Boston University Student Challenges RIAA

NewYorkCountryLawyer writes "A Boston University student identified only as one of the 21 'John Does' in Arista v. Does 1-21 has challenged the RIAA's alleged right to get his or her identity from the school, bringing a motion to vacate the ex parte discovery order obtained by the RIAA, and to quash the subpoena served on the university. John Doe's court papers (PDF) argue, among other things, that the RIAA's papers are 'based on a flawed theory that having copyrighted music files on an individual's computer or on an assigned folder on Boston University's server is a "distribution" of such copyrighted music files, where such folder is merely accessible by others.'"

A few questions...

I just have a few questions which probably are irrelevant to all this but, what happens if you have 4 or 5 people split the cost of a few albums equally and then listen to the music between themselves on a folder available over a network connection... is this breaking the law? If that so when does it become legal? Would they have to be living with each other for example having music available to other family members over a network in the home? Or am I not even supposed to be doing that?

Re:A few questions...

If the RIAA had their way, this would be illegal. In fact, if the RIAA really had their way, you'd be paying each time you listened to your CD...

Security hacking and online storage

This could lead to some interesting complications when dealing with online storage.

For example, if a person has music online and believes that it is secured, would they be liable if someone breaks in and makes it available to others? I could see instances where this other person breaks in, makes the music available and then reports to the RIAA after a number of downloads are done.

Now some people would say that security is your responsibility, but how do you handle environments where someone else is providing a service and you don't control everything?

I wish they would sue those boom box cars

who are illegally distributing music to me through the solid walls of my friend's house from three blocks over.

Sometimes they distribute music to her from 5:30am to 2am.

One more analogy...

If one more person posts an analogy involving a CD left on a table in a public place, I will club this baby seal to death.

The "making available" issue

The best place to learn about the RIAA's "making available" theory, and the arguments pro and con, is the case file in Elektra v. Barker [blogspot.com]. Be sure to read the transcript, in which the Judge skeptically questions the RIAA lawyer about it.

Re:his argument seems flawed

If i leave my car outside unlocked are you free to take it? Of course this is different because data can be duplicated, but just because something is there doesn't mean it has to be taken.

Re:his argument seems flawed

I think a better analogy would be: If you had a case of beer in your unlocked car and some kids opened the door and took it, would you be liable for distributing alcohol to minors? I don't know the law in this case (NAL), but it seems stupid to charge the person who bought the beer in this case. Unless, of course, they can prove that he got out of his car, looked over at a bunch of kids, and said, "Gosh, I sure hope nobody takes any of this beer out of my unlocked car, wink wink" then walked away

Re:his argument seems flawed

Actually, to be exact- you left a Flash Card of some sort on the front seat of an unlocked car. You come back, the Flash Card is still there. Somebody else copied it in the mean time, but you haven't lost anything- you still have the data on your flash card. Was it your fault that the data was copied?

Re:his argument seems flawed

I think it's going to come down to how the publicly accessible folders are generally used. If they're usually used for storage and the student never advertised the music, then they'll have a good chance of the case being dismissed on the grounds of no intent. However, if the folders are generally used for sharing music and there's a culture of everyone browsing and copying from everyone else's folders, then I would imagine the judge would find intent based on the music being in the folder.

Re:his argument seems flawed

how is that different that leaving a CD physically out in the open? someone else is able to grab it and copy it. would that make me liable for leaving it there?

Re:his argument seems flawed

Essentially, as I read it he's arguing for no criminal liability for illegal redistribution due to having no intent to distribute. Yet he admits to having placed copyrighted works in public folders on a public university system, which allowed others to copy his work. Further, he must have had the ability to set filesystem permissions to intentionally prevent redistribution. I think he's liable. If they can't prove criminal misconduct, at the least by his own admission they can prove civil negligence.

This argument would damn every soccer-mom and burger-flipper who plugs a home computer into their cable modem without remembering to set up a firewall. I think that, reading the citations in the motion, they make a good point -- copyright infringement, they argue, requires both intent and commercial gain, not to mention actual infringement (which nobody has proven even happened).

Though I've grown weary of all the crazy analogies flung around on Slashdot of late, I feel the need to provide one of my own: You're sitting in a university library with your laptop, and the guy across the table from you gets up to search the stacks for something, leaving his folder of music CDs on the table. You grab one, stick it in your laptop, and in a couple minutes have ripped a perfect digital copy of it, before the guy even returns. Is he then criminally liable for having permitted you to infringe the copyright of that CD, because he didn't lock up the discs or take them with him? Or, worse, if you have the ability to do exactly what I just described, but don't take advantage of it, is he still liable just for having provided the opportunity for infringement?

BTW, I'm not sure this motion is on the behalf of a single defendant, but all of them (it's listed as representing Does 1-21).

A better analogy...

A better analogy would be to say he has some music files, and he puts it on a shared folder somewhere.... oh wait...

But seriously *WTF* is with all the analogies. The original concept is not that hard to completely understand. If he put it in his home directory, and the default permissions were open (i.e. umask being set stupidly), then I would say he has an argument. However, if he had to explicitly change permissions on it, or put it in something analagous to a 'public_html', intent to distribute can be argued. If you put a big sign on your drive saying 'I put music on here, feel free to copy it', it's obvious you are inviting the activity.

Re:his argument seems flawed

I must apologize, I had modded to +1 Interesting but after reading the PDF itself I think I'll reply to your comment instead.

What he is arguing is, at least as I see it: "Just because I left it in a public place does not mean anyone actually copied it. You have not claimed anyone but your agent has copied it, you have not claimed that I invited anyone to copy it, you have not claimed that I was aware anyone has copied it, nor that I as even aware they they could be copied." (Emphasis mine, the original word was "alleged")

...but they filed for a subpoena anyway. In short, it seems the RIAA hasn't even accused anyone of wrongdoing before asking for their personal information. All they saw was "Hey, this kid has music files that I can download" and went at him. THAT is the basis upon which the subpoena is being challanged.

A possibly poor analogy: I leave a CD on a table in a public place (a public park, say), for whatever reason. An RIAA agent comes by, sees the CD, and noticed he can pick it up. They then subpoena the town/city for all records of who was in the park that day, sitting at that particular table, because someone was "distributing" music illegally.

The kicker is, he cites supporting law verbage and other court cases where this situation was determined to not be copyright infringement.

IANAL though. Grain of salt for ya...
=Smidge=

Re:*Ding*

I don't distinctly remember which one it was, but I remember reading it.

Apparently a judge (most likely federal) told them that they *must* sue individuals and not large groups of people, unless those people were all involved in the alleged lawbreaking as a whole unit (ie. conspiracy) or a single occurance. Basically the judge told them they couldn't do this just because it was convenient for them. What it amounts to is that a single case with 21 "John Doe" persons = 1 filing fee (read; less money). But since each person's alleged infringement has no relation to the other's, they are *supposed* to file 21 separate cases (read: significantly more money).

Also, by doing it this way, it costs more money for the court to send out the proper notices to the participants. Money that they aren't getting from the RIAA.
*Money that we pay in our taxes.*

Re:*Ding*

I don't distinctly remember which one it was, but I remember reading it. Apparently a judge (most likely federal) told them that they *must* sue individuals and not large groups of people, unless those people were all involved in the alleged lawbreaking as a whole unit (ie. conspiracy) or a single occurance. Basically the judge told them they couldn't do this just because it was convenient for them. What it amounts to is that a single case with 21 "John Doe" persons = 1 filing fee (read; less money). But since each person's alleged infringement has no relation to the other's, they are *supposed* to file 21 separate cases (read: significantly more money). Also, by doing it this way, it costs more money for the court to send out the proper notices to the participants. Money that they aren't getting from the RIAA. *Money that we pay in our taxes.*

You are right, dotHectate. There have been a number of such holdings but the leading one is Fonovisa v. Does 1-41 [blogspot.com]

Re:*Ding*

It was a federal court ruling by Judge Newcomer, in the Eastern District of Pennsylvania, but that is not what this motion is about. In this case, the RIAA is requesting that Boston University reveal the identities of 21 John Does. The defendants have responded saying that the RIAA cannot go on a fishing expedition for their identities without having proof that the 21 individuals have done something wrong.

Re:*Ding*

I have no idea where you got that quote from, but whoever wrote it is referring to Fonovisa v. Does 1-41 [blogspot.com], where the RIAA was ordered, in 2004, to cease and desist from the illegal practice of joining multiple John Does for its own convenience in a single case. The RIAA has been ignoring that order ever since. This Boston case is yet another example of the RIAA ignoring the Fonovisa v. Does order.

Easy fix, dude.

Click on "Preferences" in the menubar just below the /. logo. Then click on "Homepage" on the next menubar. Scroll down to "Customize Stories on the Homepage" and change the radio button next to "Your Rights Online" (last option in the list) to the big red no sign.

Re:I say...

I think that your comparison is fallacious. A more apt comparison would be if I made a set of CD's with music that I own, ripped to MP3 for my use and then burned to a CD. I then take a stack of those CD's and place them in my truck, tucked into the CD holder I have strapped to the visor. Then, when I park my car, I leave the window rolled down.

Now, the comparison to the RIAA's case is -- a police officer walks up to my truck, reaches in and takes the disks out of the visor.

And then he arrests me.

And *I* get charged with a crime.

If that's the legal definition of distributing copyrighted materials, then we have a much bigger problem with our legal system then just the RIAA.

Re:I say...

Let's try a different take:

I make some modifications to my copy of Linux. I leave a copy of the compiled version in a directory that's accessible to anybody on the internet who knows where to look. When someone demands the source code, I tell him to go to hell because I'm not distributing anything. Can I get sued for violating the GPL?

Re:I say...

Book publishers seem to be kicking themselves for not organizing into crime syndicates like the RIAA and MPAA, otherwise libraries WOULD be illegal.

Re:I say...

It boils down to these questions:

1) Is it illegal to borrow a legally published version of copyrighted material?
2) Is it illegal to copy borrowed material?
2b) If 2 is true, who is at fault when material is copied, the copier or the lender?

Given libraries are legal, 1 is a definite "no". 2, I think, is most likely illegal. The key question here is 2b.

I can't see any viable way the vendor/lender can be held responsible for items sold/lent being used illegally. With the possible exception of regulated/dangerous items such as guns or other weapons, it's not criminal for a store to sell someone a hammer without making them sign a statement claiming they won't use it for illegal purposes. It's not the store's fault some nut bought pencils and started killing people with them.

Similarly, if it is legal to "borrow" music but not copy it is not the student's fault the files were copied. The other users could simply have listened to the music files from the shared folder without copying them, and thus "borrowed" them. That they weren't content to simply "borrow" the music isn't the fault of the student who opened his music collection to the public.

That's how I see it anyway.

Of course, he might not be distributing it

But what if his intent was only to give himself access to his data from any location on campus?

In that case, it is not distribution. It is giving himself location free and operating system unlimited access to his purchased content.

If possession is 9/10ths of the law, then my receipt says I can do whatever I want with my legally purchased content so long as I don't produce copies for financial gain.

There is law against selling copies of content without access to copyrights. There is law against copying content without access to copyrights. There is no law against making one's legally purchased content accessible to oneself (unless you break encryption in the process).

Re:Of course, he might not be distributing it

agreed. it depends on the degree of willful or negligent behavior. Leaving a case of beer on my front porch is, perhaps, enticing minors, leaving it on my back porch is probably not. We can't hold everyone responsible for data security but perhaps expecting them to know what a public folder is possibly like knowing the difference between the frontyard and the backyard.