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."

Comments

Boycott CD's and DVD's

[Anonymous Coward]

We should all just boycott buying any CD's or DVD's at all. Don't download anything from iTunes or any of the other stores, either. If we make a strong stance and hit them in the wallet, maybe...just maybe...they'll get the message.

Re:Boycott CD's and DVD's

[Draek]

I hate to break it to you, but major labels are currently a necessity. An evil one, but they're there for a reason.

No, they aren't.

The fact is, a good portion of the population doesn't want to take the time to find out what is good by sifting through 1 million shitty bands just to find that one good one.

The vast majority of the population doesn't want to take the time to find out what is good by shifting through 1 million shitty websites either, but they don't have to. Blogs, websites like last.fm, or even good ol' fashioned word-of-mouth would be good enough if they didn't have to compete with the RIAA's million-dollar marketing machine.

The major labels do this for us. They help promote the music that they think we, as a whole, want to listen to. (I realize "good" is subjective here.)

No they don't, they drown us in advertising for music that they think it's cheaper and easier to produce. Just take a look at how much they advertise the various genres and see for yourself. Good classical composers are a statistical anomaly, and are barely mentioned if they're even signed at all. Good-looking 18-years-old with synthetizers are a dime a dozen, and you can't even read the fucking BBC without getting Britney and Amy pushed on your face.

Without either NiN or Radiohead having been famous, their model probably wouldn't have worked out to well for them in the first place. They probably wouldn't have become famous without a major label.

As famous as they are? no, maybe not. The internet wasn't as big around the time they got famous, so they couldn't have used it as well as they could now. But all in all, provided they didn't have to compete with the RIAA's marketing machine, I think they would've done just fine.

Re:Wow. get a load of that. proof not required

[Heather D]

Indeed, the MPAA seems to genuinely believe that they are above the judgements of us 'commoners'. There was a time when I would have laughed at this, these days I'm only pretty sure that it won't go over.

Re:Wow. get a load of that. proof not required

[thewiz]

What all the **AAs are doing is a simple application of the "Golden Rule": He who has the gold makes the rules.
Just remember what happened during the French Revolution.

Re:Wow. get a load of that. proof not required

[Kjella]

The Wired article and Slashdot summary got so much spin, it needs a little counterspin.

Can you be convicted of murder without a body? Yes, you can. But wait, how do you do that without proof they died an unnatural death or even died at all? Circumstancial evidence - it's been enough to prove "beyond a reasonable doubt" so certainly it could be enough in a civil case.

What the RIAA is saying is that they have enough circumstancial evidence. That sharing a file on a public file-sharing network that exists for the very purpose of distributing files, where it's available to anyone that requests means that the network will perform its expected purpose - which for a copyrighted file is to perform unauthorized distribution. That this in itself is a "preponderance of evidence" that copyright infringement did occur, even without the body and smoking gun.

I think the RIAA could gather fairly strong evidence on this easily - set themselves up as a fake sharer of the same file and record how many people tried to downloaded from them. I think that would be very strong circumstancial evidence that copyright infringement does occur for others sharing the file. The standard of proof is after all quite low.

What I fear is that if this passes through, laws will change because it essentially makes P2P users immune and you know the powers to be won't stand for it. The only way to get direct evidence of infringement between third parties would be wiretap warrants. Wiretaps for "suspected copyright infringement"? That'll be rubberstamp heaven and the police wouldn't handle the volume - enter the copyright cops. I think there's more to lose by winning the battle than not.

Re:Really?

[smoker2]

Yeah right, so if I set the permissions on everything in my shared folder to 600 ,then they can still get me, because the titles are visible.

Re:Wow. get a load of that. proof not required

[caffeinemessiah]

They bought the book, so they can lend it,

This is interesting. I wonder if I can legally "lend" or "give" a copy of an electronic file that I purchased (not licensed) and own to someone else by transmitting it and then deleting my sole copy of it. It could open up some very interesting paradigms in file sharing technology.