of people at Slashdot have their way your thought will be as likely as mine.

Re:getting old

[Anonymous Coward]

"I would like to think that most people want to enjoy music while respecting the rights of people who make the music to make a living"

I wish this was the case but it isn't. Read enough slashdot waffle and you will realise that most of the people whining and swearing about DRM and the RIAA, just want free stuff. they tried to make it about the cost of music, till itunes bought it down, then they tried to make it about DRM, and that's going, now they have no excuses left and STILL they pirate stuff all the time, and kid themselves they are ;'sticking it to the man' or showing how there needs to be a 'new business mode;, where in reality, they are just a bunch of leechers and thieves.

Personally I think the whole generation is fucked. I wouldn't employ anyone under 20 to do anything. the 'I deserve it all for free' mentality means none of them are employable.

The clients mis-advertise a lot anyway.

[Egdiroh]

I can't say I'm 100% up to date on the current batch of p2p clients but with many of the earlier generation there were common issues of false advertising:

1. Mis-labeled song. Say it's something it's not.

2. Clients set to not allow downloads. A lot of the older clients would let you set the maximum number of downloads to 0. Your stuff would still end up indexed, but no one could download.

3. Host that were fire-walled off from letting people download. The communication for a lot of these networks isn't on one port from one host. So you can have clients advertising content that you can't actually get because of firewalls.


I'm not actually pro-copyright infringement, but a demonstration of advertised content being un-downloadable really swaying a jury. Or better yet I would love the RIAA to sue someone who wasn't sharing because of firewalls and who had meticulous firewall logs, so that they could get roasted.

Technical barriers to copyright violation

[ozzee]

Whenever I read the RIAA stories, I keep on thinking, what about a situation where I can communicate some seemingly random bits and someone else makes the effort to reassemble them.

Say for example, I take a digital representation of a copyrighted work, say an mp3 file, and then I proceed to use RAID6 algorithm where I split the file up into 6 chunks, any 4 of which someone can re-create the file. Distribution of 3 of those chunks by me is not a copyright violation since the original work cannot be reproduced. What if someone else unknown by me releases the other 3 chunks. Someone else may retrieve any 4 of those chunks can now reproduce the original work. Either of the suppliers didn't supply the digital bits to create the works.

Similarly, if I produce a one time pad, the length of the mp3 file and I publish it as "Best of Santana", I have in theory not provided anything other than an unintelligible stream of random bits. However, if someone publishes "the key" that once xor'd with the file I originally published, generates the original file, who is in violation ? I centainly can't be, because I just created a random set of bits, the other person in theory can't be because they only produced a key.

The violator may be the downloader, the person who takes those files and re-creates the original but they're alot harder to catch in this scenario.

IANAL so I'd like to hear what the L's in this discussion have to say about this.

Re:Technical barriers to copyright violation

[muuh-gnu]

> I keep on thinking, what about a situation where I can communicate some seemingly random
> bits

Your "what if" has already been implemented and running rather well: The "Owner Free File System". (http://wiki.offdev.org/Main_Page)

Re:Technical barriers to copyright violation

[ozzee]

Thanks, that's a very interesting link.

Still, I'd like to know what a judge would think of this. Mr RIAA is not going to roll over and play dead. What would their argument be ? In this scenario, the RIAA would have to prove I pushed copyrighted bits. However with a one time pad key, there is literally no information I am passing. Does a discussion about the hypothetical amount of information passed even have any weight in something like this. Not only that, my one time pad encrypted file is an original work. If the RIAA did download it, it would be a copyright violation.

I'm not encouraging the use of this, it's really just a curiosity of mine.

Re:Technical barriers to copyright violation

[Anonymous Coward]

This is not a computer science problem. It's a legal problem. One level of indirection doesn't help you here.

Re:Technical barriers to copyright violation

[cpt kangarooski]

Say for example, I take a digital representation of a copyrighted work, say an mp3 file, and then I proceed to use RAID6 algorithm where I split the file up into 6 chunks, any 4 of which someone can re-create the file. Distribution of 3 of those chunks by me is not a copyright violation since the original work cannot be reproduced.

Well, you copied, and that's infringing for sure.

Is it possible for part of the work to be reconstructed from less than four chunks? Even copying and distributing a small part of the work can be infringing, so this is important.

What if someone else unknown by me releases the other 3 chunks.

It'll be difficult to convince anyone that you weren't working together in some fashion. The argument against liability exists, but it seems very weak, and it's unlikely that the judge is going to be your friend or anything. Frankly, if none of the three secondary liability theories can be made to work for this hypo, I would be surprised if a court didn't craft a fourth just for you.

However, if someone publishes "the key" that once xor'd with the file I originally published, generates the original file, who is in violation ?

The key-maker, so long as your bits were truly randomly generated, and so long as the key wasn't similarly created. If XORing two randomly generated numbers happens to produce a work, then that's just a bizarre coincidence, similar to intelligible output from monkeys with typewriters. But if the key-maker copied from the original work in order to create a key that would produce it from your pad when XORed, which is far more likely than him just randomly coming up with that, then that's infringing. The actual form that the work takes isn't all that important, so long as it can be perceived, either naturally or with the aid of a device or process. Whether a copyrighted sound recording is in wav, or FLAC, or ACC, or MP3, or wax cylinder, it really makes no difference; whether lossless or lossy, again, no difference.

And again, while you're skating by, you're not going to be making friends, and secondary liability is a real threat.

The violator may be the downloader, the person who takes those files and re-creates the original but they're alot harder to catch in this scenario.

Him too. Downloaders are usually liable for copying. Distribution is far from the only kind of infringement. (And technically, providing files on a server is really not distribution; it's public performance or display, but that's another fight altogether)

Re:Technical barriers to copyright violation

[wirelessbuzzers]

Disclaimer: I am not a lawyer, but I did talk about this with a lawyer a few years ago.

Say for example, I take a digital representation of a copyrighted work, say an mp3 file, and then I proceed to use RAID6 algorithm where I split the file up into 6 chunks, any 4 of which someone can re-create the file. Distribution of 3 of those chunks by me is not a copyright violation since the original work cannot be reproduced. All the chunks are derivative works of the original file. Distributing them is a copyright violation.

Similarly, if I produce a one time pad, the length of the mp3 file and I publish it as "Best of Santana", I have in theory not provided anything other than an unintelligible stream of random bits. Probably true, since the length of the file isn't generally copyrightable.

However, if someone publishes "the key" that once xor'd with the file I originally published, generates the original file, who is in violation? The other guy is in violation. When he made that "key" (which is really the ciphertext, not the key), he prepared a derivative work of your pad (which is probably not copyrightable) and of the original song.

With a one-time pad, an outsider can't tell which is the key and which is the ciphertext. That means that without some sort of external evidence, a court "shouldn't" find either of you liable. Of course, if you and the other guy worked together to do this, you're both liable.

Handling a strongly-encrypted file probably infringes the artist's copyright, even if the key was destroyed. But you have an ironclad defense if you honestly thought it was just a random collection of bits (while ignorance of the law is not a defense, ignorance of the facts can be). Also, if the key was destroyed, the artist has no actual damages; while he could try to sue you for statutory damages, it would probably get thrown out of court.

Re:Technical barriers to copyright violation

[Anonymous Custard]

When you record sound into a digital recorder, it changes from sound waves into 1's and 0's. Then, software can change those 1's and 0's back into sound to be played through speakers. Encrypting those 1's and 0's again so they can eventually be decoded back into 1's and 0's and back into sound is just another form of copying. Your encrypted copy is not an original work, or even a derivative work.

I'm not sure what you mean by "there is literally no information I am passing".

  - You and your friend agreed upon the encryption key information, even if you obfuscated that agreement by letting a third party create the code and you and your friend individually follow that third party's instructions. (such as "use code XYZ for the transfer on Feb 12th.")
  - You encrypted the file, and you passed it to your friend.

The fact that you both discard the key after the transfer (one time pad) does not change the fact that you passed an encrypted copyrighted file.

Of course it'd be very difficult to prove guilt here if you and your friend kept the process a secret. But if you were willing to admit this process to a court, to see if by using "one time pad" encryption you somehow "laundered" the copyright off the music file that you start with and your friend ended up with, I think it'd still be considered copyright infringement.

So to sum up:
  - "one time pad" encryption would make it very difficult for the copyright owner to provide evidence of the infringement
  - It's still copyright infringement

Re:Technical barriers to copyright violation

[VGPowerlord]

IANAL
I'm assuming we're talking about US Courts here since the RIAA was mentioned.

When you create a new file with a one time pad key from, say, a music file, the new file would be a derivative work of the original music file (which may in turn be a derivative work of a CD if you ripped it from a CD). While fair gives us the right to make such copies, the new file inherits the original owner's copyright.

As for OFF, if the RIAA can actually prove that a specific person added a music file to the filesystem, the judge could find the person who inserted the file into the filesystem guilty of copyright infringement. There's also the possibility of secondary infringement for everyone hosting a piece of the original file, although from the sound of it, they don't do so intentionally. However, since part of the intent behind OFF is to store copyrighted files (see quote from their FAQ below), the court may think otherwise.

Why are you doing this?

Good questions. The reasons are as varied as the people who came together here. Some of us find the overwhelming legal presence of the copyright industry a distinct and severe threat to technical innovation. Some of us find the paradigm-shifting concept of a brightnet fascinating. Still, others will back anything that can fight the copyright industrys toe-hold on the free flow of information. Most of us are just insane, though.

Re:Technical barriers to copyright violation

[VGPowerlord]

I'm still not sure how downloaders could be held liable, except on p2p networks.

In order to create a copy, I need to already have a copy in my possession. As an uploader, I do. As a downloader, I don't.

If the articles I've been reading are right, the RIAA has been going after people who have files in their p2p shares.

Re:Technical barriers to copyright violation

[ozzee]

I'm not sure what you mean by "there is literally no information I am passing".

If I generate 1 megabyte of random numbers and call it "The works of JRR Tolkien", at most it may interpreted as satire. It's not even derivtive of any works, if it can be described as a work, it is original.

The fact that you both discard the key after the transfer (one time pad) does not change the fact that you passed an encrypted copyrighted file.

That's kind of the point. In OTP ciphers, the ciphertext and the key are symmetrical, you don't know what is what and you certainly don't know which of the participants copied the original works. The interesting thing is that you can do this with more than two participants making it nigh impossible to find the guy who did "copy" the data.

No question that a copyright was infringed but you need to bring charges against someone, and the law needs to figure out who. If you don't have the "who" then the law is unenforcable.

Re:Technical barriers to copyright violation

[cpt kangarooski]

In order to create a copy, I need to already have a copy in my possession. As an uploader, I do. As a downloader, I don't.

Not quite. A copy is defined in the Copyright Act as a tangible object in which the work has been fixed. So, colloquial uses of the word aside, an mp3 file is not a copy, but the hard drive (or CD, or RAM, etc.) in which the file resides, is. You can't send tangible objects over the network, which means that it is impossible for anyone to download a copy. What actually happens is that the downloader creates a new copy on his end. It is the same as if Alice telephoned Bob, Alice read aloud from a book, and Bob wrote down everything Alice said. Bob's copy is unquestionably a copy, and it was made in an infringing manner, but Bob never actually had Alice's copy at any time.

The interesting thing is that since distribution is the distribution of copies, uploading isn't actually distribution. Sadly, the courts haven't corrected this widespread error yet, and few people have even raised the issue (since it doesn't matter much in the end in your average P2P case). What uploaders are actually doing is performance or display, which, if public, is infringing.

If the articles I've been reading are right, the RIAA has been going after people who have files in their p2p shares.

Yes. They also have been going after certain service providers and software developers. The logic is simple: attack the head of the snake. If an entire P2P network (e.g. Napster, Grokster) can be brought down, this affects many thousands or perhaps millions, of direct infringers. If a person with a file server or who is a P2P uploader is brought down, this affects hundreds or thousands of direct infringers. If a mere downloader -- a leech, who doesn't do anything else of note -- is brought down, this only affects him.

Also, it is a lot easier to find an uploader than it is to find a downloader.

Even RIAA, MPAA, et al have limited resources, so they try to allocate them in the most effective way to pursue their strategy. This means that if a lawsuit can have collateral effects that are beneficial to them, they'll prefer it over others. This is why the first round of suits were against networks et al, and it wasn't until later that suits against uploaders began. It's easier for them to do, and they hope it works better.

I leave it to you to judge how well their overall strategy has worked for them, but this is basically why they've done what they've done.

Re:Technical barriers to copyright violation

[arkhan_jg]

You seem to think that civil law is like a computer language; think of a clever technical loophole, and you'll get off scot free. Factor in that many or most of them are techno-illiterate, and such technical trickery will just be ignored or misunderstood. Next, the court weighs on the balance of probabilities, and frankly nitpicking detail like only sharing the encrypted version may well be seen as an attempt to subvert the law, and probably put the judge against you. They're not after the 'exact and true to the letter' result, but the 'right' result, within the law. The law is incredibly flexible and malleable to its expert users, they're very open to interpretation.

Because it's the intent that matters here

[mark-t]

Copyright infringement is kinda funny... because whether or not infringement depends on the designated purpose of the copy being made (being copied for fair use, for example, being exempt from infringement), the intent of the person actually doing the copying is ultimately what matters with regards to determining whether copyright infringement actually applies. Intent is difficult for a court to determine directly, so it must be inferred by the activities of the person. By that reasoning, it seems evident to me that willfully putting a copyrighted file in one's shared documents folder, with full knowledge that would enable other people to download it, even if no downloads actually occurred, is copyright infringement. (The infringement being their making of the copy that they put there).

Re:Because it's the intent that matters here

[Anonymous Coward]

You start to make, but then miss, an important point: the RIAA need prove actual infringing download because the circumstances matter. What if he put it in his shared folder so his students could write a piece of scholarly criticism of the work? What if he made the only download for purposes of getting it on a computer hooked to a DAT machine?

Re:Because it's the intent that matters here

[mark-t]

Actually, the infringement would not be in the downloading, the infringement would actually be in the making of the copy on the hard drive in the first place. Private use exemptions to infringement could not reasonably be said to apply when the person willfully puts said copy in a publicly accessible place.

Re:Because it's the intent that matters here

[cpt kangarooski]

Actually, copyright infringement is a strict liability offense. Intent usually is totally irrelevant.

By that reasoning, it seems evident to me that willfully putting a copyrighted file in one's shared documents folder, with full knowledge that would enable other people to download it, even if no downloads actually occurred, is copyright infringement. (The infringement being their making of the copy that they put there).

What if a year passed between making the copy and putting it there? This leads into an interesting question of whether a fair use analysis should look at the facts as they were at the time of the use, or if it should consider facts from other times. I think that the latter is what we can expect to occur, though I don't think that it should.

Re:Because it's the intent that matters here

[celle]

You forget that often the download and share folders are the same and most people are to lazy to move files themselves so they would just set their download folder right into their collection. So guess what, instant sharing without intent. All this shit just to save some file manipulation. Somehow I doubt the intent is there, without it they've got nothing.

Judges, wake up, you're being screwed with along with the rest of us so why don't you take away these companies corporate charters as the price for doing this shit. Talk about a waste of taxpayer money and court time.

Re:Because it's the intent that matters here

[mark-t]

The "intent" that I'm talking about isn't any sort of willful intent to commit infringement, it's intent with regards to the purpose for which the copy is made, which can be determined quite objectively. For example, if downloads are automatically shared by the software, then any downloads are automatically designated also for uploading, so the copy is infringing, even if the person who was running the computer this was on actually had no personal intent to break the law.

Re:Because it's the intent that matters here

[Anonymous Coward]

That's an interesting idea, but it seems contrary to property law in general. I cease to own and control something just because it's in a publicly-accessible place? Sounds like a theory Yogi Bear would love- you left this picnic basket in the public park while you went into the bathroom, therefore you're responsible for Yogi eating its contents.
 
So, on the other hand, what if some but imperfect security measures are put on the file- at what point can it 'reasonably apply' as you say? Is htaccess enough? Do you need to know the secret port-knock?

Re:Because it's the intent that matters here

[mark-t]

Private use can be reasonable said to apply when either:
1) It actually _IS_ private. That is, nobody else could have ever accessed it without having physical access to the medium on which the copy was placed, and that the creator of the copy does not give away, rent, or sell it to anyone else;
or 2) It cannot be accessed without physical access to the copy by anyone other than the person who created that copy, which means that the person who created the copy must, at an absolute minimum *NOT* place it in any directory on their computer that is, by their knowledge, being shared with anyone else, and that they not willfully divulge information to anyone else which would enable them to access it. I would maintain that it is the computer owner's responsibility to be aware of any and all directories that are being shared with others by virtue of any software that they are aware of that is installed on their computer. If a person is too computer illiterate for them to be aware of this, too bad.

Car analogy!

[mangu]

He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.

In the grand /. tradition, let's try a car analogy. Is leaving the keys in your car a crime? Are you stealing the car or the guy that drives away with it?

Or how about a computer analogy? If you have a computer with Windows in it and without antivirus, etc, connected to the internet are you guilty of a crime?

No matter how easy you make it, the guilty party is always the one who actually *commits* an illegal act.

Re:Car analogy!

[jorghis]

People always use analogies in ways that are not analagous around here.

In your two examples the person who is being robbed clearly did not intend to get his stuff stolen, you did not deliberately go out of your way to make the car available to be stolen. If you rip copyrighted mp3s and put them up on a file sharing network you are clearly intending for someone to copy them illegally. A better analogy might be if you put your car by the side of the road with a sign that said "take me please I am free". But even that isnt really a valid analogy because it is your car in the example given and you can do whatever you want with it. Intellectual property is completely different and not really analogous.

Re:Car analogy!

[Anonymous Coward]

In this case there would be two guilty parties. The person who posts the content to a public file share and the person who downloads it. The EFF's argument is that no crime has taken place until someone downloads the content thereby creating an unauthorized copy. The RIAA's proxy doesn't count because he's authorized. IANAL but in the age of the internet that seems like shaky ground to me. The common sense argument is why put it in a place like KaZaa except for the purpose of creating and distributing unauthorized copies.

Re:Car analogy!

[ortzinator]

Though your analogy is flawed, if the car isn't yours then yes, it could be illegal.

Re:Car analogy!

[Ecneics]

So if you rented a car and then left that by the road with a sign that said, "take me please I'm free" then surely that would fall about as close as a car analogy could get, but even then I don't think it fits. The car was received through a service while still remaining the property of the company providing that service. You took the property obtained in that service transaction and exercised rights to that property that were neither given nor implied. The obvious glaring difference is that it is physical property and the theft leaves the owner without a car whereas the theft of a file is more like someone took the rented car and allowed people to build their own with their purchased materials using the rented car as a guide. The rented car is still there, but the next person who may have purchased the car has one without the original owner making a profit.

Re:Car analogy!

[novakyu]

Or how about a computer analogy? If you have a computer with Windows in it and without antivirus, etc, connected to the internet are you guilty of a crime? I can't speak on the "crime" issue, but my campus minimum security standard policy says that a computer needs to have an antivirus and software firewall (of course, I ignore it for the most part, since I figure it's relevant only for the Windows-using population). Oh, and there's a "system and network security" department, and one of its many jobs is to port scan computers do determine whether they have been compromised or not---and they'll cut you off the net if your computer is compromised (which is, of course, one step further than simply not having AV).

Re:Car analogy!

[Ravon Rodriguez]

The RIAA's proxy doesn't count because he's authorized

So, you're saying that an undercover cop buying drugs is authorized to buy those drugs, so the person selling the drugs can't be prosecuted?

Re:Car analogy!

[Harmonious Botch]

In the grand /. tradition, let's try a car analogy. Is leaving the keys in your car a crime? Are you stealing the car or the guy that drives away with it? In another great slashdot tradition, let me fix that for you. :)

A more accurate car analogy would be: a friend, who happens to be a taxi driver, gives me a copy of the keys to his taxi, with the understanding that I can use it on Sundays when he spends all day programming in his basement. If, on Monday, I put the key in the car and put a big sign in the window that says "KEY INSIDE", and someone takes the car, am I guilty of a crime? ( Even if he gets the car back undamaged, I've still deprived him of the use of it, from which he presumably would have made a profit. ) Between the 'real' thief and myself, we have deprived the owner of an likely profit. I've been a material participant in a theft.

Re:Car analogy!

[danaris]

So, you're saying that an undercover cop buying drugs is authorized to buy those drugs, so the person selling the drugs can't be prosecuted?

Selling drugs is illegal no matter who you're selling them to. The same is not true of copyrighted content.

Dan Aris

Re:Car analogy!

[Myopic]

+5, Insightful

or more like

+5, Able To Make Essential Distinctions

Re:Car analogy!

[Anonymous Coward]

People always use analogies in ways that are not analagous around here.

Spoilsport! Now everyone knows.

not a theory

[Anonymous Coward]

That's not a theory. Did we learn nothing from the "debate" with fundamentalist creationists?

Re:even my lawyer smokes it

[Anonymous Coward]

>Californians will be able to legally smoke pot

if they can do that...

>they'll be in the dark ...they won't care...

Oh please

[cdrguru]

The EFF's argument to some extent is probably correct, but then it goes on and on into utter nonsense.

The contention that only "physical distribution" of "material objects" is addressed by copyright and that digital dissemination does not constitute distribution is not going to fly. That pretty much means that I can download anything and no matter what I do, no matter how blatent, as long as it is only in the "digital domain" that no copyright violation can be asserted.

That means that software has no copyright protection if it is downloaded.

That means there is no copyright protection for movies or music when distributed electronically.

While some might wish for this, it isn't going to happen. That pretty much means that any electronic distribution of GPL licensed software has no copyright protection. Really?

This assertion is interesting in the depths that it goes into, but it is senseless.

Re:Oh please

[Anonymous Coward]

You misunderstand the argument. It's not that digital dissemination is not distribution, it's that actual distribution is required for distribution. You don't distribute GPL licensed software by linking to it, you distribute it by someone actually downloading it.

Re:Oh please

[Anonymous Coward]

Oh pulleaze yourself...

That is not the EFF's argument. If you dont vote, you dont get to bitch.

You didnt read the brief, so dont bitch.

Re:Oh please

[Anonymous Coward]

The language of 106(3) does not include any prohibitory language pertaining to offers to distribute, attempts to distribute, or the "making available" of copyrighted works.

That is the EFF's argument.

The only evidence of "actual dissemination" of copyrighted works owned by Plaintiffs
consists of a hearsay account supplied by Plaintiffs' expert, Doug Jacobsen, relating information
gleaned from materials prepared by Plaintiffs' retained investigator, MediaSentry.

The trouble with this "evidence" of actual distribution is that it derives entirely from the
activities of Plaintiffs' own investigators. It is axiomatic that a copyright owner cannot infringe her
own copyright. See Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1348 (8th Cir. 1994). By the
same token, an authorized agent acting on behalf of a copyright owner also cannot infringe any
rights held by that owner. See Higgins v. Detroit Educ. Television Found., 4 F.Supp.2d 701, 705
(E.D. Mich.1998). Accordingly, where the only evidence of infringing distribution consists of
distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish
that other, unauthorized distributions have taken place.

Game over

Re:Oh please

[NewYorkCountryLawyer]

The issue isn't copyright infringement generally, such as 'reproduction', 'performance', etc. See the 6 sections of 17 USC 106. It's only a discussion of subsection (3), the distribution right, which the courts have held for many decades does require dissemination to the public of physical copies by sale or other transfer of ownership, or by license, lease, or lending.

Am I getting this right?

[therufus]

So by making a file 'available' to the public, I am then violating copyright law?

Well, by this same logic, if I leave my car window open and have a CD sitting on the passenger seat, I am then "making it available to the public". If I buy a DVD online and it is sent to my letterbox outside my house, and I don't have a lock on my letterbox, I am then "making it available to the public".

Where is the flaw in my logic? Or am I actually making a valid point?

Re:Am I getting this right?

[Deltaspectre]

The only problem with your logic is that you are using physical copies... after they've been taken they are no longer in your possession.

Re:Am I getting this right?

[webmaster404]

But the record companies want us to believe that unauthorized copying == stealing, so no it is a valid point. It is just that we have been fighting such an uphill battle that few people stop to consider that the entire method we have been using is wrong and needs reformed.

Re:Am I getting this right?

[Deltaspectre]

Right, but in your examples you're the one being stolen from, not the record companies.

Re:Am I getting this right?

[coldcell]

I think your point is very valid, and furthermore, I think it is the way to point out the inherent flaws in the RIAA's tactics, and subvert their whole scheme on a national level (with enough press coverage, of course). Hear me out, if you will.

1. I get together enough cash for a lot of blank CDs to 'back up' my CD collection. (this part's protected under the law, right?)

2. I keep my 'back up' copies in an alphabetized rack in my front garden, close to the fence. (this is still my property, and the USPS deems it a secure enough place to put my mail packages.)

3. I let it be known that I'm against pressing charges for any theft of the occasional backup CD, or for anyone coming with a laptop and ripping them there, after all I can just replace them with another copy from the master.

Now, assuming my point is valid, this shows how I have commited no crime, yet my music is being spread into the public. I could put more security on my backups, but then I can always claim that they really aren't too important to me, and I don't mind if some go missing.

Re:Am I getting this right?

[therufus]

Okay, different direction then:

Say I have a work of art in my loungeroom, an original painting by a famous artist. I then leave the window open and it is in full view of the street. If someone takes a high resolution shot with a really good digital camera and then gets that printed, I would be breaking the law by making the painting 'available'?

This is closer to the truth than my first example.

Re:Am I getting this right?

[Stormx2]

That depends. If you own the work, that is, you hold all the rights to it and it hasn't been licensed to you, then you can do whatever you want with it. If someone takes a photo, it's your decision to take him to court, not someone else's. If it's been licensed to you, and in the terms it says "You may not distribute copies" etc (like a standard CD license), then you might be in trouble. I guess it might fall under "public performance" or something.

It's apples and oranges mostly. If people fully understood the issues at hand here, we wont need to make all these car analogies and whatnot. Copyright infringement is a ball game seperate to other laws, including theft. Don't suggest alternative analogies, just concentrate on the facts. If people did that, rather than trying to woo the public with "You wouldn't steal a car...", we'd have sensible IP laws and the record industry would have accepted defeat already.

Re:Am I getting this right?

[NewYorkCountryLawyer]

So by making a file 'available' to the public, I am then violating copyright law? Well, by this same logic, if I leave my car window open and have a CD sitting on the passenger seat, I am then "making it available to the public". If I buy a DVD online and it is sent to my letterbox outside my house, and I don't have a lock on my letterbox, I am then "making it available to the public". Where is the flaw in my logic? Or am I actually making a valid point? I would say you're making a valid point. Certainly Judge Kenneth Karas would say so, since he made exactly the same point to the RIAA's lawyer at the January 26, 2007, oral argument (pdf) of Elektra v. Barker. (See, e.g. page 28 of transcript.)

Re:Am I getting this right?

[TheLinuxSRC]

In your examples, a *copy* was never made. The (licensed) original was stolen.

Re:Am I getting this right?

[TheLinuxSRC]

Say I have a work of art in my loungeroom, an original painting by a famous artist.

Your anology would work much better if you had a copyrighted (signed and numbered) lithograph which strictly forbids reproduction and distribution of an original painting by a famous artist. You have purchased a copy of the original but in no way own rights to make more copies and distribute them. It then follows that, according to RIAA logic, you are responsible for "making available" in the context you presented. I tend to disagree though; I think the RIAA Nazgul would try to crucify you for public performance bacause it pays more :)

Read the brief

[langelgjm]

the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.

If you'd read the brief, you'd know that this is not exactly what the EFF is claiming. They are very specifically attacking the idea that "making available" without actual dissemination of the work constitutes infringement (an idea that has ramifications that go far beyond file-sharing - e.g., Google search results, etc.). As for the rest of the case, this is what they have to say:

EFF expresses no view regarding the merits of Plaintiffs' remaining claims for infringement of the reproduction right, nor on any fair use or other defenses that Mr. and Mrs. Howell may have with respect to those reproduction claims.

Intent does NOT matter

[DrJimbo]

If you actual read the fine brief by the EFF you will see that according to the law, intent does not matter. If intent was what mattered then the RIAA would certainly prevail since intentionally "making available" implies intent. The EFF cite the letter of the law and then give many case law examples that make clear that an actual transfer to a 3rd party must occur before it is a copyright violation. They cite cases where unauthorized people advertised copyrighted works and the defendants prevailed because there was no proof of an actual transfer.

They do mention one case where some (dead tree) libraries were successfully sued for copyright infringement without any proof of an actual transfer but that case seemed to be exceptional.

There are many unknowns in this case and in copyright law in general but one thing we do know is: intent does NOT matter in the eyes of the law.

Re:Intent does NOT matter

[mark-t]

Whether or not the law explicitly mentions the word "intent" is irrelevant to the fact that it does say that certain purposes of copying are excluded from infringement (eg, fair use). By definition, any notion of purpose whatsoever constitutes a form of intent, therefore intent does matter.

Re:Intent does NOT matter

[DrJimbo]

If you want to know how the law actually works, please simply read the EFF brief. They cite cases where the intent to infringe did not amount to a copyright violation. I don't think it can get any clearer than that. Fair use had nothing to do with it.

Throw all the librarians in jail

[Anonymous Coward]

Librarians make books available to the public. Everyone knows the public is an unruly bunch of thieves who will take the books to the nearest photocopier and violate the copyright laws. The librarians are making copyrighted books available for copying. They are criminals and deserve to be behind bars.

Re:Throw all the librarians in jail

[webmaster404]

No its worse they let people take them home without much restriction and then they can photocopy them. Or worse yet share them with their friends. Or even worse they can convert them to PDFs and distribute them electronically!!! Libraries are evil, if they don't shut down soon all the authors are going to lose their job and be poor and no one is going to write anymore!!!

law != morality

[pbhj]

>>> "he's not at fault"

I don't think they are claiming that, they are claiming he didn't break the law. If the man's (filesharer) position is considered wrong then the law should be changed to say that attempting to provide an illegal copy is wrong ... there seems to be a bit of a slippery slope there though.

Consider a guy too drunk to drive legally - he can't get the key in the door and fails to get in the car (if he sits in it he's in charge and committing an offense). Now I think it's terrible that he intended to drive drunk, but can we really prosecute him?

Someone sets off to burgle(sp?) a house, doesn't take any tools (as that's going equipped and a crime in itself), he has an accident and never makes it but later confesses to intending to burgle, do we prosecute him?

Note that both these scenarios are open to being "completed" by a third party, the drunk can have his door opened by a passerby; the burglar could be saved from his accident.

Re:law != morality

[Kyojin]

In the case of the drunk person, we prosecute him because he has the keys and is legally considered in charge of the vehicle. Not for drink driving.

In the burglar case, we ridicule him on the internet for being an incompetent jerk. Or give him a Darwin award if he subsequently dies.

As for the case in hand, the EFF is claiming that no evidence has been presented that any copying took place and that there is no law against making it easy for such copying to take place.

The EFF also claims that it is doubtful that any illegal copying did take place involving the defendant, given the number of files shared and the number of users on the system at the time. This snippet of "information" is disputable, given that the Kazaa software may have chosen to download the files searched for from the defendant over other users, and therefore other users may have been directed to the defendant for similar reasons, such as higher bandwidth availability and so forth. Equally, a search for "porn" or something similar would probably have revealed that 199000000 of the 200000000 odd files were completely unrelated to the case and it is entirely possible that the files on the defendants computer (if it even was their computer that possessed the IP address in question at the time) were the only copies discovered by a search for the relevant music.

Even still, none of this proves beyond reasonable doubt that copying took place.

Re:law != morality

[BlueStrat]

pbhj stated in part: Consider a guy too drunk to drive legally - he can't get the key in the door and fails to get in the car..

To which you reply: In the case of the drunk person, we prosecute him because he has the keys and is legally considered in charge of the vehicle. Not for drink driving.

Am I missing something here? Does this mean that if I get drunk in my home while in possession of my car keys I should be prosecuted? How about the fellow who gets drunk in a bar, but has called a taxi to take him home, yet retains his keys? What if the same fellow just hasn't made the call to the taxi service *yet*? What if the same fellow is drunk in a bar, has his car keys on him, but his car is sitting at home?

Cheers!

Strat

Confusion over uploading/making available?

[langelgjm]

The brief quotes Marybeth Peters, Register of Copyrights, making a statement that both sides are using for their own purposes. I'm willing to bet Peters (who has admitted to not owning a personal computer) isn't real clear on the distinction between "making available" and "uploading." Colloquial use of "upload" isn't very specific. Here's the quote:

Making a work available in this context [i.e., uploading to a peer-to-peer network] constitutes an infringement of the exclusive distribution right, as well as the reproduction right (where the work is uploaded without the authorization of the copyright holder.)

After all, very few P2P networks these days actually upload the files to a central location. That sounds more like an FTP warez site.

Is the game already up

[labnet]

A quote from the Economist

IN 2006 EMI, the world's fourth-biggest recorded-music company, invited some teenagers into its headquarters in London to talk to its top managers about their listening habits. At the end of the session the EMI bosses thanked them for their comments and told them to help themselves to a big pile of CDs sitting on a table. But none of the teens took any of the CDs, even though they were free. "That was the moment we realised the game was completely up," says a person who was there.

http://www.economist.com/research/articlesBySubject/displaystory.cfm?subjectid=1426230&story_id=10498664

Re:Is the game already up

[Adambomb]

This is why i'm amazed that the recording industry didn't pull a budgeting 180 and try to headhunt serious talent and actually PROMOTE that talent after file sharing exploded. The market was primed to have two sets of media consumption; We all know that although free beer may be equivalent in some cases, but many will pay extra for good beer.

Problem is that file sharing is not only convenient but also considered to be "cool and a good shot against THE MANNNZOMG"[1]. Given the nightmare of trying to turn any set of policies and process in groups the size of the labels though, I do not think they have the bureaucratic agility to adapt their models without some serious decay and pain first.

Course, I can deal with the labels experiencing a bit of pain while independent artists quickly pioneer many business models. Sure there'll be failures, but with enough people trying different approaches some have to be found profitable eventually.

1. Totally not a quote

Hmm

[gen0c1de]

Well considering he did rip the music and dump it into a file sharing program does make you think he might have been trying to allow for sharing of these files. However after thinking about it, how many of these programs offer a media player aspect? A lot of them do, and I remember back in college how many people would be using Kazaa as their media player. One could say that he was on the understanding that if he places all his music in the My Shared Folder, it all shows up in Kazaa and he can then listen to it all. Not really much of a reach at all consider we are talking about Joe Six Pack here.

Re:Hmm

[celle]

No, he ripped some music and dumped it into his music collection which just happened to be receiving point for his music downloading program.

Point of view is a bitch isn't it.

Re:Error Will Robinson, Error! (First Warning)

[WillRobinson]

You seem to not have a grasp of using my name! I don't believe I authorized this blatant misuse.

Pun for those moderators that do not have a grasp of sarcasm.

Is this good? Yes. [Reply: Is this a good thing?]

[Geoffrey.landis]

Really, is this a good thing?
The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement? It doesn't matter for what purpose he put them into his file-sharing program. The RIAA asked for a summary judgement on the basis that he distributed the material, in a case in which the law is explicit that the word "distributed" means than an actual transfer of property took place. Since he did not, in fact, distribute the material according to the very clear legal definition of distribute, their request for a summary judgement is invalid.

Why is it good to hold to the explicit text of the law? Because, as the EFF pointed out if you expand the definition of "distribute", people can start trying to attack other people for copyright infringement even when they did not actually distribute material. If a search engine makes a list of sites based on some request, and one of those sites it lists has copyrighted material on it, is the search engine owner infringing copyright because they "made the material available"? Well, no, because there is a legal meaning of "distribute" which means only the person actually participating in the transfer of material is distributing it. Is it good to hold to this legal meaning? Hell yes.

Re:even my lawyer smokes it

[Anonymous Coward]

In my city, it's already the "next best thing" from being legalized: It has officially been declared as the lowest priority item for police officers. Given that police departments are not known for being over-staffed, the city practically legalized it within the city (I figure the only reason they didn't do it outright is because of the state (and may federal?) laws---a smaller government may not contradict the bigger one.

Having said that, I find marijuana smokers annoying, especially if you smoke it in your own room, and you are in a shared building. I've had a couple housemates who smoke marijuana, and it STINKS. I don't care whether it's actually harmful or addictive or anything. You wouldn't poop in public or your own room, right? Why would you make the whole building smell like poop for a lot of people?

Re:even my lawyer smokes it

[ScrewMaster]

Well, I have the funny feeling that if it ever does get legalized on a large scale, at the State or even Federal levels, somebody somewhere while come up with a variety of Cannabis that doesn't smell so bad. At that point, there will be a huge marketplace and a lot of R&D dollars will get poured into it.

Wow, a kdawson story that doesn't suck!

[Anonymous Coward]

This is almost front-page worthy.

Re:Wow, a kdawson story that doesn't suck!

[NewYorkCountryLawyer]

This is almost front-page worthy. I think it is front-page worthy.

You watch this loophole get plugged

[Butterspoon]

There's not going to be any big change resulting from this case. Say he gets off because, indeed, he only "made available" and didn't actually "distribute" anything.

They'll just change the law.

C'mon! He would be getting off on a technicality, guys! The higher-level intent is that people (in general) should not be allowed to obtain copyrighted material without paying for it (or otherwise obeying the terms of the copyright). If the present defense works against file sharing, you can bet it will be made to stop working as soon as possible, because the intent of the law is to protect copyrights. Happens in tax law all the time.

Anyway, existing law might be strong enough. I wouldn't be surprised if there's a conspiracy charge lurking here.

Re:You watch this loophole get plugged

[webmaster404]

Its not about just this case, its about whether or not someone can sue you without having much proof. If the RIAA had it's way, all your searches on Google would be tracked and if you even typed in *insert song here* download regardless if you clicked the links or even downloaded it you would be instantly deemed a "pirate" and get charged an absolute absurd amount of money for it. Attacks on our freedoms always happen slowly... first the idea of "intellectual property" then software patents then before we know it we have the DMCA and the RIAA is charging single mothers over 100,000 dollars for 12 songs. If we don't stand up for our rights and support the "little guy", before we know it our freedom has vanished.

Tin Foil Hat coment

[mlwmohawk]

I sometimes feel that this whole thing has got to have nothing to do with actual pirating. Every study has shown has indicated that people who share and download music are more likely to buy the music they like.

I don't believe the motivation, and I have a real tin foil worry in that it *isn't* about money, it is about control. If the public are unable to archive media, then only the official owners of the media may keep it. History is a LOT easier to re-write when no one can produce conflicting details because it can't be used anymore because the DRM scheme is obsolete and unsupported, or that "sharing" any such information is a violation of law that will cost you everything you own.

We need to ensure that citizens NOT F*&&KING "Consumers" are protected and REAL history and news is preserved.

not necessarily

[nguy]

If this becomes a clear legal precedent, we may be facing legislation that imposes specific, severe penalties merely for "making available", and that would be an overall worse outcome. A bit of legal uncertainty may well be preferable, because it gives judges more leeway and limits severe penalties only to those cases that actually warrant them.

Re:not necessarily

[rtb61]

No that actually makes threatened blackmail threats by RIAA/MPAA lawyers far worse. Best to get it out in public and when the RIAA/MPAA start threatening to send peoples children to jail for copying some trashy bit of content that the parents wouldn't want their children to have anyhow, then the stinking mess off copyright/wrong laws can be reviewed by the public and brought into the 21st century.

Probably would run afoul of judges...

[Anonymous Coward]

I admit to not being a lawyer, but from what I've seen of some judges, if they felt that your intent was piracy, they'd bend over backwards to make it illegal. They tend to take a dim view of complex schemes that have no purpose other than getting around the law. Moreover, BitTorrent already does something like this, it just doesn't encrypt anything using other copyrighted works. That said, there's something of a BitTorrent "exception" that the Pirate Bay uses, but it only works in their country. The USA seems to think that you can have some kind of vicarious liability for infringement. In theory, if I told you to go to thepiratebay.com and download something you can't legally download, I would be liable to the copyright holder for inducing infringement.

Besides, even if something works, the MAFIAA would lobby Congress to make it illegal. I fear we need a political solution more than a legal one in terms of precident. Copyright law needs reform, and it's not even on the map yet. The closest I've seen is some openness to patent reform from a candidate or two, and those have major corporate sponsors who are getting sick of the patent trolls. Even Microsoft, who more than once has blatantly ripped someone off in spite of a signed contract saying they wouldn't, would benefit from protection from patent trolls. Though I think they still prefer things the way they are.

First: update the copyright law, then we can talk

[Grampaw Willie]

i've said this before but it bears repeating: the existing copyright law does not address the issue of p2p. the law then needs to be amended before and other proceeings

amending the law is the job of the Congress, not of the courts. and we do not allow *ex post facto* law either. after the law is amended by Congress then we can proceed with any other actions but not before

HMRA does not cover computers. it only covers copies made to devices whose primary purpose is recording music. a computer is a general purpose machine its primary purpose being information storage and retrieval

and so ripping a copy from a CD or some such media and storing it on your computer is in fact a copyright violation. and the plaintiffs need to approach this issue from that direction. but they have not. and the court won't do that for them the court will only act on the case that is brought.

and it certainly appears the plaintiff will be obliged to demonstrate that actual copies have been distributed in order to make its case

so all of this needs to be set aside until Congress considers an amendment to the law.

if i was a betting man i'd wager p2p can be used to share virus codes as well as music. why don't you people get rid of that p2p software before it gets you into real trouble?

re: Napster, etc.

[King_TJ]

I think in reality, most people are saying BOTH.

IMHO, Napster shouldn't have been held liable for any of the copyright infringements happening on their network - because they simply provided peer-to-peer sharing software that people could use for "good" or for "bad", at their own choosing. Napster was the equivalent of a gun manufacturer, providing a product that can obviously be used for lawful AND unlawful purposes, depending on who has the gun and what they choose to do with it. (If we treated the gun makers like we treated Napster, police and our military would be stuck being armed with nothing more than nightsticks and a can of pepper spray.)

On the other hand, we're ALSO saying that a person who puts up files for downloading on their computer is NOT guilty of infringing any of the copyrights until the files are actually downloaded. That seems pretty clear-cut to me. As others have already stated here, you could potentially pass new legislation saying "attempted infringement" has certain legal penalties, but such legislation is not at issue here. They're simply claiming he DID infringe because he had files on his PC, available for public downloading.

YOU say this guy is "obviously guilty" - yet the fact remains, he's not obviously guilty at all of the specific crime he's being charged with. You simply can't make that claim without a download log of some sort proving another party connected to his server and completed a download of at least one of those files.

Intent != Conspiracy

[baileydau]

Ever hear of "conspiracy to [commit some crime]"? You can be held responsible for actions that would have led to a more serious crime. Just because no one downloads the files does not mean his intent was to illegally distribute intellectual property for which he did not have the rights to do so. I think what you meant to say was Intent to commit a crime. That is quite different to conspiracy to commit a crime.

According to the "irrefutable source" wikepedia, conspiracy to commit a crime requires *literally* a conspiracy. ie 2 or more people planning to commit the crime. There is no suggestion (that I can see), that there was any conspiracy in this case.

Remember, this case is actually a CIVIL case, NOT a criminal one, so the word CRIME doesn't apply at all.

Again, according to wikepedia, there is such a thing as INTENT to commit a crime, but as far as I can see there is not such thing for a civil case, unless of course there is specific precedent / legislation to say so)

Civil cases are generally about *actual* losses because the infringing action DID happen, not potential losses when no actual infringement occurred. NB. "actual" losses can include potential (future) losses in some cases.

Re:Intent != Conspiracy

[stubear]

I agree. I was responding to the "thought crime" title in the OP's post. It IS possible to be held responsible for merely contemplating the act of committing a crime, such as in the case of a conspiracy, without it being a "thought crime".

Re:Intent != Conspiracy

[Myopic]

There is a significant distinction between contemplating a crime (which is not a crime) and planning a crime along with a partner (which is a crime -- conspiracy). I can think of two distinctions: you have to not just contemplate the crime, but must actually move on to planning it; and you must not just plan it alone, you must plan it with help. It's a sliding scale, you know, between thinking about a crime, to planning it, to conspiring to commit it, to committing it. We punish the acts on that scale differently, and draw a line saying acts below conspiracy aren't a crime by themselves, rather just an exacerbating circumstance (premeditation).

Just how stupid does it have to get?

[thorpie]

The BUS TICKET took on a new significance today for John Smith. John discarded the ticket 5 years ago, dropping it in the rubbish bin. His ticket was tracked down as being THE ticket that the Shangai and Metropolitan (S&M) ticketing Authority used as the template for the english translation of their ticket. So far S&M have issued 5 billion tickets with the wording, all from the ticket that John discarded. John's action in not protecting his ticket from intellectual pirates or thieves has cost him a $100 billion fine, which is growing each day as S&M continue issuing tickets.

The Copyright holders association was still not happy with the jurys award of $20 for each infringement. They had wanted and believe that $1,000 per copy would have been fair. The copyright association believe that John's fine will increase further as the Moscow Metro (MM) is believed that have used the wording on a S&M ticket as the template for their new English ticket.

Many people are asking what they should do with valuable intellectual property that they no longer have a use for. The copyright association advises that all paper with any copywritten material on it should be incinerated and the ash thoroughly pulverised. They will actively pursue cases against any people who do not thoroughly protect their intellectual property from thieves, even for a moment. Currently they are following up a case of a two year old who threw a baby food tin out of their pram which allowed another person to read it. People have to realize just how serious this is. As another person, a pirate, could reproduce the words written on the tin. The copyright association has written to Baby Dumpling asking to settle out of court for only $500.

Letterbox

[r_jensen11]

Assuming you're living in the United States (I can't vouch for other nations,) if anyone knicks anything from your mailbox, then they've committed a federal crime.

what's at issue

[Grampaw Willie]

eff is attempting to prevent RIAA from equivocating "making available" with "distributing". it is certainly the case that RIAA has no authority to change the meaning of the law in the way that they want, and it is certainly the case that the implications of such a change could have far reaching consequences which could be badly used by greedy parties who might make advantage of an opportunity to abuse the law.

RIAA should have focused on the act of ripping the music and putting in on computer. A computer is a general purpose device and is not covered by HMRA. So all RIAA has to do is find copyright material on p2p machines anyplace and then charge the owners with ripping music and putting it on their computers

but they are not approaching the issue in this manner, instead they are trying to equivocate "making available" with "distributing". i don't know who their lawyer is but he should certainly do better than that.

JUDICIAL ACTIVISM

in our system today when an issue is un-clear the court will select a case to use as a test. and the test will be appealed to a higher level court where the ruling will be made. and after that the principle of *stare decisis* is used to apply the test case ruling to all subsequent rulings.

guess what kids: sharing music over p2p is a copyright violation. if I was a betting man I'd wager the court will rule this way and that will be the end of this cry story

DMCA sez don't rip copies

[Grampaw Willie]

another aspect of this is that DMCA prohibits defeating copyright protection mechanisms

so yeah kids, ya done good ya proved ya can break any copyright protection scheme

ya also violated the law by doing that and then posed the evidence on yer p2p system

ya best get rid of that p2p software before ya all get into real trouble

DMCA sez don't rip copies

[Grampaw Willie]

DMCA makes it illegal to defeat copyright protection mechanisms

yeah ok ya all proved you can defeat any copyright protection scheme in short order

and then ya planted the evidence of what ya did on yer p2p system

I ain't got a clue why RIAA don't come after ya on that basis

the way they are going-- trying to equivocate "making available" with "distributing" ain't gonna fly

but guess what kids: they'll be back

Key quotation from TFA

[Anonymous Coward]

In the words of the First Circuit,

Mere authorization of an infringing act is an insufficient basis for copyright
infringement. Infringement depends upon whether an infringing act, such as copying
or performing, has occurred. Therefore, to prove infringement, a claimant must
show "an infringing act after the authorization."

Re:Key quotation from TFA

[NewYorkCountryLawyer]

In the words of the First Circuit, Mere authorization of an infringing act is an insufficient basis for copyright infringement. Infringement depends upon whether an infringing act, such as copying or performing, has occurred. Therefore, to prove infringement, a claimant must show "an infringing act after the authorization." Thank you. I like to see people going right to the text.

Not really the point

[gillbates]

Sure, the guy was trying to give them away.

Problem is, until someone actually downloads the files, no infringement occurs. This is the problem: while he may have intended to share the files, and might even have intended to break the law (that is, he knew copyright infringement was illegl), damages have only occurred when someone actually copied the files. It's akin to unlocking your neighbor's door - it's not being an accessory to theft until someone actually walks in and robs the place.

This is important, because without actual copying, the plaintiff suffers no damages. There's not even the possibility of lost revenue if no one actually downloads the song.

Because copyright infringement carries statutory damages, the RIAA doesn't have to prove actual damages; the value of the work is assumed by the law. Thus, it is even more important to ensure that actual copying took place, because without it, the RIAA could collect from a defendant damages that it never actually suffered. This is why it is important for the plaintiff to show that copying actually occurred.

It has gone from protecting the rights of the artists to an attempt to bilk anyone remotely connected to the music. If the RIAA is allowed to stretch this definition of copyright law through precedent, how much further will they take it? If copying need not occur for copyright infringement, then couldn't they likewise claim that merely hearing an unlicensed copy also constitutes infringement?

When the RIAA client lists shrinks to none,

[crovira]

then we can expect all of this crap to disappear.

Suing real and potential customers is a mighty lonely road to take to the poor house.

Record companies are watching their sales/revenue figures drop like lead balloons while indie companies take advantage of not needing a physical presence to make a unlimited number of sales.

The majors are waking up and the existence of the RIAA is now being seen for what it has become, a hindrance to sales.

Bye bye RIAA.

Re:When the RIAA client lists shrinks to none,

[Anonymous Coward]

So, what happens when there's no more RIAA? Nothing, that's what. It's just an association of companies, the RIAA isn't a company, it has no assets. The lawsuit is Atlantic v. Howell, not RIAA v. Howell, I wish people would stop using the acronym RIAA, it hides the real villans.

Re:When the RIAA client lists shrinks to none,

[NewYorkCountryLawyer]

The lawsuit is Atlantic v. Howell, not RIAA v. Howell, I wish people would stop using the acronym RIAA, it hides the real villans. What would you suggest as an alternative? Listing the 6 or 7 rotating plaintiffs in each case?

ASSuMING one will break the law ...

[purpleraison]

Artraze makes a very good point! But I would like to take this a step further.

In order for someone to be convicted of a conspiracy (for any conspiracy) it requires more than one party, and the intent to commit the conspired act must be proven. Intent is a difficult thing to prove, and that is why it's likely not being pursued.

Furthermore, just because he ripped a CD and put all his tracks into his p2p application doesn't inherently mean he intended to have people download them; it could be that he just prefers to use the app as his library/media player, OR It could be just a way for him to share amongst his own computers.

People who just jump on the RIAA bandwagon convicting this person just because THEY believe they know his intent are just as bad as RIAA in my own opinion. Sure, maybe that's exactly what he intended to do - but it needs to be proven.

music companies make it availiable, sue them!

[swschrad]

oh, wait, left hand, right hand.

but the comparison is valid nonetheless.

Re:Consequences? Bogus

[Nom du Keyboard]

By the way, the proof that even the RIAA lawyers know that their theory is baseless is that they have abandoned it and omitted it from all of the complaints they've filed during the past 5 months or so.

If they know its clearly bogus, then why don't they, in fairness, also drop all the previous cases where they argued this in the first place?

International role

[gbnewby]

I didn't notice anyone mentioning international issues with the public domain. Thanks to my involvement with Project Gutenberg, I'm often in the situation where something that is public domain in one place is still under copyright protection elsewhere.

Project Gutenberg has long held that by making something in the public domain available, we do not infringe in places where that public domain item is not in the public domain. So, for example, PG's eBook of Peter Pan is public domain in the US and most other places, but not in the UK.

We have regularly stood up to claimants from non-US countries (and, in the case of Gone with the Wind, in the US: complaining about the PG of Australia organization), saying that infringement is committed by infringers -- not by those *legally* making an item available. We haven't been sued yet, and like the RIAA case there are aspects of copyright law that don't have much legal precedent. (Internationally, there are few precedents.)

The idea that infringement is done by infringers, not by those with legal rights to an item, is a very important distinction. Presumably there might be issues for conspiracy to infringe, for traffickers, and those who profit by fostering an environment for infringement. But for the everyday person with legal rights to an item, the ability to rip, store, share, etc. would be nice to confirm.

Another related aspect: what if I rip a CD (or whatever) I legally own, and make it available for download, and you own the same item and download it. Confirming this is non-infringing would really help... an analogous situation would be digitizing an eBook from a printed volume I own, and you own...even if the book is copyrighted, can we share the digital copy?

The final point for US residents is the anti-circumvention provision of copyright law. If we can confirm these various rights, does that mean that bypassing DRM etc. is legit? While there is deemphasis on DRM for music currently, it's still pretty strong for video, for the dedicated eBook formats, and re-emerging with Blu-Ray discs. I don't think DRM (or spawn of DRM) is dead yet. gbn

Re:International role

[hughk]

PG's eBook of Peter Pan is public domain in the US and most other places, but not in the UK.

This is an interesting and very special case because the copyright was due to expire in 2007 but because Barrie had deeded all royalties to Great Ormand Street Childrens Hospital, the copyright was extended in perpuity by a special ammendment in the British House of Lords in 1987 (the original copyright was life of author plus fifty years). The rest of the EU sees the copyright on the book expiring this year (life of author plus 70 years), so the only place left generating royalties for the hospital is the UK. Disney will be happy!!!

Re:Error Will Robinson, Error! Double-Error!

[Nom du Keyboard]

I have to post a correction to the original post. They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa.

And I have to post a correction to your correction.

ANY FOLDER is a share folder for KaZaA. This is true for most, if not all, filesharing programs. Any set of folders on an available hard drive, optical drive, jump/thumb drive, or other mass storage including networked drives, may be designated for sharing. It's not like he said, hey I'm ripping my CD's to my hard drive, and just for fun let's put them in KaZaA's one and only magical mystical Share Folder.

Re:The clients mis-advertise a lot anyway. MORE...

[Nom du Keyboard]

I'm not actually pro-copyright infringement, but a demonstration of advertised content being un-downloadable really swaying a jury. Or better yet I would love the RIAA to sue someone who wasn't sharing because of firewalls and who had meticulous firewall logs, so that they could get roasted.

Your problem is that MediaSentry DID download the files from SOME UNIDENTIFIED COMPUTER that happened to have an IP address traced to the defendant's ISP account. While they can't sue on the basis of those downloads (letting the owner of the copyright, or his agents, download his own material is not an infringement of copyright since the owner can't infringe himself), downloading was clearly possible.

It's just that it's possible -- even likely -- that nobody else ever downloaded those particular tracks, or possibly any tracks. And that means no infringement actually happened because no Distribution actually happened.

onus

[non]

its late, i have a cold, and i'm tired. so i'm going to say this quickly and cleanly; its all about onus. and in order to explain why its all about onus i'm going to tell you a story about an ISP (i think quickly and cleanly were used in haste, but then again i really hate C#V#D).

i entered into a contractual obligation for DSL services with a provider. one of the terms of that agreement was that i purchase a router from the provider (i already had a far superior router). at the time i entered into the agreement with provider they were offering a rebate equal to the cost of the router. they deliberately, or so i believe, did not detail all the steps needed to be followed in order to claim said rebate. after having finally completed and documented all necessary materials i waited, and waited, and waited. i finally got my rebate, but not before contacting the AG. and in a most telling moment of synchronicity, the day i received my rebate was the day the AG's office contacted me to enquire whether i wished to pursue the matter (and tellingly, despite the fact that the rebate was indicated as being fulfilled by http://web-rebates.com/ the check was drawn on C#V#D's bank account). but i digress...

i requested a check three times. one of those times was not registered! at each request i was told i would have to wait 6-8 weeks before i could make another request, so that the misguided check would be returned by the USPS. HOW LONG DOES IT TAKE FOR A LETTER IN THE USA? WHAT ARE YOU, THE 3RD WORLD?

now we get to the meat of the entree; during one conversation i asked why they couldn't just send me another check, better still, as they were debiting my CC on a monthly basis, why couldn't they just credit it? (this is the proof of the pudding - we want to bog ourselves in paperwork). they replied that they had to make sure that the check was returned (at this point, does anyone have any faith in the fact that the check was mailed in the first place?). and besides, if they did that it would "place the onus" on them.

and that, my friends, is the rub. its all about onus. the RIAA does not want to have to sue for copyright infringement every time someone shares a file. they would go broke. which is why they are so gung-ho about equating it with thievery. but its not just the RIAA anymore, now its a business model. maybe you people should go to the polls and vote, not just for some media-enhanced candidate, but for someone you think will do the job they're supposed to do; represent their constituency.

why is it a corporation has the rights of an individual, but can not be subjected to the same punishments as an individual.

why can a corporation can not be incarcerated?

Re:Hmm - Double Hmmm!

[Nom du Keyboard]

Well considering he did rip the music and dump it into a file sharing program

Or the file sharing program he loaded for some other reason automatically went out, found them, and shared them...

Oblig.

[TapeCutter]

You must be new around here. :)

Re:Consequences? Bogus

[Anonymous Coward]

they know its clearly bogus, then why don't they, in fairness, also drop all the previous cases where they argued this in the first place?

220,000 reasons which they use to scare people into settling.

No Representation

[DeanFox]

Is this wise? Making available is a significant precedent and it's going to be decided in a case where the defendant has no representation?

I know zero about the case and maybe he's representing this argument well. But if it's to become a precedent I'd be more relaxed if this was argued by a team of Cracker Jack attorneys. We may all end up subject to a decision decided by a one sided argument. Helpfully I'm wrong on the significance of this decision and the depth of his arguments?

-[d]-

Re:No Representation

[NewYorkCountryLawyer]

Is this wise? Making available is a significant precedent and it's going to be decided in a case where the defendant has no representation? Yes it's unfortunate that Mr. Howell does not have representation, but it's a blessing that the EFF came in and submitted this amicus brief.

Re: "Should be free" or "Fun to do"

[TaoPhoenix]

It's not quite this sharp just yet.

My offhand discussions with the youth that cross my path show that many youth do enjoy the "thrill" of getting ahold of something that their parents would have had to pay for, but when pressed into being specific, they realize that somewhere down the chain the artist isn't making his/her/their dinner money.

Re:Tin Foil Hat coment revisited

[TaoPhoenix]

I like your Tin Foil Hat.

Tin foil is cheap, and I am a former origami hobbyist. By staring at the nice little hat you've got, suppose I see that you started with an 8x11" sheet instead of the traditional square, and you added a nice little flair to the corners.

Oh wait.

Do I have your permission first to model your hat?

Media server

[Anonymous Coward]

I installed a program the other day that then installed a media server on the PC. At first I was going to uninstall it, but then my new PS3 saw the server. Hey, now my MP3s are available to my stereo system via the PS3. Yes, it's wireless and WEP isn't secure. So did I make the files available? Depends on your view. Not generally available, like Kazaa but available if someone want to illegally access my wireless. It seems intent, which is difficult to prove, may be a factor.

Re:Error Will Robinson, Error! (First Warning)

[Anonymous Coward]

What about for those of us (i.e., you) who do not have a grasp of what a pun is?

What about the person?

[Budenny]

NY Country Lawyer, does the brief imply that the person who has to be sued is not the one who makes available, but the one who actually downloads what is made available? Or is this misreading the brief? If merely making available is not a copyright violation, then can you go after the maker available for copyright violation in case some other party does violate?

Thinking analogies: local authority leaves carelessly leaves metal bar by roadside. Miscreant picks it up and commits assault. They were liable for an offense, if careless leaving is one, regardless of what miscreants did or did not do. They can't ever be liable for assault unless they actually committed it.

If this is right, that would imply that the RIAA would have to cease going after file sharers in the sense of ones who make stuff available, and instead turn its attention to catching downloaders, and that might be a whole lot harder and more expensive to do.

That is also the force of the various analogies about pictures which are placed in positions where they can be photographed - its very clear there that the offense is committed by the one taking the photograph, not by the one exhibiting the picture. Or the cinema example: showing the movie is not violating copyright even if by showing it you make it available for bootleg filming in some sense.

Be interested in your comments on this issue of who exactly has committed what offense and when.

Re:What about the person?

[NewYorkCountryLawyer]

NY Country Lawyer, does the brief imply that the person who has to be sued is not the one who makes available, but the one who actually downloads what is made available? No, the brief doesn't say that there couldn't be a violation of the distribution right, by actually distributing within the meaning of the statute. It just says that merely 'making available' doesn't cut it.

Re:What about the person?

[klausboop]

I applaud the EFF in this, and this briefing is one heck of a document. I advocate fair use and wish device shifting would get to the supreme court so this issue could be settled. However, when you put files into a p2p folder, you ARE *sharing* the files. That someone didn't accept your sharing of the offer (or the software used someone else's copy) doesn't negate the fact that you shared them. In other words, beyond the fine point legality/illegality of the act, ethically I think the guy did something wrong.

But the idea that you can't device shift I'd like to see make it to the supreme court. I see this like Miranda and so many other cases: something legally good will hopefully happen on the back of someone who probably did do something wrong.

barking up wrong tree

[Grampaw Willie]

if ya read HMRA and DMCA you'll easily see that p2p phreaks are committing several violations:

1. DMCA prohibits "ripping" ( defeating copyright protection mechanism)
   
   
2. computers are not covered by HMRA as devices whose primary purpose is to record/playback music and so ripping a cd onto a computer is a copyright violation
   
   
3. putting music on a p2p share directory cannot be considered "private" use by any stretch
   
   

in respect to #1, ya rip a CD ya violated DMCA then ya post the evidence on yer p2p net. good job. ya think them tracks can be identified using pattern matching? the don't need "fingerprints" and we also know them fingerprints would be scrubbed pretty quick anyway

in respect to #2 a computer is not primarily a music recording device and so making a copy of a mp3 onto a computer is not covered under private/non-commercial use in HMRA

instead of properly going after the actual violations RIAA is equivocating in attempting to claim that "making available" is the same as "distributing". these are not equivalent, and as EFF properly points out case law on record confirms that there is no copyright violation until a transfer has occurred.

As a result RIAA has to show what files were actually transfered: from who, to who, and when and they gotta have proof that will hold up in a court of law. failing that RIAA case will FAIL.

why they are going after this this way instead of going after the simpler violations, i have no clue -- EXCEPT -- IF they get a favorable ruling that is upheld on appeal they will have changed the law by means of JUDICIAL ACTIVISM. that's a bad topic and another issue we have to fight.

p2p software just needs to go away before it brings some evil down upon us such as having ISPs sign for us everything we transmit into the net,....l tee hee

that might be a Good Thing, particularly for our efforts to identify and cancel RATS, spyware, phishing, pharming, spy-bots, key loggers, and malware generally

Re:barking up wrong tree

[Anonymous Coward]

why they are going after this this way instead of going after the simpler violations, i have no clue -- EXCEPT -- IF they get a favorable ruling that is upheld on appeal they will have changed the law by means of JUDICIAL ACTIVISM. that's a bad topic and another issue we have to fight I really hate you people. The judge's JOB is to interpret the law. If the law doesn't make any sense, and the judge makes a ruling that makes sense to anyone that has a brain, according to you that would be judicial activism... so how about laws like "anal sex is illegal" in states like Texas? Would that be judicial activism to re-interpret the law or declare it Unconsitutional? That is the job of a judge, to interpret the law.

Oh, and ripping a CD is *NOT* circumventing copy-protection. CDs don't have copy-protection. Yea, yea there are *some* that do (the very operative word there being 'some'), but most don't.

The whole point that this is getting at is that the RIAA is saying "x number of people *may have* downloaded this, but we don't know. we're suing you for an amount that *assumes* those people did." It's ridiculous for them to just arbitrarily 'declare' the amount of people that they are guessing you distributed this to (even though they are really just throwing a dart). To put it in prespective, if there is someone that murdered 1 person, but the District Attorney charges him with 12 counts of murder because "he may have kill 11 more people, but we're really just guessing and hoping it sticks in court."

Re:barking up wrong tree

[Laurence0]

I'm not an American, or a lawyer, but... In respect to point 1, ripping a CD is not circumventing a copy protection system because CDs aren't copy protected. DVDs are (just - it's now at the stage where it's only a legal barrier, rather than a technical one), but CDs don't even have that.

Conspiracy to go fishing

[Grampaw Willie]

yup, I can sit here all morning thinking about going fishing but when I call Charlie and request him to participate we have formed a Conspiracy to go fishing

now if my wife finds out we better hope our luck is good cuz when we get back the skillet will be on the stove and plates on the table wait'n for us to fix supper

It's a civil case, not a criminal one, right?

[DMCBOSTON]

Atlantic v Howell is a civil case, where plaintiff asserts a damage and wants compensation. A lot of talk here about thought crime and all, but that's not the case. The government is not charging them criminally. No one's going to jail, unless they start up debtor's prison. Note: IANAL, I just play one on the net. Unlike NYCL, who actually knows what he's talking about.

HMRA (1992) and DMCA (1998)

[Grampaw Willie]

I think it is important to consider how 17 USC 106 is modified by the additional acts for starters, IAW DMCA defeating the copyright protection ( "ripping" ) is a violation and then when ya post the evidence on a p2p net ya done incriminated yer own self we are allowed one (1) "backup copy" but that is supposed to be made using a device whose primary purpose is handling music -- which a PC is not. a PC is a general purpose machine.

Re:HMRA (1992) and DMCA (1998)

[Anonymous Coward]

...defeating the copyright protection ( "ripping" )...

Its been said a million times, but CDs have NO copyright protection in relation to the DMCA's restriction on defeating copyright protection. You are mistaking what is on a DVD with a CD.

But there has been a violation!

[Half-pint HAL]

What about public display of works?

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly

If I stick up an infringing work on a wall in a public street, does it matter how many people go down the street and see it? This guy put the files in a publicly accessible place. Whether or not anyone saw them, they were on public display.

Furthermore, if he had any right to have those copies, it was under fair use, and fair use is for personal use only. Normally it's bloody difficult to prove intent, but putting something in a folder marked "public" quite clearly shows intent for non-private, ie. infringing, use.

But IANAL.

HAL.

Re:But there has been a violation!

[russotto]

The RIAA member companies can't use the public display right; it does not apply to sound recordings. By "musical works" the statute is referring to the music's composition and arrangement.

No, but there is one illegal copy.

[Half-pint HAL]

Fair use provides for a single copy for personal use. Even though each of the MP3 files on his PC is a single copy, he has made explicit that these are not for personal use, but for public use. They are clearly not authorised by fair use -- the man is infringing, even if not in the way specified in the suit.

HAL.

Re:No, but there is one illegal copy.

[Charbox]

There is no way for us to know whether they are copies or original purchased downloads.

Not his fault you can't make a case

[megabarf]

The whole brief is an interesting read. It came across to me not only as an attack on RIAA motion for summary judgement but also as an attack on the practice of bringing lawsuits against noncommercial copying where there is little proof of actual infringement.

I really like this paragraph:

To reiterate, it is not Defendants' fault that Plaintiffs are unable to produce evidence of actual distributions beyond the 11 authorized downloads performed by MediaSentry, nor is it their burden to prove Plaintiffs' case. Plaintiffs include some of the largest companies in the recording industry, with nearly limitless resources when compared to Defendants. It is Plaintiffs who have opted to file more than 20,000 lawsuits against individuals, many whom are unprepared for the unfamiliar (to a layperson) demands of discovery. It is Plaintiffs who have chosen to target noncommercial activities that occur in the privacy of the home, thereby injecting themselves "behind closed doors" where factual investigation can be difficult. Having put themselves in this position, Plaintiffs ought not be heard to complain that proving their distribution claims poses evidentiary challenges.

I don't think they could have worded that particular face-slapping better.

Re:Consequences? Bogus

[NewYorkCountryLawyer]

If they know its clearly bogus, then why don't they, in fairness, also drop all the previous cases where they argued this in the first place? Because that would be the honorable thing to do.

no dice

[Scudsucker]

In the People v. Dlugash, the Appellate Court of New York held that a defendant could be found guilty of attempted murder for shooting a dead body that the defendant thought was still alive (but that might be dead).

The medical examiners said the initial gunshot didn't kill the victim instantly, and might very well have been alive when Dlugash shot him in the head. If the victim had been indisputably dead at the time, it's unlikely the reasoning would have superseded the impossibility defense.

Thus, you hire a private investigator to go the dry cleaner and offer to rent the really nice suit.

Entrapment.

but where is the damage????

[Anonymous Coward]

Even if his actions can be qualified as an attempt to "break the law" (and I disagree with that), this is a civil case, is not it?

So aren't plaintiffs supposed to demonstrate actual damage?

No downloaders, no damage, no case.

Re:Consequences? Bogus

[ScrewMaster]

Or, as Lieutenant Worf would no doubt say, "They are like the Romulans, Captain. They are without honor."

Well, IAAL too, and I would warn you

[unassimilatible]

That just because some lawyer on Slashdot - obviously with a pro-fair use bias or why would he be frequenting /.? - says something is true doesn't make it true (which includes this post). The EFF's brief is persuasive by definition, not an objective brief that a junior associate would present to a senior partner wanting a real world view of the law. Law schools teach both, the objective legal brief and the persuasive one. A persuasive brief argues one side by design. To suggest that one side's view in a persuasive brief constitutes "what US copyright law really says," is patently absurd.

Frankly, if the EFF's brief was a fair, objective view of the law one could argue that such a lawyer was committing malpractice. Effective advocacy, whether in a contract negotiation or litigation, means asking for more than you really want or think you deserve so you can compromise and look reasonable. If you want a million dollars, you don't ask for a million, you ask for three and negotiate downward.

For the record, I think the RIAA is generally full of shit and is abusing the legal and political process with its criminalization of intellectual property law and using law enforcement as its personal security team. But let's not let what we want the law to be get confused with what it really is.

Re:Well, IAAL too, and I would warn you

[NewYorkCountryLawyer]

Frankly, if the EFF's brief was a fair, objective view of the law one could argue that such a lawyer was committing malpractice. Not so.

The way it actually works out in the real world of litigation is that fair, objective, brief writing, which is balanced and completely candid, is far more effective than mere advocacy which will go to any lengths to persuade. The judge doesn't want to get reversed and wants to make a correct decision. The brief which assists the court in that is much more likely to be taken seriously and to be believed.

This particular brief was extremely conservative, and says nothing that is not completely grounded in the statute, the caselaw, and the leading treatises.

It is the RIAA lawyers who are the flaming radicals here, who make arguments that do not pass the 'straight face test'. If you don't believe me, read the dialogue between the RIAA lawyer (Richard Gabriel) and Judge Karas in the transcript of the January 26, 2007, oral argument on these issues in Elektra v. Barker, and observe how quickly the judge shot down, and Gabriel then backed down from, basically every argument that had been advanced in his papers.

Were Fred Von Lohmann similarly called on the statements he's made in this amicus brief, not only could he stand firm, he could absolutely prove to the judge that each argument is correct.

In view of your healthy skepticism and appreciation of intellectual integrity, I don't expect you to accept what I just said at face value, and only time will tell. But I would challenge you to look at the brief and find a single statement of law that you think is wrong.

Not true

[LandruBek]

TFA addresses precisely that point. On p. 6 of EFF's brief, they explain that the "and to authorize" phrase does not expand direct liability, but only secondary liability:

In other words, without a direct infringement of s. 106(3) -- an actual distribut[ion] of copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending -- there can be no claim for "authorization" of distribution.

The way I would put it (IANAL) is that if Alice makes copies of her Metallica CD and hands them out on the street, and someone takes one, she has direct liability; and if Bob falsely claimed he owned the copyrights on those recordings and told Alice to go ahead, then Bob is also liable. But only because Alice went through with it and really did distribute. FTFA:

In the words of the First Circuit, "Mere authorization of an infringing act is an insufficient basis for copyright infringement. Infringement depends upon whether an infringing act, such as copying or performing, has occurred. Therefore, to prove infringement, a claimant must show "an infringing act after the authorization.'" Latin Amer. Music Co. v. Archdiocese of San Juan, 499 F.3d 32, 46 (1st Cir. 2007).

Is it a crime?

[phorm]

I've often wondered about that. A lot of people will argue that "conspiracy to commit" == "thoughtcrime", but the fact is you can think about it all you want, it's when you start planning to bomb a building, abduct a politician, kill your boss or whatever that it becomes conspiracy.

In many cases I believe the consequences of "conspiracy" are much the same as committing the actual act. It's not just for nailing those that are plotting act X ahead of time, but for those that were involved with the plot after-the-fact. Can somebody correct me if I'm wrong, but I believe that conspiracy is in fact a crime as well, it's just that "conspiracy" is a different form of the crime.

However, it's still a moot point. To my knowledge it's still not (yet) an actual violation of the criminal code to copy music. The only thing that I know of that's a crime at the moment are things like camcording in a theater in Canada (thanks to US lobbiests literally sleeping with Canadian politicians). I wonder if a bunch of kids planning a way to record a movie from a theater would thus guilty of conspiracy. Notwithstanding that camcording a movie is a dumb thing to do anyways, it's kinda sad to see that such a thing can now hold a jail term, and I can guarantee you that the theaters and movie companies are very happy to advertise things like "You won't be able to record a movie when you're in jail" up here in Canada.

Partially true...

[phorm]

Actually, even here there are conditions.

• Selling illegal/prohibited drugs: always illegal
• Selling prescription pharmaceuticals without a license: illegal
• Selling prescription pharmaceuticals without an actual prescription: illegal
• Selling prescription pharmaceuticals with a license and patient prescription: legal

I realize you were probably talking about illegal street drugs, but in a lot of cases it is illegal to sell certain substances "on the street" but perfectly legit through the proper channels.

Re:Consequences? Bogus

[NewYorkCountryLawyer]

:)
I'm not very knowledgeable about Star Trek lore, but I have a hunch these folks are worse than the Romulans.

Thanks for the lesson but

[unassimilatible]

I also practice the "real world of litigation" and that comment is quite arrogant - not to mention inaccurate. Otherwise, both briefs in legal cases would be identical. My experience is that the parties' briefs tend to be different (different does not mean "radical"). Every time. Maybe that's not how they do it in NY.

As for the RIAA vs. the world, we'll just have to see how this is ultimately settled by the appellate courts, not some trial judge. Many of the issues remain unsettled. But my money is on the copyright holder, his lawyer, and his political contributions, and not some pro se fair user.

Re:Thanks for the lesson but

[NewYorkCountryLawyer]

I wasn't aware that you are a lawyer; I apologize if I insulted you.

I agree with you that this will ultimately have to be "settled by the appellate courts", a possibility which the RIAA has been energetically trying to forestall, for good reason.

No prob

[Anonymous Coward]

I misread your post. All is cool.

Cheers,

Unassimilatible