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Judge Rules Offering != Distributing

Posted by Zonk on Fri Jun 03, 2005 05:10 PM
from the not-the-same-thing dept.
Government The Courts Patents News
starrsoft writes "From the EFF's website: 'Judge Marilyn Patel issued a ruling (PDF) Wednesday that settles an important question in the ongoing Napster case -- whether under the law, simply offering copyrighted material to others means you're distributing it. Copyright holders have to prove that someone actually downloaded the file from you before you can be found liable for distributing. The simple act of offering isn't enough. It clarifies the law, providing a safeguard against the over-reach that the ART Act threatened.' Ernie Miller and Techdirt have more on this decision."
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  • Ruling is Important (Score:4, Interesting)

    by starrsoft (745524) * on Friday June 03 2005, @05:11PM (#12718472) Homepage

    I think this is a very important development for P2P file sharing. It will make the threshhold of proof much higher for sharers to be sued. The one thing that it won't help is the MPAA & individual studios sending an infringement notice letter to the sharer's ISP and spineless ISPs suspending people's accounts.

    • Re:Ruling is Important (Score:3, Interesting)

      by Anonymous Coward
      The largest impact isn't on the sharers, but it's on the bittorrent tracker sites. The threshold of proof is raised not only for those offering files, such as in Kazaa, but most importantly, it's raised for sites that index torrents as well - at least that's how I read it.
      • I'd guess not. They probably signed a contract stating that "I will not sue, this contract is final and binding, etc etc." That and it could potentially fit in ex post facto rulings. Basically ex post facto is when somebody is commited of a crime, but the action they took was before the law was in effect. It has been decided that laws can not be tried ex post facto, due to the high potential for abuse and persecution of certain parties that they provide.

        Except I'm not quite sure if ex post facto actu
  • What is keeping *them* from just downloading a copy? If not them, they someone they hire or pay off. It is certainly a step in the right direction I think, and it might actually help Napster in this case, but in the long run I am not so sure how much of an effect it will have. At least it will mean that they probably don't have the correct evidence to sue a lot of people they wanted to, but all the new cases in the future won't have that problem I bet. Does anyone else see why this would mean more then just some old cases not having enough evidence?
    • It just means they didn't collect the right evidence in the napster case.

      They won't make the same mistake again, so really this means not that much in terms of pirating on bittorrent for example.

    • New plan: (Score:2, Funny)

      by Anonymous Coward
      1. Get some kind of copyrighted material NOT owned by the RIAA, say a novel written by a friend of yours.
      2. Make 3000 copies of it, each one containing the material repeated until it reaches 3.2 or so megabytes, and name them all things like "Avril Lavinge - Happy Ending.mp3".
      3. Put them up on kazaa.
      4. Wait to be sued by the RIAA.
      5. When sued, produce logs and demonstrate that the RIAA has -- in fact -- downloaded quite a lot of copies of your friend's novel.
      6. Get your friend to sue the RIAA for illegally

      • Re:New plan: (Score:4, Informative)

        by starrsoft (745524) * on Friday June 03 2005, @05:37PM (#12718691) Homepage
        " 1. Get some kind of copyrighted material NOT owned by the RIAA, say a novel written by a friend of yours. 2. Make 3000 copies of it, each one containing the material repeated until it reaches 3.2 or so megabytes, and name them all things like "Avril Lavinge - Happy Ending.mp3". 3. Put them up on kazaa. 4. Wait to be sued by the RIAA. 5. When sued, produce logs and demonstrate that the RIAA has -- in fact -- downloaded quite a lot of copies of your friend's novel. 6. Get your friend to sue the RIAA for illegally downloading his novel."
        One problem: Don't you think the RIAA might check the contents of the file before they sue?
    • Not only should they have to prove that you distributed it, but they should also have to prove that you distributed it to someone who doesn't have the legal right to have it. This would further force them to go after the people downloading illegal material instead of the people who have it on their computer. If I downloaded SUPER MARIO, but I already own a copy (or 8) of it, then nobody committed a crime, right?
        • Wrong! You cannot download another copy from someone else even if you own the original. Doing so is ethical but illegal

          Right, but wrong reason (and side) - you can download a copy from someone else if you own the article in question: if I have a CD of a song, I am legally entitled to format-shift it to MP3. Whether that happens on my computer or on another computer doesn't matter. I can obtain my format-shifted version any way I want.
          However, the person who I got it from didn't have distribution rights, and is acting illegally by sharing it. So, while the process is still illegal, it's not the downloader who is in the wrong, it's the uploader.

          -T

        • I guess the next question would be: "What percentage constitutes fair use?"

          • Fair use is complicated. (Score:4, Informative)

            by Grendel Drago (41496) on Friday June 03 2005, @06:33PM (#12719157) Homepage
            Fair use [wikipedia.org] is complicated, and works on a case-by-case basis. But, hey, you're a private citizen (of the US, I assume, since you asked about fair use), and if a large multinational decides to sue you, you're pretty much fucked even if you have a case you'd be likely to win.

            But in theory, fair use is based on four factors, which the law lists as:
            1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
            2. the nature of the copyrighted work;
            3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
            4. the effect of the use upon the potential market for or value of the copyrighted work.

            If you take screenshots of a movie to illustrate a movie review you write, that's probably fair use. If you take screenshots of a movie and use them to illustrate a children's book you've just written, you'd be quite liable. (Well, your publisher would slap you first, but if you self-published, you'd be liable.)

            So the answer to your question is "a bathtub filled with brightly colored machine tools".

            --grendel drago

            • Re:What does it really mean? (Score:5, Informative)

              by cpt kangarooski (3773) on Friday June 03 2005, @06:10PM (#12718981) Homepage
              Rather more importantly, is a portion of a movie FILE copyrighted?

              As a rule, yes.

              Usually, you need the entire file in order to have it be readable.

              So?

              Hmm... are .rar's downloaded from multiple people immune to the law?

              No. I would also encourage you to bear in mind this rule of thumb: not only is it usually impossible to escape the law by being clever, but those who work in the law are clever too, and won't be deterred by the likes of you.
              • You're not.

                But not because of your mental state; because a prima facie infringement suit requires a copyrighted work, and an unauthorized act of infringement.

                The elements of an infringement action are:
                1) A copyrighted work
                2) Where the plaintiff has the relevant copyright (or can bring the suit, at least)
                3) And where the defendant did something that was unauthorized by the relevant rightsholder, and which is infringing.

                If the plaintiff can show all of these, he wins, unless the defendant can put up a succ

      • Re:What does it really mean? (Score:4, Informative)

        by amliebsch (724858) on Friday June 03 2005, @07:01PM (#12719376) Journal
        irst off- as a body acting on behalf of the copyright holders, they have a right to download it. So them downloading it is non-infringing.

        Wrong, because you are still infringing THEIR rights to distribution. Whether they are legally entitled to possess the file is totally irrelevant.

        Secondly, it opens up arguments of entrapment.

        Wrong again, only the government can engage in entrapment. There is no private entrapment. "Only a government official or agent can entrap a defendant." United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987).

        Thirdly, it means say goodbye to mass mailing of lawsuits, they have to dl every file from everyone they want to sue them over.

        Well, one out of three isn't bad.

          • Re:What does it really mean? (Score:4, Informative)

            by amliebsch (724858) on Friday June 03 2005, @07:29PM (#12719549) Journal
            Copyright is not about distribution, its about making copies.

            Let's go to the source. 17 U.S.C. 106. Exclusive rights in copyrighted works [copyright.gov]

            Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

            (1) to reproduce the copyrighted work in copies or phonorecords;

            (2) to prepare derivative works based upon the copyrighted work;

            (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

            ...

            • (3) to distribute copies or phonorecords of the copyrighted work to the public...

              Certainly gives plenty of room to argue that it is not distribution if the only documented download was to an agent of the copyright holder.
                • Heh. I guess you haven't seen some of my posts in favor of reforming copyright law, then.

                  Still, it's key to know what the law is. Both so that you don't run afoul of it, and so that you know how bad it is, and how important it is that we fix it.
  • Don't they bust people for "offering" drugs, even when they don't have any real drugs. Usually they have some fake drugs (basil, powdered sugar, whatever).

  • They can download it themselves (Score:3, Interesting)

    by KiloByte (825081) on Friday June 03 2005, @05:13PM (#12718481)
    Unfortunately, all it takes for ??AA is having an employee or an "unrelated" person to download the file to produce the proof.
  • Napster has been dead for a few years now; I can't believe there are still lawsuits going on. Give it up, RIAA.
    • This case is not against Napster. It is against those who invested in Napster at that time. Yes, some of these investors are still alive.

      I think RIAA is trying to sue them for some kind of secondary or tertiary contributory copyright infringement.

  • Common sense? (Score:5, Insightful)

    by Sv-Manowar (772313) on Friday June 03 2005, @05:14PM (#12718492) Homepage Journal
    This seems to me like a victory for common sense. Using the fact that someone offers you files named, checksummed or otherwise identified as a specific song/resource is and should be no proof that those files are either being transferred or distributed. There were cases of this kind of stupidity with the RIAA sending out threats to people with files named with artist's and track names, without even verifying the contents, and this is clearly overstepping the mark. Until they can prove and verify that what you're offering is the valid song, and that you have actually distributed copies of it, it would seem highly bizarre that they could claim you were performing those acts.

    • Depends. (Score:3, Interesting)

      by jd (1658)
      "Offering" is a very broad term, which can cover a multitude of sins. A hyperlink on a web page is "offering" the contents of the page it links to, but whether you have access to that page is not a function of that offer and not under the control of the offering page.

      Likewise, it is arguable that a "securable" service that publicly offered a file, but where that file is not itself public but requires some sort of key or validation (which is how a lot of software is distributed by companies online, these d

    • " This seems to me like a victory for common sense."

      No, common sense says that if you are sharing a popular song on a popular p2p network, people are downloading it, and you are guilty. The law isn't based on common sense, however, but on the idea that you are innocent until proven guilty, so therefore, the RIAA needs to prove someone actually downloaded a copyrighted song you are sharing.

  • Ok, this is interesting.... (Score:3, Interesting)

    by shatfield (199969) * on Friday June 03 2005, @05:14PM (#12718493)
    So now the RIAA will have to not only subpoena the names of the people sharing files, but the actual logs of the ISPs to be able to prove that someone actually downloaded the file.

    How likely are the RIAA to get these logs? Do the ISPs by law have to keep these logs?
    • ISPs can't afford to keep packet logs of their subscribers's traffic.

    • Re:Ok, this is interesting.... (Score:5, Insightful)

      by kindbud (90044) on Friday June 03 2005, @05:34PM (#12718656) Homepage
      How likely are the RIAA to get these logs? Do the ISPs by law have to keep these logs?

      They will when the RIAA-sponsored Internet Copyright Infringment Evidence Preservation Act is passed. Their standard M.O. after getting spanked in court is to go buy a law that has the effect of overturning the unfavorable ruling.
    • If they were somehow compelled to keep such logs, what would happen is that all traffic would be passed through an SSL tunnel.

      An ISP would have logs to show that something was transmitted between you and the server in question, but they wouldn't know what.

      LK
  • This is totally awesome! It's going to put a major wrench in the RIAA/MPAA's tactics.

    Too bad all those people who payed settlements rolled over for them... it looks like they had a chance to fight back with rulings like these.

  • humm. (Score:5, Insightful)

    by LWATCDR (28044) on Friday June 03 2005, @05:16PM (#12718506) Homepage Journal
    So what does this mean for Bit torrent trackers?
    They offer just a hash not the actual file.

      • Re:humm. (Score:4, Interesting)

        by ScrewMaster (602015) on Friday June 03 2005, @05:47PM (#12718777)
        Well, Napster got nailed not on direct infringement (because Napster wasn't directly transferring materials) but on "facilitation", instead. Presumably that attack would still work just as well on a tracker site.

  • Imagine how bittorrent is affected (Score:3, Interesting)

    by Free_Trial_Thinking (818686) on Friday June 03 2005, @05:16PM (#12718515)
    So participating in a bittorrent may not be proof of wrong doing anymore. Would Fox now have to prove that someone actually came away from the swarm with a full Simpsons episode and that all of the bits came from me?

    Discuss, discuss
  • For those who have read a dictionary.
    It may be a conspiracy to commit a crime , but it is not actualy commiting the crime , its commen sense .
    Its a cival case anyway , so i dont think you can be convicted of conspiring to break civil law.
    very silly legal battles ,
  • As usual, people who simply want the "right to steal" will look at this as a win, instead of looking at the bigger picture.

    If someone, say, gets ahold of medical information (or my credit card number, or my SSN number, or pick your private info) and offers it up on their server, I don't care if anyone has downloaded it or not -- I want the information off there and off now. It should make no difference at all whether anyone actually got it. If someone is making information available, that should be enough to nail their ass.

    Of course, I once had a Libertarian try and convince me that it should be legal to fire guns at people, until you actually hit someone, so I'm sure there are people who think that anything should go.

    • Is your credit card number copyrighted? How about your SSN number? No? Then you have nothing to worry about. This ruling covers copyrighted material, not confidential information. That's a whole other ballgame. I think your private info is still safe (although with all the security leaks lately regarding personal account info, I'd question how safe it actually is).
    • There are other laws protecting your credit card number, SSN, etc. Sure, distributing them with illegal intent is often a crime, but usually owning your personal, private information without a need for it is usually illegal.

      Your analogy sucks anyways. We should have much tougher laws regarding personal information and privacy than we do have on publically available (but copyrighted) works. Some of the new privacy laws are getting there, but I don't think we're at that point yet.
  • What happened to the proposed legislation making the offering of even a single file a felony, even if it was never downloaded? It seems like that bill was specifically designed to counteract this kind of ruling...

  • Wait For the Appeal (Score:3, Insightful)

    by reallocate (142797) on Friday June 03 2005, @05:26PM (#12718598)
    So, let me see. If you offer to share something but no one takes it, it isn't considered distribution.

    In other words, if you post copyrighted material on the net but no one downloads anything, you're fine.

    A flaky decision. Wait for the appeal.
  • Does this mean that the actions that the MPAA took against sites like LokiTorrent, EliteTorrents, and TorrentSpy, are now invalid? After all, the sites only offered lists of material avaiable; any downloading of copyrighted content was done by individual users, not the websites.
    • The Bittorrent sites weren'y shut down by the government. They were shut down by the lawyers threatening to sue the pants off of the owners. What they did was to threaten a lawsuit and the site owners voluntarily closed up shop. Perfectly legal.

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