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Law Profs File Friend-of-Court Brief Against RIAA
NewYorkCountryLawyer writes "A group of 10 copyright law professors has filed an amicus curiae ('friend of the court') brief on the side of the defendant in Capitol v. Thomas, agreeing with the judge's recent decision that the $222,000 verdict won by the RIAA appears to be tainted by a 'manifest error of law.' The clear and well-written 14-page brief (PDF) argues that the 'making available' jury instruction, which the RIAA had requested and the judge ultimately accepted, was in fact a 'manifest error of law,' making the point, among others, that an interpretation of a statute should begin with the words of the statute. My only criticism of the brief is that it overstates the authorities relied on by the RIAA, citing cases which never decided the 'making available' issue as cases which had decided it in the RIAA's favor."
As it turns out, the MPAA, close ally to the RIAA, has come forth with a more controversial view. They suggest that proof of actual distribution shouldn't be required. From their brief (PDF): "Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."
you accuse someone of something, then come up and say that 'proof is not required'. get a load of that !!! back to middle ages. next ; witch hunting, death by stoning, and dung for dinner.
well, since it has come to this, i am hereby accusing all MPAA, RIAA members of child abuse, child pornography, treason. remember, PROOF IS NOT REQUIRED.
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"Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."
If they can't prove the distribution, then how do they know the copyright infringement is happening?
Unfortunately, the only message I think they'll get from that is "Oh noes! More people are pirating our shit!"
As independent authors, musicians and Free software developers and movie makers prove again and again, creating wonderful works of art and creativity does not require copyrights for a monetary incentive.
Movies, perhaps, require more financial support, but note: without copyrights, each of us would be exposed to many more movies which will all be far more accessible (non-copyrighted material can be distributed much more easily). So even if less movies are made, we will still enjoy more of them.
When you buy a piece of software, music or pay to see a movie, your money is not supporting the artists, or even supporting further creation. What you are supporting is a lobby that furthers laws to benefit companies to the great detriment of society. You are funding the enemies of society.
Please do not pay the copyright lobby to pass more anti-society laws.
Thanks.
One thing worth remembering of course is that the RIAA is not alone, it has little clones all over the world that follow in the footsteps of it's master (not least because they want to be able to buy resell rights for RIAA member companies' products). Here in South Africa for example we have ASAMI - which as gone so far as to say in public that 'recording a TV-show on your VCR is technically copyright infringement but we don't intend to prosecute that one simply because it would be impractical in cost compared to the damage done".
Actually, South Africa has a subset of copyright law known as Fair Dealing which is pretty much identical in wording to the US Fair Use law and recoridng a TV show to VCR is entirely legal. So is showing a DVD of a documentary to a class of schoolchildren.
Of course they have happily confused plagiarism with copyright whenever it suited them and love to call it 'theft' - despite the fact that copyright infringement isn't theft - it's a civil infringement not a criminal one - and stories of large scale seizures of 'pirate DVD manufacturing warehouses' are common on the news.
So the impact that these kinds of idiocies in the US legal system has is global because the RIAA's minions will attempt to subvert any laws in any countries to suit.
Let's just see what we have in this post (a fairly representative sample I think):
-Merely making it available is the same actually giving somebody a copy... by that thinking if I forget to lock my door and somebody steals my fridge... I'm as guilty of theft as he is ? I would go so far as saying that sharing music isn't copyright infringement at all, downloading it may well be, but making it available (Especially as it frequently happens without the person's knowledge) is not. It could even be argued that there is significant legal uses for sharing music - for example to save a friend who also owns the same album the massive effort involved in a format shift you already made. If others now download the music from you as WELL - without your intent... are you still guilty ? This is a side-effect of the technology and has nothing to do with what you did - sharing with somebody who had the RIGHT to get a copy of the music (he already PAID for it). There is no such thing as 'attempted' infringements in civil cases, especially not copyright.
-Oh we shouldn't need to actually PROOF our claims. Not only is it enough to say you 'made it available', heck they think they don't even need to back that up !
-When they THEMSELVES download the music which this entire thing is about them claiming to own in order to proof it's available from you... that download BY THEM can be counted for damages ? How the hell are they damaged if they download their OWN music ? Before I pointed out one example of a P2P usage to share with a valid, authorized downloader - who could be MORE valid and authorized than the copyright owner ? They could try to make a case against a CD-owner having the right to DOWNLOAD rather than RIP digital copies -- but surely not that the OWNER of the copyright isn't an authorized downloader ! What is worse, if they are damaging their own copyright by downloading it... wouldn't that make this a case of evidence obtained illegally (through the breach of the very law in fact they are trying to proof you breached ?). It's not just legally unsound, it's logically unsound (to put it politely).
And that's not even thinking of things like copy protection mechanisms which are outright attempts to make it impossible to excercise our fair user rights. It seems clear to me they only care about that side of copyright law they can abuse to make money. They cannot get rid of fair use law outright, so they try to technologically strong-arm it away from us.
Frankly, I believe that a judge should say that no person or corporation can claim protection under a law they repeatedly and continuously fail to respect. If you do not respect fair use (which implies no effort made to prevent people from making backup copies), how can you claim protection under the rest of the copyright act ?
How much longer are we going to put up with this ?
Unicode killed the ASCII-art *
Someone once pointed out that under the "making available" theory, most men with a wife or girlfriend could easily be charged with involvement in prostitution. After all, if a man leaves his woman home alone or lets her go out in public by herself, she could very easily make herself sexually available to any passing man.
This isn't entirely hypothetical, of course; there are some parts of the world where men do take this attitude.
Somehow, I think I'd rather not have such legal theories adopted where I live. I think my wife would agree.
I've also noticed that we often have tools like knives lying on our kitchen counters. Those knives have often been out, and even used, when we have visitors. Kitchen knives could be used to kill people. So are we "making available" dangerous weapons when we give visitors such easy access to our kitchen knives? (Sometimes we've even put steak knives on the table, knowingly and with the intention that they be used. ;-)
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.
On the other hand, failing to mandate that proof could have the pernicious effect of depriving individual citizens of a practical remedy against erroneous copyright infringement charges in many instances.
And "erroneous copyright infringement charges" often come with a permanently-impoverishing price tag.