Law Profs File Friend-of-Court Brief Against RIAA 186
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."
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, Insightful)
If proof isn't required for this, then WHAT IS proof required for??
Christ on a stick.
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:Wow. get a load of that. proof not required (Score:1, Insightful)
Where does this stupid meme come from? The Gitmo inmates aren't accused of treason. They're not even Americans, for crying out loud!
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!"
Re:Wow. get a load of that. proof not required (Score:5, Insightful)
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.
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 ?
Re:Boycott CD's and DVD's (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!
It is better for 10 guilty men to go free.... (Score:2, Insightful)
The RIAA wants to restate this as "Better to make all eleven persons pay than to let one innocent man off the hook."
Re:Wow. get a load of that. proof not required (Score:2, Insightful)
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.
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.
Re:Wow. get a load of that. proof not required (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.
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. ;-)
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!"
Re:Wow. get a load of that. proof not required (Score:2, Insightful)
The standard of proof isn't all that low: they have to prove not only that someone knowingly made the file available with intent to distribute, but that the file contained copyrighted material, and the file was actually transferred to another party. (Current copyright law allows me to make [contrary to most EULAs] umpty-zillion backups of something, but does not allow me to convey that something to someone else unless I get rid of all my copies in the process.)
Suppose I make available a file called, say, "Windows Vista Ultimate.iso", but it happens to contain a couple of gigabytes of trash. (Yes, I know, the real one already does.) The RIAA wants it so that I am already breaking some sort of law, even if 1) what I am conveying contains absolutely no protected content (at least until somebody files a patent claim on /dev/random), and 2) nobody downloads my bogus Vista ISO in the first place.
Many other courts have already stomped the "making available" argument into the mud and paved it over, and the RIAA itself has abandoned many lawsuits based on that premise for fear of further stompage.
How is this different? (Score:1, Insightful)
Re:Wow. get a load of that. proof not required (Score:3, Insightful)
No, they haven't! They've been granted that right by law, over the strenuous objection of copyright holders!
But that throws things the other way (Score:1, Insightful)
The MPAA's suggestion that 'proof of distribution is not required' is hogwash. They can go up to anyone at random (and likely someone with big deep pockets) and say "you stole" (they never say infringed). The deep pocketed person says "show proof" and the MPAA says "we don't need any!" This violates the law in a very real way. They better have proof, and not just circumstantial. For years the RIAA/MPAA have been very much overstepping their boundries (damaging other much larger industries in the process). The right to copy "Copyright" has been tainted and twisted around. It used to be 14 years. Now its 70 years past the death of the author. Nothing in North America has entered the public domain in the last 80 years. This is ridiculous! The right to copy "Copyright" has been so badly eroded, than now most people think it means rights of creators alone. There is no longer a right to copy. The common collective advances in ideas, literature, music, architecture, film, design, engineering, and most other creative works have remained stagnant in western society for 70 years. If you were a drug company, would you come up with a new effective drug, or would you do nothing? ALL businesses would do nothing. Microsoft did NOTHING with Internet Exploder for 10 years. No innovation. They re-assembled their Exploder team AFTER a new and much better version of Firefox came out. Then they were playing catch-up (and still are). There is no right to copy any more, and the MPAA wants to negate the need for proof in the courts. Its corporate welfare. Its disgusting!
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.
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.
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 you disagree with those ideas, by all means keep arguing the way you are. But if you do agree with the above assertion, then you should be IN FAVOR of private gun ownership, because ALL the available evidence -- even the figures kept by the Department of Justice itself -- say that gun ownership, and even handgun ownership, prevents more loss of life than it causes, by a very wide margin.
So don't come to me again on your high horse and talk about who values life more. Not until you learn some actual facts, anyway. Until you do, I have nothing more to say to you.