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EFF Takes On RIAA "Making Available" Theory
Posted by
kdawson
on Sat Jan 12, 2008 05:21 PM
from the lending-a-welcome-hand dept.
from the lending-a-welcome-hand dept.
NewYorkCountryLawyer writes "In Atlantic v. Howell, the Phoenix, Arizona, case in which a defendant who has no legal representation has been battling the RIAA over its theory that merely 'making files available for distribution' is in and of itself a copyright infringement, Mr. Howell has received some help from an outside source. On the last day allowed for the filing of supplemental briefs, the Electronic Frontier Foundation filed an amicus curiae brief agreeing with Mr. Howell, and refuting the RIAA's motion for summary judgment. The brief (PDF), which is recommended reading for anyone who wants to know what US copyright law really says, points out that 'contrary to Plaintiffs' arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work.' This is the same case in which the RIAA claimed that Mr. Howell's MP3s, copied from his CDs, were themselves unlawful."
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RIAA Argues That MP3s From CDs Are Unauthorized 668 comments
NewYorkCountryLawyer writes "In an Arizona case against a defendant who has no legal representation, Atlantic v. Howell, the RIAA is now arguing — contrary to its lawyers' statements to the United States Supreme Court in 2005 MGM v. Grokster — that the defendant's ripping of personal MP3 copies onto his computer is a copyright infringement. At page 15 of its brief (PDF) it states the following: 'It is undisputed that Defendant possessed unauthorized copies... Virtually all of the sound recordings... are in the ".mp3" format for his and his wife's use... Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies...'"
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Arizona Judge Shoots Down RIAA Theories 204 comments
NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"
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Is this a good thing? (Score:3, Interesting)
The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?
Yeah, yeah, yeah. The RIAA are bad guys, we all have to hate them. I agree that the judgements they're going after are ridiculous. But is the EFF really trying to say that it's ok to try to commit copyright infringement, but only wrong if you get caught completing it?
Thought crimes (Score:4, Insightful)
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Re:Thought crimes (Score:4, Interesting)
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Re: (Score:3, Insightful)
Re:Thought crimes (Score:4, Interesting)
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Re:Thought crimes (Score:5, Informative)
And while we're on the topic, it also isn't theft to skip commercials, or to time-shift, or to place-shift, or to resell anything you own, or to loan anything you own. Furthermore, libraries doesn't facilitate theft. The entire concept is so totally wrong and bad for humanity - it's frustrating to hear such lame arguments made.
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Re: (Score:3, Interesting)
Re: (Score:3, Interesting)
Re: (Score:3, Interesting)
You can't possibly be breaking the law until you actually do something illegal, with all the requisite burden of proof that any sane legal system demands. I
Re:Thought crimes (Score:4, Interesting)
All countries I know of, however, DO have thought crimes: drug prohibition. Think about it: what does a drug do to you? It changes your brain chemistry, which is another way of saying it changes your thoughts. Drug prohibition, then, is making it illegal to have those thoughts. That is, literally, thought crime and thought control. Does that make drug prohibition bad public policy? Maybe not, but it is a pretty significant limitation on freedom.
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Re:Thought crimes (Score:4, Informative)
The laws that govern the use of force by, e.g., law enforcement personnel and the military, in most (if not all) nations recognize the idea of "intent." There are clear markers for judging whether or not a reasonable person intends to do something hostile.
If you think all day of how you would like to blow up Congress, then you are guilty of nothing that can or should be prosecutable.
However, if you think all day of how you would like to blow up Congress, then acquire explosives and study blueprints to find out how to bring the building down...well, now you are actually on the road to making your thoughts a reality. If you are caught before the bomb goes off, you cannot use "This is thoughtcrime!" as an excuse. This is also why we have laws against "attempted murder" or "attempted rape" on the books.
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Re: (Score:3, Insightful)
A major part of their argument is that when the authorized agents of the copyright holders downloaded the material as part of the investigation that this did not violate the Copyright Act.
I think this is one of the weakest arguments I've ever heard. Unless the defendant knew (or had reason to know) that the parties downloading the material were authorized to obtain the material, then any agreements the downloaders may or may not have with the RIAA is completely moot as the defendant was not a party to, or privy to, this third-party agreement.
The uploads by the defendant took place in spite of any authorizations given to the downloaders by the RIAA, not because of them.
Re: (Score:3, Insightful)
Re:Is this a good thing? (Score:5, Interesting)
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Trying to break the law is not a crime. (Score:4, Informative)
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Re:Trying to break the law is not a crime. (Score:5, Interesting)
It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.
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Re:Trying to break the law is not a crime. (Score:4, Interesting)
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Re: (Score:3, Insightful)
The thing is that the *PERSON* who is making the unauthorized copy is the person doing the downloading.
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Re:Trying to break the law is not a crime. (Score:5, Interesting)
I didn't say otherwise. I'm attempting to explain the situation as I've read it.
He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.
Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.
It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.
That's not what's happening here. You say he admits to doing everything he needed to do to have commit copyright infringement... if that's the case, then he did commit and he's guilty. But that's not what's being argued here. What's being argued here is that he did not cross the neccesary threshold for having broke the law.
I'm not sure what your opinion is on the concept of "the burden of proof lies with the accuser", but I don't find that concept ridiculous at all. If he attempted to break the law, but did not in fact break the law, then he should not be punished. Have you committed copyright infringement by just putting digital copies on your computer? Have you committed it by putting them into a directory shared by file sharing software(something that can be inadvertently done due to user carelessness)? Or have you broken it once you have actually transfered a copyrighted work to another person?
I always fall back to the simple reasoning, no harm no foul. If no copy was disseminated, then the RIAA can not show they've been victimized, then he should not be punished. In my opinion, anything beyond that is unreasonable control over individual liberty. That's my take.
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Re:Trying to break the law is not a crime. (Score:5, Insightful)
"attempted copyright infringement" is not a crime, because it does not violate any current law.
Just because it seems wrong to somebody does not make it a crime. Crimes are defined by laws, not your feelings.
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Re:Trying to break the law is not a crime. (Score:5, Interesting)
Nobody is saying he's not at fault, just that he hasn't committed copyright infringement according to the law. Attempting to commit a crime and failing is not illegal (though you might be committing another crime in the attempt), you have to actually commit a crime.
For example, if you saw a car parked on the street with keys in it and you took it for a joy ride, thinking you were stealing it, it wouldn't be illegal if it turned out the car was purchased for you by your parents. It doesn't matter what your belief or intent is, if what you're doing isn't actually breaking the law you aren't guilty of any crime. That's what is at the heart of this issue -- is it a copyright violation if the material is never actually distributed to anyone, regardless of whether the guy intended for it to be distributed?
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Re:Trying to break the law is not a crime. (Score:4, Informative)
Sure you can. In the People v. Dlugash [delmarlearning.com], the Appellate Court of New York held that a defendant could be found guilty of attempted murder for shooting a dead body that the defendant thought was still alive (but that might be dead). The court upheld the Legal Impossibility [wikipedia.org] defense: the defendant was not guilty of actual murder. But the defendant was not completely off the hook.
All this talk of crime may be beside the point because these suits are all civil in nature, not criminal (remember O.J. being acquitted for murder but being found liable for "wrongful death?"). The burden of proof [wikipedia.org] in civil cases is only a "preponderance of evidence," scales balanced between plaintiff and defendant, not the "beyond a reasonable doubt" requirement of criminal conviction, scales heavily tilted in favor of the defendant.
The judge might decide that the Howells have a defense based on the assertion that only the RIAA-authorized investigators downloaded the copyrighted materials. On the other hand, lets say that you drop off a really nice suit with the dry cleaners. You only authorize them to clean the suit. You think that they might be lending clothes out before they are picked up a la Seinfeld [wikipedia.org]. Thus, you hire a private investigator to go the dry cleaner and offer to rent the really nice suit. The dry cleaner does not know that you hired the private investigator. The dry cleaner takes the private investigator's offer, exchanging the suit (for a short period of time in exchange for some payment). You sue.
Would the judge deny relief to you because you had authorized the private investigator to make the offer?
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Re:Trying to break the law is not a crime. (Score:5, Insightful)
Copyright infringement is not a criminal offense for a good reason, that would get you automatically prosecuted. It is breaking the law only if a.) the act of copying takes place b.) it is not fair use c.) the copyright owner does not give you permission d.) the copyright owner sues you for it and wins the court case.
Again,the matter is not something that would get prosecuted automatically, nor should it be. If someone copies a song and the copyright owner never sues for it, in the eye of the law it is perfectly legal and deserves no punishment. There is a huge difference between a criminal case like attempted murder where even the attempt is prosecuted and between a copyright case where you're saying that it is ridiculous that an attempt is not prosecuted, which in order to realistically work would automatically mean making copyright infringement a criminal offense.
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Re: (Score:3, Interesting)
Re:Car analogy! (Score:4, Informative)
Selling drugs is illegal no matter who you're selling them to. The same is not true of copyrighted content.
Dan Aris
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Re: (Score:3, Insightful)
RIAA is trying to say that ripping the CDs down to mp3s made them available for illegal distribution. Whether or not he actually shared them is immaterial to them, they are openning a new legal front with the act of ripping. Their theory is, he made them into mp3s with the sole intent to share them in violation of legal distribut
Too rich to be guilty (Score:3, Funny)
Error Will Robinson, Error! (Score:5, Informative)
Re:Error Will Robinson, Error! (Score:5, Informative)
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Amicus Curiae (Score:4, Informative)
Had to look it up myself...
amicus curiae [utcourts.gov] - A friend of the court; a nonparty who interposes, with the permission of the court, and volunteers information upon some matter before the court.
Bit off topic.. (Score:5, Interesting)
Re:Bit off topic.. (Score:4, Insightful)
Frankly, people cite trial court opinions all the time. An appellate court opinion to the same effect is better, of course, but that doesn't mean that the former isn't a precedent.
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Re: (Score:3, Insightful)
First, this is a civil matter, so the issue is whether or not the defendant is liable; guilt is not at issue.
Second, in the US system -- and I'm simplifying things here, a bit -- any party can appeal if things are not entirely to its liking, though in practice, it is usually one or the other. But for the US Supreme Court (as distinguished from the various state Supreme
getting old (Score:4, Interesting)
I'd like to see a model where when you pay for music you actually receive a license of some sort for the given song or album. This would be good for a lifetime, and when a new media format comes out, you could get the album or single reissued to you just pay for the price of the media and handling charges. As it stands I had some albums on cassette that I subsequently bought on CD and eventually lost the CDs and ended up buying the digital DRM version. I'll also have to buy the non-DRM version now if I want it. This is total B.S. and seems to be in direct contradiction to the argument that you aren't "buying music", you're "licensing" it.
Re: (Score:3, Interesting)
Face it, the "compensating the artists" mantra is just a smokescreen put out by big media, and we shouldn't even be discussing it as an argument against downloading. As long as there is a middleman (or in this case, multiple layers of middlemen) pigging all the copyrights and picking off
Re:getting old (Score:5, Insightful)
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The clients mis-advertise a lot anyway. (Score:4, Interesting)
1. Mis-labeled song. Say it's something it's not.
2. Clients set to not allow downloads. A lot of the older clients would let you set the maximum number of downloads to 0. Your stuff would still end up indexed, but no one could download.
3. Host that were fire-walled off from letting people download. The communication for a lot of these networks isn't on one port from one host. So you can have clients advertising content that you can't actually get because of firewalls.
I'm not actually pro-copyright infringement, but a demonstration of advertised content being un-downloadable really swaying a jury. Or better yet I would love the RIAA to sue someone who wasn't sharing because of firewalls and who had meticulous firewall logs, so that they could get roasted.
Technical barriers to copyright violation (Score:3, Interesting)
Say for example, I take a digital representation of a copyrighted work, say an mp3 file, and then I proceed to use RAID6 algorithm where I split the file up into 6 chunks, any 4 of which someone can re-create the file. Distribution of 3 of those chunks by me is not a copyright violation since the original work cannot be reproduced. What if someone else unknown by me releases the other 3 chunks. Someone else may retrieve any 4 of those chunks can now reproduce the original work. Either of the suppliers didn't supply the digital bits to create the works.
Similarly, if I produce a one time pad, the length of the mp3 file and I publish it as "Best of Santana", I have in theory not provided anything other than an unintelligible stream of random bits. However, if someone publishes "the key" that once xor'd with the file I originally published, generates the original file, who is in violation ? I centainly can't be, because I just created a random set of bits, the other person in theory can't be because they only produced a key.
The violator may be the downloader, the person who takes those files and re-creates the original but they're alot harder to catch in this scenario.
IANAL so I'd like to hear what the L's in this discussion have to say about this.
Re: (Score:3, Interesting)
> bits
Your "what if" has already been implemented and running rather well: The "Owner Free File System". (http://wiki.offdev.org/Main_Page [offdev.org])
Re:Consequences? (Score:5, Insightful)
Parent
not necessarily (Score:3, Insightful)
Re:Consequences? (Score:5, Informative)
Oh, I think NewYorkCountryLawyer knows what he's talking about. You know how people say IANAL? Well, he doesn't say that because he is a lawyer. And one that has particularly been defending copyright infringement cases lately. This is a reading of existing law, not necessarily trying to establish a 'new law' via legal precedent (which, BTW, isn't all it's cracked up to be.)
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Re:Consequences? (Score:5, Informative)
By the way, the proof that even the RIAA lawyers know that their theory is baseless is that they have abandoned it and omitted it from all of the complaints they've filed during the past 5 months or so. See "RIAA Abandons "Making Available" in Amended Complaint in Rodriguez case" [blogspot.com] and "RIAA Abandons "Making Available" in New Complaints Being Filed" [blogspot.com]
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Re:Consequences? Bogus (Score:3, Interesting)
If they know its clearly bogus, then why don't they, in fairness, also drop all the previous cases where they argued this in the first place?
Re:Consequences? (Score:5, Informative)
Furthermore, the legislative history supports this construction of the statute in which Congress stated: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."
In contrast, however, there is nothing in the statute or the legislative history that suggests that the making available should be infringement. It is one reading of the statute from a case in the 4th Circuit and the opinion itself was meant to be limited to libraries. (at least how I read it)
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Re:Consequences? (Score:4, Insightful)
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A
Re: (Score:3, Interesting)
So by making a file 'available' to the public, I am then violating copyright law? Well, by this same logic, if I leave my car window open and have a CD sitting on the passenger seat, I am then "making it available to the public". If I buy a DVD online and it is sent to my letterbox outside my house, and I don't have a lock on my letterbox, I am then "making it available to the public". Where is the flaw in my logic? Or am I actually making a valid point?
I would say you're making a valid point. Certainly Judge Kenneth Karas would say so, since he made exactly the same point to the RIAA's lawyer at the January 26, 2007, oral argument [blogspot.com] (pdf) of Elektra v. Barker [blogspot.com]. (See, e.g. page 28 of transcript.)