Duplication of copyrighted content that you don't have a license for is against book law. There are some defences you can mount; fair use, and case law.
None of the fair use provisions apply to duplication over Kazaa. That only leaves case law.
Duplication to time or space shift a broadcast that the broadcaster was licensed to distribute is supported by case law. Space shifting music that you licensed is also (tentatively) supported by case law. Making copies for friends and family is supported.
Can you quote the law (book or case) that supports unrestricted duplication of content that neither you nor the the distributor has a license to duplicate, and where you have no prior relationship?
You can't quote it, because it isn't there. Unless you can quote the exception - or want to pay to create a new precedent - the duplication is illegal. Understand that.
>There are lots of great reasons to support the Public Domain Act. None of them is "Because the MPAA and RIAA are rich."
I disagree. The explicit intent of copyright law is to make publishers work for creators, not the other way around. The RIAA (and to a lesser extent the MPAA and book publishers) control the channels of distribution to ensure that the only practical way for creators to get content to consumers is by signing usurious boilerplate deals with them, and then hoping that the publisher deigns to distribute and promote the content rather than just sitting on it indefinitely. The publisher cartels are rich because they can exploit both creator and consumer through control of the market.
Copyright law grants strong rights to creators in order to give them leverage over publishers. I actually believe that copyright needs to be strengthened, but not for the benefit of publishers. Why, for example, do we treat copyright as a commodity that can be bought and sold? What if time limited licensing (and I mean for several rather than tens of years, as is still common in text fiction) were the most that publishers could negotiate rather, than the least?
Step one is to strike the abhorent "work for hire" law that was pencilled in to an unrelated bill by a minor beurocrat who was supposed to be proofreading for spelling mistakes. As long as that travesty stands, the message to creators is clear: all your content are belong to the publisher.
Yup, they just suck it off of your machine. It's not as though the P2P client that you chose to install, and that you chose to run, and that you instructed to make these files available goes ahead and, uh, duplicates them in order to give them to the recipient.
But don't take my word for it. Go ahead and offer 5,000 files for duplication, then wait for the RIAA to come knocking. I'm sure they can explain it more clearly.
>There is still a presumption that the plaintiff must overcome
There is no presumption of innocence in a civil case.
>even if they present a winning case, it's not that the court rules that the defense was "lying" but that the weight of the evidence is on the side of the plaintiff.
Correct.
>If they are trying to extort money from you with impeachable technical evidence, no fair minded judge (and no jury which you'd be advised to demand) is going to convict you based solely on log files generated by the party that has a financial interest in convicting you.
How much do you want to gamble that you'll get a fair minded judge, and a jury capable of understanding your arguments?
In any case, apply balance of probability. It is more probable that the RIAA decided out of the blue to sue you, Joe Random, and then invented the logs to support that, or is it more probable that they are prosecuting your because you infringed copyright, and that the logs show that.
We'll get a few cases of mistaken identity, but in most cases, the RIAA need only show it as it is. They don't have to invent anything, and the cost of bringing the case would (to any "fair minded judge") preclude the money they hope to extort from any given Joe Random.
You're entitled to think otherwise, but I believe the RIAA will win and win big on these cases.
No, the burden of demonstrating the balance of probability is on the RIAA. Proof is required in criminal cases.
I hate to burst your bubble, but the balance of probability in any given case of this sort is that the RIAA has collared the right person, that they are sharing copyrighed files, and that they are duplicating those files illegally.
You may be able to show otherwise in your case, but they will be able to show that in most cases they are in the right. Every case that settles or goes to court and loses just tilts the balance of probability in future cases in their favor.
>I was under the impression extortion, monopolies, and cartels were against the law too
They are (illegally leveraging a monopoly, anyway), but there's apparently an unwritten exemption if you pay enough taxes, out of court settlements, and, most importantly, campaign contributions.
>Plain old copyright law required that the defendant had to actually make some money for it to be illegal. Just making copies and even distributing them for free was legal. It was a fair use to do it like that.
There are no Americans in Bagdhad! There never will be! I tell you, I do not believe it!
> What would happen in if they lost, but the jury awarded the RIAA a dollar a song, or some other ridiculously low sum?
Then the defendant would pay $1 per song plus $20,000 in legal fees for the priviledge of losing the case.
What we need is someone brave enough to not contest the case, but just to stand up, say "Sure, I duplicated the tracks, but here's why..." and explain how the RIAA has turned the intent of copyright law on its head by making the artists work for the publishers rather than the other way around, then plead for a token fine.
Would you take the gamble that a jury would understand and agree with that argument, when a $1000 an hour RIAA lawyer was filling their ears with tales of starving studio floor sweepers?
>You can't prove beyond a reasonable doubt that a hacker isn't using my computer to download music.
Why would I have to? It's a civil case. All I have to do is to convince the court that the balance of probability is that you facilitated the duplication.
The level of ignorance of this basic difference between criminal and civil burden of proof is staggering. You know why everybody has settled so far? It's because they would lose, and lose badly in court.
> they were never "found guilty." They settled out-of-court for several tens of millions of dollars
Yes. Apparently it's fine to be a cartel and screw the general public, as long as you keep paying your <strike>taxes</strike> fines and <strike>bribes</strike> campaign contributions.
>what does [the RIAA being a cartel] have to do with you violating copyright laws?
The explicit intent of copyright law is to protect creators from publishers, to ensure that creators retain the rights and control distribution of their work.
The RIAA has turned that on its head. Now artists work for publishers instead of the other way around. This is the opposite of what copyright law is supposed to achieve.
The law is an ass. If Congress won't fix it, our only remaining option is to flaunt it. Civil disobedience has a long and proud history in the USA, since before its foundation in fact. No taxation without representation, remember?
YANAL. In a civil case, it's balance of probability. There is no assumption of innocence, nor a requirement to prove that "there's NO way" that the action wasn't legal.
It's very simple. If you're sharing files across Kazaa, the balance of probability is that you're duplicating someone else's copyrighted work in violation of their rights. That's all the prosecution has to show.
>I assume a good number of people have rights to the music they download, and there is no reason for me, nor the courts, to presume otherwise.
The court makes no presumption. It judges whether the prosecutions argument that you are making unlicensed copies against the spirit of the narrow and vague case law precedents of fair use for friends and family is probably correct. Civil case. Balance of probability. Not beyond all reasonable doubt.
There is no assumption of innocence in a civil case, only a judgement on what is more likely. Please, please try to understand that.
Sigh. Civil action. Balance of probability, not beyond all reasonable doubt. If you think otherwise, share ten thousand random files with $GENUINE_NAME.mp3 on them across Kazaa and then find out the difference for yourself.
> artists who are supporting the RIAA are either mis-informed or rather dim-witted
Actually, they're the ones who are getting 12% of a zillion bucks, which still works out to quite a lot, plus they are leveraging the publicity that the RIAA buys for them to make millions on the side in endorsement contracts. They're minting it even while getting screwed.
It's the unknown artists getting 12% of tens of thousands (less deductables) who aren't saying much, but luckily (for the RIAA, not them) nobody cares about them anyway. It's win-win for the RIAA and their top few dozen meat puppets.
>I'd rather get $1 today than public domain 50 years from now
Precisely the point. You'd rather have the money. A company like Disney would rather have the rights. But you aren't primarily the problem here, it's companies like Disney that argue that as long as there's commercial potential to be wrung out of something (i.e. someone wants to copy it) they should retain the copyright.
Mmm, that's a nice way of thinking about it. Disney don't want anything to be copyable until nobody wants to copy it.
Correct, filthy as in dirty. I've met him. His hair was greasy, and he smelled pretty bad. AFAIK, this was choice, not necessity, as he hadn't just stepped off a long flight.
Does that matter? Not a lot, but it didn't endear me to him.
I agree that he's not anti-Linux, and this isn't an anti-Linux diatribe. He just views Linux as being a necessary evil to be disposed of when GNU Hurd comes together (any day now folks!) and he would not shed one tear if linux was forcible ripped asunder from GNU.
All that is fair enough. He started FSF, Linux was a latecomer. But let's be clear that RMS was talking about GNU, that he only mentions other things in reference to GNU, and usually (and in this case) to explain that they're not GNU. Let's not make the very mistake that RMS castigates, which is to lump GNU and Linux together ("GNU, Linux, et al", "GNU, Linux, whoever").
Sure, I use it and you use it. When my mother uses it, I will accept that it's popular. Until then, it's popular only in a very narrow sense, e.g. "Originating among the people".
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>[downloading music from Kazaa that's on a CD that I own is but can't be bothered looking for is] legal, fair use. (Isn't it?)
Decide for yourself.
>>downloading music that does not belong to you is illegal. Period.
>No it isn't. What law does this violate?
Title 17, 501 "(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a) [...] is an infringer of the copyright or right of the author, as the case may be" where Title 17, 106 (1) is "reproduce the copyrighted work in copies or phonorecords".
Sorry, what was your argument again?
> Donwloading[sic] music is not against the law
Duplication of copyrighted content that you don't have a license for is against book law. There are some defences you can mount; fair use, and case law.
None of the fair use provisions apply to duplication over Kazaa. That only leaves case law.
Duplication to time or space shift a broadcast that the broadcaster was licensed to distribute is supported by case law. Space shifting music that you licensed is also (tentatively) supported by case law. Making copies for friends and family is supported.
Can you quote the law (book or case) that supports unrestricted duplication of content that neither you nor the the distributor has a license to duplicate, and where you have no prior relationship?
You can't quote it, because it isn't there. Unless you can quote the exception - or want to pay to create a new precedent - the duplication is illegal. Understand that.
>There are lots of great reasons to support the Public Domain Act. None of them is "Because the MPAA and RIAA are rich."
I disagree. The explicit intent of copyright law is to make publishers work for creators, not the other way around. The RIAA (and to a lesser extent the MPAA and book publishers) control the channels of distribution to ensure that the only practical way for creators to get content to consumers is by signing usurious boilerplate deals with them, and then hoping that the publisher deigns to distribute and promote the content rather than just sitting on it indefinitely. The publisher cartels are rich because they can exploit both creator and consumer through control of the market.
Copyright law grants strong rights to creators in order to give them leverage over publishers. I actually believe that copyright needs to be strengthened, but not for the benefit of publishers. Why, for example, do we treat copyright as a commodity that can be bought and sold? What if time limited licensing (and I mean for several rather than tens of years, as is still common in text fiction) were the most that publishers could negotiate rather, than the least?
Step one is to strike the abhorent "work for hire" law that was pencilled in to an unrelated bill by a minor beurocrat who was supposed to be proofreading for spelling mistakes. As long as that travesty stands, the message to creators is clear: all your content are belong to the publisher.
Yup, they just suck it off of your machine. It's not as though the P2P client that you chose to install, and that you chose to run, and that you instructed to make these files available goes ahead and, uh, duplicates them in order to give them to the recipient.
But don't take my word for it. Go ahead and offer 5,000 files for duplication, then wait for the RIAA to come knocking. I'm sure they can explain it more clearly.
>There is still a presumption that the plaintiff must overcome
There is no presumption of innocence in a civil case.
>even if they present a winning case, it's not that the court rules that the defense was "lying" but that the weight of the evidence is on the side of the plaintiff.
Correct.
>If they are trying to extort money from you with impeachable technical evidence, no fair minded judge (and no jury which you'd be advised to demand) is going to convict you based solely on log files generated by the party that has a financial interest in convicting you.
How much do you want to gamble that you'll get a fair minded judge, and a jury capable of understanding your arguments?
In any case, apply balance of probability. It is more probable that the RIAA decided out of the blue to sue you, Joe Random, and then invented the logs to support that, or is it more probable that they are prosecuting your because you infringed copyright, and that the logs show that.
We'll get a few cases of mistaken identity, but in most cases, the RIAA need only show it as it is. They don't have to invent anything, and the cost of bringing the case would (to any "fair minded judge") preclude the money they hope to extort from any given Joe Random.
You're entitled to think otherwise, but I believe the RIAA will win and win big on these cases.
>the burden of proof is on the RIAA
No, the burden of demonstrating the balance of probability is on the RIAA. Proof is required in criminal cases.
I hate to burst your bubble, but the balance of probability in any given case of this sort is that the RIAA has collared the right person, that they are sharing copyrighed files, and that they are duplicating those files illegally.
You may be able to show otherwise in your case, but they will be able to show that in most cases they are in the right. Every case that settles or goes to court and loses just tilts the balance of probability in future cases in their favor.
>I was under the impression extortion, monopolies, and cartels were against the law too
They are (illegally leveraging a monopoly, anyway), but there's apparently an unwritten exemption if you pay enough taxes, out of court settlements, and, most importantly, campaign contributions.
>Plain old copyright law required that the defendant had to actually make some money for it to be illegal. Just making copies and even distributing them for free was legal. It was a fair use to do it like that.
There are no Americans in Bagdhad! There never will be! I tell you, I do not believe it!
Cite case law, please.
> What would happen in if they lost, but the jury awarded the RIAA a dollar a song, or some other ridiculously low sum?
Then the defendant would pay $1 per song plus $20,000 in legal fees for the priviledge of losing the case.
What we need is someone brave enough to not contest the case, but just to stand up, say "Sure, I duplicated the tracks, but here's why..." and explain how the RIAA has turned the intent of copyright law on its head by making the artists work for the publishers rather than the other way around, then plead for a token fine.
Would you take the gamble that a jury would understand and agree with that argument, when a $1000 an hour RIAA lawyer was filling their ears with tales of starving studio floor sweepers?
>You can't prove beyond a reasonable doubt that a hacker isn't using my computer to download music.
Why would I have to? It's a civil case. All I have to do is to convince the court that the balance of probability is that you facilitated the duplication.
The level of ignorance of this basic difference between criminal and civil burden of proof is staggering. You know why everybody has settled so far? It's because they would lose, and lose badly in court.
> they were never "found guilty." They settled out-of-court for several tens of millions of dollars
Yes. Apparently it's fine to be a cartel and screw the general public, as long as you keep paying your <strike>taxes</strike> fines and <strike>bribes</strike> campaign contributions.
>what does [the RIAA being a cartel] have to do with you violating copyright laws?
The explicit intent of copyright law is to protect creators from publishers, to ensure that creators retain the rights and control distribution of their work.
The RIAA has turned that on its head. Now artists work for publishers instead of the other way around. This is the opposite of what copyright law is supposed to achieve.
The law is an ass. If Congress won't fix it, our only remaining option is to flaunt it. Civil disobedience has a long and proud history in the USA, since before its foundation in fact. No taxation without representation, remember?
>The RIAA is, by every meaning of the words, an illegal monopoly
It's more like a cartel. Apparently if you do it in the open - and make enough campaign contributions - this is just fine and dandy.
YANAL. In a civil case, it's balance of probability. There is no assumption of innocence, nor a requirement to prove that "there's NO way" that the action wasn't legal.
It's very simple. If you're sharing files across Kazaa, the balance of probability is that you're duplicating someone else's copyrighted work in violation of their rights. That's all the prosecution has to show.
>I assume a good number of people have rights to the music they download, and there is no reason for me, nor the courts, to presume otherwise.
The court makes no presumption. It judges whether the prosecutions argument that you are making unlicensed copies against the spirit of the narrow and vague case law precedents of fair use for friends and family is probably correct. Civil case. Balance of probability. Not beyond all reasonable doubt.
There is no assumption of innocence in a civil case, only a judgement on what is more likely. Please, please try to understand that.
Sigh. Civil action. Balance of probability, not beyond all reasonable doubt. If you think otherwise, share ten thousand random files with $GENUINE_NAME.mp3 on them across Kazaa and then find out the difference for yourself.
> artists who are supporting the RIAA are either mis-informed or rather dim-witted
Actually, they're the ones who are getting 12% of a zillion bucks, which still works out to quite a lot, plus they are leveraging the publicity that the RIAA buys for them to make millions on the side in endorsement contracts. They're minting it even while getting screwed.
It's the unknown artists getting 12% of tens of thousands (less deductables) who aren't saying much, but luckily (for the RIAA, not them) nobody cares about them anyway. It's win-win for the RIAA and their top few dozen meat puppets.
>I'd rather get $1 today than public domain 50 years from now
Precisely the point. You'd rather have the money. A company like Disney would rather have the rights. But you aren't primarily the problem here, it's companies like Disney that argue that as long as there's commercial potential to be wrung out of something (i.e. someone wants to copy it) they should retain the copyright.
Mmm, that's a nice way of thinking about it. Disney don't want anything to be copyable until nobody wants to copy it.
Correct, filthy as in dirty. I've met him. His hair was greasy, and he smelled pretty bad. AFAIK, this was choice, not necessity, as he hadn't just stepped off a long flight.
Does that matter? Not a lot, but it didn't endear me to him.
>True enough, but that's hardly reason to bring out the clue stick.
There's never a bad reason to bring out the cluestick.
> there is no GNU/BSD
"Today, GNU runs with various kernels including Linux, the GNU Hurd (our kernel), and the NetBSD kernel. It is basically the same system, whichever kernel you use [...] today it also runs with two BSD kernels"
When you assert "there is no GNU/BSD", are you saying that RMS is a liar or a cretin?
I agree that he's not anti-Linux, and this isn't an anti-Linux diatribe. He just views Linux as being a necessary evil to be disposed of when GNU Hurd comes together (any day now folks!) and he would not shed one tear if linux was forcible ripped asunder from GNU.
All that is fair enough. He started FSF, Linux was a latecomer. But let's be clear that RMS was talking about GNU, that he only mentions other things in reference to GNU, and usually (and in this case) to explain that they're not GNU. Let's not make the very mistake that RMS castigates, which is to lump GNU and Linux together ("GNU, Linux, et al", "GNU, Linux, whoever").
Sure, I use it and you use it. When my mother uses it, I will accept that it's popular. Until then, it's popular only in a very narrow sense, e.g. "Originating among the people".
Instead of "doing a lot for" which implies proactivity, how about "Free Software has been used a lot to create Open Source software". Fair compromise?