Boston University Student Challenges RIAA 381
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.'"
Re:his argument seems flawed (Score:4, Insightful)
Civil negligence?! (Score:3, Insightful)
Re:his argument seems flawed (Score:2, Insightful)
Re:his argument seems flawed (Score:1, Insightful)
Re:his argument seems flawed (Score:5, Insightful)
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).
Re:I say... (Score:3, Insightful)
If you have copyrighted media on your computer, in a publically available share, that is pretty much distribution.
Example: You live somewhere, where the is street traffic. Now, lets say within arms reach of the street, you place [something]
[Something] is either
(a) Illegal to distribute (not necessarily posses, just distribute)
(b) Illegal to distribute to minors
(c) Illegal to distribute to others not possesing a license.
Are you breaking the law by putting it out there in the open, where anyone can access it trivially?
As a few examples:
Illegal narcotics
Pornography
Guns (regular or automatic)
Perscription medications
etc. etc.
Re:his argument seems flawed (Score:3, Insightful)
However, just because the files are there, does not mean they were put there with the intent to distribute them to the populace in general. While the folders may have been public, the fact is no one is under any obligation to change the permissions on a folder. And it's also possible that changing the permission might make the content inaccessible to some form of media player that would access the folder. Also, even if the permissions are changed, that does not stop someone with adequate knowledge or superuser permissions from altering the permissions or copying the content despite the permissions.
Just because the files are there doesn't automatically mean he was intending to share them or anything else. They simply are. Implying that the existence of something proves guilt is a bit of a flawed argument. The RIAA has to prove intent and they don't have the evidence.
the problem is you're trying to be fair (Score:4, Insightful)
you should stop asking questions with the idea of fairness in the forefront of your mind. instead work along the mental model of schoolyard bully trying to get what he wants, then the answer to your questions are obvious:
"no, you can't do that, because i don't control it. that's not fair? too bad"
Cry me a river (Score:3, Insightful)
Re:I say... (Score:4, Insightful)
Re:his argument seems flawed (Score:3, Insightful)
Hence the charge is "copyright infringement" and not "theft"
Re:his argument seems flawed (Score:1, Insightful)
The actual guy (not the guy in your analogy) had better hope that he didn't send out email to any of his friends saying "Hey Guys, I've got free music in my public folder". For that matter, he'd better hope he never mentioned it in casual conversation - because his friends may not be willing to risk going to jail for perjury (or even obstruction of justice) if such a conversation did take place and he wants them to hide that fact.
I suppose that the Napster argument won't go very far these days but maybe he could make the Napster argument just for himself - particularly, if he could show that the only way he could make the files available to himself from elsewhere on the network was to put them in his public folder.
Re:I say... (Score:5, Insightful)
Re:I say... (Score:3, Insightful)
It's worth noting that everything you listed there is considered in some way harmful by someone. No one really considers music (overall) to be harmful*. If you went and set a stack of CD's on the street that said "take one", no one is going to freak out.
*Yes, I know some people rail against explicit lyrics, but that says nothing of other forms of music. Let's not get pedantic here.
Of course, he might not be distributing it (Score:5, Insightful)
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:I say... (Score:3, Insightful)
(a) Illegal to distribute (not necessarily posses, just distribute)
(b) Illegal to distribute to minors
(c) Illegal to distribute to others not possesing a license.
Are you breaking the law by putting it out there in the open, where anyone can access it trivially?
A better analogy... (Score:5, Insightful)
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:I say... (Score:1, Insightful)
I think that's a key point. Say you're in a public wilderness area and you leave your gun laying against a tree while you're in the outhouse, you could be liable if some kid came along and shot himself with your gun but it's unlikely you'd be prosecuted for "distributing" guns, per se.
Similarly, if you left your prescription medication on the table in a coffee shop by accident then you probably wouldn't get prosecuted for "distributing" prescription medication.
Pornography is a little trickier because if a man walks up to a woman and shoves a naked picture of himself in her face then he can get prosecuted for some form of sexual assault. On the other hand, if some guy was giving away old Playboy Magazines at a yard sale then the understanding would be that they were only for adults - even if the magazines were not specifically guarded aginst minors at all times.
Re:I say... (Score:2, Insightful)
As a few examples:
Illegal narcotics
Pornography
Guns (regular or automatic)
Perscription medications
etc. etc.
I say good for him, the RIAA bears the burden of proof and if they don't have proof anyone downloaded the music, then he didn't break any laws.
Re:Of course, he might not be distributing it (Score:5, Insightful)
Re:his argument seems flawed (Score:2, Insightful)
Re:I say... (Score:5, Insightful)
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.
Libraries should be stopped. (Score:2, Insightful)
Just because the means to commit copyright infringement is in place, doesn't mean that it is happenning.
Re:A few questions... (Score:3, Insightful)
Reading through this thread, for some reason, reminds me of the two citizens of the former USSR sitting in a cell together, one having just arrived and one having been there for years:
Old inmate: "What are you in for?"
New inmate: "I got 20 years for doing absolutely nothing."
Old inmate: "That's nuts! You only get 10 years for doing absolutely nothing...."
Re:I say... (Score:5, Insightful)
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.
Re:Of course, he might not be distributing it (Score:3, Insightful)
In general, if you have copyrighted material on one computer that you own, and then copy it to another computer that you own, you need the copyright holder's permission, even though you own both computers. The important thing from a copyright-law POV is the act of copying, not the people who have access to the copy. (IANAL, but I was involved in an IP audit of some data that is used to build one of my employer's products, and this was one thing we were told by our own lawyer. If you remember that "you", the holder of a copy of a copyrighted work, might be a corporation with thousands of employees, you can see how this rule might make more sense.)
So one could argue that if a student puts a copyrighted MP3 on a school's server and then streams it to his or her dorm room, copyright infringement has taken place. But this is all tangential to Doe's argument, because the plaintiffs in this case have not shown any evidence that the defendants have even streamed the copyrighted music to their dorms.
Re:his argument seems flawed (Score:4, Insightful)
So just put a README in the folder that says that others are NOT allowed to copy the files without permission from the copyright holder... That should be enough.
Re:Of course, he might not be distributing it (Score:1, Insightful)
Students are not allowed to have personal (hardware) firewalls and are not supposed to have routers in their dorms (wireless or not).
Secondly, the general state of the majority of PC users on the BU network are very open. You could basically browse to PCs on BU's network through Network Neighborhood, to hide my PC I ended up disabling 'Microsoft Network' something or other so that I didn't show up through this connection, I used Hamachi to access my PC remotely.
My iTunes would pick up music from everyone on said network (when I was enabled), so would that constitute illegally accessing music?
The only way I could imagine this kid being truly liable is if he was showing people how to access his music and passing the necessary information around.
Oh, and since I'm paying for a license to access the music -- if the CD gets scratched, don't I legally have a right to get that replaced AT COST? I mean, I still have the rights to listen to the music, right? And CDs cost what...2 cents to produce?
How about I trade in my scratched CD for a 50% drop in that 2 cents, since you could recycle the materials and reuse it to produce a new CD.
Re:I say... (Score:3, Insightful)
The library isn't at fault because its very design is to provide fair use to the public for copyright documents.
But as for the homeowner that leaves the liquor cabinet unlocked, you're damned right that they're liable. They're liable for what their children do: If their child gets drunk and then goes out driving and kills somebody, then the parent is responsible to some degree for not parenting enough.
And in the case of the ax, well, that's silly, because the primary purpose of an ax is not chopping people's heads off, whereas the primary purpose of having music files in a publicly accessible area is specifically to allow for downloading.
It's the opposite of the argument that Diebold was trying to make when somebody downloaded the source code for their voting machines from a public Diebold FTP server. They were claiming that the person had no right to download it, but the assumption must be made that when files are put in the open, they are given permission by the person hosting them to download them. In the Diebold case, they owned the copyright to the files and thus the person downloading them had a legal right to assume that they had permission from the copyright holder to download them. In the case of music files on a public server, the person downloading does not have the legal right to assume this, because they know that the files' copyrights aren't owned by the person who put them there. The person who uploaded them has the responsibility to reasonably make an effort to prevent them from unauthorized access. Again, nothing has been done wrong until the download happens, but once it does, the person who made them available is at fault just as much as the person who downloads it. This is specifically because the person who uploads them, just like Diebold, has to assume that if it's available, it's going to be downloaded.