Court Grants RIAA Summary Judgment Motions vs. Limewire

NewYorkCountryLawyer writes "District Court Judge Kimba Wood has granted some of the RIAA's key summary judgment motions in Arista Records v. Lime Group. In her 59-page decision (PDF), she found Lime Group itself, as well as its CEO and a separate company, liable for intentionally inducing Limewire users to infringe plaintiffs' copyrights. The decision was not a final judgment, so it is not appealable. Additionally, it denied summary judgment on certain issues, and did not address any possible damages."

Comments

In Summary

[phantomfive]

In summary, it is illegal to download copyrighted material (without permission), or to encourage others to do so. Go ahead and do it, but realize you are doing so at your own peril.

Re:In Summary

[initialE]

Isn't this a major change from "it is illegal to upload copyrighted material"?

Re:In Summary

[KingSkippus]

Since I really don't want to bother reading 59 pages just to get the answer to this question, does it address how Limewire "encouraged" people to download copyrighted material? Is it simply because it allows people to make whatever they have available, and that just happened to be what some people make available?

Does it explain how this is different from, say, an automobile? After all, cars can be used to transport just about anything. Illegal things like unlicensed guns, drugs, teenagers across state lines, stolen merchandise, illegal aliens, bodies of people you've just murdered, cases of laundered cash for organized crime bosses, etc. They can also be used to transport legal stuff, like my ass back and forth to work every day.

I guess what I'm really not getting is, if Joe Schmo gets caught using his 1979 Impala to haul illegal copies of Free Willy DVDs, will the RIAA/MPAA sue Chevrolet?

Re:In Summary

[Yez70]

Actually - it IS NOT illegal to download anything. Stop trying to distort the truth. It does not say that anywhere in this judgement and it does not say that anywhere in the law. The issue is distribution - not downloading. The only illegal issue is the 'unauthorized distribution' as in uploading or sharing copyrighted files with others without authorization from the copyright owners. There is nothing wrong with downloading a file to check it out. It is no different than opening a magazine to see if you want to buy it at the store. You are not stealing the magazine, you're just looking at it. Photocopying the magazine AND giving it to someone else would be illegal though - get it?

Re:In Summary

[McBeer]

I guess what I'm really not getting is, if Joe Schmo gets caught using his 1979 Impala to haul illegal copies of Free Willy DVDs, will the RIAA/MPAA sue Chevrolet?

If Chevy was actively advertising how many illegal DVDs you can fit in the car and DVD bootlegging in Impalas ran rampant maybe. Otherwise, they are probably safe. It seems to come down to if a product is used mainly for illegal activity and the manufacturer encourages that illegal activity. Google's and Chevy's products serve mostly legal purposes. Limewire and co have some legal uses, but mostly are used for illegal file sharing. It's a somewhat nebulous issue since it's hard to say what "mainly used for" and "encouraging" actually mean. The courts seem to be busily establishing case law for that though.

Re:In Summary

[Spewns]

I guess what I'm really not getting is, if Joe Schmo gets caught using his 1979 Impala to haul illegal copies of Free Willy DVDs, will the RIAA/MPAA sue Chevrolet?

The only reason that doesn't happen is because way too many people, even the dimmest of us, would realize how hilariously absurd and irrational that would be. Everyone can relate to it.

But the RIAA/MPAA can be just as hilariously absurd and irrational (if not moreso) when it comes to copyright and filesharing because the populace don't understand the subject(s)/technology. And what they do hear is exclusively RIAA/MPAA propaganda which puts them further away from understanding.

Re:In Summary

[Toam]

What if Chevy were advertising how many legally owned DVDs you could fit in there, but people still went on transporting pirated copies of Free Willy? A similar argument would be could the RIAA et al sue, say, companies who produce blank dvds? What about apple? Apple advertise how many songs you can fit on an iPod... and I can fit the same number of songs* whether they are pirated or not. *Ignoring all the inherent flaws in using "X amount of songs" as a measure of hard disk capacity

Re:In Summary

[Iamthecheese]

I urge you all to infringe RIAA copyrights in any way possible.

Re:In Summary

[Anonymous Coward]

And an EULA means nothing.

Re:In Summary

[calmofthestorm]

It's like how if "The Pirate Bay" were called "The Linux ISO Bay" it might have fared better in court.

Re:In Summary

[KingSkippus]

If Chevy was actively advertising how many illegal DVDs you can fit in the car...

Well, that's just it. I've looked pretty thoroughly at Limewire's web site, and I'm just not seeing any reference at all to illegal downloads. In fact, the site looks on the surface to be pretty vanilla corporate-type design. Maybe the judge has some kind of smoking gun I'm just not seeing, but as far as I know, Limewire has never advertised itself as a product you should use to download files illegally. (But granted, being a commercial implementation of something I can get for free without adware infestation, I've never looked too closely into it.)

...and DVD bootlegging in Impalas ran rampant maybe.

Well, another analogy I can think of is the sale and use of so-called "Saturday night special" handguns. In spite of their prevalent use in criminal activities, a lawsuit against them was dismissed in 2003, and they remain largely unregulated today.

Not saying that they should or shouldn't, I'm just saying that it seems to me that it's awful inconsistent to pass summary judgment--as in, they didn't even get a trial--when other companies that specialize in providing stuff that is foreseeably used quite often, if not mostly, in illegal activities gets a free pass. Hell, if I wanted to, I could even buy a set of lockpicks and go to town. (Or more to the point, go to your house.)

Re:In Summary

[Anonymous Coward]

Why is it my business to be responsible for someone else's conduct. I have a huge problem with that basic assumption when it comes to the copyright cases related to P2P networks.

Re:In Summary

[whoever57]

Hell, if I wanted to, I could even buy a set of lockpicks and go to town. (Or more to the point, go to your house.)

I would not advise that, at least not where I live. Some time back, a mechanic who was driving me home (after dropping my car at a transmission shop) told me that, later that day, he had to meet with the local DA because they were threatening to prosecute his son (also a mechanic) for walking the streets with a screwdriver in his pocket.

Re:In Summary

[cgenman]

IANAL, but that position is pretty thin.

For one, illegal or not the RIAA sues people using tracked downloads as evidence of filesharing. It will either cost you 10k to settle, or at least 10k in legal fees. In practical terms then, there definitely is something wrong in downloading a file to check it out, and it will be viable evidence against you in a court of law.

For another, you're not opening a magazine to see if you want to buy it or not. You're inducing copyright infringement to get an illegal copy. Even if it is to "decide if you want to buy," the fact remains that someone violated copyright at your request, and that you most definitely knew it was going to happen. At minimum, that makes you guilty of being an accessory to copyright infringement, inducing copyright infringement, and conspiracy to commit copyright infringement, which have been ruled illegal in various locals at various times. Further, an overpaid lawyer could easily argue that the copy being made at your request makes you a joint principle in the act. Pressing "download" on bittorrent is like pressing the copy button on a xerox, irrespective of who owns the xerox and who loaded the book into the copier. A skilled lawyer would argue that the uploader isn't making any copies at all, they're just holding up a book saying "come make copies of this." The downloaders are the ones who bring their little xerox machines, and suddenly have identical bits on their computers.

Maybe a real lawyer could chime in on this subject (please?). But things definitely aren't as black-and-white as "uploading is illegal, downloading is legal."

Re:In Summary

[westlake]

Since I really don't want to bother reading 59 pages just to get the answer to this question, does it address how Limewire "encouraged" people to download copyrighted material

From the LA Times:

Relying on the Supreme Court's ruling in MGM v Grokster, Wood held that the defendants deliberately induced LimeWire users to violate copyrights, and that it profited from the infringements. Here's a snippet from the ruling (Wood refers to the company LimeWire by the initials LW):

[T]he following factors, taken together, establish that LW intended to encourage infringement by distributing LimeWire: (1) LW's awareness of substantial infringement by users; (2) LW's efforts to attract infringing users; (3) LW's efforts to enable and assist users to commit infringement; (4) LW's dependence on infringing use for the success of its business; and (5) LW's failure to mitigate infringing activities.

Most of those factors are non-controversial applications of the Grokster principle that folks who encourage piracy in order to profit from it are liable for infringement. Wood cited internal documents to show that LimeWire executives knew most of its users were downloading songs illegally, and that they sought out such users through, among other things, "press campaigns on college campuses relating to 'file-sharing and getting free MP3's.' " The company aids would-be infringers, Wood wrote, by enabling them to search by categories (such as Classic Rock and Top 40) that "inevitably guide users to copyrighted recordings." She also noted that the more users it attracts, the more revenue it collects from advertisers and consumers who buy the ad-free version of the software.

Wood's fifth factor, however, suggests that liability might ensue merely from the way a technology is designed and used. According to Wood, LimeWire built a filter into the software that could block copyrighted works from being downloaded, but left it inoperative unless users turned it on. A separate filter, however, barred users from sharing the songs they bought from the LimeWire store.

This selective filtering further demonstrates LW's knowledge of infringement-mitigating technologies and the company's intentional decision not to employ any such technologies in a way that meaningfully deters LimeWire users' infringing activities....

Failure to utilize existing technology to create meaningful barriers against infringement is a strong indicator of intent to foster infringement.

As for former CEO Gorton, Wood cited precedents that held company executives liable for infringements when they had the ability to supervise them and they benefited from them. She went on to note:

Gorton directed and approved many aspects of LimeWire's design and development. Gorton admits that he conceived of LimeWire and decided that the program should be decentralized and should use P2P technology.... Gorton oversaw the development of LimeWire's filtering system, and decided that the filter should be turned "off" by default.... This evidence, taken together, also establishes that Gorton knew about the infringement being committed through LimeWire.

Another win for the RIAA

Re:In Summary

[future assassin]

I've asked that question tons of times but no one answers it. If Chevy had no money for lawyers I'm sure they would get sued too.

Re:In Summary

[Barrinmw]

Yet it is completely legal to encourage others to access material that informs people on how to commit seditious acts and mass murder so long as you don't tell them to actually commit it.

Re:In Summary

[phantomfive]

Actually - it IS NOT illegal to download anything

Sure, keep telling yourself that. Meanwhile, back in reality, we are under US copyright law (in the US, obviously).

We also have case law showing that your argument does not stand up in court. From the judgement by the appellate court, we have this lovely quote:

As [the defendant] tells the tale, downloading on a try-before-you-buy basis is good advertising for copyright proprietors, expanding the value of their inventory. The Supreme Court thought otherwise in Grokster, with considerable empirical support.

I'm not talking about morality here, I'm talking about the legality of the matter. You can feel free to try that defense if you ever end up in court over this, but you will lose. Get it?

Re:In Summary

[GreatBunzinni]

That isn't exactly true. It may be considered illegal to distribute copyrighted material withouth the copyright owner's explicit authorization if and only if you don't do it for personal use alone and you enjoy a financial profit from it. In some jurisdictions (i.e., practically the entire world) it's very legal to download copyrighted works if you do it in a non-commercial, completely personal way and those responsible for the distribution don't make a dime out of it. That's the french copyright tradition for you, which the entire world emulated for a good reason. After all, if you impose a totalitarian gatekeeper on educational and cultural goods then your education and culture will be controlled by a totalitarian elite, which will lead to granting only access to culture and education to a small elite who can afford it.

The french revolution happen for a reason.

Re:In Summary

[Slotty]

In answer to your question this is probably the best excerpt:

First, Dr. Horowitz has not opined on the parties’ state of mind, but rather has provided information on the design and functionality of the LimeWire program. See, e.g., Horowitz Report 56 (“Although Lime Wire LLC professes to be agnostic about what files are transferred using LimeWire, LimeWire’s feature set is optimized for downloading popular audio files.”); id. 57 (noting that the design of LW’s “user interface” supports the download of music files); id. 66 (opining that the use of a “Classic Rock” genre category has the effect of generating search results containing unauthorized works); id. 70 (discussing that some of LimeWire’s features are “potentially confusing” to users).

I guess what I'm really not getting is, if Joe Schmo gets caught using his 1979 Impala to haul illegal copies of Free Willy DVDs, will the RIAA/MPAA sue Chevrolet?

GRANTS Plaintiffs’ motions for summary judgment on the claims against Gorton and Lime Group for inducement of copyright infringement, common law infringement, and unfair competition

It's about the intention of the company. If GM was marketing cars on the sole basis of "This car has so much boot space you can haul illegal DVD's to sell" then the money grubbing associations might be entitled to get annoyed

Re:In Summary

[phantomfive]

It may be considered illegal to distribute copyrighted material withouth the copyright owner's explicit authorization if and only if you don't do it for personal use alone and you enjoy a financial profit from it.

This is a common misconception among pirates, and it is completely wrong. At least four different things are taken into consideration when it comes to fair use, among those are how much of the work is being used. A complete copy of an item is not likely to fall under fair use. A 30 second clip on iTunes probably (but not necessarily) would.

If you want to see how the court handles an argument similar to yours, check out this case. They decided strongly against the defendant, and even addressed your claim of 'personal use:'

[The defendant] was not engaged in a nonprofit use; she downloaded (and kept) whole copyrighted songs (for which, as with poetry, copying of more than a couplet or two is deemed excessive); and she did this despite the fact that these works often are sold per song as well as per album.

So once again, if you want to download songs, it is up to you, but don't do it under the illusion that it's in any way legal.

Re:In Summary

[westlake]

Actually - it IS NOT illegal to download anything.

Can you produce a signed NDA with the studios for the pre-release screeners in your possesion?

I didn't think so.

Focusing on the uploader is efficient and economical. But P2P downloads can be hazardous for the greedy and the careless.

 

Re:In Summary

[Yez70]

You're right - it is not black and white. But the fact remains, there still is no law making it illegal to download a file. The RIAA does not nail you for downloading a file from them or anyone else. They nail you when they download a piece of the file FROM your torrent on your PC. They catch you 'distributing' a copy. That's the difference, otherwise it would be illegal for the RIAA to download that piece of the file from your torrent. It's not illegal to hit 'copy' on a Xerox - in fact you can copy anything you want on the Xerox at the library. They won't stop you and you won't get arrested for it. The illegal act is distribution - that is the only law being broken - making a copy and giving it away or distributing it to others.

Re:In Summary

[Yez70]

I never said that was a defense. I said that's not the legal issue. Downloading a file is not illegal - sharing it is the illegal part because it is distribution.

Re:In Summary

[rolfwind]

In practical terms then, there definitely is something wrong in downloading a file to check it out, and it will be viable evidence against you in a court of law.

For another, you're not opening a magazine to see if you want to buy it or not. You're inducing copyright infringement to get an illegal copy. Even if it is to "decide if you want to buy," the fact remains that someone violated copyright at your request, and that you most definitely knew it was going to happen. At minimum, that makes you guilty of being an accessory to copyright infringement, inducing copyright infringement, and conspiracy to commit copyright infringement, which have been ruled illegal in various locals at various times.

Your entire argument is retarded. First, you're using language (accessory) to a criminal offense, not a civil one -- which AFAIK, copyright infringement is.

Second, going by your argument, if you were responsible for downloads, every time you open a webpage, you would open yourself up to liability. Who owns that font? Who owns that clipart? Or those jpegs? Haven't you ever heard of websites using other website author's templates, either knowingly or unknowingly. Should you the browser be liable then? Browsing is downloading, although we have been conditioned to associated so-called "illegal downloading" with music/movies -- in fact copyright would protect everything down to the lowly font, jpeg, and animated gif.

A downloader is not responsible to know whether the place he is downloading from owns/licensed proper copyright. Moralely perhaps, but legally he should not, if for nothing else because it would be impossible to ascertain all the elements are owned by said parties and in many cases impossible to know beforehand.

Re:In Summary

[SharpFang]

Misconception? Maybe in the US.
GP post states this is common in most countries. I can confirm some. The four fair use clauses are US-specific. Other countries have very different rules, and often "personal use" is perfectly legal. So, the misconception may be only common with US file sharers. With the others, it's not a misconception.

Re:In Summary

[phantomfive]

OK, this is going to sound like a flame, but unfortunately it's 100% true: you are either extremely dumb or extremely lazy, I can't figure out which. If you weren't, you would have read one of the links in the GP, which showed that downloading a file is in fact illegal, inasmuch as it has been found to be against the law. That makes it a legal issue. you sir are wrong, sorry.

Re:In Summary

[Yez70]

Based on your link:

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.

Notice nowhere in the law does it say that RECEIVING a copy is illegal - only making the copy. The person hosting the torrent is the one making the copy you download - not you.
Now with the mere fact that once you download it and SHARE it, you become a distributor - that's where you are breaking the law.
Remove the P2P aspect where you download it from a link or an FTP server - you are legally safe. The person hosting the file though is still breaking the law.

Re:In Summary

[Yez70]

Show me one quote anywhere in the law where it says 'downloading' is illegal. It does not exist - every single law is related to distribution.

Re:In Summary

[phantomfive]

Ooh so now we can rule out lazy, at least a little bit. I think you are probably not stupid, just willfully ignorant, since you seem to have purposely missed the other link, where downloading over P2P software is in fact interpreted as making the copy. Sorry man, you're wrong.

Re:In Summary

[phantomfive]

Doesn't have to, all that matters is how the courts will interpret it. And courts have interpreted the law to mean that downloading = copying, and copying is explicitly declared illegal.

Re:In Summary

[Anonymous Coward]

Nope - he can be right...

It only depends in what country you live in. Here in the Netherlands downloading is absolutely NOT illegal. Uploading IS illegal however.

Anyway - here in this country there is a initiative going on from some people from the entertainment industry (yes - big labels are involved) to give unrestricted and legal download for an small monthly fee (about € 10,-). I think this is a more sensible initiative that suing everything and everyone to death...

We have to wait and see how this turns out...

Re:In Summary

[Anonymous Coward]

For another, you're not opening a magazine to see if you want to buy it or not. You're inducing copyright infringement to get an illegal copy.

Have you ever watched a Youtube video that used copyrighted music? Congratulations, you're a pirate.

Thats basically what you're trying to justify in the digital age.

Re:In Summary

[arogier]

Given the technical savvy of the judiciary in general, I think such a name for a torrent tracker if it hosted the same content as the pirate bay would more likely endanger Linux ISO's than protect the torrent tracker.

Re:In Summary

[sexconker]

Downloading a file you do not have a legal right to access is illegal.
Just as it is illegal to sneak into a theater even if it had unlimited open seats.
It is theft.
No, it does not matter that no physical object was taken.

Re:In Summary

[Cryacin]

First, you're using language (accessory) to a criminal offense, not a civil one -- which AFAIK, copyright infringement is.

Yes, but remember, downloading movies and music is *STEALING*, which of course is a criminal offense. At least that's what they want it to be.

Re:In Summary

[Windows Breaker G4]

The RIAA and MPAA have made it very clear that when you buy a CD or DVD you aren't actually buying anything more then a license. So if I own a license for a movie or album is it still illegal for me to download it? If you already own it, is it still stealing? A DVD you own getting scratched is a good example of this.

Re:In Summary

[Joce640k]

Umm, maybe the web site changed ...

Re:In Summary

[Yez70]

Ok, apparently you just don't get it. Just because she lost the case based on her fair use defense does not mean she did so because she 'downloaded' the files. Also, basing your opinion on a link to a Wikipedia article that only discusses the Appellate court decision, but not the lower court case is far fetched. It seems odd that the wiki article does not link to the lower court decision actually. Wikipedia can also be manipulated - I'm fairly sure the RIAA actively does so too.
In fact if you read the actual full appellate decision, it is filled with inaccuracies and an obvious RIAA slant. Since there really has not been many cases where the RIAA has actually won beyond an out of court sealed settlements, considering the trillions of cases of downloading - you can hardly consider this proof that downloading is illegal. It's merely an opinion that is partially valid in the 7th circuit when based on a fair use defense.
It states things like Music sales are down 30%. They're not - it's RIAA propaganda, albeit it could be true that the sales of RIAA music may be down or CD sales are down, considering the crap coming out of the RIAA based music industry these days - overall music sales have been increasing steadily every year.
It states: "Licensed Internet sellers, such as the iTunes Music Store, offer samples—but again they pay authors a fee for the right to do so, and the teasers are just a portion of the original." This is also untrue - iTunes does not pay me one dime for letting people listen to 30 second samples of my music and they don't pay the record labels for this either. (Yes, I have music on iTunes, Amazon, Napster, emusic and many other stores - I understand what they pay for very well). STREAMS are paid though (a pitiful 1 cent or less per stream), but iTunes does not offer streaming.
There still is no LAW making downloading illegal. Distributing copies is the only illegal issue that is stated in the law. If it was illegal, would the RIAA not also be breaking the law merely catching these supposed infringers? They are, after all, downloading a piece of a an unauthorized copy of a file right in order to obtain 'evidence'?
Copying is also still legal btw - as I can still copy my CDs to my MP3 player with zero fear of breaking a law.
Music fans have an ever increasing appetite for more music. It’s just that they consume it differently than in years past. Rather than buying a CD at the local music store, fans now look for a different consumption experience. They go to MySpace to directly connect with artists they love, watch videos on YouTube, purchase a few tracks on Amazon, build streaming radio stations to find similar tunes at Pandora, and more.
According to IFPI and Neilsen more music is being sold.

Here's some Neilsen stats...

NIELSEN INFO
2006
US Music Purchases exceed 1 billion, growth in overall music purchases exceeds 19%
Digital sales increase 65% from 2005
2007
US Music Purchases exceed 1.4 billion, growth in overall music purchases exceeds 14%
Digital music sales account for 23% of music purchases
2008
US Music purchases exceed 1.5 bilion, growth in overall music purchases exceeds 10%
Digital music sales account for 32% of music purchases
2009
US Music Purchases up 2.1% over 2008. Music sales exceeded 1.5 billion for the second consecutive year.
Digital music sales account for 40% of total US purchases.
Consider also the simultaneous increasing revenues from live music, now considered an artist's primary revenue source - but that's just getting farther off topic.

Re:In Summary

[Kpau]

So far, the rulings I've seen have relied on the fact that torrents, by definition, are uploading material as they download. I've not seen any rulings against Direct Downloads - only against filesharing using torrent protocols. Granted, that may be because they're basically screwed in trying to detect a DDL without committing various criminal offenses... but so it goes.

Re:In Summary

[benarius]

Now IANAL but there is something about all of this that I do not get. In Australia, all created works automatically receive copyright, this includes websites, books, everything. What is the difference between a website being saved locally and a book or song being downloaded and then being saved. Presumably the authorities dont have a problem with someone saving a local copy of a website but this is a copyright infringement as a complete copy of the work has been made without authorisation. What about the link save target as... which pops up everytime someone right clicks in windows. By the same logic, this is the creation of a new copy and is a copyright violation, at least in Australia. Is not Microsoft willfully aiding copyright violations by letting people save copyrighted works on their own computer. In Australia, if saving a copy of a book or movie is illegal, then saving a local copy of a webpage is just as illegal and I do not think it matters who owns the website. By publishing the website, they still have not given permission for you to make copies in the same way a book and movie publisher has not given you permission to make copies.

Re:In Summary

[Lloyd_Bryant]

The illegal act is distribution - that is the only law being broken - making a copy and giving it away or distributing it to others.

Not entirely true. Under copyright law, there are *two* offenses - the creation of an unauthorized copy, and the unauthorized distribution of copies.

The reason the RIAA has been mainly working on the latter is quite simple - it's damn near impossible to prove someone created an unauthorized copy (by downloading it) unless you are the source for the download, which creates a legal mess (if the rights holder is providing the download, is it really unauthorized?).

There *have* been cases where the RIAA went after someone for distribution, failed to find enough evidence, but then proceeded to nail them for the unauthorized copies based on evidence obtained when they were trying to prove distribution.

So they won't actually go after someone for downloading, but if they find evidence of downloading while investigating distribution, they can and will pursue that.

Re:In Summary

[Alsee]

I agree with you that it is irrational and broken to place legal liability on the downloader. A downloader is in no position to know whether the uploader is authorized to make that upload. Hell, as far as the downloader knows the uploader could be the copyright holder. The downloader cannot even be certain of the contents of the transfer until afterwards. The downloader often has no way to know the copyright status of the file. The uploader is the only one in a position to be certain of the contents, the only one in a position to know whether he has the legal right to send that file. The uploader is the only rational and functional place to put the responsibility and liability. Trying to place responsibility on the downloader causes all sorts of logical and legal messes.

HOWEVER

You're assumptions and assertions about the law are completely wrong. In the U.S. and in every nation in the world under the Berne convention, distribution and the act of creating a copy are both infringement of copyright. If you need a citation, US Title 17 section 106 specifically restricts the act of reproduction - i.e. copying. Under the law, downloading creates a new copy on your computer. In effectively every country on earth, downloading is copyright infringement. (Presuming of course it's a copyrighted and unauthorized file, yada yada yada.)

Not only is it civil copyright infringement, but the U.S. NET Act made virtually all P2P related infringement into criminal copyright infringement. And not merely criminal infringement, but felony infringement subject to several years in prison. Originally the criminal copyright provisions were only designed to target commercial copyright infringement enterprises. Unfortunately all copyright legislation for the last few decades has literally been drafted by lawyers employed by the copyright industry, and our idiot legislators have been pretty well taking those "expert" drafts and passing them. And industry lawyers of course have a nasty habit of slipping legal tricks or gotchyas into legislation when they get to draft it themselves. In this particular case the NET Act had a small easily overlooked provision:

17 U.S.C. S 101
S 101. Definitions
Add the following between "display" and "fixed":

The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

The NET Act slipped that redefinition into the law. And if you're a legislator going over a bill to figure out and consider the actual being proposed, it's natural to focus on the text that will be the actual laws. And in getting to the text of actual criminal law and penalties and whatnot, it's extremely easy to skim over that provision. And in skimming over it, it doesn't seem particularly notable or unreasonable. But you and I are specifically thinking about the internet, and if I draw your attention to that provision, well now it's pretty blatant that that redefinition directly targets P2P. Anyone who uses P2P has the "expectation" that they will be receiving copyrighted works. This clause redefines P2P under the heading "financial gain". The main body of the bill was revising the criminal law for commercial enterprises infringing copyright. It uses a redefinition to shove P2P into the category intended to target gross commercial infringement operations.

The legal details get a bit messy. To make a long story short, practically everyone who has ever touched any form of P2P is technically a felon subject to up to 1, 5, or even 5 years in prison depending mostly upon how much P2P you've used. On a second offense the penalties generally double, up to 10 years in prison. Hell, anyone who ever swapped old audio cassette mix tapes with their friends falls within that "criminal infringement for financial gain" definition.

That law is virtually never actually enforced, but that does not alter the fact that a very substantial percentage of the population are technicall

Re:In Summary

[Alphathon]

Honestly that doesn't surprise me, and I'm not sure it's actually a bad thing. Not that they should prosecute or anything (should be given a warning and nothing more IMHO) but just as it is perfectly reasonable and understandable for a mechanic to a screwdriver it is still capable of serious damage to a person. Obviously I don't know the circumstances (was he really "walking the streets" or just on a pavement [sidewalk] working on a car at the time for example) but carrying a tool that can be used to do serious harm when there is no reason to do so should be illegal (at the very least it could do accidental damage). Carrying lockpicks is slightly different, as doing so cannot do accidental harm beyond what keys or something similar could do. Carrying them may strengthen a case against you in a breaking and entering/burglary case but simply having a set on your person has no really legitimate reason to be illegal. Now carrying either with the intent to use them to harm or break in or whatever SHOULD be illegal, but only if intent can be proven beyond reasonable doubt. Why a screwdriver differs is that there needs not be any intent in order to do harm.

Re:In Summary

[int69h]

So I'm guessing that the large Buck knife that I carry in my pocket every day is just straight out by your logic then?

Re:In Summary

[cgenman]

Nobody is arguing what should happen. Only what has been.

Accessory, inducing, and conspiracy have all come up in copyright cases in recent years. I don't recall if they were civil or criminal offhand, which is one reason I'd love a lawyer to chime in here.

Second, the digital age has added so many messed up conditions around copyright law that it seems greatly outmoded. Making a "copy" in RAM for normal playback had to be given an exception in copyright law. Some judges have swallowed the argument that this copy is why click-through agreements are binding: otherwise the user wouldn't have the right to make that RAM copy, or install to hard disk. In other cases, such as kiddie porn, browsing to a site that caches an image on your hard drive, even if it never displays it, is enough to make you legally liable. MPEG-LA has made clear that they believe the end-viewer of a YouTube video that hasn't properly licensed their codec patents is technically also in violation of their codec patents.

As another poster pointed out, you make copies all the time of websites. Your computer puts it in RAM, caches it to hard disk, sends it off to be displayed, the display might have its own RAM, Firefox will cache it somewhere else for offline use and might make a thumbnail, etc. Or you can "save-as," and read it later. This is all technically copying. Sure, we give it all fair-use exemptions because that's how the internet works. But these exemptions exist because the internet breaks the old copyright rules in ways that the system cannot handle. When you take a photograph of someone wearing a t-shirt and put it up on Flickr are you violating the t-shirt creator's copyright? Stupidly, yes, you are. What if your router caches a copy of the photograph as it goes by? There is an exemption for that. But it is an exemption because it otherwise goes against the outdated structure of copyright law.

The system is an outdated mess the needs a major overhaul to bring it in-line with the realities of the digital age. One of those would be what you suggest: the downloader shouldn't be responsible for knowing if something is properly licensed so long as they reasonably believe that it was. But as far as I know, any behaviors like that are currently based around convention and exeptions rather than proper, well-thought-out lawmaking.

Re:In Summary

[Alsee]

Both distribution and creating copies fall under infringement. That would be Title 17 section 106 of US law, and that's the same across the globe. Downloading is creating a copy. Uploading and downloading are essentially equivalent under copyright law.

if you were responsible for downloads, every time you open a webpage, you would open yourself up to liability

Correct.
Unbelievable, but essentially correct.

If someone were actually to sue you in court in such a situation, you would pretty much two avenues of defense under U.S. law. Either a Fair Use defense or an Innocent Infringer defense. Note that in either case the law starts from an assumption of guilt and then places the burden upon you to prove your defense.

A Fair Use defense could probably work under these circumstances, and if it does your liability is zero. However the concept of Fair use is a somewhat peculiar fit for these circumstances. Fair Use is not really intended to fix this kind of problem. Innocent Infringer status is actually the "correct" defense to fit this situation. The circumstances you described would give you an instant slam-dunk win on claiming Innocent Infringer status.

And guess how fucked up copyright law is? Under the law an an Innocent Infringer is someone who, through no fault of his own, has technically committed copyright infringement. No fault, no guilt, just an ordinary innocent person who was lied to or given infringing material by some other guilty party. And under US law that means you technically did infringe on someone's copyright. You admitted to this when you laid out the situation. And under those circumstances, IF you prove yourself to be an Innocent Infringer, US law states that the judge is permitted to lower the statutory liability from the standard $750 minimum to a $200 minimum.

US LAW, TITLE 17, CHAPTER 5, SECTION 504, SUBSECTION C, PARAGRAPH 2

And if you think it's insane for you to be liable for $200 damages in your example after proving your Innocent Infringer status, just be glad your example wasn't P2P. If you engage in multiple infringements on P2P you are going to fall under the NET Act. And the NET Act was literally written by copyright industry lawyers, and they slipped in a trick-clause to redefine P2P as "financial gain". And that shoves you under the statutory category originally intended to deal with commercial copyright infringement enterprises. And this commercial infringement statute is a criminal infringement statute. It is a felony infringement statute. If you engage in multiple P2P infringements you technically fall under criminal copyright infringement imposing up to 1, 3, or 5 years in prison depending largely on the number of files involved. Ah, and the sentence is generally doubled on a second offense, up to 10 years in prison.

Here's a link to the Net Act. Pay particular attention to the clause that redefines "financial gain". Note how virtually anyone who has ever touched P2P gets magically swept into the commercial-infringement category.

-

Re:In Summary

[Anonymous Coward]

The word COPY in copyright should clue you off that making any copy of a copyrighted work is illegal, if the work is subject to copyright, you are not the owner of the copyright, and you haven't got permission to use it.

Re:In Summary

[Mr. Freeman]

I'm sorry, what?

How can a screwdriver do serious harm? Sure, if you stab a guy with it. But you know what, you can kick people with shoes, punch people with fists, strangle them with your belt, etc. Should those be illegal too?

Re:In Summary

[Alsee]

Sorry for the double reply. I meant include this in the previous reply:

A downloader is not responsible to know whether the place he is downloading from owns/licensed proper copyright. Moralely perhaps, but legally he should not, if for nothing else because it would be impossible to ascertain all the elements are owned by said parties and in many cases impossible to know beforehand.

I completely agree with your logic, but you are using logic to conclude what the law should say.

You then jumped from logic and "should" to a false assumption of what the law is, followed by a false assertion of what the law is. Silly rabbit. You assumed copyright law was logical, reasonable, or even sane.

-

Re:In Summary

[Demonantis]

I think your argument is very legitimate. I feel it should be that way too, but it can easily not be. The OEM version of windows is only licensed to be installed on a single computer irrespective of how you purchased it. It makes copyright licensing a funny business especially with music then as you don't know what the agreement is. It could easily be that you only have a license that allows you to have the music on that specific CD or make of that CD.

Meanwhile you call it stealing where in actuality it is copying. Maybe it could be stealing because your avoiding paying the label, but that is a very weak line of argument. I think the RIAA and MPAA like it this way as they remain steadfast in not defining the rights to the consumer to their product. I personally think that misrepresentation of their product should be illegal. I don't mind following rules, but I need to know clearly what they are.

Re:In Summary

[ScentCone]

In spite of their prevalent use in criminal activities, a lawsuit against them was dismissed in 2003

You'll notice that the lawsuit wasn't about a manufacturer of those weapons actually running a marketing campaign that encouraged their customers to knock over liquor stores and to murder the competition in your Crack Dealership franchise area. This, compared to Limewire's active, and sustained message to its users: "use this tool to make it easier to illegally rip off movies and music." You do see the difference, right?

Re:In Summary

[Sandbags]

All of the RIAAs suits involved the RIAA identifying a computer sharing music, and downloading known copy written tracks from that computer. In some cases, they idientified these computers by allowing it to download tracks from them, and then later identified those tracks were both present on the machine, and shared to other users, but the law is strictly "do not share" and not "do not download".

Re:In Summary

[Alsee]

Show me one quote anywhere in the law where it says 'downloading' is illegal. It does not exist - every single law is related to distribution.

The law obviously does not use the word "downloading", it uses the broader term "reproduce".Title 17 Section 106 (1)
106. Exclusive rights in copyrighted works38
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;

And here's is a court ruling that explicitly states on page 6 that any question about the distribution-infringement angle is irrelevant because of "the district court's finding that she had infringed Plaintiff's copyrights by downloading, and hence reproducing, the audio files."

There ya go. A court ruling explicitly stating downloading is legally considered to be reproduction, explicitly stating downloading is legally infringement.

Forgot about what is logical, forget how the law should work, this discussion is about what current existing law says and how current existing law works. The fact is that the law uses imposes an extremely broad definition for infringement and has an extremely strict application of copying. Hell, I can dig up a case for you where a court ruled that it was copyright infringement for someone to run software because running the software copied the program into RAM. Yes, I agree with you that that is an idiotic result, but that is how copyright law works. And as a result of that court ruling the US Congress had to pass a new law, Title 17 Section 117, which creates a special case making copying non-infringement when you install software you bought, and to also make it non-infringement when you run that software.

Forget about reasonable, forget about rational, forget about any sort of "should". The REALITY is that copyright law takes the concept of copying so strictly that Congress had to pass a specific law allowing you to install and freaking RUN a program you bought. Copyright law is so fucked up that if you try to download a perfectly legal file and some other guilty party sends you some different infringing file, that under the law you are still technically and infringer, and in order to deal with this situation the law creates something called Innocent Infringer status to cover it. And the law is so fucked up that when you do prove your Innocent Infringer status in that situation, the law declared that the judge may, if he feels like it, lower the statutory minimum damages you have to pay from the standard $750 down to a $200 minimum. Copyright law is so fucked up that the NET act technically makes virtually all P2P infringement into a felony crime subject to several years in prison. Copyright law is so fucked up that if you buy a DVD and then write your own media player software to view it you are a felon under the DMCA and subject to a 5 years felony sentence. Copyright law is so fucked up that the AHRA (Audio Home Recording Act) forced DAT (Digital Audio Tape) manufactures to so fuck-up DAT devices that people couldn't make copies of recordings of their own band.... note that this was prohibiting the very COPYRIGHT HOLDERS from making copies of their own tapes of their own bands. Copyright law is so fucked up that the only reason MP3 players survived on the market is because they slipped through a loophole in the AHRA, the first MP3 players all came with idiotic little software applications just to ensure they qualified as "general computing devices" rather than as "audio recording devices". Copyright law is so fucked up that the Supreme Court was one vote away from making VCRs illegal in the 5 vs 4 Betamax case. Copyright law is so fucked up that not a single work has falling into the public domain in the last decade and not a single work will fall into the public d

Re:In Summary

[Alphathon]

A screwdriver can cause far more harm than a boot. You cannot stab someone in the heart with a boot. Sure if you really try (part of that whole intent part) you can cause serious harm. There is another difference though - legitimate usage. As I said "walking the streets with a screwdriver" isn't a very useful description. If you have a reason to have a screwdriver on you (repairing a car, fitting a light etc, heck even transporting it from the shop where you bought it) then fine. I'm not even saying that people should be picked up for it necessarily unless there is reason to believe they intend to use it for harm. Belts have a legitimate use everywhere when worn - to hold up trousers. Fists can't exactly be banned anywhere. Boots protect your feet. Basically, screwdrivers IN PUBLIC should probably be controlled in the same way and for exactly the same reasons as knives are (they to have legitimate uses, such as foot preparation, but I don't see you complaining about not being allowed to CARRY carving knives).

Re:In Summary

[dyingtolive]

but carrying a tool that can be used to do serious harm when there is no reason to do so should be illegal

Fuck you Mr. Nanny State. I think you made me throw up a little. By your logic, anyone trained in Martial Arts or previously in the military is now not allowed to walk around unescorted by police because of the fact that their very bodies are tools capable of doing "serious harm". Okay, so you don't want to count that one. That's fine. What about the toolbox I keep in my trunk? I work in an office, dealing with computers, why would I need tools in my trunk? ZOMG TERRORIST! Obviously the only reasonable answer is that I'm out to cause as much damage as possible everywhere I can. How do I even buy tools if I can't transport them at this point? Oh, ok, so it's okay if I have them in my car? In that case, why the hell do you people treat people who walk around like criminals? You know what? I like going for long walks at night. Typically I carry something to defend myself with because I realize that were I to be attacked, the law system would not be able to protect me, as they're too busy revenue generating on the state highways to actually be doing their job. Here's another one for you: Let's say you're a mechanic (auto, boat, plane, whatever, Hell, even just a machinist in a shop somewhere), who, for whatever reason, doesn't have a car. You own your own tools. You, for whatever reason, decide you want to take your own property home one night. Suddenly, this is impossible because you can't legally leave the property possessing your screwdriver/micrometer/torque wrench because of the fact that someone somewhere had the blessed insight to realize that possession of these items in public turns you into a savage and dangerous criminal who is beyond reason.

The worst part is, if you take away anything manufactured that can be used as a weapon, people will just beat the shit out of each other with loose bricks and heavy fallen branches from trees. People in the inner city used to do it with car antennas. Fuck, I could just hit you with my car. Outlaw those too, because they're clearly better weapons than a screwdriver could ever be. I think SUV drivers get special penalization because those are classified as assault weapons and that should be a capital offense.

Re:In Summary

[Alphathon]

Yes, unless you are using it for hunting or something for which is has a legitimate use.

Re:In Summary

[Mad Leper]

I see the same misinformation about downloading and uploading every time a pirate tries to claim that the RIAA/MPAA has been going after people who download.

The RIAA/MPAA are in the distribution business. If you are using torrents to get your pirated media then you are also in the distribution business, but without license or permission to do so.

Downloading without uploading has never been challenged by the RIAA/MPAA. Not a single court case or legal action has been taken against anyone who has just downloaded.

The Pirate community has been unable to see past there own blinkered ignorance and self interest, refusing to acknowledge any difference between distribution and downloading. If you use torrents to get your pirate media, you are just a fool waving a red flag in front of a mad bull.

Re:In Summary

[Alphathon]

Woah! I think you're taking this a little far.

First off, I didn't say anyone should be locked up. Illegal != should be locked up. Also, I didn't say possession should be illegal. I am essentially equating it with knives - you can't really slash with a screwdriver, but you can certainly stab, so, like knives, WHERE and WHY you can have them should be controlled. It should be noted that I am from the UK, where it is illegal to carry a knife - I don't know what the laws are like in other countries in that regard.

Ok, so then I guess just because I can make a fist and smack someone in the nose with it, I should be locked up all based on a "what if"? So to prevent that everyone should be forced to have their hands amputated or wrapped up in big pillows? What's next with using that line of thinking? Oh wait, I have teeth that could be used to bite someone, because if I'm not using them to either chew food or enunciate with, I shouldn't have them? Let's just have everyone get their teeth pulled and get dentures. That way we can take them out when we aren't using them because they *MIGHT* be used to commit a crime. Oh wait, what about the dentist that help us maintain our teeth? They should be locked up also because they are contributing to a possible felon. etc./etc./etc.

That is a ludicrous oversimplification. A part of your body cannot be controlled in such a way. You cannot say it is illegal to have hands or teeth in public without saying you either cannot have hands or teeth at all or cannot be in public at all. Also, to do a great deal of harm with them would require INTENT anyway.

You even go so far as to contradict yourself when you state "simply having a set on your person has no really legitimate reason to be illegal". So having lockpicks is ok, but being a mechanic (not that being a mechanic matters) with a screwdriver just walking down the street is reason to be stopped/detained?

There is no contradiction here. This is essentially a risk assessment. Lockpicks cannot really be used as a weapon unless you really want to stab a mouse or something. They are small precision tools that cannot be used to do any meaningful harm (note that stealing from someone is not doing them physical harm unless the thing stolen is medicine or something). At worst they are tools that can be used to gain access to a property illegally. You cannot kill someone with a lock pick (well, you probably could if you really tried, but no more easily than keys or a ring or glasses or whatever). That is the distinction I am making - weapons should not be allowed in public (or at all really), so unless you have a legitimate reason for having such a thing in public, of which there are many, it should be illegal. Note that that does not mean being sent to jail. Also, as I said, if there was a legitimate reason for having a screwdriver in public, then it certainly shouldn't be illegal.

You Alphathon, are a MAJOR FSCKING IDIOT! and your line of thinking is one of the reasons why this country is screwed up as badly as it is.

Personal insults rarely get you anywhere on the internet and make seem like somewhat of a troll. Also, I think you mean way of thinking, because I highly doubt the fact that I thought something at a particular point in time is destroying a country. BTW, I think it's likely that we are not from the same country, so it's moot anyway. Now if you'd said the world...

Re:In Summary

[AndersOSU]

No silly, that's not it.

What he's saying is that he trust the police to only harass bad people, and let all the good people carry on with their day.

In order to make the police's job of harassing bad people easier, we should define as many household items "suspicious" as possible.

Re:In Summary

[westlake]

Your entire argument is retarded. First, you're using language (accessory) to a criminal offense, not a civil one -- which AFAIK, copyright infringement is.

Copyright infringement is a federal crime.

The for-profit motive was removed as an element of the offense in the "No Electronic Theft Act" of 1997.

Wilson faces a maximum sentence of six years in prison, a $500,000 fine, two years of supervised release following the prison term and an order of restitution. A sentencing date has not yet been set by the court. New Jersey Man Pleads Guilty to Unauthorized Recording of Newly Released Motion Pictures in Movie Theater [Feb 23]

Humphrey operated the subscription-based website USAWAREZ.COM from which he distributed copies of
hundreds of copyrighted movies, computer games and software products without authorization from
the copyright owners. Humphrey offered paid subscription services for access to the pirated
materials on his website and also solicited donations for his operation of the site OHIO MAN SENTENCED TO 29 MONTHS IN PRISON FOR SELLING PIRATED COPIES OF MOVIES [April 20]

Second, going by your argument, if you were responsible for downloads, every time you open a webpage, you would open yourself up to liability. Who owns that font? Who owns that clipart? Or those jpegs? Haven't you ever heard of websites using other website author's templates, either knowingly or unknowingly. Should you the browser be liable then?

This is why we can't have nice things.

Font Foundries Opening Up To the Web

When you re-use the unlicensed font, photograph or other element of a webpage for your own purposes you risk being sued.

Ignorance is no excuse.

That is why the pro does his shopping at Corbis or Getty Images when he needs a stock photo.

copyright would protect everything down to the lowly font, jpeg, and animated gif.

It does.

["Digital fonts" may be protected by copyrighted computer programs or design patents.]

Re:In Summary

[AndersOSU]

Actually, I remember a lawsuit recently being dismissed against gun manufacturers who consistently marketed their guns with "fingerprint resistant grips and triggers."

But, uh, they weren't marketing for use in crimes, because as everyone knows, fingerprint resistant is *completely* interchangeable with corrosion resistant - something every legitimate gun owner is interested in.

Additionally, I haven't used limewire in a long time, but do you have any examples of limewire promoting that message?

Re:In Summary

[Alphathon]

but carrying a tool that can be used to do serious harm when there is no reason to do so should be illegal

Fuck you Mr. Nanny State. I think you made me throw up a little. By your logic, anyone trained in Martial Arts or previously in the military is now not allowed to walk around unescorted by police because of the fact that their very bodies are tools capable of doing "serious harm". Okay, so you don't want to count that one. That's fine. What about the toolbox I keep in my trunk? I work in an office, dealing with computers, why would I need tools in my trunk? ZOMG TERRORIST! Obviously the only reasonable answer is that I'm out to cause as much damage as possible everywhere I can. How do I even buy tools if I can't transport them at this point? Oh, ok, so it's okay if I have them in my car? In that case, why the hell do you people treat people who walk around like criminals? You know what? I like going for long walks at night. Typically I carry something to defend myself with because I realize that were I to be attacked, the law system would not be able to protect me, as they're too busy revenue generating on the state highways to actually be doing their job. Here's another one for you: Let's say you're a mechanic (auto, boat, plane, whatever, Hell, even just a machinist in a shop somewhere), who, for whatever reason, doesn't have a car. You own your own tools. You, for whatever reason, decide you want to take your own property home one night. Suddenly, this is impossible because you can't legally leave the property possessing your screwdriver/micrometer/torque wrench because of the fact that someone somewhere had the blessed insight to realize that possession of these items in public turns you into a savage and dangerous criminal who is beyond reason.

Sure it may seem a bit like a nanny state, but to be fair I am British, and that is how we treat a lot of things in general. Regardless, you and the others who have replied to me seem to have missed the point. A main point in that line you quoted was "when there is no reason to do so" . Transporting something from a store is certainly a legitimate use. Having tools in your car in case you break down is a legitimate use as well, but why have one in your pocket while walking in the street other than to transport it? Heck, even self defence is sort of a legitimate use, although that one would be hard to prove. As for the car thing, the legitimate use is transportation. The difference between assault rifles and cars is that other than causing another human being harm, there is no use for a gun that cannot be better dome with a different tool.

As for the "if you take away anything manufactured that can be used as a weapon, people will just beat the shit out of each other with loose bricks and heavy fallen branches from trees" argument, yes they probably would, but what is the legitimate use of carrying a branch with you around the town?

I think something you have to bear in mind is I am British - over here, it is illegal to own guns other than hunting rifles and those require a licence. It is illegal to carry knives in the street unless you can prove some legitimate reason for doing so (there are many types if knives that are simply illegal and cannot be bought or owned anywhere legally). Heck, even replica swords are illegal to buy (by which I mean actual full size metal ones - plastic ones don't count for obvious reasons) which I think is maybe going a little far, but certainly understandable (as for carrying one in public, well that is certainly a no-no). Here in the UK, where guns are illegal (exceptions above), gun crime is significantly lower than in the US. Knife crime is also lower, since you can't carry one and any knife that is solely produced as weaponry is simply illegal. This is my background, so it may go some way to explaining my position, even if you don't agree. Heck, even I am on the fence - I don't think making carrying a screwdriver illegal without a legitimate purpose would be a particularly effective or easy law to enforce, but I do err on the side of caution.

Re:In Summary

[Anonymous Coward]

Well, another analogy I can think of is the sale and use of so-called "Saturday night special" [wikipedia.org] handguns. In spite of their prevalent use in criminal activities, a lawsuit against them was dismissed in 2003, and they remain largely unregulated today.

Primary difference: There is not a well-funded corporate community, flush with cash and terrified of losing their entire mode of business, which perceives that their success rides on the elimination of legal access to the Saturday Night Special.

The perceptions of the RIAA are completely divorced from reality, but that doesn't make them any less potent when they've got millions to throw at the problem, and an entire generation of judicial appointees and electees who are still stuck rather thoroughly in a pre-internet frame of mind.

Re:In Summary

[hmar]

The problem, Alphathon, is who decides legitimate use? I cary a leatherman tool virtually everywhere I go, as a PC tech I would be lost without it. I use it constantly, and I am also an avid DIY type. I also regularly carry a small flashlight. Carrying a device that could be used as a weapon should not be illegal. One that has no other use than a weapon, different story, and an argument I will not get into. But carrying a screwdriver, or any other tool, should not be illegal. People who intend to do damage are going to find a way to harm you. Keeping screwdrivers away from them will only give the illusion of protection. A rock found on the side of the road is equally deadly. To suggest that my pocket knife not be carried in public is useless, and only serves to limit my freedoms, while offering no real protection to anyone else.

Re:In Summary

[dbet]

IANAL, but that position is pretty thin.

For one, illegal or not the RIAA sues people using tracked downloads as evidence of filesharing. It will either cost you 10k to settle, or at least 10k in legal fees. In practical terms then, there definitely is something wrong in downloading a file to check it out, and it will be viable evidence against you in a court of law.

I don't like this argument one bit. You're basically saying that because party A can use legal bullying to get party B to comply, then that is evidence that party B is doing something wrong.

Also, all the cases I've seen by the RIAA against individuals have actually been about uploading, or "making available", hence the rather large fees asked, since many people can copy that file.

Re:In Summary

[randomencounter]

To paraphrase a great quote:
You are so wrong that even in a universe where you were somehow right you would still be wrong.

When you start treating common tools as weapons you turn vast swaths of the population into criminals, which is only a good thing if you consider a police state where everyone is a criminal a good thing.

The (not so) funny part is that's where eternal copyright+DMCA leads us, too.

Have you done anything illegal this week?

If you think the answer is "no", how sure are you of that really?

Re:In Summary

[dyingtolive]

Fair enough. I see your points and understand your view, and appreciate your response to my somewhat heated rant above. Having this been said, things are somewhat different over here. I'm not certain of your level of interaction with police, but here, at least in my area, they have very little involvement with community safety. They are literally over glorified traffic monitors. To be fair, crime is virtually non-existent in my immediate area, but it's also full of upper-middle class homes, so it would be a decent target for burglary, especially since the police don't hit it hard. As an American, having lived with "Innocent until proven guilty" and "freedom and liberty"* crammed down my throat since I was old enough to walk, it rubs me the wrong way when the idea of being hassled by law enforcement for mere possession of an object comes up.

* Yes, I am aware of the fine print on our idea of freedoms and innocence, but that doesn't change the fact that those are the ideals that I've been brainwashed with.

Re:In Summary

[Alphathon]

That's certainly a fair point. I suppose what should really be illegal is the intent rather than the tool (although then you do sort of get into the realm of thought police...perhaps the attempt rather than intent...you get the idea). Now you put it that way, I certainly agree (just needed the right wording to see the point I guess). Knives I'm still not convinced on, be it pocket knives or not, but those would more often than not come under a legitimate use/reason anyway (in the same way a screwdriver would I guess) as long as it has more uses than simply a knife (unlike the buck knife someone else mentioned). You see people? All it takes is well reasoned argument and I changed my mind - stop getting so angry about everything and just be reasonable :).

Re:In Summary

[Alphathon]

That sounds like it's in jest, but TBH it's kinda true. I didn't really think about it being misused by discriminating cops or whatever. It's not that I trust the police, but that I didn't really think about potential abuse. Now it has been brought up, I have changed my mind (see my reply to hmar)

Re:In Summary

[dyingtolive]

Also, where are your statistics on gun crime in US vs UK? I'd be interested in seeing that. Also, is this strictly gun crime vs gun crime? Have you seen anything comparing outright violent crime from one to the other? Honestly, I wouldn't be the least bit surprised that we have higher gun crime, but I'd be genuinely surprised to see that overall violent crime rate here is much higher, if any at all. Of course, with a topic so politically charged as this one, I'd be surprised to see any data that's not been slanted one way or another in favor of any specific views.

Re:In Summary

[hmar]

stop getting so angry about everything and just be reasonable :).

You must be new here :)

Re:In Summary

[Alphathon]

Well, I live in the countryside, so almost never have any interaction with the police. Even when in town, it's a fairly large town, but crime isn't all that much of a problem. As for the "Innocent until proven guilty" and "freedom and liberty", the first is certainly true over here when talking about court cases, but the second not so much. We have somewhat of a nanny state, which TBH isn't the best way of doing things but certainly seems to work. I myself a pretty liberal and very pro freedom and liberty, but I do NOT think all things should be a right - weaponry is one of them. I was a little extreme (for me anyway...not really all that extreme when you think about it) when talking about it earlier though. (I didn't really see it in terms of not being harassed by the police etc. Basically I didn't notice the inherent flaw in my argument, but hmar put me right on that one).

Re:In Summary

[Anonymous Coward]

Mens rea?

Re:In Summary

[Alphathon]

*laughs* Not really, just trying to change the world, one angry slashdotter at a time.

Re:In Summary

[Attila Dimedici]

but only if intent can be proven beyond reasonable doubt.

How can intent ever be proven "beyond reasonable doubt"? Unless you catch someone in the act of doing something with the object in question, I do not see how you could know beyond reasonable doubt what the intent of the person is.
When you say that "carrying a tool that can be used to do serious harm when there is no reason to do so should be illegal," what constitutes a reason to do so? Would the fact that I put it in my pocket when I finished using it and now, three hours later it's still there count as sufficient reason?

Re:In Summary

[Toze]

Both distribution and creating copies fall under infringement. That would be Title 17 section 106 of US law, and that's the same across the globe. Downloading is creating a copy. Uploading and downloading are essentially equivalent under copyright law.

Not in Canada; it's de facto legal to download mp3s in Canada due to a CD tariff the CRIA pushed for some years back. It's illegal to provide, but not to copy. Of course, Our asshat Heritage Minister and Prime Minister have decided to push a draconian DMCA-style bill to the house next month, so maybe that freedom won't last long.

Re:In Summary

[Anonymous Coward]

Well yeah... but guns and lockpicks can murder and robbery.

Limewire lets you COPY MUSIC! My god man! Get your priorities straight like the **AA!

Re:In Summary

[Windows Breaker G4]

While I don't like windows OEM licensing, i know why they do it. At the same time, if you lost your oem install disk, downloading another copy of the disk (from perhaps a BT site) but then using the oem code on the machine it came with should technically be legal, as it is the use of the product not the use of the installed that is being licensed here. As far as I am concerned, if they don't state the terms of the license on the package, they must be pretty loose, at least it seems this would have legal standing, or does it mean that you are not purchasing a license and instead purchasing a product. If that's the case I suppose that changes a lot of things. That's something that needs to really be sorted out some day soon.

Re:In Summary

[hmar]

Hold out hope. Some of us appreciate and cherish rational discussion.

Re:In Summary

[phantomfive]

I've changed my opinion. You are in fact, dumb.

Re:In Summary

[Anonymous Coward]

Not entirely able to do that as the cars still server more legal uses than illegal ones.

BUT....... This does sound like a green light to sue the company that makes Philly Blunts along with the makers of rolling papers as they are used VASTLY more often for weed than tobacco and should have the right to sue any convenience store trying to sell scouring pads (which are used more for crack strainers) and the glass tubes with the roses in them (they throw the rose out and use the tube as a crack stem). But nothing is really done about it though, just another case of the government playing favorites and willful ignorance of technology.

Re:In Summary

[Cytotoxic]

Right. You should have to prove a legitimate use for anything you choose to carry on your person. Including that video camera. And that pen and paper. And that bottle of soda.

In fact, just report to police headquarters for arrest while we decide what to do with you....

Re:In Summary

[GreatBunzinni]

This is a common misconception among pirates

You are not only wrong but you are also making baseless assumptions. Case in point, I present you the law in place in the jurisdiction that affects me directly, portuguese legislation on copyright law. Take a look at Lei n 16 2008, de 1 de Abril (the literal translation is more or less "Law 16/2008, published April 1st"), which is a re-publication of Portugal's updated "Código do Direito de Autor e dos Direitos Conexos" (loosely translated to "Author's rights code and connected rights". This constitutes the Portuguese law regarding the author's rights. In it, I direct your attention to Artigo 81, entitled "other uses". It says the following:

Outras utilizações
É consentida a reprodução:
a) Em exemplar único, para fins de interesse exclusivamente científico ou humanitário, de obras ainda não disponíveis no comércio ou de obtenção impossível, pelo tempo necessário à sua utilização;
b) Para uso exclusivamente privado, desde que não atinja a exploração normal da obra e não cause prejuízo injustificado dos interesses legítimos do autor, não podendo ser utilizada para quaisquer fins de comunicação pública ou comercialização.

The bold bit loosely translates to (and forgive my translation from portuguese legalese to english) "the reproduction and distribution without the copyright owner's express authorization is authorized if it's strictly for personal use, if it doesn't have a meaningful impact in the normal commercialization of the copyrighted work and it doesn't cause unjustified loss of the author's legitimate interests", adding that "it can't be used for public reproduction or commercialization". That's portuguese law, black in white. And Portugal did nothing more than adopting the french copyright tradition, which is the basis of pretty much all copyright law of all civilized country in the world.

So yes, there are a lot of misconceptions but it isn't regarding the rights to distribute any copyrighted work, as long as it's for personal use. Ignoring your unfortunate attempt at a personal attack, where you tried to label anyone who knows the law as one of those filthy "pirates" (are you paid to vilify everyone who downloads stuff?), people do have rights, including the right to education and culture independently of social and economic status, as long as the author is the only one profiting from their work.

And it's no wonder people like you try to pass off FUD regarding the rights to freely distribute copyrighted works for personal use, as media companies are trying to put pressure on the entire world, from government to the public, in order to see granted a totalitarian stranglehold on the access to cultural and educational works. You've certainly got a glimpse on that pathetic marketing campaign vilifying and FUDing the access copyrighted works for personal use without the copyrighted owner's explicit authorization. You've certainly saw it either way, whether in some form or another. Yet, that doesn't make it right, let alone remotely compatible with the copyright law and people's rights, does it?

Re:In Summary

[phantomfive]

It's ok, the only law that matters is US law. In any case I didn't call anyone filthy, and you don't seem familiar enough with the language to know this, but 'pirate' in English has long been used to refer to copyright infringers.

Re:In Summary

[Cytotoxic]

I'm glad someone was able to help you pull the scales from your eyes. For a good look at why freedom is more important than security head on over to Radley Balko's blog.

He's an award winning reporter who focuses on exactly these issues. Most of his stuff deals with American justice system incompetence and abuses, but he'll frequently link to articles in your area.

Just this morning there was a link to a story from England about a couple of cops handcuffing a man in his own home and forcing him to remove a political poster because it called a candidate a wanker. The police said any reasonable person would find it alarming, harassing or distressful to call David Cameron a wanker. Probably half the population of England would disagree on a factual basis, but that didn't stop them from forcing him to remove the poster. I think the irony of actually harassing the guy with the poster in an alarming and distressful way was probably lost on the police....

Re:In Summary

[phantomcircuit]

IIRC their defense was that fingerprints on the stainless steal of a gun is ugly. Aesthetics of course.

Re:In Summary

[phantomcircuit]

Uploading and downloading are essentially equivalent under copyright law.

Distribution (uploading) is a criminal offense which carries a significantly stiffer punishment.

Re:In Summary

[Cytotoxic]

Appellate case law is the law. At least in that court's jurisdiction. There is the actual law as passed and signed by the legislature and executive. And then there is the case law that determines how that law will be enforced.

Re:In Summary

[Alsee]

Mens rea?

For who isn't a lawyer and doesn't speak Latin, mens rea means "guilty intent". It's the difference between deliberately stabbing someone verses accidentally dropping a dinner knife that lands in someone's foot. One is a crime, the other isn't.

And the answer is nope. Copyright is strict liability. If you sneeze and drop a knife in someone's foot, copyright law says you are guilty of stabbing them. If a meteor comes down from the sky and vaporizes your arm from shoulder to elbow and your disconnected hand holding the knife falls to the ground and hits someone in the foot, copyright law says you are guilty of stabbing them.

The closest you get to the principal of mens rea in copyright is claiming innocent infringer status which lowers the minimum liability to $200 per copyright infringed. And in the modern digital world it's not hard for a completely innocent person to wind up with multi-million dollar liability.

The one good thing is that judges do not like such blatantly unjust situations. They can usually find some excuse to toss the case or otherwise ignore or subvert the law when it gets so grossly unjust.

-

Re:In Summary

[whoever57]

bear in mind is I am British - over here, it is illegal to own guns other than hunting rifles and those require a licence.

Since the (non-hunting and fully licensed) rifle that my father legally owns in Britain proves that the statement you make above is wrong, I'll take your comments about the laws in Britain with more than a grain of salt.

But in the case I cited, the charge was related to carrying something that could be used for housebreaking (the aformentioned screwdriver), and nothing at all related to carryng a weapon.

Re:In Summary

[Alphathon]

Really? Well that makes no sense at all. Guess this whole psuedo-flame-war was for nothing :P.

As for the weapon licensing thing, what kind of rifle is it? You certainly need a licence for guns, so maybe it's just that most licensed ones are hunting rifles or that it's easier to get a licence for one than other guns (hence my misconception).

Re:In Summary

[Alsee]

Not in Canada; it's de facto legal to download mp3s in Canada due to a CD tariff the CRIA pushed for some years back.

Ah, good point. Under the Berne convention downloading falls under the "global" definition of infringement, but it is possible for countries to make exceptions. I don't know the exact details of the Canadian situation, but as I understand it the status of downloads is an extremely muddled gray area. They might be technically infringing, but be de facto impossible or almost impossible to sue over. Copyright law can sometimes create strange situations where one law makes a copy unlawful, a second law says the copyright holder can't sue over it, but some third law still applies authorizing the government to seize and destroy unlawful copies, and some fourth law that gives you the right to do ordinary stuff with your "lawful copies" does NOT apply. I think Canadian downloads exist in some mixed-status legal limbo.

And people need to remember than any logic or morality about CD tariffs legitimizing downloads is irrelevant. Logic doesn't matter. What is right or wrong doesn't matter. What is fair or reasonable or moral doesn't matter. Those are only relevant when you are discussing about what the law should say and how the law should work. They are irrelevant when discussing what the law actually says and how the law actually works. If you use logic or morality trying to conclude what the law says, you will often be wrong. Especially when it comes to copyright law.

-

Re:In Summary

[Alsee]

Distribution (uploading) is a criminal offense which carries a significantly stiffer punishment.

The law is written in terms of "infringement". The law as written almost never mentions goes into different categories of infringement. Infringement is infringement and criminal infringement is criminal infringement, regardless of weather if it is distribution-infringement, reproduction-infringement, or public-performance-infringement.

There are many reasons far more focus is placed on uploading, but those reasons have little to nothing to do with anything written in law. The reasons are largely due to perceptions and public relations and practical and financial. It is far easier to find and prove unloading over the internet. It is extremely difficult to to find and prove someone downloads unless you specifically upload to them, which itself would either be infringement or would make the entire transfer authorized and non-infringement. There's also the fact that the number of uploaders is often smaller than the number of downloaders making it more efficient to target that side. And that also fits in with the copyright industry ideology of "shutting off the tap", especially in terms of targeting the extremely small number of individuals who rip and upload the one initial copy of a movie or song. In their mind the "supply" is the problem but they love the "demand" side. Probably the largest factor is financial and public relations. Both the minimum and maximum statutory damages for copyright infringement are obscenely large. The minimum is $750 per copyright infringed. If someone has a single infringing song it is a public relations disaster to be seen hitting someone for $750 in damages over a single ninety-nine-cent song. It is an equal or larger relations disaster to be seen hitting some ordinary kid for $millions in damages for having a music collection. It can quickly run into the millions of dollars when you multiply the number of files on the hard drive by $750. When it comes to uploads however, they can use imaginary and fictional damages. They can start tossing around the $150,000 maximum statutory damages by saying "gee, we don't know how many times it was uploaded, it could have been uploaded thousands of times and each of those uploads could potentially be re-uploaded by other people thousands of times each". They can say gee, we have no idea how big the actual damages are. They can raise the theory that the single uploader is responsible for millions of dollars in actual damages over any given song. In downloading there are obviously small actual damages of less than a dollar per song, but in uploading that can hang their hat on unlimited imagined actual damages. It lets them get away with asking for the statutory maximum damages, and it avoids the problem of them looking insane, and the law looking insane, when they demand and receive even just the minimum statutory damages from some ordinary person who committed trivial actual damages.

-

Re:In Summary

[whoever57]

As for the weapon licensing thing, what kind of rifle is it?

It's a .22 used for target shooting.

But I think that it is also possible to legally own shotguns. It used to be significantly easier to get a license for a shotgun than a license for a rifle.

Re:In Summary

[ImYourVirus]

Mr. Alphathon, papers please.

so google can be sued?

[Joe The Dragon]

so google can be sued?

Re:so google can be sued?

[phantomfive]

Yes, actually, and it happens a lot.

In other news .... yawn

[NewsWatcher]

And so the good ole Gnutella network will find another platform so the masses can file share, just like it has been doing since it was released in 2000.

All the legal arguments and judgements in the world won't make a spit of difference. If people want to trade files online, the chances of anything happening to them are remote, so they will continue.

Remember how shutting down KaZaa was supposed to deal a huge blow to filesharing, as were the lawsuits against a host of others?

Wasn't the lawsuit that saw the Pirate Bay founders jailed supposed to send a message the law enforcement was tough on piracy?

Forgive my scepticism, but I look at this news and wonder, does it really matter to anyone save those directly employed by Lime.

Re:In other news .... yawn

[phantomfive]

It's about the money. The recording industry won a $100million dollar judgement fro the KaZaa case. The RIAA is an equal opportunity money grabber: if they can get it from selling music, they will; if they can get it from suing companies with money, they will; if they can do it from both, even better.

It's kind of lousy of the RIAA, but really most people are equal opportunity money grabbers in one form or another, they just don't have the same opportunities the RIAA has.

Re:In other news .... yawn

[cgenman]

Napster went dark. Grockster went down. KaZaa went down. Pirate Bay was dinged repeatedly. MetaMachine went out of business. Limewire is going down.

The message is that commercial entities should not setup businesses around piracy. If you value the fruits of your work (and freedom), do something else.

Sure that drives the illegal activity onto hobbyist networks. But if your goal is to make it progressively harder and less effective to infringe copyright, that is a step in the right direction.

Re:In other news .... yawn

[AK Marc]

Is it harder to infringe copyright? There's nothing I can't find online illegally that I can get in, say, Best Buy. Multiple protocols, many multiples of locations. It doesn't matter what they do to whom, that will never change. It's like the War on Drugs. Rights get lost, people committing victimless crimes get in trouble, and the government claims more and more power.

Re:In other news .... yawn

[HopefulIntern]

Forgive my scepticism, but I look at this news and wonder, does it really matter to anyone save those directly employed by Lime.

In this sense I liken this "war on piracy" to the "War on Drugs". Yeah they're making busts, yeah they're tough on drugs, yeah people get arrested/fined/killed. But people still use drugs. LOTS of people use drugs. But nobody wants to say how fruitless their struggle is, how the DEA, just like the RIAA/MPAA is just like Sisyphus, endlessly battling something they stand against.

Summary Judgment isn't the end of the story...

[Oxford_Comma_Lover]

> The decision was not a final judgment, so it is not appealable.

Not immediately appealable, anyway.

For the nonlawyers in the room, summary judgment means basically that somebody wins their argument, or parts of their argument, because even if everything the other guy said was true, the other guy still loses. Like if you ask a kid "Did you throw a rock at Timmy?" And the kid says "I did, but I like throwing rocks!" or "It was a horseshoe, not a rock."

In this case, even if everything Limewire said was true, they still lose. (At least, they still lose everything they lost here.)

The decision can usually be appealed, but only after the trial ends or in rare cases with special permission. Since it influences the outcome of settlement proceedings, and most things settle, they are rarely but not never appealed.

Re:Summary Judgment isn't the end of the story...

[Trepidity]

Indeed, if you look at Supreme Court decisions, and even important Circuit Court decisions, you'll see a decent number of them include a phrase like, "on appeal from summary judgment", so there are certainly appeals from them.

(Mainly that's because questions that are interesting for the higher courts are mainly pure questions of law, and those are usually reached at the summary-judgment stage.)

google is next

[NynexNinja]

inducing infringement is such a vague term, it means google is inducing infridgement by people searching for torrents on google... all you have to do is search for: torrent, and you pretty much turn google into the biggest torrent site. Are they liable for the actions of their users? The MPAA and RIAA think they are... Under that theory, gun manufacturers would be liable for murder caused by their guns. Next they'll be arresting the owners of Stanley Tools for selling tools that are used to break open windows and rob homes... Louisanna Slugger baseball bats because they can are used for hitting people instead of baseballs. Programmers for writing code that is used unlawfully. Where does it end?

Re:google is next

[Ethanol-fueled]

Under that theory, gun manufacturers would be liable for murder caused by their guns.

Not really. This case is more like Smith and Wesson's "deal with the devil" when they implicitly acknowledged that their products were enabling illegal activity, so they put more strict controls on their dealers. That led to a boycott and a lot of pissed-off gun-nuts. In that case, S&W were the only manufacturer to cave, but even one acknowledgement looks bad for the whole industry.

Re:google is next

[pipedwho]

That led to a boycott and a lot of pissed-off gun-nuts.

Those are the people that most of us would prefer didn't buy S&W products. So it seems like a win-win for everyone.

Re:google is next

[Ethanol-fueled]

It sure was win-win for Napster! Wait, who are they again?

Re:google is next

[pipedwho]

Someone mod me offtopic, I meant S&W.

Napster was forced to change their approach so dramatically that their audience was no longer able to make use of their services.

The original Napster was a MASSIVE boon to anyone that loved collecting gigs of decent quality mp3s. Nothing that followed even comes close to the indexing and file sharing service that was Napster.

If the RIAA could put something like Napster online in a legitimate capacity, illegal file sharing would cease overnight.

Re:google is next

[Anonymous Coward]

Louisville slugger. I think you are thinking of Louisiana (Oil) Sludger.

Re:google is next

[cgenman]

Under most legal systems, there are codified common sense notions. A physicist could argue that when applying muscular force to a finger, they couldn't be sure that this would move a metal bar, which would release a spring, which would cause a spark, which would ignite a sulfurous potassium nitrate solution, which would increase the air pressure behind a metallic tube, which would accelerate the tube along the x-axis at a rapid rate, which would strike a subsequent object, which would cause soft tissue damage. But a court would say that they knew they were going to kill someone when they fired a gun. The apparent motivation doesn't need to be scientifically proven, it just needs to be beyond a reasonable doubt.

Similarly, if someone released a search engine that simply queried google with torrent, and advertised as the best place to find hollywood releases, they'd be guilty of inducing infringement. Beyond a reasonable doubt, that modified search engine is there to search for illegal content.

Just because they're offering a subset of a larger feature set doesn't mean that they're OK, or that the larger feature set would be illegal. To torture an analogy: If you offer a gun for sale, it can be used for a wide variety of illegal and legal actions. The courts have ruled in the US that there are enough legal uses for guns in general that selling them is not inducement to crime. However, if you offered a gun that could only shoot homeowners during robberies, your featureset and viable uses would be narrowed such that a reasonable person would think that gun was being sold in order to commit a crime. If you offered a gun that could only shoot Jewish homeowners during robberies, you might similarly be guilty of inducement to commit a hate crime.

Limewire had a product that they advertised to college students as where you go to get MP3's. They extensively supported MP3 tagging and naming in their interface. They had a system for filtering out illegal music, which was off by default, and a second system for filtering out music purchased from Limewire's partners, which was not disableable. In short, they knew of the infringement on their system, promoted themselves as a platform for that infringement, and took steps to prevent just the infringement on their own copyrights while allowing the rest. That's enough for a reasonable person to think that Limewire is specifically encouraging breaking the law on their platform.

Re:google is next

[avaric3]

No it wouldn't. A "legitimate" Napster by definition would have to be a Napster that charges. Unless we are talking about Allofmp3 level pricing, which we both know would never happen, mp3 file sharing isn't going anywhere.

Re:google is next

[Anonymous Coward]

TL;DR

judgment

[countach]

The court's reasoning seems to be:

a) Limewire allows you to search by genre and album which supposedly is there to encourage infringement. But the court doesn't seem to care that there is a lot of material that the owners permit to be freely exchanged that is legitimately able to be searched and downloaded by album or genre.

b) The large percentage of real-world downloading that seems to be infringing. This seems to be a dangerous precedent. What if someone showed that 95% of betamax users had at some time infringed copyright (seems quite possible to me). Does that mean the govt. can now ban video recorders? If 98% of computer users are infringing copyright, and Intel knows it, is Intel out of business? Should exciting new technologies and techniques be outlawed because many users are abusing it? If most drivers speed, should cars be banned? Should good technology be killed because some or even most users decide to abuse it? Where does this line of thinking end?

c) Limewire did not put filtering in to try and mitigate infringment. This seems akin to banning Firefox because the browser doesn't implement filtering. Why doesn't firefox stop you downloading infringing files? Why doesn't it look for "Madonna" in the name of files and stop you downloading them? It sounds ridiculous, but this is exactly what the court is suggesting.

And nobody seems to notice that Gnutella and Limewire and the entire system are open source and truely distributed. If they shut down limewire nothing whatsoever would happen. Not a single file would be prevented from being downloaded. People would eventually switch to other clients like Frostwire, but the RIAA gains nothing. This is different to Napster and the RIAA's other targets which could be shut down.

Re:judgment

[Anonymous Coward]

True. Although the problem here is that it puts a dent in the development of the open source p2p development application. It doesn't exactly stop its development though in any way. It just slows it down. What that means for the purpose of the RIAA is that people will continue pirating and there is nothing at all that can be done about it.

Re:judgment

[MarkvW]

Parent post omits a key component of the Judge's reasoning: There was evidence galore that the Limewire principals had the purpose of facilitating the illegal transfer of copyrighted materials. That's a big no-no.

Re:judgment

[Anonymous Coward]

I haven't read the judgement but can you cite some of that evidence?

Re:judgment

[pipedwho]

That is correct.

If you're running a file sharing/indexing site, then you shouldn't even admit to yourself what your true motives are.

Even a small hole in your argument will inevitably lead to a much bigger hole in your wallet.

Re:judgment

[techno-vampire]

What if someone showed that 95% of betamax users had at some time infringed copyright (seems quite possible to me).

VHS, quite possibly, but not betamax. The reason VHS won out, even though betamax was higher quality is that a betamax player couldn't act as a recorder; you needed a separate machine for that.

Re:judgment

[cgenman]

Bram Cohen (the creator of Bittorrent) studiously avoids anything that could be considered positive statements about copyright infringement, or personally doing so himself, for this very reason. Of course, he's geek enough that he probably genuinely developed Bittorrent for its non-infringing uses. But he's bright enough to avoid anything that could be construed in a particular way by the unhappy content industries.

A lot of file sharing sites, however, aren't as savvy. Sure, The Pirate Bay doesn't specifically tell you to go download stuff. But it is a tool designed for downloading illegal stuff, used for downloading illegal stuff, and it's called The Pirate Bay. Sure KaZaa could have been used to share the music that your band created. But its design was better suited to sharing illegal music than your own band's creations, its primary use in the wild was sharing music illegally, and the owners both knew about this and promoted it. Would anyone reasonably believe that a site called IsoHunt wasn't being used to transfer CD's and DVD's?

Re:judgment

[cgenman]

In the US, all expressive works are automatically covered under copyright. You can waive those rights, or retain some rights while waiving others. But yes, unless they're straight compendiums of data they're all covered under copyright.

Also, with the exception of a few distros, basically everything you could get an iso for would be a redistribution from said disk-based medium. It's not a far jump to say that if someone wants to distribute a movie online, they put it in MPG. If they want to distribute music, it goes to Monkey, AAC, or MP3. Games distributed online go into exe or equivalent format. Really, the only things that use iso's are a few things you boot up to fix your computer, and a large portion of the world's commercially copyrighted creative output.

Remember, you're not talking about "is there a legal exception to the rule." Sure there is. But if nearly everything that is offered through your site is copyright infringement, and your name implies copyright infringement, you're just asking for legal trouble.

Re:judgment

[lhunath]

So how exactly do you get the judge to answer these questions? Because I'd sure like to see it.

Re:judgment

[Anonymous Coward]

erm.,. not so my friend. when i was a wee Laddie in Ayr,Scotland my father could not decide whether to get a vhs or betamax.

so ,as we knew the guys who had a TV sales/repair shop next to my fathers shop we got a weeks trial of both types of machine.

  we tried both, watched AND recorded from both.
  the beta was a Sanyo as i recall and had full record facilities.

  i suppose it's not too much of a stretch to presume that much like VHS there were some that were just players and some that were player/recorders bud.

Re:judgment

[Sandbags]

a) there's no such thing as "top 40" music that is not copy-written. At least, not today. Simply by the existence of a category that could ONLY be copy-written material, and the existence of that category makes it easy for user to find those files, lime Wire "assisted" users in finding copy-written works, which obviously, they had the ability to identify by both title and artist to place in that category in the first place. A simple search by album or search by Genre could easily include non-copyright material, but dedicated categories for known published genres is against that theory directly.

b) no, it does not mean the government can ban them as a class of device, BUT, they can levy judgments against manufacturers that were shown to be fully aware of this rampant infringement, and it could be shown that by not taking specific action to stop that known infringement, by changing future devices or updating old ones where possible, they they were enabling continued infringement.

c) no, Limewire HAD filtering and chose not to USE it. You can't filter generic content from generic sources, Firefox is only a viewer to pre-rendered content. LimeWire however is a search and filtering engine, and HAS the full capability to filter un-obscured track information. No, this would not prevent pirates from compressing, encrypting, renaming, or in other ways bypassing the filters, but it would prevent people for making simple searches for known copy written materials, which obviously LimeWire either had a database themselves of, or accessed a database system to have validated search information for their genre's and categories. The proper analogy would be suing Symantec for their antivirus product not scanning certain content because "well, it might be a perfectly valid file, we don;t know its a virus, so we didn't filter it at all to be certain, though we do have the technology already built to do that".

No, we can't prevent people from continuing to trade. Yes a new system will arise. However, as COMPANIES continue to get sued, and lose, and file sharing systems stop being profitable, and coders and others contributing to those systems start going to jail, it will become a more obscured operation, and instead of 95% of people trading files, maybe in 5 years only 10 or 20% will be able to do so easily.

I DO NOT condone the RIAA's tactics and specific methods for going about suing individual downloaders, but going after LimeWire, Pirate Bay, Napster, etc, those ARE good business decisions. The result here: no company will now risk setting up their own for-profit sharing site or torrent tracker. It HAS to go underground now, this is pretty much clear. That will begin to limit users since even dowloading a tracker starts to become risky (can't trust the source of the tracker itself, might be a virus, a scam, or even a sting operation).

Re:judgment

[countach]

What are you talking about? The Gnutella network is just as much a generic source as the WWW. How is it harder for Firefox to filter out Madonna.mp3 than it is for Limewire to filter out Madonna.mp3?

Re:judgment

[Sandbags]

FireFox can filter a file name, but LimeWire actually could identify much, much more, and it still was not used. Also, LimeWire has no control over what browser you do/don't use, nor can anyone distributing content know on the open Internet if it is filtered or not, a legal bye, but limeWire was an aggregator and search system and could ENFOREC the filtering, and bothered to write it but only make it "optional" while concurently advertizing in various circles you could get copywritten works on their service.

For or against file sharing, they were stupid, and got burned for it. All they had to do was enable the filtering by default, and let it be easy to "bypass" without making it obvious that was the case... Well, that and not advertize on college campuses the way they did, and have more general content filters like "rock" instead of "top 40 rock" and they would likely have been absolved...

Huh? What? Who?

[Saeed al-Sahaf]

New York Lawyer, my good man, thanks 10,000 times for your work and effort, but as a non-lawyer I have NO IDEA what your post means. It must be bad, but really I don't know what it means. Can you tell me, a non-lawyer, what it means other than "You're screwed" or some such thing? I just don't know...

Re:Huh? What? Who?

[westlake]

It must be bad, but really I don't know what it means. Can you tell me, a non-lawyer, what it means other than "You're screwed" or some such thing?

"You're screwed" sums it up pretty well.

Your case is falling apart. The law is against you. The facts are against you.

Even when the judge gives you the benefit of every doubt, there is nothing left in dispute worth taking to trial.

Re:Huh? What? Who?

[NewYorkCountryLawyer]

New York Lawyer, my good man, thanks 10,000 times for your work and effort, but as a non-lawyer I have NO IDEA what your post means. It must be bad, but really I don't know what it means. Can you tell me, a non-lawyer, what it means other than "You're screwed" or some such thing? I just don't know...

Sure.

It means Lime Wire might be screwed.

Unfair competition?

[bmo]

One of the judgments was on unfair competition.

Really?

REALLY? /me holds up a mirror to the Board of Directors of the RIAA

I need a new irony meter. Mine just exploded.

--
BMO

P.S. I will honor the RIAA as a legal entity when The Romantics see a dime for "What I Like About You"

Re:Unfair competition?

[NewYorkCountryLawyer]

One of the judgments was on unfair competition.
Really?
REALLY? /me holds up a mirror to the Board of Directors of the RIAA
I need a new irony meter. Mine just exploded.

I had the exact same reaction when I came to that part of the decision.

Re:Unfair competition?

[Anonymous Coward]

Time to start selling counterfeit irony meters... GWAHAHAHAHAHAHAHA!

Trillions of dollars

[TouchAndGo]

In a comment the other day someone pointed out that the RIAA etc. hardly ever go after any major distributors of their work, preferring to target individual end users, because judgements against people responsible for thousands of instances of copyright infringement would make it obvious how absurd the damages awarded per instance were. However: "The RIAA has said it is entitled to the maximum statutory damages, which is $150,000 for each registered work that was infringed. The number of infringing works they could try to claim is likely in the millions." from http://news.cnet.com/8301-31001_3-20004811-261.html So basically the RIAA believes they're entitled to a multi trillion dollar damages award?

Contact Info

[Derosian]

I can't seem to find any contact information for Senior District Court Judge Kimba Wood. I want to send an E-mail explaining many things. If no E-mail is available I am willing to send her a snail mail letter even. Probably won't do any good, but hey always worth a try.

Re:Contact Info

[kramerd]

Well, it took almost 30 seconds, but you can find your mailing address at www.nysd.uscourts.gov/

Spend a few minutes reviewing your thoughts, and definately go with snail mail if you want anyone to read it.

Re:Contact Info

[westlake]

I want to send an E-mail explaining many things.

You are not a party to the case.

You are not asking to present yourself openly and publicly as an amicus - a friend of the court.

There are many reasons why neither the plaintiff or the defendant are likely to welcome your intrusion - many reasons why the judge can't - and shouldn't - be considering arguments made outside the courtroom.

Nut Up or Shut UP

[Anonymous Coward]

It's one thing to complain about the RIAA and continue to download whatever you feel you want, but it's folks like Limewire, Pirate Bay, etc... who have their asses swinging in the breeze, their necks on the chopping block. I was raised to never ask someone to do something you weren't willing to do yourself. All I'm saying is stand up for them as they stood up for you. The truth of the legal system, as far as criminal charges are concerned, is that it's not whether you are guilty or innocent - it's whether or not they can convict you. I've stood in front of a judge because of property crimes and I've seen people get less time for murder and other crimes against people. Pretty soon, they'll be handing out stiffer sentences to make an "example" which really means they'll have greater justification to build more prisons to boost the economy.

Re:Nut Up or Shut UP

[Anonymous Coward]

There is a reason for longer and longer prison sentences, and it has nothing to do with setting examples. The US has a HUGE prison lobby of private companies who outsource jails.

They want as many people locked up as possible, and this is how they get paid. In return for laws such as mandatory minimum sentences and felonizing what was once misdemeanors, politicians get large campaign donations.

Of course, you see political interests converging here. Private prisons get stuffed with people, the *AA gets tougher antipiracy measures. Politicians get large donations. Everyone wins but the population.

Shareholder found liable?

[c0lo]

From TFA:

granted summary judgment to the RIAA on several of the key issues in the case:
[snip]
holding not only Lime Wire, but also its 87% shareholder (Lime Group) and its CEO and sole director, to be liable as well.

Huh? "Acute attack of common-sense" in regarding corporation laws or... WTF? (IANAL, thus I gave up reading the PDF)

Go turn yourself in

[Mathinker]

Hey phantomfive, that last web page you loaded? That image on the left? It's mine! The webmaster there stole it from me! You downloaded illegal material under copyright!

Why don't you go turn yourself in?

Seriously, how on earth could you believe that an ordinary person could not occasionally infringe copyright? There is no magic way to know the copyright status of anything, anymore, now that Berne has made registration a thing of the past. See Infringement Nation, by John Tehranian.

Visa versa, sometimes when people try to pirate illegally, they are actually downloading material which the copyright owner himself is providing: see the Viacom debacle vs. Google, where it turns out that Viacom itself was uploading "lets make this look pirated" videos to YouTube.

If I seed a torrent which says "The first 1/2 of New Blockbuster Movie, provided free of charge as a teaser", is it unreasonable for Ordinary Joe not to believe it is legal? What if it were an old movie, claiming to be a low quality teaser?

And even in the case where it's obvious that some of the material is under copyright, Ordinary Joe cannot be sure if, perhaps, fair use is appropriate here. Only the courts can decide that. (Would you blast a relative for posting a short video of his infant dancing to copyrighted music?)

Re:Go turn yourself in

[ultranova]

Seriously, how on earth could you believe that an ordinary person could not occasionally infringe copyright?

It's convenient to have laws that make everyone a criminal, now isn't it?

I disagree

[Mathinker]

Sure that drives the illegal activity onto hobbyist networks. But if your goal is to make it progressively harder and less effective to infringe copyright, that is a step in the right direction.

I actually disagree, here. Because I think that the more the infringement becomes "grassroots", the deeper it will become embedded in the culture of society that such casual infringement is OK. And that really, really scares the **IAs.

In addition, it also makes for a much stronger (as in, no easy weak link) alternative distribution platform, another thing which frightens Big Media.

If that's the summary

[Anonymous Coward]

If that's the summary, then what does Limewire have to do with this? Because they aren't the ones downloading or encouraging others to download copyrighted material.

So all ISPs are guilty too?

[Anonymous Coward]

So all ISPs are guilty too? They state their bandwidth or download caps in terms of MP3's and MPEG4 compressed movies.

PS Please tell me where Limewire says "you can download X DVDs with limewire".

Sneakernet

[symbolset]

This is why you pool your media on NAS devices like these. And rip your media to it. And arrange with friends for offsite backups in case of disaster.

Sharing parties are where it's at, don'tcha know. Never underestimate the bandwidth of a station wagon full of backup tapes. The first rule of Ufenet is "don't talk about Ufenet". If it's not online then as far as the RIAA, MPAA and BSA are concerned, it didn't happen.

Until fairly recently I was personally opposed (though tolerant) of media piracy - unwilling to do it myself. Some time ago though I came around. Perhaps it was when they called transcoding DVDs I had bought into a useful media for me to watch it (3gp) stealing that did it. More likely it was the copyright extensions and DMCA. With the DMCA they can self-regulate the expiration of copyright with their DRM and so make us buy the same content over and over. Due to the efforts of the RIAA and the MPAA and their ilk in extending copyright, I now figure they have stolen from me and my heirs far more content than I could take back from them in a hundred lifetimes. I could not possibly even read the titles of the books they've stolen from me while I yet live, let alone the books too. The photos? If I browsed a slideshow from now until the end of my days with every waking hour I could not touch one hundredth of one percent of the photos they've stolen from me. Screw 'em.

Until today I was equally opposed to software piracy, but just now I realized they're working the same tools to the same ends. Their work on software patents is preventing me from getting good progress. Screw them too. If your profits get in the way of Progress, then to hell with you.

If you needed my encouragement, have at it. I am hereby encouraging all of you to pirate any media you desire: audio, video, software, books and other, software and hardware patents too, no matter how current by any means expedient. Until the bastards give back our "limited times" and "fair use" all of their stuff is fair game. Just don't get caught.

So tell me again... what peril am I in?

sexconker cannot download this message

[Anonymous Coward]

sexconker cannot download this message. Now you're a pirate. All things are copyrighted and you just downloaded my copyrighted message without legal right to it (I refused you that right).

The RIAA needs an excuse to sue somebody??

[Joce640k]

News to me.

These guys are in for it.

[Anonymous Coward]

This really teh suck.

Re:In Summary (is the converse also true?

[portnux]

This makes me wonder if the converse would also be true. Could the music industry through the lyrics of modern music be held accountable for encouraging violent crime? I see no obvious efforts my music publishers to control criminal activity although lyrics continue to become more and more violent over time.

So Grateful Dead cannot be downloaded?

[Anonymous Coward]

So Grateful Dead cannot be downloaded? They are under "Classic Rock" (or some of their stuff is). So just because you can list and download Grateful Dead tracks under Limewire, which is not a copyright violation, Limewire are encouraging piracy???

Re:So Grateful Dead cannot be downloaded?

[Anonymous Coward]

Because, clearly, the Grateful Dead is the ONLY Classic Rock music ever produced, therefore all downloads of Classic Rock must be legal.

Speak for yourself, asshole :

[Anonymous Coward]

"but really most people are equal opportunity money grabbers in one form or another ..."

No, actually some of us have ethics.

Apparently that's something you don't understand.

Not a Final Judgment

[Concern]

Can you explain the phrase:

The decision was not a final judgment, so it is not appealable.

This is the one detail I really don't understand. Are you saying Limewire has no avenues for appeal at all, just because this judgment was not final?

Re:Not a Final Judgment

[NewYorkCountryLawyer]

Can you explain the phrase:

The decision was not a final judgment, so it is not appealable.

This is the one detail I really don't understand. Are you saying Limewire has no avenues for appeal at all, just because this judgment was not final?

In federal practice, in order to avoid piecemeal appeals, there is normally no appeal except from a final judgment disposing of all issues regarding all parties.

Re:Not a Final Judgment

[Concern]

I see. Sounds like a very sensible policy. So would I be correct in saying that Limewire can (and probably will) appeal?

And that it's merely a confusing bit of argot to say they can't specifically appeal this ruling on the RIAA's motion for summary judgment? But rather, they must wait until there's a Final Judgment (the outcome of which is now virtually certain)?

Re:Not a Final Judgment

[NewYorkCountryLawyer]

I see. Sounds like a very sensible policy. So would I be correct in saying that Limewire can (and probably will) appeal?
And that it's merely a confusing bit of argot to say they can't specifically appeal this ruling on the RIAA's motion for summary judgment? But rather, they must wait until there's a Final Judgment (the outcome of which is now virtually certain)?

Yes but a lot can happen between now and then. E.g., settlement discussions, damages award that's livable, motion practice over possible interlocutory appeal, actual interlocutory appeal which results in reversal of all or part of the Court's order, etc., etc.

This is not bad news

[192939495969798999]

The reason this is good news is that the govt has now specified how to setup a legal filesharing company. Limewire screwed up because they talked about getting free stuff in their ads on campuses. So for future reference, DO NOT talk about getting free stuff there that should cost money. Just talk about it's legit uses, like what MJ pipe sales places have to do when they call a bong a "water pipe". If you talk about MJ in such a place you get thrown out because "they are not a MJ paraphernalia store"... get it?

Kimba Wood...where do I know that name?

[The Breeze]

Isn't she the former Playboy Bunny who Bill Clinton nominated for United States Attorney General before her past came out?

Ah yes. And she didn't pay her nanny, either.

Re:Kimba Wood...where do I know that name?

[Sfing_ter]

1) trained as a playboy bunny in london for 5 days
2) DID pay SS tax for nanny, but nanny was illegal - however, it was legal to hire her at the time.
Instead of Kimba Wood we got Janet Reno and we know how HIS decisions in office worked out... (Janet Reno==Dick Cheney in drag)

Re:Kimba Wood...where do I know that name?

[The Breeze]

Agreed,Kimba Wood was not only clearly female (unlike Reno) she was - and quite possibly still is - rather hot.

Not so sure about her legal skilz, tho.

Not sure I agree

[Concern]

I agree that it's dangerous ground. If we create a legal environment where a search engine that happens to be distributed rather than centralized is automatically considered illegal, that's bad. Similarly, I think we all agree that the courts really can't get in the business of back-dooring mandates for all software developers to use certain vaguely specified, futile, and damaging methods to prevent potential copyright violations by others.

Here's the thing, though. It takes wilful blindness to equate Limewire with Firefox or Google. If you look at the facts of the case, it's obvious, and the judge couldn't ignore it. The fact is, FF and GOOG have many widely known and significant non-infringing uses. They're entirely planned and marketed as legitimate tools for legal tasks. And no matter how we feel about it, we can't really deny that none of that can be said about Limewire.

That won't stop some of us from trying to deny it anyway. But it's just not credible.

They had opportunities to try to thread the needle and find a legal niche for themselves. I'm not even talking about becoming a legal music store. There were so many little things they could have done differently to portray themselves as a google or a firefox. But almost every time they had a decision between trying to be legitimate or helping their marketshare or convenience, they put marketshare and convenience first.

The fact is, Limewire was conceived entirely as a tool for copyright infringement. It was marketed and run that way. It was too obvious for the court to ignore. And in the end, it was that conduct that sank them.

Er, not quite

[axl917]

Wood had an illegal immigrant doing housework (this was legal at the time) too, but she actually did all the proper paperwork and paid taxes. The media doesn't actually care much for fine distinctions though, and just ran with an "OMG HERE'S ANOTHER ONE!" headline screamer.

A shame, as an ex-Bunny would've been vastly preferable to whatever gender Janet Reno belongs to.

check http://riaaradar.com before you buy

[Dan667]

and don't buy the music if it will go to a company that supports the RIAA.