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Law Profs File Friend-of-Court Brief Against RIAA
Posted by
Soulskill
on Sat Jun 21, 2008 07:19 AM
from the dissenting-opinions dept.
from the dissenting-opinions dept.
NewYorkCountryLawyer writes "A group of 10 copyright law professors has filed an amicus curiae ('friend of the court') brief on the side of the defendant in Capitol v. Thomas, agreeing with the judge's recent decision that the $222,000 verdict won by the RIAA appears to be tainted by a 'manifest error of law.' The clear and well-written 14-page brief (PDF) argues that the 'making available' jury instruction, which the RIAA had requested and the judge ultimately accepted, was in fact a 'manifest error of law,' making the point, among others, that an interpretation of a statute should begin with the words of the statute. My only criticism of the brief is that it overstates the authorities relied on by the RIAA, citing cases which never decided the 'making available' issue as cases which had decided it in the RIAA's favor."
As it turns out, the MPAA, close ally to the RIAA, has come forth with a more controversial view. They suggest that proof of actual distribution shouldn't be required. From their brief (PDF): "Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."
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[+]
News: Verdict Reached In RIAA Trial 1001 comments
jemtallon writes "The jury in the previously mentioned Captiol v Thomas story has reached a verdict. They have found in favor of the plaintiffs, Capitol, and ordered that she pay a $222,000 fine for 24 cases of copyright infringement."
[+]
News: Judge in Capitol v. Thomas Considers New Trial 234 comments
Jay Maynard writes "The judge in Capitol Records v. Thomas said today he's thinking about granting a new trial because he may have committed a 'manifest error of law' in his jury instructions. He says that his instruction that simply uploading music to a P2P network without any proof that anyone actually downloaded it may conflict with a case in the Eighth Circuit Court of Appeals that said 'infringement of [the distribution right] requires an actual dissemination.' Briefs are due by May 29, with oral argument July 1. The judge invited friend of the court briefs by May 29, as well." NewYorkCountryLawyer links to the Judge's order itself (PDF), in which the Judge notes that he may (in NYCL's words) "have overlooked controlling Eighth Circuit authority, the case of National Car Rental v. Computer Associates, which held that you can't have a violation of the 'distribution right' without an 'actual dissemination of copies or phonorecords.'" Update: 05/15 18:54 GMT by T : Note that while the linked story as well as Jay Maynard's summary use the term "upload," Thomas wasn't uploading the files themselves, only making them available.
[+]
News: RIAA Gets Nervous, Brings In Big Gun 423 comments
NewYorkCountryLawyer writes "I guess the RIAA is getting nervous about the ability of its 'national law firm' (in charge of bringing 'ex parte' motions, securing default judgments, and beating up grandmothers and children) to handle the oral argument scheduled to be heard on Monday, August 4th in Duluth, in Capitol v. Thomas. So, at the eleventh hour, it has brought in one of its 'Big Guns' from Washington, D.C., a lawyer who argues United States Supreme Court cases like MGM v. Grokster to handle the argument. This is the case where a $222,000 verdict was awarded for downloading 24 songs, but the judge ultimately realized that he had been misled by the RIAA in issuing his jury instructions, and indicated he's probably going to order a new trial. But, not to worry. A group of 10 copyright law professors from 10 different law schools and several other amici curiae (friends of the court) have filed briefs now, so it is highly unlikely the judge will allow himself to be misled again, no matter who the RIAA brings in as cannon fodder on Monday."
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Wow. get a load of that. proof not required (Score:5, Insightful)
well, since it has come to this, i am hereby accusing all MPAA, RIAA members of child abuse, child pornography, treason. remember, PROOF IS NOT REQUIRED.
Re:Wow. get a load of that. proof not required (Score:5, Interesting)
Parent
Door swings both ways (Score:3, Insightful)
Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.
On the other hand, failing to mandate that proof could have the pernicious effect of depriving individual citizens of a practical remedy against erroneous copyright infringement charges in many instances.
And "erroneous copyright infringement charges" often come with a permanently-impoverishing price tag.
Re:Wow. get a load of that. proof not required (Score:5, Insightful)
If proof isn't required for this, then WHAT IS proof required for??
Christ on a stick.
Parent
Re:Wow. get a load of that. proof not required (Score:4, Funny)
At one point we needed too much proof so we started printing a lot of it; proof then went down in value due to inflation and is now lower than the US Dollar.
Parent
Re:Wow. get a load of that. proof not required (Score:5, Funny)
In addition, I will testify against them.
Parent
Re:Wow. get a load of that. proof not required (Score:5, Funny)
Parent
Re:Wow. get a load of that. proof not required (Score:4, Funny)
And the mere fact that they chose not to respond to these allegations (of child abuse, child pornography and treason) is proof of their guilt.
I'll get the rope.
Parent
Re:Wow. get a load of that. proof not required (Score:5, Insightful)
Parent
Re: (Score:2, Insightful)
Re:Wow. get a load of that. proof not required (Score:5, Informative)
Perhaps in your country, that's true. In the US, that's incorrect.
Libraries buy books no differently than anyone else, except that since they buy in quantity, they usually work with a distributor or "jobber" rather than deal with a zillion publishers individually. Otherwise, there's no real difference — they pay, they get the books, they use the books. It just so happens that "use the books" involves a moderately-constrained lending program.
It is conceivable that there's a clause in copyright law that grants libraries special rights, though I'm not aware of any such clause.
Instead, libraries tend to work on first sale doctrine, AFAIK. They bought the book, so they can lend it, use it to prop up short table legs, or whatever they feel like doing with it. So long as they don't copy the book, there is no copyright infringement.
Comparing a library to the "making available" case is a bit of a stretch, though it is worth noting that there was a similar round of sturm und drang around libraries making coin-op copiers available to patrons, on the grounds that it facilitated copyright infringement. I forget if that made it all the way to a trial verdict or if the plaintiffs just dropped the whole issue.
Parent
Re:Wow. get a load of that. proof not required (Score:4, Interesting)
This is interesting. I wonder if I can legally "lend" or "give" a copy of an electronic file that I purchased (not licensed) and own to someone else by transmitting it and then deleting my sole copy of it. It could open up some very interesting paradigms in file sharing technology.
Parent
Re:Wow. get a load of that. proof not required (Score:5, Informative)
Some interesting reading, there. For example:
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
Parent
Re: (Score:3, Insightful)
No, they haven't! They've been granted that right by law, over the strenuous objection of copyright holders!
Re:Wow. get a load of that. proof not required (Score:5, Insightful)
What ?
I dare you to walk into any library and say 'please show me the license you have for each book you lend out'. They won't have a single sheet like that. Libraries do not have any kind of certificate either that says
"This is a public library certified to lend books under agreement with the book publishers association of $COUNTRY"
There is nothing like that. Libraries are NOT Licensed to lend out media - because nobody NEEDS a license to lend out MEDIA. Copyright does NOT prohibit lending to another party ! It prohibits copying and DISTRIBUTION OF COPIES.
Lending out an original is not copyright infringement or even MENTIONED in the copyright ACT of ANY country !
But lets get a fairer example then. Almost all libraries have more than books, you can usually also take out DVD's and music CD's - the selection is more limited than a music store but then again they tend to have a BETTER selection of the true artistic greats (even if they are less commercially successful).
These are almost always available for lending, and always easy to copy. If I loan a DVD from the library and copy it has the library 'made it available for piracy' ? I am deliberately NOT comparing with a video store which rents it out commercially because they ARE licensed (or at least SHOULD be) and pay a licensing fee for the right to do so.
Libraries are not and never should be because they are not renting out (which copyright covers) they are LENDING out (which it doesn't).
And even if in your country libraries need to have a license to lend media (does this apply to the small library of childrens books at the local creche ? my home library if a friend wants to borrow one of my discworld books ?) then it would surely not be a license to allow people to copy what they lend - the library has no control over what you do with the media you borrow once you walk out the door, if you copy it, it is your infringement and regardless of any license-to-lend or lack of it, them making it available to you is NOT an infringement.
Sorry I think the library analogy to their 'making available' argument is perfectly valid. In fact, I would have been MORE (but not much) sympathetic if they were trying to claim that making available in a fileshare is unauthorised broadcast (this is not handled identically in all copyright systems - in South Africa for example they had to amend the creative commons licenses to include broadcast because redistribution right doesn't include broadcast here but it does in America) - after all if you play a song on the radio without a license it's still broadcast regardless of whether anybody is listening. I do think though that they are well aware that any judge will decide it ISN'T a form of broadcast which is why they haven't tried it. But to say that making available = distribution even if nobody downloaded is outright ludicrous.
Parent
with apologies to monty python. (Score:3, Funny)
witch hunting
"Quiet, quiet! There are ways of telling if she is a witch. Tell me. What do you do with witches?"
"Burn them!"
"And what else do you burn?"
"More witches! Um... Wood!"
"Does wood sink in water?"
"No! No! It floats!"
"And what else floats in water?"
"A duck!"
"So, logically..."
"If she weighs the same as a duck, then she must be made of wood! And therefore... a witch! Burn her!"
all the "proof" you need.
Re:with apologies to monty python. (Score:4, Funny)
IIRC, the woman in that quote actually was a witch, and also actually did weight the same as a duck, so I'm not sure what, exactly, you're trying to make fun of.
Parent
Re: (Score:2)
Seeing as they MPAA is advocating the removal - for them only - of the guarantees outlined in the law in general, and the Constitution in particular, a charge of treason, or at least sedition, might actually fly.
You could have their trial at the same time as Bush and Cheney's.
Re: (Score:2)
You know, this is one of the few occasions when "mob rule" suddenly doesn't seem so terrible. I mean, it's not much worse than the mockery of "due process" we see every day.
At least under mob rule, such crooks would quickly be hanged. We can return to due process afterwards...
Re: (Score:2)
Hanging them would probably meet "acceptable community standards".
Re: (Score:2)
Only if it's by the goolies :P
Re: (Score:3, Informative)
It is a bit of a slippery slope, sure. Some people don't actually realize they're sharing files. Some do. They're going to have to prove something at some point, whether it be "intent" or actual infringem
Re: (Score:3, Insightful)
If some one is lurking around the mall, is that 'intent' of robbery?
No, I think proof is needed of each single instance.
And, I have yet to be convinced that 'sharing' is wrong, in my mind, it would only be real copyright infringement if the works were actually sold to some one.
That is what copyright law was originally meant to protect, SALE of some ones work without authorization, not letting some one read, see, listen to it.
Re: (Score:2)
Better we take a page from King Phillip and just go ahead and accuse them of blasphemy, secret meetings, desecrations of our holy book, buggery, and worshiping satan and other false gods. Let the tortured confessions begin.
It might end with pitchforks and torches at the castle door in the middle of the night...
It's probably good that the **AA don't operate in a country where such high drama happens. Instead they have to deal with 'all your mp3 are belong to us' and getting rick rolled 47,062 times a day whi
Re: (Score:3, Interesting)
What all the **AAs are doing is a simple application of the "Golden Rule": He who has the gold makes the rules.
Just remember what happened during the French Revolution [wikipedia.org].
Re:Wow. get a load of that. proof not required (Score:5, Interesting)
The Wired article and Slashdot summary got so much spin, it needs a little counterspin.
Can you be convicted of murder without a body? Yes, you can [wikipedia.org]. But wait, how do you do that without proof they died an unnatural death or even died at all? Circumstancial evidence - it's been enough to prove "beyond a reasonable doubt" so certainly it could be enough in a civil case.
What the RIAA is saying is that they have enough circumstancial evidence. That sharing a file on a public file-sharing network that exists for the very purpose of distributing files, where it's available to anyone that requests means that the network will perform its expected purpose - which for a copyrighted file is to perform unauthorized distribution. That this in itself is a "preponderance of evidence" that copyright infringement did occur, even without the body and smoking gun.
I think the RIAA could gather fairly strong evidence on this easily - set themselves up as a fake sharer of the same file and record how many people tried to downloaded from them. I think that would be very strong circumstancial evidence that copyright infringement does occur for others sharing the file. The standard of proof is after all quite low.
What I fear is that if this passes through, laws will change because it essentially makes P2P users immune and you know the powers to be won't stand for it. The only way to get direct evidence of infringement between third parties would be wiretap warrants. Wiretaps for "suspected copyright infringement"? That'll be rubberstamp heaven and the police wouldn't handle the volume - enter the copyright cops. I think there's more to lose by winning the battle than not.
Parent
Re:Wow. get a load of that. proof not required (Score:4, Insightful)
Can you be convicted of murder without a body? Yes, you can.
Its also fairly unusual, and much harder to prove. Prosecutors REALLY like having a body. Or enough of one to be convincing that the 'victim' is actually deceased.
But wait, how do you do that without proof they died an unnatural death or even died at all? Circumstancial evidence - it's been enough to prove "beyond a reasonable doubt" so certainly it could be enough in a civil case.
Right, but its got to be AWFULLY convincing.
What the RIAA is saying is that they have enough circumstancial evidence. That sharing a file on a public file-sharing network that exists for the very purpose of distributing files, where it's available to anyone that requests means that the network will perform its expected purpose - which for a copyrighted file is to perform unauthorized distribution.
Most people actually use p2p to download files, not distribute them. For your average citizen p2p's 'expected purpose' is to get them a free copy of a britney spears song, not commit unauthorized distribution of a file on a massive scale exposing them to massive damages.
That said I agree with you to a point, but simultaneously think convicting them of 'n-counts of copyright infringment' multiplied by 'statutory damages designed to dissuade organized for profit criminal enterprise' is like penalizing the guy with bag of weed at a party the same as a guy caught with an airplane full of cocaine, half a million in cash, 4 body guards, and weapons cache.
People using p2p to infringe deserve to get busted, they don't deserve fines in the 100s of thousands. They deserve fines, in most cases, for casual p2p use of a few dozens of songs hosted from their home PC of around $500 or less.
Inidivual/personal use copyright infringement via p2p is a misdemeanor on par with a routine traffic violation, watering your grass on the wrong day, or parking in a handicaped spot, and in my opinion is less serious than when someone does a B&E to steal a TV.
Parent
Obligatory Liar Liar (Score:3, Funny)
Fletcher: "Your honor, I object!"
Judge Stevens: "Why?"
Fletcher: "Because it's devastating to my case!"
Judge Stevens: "Over-ruled."
Fletcher: "Good call!"
Re:Wow. get a load of that. proof not required (Score:5, Insightful)
Next, the police will be picking people off the streets for prostitution. A girl is walking from church to her grandmothers house, minding her own business. The police arrest her and charge her with "making available" on a prostitution charge. I can see it in court;
"well, your honor, she was wearing a sun-dress and makeup, and you know what sort of girls those are." the judge, "ah, I see your point, we don't have to prove that she was giving BJ's in the back of a car, just that she was "making it available. GUILTY ON ALL CHARGES!"
Why can't a radio station be charged with "making available? Hell, anyone can pull out a tape recorder. OMG, I hummed a song earlier today! What if someone heard me and downloaded music because of it. Can they charge me??
This is spinning wildly out of control. The record companies must have a 20:1 ratio of lawyers to artists. Maybe they need just open a class action lawsuit against every American since we are all engaged in a conspiracy against them.
RIAA, be careful what you ask for. Maybe someday there will be a revolution and the RIAA lawyers will be lined up against the wall.
"And that one in the spotlight, he don't look right to me. Get him up against the wall. -- 'Gainst the wall!"
Parent
Boycott CD's and DVD's (Score:5, Interesting)
Re:Boycott CD's and DVD's (Score:5, Insightful)
Unfortunately, the only message I think they'll get from that is "Oh noes! More people are pirating our shit!"
Parent
Re: (Score:2, Insightful)
What really needs to happen is the artists move away from the record industry and movie industry, and start distributing it on their own.
Yeah, it'll be tough for the artist(s) to compete with huge companies, but if the artist is actually good, (assuming consumers are willing to donate money in exchange for good music / movies directly to the artist) that shouldn't be too much of a problem.Furthermore, if the companies have nothing to sell, then there's nothing to pirate!
Re: (Score:2)
Re:Boycott CD's and DVD's (Score:4, Funny)
So what you want to say is that the more insane copyright laws get, the more people download content illegally?
Hey, I have a really weird idea how to solve that problem and make both sides happy!
Parent
Really? (Score:5, Insightful)
"Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."
If they can't prove the distribution, then how do they know the copyright infringement is happening?
Re:Really? (Score:5, Funny)
If they can't prove the distribution, then how do they know the copyright infringement is happening?
Parent
Re:Really? (Score:5, Informative)
Their argument is that just making a copyrighted work available on a peer-to-peer network is infringement by itself. They argue that they shouldn't have to prove actual distribution, that is, that someone downloaded it. To see what files someone has made available is simple, by the very nature of peer-to-peer networks. Proving that someone has downloaded a particular file from a particular user is much more difficult.
Parent
Re:Really? (Score:5, Insightful)
Sure. Showing that someone "is up to no good" has always
been more difficult than proving they actually did something
wrong. This has been a problem for accusors since the dawn
of time. The fact that justice can be difficult is no good
excuse to take shortcuts with the process.
Parent
Re: (Score:3, Interesting)
Re: (Score:2)
They say so. DUH!
What? It worked for getting laws, now it shouldn't work for getting legal titles? Is the bribe not high enough or what's your problem, judge?
RIAA has it so tough, and never gets what it wants (Score:5, Funny)
Oh, certainly! If RIAA accuses someone of breaking a law, it is certainly a terrible burden on them to have to prove that, following the actual wording of the law Congress chose, an offense actually happened. Who among us hasn't had the same problem, from time to time?
If I went to Alice's bank, and demanded that they give me all of her money, because Alice died and left it to me, it would be a great hardship for me to have to show that Alice actually died, and actually willed the money as I claimed. Why, with the onerous burden of proof in my lap, I might not be able to collect anything! Just because there's an outside chance that she's still alive and doesn't know me from Adam doesn't mean that the bank shouldn't take my word for it.
I can say, absolutely honestly, that I have more sympathy with RIAA on this issue, than I have ever had with them on any other. Just don't ask me to prove it.
Please do not fund the copyright lobby (Score:5, Insightful)
As independent authors, musicians and Free software developers and movie makers prove again and again, creating wonderful works of art and creativity does not require copyrights for a monetary incentive.
Movies, perhaps, require more financial support, but note: without copyrights, each of us would be exposed to many more movies which will all be far more accessible (non-copyrighted material can be distributed much more easily). So even if less movies are made, we will still enjoy more of them.
When you buy a piece of software, music or pay to see a movie, your money is not supporting the artists, or even supporting further creation. What you are supporting is a lobby that furthers laws to benefit companies to the great detriment of society. You are funding the enemies of society.
Please do not pay the copyright lobby to pass more anti-society laws.
Thanks.
So you are saying that less life is better? (Score:3, Insightful)
Personally, I believe that saved lives are better than lost lives, and that the lives of non-violent "innocent" citizens are more valuable to society than the lives of violent criminals.
If yo
Well... (Score:3, Funny)
I don't know whether to be worried or relieved. It worries me that a judge somewhere is going to buy into that, at which point we can all kiss "innocent until proven guilty" goodbye. On the other hand this could turn out very well indeed if they get laughed out of court and be made to play by the same rules as everyone else.
This is turning ever more insane... (Score:5, Insightful)
One thing worth remembering of course is that the RIAA is not alone, it has little clones all over the world that follow in the footsteps of it's master (not least because they want to be able to buy resell rights for RIAA member companies' products). Here in South Africa for example we have ASAMI - which as gone so far as to say in public that 'recording a TV-show on your VCR is technically copyright infringement but we don't intend to prosecute that one simply because it would be impractical in cost compared to the damage done".
Actually, South Africa has a subset of copyright law known as Fair Dealing which is pretty much identical in wording to the US Fair Use law and recoridng a TV show to VCR is entirely legal. So is showing a DVD of a documentary to a class of schoolchildren.
Of course they have happily confused plagiarism with copyright whenever it suited them and love to call it 'theft' - despite the fact that copyright infringement isn't theft - it's a civil infringement not a criminal one - and stories of large scale seizures of 'pirate DVD manufacturing warehouses' are common on the news.
So the impact that these kinds of idiocies in the US legal system has is global because the RIAA's minions will attempt to subvert any laws in any countries to suit.
Let's just see what we have in this post (a fairly representative sample I think):
-Merely making it available is the same actually giving somebody a copy... by that thinking if I forget to lock my door and somebody steals my fridge... I'm as guilty of theft as he is ? I would go so far as saying that sharing music isn't copyright infringement at all, downloading it may well be, but making it available (Especially as it frequently happens without the person's knowledge) is not. It could even be argued that there is significant legal uses for sharing music - for example to save a friend who also owns the same album the massive effort involved in a format shift you already made. If others now download the music from you as WELL - without your intent... are you still guilty ? This is a side-effect of the technology and has nothing to do with what you did - sharing with somebody who had the RIGHT to get a copy of the music (he already PAID for it). There is no such thing as 'attempted' infringements in civil cases, especially not copyright.
-Oh we shouldn't need to actually PROOF our claims. Not only is it enough to say you 'made it available', heck they think they don't even need to back that up !
-When they THEMSELVES download the music which this entire thing is about them claiming to own in order to proof it's available from you... that download BY THEM can be counted for damages ? How the hell are they damaged if they download their OWN music ? Before I pointed out one example of a P2P usage to share with a valid, authorized downloader - who could be MORE valid and authorized than the copyright owner ? They could try to make a case against a CD-owner having the right to DOWNLOAD rather than RIP digital copies -- but surely not that the OWNER of the copyright isn't an authorized downloader ! What is worse, if they are damaging their own copyright by downloading it... wouldn't that make this a case of evidence obtained illegally (through the breach of the very law in fact they are trying to proof you breached ?). It's not just legally unsound, it's logically unsound (to put it politely).
And that's not even thinking of things like copy protection mechanisms which are outright attempts to make it impossible to excercise our fair user rights. It seems clear to me they only care about that side of copyright law they can abuse to make money. They cannot get rid of fair use law outright, so they try to technologically strong-arm it away from us.
Frankly, I believe that a judge should say that no person or corporation can claim protection under a law they repeatedly and continuously fail to respect. If you do not respect fair use (which implies no effort made to prevent people from making backup copies), how can you claim protection under the rest of the copyright act ?
How much longer are we going to put up with this ?
It is better for 10 guilty men to go free.... (Score:2, Insightful)
Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.
There is a saying in law, "Better that ten guilty persons escape than that one innocent suffer." http://www.law.ucla.edu/volokh/guilty.htm [ucla.edu] I agree with this on some level but also have some reservations-- you can make valid arguments for the n value higher or lower.
The RIAA wants to restate this as "Better to make all eleven persons pay than to let one innocent man off the hook."
And in other news... (Score:3, Funny)
Five congenital liars, a serial killer, six child molesters, several sewer rats and a starving weasel applied to the same court for status as "Friends of the RIAA".
Proof (Score:2)
Proof of actually committing the crime shouldn't be an obstacle of someone getting convicted of committing the crime.
Hmmm sounds fishy to me... ;-)
This whole thing also shows; (Score:2)
This whole thing also shows that they are in a fairly visible prospectus to challenge and over turn any and all laws related to "fair use".
If they get their way; you will only have radio and TV. Items such as VCR's, PVR's, tape decks, and anything that can record will be prohibited by law. You won't even be able to own one of these devices for personal use. This is the goal of eliminating these rights of the public to own recording equipment. They will control what you see and hear.
Damned commies.
My favorite example ... (Score:5, Insightful)
Someone once pointed out that under the "making available" theory, most men with a wife or girlfriend could easily be charged with involvement in prostitution. After all, if a man leaves his woman home alone or lets her go out in public by herself, she could very easily make herself sexually available to any passing man.
This isn't entirely hypothetical, of course; there are some parts of the world where men do take this attitude.
Somehow, I think I'd rather not have such legal theories adopted where I live. I think my wife would agree.
I've also noticed that we often have tools like knives lying on our kitchen counters. Those knives have often been out, and even used, when we have visitors. Kitchen knives could be used to kill people. So are we "making available" dangerous weapons when we give visitors such easy access to our kitchen knives? (Sometimes we've even put steak knives on the table, knowingly and with the intention that they be used. ;-)