The ACTA proposals currently include language that would make copyright infringement on a 'commercial scale,' even when done with 'no direct or indirect motivation of financial gain,' into a criminal matter.
Those who would equate filesharing with theft should note that the ACTA proposals are intended to do exactly that. Theft is criminal.
But until (if) it is adopted, that comparison is false. And it always has been. Not-for-profit filesharing is not illegal, or they wouldn't need to pass a new law (or sign a treaty) to make it so.
Until now, it's not whether you share that determines the legality, it's what you share. Not every artist agrees with the RIAA. Unfortunately, there is no way to tell the difference without more mental effort than Americans will spend. You'd think that after 6 years of suing people, the labels would start marking the leaked stuff as illegal so law-abiding people can block all of it from the search results.
Finally, what is a "commercial level"? The RIAA is suing one kid for a million dollars -- for 7 songs. Supposedly, they only sue "aggregious" file sharers. So I'm betting a "commercial level" is five songs.
Obama took all of the RIAA's best lawyers (none of which successfully prosecuted even one file sharer, although many were persecuted), so now they can't be involved in copyright infringement cases, at least for a year or two. And it would still be conflict of interest after that.
The down side is that the Dept. of Justice is going to be staffed with people we know are more than willing to lie to us. No change there. But at least they don't work for the RIAA any more.
At least, they won't be suing college kids anymore. If Obama keeps his word about lobbyists working in the fields they lobbied, none of these people should be allowed to participate in any cases involving the RIAA, copyright infringement or royalties.
Is there anything the RIAA can do to reduce illegal file-sharing...
We never used to have illegal music in the last century. Stop releasing illegal music and this problem will disappear. Keep making it and the answer is no....without generating massive amounts of bad publicity?
They haven't been able to do it even with massive amounts of bad publicity.
Regardless, my point is that a blanket statement that "The plaintiff must always see every case to completion," while perhaps satisfying in this case, will not always serve the interests of justice.
My point is not that "The plaintiff must always see every case to completion." Quite the contrary.
The RIAA has filed 40,000 lawsuits over a five-year period and have allowed exactly one to be decided by a jury, based upon a premise that has since been determined to be an "error of law."
I've said this before, so apologies to those who have seen it multiple times:
Sony v. Betamax presented the same basic copyright infringement issue. It involved exactly one defendant who, with a guarantee of no financial penalty, admitted to acts in question in several forms. The two sides then battled over whether the activity itself measured up to a violation of the law. It did not.
Filesharing is not mentioned in the copyright law. Neither is uploading or downloading or the determination of which is actually the infringing party. Most copyright infringement without profit potential has been specified as unactionable.
The RIAA has yet to prove the foundation of a legal basis for a file-sharing lawsuit against an individual.
It's not about "seeing every case to completion." Just one.
I think people give the RIAA far too much credit by calling them evil. They're not smart enough to be evil.
In this case, if you read the RIAA's motion to dismiss without prejudice, which is linked from the article, they claim that...
The RIAA claims a lot of things. They always give up just before it's time to go to court and prove it in front of a jury.
defense by stonewalling
You mean the right to remain silent? Or the right to an attorney? If you accuse me of something, the burden of proof is on you. I don't have to say a damn word.
I would think that defense by stonewalling pales in comparison to prosecution by bluffing. The reason the RIAA drops every case is because they have no evidence. They'll claim they've got a whole shitpile of it, but then turn around and whine about how it's unfair to expect them to produce evidence, how it would "cripple" their efforts. Because they haven't got any.
Out of the tens of thousands of cases there are only a handful wherein the defendent makes a claim of innocence. Those are the only ones we hear about. Something like 99 percent just pay the settlement. It's all about refusing to admit that their system is wrong sometimes. If the RIAA accuses a computer illiterate of filesharing and drags it out for three years but are afraid to take the case to a jury and blame her for their incompetence, they never had any evidence in the first place.
The strongest evidence they have had in any case thus far, to my recollection, was that Jammie Thomas replaced her hard drive before they sued her. In essence, their only evidence was the lack of evidence. That's the only one they took to trial so far, their most solid case.
You don't need a license to lend books to people. You just need books. Once you buy a book, you can do whatever you want with it.
I have made the following comment before, but it is once again pertinent:
If Thomas Jefferson, James Madison, John Adams and the rest of our founding fathers considered the non-profit sharing of copyrighted material as an activity which broached the intent of the copyright law, surely this would have come up when Ben Franklin opened the first public library.
I watched part of it on C-SPAN but, judging from the coverage by the so-called "liberal" media, it doesn't even seem to qualify as news. Didn't happen. Nothing to see here...
Because the big four won't consider cutting back on product release in order to crush the P2P community
Do you have any facts to support this? I was under the impression that releases had been cut to a third of what they were in 2000.
give the P2P developers free access to media product in return for the P2P developers agreeing to limit the distribution of this product to only the people whom they consider to be 'cool'.
Uh, how about finding 'product' made by 'cool' people who won't sue you and not worrying about who takes it?
How come Slashdaughters don't think like this and talk like this whenever this topic comes up for discussion?
Because the cartel demands DRM and/or filtering. DRM is not acceptable; filtering just doesn't work. They're dealbreakers. It's much, much easier to simply find "legal" music and ignore the RIAA.
First, anybody know of any patently identical incidents where this happened?
Irrelevant. You don't have to be a serial killer to get arrested for murder.
a glaring lack of foresight resulting from stupidity is not the same thing as digital terrorism.
How many settlements has the RIAA collected from people whose worst crime was being stupid?
If the end result meets the definition, then it is the same thing. Proving motive is optional. If stupidity were a valid defense, the prisons would be empty.
The RIAA has taken the position that MediaDefender's methods are flawless. Out of all the thousands of cases, we only hear about the handful in which the accused suggests that an error may have been made, which results in a legal juggernaut being brought down upon them that the RIAA will fight "until the end of time."
MediaDefender's software assumes that a) any site with a bittorrent file belongs to pirates and b) they are never, ever wrong. Programming a calculated, automatic response that goes beyond what the law allows seems to more than accurately fit the definition of premeditated.
I understand "our servers did it" very well.
It means "our servers did exactly what we programmed them to do."
The original question was whether or not the artist gets paid. I had no expectations. Just correcting the misconception that paying the ASCAP or BMI fees equates with paying the artist, who will not receive a dime if they recorded a song they did not write, which is a common practice.
The performing artist never gets paid directly for a recorded performance while under contract to a publishing group.
Mostly because publishers never pay the performing artist for anything.
No one is being sued for uploading, either. They're being sued because you can see the files they have.
-------
The proposal includes clauses designed to criminalize the non-profit facilitation of copyrighted information exchange on the Internet
The founding fathers included provisions for copyright when they put the Constitution together. If they had a problem with the "non-profit facilitation of copyrighted information exchange," they would have addressed it when Benjamin Franklin opened the first public library.
In the real world, this would criminalize the public library, along with every institution of higher learning. Then they start burning books...
Congress was aware of computer-related issues becoming more important when they were writing the 1976 Act and formed a commission (CONTU) to look into it and advise them. And Congress has even amended and written computer-related provisions of copyright law in light of MAI.
They may have discussed the need for copyright protection for software and code, but they certainly weren't talking about sharing music files over the Internet.
Really, if you look into it, you'll see that the issues are fairly cut and dried.
Uploading, downloading, file sharing and the Internet are not mentioned in the text of Title 17 of the U.S. Code. How can these things be cut and dried if they are not even acknowledged?
Napster and Grokster were corporations formed for the purpose of making a profit. Their actions were calculated and intentional. While the "calculated and intentional" part can be said for some file sharers, maybe even most of them, we also know that some people just aren't smart enough to turn sharing off. And none of them are profiting.
Please understand that my perspective is that of someone with my own copyrighted work to share, not a p2p user looking for the latest hit or trying to amass a collection.
For me, downloading is free promotion, not theft. The RIAA's efforts to "protect" their content from being heard have a negative impact on my efforts to allow my content to be heard. Every time they suggest that downloading is illegal, I feel compelled to remind that this is only potentially true for the dwindling number of titles that the RIAA members release.
File-sharing is not inherently illegal. Neither is uploading, downloading or making available. Only some music is unauthorized for sharing, comprising a small percentage of the works being created, with no obvious way to discern the difference.
Things are decidedly not cut and dried.
As such, I think that efforts to oppose the copyright maximalists would be most fruitful in Congress, rather than the courts.
This might be true if it wasn't an election year and the RIAA wasn't already there, handing out political contributions.
Congress and the courts are equally useless in solving the underlying dilemma of promotion vs. protection. I've talked to several artists who are opposed to downloading of their music, but only because it's all or nothing. Most wouldn't be opposed to allowing the sharing of the same songs they are pushing to radio, but there's no method to allow one song to proliferate and protect the rest.
The musicians will figure it out first, just to get all the "illegal" songs out of the promotional channels.
the RAM is a material object in which the work was fixed.
The court may have decided that, but it is factually incorrect, indicating the court's severe lack of understanding of the basic physics of electronic information. Nothing is "fixed" in RAM.
"Fixed" implies permanence. Take a CD out of the player and the music is still on it. It is fixed. You cannot erase it, modify it, replace the data with something else, change the order of the songs, or even delete the contents.
Take the RAM out of a computer and try to retrieve the data. You can't. RAM is volatile. Any data that resides there is temporary and definitely not fixed.
If I write a song and record it in ProTools, the individual tracks are not fixed to my hard drive. I can change them in innumerable ways. If I mix them down into a stereo file, it is still not fixed to a material object. I can still throw it away or edit it.
If I put it in my shared folder, that doesn't suddenly make it fixed. I can move it somewhere else if I want to. If it is not fixed, it is not a "copy" as defined by the US copyright laws. If it's not a copy, it can't be infringing.
The copyright laws were written to address physical piracy. The word "fixed" was used to encompass any physical means of reproducing copyrighted material, whether it be music, books, paintings, photography, film or ship designs. Things you could sell.
After 40,000 cases, the courts are just now realizing that "making available" doesn't fly.
As written, the law would seem to specifically exempt the copying of information that is not fixed -- simply because they could not imagine how you might do that when the law was drafted. They do not address the Internet, file-sharing, uploading or downloading. Nothing on the Internet is fixed. Most of it isn't even spelled properly.
More importantly, Congress has not taken it upon itself to modify the law to include these concepts since this became an issue.
How many more people does the RIAA get to sue on the basis of their hypothesis that file-sharing is a copyright infringement without ever proving the claim has an actual basis in law? Can the Supreme Court address the controversy without a specific case?
Although I liked the earlier analogy someone made likening RIAA music to poison candy, it would be nice if we could replace the semantics with actual laws that say whether file-sharing is copyright infringement and, if so, is it the uploader or downloader making the infringing copy, and all of the other basic questions that we have been debating about for years now, each of which are still open to litigation in every single case.
...according to reliable sources close to the situation who asked not to be identified because they swore a blood oath that they would not, under any circumstances, reveal this information to the press.
Slashdot Mirror
It seems to have worked for "downloading is theft."
??????How do you define a "best lawyer"?
No, the RIAA's best lawyers. It's a much, much lower standard.
Lawyers who collected fees of ~$50m or more, and couldn't win even one fully contested case, against opposition which can't even afford a lawyer?
Yep. That's them. The RIAA's best.
I should put sarcasm warnings in my sig.
The ACTA proposals currently include language that would make copyright infringement on a 'commercial scale,' even when done with 'no direct or indirect motivation of financial gain,' into a criminal matter.
Those who would equate filesharing with theft should note that the ACTA proposals are intended to do exactly that. Theft is criminal.
But until (if) it is adopted, that comparison is false. And it always has been. Not-for-profit filesharing is not illegal, or they wouldn't need to pass a new law (or sign a treaty) to make it so.
Until now, it's not whether you share that determines the legality, it's what you share. Not every artist agrees with the RIAA. Unfortunately, there is no way to tell the difference without more mental effort than Americans will spend. You'd think that after 6 years of suing people, the labels would start marking the leaked stuff as illegal so law-abiding people can block all of it from the search results.
Finally, what is a "commercial level"? The RIAA is suing one kid for a million dollars -- for 7 songs. Supposedly, they only sue "aggregious" file sharers. So I'm betting a "commercial level" is five songs.
Obama took all of the RIAA's best lawyers (none of which successfully prosecuted even one file sharer, although many were persecuted), so now they can't be involved in copyright infringement cases, at least for a year or two. And it would still be conflict of interest after that.
The down side is that the Dept. of Justice is going to be staffed with people we know are more than willing to lie to us. No change there. But at least they don't work for the RIAA any more.
News would be if the RIAA told Congress the truth.
At least, they won't be suing college kids anymore. If Obama keeps his word about lobbyists working in the fields they lobbied, none of these people should be allowed to participate in any cases involving the RIAA, copyright infringement or royalties.
The spam problem will not be solved with laws or pretty tricks like this.
Of course it won't. But it creates jobs, apparently.
Is there anything the RIAA can do to reduce illegal file-sharing...
We never used to have illegal music in the last century. Stop releasing illegal music and this problem will disappear. Keep making it and the answer is no. ...without generating massive amounts of bad publicity?
They haven't been able to do it even with massive amounts of bad publicity.
Is this to prevent home grown artists from recording their own high quality material?
Merely selling them a Dell laptop would seem sufficient.
Regardless, my point is that a blanket statement that "The plaintiff must always see every case to completion," while perhaps satisfying in this case, will not always serve the interests of justice.
My point is not that "The plaintiff must always see every case to completion." Quite the contrary.
The RIAA has filed 40,000 lawsuits over a five-year period and have allowed exactly one to be decided by a jury, based upon a premise that has since been determined to be an "error of law."
I've said this before, so apologies to those who have seen it multiple times:
Sony v. Betamax presented the same basic copyright infringement issue. It involved exactly one defendant who, with a guarantee of no financial penalty, admitted to acts in question in several forms. The two sides then battled over whether the activity itself measured up to a violation of the law. It did not.
Filesharing is not mentioned in the copyright law. Neither is uploading or downloading or the determination of which is actually the infringing party. Most copyright infringement without profit potential has been specified as unactionable.
The RIAA has yet to prove the foundation of a legal basis for a file-sharing lawsuit against an individual.
It's not about "seeing every case to completion." Just one.
I think people give the RIAA far too much credit by calling them evil. They're not smart enough to be evil.
In this case, if you read the RIAA's motion to dismiss without prejudice, which is linked from the article, they claim that...
The RIAA claims a lot of things. They always give up just before it's time to go to court and prove it in front of a jury.
defense by stonewalling
You mean the right to remain silent? Or the right to an attorney? If you accuse me of something, the burden of proof is on you. I don't have to say a damn word.
I would think that defense by stonewalling pales in comparison to prosecution by bluffing. The reason the RIAA drops every case is because they have no evidence. They'll claim they've got a whole shitpile of it, but then turn around and whine about how it's unfair to expect them to produce evidence, how it would "cripple" their efforts. Because they haven't got any.
Out of the tens of thousands of cases there are only a handful wherein the defendent makes a claim of innocence. Those are the only ones we hear about. Something like 99 percent just pay the settlement. It's all about refusing to admit that their system is wrong sometimes. If the RIAA accuses a computer illiterate of filesharing and drags it out for three years but are afraid to take the case to a jury and blame her for their incompetence, they never had any evidence in the first place.
The strongest evidence they have had in any case thus far, to my recollection, was that Jammie Thomas replaced her hard drive before they sued her. In essence, their only evidence was the lack of evidence. That's the only one they took to trial so far, their most solid case.
And they still had to cheat to win.
the platinum designation is based upon the number of copies... ...shipped.
Small, but significant difference.
A well-done sparse profile answers the basic question of "Who the hell is this person?"
If you're trying to get laid on MySpace instead of face-to-face contact, well, you're doing it wrong.
You don't need a license to lend books to people. You just need books. Once you buy a book, you can do whatever you want with it.
I have made the following comment before, but it is once again pertinent:
If Thomas Jefferson, James Madison, John Adams and the rest of our founding fathers considered the non-profit sharing of copyrighted material as an activity which broached the intent of the copyright law, surely this would have come up when Ben Franklin opened the first public library.
If one is true, it is enough.
-----
I watched part of it on C-SPAN but, judging from the coverage by the so-called "liberal" media, it doesn't even seem to qualify as news. Didn't happen. Nothing to see here...
Yes, except the person who worked hard and invested their own money to produce the content you want to share.
Like Radiohead? NIN?
What about the person who worked hard and invested their own money to produce content that no one wants to share?
...and a "battle of the bands" did not involve semi-automatic weapons.
Because the big four won't consider cutting back on product release in order to crush the P2P community
Do you have any facts to support this? I was under the impression that releases had been cut to a third of what they were in 2000.
give the P2P developers free access to media product in return for the P2P developers agreeing to limit the distribution of this product to only the people whom they consider to be 'cool'.
Uh, how about finding 'product' made by 'cool' people who won't sue you and not worrying about who takes it?
How come Slashdaughters don't think like this and talk like this whenever this topic comes up for discussion?
Because the cartel demands DRM and/or filtering. DRM is not acceptable; filtering just doesn't work. They're dealbreakers. It's much, much easier to simply find "legal" music and ignore the RIAA.
First, anybody know of any patently identical incidents where this happened?
Irrelevant. You don't have to be a serial killer to get arrested for murder.
a glaring lack of foresight resulting from stupidity is not the same thing as digital terrorism.
How many settlements has the RIAA collected from people whose worst crime was being stupid?
If the end result meets the definition, then it is the same thing. Proving motive is optional. If stupidity were a valid defense, the prisons would be empty.
The RIAA has taken the position that MediaDefender's methods are flawless. Out of all the thousands of cases, we only hear about the handful in which the accused suggests that an error may have been made, which results in a legal juggernaut being brought down upon them that the RIAA will fight "until the end of time."
MediaDefender's software assumes that a) any site with a bittorrent file belongs to pirates and b) they are never, ever wrong. Programming a calculated, automatic response that goes beyond what the law allows seems to more than accurately fit the definition of premeditated.
I understand "our servers did it" very well.
It means "our servers did exactly what we programmed them to do."
The original question was whether or not the artist gets paid. I had no expectations. Just correcting the misconception that paying the ASCAP or BMI fees equates with paying the artist, who will not receive a dime if they recorded a song they did not write, which is a common practice.
The performing artist never gets paid directly for a recorded performance while under contract to a publishing group.
Mostly because publishers never pay the performing artist for anything.
So the answer is that the performing artist does not get paid, just the songwriter.
No one is being sued for uploading, either. They're being sued because you can see the files they have.
-------
The proposal includes clauses designed to criminalize the non-profit facilitation of copyrighted information exchange on the Internet
The founding fathers included provisions for copyright when they put the Constitution together. If they had a problem with the "non-profit facilitation of copyrighted information exchange," they would have addressed it when Benjamin Franklin opened the first public library.
In the real world, this would criminalize the public library, along with every institution of higher learning. Then they start burning books...
Congress was aware of computer-related issues becoming more important when they were writing the 1976 Act and formed a commission (CONTU) to look into it and advise them. And Congress has even amended and written computer-related provisions of copyright law in light of MAI.
They may have discussed the need for copyright protection for software and code, but they certainly weren't talking about sharing music files over the Internet.
Really, if you look into it, you'll see that the issues are fairly cut and dried.
Uploading, downloading, file sharing and the Internet are not mentioned in the text of Title 17 of the U.S. Code. How can these things be cut and dried if they are not even acknowledged?
Napster and Grokster were corporations formed for the purpose of making a profit. Their actions were calculated and intentional. While the "calculated and intentional" part can be said for some file sharers, maybe even most of them, we also know that some people just aren't smart enough to turn sharing off. And none of them are profiting.
Please understand that my perspective is that of someone with my own copyrighted work to share, not a p2p user looking for the latest hit or trying to amass a collection.
For me, downloading is free promotion, not theft. The RIAA's efforts to "protect" their content from being heard have a negative impact on my efforts to allow my content to be heard. Every time they suggest that downloading is illegal, I feel compelled to remind that this is only potentially true for the dwindling number of titles that the RIAA members release.
File-sharing is not inherently illegal. Neither is uploading, downloading or making available. Only some music is unauthorized for sharing, comprising a small percentage of the works being created, with no obvious way to discern the difference.
Things are decidedly not cut and dried.
As such, I think that efforts to oppose the copyright maximalists would be most fruitful in Congress, rather than the courts.
This might be true if it wasn't an election year and the RIAA wasn't already there, handing out political contributions.
Congress and the courts are equally useless in solving the underlying dilemma of promotion vs. protection. I've talked to several artists who are opposed to downloading of their music, but only because it's all or nothing. Most wouldn't be opposed to allowing the sharing of the same songs they are pushing to radio, but there's no method to allow one song to proliferate and protect the rest.
The musicians will figure it out first, just to get all the "illegal" songs out of the promotional channels.
the RAM is a material object in which the work was fixed.
The court may have decided that, but it is factually incorrect, indicating the court's severe lack of understanding of the basic physics of electronic information. Nothing is "fixed" in RAM.
"Fixed" implies permanence. Take a CD out of the player and the music is still on it. It is fixed. You cannot erase it, modify it, replace the data with something else, change the order of the songs, or even delete the contents.
Take the RAM out of a computer and try to retrieve the data. You can't. RAM is volatile. Any data that resides there is temporary and definitely not fixed.
If I write a song and record it in ProTools, the individual tracks are not fixed to my hard drive. I can change them in innumerable ways. If I mix them down into a stereo file, it is still not fixed to a material object. I can still throw it away or edit it.
If I put it in my shared folder, that doesn't suddenly make it fixed. I can move it somewhere else if I want to. If it is not fixed, it is not a "copy" as defined by the US copyright laws. If it's not a copy, it can't be infringing.
The copyright laws were written to address physical piracy. The word "fixed" was used to encompass any physical means of reproducing copyrighted material, whether it be music, books, paintings, photography, film or ship designs. Things you could sell.
After 40,000 cases, the courts are just now realizing that "making available" doesn't fly.
As written, the law would seem to specifically exempt the copying of information that is not fixed -- simply because they could not imagine how you might do that when the law was drafted. They do not address the Internet, file-sharing, uploading or downloading. Nothing on the Internet is fixed. Most of it isn't even spelled properly.
More importantly, Congress has not taken it upon itself to modify the law to include these concepts since this became an issue.
How many more people does the RIAA get to sue on the basis of their hypothesis that file-sharing is a copyright infringement without ever proving the claim has an actual basis in law? Can the Supreme Court address the controversy without a specific case?
Although I liked the earlier analogy someone made likening RIAA music to poison candy, it would be nice if we could replace the semantics with actual laws that say whether file-sharing is copyright infringement and, if so, is it the uploader or downloader making the infringing copy, and all of the other basic questions that we have been debating about for years now, each of which are still open to litigation in every single case.
...according to reliable sources close to the situation who asked not to be identified because they swore a blood oath that they would not, under any circumstances, reveal this information to the press.