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Judge — "Making Available" Is Stealing Music
Posted by
kdawson
on Mon Aug 27, 2007 09:23 PM
from the if-i-can-hack-into-your-computer-are-you-liable dept.
from the if-i-can-hack-into-your-computer-are-you-liable dept.
JonathanF writes "If you were hoping judges would see reason and realize that just using a program that could violate copyright law is about as illegal as leaving your back door unlocked, think again. An Arizona district judge has ruled that a couple who hosted files in KaZaA is liable for over $40K in damages just because they 'made available' songs that could have been pirated by someone, somewhere. There's legal precedent, but how long do we have before the BitTorrent crew is sued?" The New York case testing the same theory is still pending.
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RIAA's "Making Available" Theory Is Tested 222 comments
NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."
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I see (Score:5, Insightful)
Ok, there's their mistake, they didn't hire a lawyer. Three paragraphs? That's just crazy.
Hopefully they'll hire one before the time to appeal expires.
Re:I see (Score:5, Insightful)
So judges in this country can't reason if I don't hire a $200/hr lawyer? What if I've got 5 kids to feed and don't have money for a lawyer? That means everything the other side says is true regardless of whether or not they proved it?
Re:I see (Score:4, Insightful)
Re:I see (Score:4, Informative)
Re:I see (Score:5, Insightful)
Judges are supposed to be neutral and judge. If you can put together a coherent defense, the judge should listen. But if you don't, it's not the judge's job to be defense lawyer. Perhaps it should be easier to get free legal representation, but to keep that clear separation between your team, their team and the referee is vital.
Re:He who has the gold rules (Score:5, Insightful)
Re:He who has the gold rules (Score:4, Insightful)
and I got it for a song ... (Score:5, Interesting)
Ah, but there's already an infinite supply of canned music [archive.org]. Those 42,000 concerts listened to one a day would take 115 years. If you include the other music and movies there, you could spend every waking moment of the rest of your life and not hear and see it all.
The value is not in the can. It's beautiful and it takes real skill to make and can it, but the value is in the sharing. Going to a concert is fun, and it's profitable for the musician. Sharing what's in the can with your friends is fun. Making your own is even more fun. When you get over the music and movie industry hype, what you realize is that a song and dance can be both priceless and worthless at the same time.
This kind of lawsuit has got to be the most disgusting abuse possible for music. A $40,000 judgment for making a song available. How do the lawyers sleep at night knowing that their victims have just had their life savings wiped out? Will the judge go help them move out of their home when the bank comes to take it? How can they feel justified? Fuck the industry by never giving it another cent for entertainment they don't know how to enjoy themselves. Discover and support real artists instead.
Re:and I got it for a song ... (Score:5, Insightful)
Easy to avoid? People have been pointing out that we are rapidly approaching the day when, if you walk down a sidewalk whistling a tune, you'll be arrested and charged with unlicensed performance of a copyrighted work of music.
Fact is that the only practical way to avoid this now is to never say or do anything at all in public (which includes on the Internet). I've tested this a few times by asking a simple question: Suppose I have a tune in my head, and I'd like to discover whether it's something I "composed" myself or is a tune whose copyright is owned by someone. How do I do this?
I have asked reps of a couple of music publishers. Their answer, apparently said with a straight face as far as I can tell, is that I should buy a copy of everything they've published and search through it all. Of course, this only works with that one publisher; to actually answer the question, I'd have to buy a copy of every work of music ever published by anyone and search them all.
There is something of a shortcut. Here in the US, the Library of Congress (LoC) has copies of most of what has been published in the country. I could go to Washington and spend a few years searching through their archives. Then I could do the same in all other countries. This would only take a few lifetimes, not the thousands of lifetimes that the "buy and search everything" approach would take. But still, there's a certain limited practicality here.
Fact is, the only way I can determine in my lifetime whether that tune in my head is copyrighted is to publicly perform it, preferably in a recording, and wait to see whether anyone sues me.
Actually, there is a less reliable but more practical way that a number of musicians have been using: Put a copy online (either as music notation or a recording), accompanied by a note saying that you haven't determined whether it's copyrighted, and if anyone knows who owns the tune, send a message to <email-addr>. This isn't guaranteed to protect you, because the owner might be a bastard who will sue you for even this transgression.
And it still has the problem that, in practice, you get mostly copyright claims that turn out to be bogus. Publishers regularly claim copyright on music that's centuries old. If you can show this, they'll slink of to look for another victim. And sometimes this happens, because what happens is that someone sees your note and sends a message saying "That was published by So-And-So in London in 1793 as <title> in <book>." If you know this, you can use it as a weapon against the publisher.
But it's all very unreliable, and depends on the good will (or reasonable lawyers) of corporations, in addition to help from other musicians who stumble across your stuff. In general, there's no way to know that a random public utterance or idly whistling a tune won't be a copyright violation. The only really safe strategy is to be utterly silent in public. On the Internet, this includes learning enough about your computer's innards to guarantee that it isn't exposing any file to outsiders.
Re:and I got it for a song ... (Score:5, Insightful)
Really? You REALLY think that most Windows users know what P2P systems are, have installed the client, and have accidentally put music that they've purchased into the file structure on their machine that "shares" that music with a couple million of their best-friends-for-life-that-they've-never-met?
No, I'd say that a minority of Windows users - of computer users in general - make a habit of grabbing up infringing copies of other people's work, and then place it in a bucket that a has-to-be-installed-to-work piece of software that in turn exposes it to the ranks of other to-cheap-to-pay-for-entertainment users. It's not like this stuff happens by default through the C$ share over the user's WAN connection. It requires action, and usually a weird (though, lamentably, more and more common) sense of entitlement, and usually some very small voice in the back of the head that says, "you're gambling against being caught, here, but - OMG! - I got that new Avril CD without having to pay for it!"
People who install P2P clients to download Linux distros or game patches can't complain about this either: that ISO image of some album they're making available through the same interface didn't get there by accident.
There are also plenty of people out there that are stupid enough to "make available" without even realizing it.
Yes, it's a shame that so many people who DO know better have polluted the landscape on this issue, somehow contributing to a loss of clarity on the central notion: that artists who choose to sell their work are not, actually, very happy when you rip off a copy. You can't seriously tell me that you think that MOST low-tech users who end up with a P2P client full of downloaded, copyrighted music they didn't pay for (and offering back up a folder full of copyrighted music) really think that their ISP's monthly bill somehow grants them unlimied Gwen Stefani recordings or the entire 2006 works of the NSO or all of the movies that they used to have to pay NetFlix to see, but which now, miraculously, they get for free from their best friends in... Russia? Belgium? The script kiddie next door? People DO know better. The thing they don't yet seem to understand is how much of a trail they leave behind them as they look for ways to avoid spending a flippin' DOLLAR for a song to listen to while drinking their $3 latte, or while jogging in their $200 shoes.
Bittorrent is not a p2p file sharing program. (Score:5, Insightful)
that's all
Re: (Score:3, Insightful)
Re:Bittorrent is not a p2p file sharing program. (Score:5, Informative)
copyright infringers get sued != BitTorrent is an illegal technology
Re:Bittorrent is not a p2p file sharing program. (Score:5, Insightful)
copyright infringers get sued != BitTorrent is an illegal technology
My point, however, was that although your logic is flawless, they don't act on logic. They act on a series of baby steps towards a goal: Pay per listen.
Re:Bittorrent is not a p2p file sharing program. (Score:5, Insightful)
When you buy a new CD, you are putting money into the pockets of
the RIAA. When you buy a used CD, you put your money into the
pocket of whoever last bought the CD, and the RIAA doesn't get
a penny.
Geek Speak < Criminal Definition (Score:3, Interesting)
Legal Precendent: If one is caught with a small ammount of an illegal substance, they can be charged and convicted of de
Re:Geek Speak Criminal Definition (Score:5, Informative)
If you are caught possessing over a certain amount, it can create a statutory presumption (depending on the applicable law) of intent to distribute. A presumption means that this is something that, absent evidence to the contrary (generally a clear-and-convincing standard, or perhaps preponderance. Again, it depends on the law), the State does not have to affirmatively prove. For instance, let's say that possession of Sprite is criminalized, and possession of over a six-pack of Sprite creates a presumption of intent to distribute. You get caught with a case. If you can show, through evidence, that you intended to consume all of the Sprite yourself, you'd have rebutted that presumption.
You're not "automatically guilty" of anything. The reason why this is so that possession of a large amount of a substance is itself evidence of an intent to distribute. It may not always be the case, but the Legislatures have deemed that it is often enough the case that intent ought to be presumed unless you can show otherwise. This doesn't violate due process because intent is only one element of the crime, and the State must still prove the other elements beyond a reasonable doubt.
Re:Geek Speak Criminal Definition (Score:5, Funny)
Right now I'm wearing a red shirt.
Let's say I murdered someone tonight and all the witnesses thought I was wearing a blue shirt. If I was convicted, then my shirt is now blue from a legal standpoint. This is despite the fact that is is really a red shirt. Legally, it's blue. Logic and sanity are not necessarily used when determining the finer points of the law.
This is the same shirt I was wearing when I asked my law professor about this question. (I might have been wearing the blue one. It was the one mandatory law class, three years ago.)
What this means is that if you are convicted of using BitTorrent to transfer mp3s over your modems, then the protocol is a program, the T1 is a modem, and you're doing more time than a bank robber.
IANAL. YMMV. CYLDFD. WDTAM?
Re:Geek Speak Criminal Definition (Score:4, Funny)
That's not the point being made. Crazy Law Ahead! (Score:4, Insightful)
Let's worry about the actual point being made:
To see how retarded this is, take this "making available" nonsense a few steps down the slippery slope to DRM hell, where sharing is a crime:
Citizen, have you been sharing your password access? Do you have the right to read [gnu.org] anymore?
Copyright is supposed to encourage publication for the benefit of the public domain. It is supposed to be a temporary exclusive right to publish. People violating that exclusivity could be told to stop and sued in civil court by the rights holder. Punishing people who are actually performing copyright's original function, without actual proof of damages is little more than coporate welfare. Don't think for an instant that you will be protected in the same manner if some big dumb company takes your text, images or recordings and sells them. A $40,000 judgment is sure ruin to most people, but less than a slap on the wrist to the companies pushing these crazy cases.
If we give this kind of power to publishers, every education will create a life time's worth of debt for little more than access to textbooks. Imagine music industry methods applied to all human knowledge. As Newton understood, every person's contribution to human knowledge is dwarfed by the accumulated store. What you have will be held cheap and you will have to work very hard to get what you need.
Re:That's not the point being made. Crazy Law Ahea (Score:4, Informative)
I don't know where you live, but where I do, until the children are of age (18 in france), their parents are legally responsible for their acts. So yes, they are liable.
Bizarre... (Score:5, Funny)
Is that like being too fugly to get laid, getting busted for prostitution?
Re:Bizarre... (Score:4, Funny)
To rain on your parade... (Score:5, Insightful)
Regardless, the article submitting shouldn't be so quick to dismiss a judge's ruling as foobar just because he doesn't like the outcome. I actually agree with the judge's decision, despite my strong disdain for the RIAA/MPAA and its friends.
And it damn well should be. (Score:4, Insightful)
The 'leaving your back door open' analogy is not a good one. A better analogy is buying a book, scanning it, and posting it on a web page. In fact, it's EXACTLY the same thing, only with a different protocol.
Re: (Score:3, Insightful)
Yeah - like all those photocopiers in the public library - sue those assholes man! What do they think they are
Back in my day... (Score:4, Funny)
Re:And it damn well should be. (Score:5, Interesting)
Ripping a CD or similar for backup or using in a different format, I would also consider fair use (note: I'm a musician and I do earn royalties). I would expect to be allowed to do the same; as a teen I often stayed up late waiting for good reception from Vancouver radio stations (I grew up in northern B.C.) so that I could tape songs and listen to them on my Walkman. I don't think anybody really would have begrudged me that, and I wouldn't consider that any different from putting an old tape on CD so I could listen to it that way. These days, why should ripping a CD to play on a solid state digital player--portable or PC--be any different?
So that's OK then. IMHO and IANAL, of course.
Now, I've got my encoded, digital, and supposedly perfect copy on my drive. The next step is: where do I keep it? To my way of thinking, if I put it in a private, non-shared location, that should be fine. But if I put it in a directory which I know to be shared or accessible to the public--no matter the protocol--then I would say that I have made a conscious decision to distribute it. Whether I charge for this or not is irrelevant; I still know that others will now be able to make use of the content. That is obviously no longer fair use, unless it's a snippet or excerpt for use in a critical review or essay of some kind.
Note that I wouldn't object to someone doing this with any work from which I receive royalties; I would prefer that people hear the music. But then, I make my living programming; my music royalty cheques suffice to maybe get my wife and me a night on the town once every few months (or more recently, they pay for a few packs of diapers and some stain remover).
That all said, I think this judgement is horse shit. Having Kazaa or any other p2p sharing software installed doesn't imply intent to distribute, and AFAIK there is no real way to say that it was or was not set up for sharing. The only evidence to this that I see in TFA is the defendant's statement that it was not. I'm willing to buy that; I have often used eDonkey2000, limewire, bittorrent, and a bunch of others over the years, but I have never shared anything I knew to be protected. And of course I think it's ridiculous to think that mere possession of a tool indicates the intent to use it in the worst way. I own a truck; I do not run over people. I have owned rifles and shotguns; never once did I even point one at a human. I have an axe and a machete, but they are for wood-splitting and brush-clearing, respectively. They are tools. Kazaa is a tool. Owning it does not mean anything in itself.
So: rip your music. Play it on different devices. Make mix CDs for friends. But if you put it up for everybody to download then as far as I can tell you're in the wrong. And the RIAA still needs to be "dipped in Gravy Train and thrown to a crazed pack of poodles" (Berke Breathed wrote that; I don't think he'll sue me).
Torben
Re:And it damn well should be. (Score:4, Insightful)
One of my soulseek folders reads (Score:5, Insightful)
The folder that I download tracks to is named paying_canadian_recordable_media_levies_lets_me_d
Re:One of my soulseek folders reads (Score:4, Insightful)
I always figured people who steal music should use stolen media on which to store it. Only seems right.
Comparing physical stuff with virtual stuff is stupid. It doesn't work. At all.
Also, mv is not cp. Even you know the difference.
There are some valid arguments against file sharing but equaling stealing physical things with copying virtual things only make you look unintelligent.
US Intellectual Property laws (Score:3, Interesting)
Unless there are major changes in US leadership soon, and there won't be, living in the US has very undesirable prospects in my opinion. Geeks are a minority and Geek opinions are not going to be respected. IP laws or not, this can only end badly. Maybe its time we start asking the 'if not the USA, where?' again and seriously start looking for other countries to live in.
Now I know what you are going to say, 'but why can't we vote people into office to change the rules?' Well, theoretically we could. but Geeks are such a small minority compared to the hordes of 'values voters' out there, any issue you voice out on will be drowned out.
So that begs the question, what are the best Geek friendly countries?
Re:US Intellectual Property laws (Score:5, Informative)
Actually, the United States Code has had provisions for criminal copyright infringement since at least 1982. It's not really anything new. Think back to when you first rented a VHS movie, and the FBI warning came up . . . the find and imprisonment mentioned therein were the penalties for criminal copyright infringement.
While I understand the difference between intellectual property and personal property (especially as it relates to the term theft), intellectual property right holders do suffer losses from the unrestricted copying of their property. Generally, in this country, when a person's rights are being violated they have two options: go to the police or go to court. It's not uncommon for there to be both civil and criminal penalties to protect an individual's rights. For example, if you steal my car, you can be prosecuted for theft. I can also sue you for conversion (and in some states, civil theft). The criminal prosecution is brought in the name of the People and is meant to extract justice for society. The civil suit is meant to compensate me for my losses.
Criminal copyright infringement (as opposed to a civil suit) is meant to serve the same purpose: justice for society.
--AC
Re:US Intellectual Property laws (Score:5, Interesting)
1897, IIRC. But not all copyright infringement is criminal.
Nevertheless, I don't think that it should be criminalized. The societal harm of infringement is too minor -- after all, it merely reduces the benefit to society of copyright because the author in question isn't getting enough compensation to incentivize him. The civil remedies revolve around compensation, however, solving that issue, while the criminal penalties don't restore the social benefits at all. Nor do the penalties for infringement seem to have any effect as a deterrent. And I sincerely doubt that society gains any sort of value out of retribution for copyright infringement.
Patent infringement is not criminal. Trademark infringement traditionally has not been, and that only recently changed, and is likely a bad idea in most cases (I could see it if someone was proximately harmed by it, but it's hard to see how existing criminal statutes wouldn't already apply adequately). Why should copyright be special?
Re:US Intellectual Property laws (Score:5, Insightful)
In the USA, your options for leadership are
1. The We'll Say And Do Anything To Acquire And Retain Power Party (1), backed by the Oil Industry - currently in power
2. The We'll Say And Do Anything To Acquire And Retain Power Party (2). backed by the Media Industry
Good luck with that.
Re:US Intellectual Property laws (Score:5, Insightful)
1. The We'll Say And Do Anything To Acquire And Retain Power Party (1), backed by the Oil and Media industries
2. The We'll Say And Do Anything To Acquire And Retain Power Party (2). backed by the Oil and Media industries
Very different (Score:4, Interesting)
Also, for a community of people that goes to great pains to point out the difference between "stealing" music and breaking copyright law, the headline of this article doesn't do us much good. Come to think of it, that's quite a sarcastic and vitriolic summary - and seeing as this story doesn't bring anything new to the table with respect to the whole file-sharing issue, why is this even news?
I know, I know, I must be new here!
Minimal precedential value (Score:5, Informative)
The precedential value of this case is very low. It's a single ruling by a trial judge. In all likelihood, the actual opinion won't even be published.
Now, if these folks decide to appeal this ruling, and the relevant Court of Appeals decides to affirm, then there's a real precedent you've got to worry about.
--AC
*I Am A Lawyer, But Not Your Lawyer
Re:Minimal precedential value (Score:5, Informative)
--AC
Re:Minimal precedential value (Score:4, Informative)
2. The second Napster decision to which you refer specifically held that making available is not distribution.
3. The Hotaling case specifically noted that normally there can't be distribution without actual dissemination of copies. It then carved out an exception because the defendant was a library which kept no circulation records therefore making it impossible to find out if there had been dissemination of the concededly unauthorized copies which the defendant had scattered throughout its library branches.
Let them Fry! (Score:5, Insightful)
Are they just idiots? There is no excuse here. They knew what their software was doing and if they didn't know they should not have been using it.
Don't like copyrights?
Only by completely ignoring the industry will they get desparate and be forced to relax the licenses they have legally chosen to apply to their property.
Is your life really so empty that you can't get by without your stolen music?
Re:Let them Fry! (Score:4, Interesting)
They didn't 'leave their back door open' to a thief ... they effectively put a table on the front lawn piled high with music with a big sign saying 'come on in, copy all you want!'. ... and they shall get what they deserve.
Isn't that what public libraries do? They have bookshelves stacked with (mostly) copyrighted books, they generally have one or more public-use Xerox machines right next to said bookshelves, and they open their doors to the public.
Legal peer-to-peer providers need to band together (Score:5, Informative)
Also many Free and Open Source software projects distribute installers via BitTorrent, notably Ubuntu Linux and OpenOffice.org.
All of these torrents are completely legal. Yet many ISPs block BitTorrent traffic - that happened to me with Eastlink back in Nova Scotia. I was therefore unable to check that my own torrents were operating properly! One can try to work around such blockage by using non-standard port numbers, but I understand that it's possible for ISPs to filter based on the content of packets, and not just the port numbers.
I can see the day coming when all peer-to-peer traffic, whether legal or not, is blocked either due to new laws or record and movie industry lawsuits. All of us who have free content and software to distribute will lose out.
Those of us who offer legal files via peer-to-peer networks - not just BitTorrent, as Jamendo also offers eMule - need to work together to lobby both national governments and local ISPs to do away with this filtering. There are many ways to download both music and software that are perfectly legal; we need to dispel the myth that free downloads are somehow necessarily violating the law.
The term 'Publish' is in need of overhaul (Score:5, Interesting)
Traditionally, publishing was something done via a newspaper, book, or some other "official" work. Duplicating Intellectual Property has long been formal and obvious. The reasons for copyright were clear, intellectual property was expensive and difficult to distribute, and overcoming the cost of distribution benefited all.
Enter the Internet. Suddenly, Intellectual Property can be distributed to anybody at any time simply by posting on a $5/month website.
I have a web server on my home DSL line with MP3s (legally obtained) that I stream via Apache on a non-standard port, that automatically closes every night. (I have to manually open the port on any day I intend to listen) I do not intend to "publish" these, simply listen to them when and where I happen to be.
But, while the port is open, I'm legally "publishing" these files, and based on this ruling, I'm liable for it. Now, I'm pretty sure the risk of my getting caught is pretty slim, but it's not zero. And the truth is, there will be more and more examples of "publish" simply because putting ANYTHING on the Internet is has always been easy, is easier than it used to be, and is getting easier every day.
At what point are you NOT publishing something? If I record a video of my wife lip-syncing to Green Day and post it on my family website, am I "publishing" their song?
There are millions of examples, and I'm sure there are plenty of bad-car analogies coming soon, but the truth remains: the rules are being changed, and we need to PAY ATTENTION!!!
Publishing (Score:5, Insightful)
It seems to me that putting files up for P2P sharing is the same as putting them on your web site which is the same as publishing. It also seems to me that both the publisher and the downloader are guilty of copyright infringement, assuming that any reasonable downloader would know that the publisher doesn't have the distribution rights.