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Judge Rules Shared Files Folder Not Enough 156

Posted by Zonk 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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Judge Rules Shared Files Folder Not Enough More

Judge Rules Shared Files Folder Not Enough

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  • Makes sense... (Score:5, Insightful)

    by Kjella ( 173770 ) on Saturday December 23, 2006 @04:56AM (#17347194) Homepage
    ...but I doubt it makes for much of a defense. To imply that "shared files" == infringement would criminalize everything from SMB shares to god knows what. I expect in practise this just means they'll have to explain how it applies in a specific case. The "You can't prove anyone downloaded from me, even though it's advertised through file searches and I'll send it to anyone that asks" is a razor thin defense to begin with.

    • Re: (Score:3, Informative)

      by j00r0m4nc3r ( 959816 )
      Yeah especially since every single Windows computer has the administrative C$, D$, etc... shares which basically encompasses the entire computer.

    • Re:Makes sense... (Score:5, Interesting)

      by Anonymous Coward on Saturday December 23, 2006 @06:39AM (#17347450)
      Actually it makes a good defense. The person providing files is not breaking any law. It's when you actually download it that you do break it. They have to go after the people downloading. That's a BIG difference.
      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.

      • Re: (Score:3, Insightful)

        by The Infamous Grimace ( 525297 )

        "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;"
        I doubt you could sell that to a jury...notice that all of these include a monatery exchange.

        No, they don't all include monetary exchange. I can transfer ownership of an item to another without money ever being involved, and it could be argued that this is exactly what is being done by file sharing. When I allow you to download a file from my computer, I am in

        • OK, now how do we balance "When I allow you to download a file from my computer, I am in effect transfering ownership of the data in that file to you. Something to think about." with yesterdays story Judge Rules Against Deep-Linking of Content [slashdot.org] where the person linking to content freely available on a website is the bad guy?
        • When I allow you to download a file from my computer, I am in effect transfering ownership of the data in that file to you. Something to think about.

          No, you're not, you're giving someone else ownership of an identical file. Your ownership of the original one doesn't alter or diminish in any way.

          This, by the way, is the same argument every single Slashbot uses to say that P2P != theft every single time that someone dares call P2P stealing.
        • Uhh... Hasn't it been well established in previous cases that you don't own the music. You only own a license to listen to the music? Now, I think that all of those cases were incorrectly determined, but if the legal system says having posession of the file when you have paid for it in a store doesn't constitute ownership, then there is no way that letting someone else copy the file could be a 'transfer of ownership'.
          • Letting someone listen to, or even copy, something, would not be a "transfer of ownership" within the meaning of the distribution rights section of the Copyright Act.

      • Re: (Score:2)

        by Kjella ( 173770 )
        Actually it makes a good defense. The person providing files is not breaking any law.

        A&M Records Inc. vs Napster, Inc. (2001):
        "We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs

        • Re: (Score:3, Insightful)

          by NewYorkCountryLawyer ( 912032 ) *
          Agreed that uploading for purposes of copying and downloading for purposes of copying may constitute copyright infringement. In the RIAA v. Consumer cases, however, the RIAA has evidence of neither. Nor does it have evidence that the defendant did anything at all. So where is the legal misinformation to which you are referring?

          • Re: (Score:2)

            by Kjella ( 173770 )
            Well, the parent said "providing", and if you're providing the files from which an illegal copy is made that is illegal. If we're building a fire and I tell you to provide firewood, what does that mean to you? I'm sure you're going to come up with some pseudo-legal theory about how placing them in a shared folder isn't illegal, and then "the application" distributes it to everyone without any interaction from yourself, that's not illegal either.

            This whole line of reasoning sounds to me like "No, I didn't se
            • I see that the "parent" comment to which you were responding did inaccurately state the law, defining infringement too narrowly, so I see what you mean about misinformation. I stand corrected.

              Actually, though, I think your response may have defined infringement a bit too broadly, as there are many possible fact patterns which simply haven't been played out in court yet.

              As more and more litigants stand and fight, we'll see more and more interesting judicial precedents.

              Today I learned of a pro se litigan

        • Re: (Score:2)

          by green1 ( 322787 )
          what this seems to do though is indicate that you need to prove a transaction took place. it's not enough to show that someone was WILLING to distribute, you have to prove that they DID distribute. so if you can prove that subject A sent a file which they weren't authorized to distribute to subject B you will have a case, however simply saying "there was a list of files over here that someone COULD have downloaded" isn't enough

          to use the analogy that the record companies love so much: you can't simply have
      • IANAL but I'm sure you got it all ass-backwards, downloading a file may not always be illegal because, there are rare occasions there the person downloading has a legitimate fair-use privellage, but the person being downloaded from will never have the right to distribute RIAA music, and so will always be illegal. What the ruling says is that the RIAA most prove that the person being sued must have actually distributed the music, and not merely presented it as available. The RIAA can easily do this by actual

      • Re: (Score:2)

        by Myopic ( 18616 )
        Weren't you watching the Napster case? Didn't you learn about contributory infringement? If you're part of the crime, you can expect some of the legal scrutiny, attention, and blame.

    • Re: (Score:2)

      by sorak ( 246725 )

      It also makes a big difference, because, if the RIAA decides to sue over some infringement, real or imagined, they may find that I store my media files on a shared folder. The jury may or may not be saavy enough to realize that since my firewall block SMB traffic, that the only people who could illegally download from me are my technophobic mom, and my fiance, neither of whom own a computer (meaning they would have to use either my home pc or my laptop to steal my MP3s, but the fact that it can be done via

  • Lacking weight (Score:3, Insightful)

    by Xiroth ( 917768 ) on Saturday December 23, 2006 @04:57AM (#17347204)
    Uh, do we really need a blow-by-blow for this case on here? I mean, this is an interesting decision, but it seems to be more a procedual ruling rather than setting a precedent of any strength. Posted on a legal blog I could understand, but I doubt that enough of Slashdot's readers are fluent enough in legalese to get much sense out of it, or even get particularly interested in an intermediate step like this if they do understand it. Disclaimer: IANAL, so this is wide open to being contradicted to someone who is actually in the field.

    • Re:Lacking weight (Score:5, Interesting)

      by NewYorkCountryLawyer ( 912032 ) * <ray@NOsPAm.beckermanlegal.com> on Saturday December 23, 2006 @07:37AM (#17347560) Homepage Journal

      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.

  • I'm confused... (Score:3, Insightful)

    by darien ( 180561 ) <{darien} {at} {gmail.com}> on Saturday December 23, 2006 @04:58AM (#17347206)
    So hang on... so the judge dismissed an objection to a report that implied that having a Shared Files folder would satisfy the terms of 17 USC 106(3). Er, is this good or bad news?

    • Re: (Score:2, Informative)

      by WgT2 ( 591074 )

      I'm confused as to why the editors gave absolutely no background summary concerning whatever this case is.

      Why should it make sense when, in reality, it's a continuation of a separate, as it were, 'conversation'?

      • Re: (Score:3, Informative)

        by NewYorkCountryLawyer ( 912032 ) *
        It's all in there. First read the magistrate's report. Then read the objection to the magistrate's report. Then read Judge Trager's decision.

        If you want to go back further, read the motion papers for the preclusion motion in UMG v. Lindor [riaalawsuits.us].

    • Re:I'm confused... (Score:5, Informative)

      by NewYorkCountryLawyer ( 912032 ) * <ray@NOsPAm.beckermanlegal.com> on Saturday December 23, 2006 @07:40AM (#17347570) Homepage Journal
      It's good news, because the objection was just complaining about some language, and the judge was saying 'don't worry, the language doesn't mean what you feared it meant... and just to be sure, let me make it clear: the plaintiffs will have the burden of proving defendant actually shared files'.

  • Could it be! An intelligent Judge! (Score:4, Insightful)

    by gsn ( 989808 ) on Saturday December 23, 2006 @05:01AM (#17347210)
    One that actually believes you have to be shown to sharing copyrighted material before being found guilty of it. Merry fucking Christmas.

    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)

      by Travoltus ( 110240 ) on Saturday December 23, 2006 @05:12AM (#17347250) Journal
      This judge will get sued for all the infringement that will be allowed because of this.

      Well, not really, but you never know...

    • In it for the money (Score:5, Interesting)

      by Propaganda13 ( 312548 ) on Saturday December 23, 2006 @05:22AM (#17347278)
      Shouldn't the RIAA get a couple of rock solid cases to win in court instead of extort^H^H^H settling for money? If piracy is that rampant, shouldn't they be able to get some slam dunk cases in court? Couldn't they link a case or two and have involved third parties testify? Like a druggie or undercover officer testifying against a drug dealer? IANAL, so I don't know how that would work in a civil case.

      • Re:In it for the money (Score:4, Insightful)

        by Sancho ( 17056 ) * on Saturday December 23, 2006 @09:56AM (#17347970) Homepage
        Why should they? The settlements are working so well.

        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.
      • All along the RIAA has been using the public to disseminate information that would scare the rest of the public out of piracy. They are much more successful at reducing piracy because you, yes you, talk about it all the time. The more you talk about them filing the cases the more people refrain from pirating.

        This is the very reason they want to the newspapers in the defendants local community to write articles about them pirating. They know that the disclosure of this is more impacting than the actual fi

    • Re: (Score:2, Insightful)

      by 91degrees ( 207121 )
      One that actually believes you have to be shown to sharing copyrighted material before being found guilty of it.

      Well, I'd hope that most judges would expect a certain amount of proof before awarding a multi billion dollar judgement against an individual. When you're asking for the life ruining damages the RIAA are demanding, a judge isn't going to rush the case so he can get away and play a few rounds of golf.
    • Keep in mind that the vast majority of these cases are never seen by a judge. A judge can only rule if victim stands up to the RIAA and refuses accept their extortionary settlements.
    • How about people who can stop themselves from pirating music? Is it really so hard?

      If you dislike the major recording companies, don't buy music from them.

  • Intent to share ? (Score:2, Insightful)

    by iemeeltje ( 845499 )
    Copyrighted files on a shared folder is indeed not equal to sharing copyrighted files. However doesn't this show "intent to share" ? Don't know a lot on the US justice system (criminal, civil etc.) but I guess the proverb "stupidity doesn't mean innocense" still holds. To me it seems the plaintiff needs to prove actual sharing in order to get damages (?)

    • Re: (Score:2)

      by Nadir ( 805 )
      Actually I believe it's more along the lines of "Ignorantia legis non excusat" [wikipedia.org]

    • Re: (Score:3, Informative)

      by gnasher719 ( 869701 )
      '' Copyrighted files on a shared folder is indeed not equal to sharing copyrighted files. However doesn't this show "intent to share" ? Don't know a lot on the US justice system (criminal, civil etc.) but I guess the proverb "stupidity doesn't mean innocense" still holds. To me it seems the plaintiff needs to prove actual sharing in order to get damages (?) ''

      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: (Score:3, Interesting)

      by davepermen ( 998198 )
      Hm.. so having a gun does show "intent to kill"?

      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
    • Administrative shares are illegal then? How about a passworded FTP server? Those both can be considered 'shared' media.

    • Re: (Score:2, Informative)

      by 91degrees ( 207121 )
      The RIAA are claiming for damages. Not punishment.

      A similar example would be if I broke your window, regardless of intent, you could sue me for the replacement of the cost of the window if you could prove it was me. If I intended to break your window, but kept missing when throwing rocks, then you haven't suffered any harm so couldn't sue me.

  • Shared Folders do not equal P2P (Score:3, Insightful)

    by AC5398 ( 651967 ) on Saturday December 23, 2006 @05:42AM (#17347326)
    Shared folders are not evidence that you're running p2p programs. My freakin Windows XP Media Centre PC came with shared folders that I still can't get rid of.

    • Re: (Score:2, Funny)

      by iemeeltje ( 845499 )
      In that case Microsoft would be a co-conspiritor to distributing copyrighted materials (?) :-)

      • Re: (Score:2)

        by Reziac ( 43301 ) *
        Got modded funny, but isn't that exactly what some of the previous suits have been about -- software as contributory to infringement?? Why should it stop with Kazaa, especially if "sharing" is a fundamental part of Windows??

        Oh, I know... M$ has bigger badder lawyers. Never mind!!

        • Reziac wrote "isn't that exactly what some of the previous suits have been about -- software as contributory to infringement?? Why should it stop with Kazaa, especially if "sharing" is a fundamental part of Windows??


          You got that right.

          The RIAA prefers suing poor and working class people who have no money with which to fight back. That way it hopes to collect judicial precedents rewriting the copyright law, which it can then use when it goes to war with the big guys.

          • Re: (Score:2)

            by Reziac ( 43301 ) *
            That's a nasty thought, that this notion of "shared folder's existence necessarily means infringement" wasn't quite the legal nonsense it appeared on the surface.

            If the RIAA ever *does* win such a judgment, it's not only Microsoft that could be next on the "contributory infringement" hot seat. It could be anyone who runs/codes a website or FTP server -- after all, those are by their very nature "shared", with the whole damn world.

            And if they got that precedent -- once "Trusted Computing" becomes widespread,
            • Its importance has been known to me, and to a few in the tech community, all along. In fact, in Elektra v. Barker [riaalawsuits.us], where this battle is being played out in Manhattan, the US Internet Industry Association, the Computer & Communications Industry Association, and the Electronic Frontier Foundation have all weighed in with amicus curiae briefs, showing how the RIAA's lawsuit against a young nursing student living in a Bronx housing project could ultimately shut the whole internet down if the RIAA's legal ar

  • Oohhhhkay then (Score:4, Insightful)

    by LordPhantom ( 763327 ) on Saturday December 23, 2006 @06:39AM (#17347452)
    I like NYCountyLaywer. But..... that headline was terrible. A summary should, in LAYMAN's terms, describe why I should spend a few moments reading about the issue.

    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).

    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)

      by NewYorkCountryLawyer ( 912032 ) * <ray@NOsPAm.beckermanlegal.com> on Saturday December 23, 2006 @07:57AM (#17347630) Homepage Journal
      Sorry LordPhantom, will try to do better next time.

      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.
      • Correction. Grant wrote that my post [riaalawsuits.us] was "dry like a bread sandwich" [weblogsinc.com].
      • Please keep in mind that I personally -do- appreciate all that you're doing in the face of the vileness that is the RIAA :)

      • Re: (Score:2)

        by Reziac ( 43301 ) *
        I think it has to help to have a lawyer VISIBLY defending rationality. And you're the one within the legal system, ie. in the best position to judge where you can do the most good. D'oh!

        And if your writing is a bit "dry", well, what matters is whether it positively impacts your fellows in the legal profession and on the bench, not whether it's fun reading for the blogging crowd.

        Back to the nominal topic, recognising that "a shared folder doesn't necessarily mean filesharing" is an important step, especially
        • Reziac wrote "I think it has to help to have a lawyer VISIBLY defending rationality. And you're the one within the legal system, ie. in the best position to judge where you can do the most good. D'oh!
          And if your writing is a bit "dry", well, what matters is whether it positively impacts your fellows in the legal profession and on the bench, not whether it's fun reading for the blogging crowd."

          Thanks, Reziac. Appreciate your kind words.

          There's no question that the blog has been very helpful to all of u
    • I like NYCountyLaywer...

      Somewhat offtopic, but every single post I can remember seeing that references his userid seems to miss one letter. Country. Everyone does it.

  • Who said the case law has to make sense? (Score:2, Insightful)

    by Anonymous Coward
    Case one: In some locales having a sufficient quantity of drugs in your possession does make you a drug dealer. What if you are just a bulk-shopper with a large habit and like to save a few bucks?

    Case two: I lend you my car (license you some music). You park it legally in front of a bank and go inside to speak to a teller. Those naughty bank robbers opt to use my car as the getaway vehicle. You leave the bank and the car is gone. Did you participate in the crime? I can sue you for actual damages bec

    • Re: (Score:3, Funny)

      by Fordiman ( 689627 )
      Case one illustrates the difference between crime and infringement, as far as consequences go. You can't win a case on intent, or even posession alone, if the case is civil.

      I don't know what case two illustrates. I assume the 'I' in it is the RIAA, the 'you' is the consumer, and the 'car' is music, but I'm not sure where the bank robbery or theft comes in. I'm thinking this just goes into the 'bad vehicular metaphor' category.
      • (IANAL) Car metaphors are almost never cogent, but I see a bit of a point in that one. If you loan out something to a friend, and he fails to take good care with that something and it is stolen, you can sue either the friend or the thief, or both. It doesn't matter at all that in the example, the thief is also committing another crime (bank robbery).
        Let me repeat, the robbery is totally irrelevant. The car thief could have taken a car from in front of a cleaners after lawfully p
  • Let me just say, thank you. You are one of the most impressive /. posters. You consistently respond to posters on several websites, many of which are out and out trolls, and that is impressive. You take the time to explain things over and over again, and that is impressive. You always respond in a kind and positive way, even when the posters are trolls, flamebaiters, or just plain ignorant & lazy.

    Anyhow, thanks for being on the people's side. I know there is more money on the other side, but less s
    • jambarama wrote: "Let me just say, thank you. You are one of the most impressive /. posters. You consistently respond to posters on several websites, many of which are out and out trolls, and that is impressive. You take the time to explain things over and over again, and that is impressive. You always respond in a kind and positive way, even when the posters are trolls, flamebaiters, or just plain ignorant & lazy.
      Anyhow, thanks for being on the people's side. I know there is more money on the other si

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