Attorneys have a duty solely to their clients. An employee or member of a law firm must not publicly advocate or advance positions against the interests of their clients.
Since when? Precisely which rule of professional conduct would apply here? If it is as you say, how do you explain Rule 6.4?
Just because a lawyer publicly disagrees with one of his clients doesn't mean that he cannot provide competent representation or that there is a significant risk that the representation will be materially limited as a result. It's certainly not a breach of confidentiality. It might be unwise, because the client will want to get a new lawyer, but it's not an ethical violation.
I have my doubts whether this person could now be admitted to the NY Bar.
Pft. While it'll be some time before she tries, I'm pretty confident that they won't care one bit.
Well, I dunno. Just because two people come up with it doesn't make it obvious. Remember that obvious to a PHOSITA means that the invention cannot have required creativity at all. I don't think that independent invention makes the inventors uncreative.
So if I invent fire tomorrow, never having myself seen or heard of it before, am I the inventor of fire? Should I be entitled to a patent? Or should I be viewed with some pity, being many hundreds of thousands of years late?
We've had a first to invent system for a very long time for a reason. It's the most sensible thing to do, and it's what the Constitution mandates. Yes, it raises the issue of patent interferences. But this is not really that big a deal, we have a procedure for it, and we're pretty good at sussing out the real inventor.
Sorry, a quick clarification here: The Constitution doesn't mandate that patents be granted at all. But if they are granted, then they have to initially vest in inventors, rather than someone else. Of course, the inventors are still free to have sold their rights off, etc.
The Constitution mandates that patents be awarded to inventors. That means the first inventor, not some johnny-come-lately. Whether he's the second, or third, or one thousandth person to invent something, he's not the inventor. That was the person who was first.
Possibly, if the transfer is to the bearer of the title document. But it probably is a question that needs researching (which I am too lazy to do for the benefit of a/. post) and I doubt that it comes up very often.
Actually the Constitution generally protects non-citizens too. Sometimes it protects the rights of 'citizens' and sometimes it protects the rights of 'persons.' Since the framers are presumed to have used different words deliberately, and they can be reasonably construed as having different meanings, they're not synonyms.
A good example of this is in the 14th Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
See the difference? The courts have, and often prevent noncitizens from being discriminated against or denied due process.
Fees are not really that big of a problem. If you win your case, you may be able to recover fees from the other party under 17 USC 505. But honestly, so many of these suits are open-and-shut in RIAA's favor that it wouldn't make sense for defendants to rely on that, since the defendants probably won't win.
Infringement is generally a civil offense, but under some (increasingly broad) circumstances, it can be prosecuted criminally as well. Prosecution just doesn't happen all that much, since the DoJ usually has better things to do with its limited resources.
You're right, though, that attempted infringement is not unlawful. There is still a question of what constitutes infringement, however.
Well, a lot of this is probably best put in the lap of the defendant. They're in a better position to know what was on their machine, and to check to see if they've been hacked. More of an incentive to check, too.
So, if they can show me that the PC had the files on it (this I'd want proof, otherwise they could claim anything they wand) and that they made some effort to show it wasn't hacked (again, if it has Kazaa, probably not hacked, but hidden FTP service? Hacked).
But just an IP and a list of filenames? I'd want something that couldn't just be made up by anyone.
Man are there a lot of people who seem to want magical evidence that can't be faked. What the hell is up with that? Anything can be faked. And exhibitory evidence is not inherently better than testimonial evidence.
If it's admissible at all, it all goes to the jury, and they can decide what they believe and what they don't. And unless they're biased or have been tampered with or something, whatever they come up with is the final word. Juries have a lot of freedom.
If you were on a jury, a list of screenshots (with filenames, IPs, etc.) would not be enough, not because it doesn't show what it shows, but because you doubt the truthfulness of the evidence. If I were on a jury that same evidence would be fine, because, barring something to the contrary presented by the defendant, I don't think that stuff would be made up.
Both of us would be right, as a jury can come to either conclusion reasonably.
I'm not sure whether past case law supports the position that making a file available for sharing violates copyright, if no distribution actually happens.
And we don't know whether it's an issue in this case. Thus, I've generally set it aside. I can see arguments on both sides of the question.
I think what I would be most comfortable with is that the copyright holder could get an injunction against the filesharer, but since no monetary damages occured (how could they, if no copies were made?), there should be no monetary penalty.
Well it's all or nothing, I'm afraid. If offering isn't infringing, then it's lawful and you could not get an injunction against it.
One question is about who is responsible for asserting that a file is or is not copyrighted, or licensed.
Part of plaintiff's prima facie case is to prove that they have a valid copyright and that those copies are of works covered by said copyright. If they just have lists of files, then that's their evidence on that point. Some people might say it's not enough, others would accept it, and of course it can be disputed, but that's their evidence. Remember that lots of things are evidence; it's the job of the jury to sort through it and arrive at what probably happened, given what they know, and how much credibility they assign various witnesses and pieces of evidence.
But there are two minor cases to consider:
1) you haven't heard of any of the movies/bands on the site; is the burden on the downloader or the uploader to figure out if copying is permitted? 2) if there are situations in which it is "fair use" to download a file (may or may not include downloading a replacement copy of a damaged track on a CD you own), does the uploader have the right to make the file available (and the burden is on the downloader to figure out if their use is fair)?
Well, two things. First, copyright is a strict liability statute. Thus, even if you behave reasonably, e.g. by checking to see if you can lawfully ul or dl a file, if you're wrong, you've infringed. So it really doesn't matter whether you check or not, unless you are 100% right, or willing to chance it. Second, one infringer cannot rely on the fair use of another (by standing in the fair user's shoes) to protect himself. So assuming arguendo that the downloader is shielded by fair use, that does not protect the uploader who still engaged in infringing distribution.
What I am still uncertain about, though, is that there should be a clear digital equivalent to the right to loan someone a copy of a copyrighted work. That is, the law should clearly acknoledge the right to make the digital equivalent of a public library, in which the key idea is that copies can be made (copying is inherent to digital use) but that only one copy of the work is in use at a time. I'm not sure how that could be appropriately implemented without use of DRM (which is a slippery slope) - but we should not allow copyright holders to eliminate the concept of a lending library. (Libraries still lend CDs and movies, but rarely if ever lend software. Why is that?
Well, write your Congressman.
As for libraries, they can lend software. However, if EULAs can be asserted against them, then that might stop them. And libraries generally don't seem to want to worry about keeping an up-to-date software library. A collection of software from even a few years ago isn't much use to people now, but costs them a lot. CDs, DVDs, books, etc. all retain their usefulness longer, and are individually cheaper as well, usually. Basically it seems like a pain in the ass, though I do remember the public library in my hometown lending out Apple II programs when I was a kid.
Any license more restrictive should be illegal.
Meh. I don't think that it's a good idea to encourage the idea of licensing to end users anywhere. Nor should we allow adhesive licenses, or certain terms, with regard to copyright. The default provisions of the law should be good enough for everyone (provided we reform them to make them good enough for everyone). Software licensing as practiced now is abhorrent.
Trials don't work that way. Do you think they should?
You think people are guilty until proven innocent? That's absurd.
What a bizarre comment.
Of course the plaintiff has to present proof. And they have, in the form of screen shots indicating an offer to distribute audio files with the names of plaintiff's songs, where the files were located on a computer with an IP address assigned to defendant at that time.
If the defendant has some evidence that rebuts this, they'd damn well better present it. Sure, the plaintiff has a burden of proof. And he has satisfied it.
If files are being offered from a computer at an IP address assigned to Alice, who is probably doing the offering? Alice, or Bob? Probably Alice.
If the files are audio files, with the names of songs, and filesizes that fall within a given range, are they probably the songs they claim to be? I say yes.
So since Alice is liable if she probably did it, and RIAA has shown evidence indicating that she probably did, her only two choices are to give up or show evidence that shows that she probably didn't do it.
This is how civil cases usually work. If there is a 51% chance that someone did something, then he did do it, and it's a fact. Juries can decide what evidence is more trustworthy, but in the end, they have to decide what probably happened based on what both sides have shown.
Listing files does not indicate they're being offered for distribution, but you are correct that this is a legal question for the judge.
The listing in question is within Kazaa. There is not a credible argument that there is not at least an offer to distribute. This is not a web page listing one's mp3 collection, and without a single link.
The only question -- if it is indeed a question, since we don't really have all the details of the case -- is whether the offer is an infringement or not. It's an interesting question of law. Personally I don't think an offer is sufficient, but I can see it going either way. Certainly I would advise clients to get an actual download. It cements the infringing act and strengthens the evidence, since you know if the file was fake or not.
You're assuming in all this, that a list of file names and an IP address is sufficient to go to court. It honestly isn't and even if it were, the method(s) that the RIAA is using, is so defective, that it doesn't even measure up to the minimum requirements of proof within the law.
How so? Yes, there's the offer/actual issue, but aside from that? Assuming arguendo that an offer was infringing, what more evidence do you need than that the offer was made (i.e. files were listed for download on a P2P app), the files were probably copies of the copyrighted music (given their file sizes, file types, and file names), and that at the time the offer was made, those files were on a computer with an IP address assigned to the defendant, and thus probably under their control and being used by them. The defendant can dispute the facts shown by the plaintiff, but at least it gets to the jury then. And the facts can be construed so as to show that the offer was made, so they're enough to support the action.
Sure. And I've seen cases that go the other way. There is a photography case at 23 F.3d 1345, which I have not shepardized, that says this:
The scenario in this case is not different from investigative schemes that have been upheld in other copyright enforcement cases in this and in other circuits. See, e.g., RCA/Ariola Int'l Inc. v. Thomas & Grayston Co., 845 F.2d 773 (8th Cir. 1988); RCA Records v. All-Fast Sys. Inc., 594 F. Supp. 335 (S.D.N.Y. 1984). n2 The investigator in this case merely approached Linn Photo in a conventional manner and offered Linn [**6] Photo an opportunity to infringe upon four clearly marked copyrights. Olan Mills did not authorize the investigator to validate Linn Photo's unlawful conduct. Indeed, the investigator's assignment was part of Olan Mills' attempt to stop Linn Photo's infringement. Accordingly, the copies made by Linn Photo at the request of the investigator were copyright violations.
Frankly, I agree. It's too difficult for copyright holders to catch infringers if they have to act as a bystander. It's really no different from a policeman pretending to be a drug purchaser or prostitute in order to find criminals. While copyright law should operate to the benefit of the public, it should also favor copyright holders over infringers. You seem to want to turn that notion on its head. As much as I want to raically reform copyright, I don't want to make it that toothless.
I'd want to do more research on this issue, but my prediction is that you're wrong on it.
Let me put it like this. I can share a folder called windows_vista_source_code.zip that does not make it Windows Code. Saying that I had file with a name does not make it so. I feel that the RIAA should have to prove the file is the file.
And they are proving it.
If you are on the Internet -- better yet, using a P2P network -- and you see a file with a name like 'Led Zeppelin - Stairway to Heaven.mp3' what is it probably? I know that it could be a spoof, but it also could be real. 'Could be' is not relevant in a civil trial. What we are interested in is what it probably is.
So are most files real or fake? In my experience, most files are real. There are fake files, but they are in a minority. This being the case, if someone shows me proof that Alice shared that mp3 file, even if we don't know the contents of the file, it is probably what it claims to be, based on what we do know about it.
That's good enough for the court, because the court uses a preponderance of the evidence standard. Which is to say, whatever is most likely, even if only marginally so, is considered to be a fact.
So while RIAA could do a better job with their proof, they've offered evidence and a reasonable member of a jury can believe it.
Which goes to prove you can't have tried it that much.
Well, that's a good piece of rebuttal evidence for the defendant, then. They'll want some hard numbers, though.
Of course, if plaintiffs are not downloading files to verify, then I would at least hope that they are checking file sizes. Since they're the only ones who would make such files, they probably at least know the size of what the fakes down to the byte. This could be used to distinguish files, depending on the information collected.
Also, while it's not relevant vis-a-vis copyright, yes, people can be convicted of intent crimes even if they make a mistake of fact.
A list of filenames and an IP address has zero worth as evidence, since it could be faked extremely easily with any text editor.
It is evidence. How much credibility the various witnesses and evidence have is a decision for the jury. They can think that RIAA faked it, or they can think that RIAA told the truth. Both opinions are valid, and we have juries precisely to make these kinds of evidence-weighing decisions.
there is no reason to believe their word over anyone elses word
And yet juries do this kind of thing every day. It is their job to take a he-says, she-says argument and decide who is telling the truth.
So, if I was on a jury, the defendant would walk, since there was no evidence whatsoever against him.
No, there is evidence against him. You just don't believe it. That is fine -- provided that it's not due to prejudice against the plaintiff. Like I said, it's the jury's job to decide what they believe. Just remember that the opposite outcome is equally legitimate.
As pointed out in this other comment, the "evidence" is simply screenshots of Kazaa showing the user's shares. Two screenshots is enough evidence to file a suit against somebody? A fucking screenshot is evidence in a trial??
Yes. Sounds like pretty good evidence, too.
Do you have some credible reason for thinking that it's fake? The mere possibility isn't really good enough, you know. Think of Occam's razor. The simplest reason is usually the correct one. I think that it's more likely that people really do share files and get caught than that there are big conspiracies faking evidence to get these random people.
If I were the defendant I'd file a counter-suit that the RIAA headquarters is sharing some of my copyright music, then fabricate hundreds of screenshots allegedly "demonstrating" these copyright violations. Hell, I might as well make it kiddie porn! Then I could get the RIAA executives sent to jail for breaking criminal law instead of tort law.
So I'm supposed to be sympathetic to your opinion because you'd engage in perjury and because you'd try to frame innocent people of very heinous crimes? You're really not helping the anti-RIAA side, you know.
My point is that they have no way to prove their evidence is valid, beyond their say so.
So what? Either the jury believes that the RIAA is not making this up, or they think it's all totally faked. It is their decision to make. Determining how trustworthy witnesses and evidence are, and finding the facts of the case based on what they believe to be true is precisely the job of a jury.
Ultimately it all comes down to who's word you trust.
An IP address and a list of file names* does not even come close to satisfying any of those requirements. A file name doesn't prove the contents of that file belongs to them, listing available files does not prove that they were distributed and an IP address doesn't mean you did it.
A filename probably accurately indicates the contents. Unless there was a good reason to believe otherwise, if I were on the jury, I would believe it. And remember, it only has to be probably true to be treated as a fact. That it could plausibly be otherwise isn't good enough.
Listing the files indicates that they were offered for distribution. Whether that's equivalent to distribution is a legal question for the judge, not the jury. It's irrelevant here.
And the IP address, the time it was collected, and records from the ISP indicating who that address was assigned to at that time would also probably be accurate. Again, I'd believe it, unless there was a good reason to believe otherwise. Open WAPs are not good enough, btw.
Imagine an Apt with 3 18+yrs old room mates. Who do they sue? Everyone can say "it wasn't me" and how will the RIAA prove otherwise.
Well, they can be reasonably sure it's one of them. Start a John Doe suit and engage in discovery by collecting their computers and checking to see what's on them.
If necessary, sue them all. The classic case on this is Summers v. Tice. Basically, plaintiff and two defendants were out hunting. Both defendants took a shot. One of the defendants shot the plaintiff, but plaintiff was unable to determine which one did it (it wasn't both that hit him). The court held both defendants liable, since that was the most fair thing to do -- one of them did it, and between the two of them, they were in a better position to figure it out than the injured plaintiff, who deserves compensation.
Given the limited pool of likely defendants in your hypo, it's what I would do. In the US, which is generally quite plaintiff-friendly, I imagine it would work, or at least be taken quite seriously.
That should not and will not stand up in court. Even civil law has minimal standards of evidence and a list of files + your I.P. address doesn't prove anything.
All the files you're 'sharing' could be fakes.
That's true. However, let me ask you a question. Let's say you're on a jury in a civil copyright suit. The evidence you've been presented consists of a list of files, and the IP address of the person who was sharing those files at the time. You don't have any reason to believe that the list and IP were faked, but none of the files were downloaded.
Do you think, based on the evidence presented, that it is likely that the files were real (that is, they were what they were advertised as being), or do you think that it is likely that they were fake?
Which is most probable?
This is important, because in a civil suit, the standard of proof is a preponderance of the evidence. That is, anything that is more likely than not (i.e. 51% likely to be true) is considered to be true. Reasonable doubts are irrelevant in such a trial. That standard only is used in criminal trials, and most copyright suits are not criminal trials.
Me, I'm highly sympathetic to these sorts of defendants. But I think that it's most likely that they were sharing what they said they were sharing, based on the filenames. I would not bother with fantasies about the files being fake. RIAA might share fake files, but other people usually don't.
Most of the posters here so far have been flying off the handle over nothing.
One of the links in the story post tells us that the cases is Elektra v. Barker. While we don't yet seem to have the argument referenced there in front of us, we do have the original complaint from about mid-2005, here, thanks to one of the few people that's posted here whilst keeping there wits about them.
Basically RIAA is merely saying that Barker ran Kazaa, and was sharing some music with it. They're suing her for having done so.
Copyright does include an exclusive right of distribution (17 USC 106(3)) which has frequently been held to cover serving files. And just to preempt some people who will surely latch on to that, note that there are many different rights within copyright, and this is but one of them. Making copies of files, which necessarily happens when you download, is also covered under copyright, and can be infringing as well.
Obviously the RIAA is not saying -- as many people here assume -- that putting any file on a server is illegal. That's beyond even them. What they are saying is that where the files are copyrighted, and the copyright holder hasn't authorized it, and there's no applicable exception in copyright that would permit it, then it's illegal. Certainly as a civil offense, and possibly also as a criminal offense. (Compare 17 USC 501 with 506 and 18 USC 2319)
So if Alice writes a book and puts it on the Internet for anyone to download, that's fine. If she puts a public domain book on the Internet for people to download, that's fine too. But when she puts up Bob's book, without permission, she's got some trouble.
So far this seems to be an amazingly boring case. And, if the facts are as RIAA says, it's probably open-and-shut in their favor. Like it or lump it, copyright suits are generally pretty simple.
So what could be interesting about this? Well, and I'm just guessing here, since I have not seen anything recent about this from the plaintiff, I suspect that the plaintiff said that making the files available to be shared via Kazaa was unlawful distribution, even if no one ever downloaded the files.
This runs contrary to another case, where the court held that an offer to distribute (which is what placing a file in a share is) is not actual distribution, and that only the latter is unlawful. So RIAA or another plaintiff has to catch a defendant actually serving the file to someone. I would not expect that it matters who it is served to. If the copyright holder were to download it themselves, in order to gather evidence, that would probably suffice. (And before someone claims entrapment, let me remind you that that only applies where one is coerced into doing something that one would not have otherwise done. If you were going to share the file with anyone who requested to download it, then the fact that you did so with the wrong person is bad luck for you, but won't get you off the hook)
If the plaintiff never d/l'ed the file, then this also raises the question of whether the files were actually copies of the music in question, or if they were just labeled that way. Given that the plaintiff appears to have the file listings in hand, they'll probably win this. In a civil suit, which this is, the standard of proof is a preponderance of the evidence. It is not the beyond a reasonable doubt standard reserved for criminal suits. In this case, reasonable doubts as to the facts will not save the defendant; instead whatever is felt to be most likely, even if only by a hair's breadth, is considered the truth. In my experience, when someone (other than RIAA et al) puts up a file claiming to be an mp3 of a song, it usually is.
All told, it seems like a humdrum case that is not worth getting worked up about (unless you think P2P of this sort should be legal, in which case lots of cases are worth getting worked up about). There
Maybe. But you'd have to be careful that it wasn't "any other act or practice in the nature of rental, lease, or lending." It would be legally risky, at a minimum.
Well, I actually would consider making copies of a DVD with CSS intact on a home file server, to be decrypted by thin clients in the home authorized to do so by way of my having inserted the DVD in them at some point (so the keys could be obtained).
Fair enough, but it is presently an uncommon practice at best. Incidentally, you don't have the ability to authorize players, and inserting DVDs into them isn't how one would do so in any event. (especially since an image of the DVD would include any material such as keys that were on it). It's a bizarre sort of practice. Honestly, I would chalk it up to cargo cult copyright law, like the silly 24 hour trial period or magic words that are supposed to keep authorities from connecting to servers.
While questionable on legal grounds (the use of an unauthorized player in the client),
Oh, there's no question about it. You'd be circumventing access controls for sure.
I do believe that I have a resposibility to protect the copyright holder's property -- to leave copies on a home lan unencrypted might be construed as negligent, rather like not locking up a firearm. This is particularly true if external access to machines on that lan is possible, albeit through an encrypted VPM and firewall.
You have no such duty. And whatever you did, it would never be construed as being negligent, because that is a concept with no connection to copyright law. Copyright is strict liability -- if you infringe and it is not even enough to be negligent, much less willful, etc., it still doesn't matter. Reasonable steps against infringement will not protect you.
I can't see it being copyright infringement if there is no distribution, but the argument could be made, yes.
Reproduction is one kind of infringement. Distribution is another kind. There is no requirement that you engage in them together (though people very often do). Check out 17 USC 106 and 501.
FWIW, I do not pirate content. I purchase every CD and DVD I wish to have a copy of. But, the reach of the DMCA in preventing me from managing my use of that content in a convenient manner is utterly maddening.
Yes. The industry is just crazy. There are no end of problems with modern copyright law. It's rather like prohibition -- the most sensible thing for law-abiding people to do is to break the law. I despise bad laws, not only for their substantive badness, but also because when they are widely broken, they encourage disrespect for law, good and bad. If we expect people to abide by the law, the law must be reasonable.
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Attorneys have a duty solely to their clients. An employee or member of a law firm must not publicly advocate or advance positions against the interests of their clients.
Since when? Precisely which rule of professional conduct would apply here? If it is as you say, how do you explain Rule 6.4?
Just because a lawyer publicly disagrees with one of his clients doesn't mean that he cannot provide competent representation or that there is a significant risk that the representation will be materially limited as a result. It's certainly not a breach of confidentiality. It might be unwise, because the client will want to get a new lawyer, but it's not an ethical violation.
I have my doubts whether this person could now be admitted to the NY Bar.
Pft. While it'll be some time before she tries, I'm pretty confident that they won't care one bit.
Well, I dunno. Just because two people come up with it doesn't make it obvious. Remember that obvious to a PHOSITA means that the invention cannot have required creativity at all. I don't think that independent invention makes the inventors uncreative.
So if I invent fire tomorrow, never having myself seen or heard of it before, am I the inventor of fire? Should I be entitled to a patent? Or should I be viewed with some pity, being many hundreds of thousands of years late?
We've had a first to invent system for a very long time for a reason. It's the most sensible thing to do, and it's what the Constitution mandates. Yes, it raises the issue of patent interferences. But this is not really that big a deal, we have a procedure for it, and we're pretty good at sussing out the real inventor.
I know. And I immediately posted a follow up to clarify what I had said.
Sorry, a quick clarification here: The Constitution doesn't mandate that patents be granted at all. But if they are granted, then they have to initially vest in inventors, rather than someone else. Of course, the inventors are still free to have sold their rights off, etc.
The Constitution mandates that patents be awarded to inventors. That means the first inventor, not some johnny-come-lately. Whether he's the second, or third, or one thousandth person to invent something, he's not the inventor. That was the person who was first.
Possibly, if the transfer is to the bearer of the title document. But it probably is a question that needs researching (which I am too lazy to do for the benefit of a /. post) and I doubt that it comes up very often.
A good example of this is in the 14th Amendment:
See the difference? The courts have, and often prevent noncitizens from being discriminated against or denied due process.
Fees are not really that big of a problem. If you win your case, you may be able to recover fees from the other party under 17 USC 505. But honestly, so many of these suits are open-and-shut in RIAA's favor that it wouldn't make sense for defendants to rely on that, since the defendants probably won't win.
Infringement is generally a civil offense, but under some (increasingly broad) circumstances, it can be prosecuted criminally as well. Prosecution just doesn't happen all that much, since the DoJ usually has better things to do with its limited resources.
You're right, though, that attempted infringement is not unlawful. There is still a question of what constitutes infringement, however.
Yeah, I've noticed that the sky isn't as blue as people say it is. For example, at night.
Well, a lot of this is probably best put in the lap of the defendant. They're in a better position to know what was on their machine, and to check to see if they've been hacked. More of an incentive to check, too.
So, if they can show me that the PC had the files on it (this I'd want proof, otherwise they could claim anything they wand) and that they made some effort to show it wasn't hacked (again, if it has Kazaa, probably not hacked, but hidden FTP service? Hacked).
But just an IP and a list of filenames? I'd want something that couldn't just be made up by anyone.
Man are there a lot of people who seem to want magical evidence that can't be faked. What the hell is up with that? Anything can be faked. And exhibitory evidence is not inherently better than testimonial evidence.
If it's admissible at all, it all goes to the jury, and they can decide what they believe and what they don't. And unless they're biased or have been tampered with or something, whatever they come up with is the final word. Juries have a lot of freedom.
If you were on a jury, a list of screenshots (with filenames, IPs, etc.) would not be enough, not because it doesn't show what it shows, but because you doubt the truthfulness of the evidence. If I were on a jury that same evidence would be fine, because, barring something to the contrary presented by the defendant, I don't think that stuff would be made up.
Both of us would be right, as a jury can come to either conclusion reasonably.
I'm not sure whether past case law supports the position that making a file available for sharing violates copyright, if no distribution actually happens.
And we don't know whether it's an issue in this case. Thus, I've generally set it aside. I can see arguments on both sides of the question.
I think what I would be most comfortable with is that the copyright holder could get an injunction against the filesharer, but since no monetary damages occured (how could they, if no copies were made?), there should be no monetary penalty.
Well it's all or nothing, I'm afraid. If offering isn't infringing, then it's lawful and you could not get an injunction against it.
One question is about who is responsible for asserting that a file is or is not copyrighted, or licensed.
Part of plaintiff's prima facie case is to prove that they have a valid copyright and that those copies are of works covered by said copyright. If they just have lists of files, then that's their evidence on that point. Some people might say it's not enough, others would accept it, and of course it can be disputed, but that's their evidence. Remember that lots of things are evidence; it's the job of the jury to sort through it and arrive at what probably happened, given what they know, and how much credibility they assign various witnesses and pieces of evidence.
But there are two minor cases to consider:
1) you haven't heard of any of the movies/bands on the site; is the burden on the downloader or the uploader to figure out if copying is permitted?
2) if there are situations in which it is "fair use" to download a file (may or may not include downloading a replacement copy of a damaged track on a CD you own), does the uploader have the right to make the file available (and the burden is on the downloader to figure out if their use is fair)?
Well, two things. First, copyright is a strict liability statute. Thus, even if you behave reasonably, e.g. by checking to see if you can lawfully ul or dl a file, if you're wrong, you've infringed. So it really doesn't matter whether you check or not, unless you are 100% right, or willing to chance it. Second, one infringer cannot rely on the fair use of another (by standing in the fair user's shoes) to protect himself. So assuming arguendo that the downloader is shielded by fair use, that does not protect the uploader who still engaged in infringing distribution.
What I am still uncertain about, though, is that there should be a clear digital equivalent to the right to loan someone a copy of a copyrighted work. That is, the law should clearly acknoledge the right to make the digital equivalent of a public library, in which the key idea is that copies can be made (copying is inherent to digital use) but that only one copy of the work is in use at a time. I'm not sure how that could be appropriately implemented without use of DRM (which is a slippery slope) - but we should not allow copyright holders to eliminate the concept of a lending library. (Libraries still lend CDs and movies, but rarely if ever lend software. Why is that?
Well, write your Congressman.
As for libraries, they can lend software. However, if EULAs can be asserted against them, then that might stop them. And libraries generally don't seem to want to worry about keeping an up-to-date software library. A collection of software from even a few years ago isn't much use to people now, but costs them a lot. CDs, DVDs, books, etc. all retain their usefulness longer, and are individually cheaper as well, usually. Basically it seems like a pain in the ass, though I do remember the public library in my hometown lending out Apple II programs when I was a kid.
Any license more restrictive should be illegal.
Meh. I don't think that it's a good idea to encourage the idea of licensing to end users anywhere. Nor should we allow adhesive licenses, or certain terms, with regard to copyright. The default provisions of the law should be good enough for everyone (provided we reform them to make them good enough for everyone). Software licensing as practiced now is abhorrent.
Trials don't work that way. Do you think they should?
You think people are guilty until proven innocent? That's absurd.
What a bizarre comment.
Of course the plaintiff has to present proof. And they have, in the form of screen shots indicating an offer to distribute audio files with the names of plaintiff's songs, where the files were located on a computer with an IP address assigned to defendant at that time.
If the defendant has some evidence that rebuts this, they'd damn well better present it. Sure, the plaintiff has a burden of proof. And he has satisfied it.
If files are being offered from a computer at an IP address assigned to Alice, who is probably doing the offering? Alice, or Bob? Probably Alice.
If the files are audio files, with the names of songs, and filesizes that fall within a given range, are they probably the songs they claim to be? I say yes.
So since Alice is liable if she probably did it, and RIAA has shown evidence indicating that she probably did, her only two choices are to give up or show evidence that shows that she probably didn't do it.
This is how civil cases usually work. If there is a 51% chance that someone did something, then he did do it, and it's a fact. Juries can decide what evidence is more trustworthy, but in the end, they have to decide what probably happened based on what both sides have shown.
Listing files does not indicate they're being offered for distribution, but you are correct that this is a legal question for the judge.
The listing in question is within Kazaa. There is not a credible argument that there is not at least an offer to distribute. This is not a web page listing one's mp3 collection, and without a single link.
The only question -- if it is indeed a question, since we don't really have all the details of the case -- is whether the offer is an infringement or not. It's an interesting question of law. Personally I don't think an offer is sufficient, but I can see it going either way. Certainly I would advise clients to get an actual download. It cements the infringing act and strengthens the evidence, since you know if the file was fake or not.
You're assuming in all this, that a list of file names and an IP address is sufficient to go to court. It honestly isn't and even if it were, the method(s) that the RIAA is using, is so defective, that it doesn't even measure up to the minimum requirements of proof within the law.
How so? Yes, there's the offer/actual issue, but aside from that? Assuming arguendo that an offer was infringing, what more evidence do you need than that the offer was made (i.e. files were listed for download on a P2P app), the files were probably copies of the copyrighted music (given their file sizes, file types, and file names), and that at the time the offer was made, those files were on a computer with an IP address assigned to the defendant, and thus probably under their control and being used by them. The defendant can dispute the facts shown by the plaintiff, but at least it gets to the jury then. And the facts can be construed so as to show that the offer was made, so they're enough to support the action.
Frankly, I agree. It's too difficult for copyright holders to catch infringers if they have to act as a bystander. It's really no different from a policeman pretending to be a drug purchaser or prostitute in order to find criminals. While copyright law should operate to the benefit of the public, it should also favor copyright holders over infringers. You seem to want to turn that notion on its head. As much as I want to raically reform copyright, I don't want to make it that toothless.
I'd want to do more research on this issue, but my prediction is that you're wrong on it.
Let me put it like this. I can share a folder called windows_vista_source_code.zip that does not make it Windows Code. Saying that I had file with a name does not make it so. I feel that the RIAA should have to prove the file is the file.
And they are proving it.
If you are on the Internet -- better yet, using a P2P network -- and you see a file with a name like 'Led Zeppelin - Stairway to Heaven.mp3' what is it probably? I know that it could be a spoof, but it also could be real. 'Could be' is not relevant in a civil trial. What we are interested in is what it probably is.
So are most files real or fake? In my experience, most files are real. There are fake files, but they are in a minority. This being the case, if someone shows me proof that Alice shared that mp3 file, even if we don't know the contents of the file, it is probably what it claims to be, based on what we do know about it.
That's good enough for the court, because the court uses a preponderance of the evidence standard. Which is to say, whatever is most likely, even if only marginally so, is considered to be a fact.
So while RIAA could do a better job with their proof, they've offered evidence and a reasonable member of a jury can believe it.
Which goes to prove you can't have tried it that much.
Well, that's a good piece of rebuttal evidence for the defendant, then. They'll want some hard numbers, though.
Of course, if plaintiffs are not downloading files to verify, then I would at least hope that they are checking file sizes. Since they're the only ones who would make such files, they probably at least know the size of what the fakes down to the byte. This could be used to distinguish files, depending on the information collected.
Also, while it's not relevant vis-a-vis copyright, yes, people can be convicted of intent crimes even if they make a mistake of fact.
A list of filenames and an IP address has zero worth as evidence, since it could be faked extremely easily with any text editor.
It is evidence. How much credibility the various witnesses and evidence have is a decision for the jury. They can think that RIAA faked it, or they can think that RIAA told the truth. Both opinions are valid, and we have juries precisely to make these kinds of evidence-weighing decisions.
there is no reason to believe their word over anyone elses word
And yet juries do this kind of thing every day. It is their job to take a he-says, she-says argument and decide who is telling the truth.
So, if I was on a jury, the defendant would walk, since there was no evidence whatsoever against him.
No, there is evidence against him. You just don't believe it. That is fine -- provided that it's not due to prejudice against the plaintiff. Like I said, it's the jury's job to decide what they believe. Just remember that the opposite outcome is equally legitimate.
As pointed out in this other comment, the "evidence" is simply screenshots of Kazaa showing the user's shares. Two screenshots is enough evidence to file a suit against somebody? A fucking screenshot is evidence in a trial??
Yes. Sounds like pretty good evidence, too.
Do you have some credible reason for thinking that it's fake? The mere possibility isn't really good enough, you know. Think of Occam's razor. The simplest reason is usually the correct one. I think that it's more likely that people really do share files and get caught than that there are big conspiracies faking evidence to get these random people.
If I were the defendant I'd file a counter-suit that the RIAA headquarters is sharing some of my copyright music, then fabricate hundreds of screenshots allegedly "demonstrating" these copyright violations. Hell, I might as well make it kiddie porn! Then I could get the RIAA executives sent to jail for breaking criminal law instead of tort law.
So I'm supposed to be sympathetic to your opinion because you'd engage in perjury and because you'd try to frame innocent people of very heinous crimes? You're really not helping the anti-RIAA side, you know.
My point is that they have no way to prove their evidence is valid, beyond their say so.
So what? Either the jury believes that the RIAA is not making this up, or they think it's all totally faked. It is their decision to make. Determining how trustworthy witnesses and evidence are, and finding the facts of the case based on what they believe to be true is precisely the job of a jury.
Ultimately it all comes down to who's word you trust.
An IP address and a list of file names* does not even come close to satisfying any of those requirements. A file name doesn't prove the contents of that file belongs to them, listing available files does not prove that they were distributed and an IP address doesn't mean you did it.
A filename probably accurately indicates the contents. Unless there was a good reason to believe otherwise, if I were on the jury, I would believe it. And remember, it only has to be probably true to be treated as a fact. That it could plausibly be otherwise isn't good enough.
Listing the files indicates that they were offered for distribution. Whether that's equivalent to distribution is a legal question for the judge, not the jury. It's irrelevant here.
And the IP address, the time it was collected, and records from the ISP indicating who that address was assigned to at that time would also probably be accurate. Again, I'd believe it, unless there was a good reason to believe otherwise. Open WAPs are not good enough, btw.
Imagine an Apt with 3 18+yrs old room mates. Who do they sue? Everyone can say "it wasn't me" and how will the RIAA prove otherwise.
Well, they can be reasonably sure it's one of them. Start a John Doe suit and engage in discovery by collecting their computers and checking to see what's on them.
If necessary, sue them all. The classic case on this is Summers v. Tice. Basically, plaintiff and two defendants were out hunting. Both defendants took a shot. One of the defendants shot the plaintiff, but plaintiff was unable to determine which one did it (it wasn't both that hit him). The court held both defendants liable, since that was the most fair thing to do -- one of them did it, and between the two of them, they were in a better position to figure it out than the injured plaintiff, who deserves compensation.
Given the limited pool of likely defendants in your hypo, it's what I would do. In the US, which is generally quite plaintiff-friendly, I imagine it would work, or at least be taken quite seriously.
That should not and will not stand up in court. Even civil law has minimal standards of evidence and a list of files + your I.P. address doesn't prove anything.
All the files you're 'sharing' could be fakes.
That's true. However, let me ask you a question. Let's say you're on a jury in a civil copyright suit. The evidence you've been presented consists of a list of files, and the IP address of the person who was sharing those files at the time. You don't have any reason to believe that the list and IP were faked, but none of the files were downloaded.
Do you think, based on the evidence presented, that it is likely that the files were real (that is, they were what they were advertised as being), or do you think that it is likely that they were fake?
Which is most probable?
This is important, because in a civil suit, the standard of proof is a preponderance of the evidence. That is, anything that is more likely than not (i.e. 51% likely to be true) is considered to be true. Reasonable doubts are irrelevant in such a trial. That standard only is used in criminal trials, and most copyright suits are not criminal trials.
Me, I'm highly sympathetic to these sorts of defendants. But I think that it's most likely that they were sharing what they said they were sharing, based on the filenames. I would not bother with fantasies about the files being fake. RIAA might share fake files, but other people usually don't.
Most of the posters here so far have been flying off the handle over nothing.
One of the links in the story post tells us that the cases is Elektra v. Barker. While we don't yet seem to have the argument referenced there in front of us, we do have the original complaint from about mid-2005, here, thanks to one of the few people that's posted here whilst keeping there wits about them.
Basically RIAA is merely saying that Barker ran Kazaa, and was sharing some music with it. They're suing her for having done so.
Copyright does include an exclusive right of distribution (17 USC 106(3)) which has frequently been held to cover serving files. And just to preempt some people who will surely latch on to that, note that there are many different rights within copyright, and this is but one of them. Making copies of files, which necessarily happens when you download, is also covered under copyright, and can be infringing as well.
Obviously the RIAA is not saying -- as many people here assume -- that putting any file on a server is illegal. That's beyond even them. What they are saying is that where the files are copyrighted, and the copyright holder hasn't authorized it, and there's no applicable exception in copyright that would permit it, then it's illegal. Certainly as a civil offense, and possibly also as a criminal offense. (Compare 17 USC 501 with 506 and 18 USC 2319)
So if Alice writes a book and puts it on the Internet for anyone to download, that's fine. If she puts a public domain book on the Internet for people to download, that's fine too. But when she puts up Bob's book, without permission, she's got some trouble.
So far this seems to be an amazingly boring case. And, if the facts are as RIAA says, it's probably open-and-shut in their favor. Like it or lump it, copyright suits are generally pretty simple.
So what could be interesting about this? Well, and I'm just guessing here, since I have not seen anything recent about this from the plaintiff, I suspect that the plaintiff said that making the files available to be shared via Kazaa was unlawful distribution, even if no one ever downloaded the files.
This runs contrary to another case, where the court held that an offer to distribute (which is what placing a file in a share is) is not actual distribution, and that only the latter is unlawful. So RIAA or another plaintiff has to catch a defendant actually serving the file to someone. I would not expect that it matters who it is served to. If the copyright holder were to download it themselves, in order to gather evidence, that would probably suffice. (And before someone claims entrapment, let me remind you that that only applies where one is coerced into doing something that one would not have otherwise done. If you were going to share the file with anyone who requested to download it, then the fact that you did so with the wrong person is bad luck for you, but won't get you off the hook)
If the plaintiff never d/l'ed the file, then this also raises the question of whether the files were actually copies of the music in question, or if they were just labeled that way. Given that the plaintiff appears to have the file listings in hand, they'll probably win this. In a civil suit, which this is, the standard of proof is a preponderance of the evidence. It is not the beyond a reasonable doubt standard reserved for criminal suits. In this case, reasonable doubts as to the facts will not save the defendant; instead whatever is felt to be most likely, even if only by a hair's breadth, is considered the truth. In my experience, when someone (other than RIAA et al) puts up a file claiming to be an mp3 of a song, it usually is.
All told, it seems like a humdrum case that is not worth getting worked up about (unless you think P2P of this sort should be legal, in which case lots of cases are worth getting worked up about). There
Maybe. But you'd have to be careful that it wasn't "any other act or practice in the nature of rental, lease, or lending." It would be legally risky, at a minimum.
Well, I actually would consider making copies of a DVD with CSS intact on a home file server, to be decrypted by thin clients in the home authorized to do so by way of my having inserted the DVD in them at some point (so the keys could be obtained).
Fair enough, but it is presently an uncommon practice at best. Incidentally, you don't have the ability to authorize players, and inserting DVDs into them isn't how one would do so in any event. (especially since an image of the DVD would include any material such as keys that were on it). It's a bizarre sort of practice. Honestly, I would chalk it up to cargo cult copyright law, like the silly 24 hour trial period or magic words that are supposed to keep authorities from connecting to servers.
While questionable on legal grounds (the use of an unauthorized player in the client),
Oh, there's no question about it. You'd be circumventing access controls for sure.
I do believe that I have a resposibility to protect the copyright holder's property -- to leave copies on a home lan unencrypted might be construed as negligent, rather like not locking up a firearm. This is particularly true if external access to machines on that lan is possible, albeit through an encrypted VPM and firewall.
You have no such duty. And whatever you did, it would never be construed as being negligent, because that is a concept with no connection to copyright law. Copyright is strict liability -- if you infringe and it is not even enough to be negligent, much less willful, etc., it still doesn't matter. Reasonable steps against infringement will not protect you.
I can't see it being copyright infringement if there is no distribution, but the argument could be made, yes.
Reproduction is one kind of infringement. Distribution is another kind. There is no requirement that you engage in them together (though people very often do). Check out 17 USC 106 and 501.
FWIW, I do not pirate content. I purchase every CD and DVD I wish to have a copy of. But, the reach of the DMCA in preventing me from managing my use of that content in a convenient manner is utterly maddening.
Yes. The industry is just crazy. There are no end of problems with modern copyright law. It's rather like prohibition -- the most sensible thing for law-abiding people to do is to break the law. I despise bad laws, not only for their substantive badness, but also because when they are widely broken, they encourage disrespect for law, good and bad. If we expect people to abide by the law, the law must be reasonable.