Forgot your password?
typodupeerror
The Courts Government The Almighty Buck The Internet News

RIAA's $222k Verdict Is Likely To Be Set Aside 224

Posted by ScuttleMonkey
from the one-step-forward-two-steps-back dept.
NewYorkCountryLawyer writes "Apparently the RIAA's 'big gun' didn't fare so well this morning in Duluth, when he tried to persuade the judge in Capitol v. Thomas that the part of the Copyright Act which says 'by sale or other transfer of ownership, or by rental, lease, or lending', can be disregarded. According to an in-person account by Wired.com the Judge indicated that he is likely to grant a mistrial, setting aside the $222,000 jury verdict based upon his incorrect jury instruction, and that he will probably hand down his decision in September. Just yesterday some of the same lawyers got rebuffed by the US Court of Appeals for the Second Circuit in their attempt to argue that Cablevision's online storage for its customers constitutes a copyright infringement, in Cartoon Network v. CSC Holdings. There, too, the content owners had argued that the wording of the Copyright Act did not mean what it said. There, too, the Court politely but firmly disagreed."
This discussion has been archived. No new comments can be posted.

RIAA's $222k Verdict Is Likely To Be Set Aside

Comments Filter:
  • The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

    Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

    I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

    Not defending the RIAA, but just pointing out something that seems illogical to me.

    • by jrl87 (669651) on Monday August 04, 2008 @06:07PM (#24473581)

      As I understand it, it is because the undercover cops are legally sanctioned to conduct investigations (provided the follow all the proper laws/regulations). However, that doesn't mean I can buy drugs and then give said drugs to the court as evidence that whomever I bought them from is a dealer. There is most certainly a probability of some sort of conflict of interest. Perhaps I am a drug dealer, and simply don't like my neighbor.

      In any case, the RIAA is not using (or so it seems on /.) legitimate means to go undercover (ie unlicensed investigators). They are in some effect being a vigilante (or trying to anyway).

    • by the eric conspiracy (20178) on Monday August 04, 2008 @06:08PM (#24473587)

      The reason this may stand up is that in the drug case it is SELLING the drugs that is illegal. In copyright law it is making the copies that is illegal. So -

      in the drug bust the cops observe the dealer selling drugs; i.e. the illegal act.

      in the copyright case making available is not the illegal act. The party making the copies (i.e. downloading) is the only one committing the illegal act.

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        So, genius, explain to me how you upload something without making a copy. I mean, are you seriously telling me that you were able to post a copy without first copying the post into the HTTP request, followed by Slashdot copying the post into its database?

        My understanding is that downloading has been ruled legal in a few countries (notably NOT the US) because the first copy was made on the uploading side.

        So sending a file would be illegal, as the first copy of the file created exists on the uploader's side.

        U

        • by Pseudonym (62607) on Monday August 04, 2008 @08:11PM (#24474755)

          So, genius, explain to me how you upload something without making a copy.

          I don't know why you got modded down as a troll. You ask a very important question which, fortunately in this case, has a very simple answer:

          Jammie Thomas isn't accused of uploading, she is accused of "making available". If you have a file that you have the legal rights to, and you happen to put it on your hard drive in a place where your file sharing software (which you only use for legal purposes) can find it (presumably by accident), then you're "making available" even if no upload happened.

        • by plantman-the-womb-st (776722) on Tuesday August 05, 2008 @08:14AM (#24478285)

          Seriously, everyone knows that both the uploading AND the downloading are blatantly illegal.

          These are not criminal matters, they are civil. Copyright infringement is not illegal. It may cause damages to the party infringed upon, but that party must pursue the matter in civil court. Seriously, walk into a police station holding a burned CD full of MP3s and demand to be arrested. They will laugh at you, because it is not a crime.

          • Re: (Score:3, Informative)

            by xouumalperxe (815707)
            I don't think illegal means what you think it does. I.e. "Illegal" is not synonymous with "criminal". Copyright infringement *is* illegal. That's exactly the whole point.
          • Re: (Score:3, Informative)

            by shark72 (702619)

            Copyright law has both civil and criminal penalties. The Criminal Offenses [copyright.gov] portion of copyright law goes into more details.

            You're correct that many cases of copyright infringement don't fall into criminal territory. But it's also important to understand that you are being misleading when you state that copyright is not a criminal matter. Sometimes, it is.

        • by sjbe (173966) on Tuesday August 05, 2008 @09:06AM (#24478649)

          So, genius, explain to me how you upload something without making a copy.

          Typically it is legal to make a copy of material under fair use [wikipedia.org] guidelines. Whether the copy is on a CD or on a server or some other medium is generally irrelevant. What is relevant is whether mens rea [wikipedia.org] can be proven and whether the use clearly falls outside fair use guidelines. Upload stuff to a website saying "Warez here - come and get it" and you likely are committing a copyright violation. But simply putting files on a server is not an automatic copyright infringement. The issue is a lot more complicated than that.

          Both sides copy, and as you say, the act of copying without permission is illegal.

          This statement could not be more wrong. Copying material is not an automatic copyright infringement and both case law [wikipedia.org] as well as legislation [wikipedia.org] have strongly established this fact. All copyright infringements require the act of copying but not all copying is an automatic copyright infringement.

      • Re: (Score:3, Interesting)

        by Gat0r30y (957941)

        The party making the copies (i.e. downloading) is the only one committing the illegal act.

        This raises an interesting legal question. The copy operation gets initiated from another computer, is the person who initiated the operation (the downloader) responsible? Or is it the person who made it available? If it weren't copyright would illegal acts be viewed the same way?
        What I'm trying to get at is if someones PC got infected with a virus, under the view that the host is responsible, one could hold people who own infected PC's responsible for the behavior of the virus right?

        • by Dancindan84 (1056246) on Monday August 04, 2008 @06:34PM (#24473877)
          The library makes copyrighted works available and they aren't at fault if someone violates copyright using one.
        • by dgatwood (11270) on Monday August 04, 2008 @06:37PM (#24473911) Journal

          Basically, it's the same as a library making CDs available for borrowing and providing a CD copier. As I understand it, if you as the borrower are making the copies, even if the library provides the equipment, you are violating copyright, not the library. Not sure if that theory has been tested in court, though. But yeah, one could reasonably interpret copyright law to indicate that the downloaders are violating copyright, not the people making it available. This differs from hosted storage in which the person who uploaded it to the server initially was making an unauthorized copy, i.e. both parties committed a copyright violation.

          Of course, when they were going after downloaders, everyone screamed and said that they should go after the people making it available in the first place. I don't think there's any way for these folks to win... except... oh... maybe not suing their fans.

          • by Banzai042 (948220) on Tuesday August 05, 2008 @01:17AM (#24476555)
            I'm honestly not sure they could ever successfully bring a lawsuit against somebody for downloading only. INAL, but as I understand it anybody who purchases a CD (or other physical media) is legally allowed to download a song on that CD because they have already paid for a license of that song. Therefore the RIAA would have a difficult time proving anybody didn't have a right to download a song at the time that they did. All it would take is the defendant holding up a copy of the CD that they purchased in front of the court and the RIAA's case goes out the window. The RIAA can't even prove when the defendant purchased the CD because if it is purchased with cash there is no trail connecting the defendant with a specific purchase event.
        • Re: (Score:3, Informative)

          by falconwolf (725481)

          The copy operation gets initiated from another computer, is the person who initiated the operation (the downloader) responsible? Or is it the person who made it available?

          According to the law, it's the downloader who is responsible. In a post on yesterday's article someone offered a good example, sorry I don't recall the person. The example used a newspaper. If I buy a newspaper, read it in a park then leave it on a park bench I'm not breaking the law. Well, depending one where I might be breaking a lit

        • For the reproduction infringement, it is the person who initiated the operation. The provider is generally on the hook for distribution, rather than reproduction. Both are equally infringing.

          So no, if someone took over your computer, then you wouldn't be responsible for it (absent some sort of duty to stop that). But since a plaintiff would have no way to know that in advance, you're still likely to have to go to court to prove that it wasn't your doing, should a lawsuit commence. I would not recommend faki

      • by Red Flayer (890720) on Monday August 04, 2008 @06:47PM (#24474009) Journal

        In copyright law it is making the copies that is illegal.

        This is not true, which is kind of the point of the judgment being referred to.

        It is distributing copies that is illegal. You can make as many copies as you want, but if you rent them out, sell them, etc, then you are in trouble.

        The party making the copies (i.e. downloading) is the only one committing the illegal act.

        You're pretty close there... but making the copy is not the problem. The problem is downloading it. If I were to log into your computer remotely, and copy all your copyrighted media files to the same computer, that is not a violation. Transmitting the files? That's a copyright violation.

        • by stinerman (812158)

          Actually you are wrong as well.

          Making copies is copyright infringement. However if you have a "good reason" to be making copies, you are free via fair use provisions. You can check with any of our esteemed copyright lawyers who post here.

          Now, in practice you can make as many private copies as you want because no one would ever know you're making the copies, but it's still illegal. Distribution is just the easy way to get caught. This is similar to drug offenses. Most people don't get arrested for growin

      • by Benaiah (851593)

        The reason this may stand up is that in the drug case it is SELLING the drugs that is illegal. In copyright law it is making the copies that is illegal. So -

        in the drug bust the cops observe the dealer selling drugs; i.e. the illegal act.

        in the copyright case making available is not the illegal act. The party making the copies (i.e. downloading) is the only one committing the illegal act.

        Isn't the whole RIAA argument up until this point being the whole "making available" argument?

    • by OverlordQ (264228) on Monday August 04, 2008 @06:10PM (#24473611) Journal

      Undercover cops buy drugs in the course of performing their duties as a law enforcement officer and the state doesn't have to prosecute them for buying them.

      Fixed that for ya.

    • by whoever57 (658626) on Monday August 04, 2008 @06:18PM (#24473707) Journal

      I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.

      You missed the point. The problem for the RIAA is that when they downloaded the files, they were authorized to download the files (as representatives of the copyright holders) and thus, because this was an authorized download it does not provide evidence of a copyright violation. It's really a catch-22 situation for the copyright holders.

      • by dirk (87083)

        Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it. The issue is that the person is distributing the songs and they do not have the authority to distribute them. IT doesn't matter who they distribute them to, they don't have the authority to distribute them to anyone at all. So unless the copyright holder tells them "yes, I authorize you to make a copy of that for me", it isn't legal for them to distribute it even to the copyright ho

        • by whoever57 (658626) on Monday August 04, 2008 @07:37PM (#24474453) Journal

          If I'm handing out copies of the latest Josh Grobin CD and I hand one to Josh Grobin himself (he's probably the only one who would take it) that doesn't suddenly make it okay for me to be handing them out, even to him. He didn't give me permission to distribute, I just happened to hand it to the one person who could give me permission.

          I don't think your example is applicable. To make it closer to the real event: imagine that I offer to make copies of Josh Grobin's CD and the only person who asks for a copy is Josh Grobin. I stress "asks", because that is what happens with P2P. There is no evidence that anyone else received a copy, so a court has to assume that no-one else did receive a copy. Now, do you think that the copy that Josh asked for was unauthorized?

          • by Todd Knarr (15451)

            The relevant question the court would ask is "Did you know it was Josh Grobin when you made the copy for him?". If you didn't, then the fact that he was the copyright holder would be set aside as irrelevant. You didn't know that and yet you made the copy for him anyway, so the presumption is that you'd've done the same if he hadn't been Josh Grobin.

            • by whoever57 (658626) on Monday August 04, 2008 @08:21PM (#24474853) Journal

              The relevant question the court would ask is "Did you know it was Josh Grobin when you made the copy for him?".

              Would a court ask this? I don't recall seeing intent in any copyright statues that I have read (not that I claim to be an expert on the subject of copyright). Essentially, what you are suggesting is that the court should say: "in the hypothetical case that the person requesting the file did not have permission, the defendant would have violated copyright". The problem is that courts don't make awards (or, should not) on the basis of hypothetical violations.

              To use a car analogy, it's like being given a speeding ticket by a cop who states "had the defendant not seen me, he would have been speeding down this stretch of road, so we can presume that he is guilty".

              • by Todd Knarr (15451)

                Bad analogy. To be a parallel the driver would've had to have been speeding upon and after seeing the cop, in which case the cop doesn't need to make any claim about what the driver would've done had he not seen the cop.

                And if your position is correct, then no copyright holder can ever possibly make any claim of copyright infringement against anybody. To present the evidence, the copyright holder has to obtain the evidence. If the very act of him obtaining the evidence renders it not evidence of copyright i

          • Re: (Score:3, Funny)

            by mcpkaaos (449561)

            Now, do you think that the copy that Josh asked for was unauthorized?

            Unless he happens to own distribution rights to his own music, yes.

            As a side note, I didn't know who Josh Grobin is so I searched for him on Google. After hearing a sample of his music, I think all copies of his CD should be unauthorized. No offense to his fans but it was the first time I clicked a Youtube link and actually wished I had been rickrolled.

        • Re: (Score:3, Insightful)

          by falconwolf (725481)

          Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it.

          That's the line the MafiAA uses, however it is not illegal to make available, which is what the uploader is doing. You have the right to swing at me but your right ends where my nose begins.

          Falcon

        • by countach (534280)

          I would think that if Josh took the copy knowing full well what it was, there would be an implied authorization. Not to mention that in the P2P case, it is the downloader who initiates the copying and distribution cycle.

        • Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it.

          They did. An agent of the lawful owner of a copyrighted work asked another party to make a copy of that work on the owner's behalf. That's about as legal as you can possibly get.

      • by ShaunC (203807)

        The problem for the RIAA is that when they downloaded the files, they were authorized to download the files (as representatives of the copyright holders) and thus, because this was an authorized download it does not provide evidence of a copyright violation.

        Doesn't it, though? Certainly whoever uploaded the files was not authorized to distribute them. That's the copyright violation.

        • Re: (Score:3, Insightful)

          by Lehk228 (705449)
          the rightsholder initiated the transfer, the theory is that by requesting the transfer they implicitly authorized those copies, just like your boss can't fire you for stealing company secrets when he asks you to bring a CD of trade secret manufacturing data to a subsidiary's branch office.
      • Re: (Score:3, Insightful)

        by The_reformant (777653)
        But how do they know what they';re downloading til after they make the copy. I could make a file which i license at 1 beeeelion dollars then make it available under a name mangling of the RIAAs latest pop sensation. What happens then? If they have it their way then they are opening everyone to unlimited liability for downloading anything.

        Which is retarted.
    • by Tmack (593755) on Monday August 04, 2008 @06:18PM (#24473711) Homepage Journal

      The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

      Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

      I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?...

      The reason undercover cops arent charged is because they are officers of the law, and are thus believed to be pursuing the upholding of the law. See entrapement [wisegeek.com] as it relates to undercover cops "selling" illegal drugs. Since the RIAA "Investigators", many of whom are not even licensed, they are not officers of the law, and thus should not face the same privilege. For similar reasons, setting up your own drug sting operation to help cleanup your neighborhood by trying to sell oregano will probably get you thrown in jail instead of any "customers" you might catch. The defense is arguing that if the investigators are not liable for downloading the content illegally, then the content must be authorized by the RIAA. In this case, its like they sent their own "Johns" out on the street to find prostitutes, and then rather than turning over their own Johns after the deed is done, only turn over the prostitutes, all while not being official law enforcement agents. They are overstepping their rights and should not be afforded the privilege they have assumed.

      Tm

      • Sometimes (Score:2, Informative)

        by pagewalker (1286802)

        Often Police Officers are reasonably doing what members of the public commonly do, out of a belief that someone is a criminal. If the belief is reasonably formed, I applaud them for it--the police shouldn't be prevented from, in the course of an investigation, pretending to be a regular Joe or Sally in order to see if someone is selling drugs, for example.

        But you run into real problems, too--I've heard stories from people who work in environments where, because the police expect there to be corruption, the

        • the police shouldn't be prevented from, in the course of an investigation, pretending to be a regular Joe or Sally in order to see if someone is selling drugs, for example.

          Yes they should, drugs shouldn't be illegal!

          Falcon

      • Re: (Score:3, Insightful)

        by notamisfit (995619)
        This is a civil case, not a criminal one. Unlike criminal liability, civil liability can be waived by the offended party (the RIAA or the companies it represents).
      • Quote: "The defense is arguing that if the investigators are not liable for downloading the content illegally, then the content must be authorized by the RIAA."

        It is actually the other way around: the defense is arguing that SINCE the downloading was previously authorized by the RIAA as part of the investigation, no infringement took place! You can't illegally copy your own goods, or goods that you are authorized to copy by the copyright holder!
    • by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Monday August 04, 2008 @06:29PM (#24473829) Homepage Journal

      I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

      Sharing music is not inherently illegal. Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances (fair use, media shifting, etc.). If a copyright owner or their agent transfers a song, no violation has occurred. Contrast with a drug deal which is always against the law.

      • Re: (Score:3, Insightful)

        by falconwolf (725481)

        Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances

        The copying isn't illegal, it's giving the copy away or getting the copy without also getting the original that's illegal.

        Falcon

        • ... it's giving the copy away or getting the copy without also getting the original that's illegal.

          It's a civil matter, not a criminal matter. Neither is illegal. Though they may cause damages for which the damaged party may seek to have you held liable.
          If you are found to be liable, it is STILL not illegal.

    • I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

      There is a difference. When two people meet, one having drugs and the other having cash, and they exchange drugs for cash, then usually both have committed a crime. In the exceptional case that the second person is a cop trying to find a criminal, only one person has committed a crime. Selling drugs is illegal, even if the buyer is a cop. However, copyright infringement involves making an _unauthorised_ copy. In this case, no unauthorised copy has been made. The copy that was made is not authorised, so no c

    • by Basilius (184226)

      The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

      Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

      I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

      Not defending the RIAA, but just pointing out something that seems illogical to me.

      Because the crime being prosecuted, in both cases, is the distribution of the item in question, not the acquisition.

      The primary difference between the drug and MP3 analogy is that the act of an authorized agent of the copyright holder requesting distribution of the MP3 constitutes permission to distribute, and that's legal. It would likely be entrapment, otherwise.

      That is not the case for drugs. You (generally) cannot create a situation for authorized distribution of drugs.

      • That is not the case for drugs. You (generally) cannot create a situation for authorized distribution of drugs.

        A similar situation with alcohol: In most countries it is illegal to sell alcohol to someone under a certain age. If you send out an undercover cop who is say 25 but looks like he is 15, and a shop sells him alcohol, then the sales person didn't actually break the law (even though there is evidence they were willing to break it).

      • The primary difference between the drug and MP3 analogy is that the act of an authorized agent of the copyright holder requesting distribution of the MP3 constitutes permission to distribute, and that's legal. It would likely be entrapment, otherwise.

        IANAL, but as I see it, having the investigators download copies would be evidence of infringement if and only if the RIAA's "making available" theory were valid. In that case, they could argue that even though they'd authorized the downloading of this copy,

    • Re: (Score:3, Insightful)

      by falconwolf (725481)

      Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

      I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

      As the subject line says, you can't infringe on your own rights. The investigators worked for the copyright owne

    • Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.

      I understand the point, but it doesn't apply. In the drugs case, the cops didn't legally manufacture the legal to posses drugs. The drugs in question were not legal. In the RIAA case, the recordings were legally created by RIAA members and then downloaded by the legal copyright holder. It would be different if the actual songs were illegal products not produced by RIAA members. If she provided underground detailed bom

    • by AK Marc (707885) on Monday August 04, 2008 @08:07PM (#24474729)
      I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

      Because the criminal requirements are that if someone believes they are committing a crime, then they are. If there is a buy for drugs and it's flour, it's still a crime. If someone shoots into a trunk they previously locked someone in with the intent of killing them, it could be tried as attempted murder even if the person was moved from the trunk and was in no actual harm. However, civil cases are different. Most require that you get actual damage. If someone tries to break a contract and believes they did break a contract, they still aren't guilty of breaking it unless there is some harm to the other side. You can't sue someone if they didn't harm you.

      If he "makes available" something, but no copies were made, then there was no loss. If he makes something available and the only person that makes the "illegal" copy is the copyright owner or their agent, then there was no loss. Without a loss, there can be no civil case.

      Not defending the RIAA, but just pointing out something that seems illogical to me.

      You have pointed out another reason why they are pressing hard for making all infringements, including incidental non-commercial infringement into crimes, rather than simply "illegal" (but requiring civil actions). There is a different set of rules for civil suits (not to mention the cost of prosecution) and they favor the RIAA if these are all criminalized.
      • Re: (Score:3, Interesting)

        by mdmkolbe (944892)

        This is incidental to your main point, but it is not a crime to attempt to commit a crime think you are committing a crime. First example, trying to break the speed limit only to be foiled by your car not willing to go that fast. Second example, if you think the speed limit is 25 and you go 40 when the speed limit is 45, it is not a crime.

        There are a few exceptions (e.g. murder) where attempting to perform a particular act is explicitly listed as a crime. But in general "attempted" crimes are not crim

    • by batkiwi (137781)

      You're using the wrong analogy.

      It is not drug dealing or transporting illegal substances when an officer takes some seized drugs out of the evidence locker and into court for a trial, despite him "moving" them, because he was authorized to.

    • by lysse (516445)

      Not really. Possession with intent to supply is a crime in and of itself. "Making available" would be the equivalent charge for the downloaders, but we all know how well that legal argument has been received; that means that only the act of allowing a particular unauthorised download itself violates copyright, at which point the argument that the particular downloads presented as evidence are anything but unauthorised becomes a somewhat valid point to make... particularly if the courts were to decide that t

    • Undercover cops buy drugs and the state doesn't have to prosecute them for buying them

      Those are police officers, working under the supervision of the government in gathering evidence for a criminial trial.

      These are private investigators, with already provably questionable tactics and working for a private industry to gather evidence for a civil suit. Different rules certainly apply.

    • by sjbe (173966) on Tuesday August 05, 2008 @09:36AM (#24478981)

      Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.

      Police officers are sanctioned by the government to enforce the law. The RIAA and other private organizations do not (and should not) share the same legal protections as a police officer sanctioned with enforcing the laws. The act of trafficking [wikipedia.org] schedule 1 controlled substances [wikipedia.org] is always illegal for private citizens. Making a copy of copyrighted material often is entirely legal under fair use doctrine [wikipedia.org]. Furthermore selling controlled substances without a license is a felony whereas selling copyrighted material without any special license is frequently legal.

      If the plaintiff had assistance from legally sanctioned law enforcement authorities who, in the process of a properly conducted investigation, concluded that there was reasonable grounds to suspect attempted copyright infringement then it would seem more likely to be acceptable as evidence. But just because some private investigator found "evidence" doesn't mean a court will or should automatically allow it to be presented.

      Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

      Because a private citizen cannot manufacture a crime against another private citizen. Without getting into the particulars of any given case is is easy to think of situations where the defendant was not attempting to commit copyright infringement. Making copies of copyrighted material is not prima facia [wikipedia.org] evidence of copyright infringement.

  • by Hatta (162192) on Monday August 04, 2008 @05:58PM (#24473463) Journal

    Even if the 'making available' argument doesn't stand under current law, you can expect attempted copyright infringement to be made illegal when congress gets back from vacation.

    • Re: (Score:3, Interesting)

      by LM741N (258038)

      I agree. As long as our representatives in Congress and the Senate are in the pockets of media companies, all of these types of court battles will mean nothing in the future. So ones only option is to vote, voice your concerns to your elected officials, and then become incredibly cynical after realizing that they don't really care- since most of their constituents don't care either.

      Apathy in the USA. I really don't know what its going to take to wake up our country to reality. Being outnumbered 200% by

      • by cliffski (65094)

        You DO realise that hundreds of thousands of voters WORK in the entertainment industry and quite sensibly will vote to enforce copyright laws right?

        I see slashdot is still foaming at the mouth to defend this woman who blatantly and obviously copied music without paying for it. Nobody even pretends she is innocent, yet somehow she has become a hero for taking other peoples work for free...

        • Re: (Score:3, Insightful)

          by TheRaven64 (641858)
          I would defend people being prosecuted under unjust laws. I would defend a petty thief I knew was guilty in a country where the penalty was having his hands cut off, for example.

          I'd like to recount a little story of something that happened last week. Someone decided to post a PDF copy of my book (the one available from Safari Books Online) to a public mailing list. It's pretty hard to find a more blatant example of copyright infringement. Under US law, he'd be liable for a statutory penalty multiplie

      • Re: (Score:2, Insightful)

        by iceeey (842254)

        So ones only option is to vote, ...

        That's not your only option. Don't buy music from RIAA labels or see/rent/buy movies from MPAA member companies, or any other media company involved in tactics like this. Speak with your wallet. And tell your friends to do the same. If they have no cash flow, they have no lobbying power. Buy independent music/movies instead and support the artist.

    • Re: (Score:3, Insightful)

      by Danse (1026)

      Even if the 'making available' argument doesn't stand under current law, you can expect attempted copyright infringement to be made illegal when congress gets back from vacation.

      Yep. Some of the new legislation they're trying to push through makes the DMCA look like the "Free Kittens and Ice Cream For Everyone Act". As long as our Congress is up for sale and people aren't paying attention to copyright legislation, we're going to keep getting screwed time after time. I hardly ever see anything about copyright legislation in the mainstream media, except when they're talking about how the mean nasty pirates are going to have the poor recording and movie industry execs sending their

  • strip them (Score:2, Interesting)

    by fuliginous (1059354)
    The judge should strip them of their right to practice until the successfully pass an English language exam showing that they can actually read and comprehend words.
    • Re: (Score:3, Insightful)

      An attorney we use is fond of saying that words and punctuation have to mean something, or else there is no point in writing things down in laws and contracts.
    • The judge should strip them of their right to practice until the successfully pass an English language exam showing that they can actually read and comprehend words.

      You are expecting too much from an administration who spent time trying to figure out what "is" is.

      • The judge should strip them of their right to practice until the successfully pass an English language exam showing that they can actually read and comprehend words.

        You are expecting too much from an administration who spent time trying to figure out what "is" is.

        "administrations" are time-limited instances of the top levels of the executive branch. Judges are part of the judicial branch - over which the executive branch has essentially no control beyond appointing judges for open (or new) seats and hopin

      • You are expecting too much from an administration who spent time trying to figure out what "is" is.

        I didn't know Bill Clinton was still in office.

        • I didn't know Bill Clinton was still in office.

          Checked the members of the Senate and House lately? Bill by himself wasn't the administration but only part of it.

          • by Dravik (699631)
            Not to nitpick, but the members of the Senate and House are not part of the executive, and thus not part of the administration. They legislate but have no executive or administrative authority.
  • Brilliant (Score:5, Insightful)

    by Nefarious Wheel (628136) on Monday August 04, 2008 @06:06PM (#24473563) Journal
    I think it's an indication that judges do read ABA journals, that word does get around, and that perhaps there is a hope that these tactics are being exposed for what they are, a colossal rort of the legal system for private gain. You can fool some of the people some of the time, and some of the people all of the time, but you can't fool all of the people all of the time, it appears.
  • RIAA sol (Score:3, Interesting)

    by harvey the nerd (582806) on Monday August 04, 2008 @06:16PM (#24473679)
    Definitely looks like a major crack forming in the **AA DeathStar...

    As for the Congress getting more blatantly in bed with **AA, keep it up and I suspect people will stop writing them checks too, ass well as ignoring them generally. That's kind of the way these things seem to work in other countries.

    By my reckoning, RIAA has had 20+ yrs to get a consumer usable act *started*, much less its act together, and failed. The model of selling the same tunes 12x to the same person in a digital age, threatening to break people "legally", and indiscriminately sucking off education resources, just doesn't cut it. Time to shape up or ship out, guys.

  • ...or is it just too tempting?

    I wrote a (very) short piece [mothership.co.nz] on this after the music industry had a wee get together in Kristiansand back in June last year.

    One of the outcomes reported was the recognition that monetising, instead of prosecuting, was a better idea. Is it just the wheels moving slowly or is the easy path involve a lot less work for a lot more short term gain?

  • It's time to bribe....ummm...I mean fund the campaigns of incumbent congressmen. The judges are much harder to buy off.
  • by The Breeze (140484) on Monday August 04, 2008 @07:04PM (#24474155) Homepage

    None of this means a damned thing if the RIAA succeeds in getting their private gestapo made into an arm of the Department of Justice. Remember, they are pushing a bill to create a Federal framework for billing the US Government for both civil and criminal actions using Federal officers to do their dirty work. Even if you don't download music, you're gonna pay through the nose in tax dollars and the loss of more civil rights as the government bureaucrats try to ram through new laws to "support their mission" - mandatory ISP snooping and filtering, legitimized abuse of due process, lower standards of evidence, and a grab bag of laws to "protect jobs" (that's the rationale being currently used to get this bill passed). We're setting ourselves up for an Orwellian nightmare of epic proportions if this nightmare passes.

    • Re: (Score:3, Insightful)

      by lysse (516445)

      Look on the bright side. Western society is in terminal decline anyway. When archaeologists of the next great civilisation look back at us, the RIAA's efforts to turn corporate policy into federal law are going to be seen as something of a barometer... if they are even remembered at all.

  • Hehe! (Score:3, Funny)

    by Jane Q. Public (1010737) on Monday August 04, 2008 @10:55PM (#24475815)
    "Judge, let's just forget about this little part of the law, because it's very inconvenient for us..."
    • Re: (Score:3, Funny)

      "Judge, let's just forget about this little part of the law, because it's very inconvenient for us..."

      Yeah, we can't prove it. Therefor that part of the statute should not be counted.

Say "twenty-three-skiddoo" to logout.

Working...