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Making Files Available Breaking the Law? 538

lordhathor2001 writes "The RIAA has argued in one of their cases that simply "making files available for distribution" violates copyright laws. This means that regardless of the legality of a file somebody has on their computer, just putting it in a shared files folder that can be accessed by other people is illegal. Although it's asinine, it really shouldn't come as any surprise given the RIAA's legal campaign that's more about what it believes than what the law actually says."
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Making Files Available Breaking the Law?

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  • Info (Score:5, Informative)

    by mendaliv ( 898932 ) on Wednesday January 25, 2006 @09:39PM (#14563996)
    The case in question is Elektra v. Barker, and here's some of the legal docs and stuff.

    Complaint [digitalmusicnews.com]
    Exhibit A [digitalmusicnews.com]
    Exhibit B, Part 1 [digitalmusicnews.com]
    Exhibit B, Part 2 [digitalmusicnews.com]
  • by henrythehorse ( 935734 ) on Wednesday January 25, 2006 @09:54PM (#14564110)
    The post seems to imply that putting anything on the web or in a shared folder is under attack. Not so. And clearly many responders also didn't bother to RTFA.

    Putting _copyrighted_ files (for which you don't have a license to distribute) on the web or in a shared folder is under attack. The only "news" here is that they're arguing that you may have committed a crime before the first download of your pirated mp3 occurred.

    You may all hate the RIAA, but you have to admit that putting Kelly Clarkson's new single in your shared folder is different than putting your own jpg's on the web.

  • by TubeSteak ( 669689 ) on Wednesday January 25, 2006 @10:01PM (#14564158) Journal
    http://www.lifeofalawyer.com/riaa/atlantic_does1-2 5_rogersaffidavit.pdf [lifeofalawyer.com]

    Teh Google CacheL wyer.com/riaa/atlantic_does1-25_rogersaffidavit.pd f+%22making+files+available+for+distribution%22 []

    They've said this type of thing before, in public and obviously have said it in court filings.

    In Public: They aren't trying to make a nuanced argument. They just want to get the point across that sharing files = teh badness

    In Court: Fucking n00bs. That's what they get for not trying to get across a nuanced idea to the public. The lawyers end up making the same argument they see over and over in the press releases.

    I skimmed that affidavit and I wonder how that trial came out. It seems like the plaintiff (an RIAA company) filed a seriously defective lawsuit.
  • by wealthychef ( 584778 ) on Wednesday January 25, 2006 @10:03PM (#14564175)
    Did anyone read the linked-to material? They are saying that putting *copyrighted* materials in a shared folder is illegal. Not just sharing any files. I'm no defender of RIAA, but let's try to get a fact straight.

    Below is some material quoted from it, by one of the attorneys for Ms. Barker.

    Opposition Papers in Elektra v. Barker in Manhattan Argue for Expansion of Law


    In opposition papers served yesterday in Elektra v. Barker in Manhattan federal court, the RIAA has argued that merely making files "available for distribution" is in and of itself a copyright violation.

    Were the courts to accept this misguided view of copyright law, it could mean that anyone who has had a shared files folder, even for a moment, that contained copyrighted files in it, would be guilty of copyright infringement, even though the copies in the folder were legally obtained, and even though no illegal copies had ever been made of them.

  • by Michael Woodhams ( 112247 ) on Wednesday January 25, 2006 @10:05PM (#14564188) Journal
    The Digital Music News blogger, Ray Beckerman, claims to be a defence attorney in the case in which the RIAA made this argument. I'd rate this as at least a semi-credible source.
  • by TechForensics ( 944258 ) on Wednesday January 25, 2006 @10:29PM (#14564333) Homepage Journal
    I am a lawyer. I have actually read parts of the Grokster and Gonzalez opinions. Although I did not read the opinions with the same care I would have if for professional purposes, Gonzalez certainly seemed to quote Grokster as supporting the proposition that merely having files in a shared folder was sufficiently part of a scheme to distribute to be the equivalent of actual distribution. In other words, it would not be a defense in a suit by the **AA that no one downloaded a complete copy of the file from you, or indeed, that the total bytes of the file uploaded were less than the total bytes in one copy of the file. Five shared songs may equal five times $750. (min.) in damages even if no one downloaded a byte. I'm quite concerned this will be how Grokster is interpreted in the future.
    I do think we need legislative relief for the tens of thousands of little guys victimized by the double-A's.
  • by cpt kangarooski ( 3773 ) on Wednesday January 25, 2006 @10:30PM (#14564344) Homepage
    Most of the posters here so far have been flying off the handle over nothing.

    One of the links in the story post tells us [digitalmusicnews.com] that the cases is Elektra v. Barker. While we don't yet seem to have the argument referenced there in front of us, we do have the original complaint from about mid-2005, here [digitalmusicnews.com], thanks to one of the few people that's posted here whilst keeping there wits about them.

    Basically RIAA is merely saying that Barker ran Kazaa, and was sharing some music with it. They're suing her for having done so.

    Copyright does include an exclusive right of distribution (17 USC 106(3)) which has frequently been held to cover serving files. And just to preempt some people who will surely latch on to that, note that there are many different rights within copyright, and this is but one of them. Making copies of files, which necessarily happens when you download, is also covered under copyright, and can be infringing as well.

    Obviously the RIAA is not saying -- as many people here assume -- that putting any file on a server is illegal. That's beyond even them. What they are saying is that where the files are copyrighted, and the copyright holder hasn't authorized it, and there's no applicable exception in copyright that would permit it, then it's illegal. Certainly as a civil offense, and possibly also as a criminal offense. (Compare 17 USC 501 with 506 and 18 USC 2319)

    So if Alice writes a book and puts it on the Internet for anyone to download, that's fine. If she puts a public domain book on the Internet for people to download, that's fine too. But when she puts up Bob's book, without permission, she's got some trouble.

    So far this seems to be an amazingly boring case. And, if the facts are as RIAA says, it's probably open-and-shut in their favor. Like it or lump it, copyright suits are generally pretty simple.

    So what could be interesting about this? Well, and I'm just guessing here, since I have not seen anything recent about this from the plaintiff, I suspect that the plaintiff said that making the files available to be shared via Kazaa was unlawful distribution, even if no one ever downloaded the files.

    This runs contrary to another case, where the court held that an offer to distribute (which is what placing a file in a share is) is not actual distribution, and that only the latter is unlawful. So RIAA or another plaintiff has to catch a defendant actually serving the file to someone. I would not expect that it matters who it is served to. If the copyright holder were to download it themselves, in order to gather evidence, that would probably suffice. (And before someone claims entrapment, let me remind you that that only applies where one is coerced into doing something that one would not have otherwise done. If you were going to share the file with anyone who requested to download it, then the fact that you did so with the wrong person is bad luck for you, but won't get you off the hook)

    If the plaintiff never d/l'ed the file, then this also raises the question of whether the files were actually copies of the music in question, or if they were just labeled that way. Given that the plaintiff appears to have the file listings in hand, they'll probably win this. In a civil suit, which this is, the standard of proof is a preponderance of the evidence. It is not the beyond a reasonable doubt standard reserved for criminal suits. In this case, reasonable doubts as to the facts will not save the defendant; instead whatever is felt to be most likely, even if only by a hair's breadth, is considered the truth. In my experience, when someone (other than RIAA et al) puts up a file claiming to be an mp3 of a song, it usually is.

    All told, it seems like a humdrum case that is not worth getting worked up about (unless you think P2P of this sort should be legal, in which case lots of cases are worth getting worked up about). There
  • by Bullfish ( 858648 ) on Wednesday January 25, 2006 @10:45PM (#14564450)
    They tried this argument in court in Canada. The judge ruled that the simple act of putting a file in a shared folder is neither in and of itself intent, nor illegal. And the ruling has stood.
  • Re:Ownership (Score:2, Informative)

    by Cheapy ( 809643 ) on Wednesday January 25, 2006 @10:46PM (#14564454)
    Errr...that song is "Welcome to the Machine" by Pink Floyd. Which you got correct.

    What you didn't get correct is that the song is from "Wish You Were Here", not "Dark Side of the Moon" ;)
  • by DECS ( 891519 ) on Wednesday January 25, 2006 @10:48PM (#14564473) Homepage Journal
    If you own content that you are distributing or other wise have permission to publish it, the RIAA (et all) OBVIOUSLY DOESN'T CARE. They are OBVOUSLY not going after people sharing their OWN stuff or INDIE stuff. They are acting to protect their OWN stuff.


    You can quibble about the definition of shared/published/accessable, but the issue at hand is obviously PUBLISHING things you don't have a right to distribute.

    If a file sits on a server, is its shared availability in some quantum uncertainty state until somebody downloads it? How ridiculous.

    If copyright is a civil matter, why is the FBI and Interpol sprayed all over on piracy warnings? Does the FBI help out with civil matters often?
  • Re:Oh bloody hell (Score:3, Informative)

    by Stripe7 ( 571267 ) on Wednesday January 25, 2006 @11:10PM (#14564596)
    Well I guess this site is completely illegal then. It publishes copyrighted works on the net and makes it freely downloadable.

    http://www.baen.com/library/defaultTitles.htm [baen.com]
  • by Anonymous Coward on Wednesday January 25, 2006 @11:42PM (#14564793)
    A lot of posters here are misreading the article.

    "legality" of your copy refers to whether you paid for your copy. Paying for your copy does not give you the copyright. RIAA is NOT claiming that you can't share stuff you wrote yourself. The argument is merely about the RIAA's burden of proof - whether, assuming the file is under RIAA member copyright, they have to show evidence of actual downloads, or whether downloads can be presumed from the fact of "mere publication".

    If you share files (regardless of whether you paid for your copy) in which somebody else holds the copyright, then (certainly if somebody downloads it) you've committed "contributory" copyright infringement. (The "direct" infringement was done by the person who downloaded from you, but you can be held liable if you (loosely speaking) had the intention of allowing a copyright infringement. (A very recent Supreme Court case - Grokster - asked whether you could be liable for merely making a tool that you could expect would be widely used for copyright infringement. The answer, in brief, was yes. Actually publishing files you control in your own shared directory is a much clearer case.)

    The only question is whether RIAA has to show that some copying actually occurred. It's not a huge stretch to suggest that if somebody is doing everything they need to do to publish copyrighted stuff to the world, the copyright holder shouldn't have to bear the burden to name someone who actually read it. It's an interesting legal argument though - for example, how would you calculate statutory damages? My guess, without having reviewed the statute or case law lately, is that Congress intended that plaintiffs DO have to find some case of actual copying.
  • by drawfour ( 791912 ) on Thursday January 26, 2006 @12:37AM (#14565065)
    I'm just pulling this from deep, but I don't think that copyright infringement is a criminal offense. This link [copyright.gov] indicates what is required to be considered "criminal", which means copyright infringment is normally a civil matter.

    Assuming this is true, I don't think that intent is enough for a judgement. In a criminal case, intent to steal, intent to murder, intent to deal drugs, etc... are all crimes in and of themselves, and have penalties associated with them. I don't think that intent in this case is on the books as being against the law in any way, it's just the act itself.

    Of course, I could have a misunderstanding of what is required for "intent" to be illegal, but it's just an idea. Feel free to poke holes in this argument, people. :)
  • by zCyl ( 14362 ) on Thursday January 26, 2006 @05:18AM (#14565834)
    If you went into a library and instead of checking out a book, they just ran off a photocopy for you of the whole thing and let you keep it, they'd be in trouble.

    But if I make photocopies myself using the library's copy machine so that I can finish a paper I'm writing, then this is called fair use.

Research is what I'm doing when I don't know what I'm doing. -- Wernher von Braun