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Judge in Capitol v. Thomas Considers New Trial
Jay Maynard writes "The judge in Capitol Records v. Thomas said today he's thinking about granting a new trial because he may have committed a 'manifest error of law' in his jury instructions. He says that his instruction that simply uploading music to a P2P network without any proof that anyone actually downloaded it may conflict with a case in the Eighth Circuit Court of Appeals that said 'infringement of [the distribution right] requires an actual dissemination.' Briefs are due by May 29, with oral argument July 1. The judge invited friend of the court briefs by May 29, as well." NewYorkCountryLawyer links to the Judge's order itself (PDF), in which the Judge notes that he may (in NYCL's words) "have overlooked controlling Eighth Circuit authority, the case of National Car Rental v. Computer Associates, which held that you can't have a violation of the 'distribution right' without an 'actual dissemination of copies or phonorecords.'" Update: 05/15 18:54 GMT by T : Note that while the linked story as well as Jay Maynard's summary use the term "upload," Thomas wasn't uploading the files themselves, only making them available.
It sounds like they are saying simply uploading music to a P2P network is not illegal until someone downloads it.
Oops, I messed up.
Further Translation: A higher authority already had an established precedent which contradicts his instructions to the jury.
It appears this further backs the statement that simply "making available" isn't enough.
RTFG - Read The F#$%ing Google!
You can make it available for download without anyone downloading it.
Well, don't expect the terminology to always be technically correct.
Basically we're looking at a rematch in the "making available" debate. The original verdict nailed the defendant to the wall for making tracks available for download. Now the judge is thinking that was based on incorrect instructions he gave the jury about how to understand the law.
For "upload to a p2p network", substitute "place on a shared drive readable/searchable/indexed by a p2p network".
I remain on the fence on this one. I don't believe that literally "just making available" should be illegal; I also don't believe that putting the track on a p2p share is "just making available" because of the implicit advertising of availability. I understand the argument that you can't have distributed if nobody downloaded, but I find it hard to believe that my liability should depend so absolutely on the actions of others.
If you make a poison that is never actually imbibed, was it still wrong to make the poison?
Consequently, if you make a poison and children find and drink it, is making the poison now somehow worse?
Food for thought...
This is really a beautiful moment for our democracy, to see a judge on his own realizing his mistake, and instead of just sitting on it, doing something about it. I have to say... this is a big man.
Ray Beckerman +5 Insightful
If you put poisoned candy on your front porch, you don't get charged with negligent homicide unless a kid eats it. The actions of others do affect your liability.
~ a low user id is no indication I have a clue what I'm talking about.
Well if MediaSentry is considered an agent of the RIAA who is a agent of the copyright holders, then no it does not count although IANAL so I don't know if this legal logic has been tested.
Well, there's spam egg sausage and spam, that's not got much spam in it.
This is one of those times where someone else has to do something in order for what you do to be considered a crime. But advertising availability isn't copyright infringement. You infringe when you distribute. So if no one has downloaded, you haven't distributed, thus you haven't infringed copyright. It's a very dangerous thing to start saying that intent is enough to convict a person of a crime. Intent ought to be considered when a crime has occurred, but to outlaw intent itself sets very bad precedent.
Stop Global Warming!
Just say no to irreversible processes!
Just so. Every first-year law student learns on the first day of Torts class that a tort offense (a category that includes copyright infringement) has four elements, all of which must be proved in order to collect a remedy from the defendant:
1. The defendant must have had a DUTY to the defendant (such as a duty to respect the copyrights of the plaintiff).
2. The defendant must be guilty of a BREACH of that duty (e.g., by participating in the unauthorized copying or distribution of a work under copyright).
3. CAUSATION: the breach must have been the proximate cause of some infringement of the plaintiff's rights.
4. The plaintiff must have suffered DAMAGES as a result. In civil law, the rule is: no harm, no foul.
Now, in some cases of copyright infringement, plaintiffs are able to rely on a statutory assessment of damages (element 4) instead of actual damages because the damage done to their copyright is (in theory) difficult to assess. This principle is pretty shaky, when you look at the theoretical underpinnings, but it's what the courts and legislature have allowed.
This case seems to have now done away with element 3 as well: the plaintiff's exclusive right to distribute or copy the works has not been shown to have actually occurred, so there's no proof that the (alleged) breach actually caused an infringement of the plaintiff's rights.
I certainly hope that the judge calls for a new trial, as this precedent seems to create a new category of "attempted torts", which would transform the entire legal system if allowed to stand.
Can't one just substitute "poison" with "guns", to which it's obvious that making a dangerous weapon != using dangerous weapon on technical terms.
All this "wrong" or "worse" talk is about feelings, of which should not be involved in facts. Just because you "feel" it's wrong to make poison does not mean it *is* wrong to make poison (unless there is literally a law that says it's illegal to make poison). The same can be said about violent video games. Maybe you feel it's wrong to play a video game who's main character "wins" by raping and murdering others, doesn't mean it *is* wrong to play said type of game. That's were morals and laws divide.
That's where this legal debate keeps circling. There hasn't been any direct laws covering publicly accessible digital files. Is it "illegal" to simply place your digital files in a public folder? I dunno. I don't see how that in anyway harms people or others. That's be like saying it should be illegal to (for a car analogy) park your car on a public street (assuming there's no "no parking" signs).
However, it should be "illegal" to "take" (copy) said files, the same it would be illegal to take someone's car who's parked it on the public street. And that's the point I think people are trying to make. The RIAA are suing those who simply put their files in the public space instead of going after those who "take" said files via copying. (there's a whole other side of the case of the validity of making copies of things given that taking a person's car is illegal because it deprives said person of said car, but making a digital copy does not deprive said person of their property) They obviously do so, because they're trying to claim that those who "make available" (putting files in a public space) are directly trying to harm the RIAA's stakeholders. It gets even messier because most P2P "sharers" are doing so at no profit what-so-ever. Unlike people who might make hard copies of, say, a Harry Potter book, and try to resell them at a much cheaper price to make a profit are clearly profiting off the work of others. File shares are not profiting in anyway... in fact, one could argue it's *costing* them money to do so (because it takes up their bandwidth, which they pay for, though a weak argument given the negligible cost). So why would people pay others to "take" (copies) of their stuff?
Yet, the laws aren't that simple. Pirating music, movies, software and other digital files is a *real* threat to those who spend their time and money to produce such things. It'll kill a lot of businesses if it's determined that it's completely legal to share digital copies of things. Obviously, we can't have that (though I often wonder if we can, given a different business model like RadioHead, NIN, donations and Software as a Service that many FOSS projects use)
The RIAA go after sharers because it's a lot easier and a lot more static. But then again, lets add another "food for thought"... under "fair use", it's completely fair to sample small parts of something. Given the technology of P2P like torrents, where only small parts of a whole are taken from any one person, can it not be said that each sharer are well within their rights to give a single person small samples of copy righted material as long as it's not the whole product?
It's not just democracy, but this judge deserve real kudos for having the backbone to admit his error. Too often we here of those in power who realize they have made a mistake, and cover it up in lies or denial (often making worse mistakes in the process).
Rather than just referring to him as "the judge in Capitol V Thomas", his name is "Judge Michael Davis." If anyone happens to know him, I'd say that it's about time to congratulate him for being man enough to step up and make this admission.
Here's a better one: Someone sees a jar labeled poison on your windowsill and turns you in to the Poison Industry of America, who file suit against you for having poison, which their clients have a patent on. However, all you had was a jar labeled poison, and no one actually proved that it contained anything but water, let alone the PIA patented poison.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
There is (Westlaw too). The problem is what to search for, considering the complexity of trials. Also, electronic filing is available in most jurisdictions these days, but is not mandatory, nor should it be. Really, this just looks like a case of the defense not doing their homework and the prosecution being dishonest.
Ray Beckerman +5 Insightful
And yet citizens, who have even less expertise in law than lawyers and judges, are expected to obey the law and can be punished for not doing so.
What do you call a legislator at the bottom of the ocean? A good start!
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
And the 8th District Court of Appeals agrees with me, so while IANAL, I'm going to go with what they say.
The enemies of Democracy are
Doesn't matter, mediasentry has authorization from the RIAA labels to download the files in certain instances. Additionally, they admitted in a recent article that they don't know when/if anybody has downloaded the files ever. Ignoring that they don't have a license to conduct investigations in most states anyways.
Just because I don't have the authorization to offer a song for download, doesn't mean that the person downloading it doesn't have permission to download it. And for the purposes of copyright infringement, the fact that the other party had permission would limit my liability to making available. Since no unauthorized copy was created. And likewise if you reverse the situation if I have permission to allow the uploads, and the person on the other end doesn't have the authority to download, it's still a non-starter.
Which is where the arguments get difficult to prove, in order to prove it's case the RIAA has to demonstrate that somebody who wasn't authorized to download the materials did so. And that furthermore the downloads were offered on purpose rather than by accident.
It would not be valid to claim that I've engaged in copyright infringement if somebody broke into my computer via a rootkit and placed things into a p2p share without my permission. Nor would it be permissible to hold me accountable if I weren't aware that somebody else had put things up for share without my knowledge. As long as I had engaged in the due diligence necessary for the scenario, it wouldn't be my liability.