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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."
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)
"Be light, stinging, insolent and melancholy"
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?
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?
I'll believe in corporations having personhood when Texas executes one... - advocate_one
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.
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.
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 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.
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.
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.
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.
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.
Patriot - A fan of expanding government power and spending while not wanting to pay higher taxes.
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?
Recursive: Adj. See Recursive.
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.
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!)
Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
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.
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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.
The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink
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?
---- Booth was a patriot ----
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.
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.
Creative Spelling Copyright (2002). May use without Persimmons
Ray Beckerman +5 Insightful
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?
--Obyron
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?
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
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.