Judge Rules Offering != Distributing 406
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."
Ruling is Important (Score:4, Interesting)
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)
Re:Ruling is Important (Score:3, Interesting)
Except I'm not quite sure if ex post facto actu
Re:Ruling is Important (Score:3, Informative)
Yeah, it was decided back in 1787 [usconstitution.net], at least in the US.
What does it really mean? (Score:5, Insightful)
Re:What does it really mean? (Score:3, Insightful)
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)
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)
Re:New plan: (Score:4, Insightful)
If recent history is any indication, no they won't check the file before they sue.
Re:New plan: (Score:3, Interesting)
Re:New plan: (Score:3, Funny)
Re:What does it really mean? (Score:3, Insightful)
Re:What does it really mean? (Score:2)
Wrong! You cannot download another copy from someone else even if you own the original. Do
Re:What does it really mean? (Score:5, Informative)
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
Re:What does it really mean? (Score:2)
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.
Re:What does it really mean? (Score:2)
Re:What does it really mean? (Score:2)
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
Re:What does it really mean? (Score:2)
Doh... (Score:2)
The fact that they can't sue you for giving back their rightful property to them.
Re:What does it really mean? (Score:2, Informative)
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)
Wrong, because you are still infringing THEIR rights to distribution. Whether they are legally entitled to possess the file is totally irrelevant.
Secondly, it opens up arguments of entrapment.
Wrong again, only the government can engage in entrapment. There is no private entrapment. "Only a government official or agent can entrap a defendant." United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987).
Thirdly, it means say goodbye to mass mailing of lawsuits, they have to dl every file from everyone they want to sue them over.
Well, one out of three isn't bad.
Re:What does it really mean? (Score:4, Informative)
Let's go to the source. 17 U.S.C. 106. Exclusive rights in copyrighted works [copyright.gov]
Re:What does it really mean? (Score:3, Insightful)
Certainly gives plenty of room to argue that it is not distribution if the only documented download was to an agent of the copyright holder.
Re:What does it really mean? (Score:3, Insightful)
Still, it's key to know what the law is. Both so that you don't run afoul of it, and so that you know how bad it is, and how important it is that we fix it.
Re:What does it really mean? (Score:2)
Why wouldn't a chunk/fragment count? One minute of a film is just as copyrighted as the whole thing...
Re:What does it really mean? (Score:3, Insightful)
Fair use is complicated. (Score:4, Informative)
But in theory, fair use is based on four factors, which the law lists as:
If you take screenshots of a movie to illustrate a movie review you write, that's probably fair use. If you take screenshots of a movie and use them to illustrate a children's book you've just written, you'd be quite liable. (Well, your publisher would slap you first, but if you self-published, you'd be liable.)
So the answer to your question is "a bathtub filled with brightly colored machine tools".
--grendel drago
Re:What does it really mean? (Score:2)
It tends to make your case much less compelling...you cannot claim astronomical damages because a person saw 1 minute of your film as easily as you could if you said they saw the whole film. After all, what are previews?
Re:What does it really mean? (Score:2)
Either there is infringement, or there is not. If there is infringement (based upon the distribution of even a small part of a work) then damages are calculated normally.
Re:What does it really mean? (Score:5, Informative)
As a rule, yes.
Usually, you need the entire file in order to have it be readable.
So?
Hmm... are
No. I would also encourage you to bear in mind this rule of thumb: not only is it usually impossible to escape the law by being clever, but those who work in the law are clever too, and won't be deterred by the likes of you.
Re:What does it really mean? (Score:2)
If you don't download the file, you don't know whether it's the whole movie, or a review of it, or another work using a bit of it (you can republish small amounts of copyrighted stuff for a number of reasons) or just a mislabelled file. Don't forget that these are the same guys who've sued people for totally unrelated stuff that just happens to share part of its name with a movie or whatever.
Re:What does it really mean? (Score:2)
Re:What does it really mean? (Score:3, Informative)
But not because of your mental state; because a prima facie infringement suit requires a copyrighted work, and an unauthorized act of infringement.
The elements of an infringement action are:
1) A copyrighted work
2) Where the plaintiff has the relevant copyright (or can bring the suit, at least)
3) And where the defendant did something that was unauthorized by the relevant rightsholder, and which is infringing.
If the plaintiff can show all of these, he wins, unless the defendant can put up a succ
What about drugs? (Score:2)
Re:What about drugs? (Score:2)
Re:What about drugs? (Score:2)
Among the differences here are: (Score:2)
Re:What about drugs? (Score:3, Funny)
Basil?
Either you've never been in a kitchen before or your dealer has been completely ripping you off.
Re:What about drugs? (Score:2)
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
Re:What about drugs? (Score:2)
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
Re:What about drugs? (Score:2)
MPAA: International Copyright Piracy: Links to Organized Crime and Terrorism [mpaa.org]
Coming up next in Bizarro World: the Campaign for Safer Streets will be launching a 30 second ad segment pushing the claim that jay walking encourages terrorism.
Re:What about drugs? (Score:2)
They can download it themselves (Score:3, Interesting)
Re:They can download it themselves (Score:2)
I know this word is used way too loosely by people trying to make points about the law but aren't you forcing someone to break the law in order to sue them? Didnk't think you could do that.
Re:They can download it themselves (Score:2)
Re:They can download it themselves (Score:5, Interesting)
1. Entrapment only applies to law enforcement.
2. "when a person is predisposed to commit a crime, offering opportunities to commit the crime is not entrapment" [wikipedia.org]
3. I'm thinking that someone who has permission to download files is not causing anyone to break the law by downloading from a site that is offering said files.
Re:They can download it themselves (Score:2)
Undercover cops nab prostitutes by offering cash and a passenger seat. Not entrapment there, either.
Re:They can download it themselves (Score:2)
Not necessarily entrapment... (Score:2)
Now, an unrelated person could still help you infringe, and entrapment might lie. Entrapment is, as others have pointed out, generally confined to law enforcement officers, but this still feels similar to you grabbing my hand and hitting someone with it and telling the cops I assaulted the other guy, or you telling the o
Side note... (Score:2)
The Napster case? (Score:2, Insightful)
Re:The Napster case? (Score:2)
Re:The Napster case? (Score:3, Informative)
I think RIAA is trying to sue them for some kind of secondary or tertiary contributory copyright infringement.
Common sense? (Score:5, Insightful)
Depends. (Score:3, Interesting)
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)
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)
How likely are the RIAA to get these logs? Do the ISPs by law have to keep these logs?
There are no logs (Score:2)
ISP's Might Not Be Needed for Evidence (Score:2)
Re:Ok, this is interesting.... (Score:5, Insightful)
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.
No ISP I know keeps logs like that (Score:2)
Also, it is of no practica
Re:Ok, this is interesting.... (Score:2)
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
Re:Ok, this is interesting.... (Score:3, Interesting)
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)
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)
They offer just a hash not the actual file.
Re:humm. (Score:2)
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 --
Re:humm. (Score:4, Interesting)
Imagine how bittorrent is affected (Score:3, Interesting)
Discuss, discuss
Re:Imagine how bittorrent is affected (Score:2)
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
A victory (Score:2)
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 ,
Stupid ruling (Score:3, Insightful)
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)
Re:Stupid ruling (Score:2)
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)
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.
Not a stupid ruling (Score:2, Insightful)
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.
Re:Stupid ruling (Score:2)
New Legislation? (Score:2)
I don't get it (Score:2)
This is very odd.
Using a bad analogy: I would expect to be busted for offering drugs for sale, even if nobody bought them.
Re:I don't get it (Score:2)
Re:I don't get it (Score:2)
They alkso haveto prove you don't own it.
So all in all, looks like a win, it set down some legle ground work for people to stand on.
Universal (Score:2, Insightful)
Re:Universal (Score:2)
Now what we need: (Score:2)
Re:Now what we need: (Score:2)
Wait For the Appeal (Score:3, Insightful)
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.
Publishing Offers (Score:2)
Honeypot (Score:2)
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
Re:Honeypot (Score:2)
IANAL though.
Weird ruling (Score:2)
Re:With prostitution stings (Score:2)
private property unlocked in public (Score:2, Insightful)
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...
This was a proper ruling unless you're French (Score:2, Interesting)
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
Re:This was a proper ruling unless you're French (Score:2)
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
minority opinion (Score:2)
What Could This Mean for Torrent Search Sites? (Score:3, Interesting)
Re:Why don't they just DL the file? (Score:2)
They have to find proof that other people did a download.
Re:Why don't they just DL the file? (Score:2, Insightful)
I don't see that. The person hosting the file has no way of knowing the person DL'ing it is the copyright holder unless the holder identifies himself as such (who obviously would not for the purpose of this DL).
An even stronger argument, for the DL to be legal, regardless of who DL's it, the host needs WRITTEN permission from t
Re:File sharing is not distribution. (Score:2)
Re:Bittorrent Sites (Score:3, Informative)
Re:Bittorrent Sites (Score:2, Informative)
Looks like its either them trying to garner support for bittorrent, or they actually got shut down criminally.