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The Courts Government Patents News

Judge Rules Offering != Distributing 406

Posted by Zonk from the not-the-same-thing dept.
starrsoft writes "From the EFF's website: 'Judge Marilyn Patel issued a ruling (PDF) Wednesday that settles an important question in the ongoing Napster case -- whether under the law, simply offering copyrighted material to others means you're distributing it. Copyright holders have to prove that someone actually downloaded the file from you before you can be found liable for distributing. The simple act of offering isn't enough. It clarifies the law, providing a safeguard against the over-reach that the ART Act threatened.' Ernie Miller and Techdirt have more on this decision."
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Judge Rules Offering != Distributing More

Judge Rules Offering != Distributing

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  • Ruling is Important (Score:4, Interesting)

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

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

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

      by Anonymous Coward
      The largest impact isn't on the sharers, but it's on the bittorrent tracker sites. The threshold of proof is raised not only for those offering files, such as in Kazaa, but most importantly, it's raised for sites that index torrents as well - at least that's how I read it.

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

    by Greg Wright ( 104533 ) * on Friday June 03, 2005 @05:11PM (#12718473) Journal
    What is keeping *them* from just downloading a copy? If not them, they someone they hire or pay off. It is certainly a step in the right direction I think, and it might actually help Napster in this case, but in the long run I am not so sure how much of an effect it will have. At least it will mean that they probably don't have the correct evidence to sue a lot of people they wanted to, but all the new cases in the future won't have that problem I bet. Does anyone else see why this would mean more then just some old cases not having enough evidence?
    • It just means they didn't collect the right evidence in the napster case.

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

    • New plan: (Score:2, Funny)

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

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

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

      • "Not only should they have to prove that you distributed it, but they should also have to prove that you distributed it to someone who doesn't have the legal right to have it. This would further force them to go after the people downloading illegal material instead of the people who have it on their computer. If I downloaded SUPER MARIO, but I already own a copy (or 8) of it, then nobody committed a crime, right?"

        Wrong! You cannot download another copy from someone else even if you own the original. Do

        • Wrong! You cannot download another copy from someone else even if you own the original. Doing so is ethical but illegal

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

          -T

          • you can download a copy from someone else if you own the article in question

            This is not true in the US. Perhaps there would be a fair use, but it's far from certain (and space shifting is not on solid ground anyway). IIRC, Napster tried to raise this as a defense, and failed.
          • Well, this ruling says that they didn't do anything illegal just by sharing it, and your claim seems to indicate that they didn't illegally distribute it by sending it to someone who had the right to have it.
      • Not only should they have to prove that you distributed it, but they should also have to prove that you distributed it to someone who doesn't have the legal right to have it.

        Well, you'd better write your congressmen, because as the law is right now, it doesn't matter who you distributed to, if the distribution is itself an infringement.

        If I downloaded SUPER MARIO, but I already own a copy (or 8) of it, then nobody committed a crime, right?

        Not enough facts to discuss whether or not it's a crime. It i
    • One potential issue with the download-it-as-proof scheme is how you might go about proving that any single user uploaded the entire song/movie to you, assuming that this actually even makes a difference in the eyes of the law. When you're downloading from multiple sources, as most modern file sharing systems do, each user is generally only responsible for uploading small parts of the complete whole.
    • What is keeping *them* from just downloading a copy?


      The fact that they can't sue you for giving back their rightful property to them.

    • First off- as a body acting on behalf of the copyright holders, they have a right to download it. So them downloading it is non-infringing.

      Secondly, it opens up arguments of entrapment.

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

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

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

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

        Secondly, it opens up arguments of entrapment.

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

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

        Well, one out of three isn't bad.

  • Don't they bust people for "offering" drugs, even when they don't have any real drugs. Usually they have some fake drugs (basil, powdered sugar, whatever).
    • not at all. People are busted for Intent to distribute if they have a large quantity of drugs. You can be busted as a dealer even if you have a kilo of cocaine for personal use. Having less than a certain amount is only possession.
    • Yeah, but possessing drugs is also illegal. Possessing music isn't. Yet.
    • Drugs can potentially kill you.
    • > Usually they have some fake drugs (basil, powdered sugar, whatever).

      Basil?

      Either you've never been in a kitchen before or your dealer has been completely ripping you off.

    • Drugs (as in those which are contraband) are illegal and criminal to sell , posses or distribute in any way , its a very diffrent thing.
      Music is legal to own , posses and in some situations distribute and sell
      It would be rather scary if they tried to apply the same thinking to civil cases as to criminal cases .
    • Don't they bust people for "offering" drugs, even when they don't have any real drugs.

      It's usually intent that they bust people for in those cases.

      If an undercover cop is pretending to be a dealer, and it's your intent to purchase illegal drugs from him, that's the crime.

      If they catch you immediately after buying drugs from a real dealer, that is a different crime(possession).

      LK

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

    by KiloByte ( 825081 ) on Friday June 03, 2005 @05:13PM (#12718481)
    Unfortunately, all it takes for ??AA is having an employee or an "unrelated" person to download the file to produce the proof.
  • Napster has been dead for a few years now; I can't believe there are still lawsuits going on. Give it up, RIAA.
    • Well ... when you've got a lot of otherwise underemployed lawyers on your hands you have to find something for them to do, I guess.

    • Re:The Napster case? (Score:3, Informative)

      by Husgaard ( 858362 )
      This case is not against Napster. It is against those who invested in Napster at that time. Yes, some of these investors are still alive.

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

  • Common sense? (Score:5, Insightful)

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

    • Depends. (Score:3, Interesting)

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

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

    • Re:Common sense? (Score:3, Insightful)

      by geekee ( 591277 )
      " This seems to me like a victory for common sense."

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

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

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

    How likely are the RIAA to get these logs? Do the ISPs by law have to keep these logs?
    • ISPs can't afford to keep packet logs of their subscribers's traffic.
    • If the law determines that only the fact of downloading has to be shown, not that a file went to a specific individual, then ISP's don't need to be involved. It's easier to show that files are being downloaded from a given server than it is to show that someone in particular is downloading them.

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

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

      They will when the RIAA-sponsored Internet Copyright Infringment Evidence Preservation Act is passed. Their standard M.O. after getting spanked in court is to go buy a law that has the effect of overturning the unfavorable ruling.
    • Do you have any idea the sheer amount of data that you'd have to store to log every transaction a computer makes? I mean for something like this we are talking every sit they visit, every file they download with any protocol, etc, etc. It would be huge for just one computer, and get the fuck out of here for 10,000. Also, it would only work for known protocols. Your logger would need to know about a protocol and know how to see what was going on to log it, meaning constant updates.

      Also, it is of no practica
    • Well, I think there are significant other legal standings saying the ISPs don't have to turn over those kinds of log files, and even if they did have to, all anyone would have to do is use a damned encrypting P2P system.

      Besides, the ISPs couldn't POSSIBLY keep a log of every bit that went through their networks, and it's probably very hard to keep logs of just where those packets were going, though not impossible. Maybe we as consumers should start asking for guarenteed anonymity or move on to greener
    • If they were somehow compelled to keep such logs, what would happen is that all traffic would be passed through an SSL tunnel.

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

      LK

  • Awesome! (Score:2, Insightful)

    by czarangelus ( 805501 )
    This is totally awesome! It's going to put a major wrench in the RIAA/MPAA's tactics.

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

  • humm. (Score:5, Insightful)

    by LWATCDR ( 28044 ) on Friday June 03, 2005 @05:16PM (#12718506) Homepage Journal
    So what does this mean for Bit torrent trackers?
    They offer just a hash not the actual file.
    • Basically nothing.

      This ruling is that providing an index isn't a direct infringement. But it's still possible to be liable for indirect infringements, such as contributory infringement and vicarious infringement. Basically, if you help, or are sufficiently commercially involved with, an infringer, you're responsible too.

      BT trackers are very vulnerable to contributory infringement actions, and often vicarious infringement actions too.

      Remember, all Napster did was help uploaders and downloaders infringe --

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

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

    Discuss, discuss

    • I'll bite.

      I found an interesting theoretical loophole in fair use and copyright law, albeit one that probably wouldn't stand up in court. Let's say you have a 5-minute song. You get 300 people to rip their CD's (using the same settings to ensure a valid file), and provide only 1 second of the song each. Fair use allows you to quote small portions of something, so the sharers wouldn't be at fault, and since offering a quotation isn't copyright infringement, collating them into a copy (that you don't redi

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

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

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

    • Re:Stupid ruling (Score:3, Insightful)

      by cplusplus ( 782679 )
      Is your credit card number copyrighted? How about your SSN number? No? Then you have nothing to worry about. This ruling covers copyrighted material, not confidential information. That's a whole other ballgame. I think your private info is still safe (although with all the security leaks lately regarding personal account info, I'd question how safe it actually is).
      • Is your credit card number copyrighted? How about your SSN number? No? Then you have nothing to worry about. This ruling covers copyrighted material, not confidential information.

        The point is that it's irrelevent whether we're talking copyrighted material or not -- it's still restricted material banned from distribution. The illegality is the publishing -- not the downloading.

    • Re:Stupid ruling (Score:3, Insightful)

      by kaiser423 ( 828989 )
      There are other laws protecting your credit card number, SSN, etc. Sure, distributing them with illegal intent is often a crime, but usually owning your personal, private information without a need for it is usually illegal.

      Your analogy sucks anyways. We should have much tougher laws regarding personal information and privacy than we do have on publically available (but copyrighted) works. Some of the new privacy laws are getting there, but I don't think we're at that point yet.
    • So if you install a P2P app and without your knowledge/consent it goes ahead and searches your hard drive and spots your MP3 collection that you created from ripping your CDs. You only intended to share "c:\downloads" but now "c:\MP3s\" is shared too.

      So if this was a stupid ruling, then you are saying you should be prosecuted/sued because your MP3 collection was shared by the program.
    • Let's see if I understand you: someone else than you and your bank knows your credit card number and you worry about whatever or not they will distribute it?!
  • What happened to the proposed legislation making the offering of even a single file a felony, even if it was never downloaded? It seems like that bill was specifically designed to counteract this kind of ruling...

  • This is very odd.

    Using a bad analogy: I would expect to be busted for offering drugs for sale, even if nobody bought them.

  • Universal (Score:2, Insightful)

    by camcorder ( 759720 )
    Do those verdicts have any influence on International laws? or it's just slashdot becoming US centric again.
  • Now what we need is that proof be required you willingly and knowingly offered and distributed works. Correct me if I'm wrong, but currently, are you not be liable for accidentally leaving an insecure/shared directory where someone downloaded unauthorized copyrighted material from you?

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

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

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

    A flaky decision. Wait for the appeal.
  • Since Napster only listed a catalog of filenames and URLs at which they might be offered, but didn't distribute, isn't it even less liable for illegal distribution in view of this decision?
  • I've been thinking about this for a while now, and prehaps someone has already done it. I wonder what would happen if one was to set up, say a httpd offering files with names such as "mof-sith1.avi", "mof-sith2.avi" (star wars ep3) etc. Also, filesizes should be appropriate.

    Now, these files would be generated with dd and contain random crap - nothing that would violate anyones copyright.

    Im just curious what would happen:
    1) Nothing, apart from angry emails from ppl who wasted a couple of hours downloading
    • I would imagine that the MPAA (or whoever) would send you and/or your ISP a (probably automated) cease and desist letter asking you to remove the files. On failure to remove them, they'd download them themselves and verify them before persuing a court case.

      IANAL though.
  • If i approach you on the street, and i offer you drugs, and you say no, am i not distributing it?
  • Yeah, I put that MP3 out on my personal website for MY OWN usage not yours. It's your problem if you download it. Thief.

    Kinda like if I leave my car unlocked on a public street it doesn't mean I'm giving permission for someone to come along and steal it.

    Hmm...
  • The thing is, unlike certain people like Monsieur Bush who believe we're guilty until proven innocent, that in America (and much of the world) you're INNOCENT until PROVEN guilty.

    So this was an obvious conclusion.

    If you think I've stolen your sharpe dog, you can't just lock me up and keep me in prison for stealing your dog because I have a sharpe dog that looks like yours. You have to prove that the dog I have is in fact YOUR dog. Plus, you also have to prove I STOLE the dog. I might have innocently pi
    • I think we're on the same side of the issue, but get your shit together, man. This is a civil case. It has nothing to do with the standard you discuss above.

      The common standard in a civil case is a "preponderance of the evidence." But yes, they still have to have actual evidence. They can't just walk in and claim damages on mere suspicion.

      I'll allow that it gets confusing because some of what is under discussion - the ART Act - has criminal ramifications.

      The Napster case seems to be just plain old CAPITO
  • It seems that the person who offers the copyrighted file is guilty of something (...unless you think copyrights themselves are a clear and present evil). E.g., I bet it's not okay to leave porn mags lying in a playground...
  • Does this mean that the actions that the MPAA took against sites like LokiTorrent, EliteTorrents, and TorrentSpy, are now invalid? After all, the sites only offered lists of material avaiable; any downloading of copyrighted content was done by individual users, not the websites.

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