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Judge Rules Shared Files Folder Not Enough
Posted by
Zonk
on Sat Dec 23, 2006 05:42 AM
from the you-actually-have-to-commit-a-crime-to-be-punished dept.
from the you-actually-have-to-commit-a-crime-to-be-punished dept.
NewYorkCountryLawyer writes "In UMG v. Lindor, Judge David G. Trager rejected Ms. Lindor's objection to a Magistrate's Report, in which Ms. Lindor complained that the Report could be read to imply that 'the mere presence of a shared files folder on an individual's computer would ... satisfy the requirements of 17 USC 106(3)', saying that the Report of Magistrate Robert M. Levy could not be so read, since '[t]he report and recommendation does not comment on whether or not the mere presence of a shared files folder satisfies 17 USC 106(3). Instead, it makes clear that plaintiffs will have the burden of proving actual sharing. [Report and Recommendation, at 5] ('At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs.') (emphasis added)'"
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Entertainment: RIAA Admits 70 Cent Price is 'In the Range' 210 comments
NewYorkCountryLawyer writes "In its professed battle to protect the 'confidentiality' of its 70-cents-per-download wholesale price, the RIAA has now publicly filed papers in UMG v. Lindor in which it admits that the 70-cents-per-download price claimed by the defendant is 'in the range'.(pdf) From the article: 'The pricing data really may not be all that secret. Late in 2005, former New York Attorney General (and current Governor) Eliot Spitzer launched an investigation into price fixing by the record labels, alleging collusion between the major labels in their dealings with the online music industry. Gabriel believes that making the pricing information public would 'implicate [sic] very real antitrust concerns' as the labels are not supposed to share contract information with one another ... Beckerman argues in a letter to the judge that the only reason the labels want to keep this information confidential is to 'serve their strategic objectives for other cases,' which he says does not rise to the legal threshold necessary for a protective order. The proposed order would force the labels to turn over contracts with their 12 largest customers. Most details--such as the identities of the parties--would be kept confidential, but pricing information and volume would not.'"
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Makes sense... (Score:5, Insightful)
Re: (Score:3, Informative)
Re:Makes sense... (Score:5, Interesting)
In question is 17 USC 106(3):
"to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;"
One downloading could actually OWN the work they are downloading. Is that infringing? I doubt you could sell that to a jury...notice that all of these include a monatery exchange.
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Re:Makes sense... (Score:5, Insightful)
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Re:Makes sense... (Score:5, Insightful)
Seriously though, that's a weak argument. When one person is distributing thousands of well known songs and hundreds of high dollar movies, you can be fairly confident that the distribution is illegal.
That said, I think it's a weak case to go after downloaders instead of distributors. The only way to have evidence that they're downloading something (prior to searching their computer) is if they're downloading it from you, and if you actually own the copyright to that item, I'm not sure you can distribute it illegally.
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Re:Makes sense... (Score:5, Insightful)
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Re:Makes sense... (Score:5, Insightful)
Anyways, downloading is basically impossible to get sued over. If you're downloading off some random guy on the Internet, how's the **AA going to know, and if you're downloading off one of their bot machines it was completely legal because they own the copyright and put it up for free download. (as an aside, I came to this conclusion once before when they were polluting KaZaA and the like with damaged files and I decided to download 5-6 damaged versions and put them together in to one good version. It only worked with certain songs and was more work than it's worth, but technically it would have been legal.)
Sharing is the only way you'll face legal trouble now and in the foreseeable future.
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Lacking weight (Score:3, Insightful)
Re:Lacking weight (Score:5, Interesting)
I think it's actually quite significant.
I'm not aware of another decision, among the 25,000 or so cases that have been brought so far, where the Court has (a) laid out the standard of proof the RIAA will have to meet at trial, or (b) made it clear that the RIAA's theory -- that merely having a shared files folder is in and of itself a "distribution" -- won't cut it at trial.
If you or any other reader is aware of any such decision, please bring it to my attention. Thanks.
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I'm confused... (Score:3, Insightful)
Re:I'm confused... (Score:5, Informative)
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Re: (Score:3, Informative)
If you want to go back further, read the motion papers for the preclusion motion in UMG v. Lindor [riaalawsuits.us].
Could it be! An intelligent Judge! (Score:4, Insightful)
Tiny steps. Maybe next year we can get a judge who recognizes that the RIAA "settlements" are pure extortion and the entire calculation for how much financial damage was caused by sharing a file is pure bollocks. Eventually one who realizes that an IP address!=identity and they shouldn't be allowed to just ask ISPs for IP address and get any kind of information at all. And that it shouldn't be a crime to punch the RIAA layers and moguls in the face... one can dream.
Re:Could it be! An intelligent Judge! (Score:4, Funny)
Well, not really, but you never know...
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In it for the money (Score:5, Interesting)
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Re:In it for the money (Score:4, Insightful)
The RIAA's goal in these suits is to stop copyright infringement by making an example out of people. A couple of million dollar judgements isn't likely to be more effective than dozens of multi-thousand dollar settlements, and it's going to cost a hell of a lot more.
Furthermore, there's always the chance that they'd lose. A loss would be devestating, because they would start seeing more and more people fighting the allegations, which they don't want.
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Shared Folders do not equal P2P (Score:3, Insightful)
Oohhhhkay then (Score:4, Insightful)
Ms. Lindor complained that the Report could be read to imply that 'the mere presence of a shared files folder on an individual's computer would
Seriously , do you really think that 95% of the readers are going to know off the top of their heads what 17 USC 106(3) is? I like playing armchair laywer, so I bothered to find out, but that headline made my eyes bleed. I suspect I would have started channeling Lewis Black if I hadn't posted this.
Re:Oohhhhkay then (Score:5, Interesting)
I have a lot of pressure on me from a lot of directions.
One source is the RIAA, which has been scouring my internet writings and keeps trying to discredit me with the Judge. Just the other day, when I wrote to the Judge to submit the decision of the District Court of Utrecht in the Netherlands, and the independent expert report upon which it was partially based, they tried to "strike" my submission, and in support of their motion to "strike" sent the judge a page from my blog. It's all here [blogspot.com].
Mainly, I've come to this decision: I'm under so much time pressure, I have to concentrate on what is the most important contribution I can make, and leave the rest to others. The most important contribution I can make is get accurate news and information out there. So I try to concentrate on that and let the rest of the world take care of the rest. Excellent commentators such as p2pnet.net, Ars Technica, TechDirt, Digital Music Web Log, Boing Boing, and others, can often make it more understandable. I got a laugh when Grant Robertson of Digital Music Weblog wrote that my article "How the RIAA Litigation Process Works" read like dry toast, and wrote his own version of it designed for non-lawyers.
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Re: (Score:3, Informative)
This seems a bit mixed up. First, having a shared folder does _not_ mean "intent to share". Even if it means "intent to share", it doesn't mean that a
Re:Intent to share ? (Score:4, Insightful)
Well, there are different kinds of crime. If you plan to steal my wallet, and a police officer knows about it, he can wait until you take my wallet and arrest you afterwards. If you plan to kill me, and a police officer knows about it, he cannot wait until you kill me; he has to stop you before you do it or even try to do it. Therefore there is a good reason to make it a crime to plan or attempt to kill someone; there is much less reason to make it a crime planning to steal my wallet.
Also: Not knowing that sharing copyrighted files is a a copyright infringement is not an excuse.
Not knowing that files you shared were copyrighted is some amount of excuse (if I give you some music, claiming that it is in the public domain, you share it, and it turns out that I lied to you, that is an excuse for you).
Not knowing that you are sharing files _is_ an excuse (unless you should have known).
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Re: (Score:3, Interesting)
I know it's different, but i think the choice to not make it illegal to "just show intent" is a good one anyways.
If they find someone with "intent to share", they have reasons enough to observe and get an actual case, in which the ones shares, if he does. Or find out if he tries to.
If the police gets to know that i intend to murder, they try to stop me before I do, and can get me in front of law for this. But they can't get me in front of law because of murder
Re:English please??? (Score:5, Informative)
We complained that Magistrate's report implied that merely have a shared files folder on the internet would be a copyright infringement.
Judge said "no, it doesn't say that, it means that the RIAA will have to prove that defendant actually did share files".
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Re: (Score:3, Interesting)
Except... the other judge did not say that. The guy in question wasn't just "linking to" someone else's content... he was embedding someone else's copyrighted videos in his own site, making it look like it was his material, while still burning up the other guy's bandwidth. It was classic leeching, and he was making ad money off of doing it.
Re:I'm so confused (Score:4, Funny)
Hmmm... perhaps I should make a new name "TerribleAnalogyGuy"
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