Judge — "Making Available" Is Stealing Music 489
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.
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
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.
Re:Bittorrent is not a p2p file sharing program. (Score:5, Informative)
copyright infringers get sued != BitTorrent is an illegal technology
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:Minimal precedential value (Score:5, Informative)
--AC
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.
A few quibbles (Score:3, Informative)
Copyright is supposed to encourage publication for the benefit of the public domain.
Copyright serves two primary purposes. One is to provide incentives for publishers of creative works. The second is for the benefit of society at large. The public domain is the vehicle for that enrichment, not the end in itself
It is supposed to be a temporary exclusive right to publish.
Actually it is a negative right. Copyright gives you the right to exclude others from publishing your work for a period of time. Because it is a negative right, the onus is on the holder of copyright to police that copyright and go after infringers. This is a seemingly minor distinction, but it matters because even though Big Media wants everyone else to police their copyrights, Intellectual Property Clause of the Constitution is quite clear in placing that responsibility on copyright holders.
People violating that exclusivity could be told to stop and sued in civil court by the rights holder.
Yep. That applies whether you're Random House Publishing or Berke Breathed. The big guys and the little guys are bound by the same rules of copyright. The casebooks are full of instances where larger, more monied operations were swatted down by the courts when they infringed copyright held by individuals.
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.
There are no shortage of copyright attorneys who will represent small defendants. Frequently, the small defendants win. Look at the litany of RIAA cases and you'll see what I mean. Big firms, advocacy shops like the EFF, and other legal outfits are stepping up to help. They're also coming up with some interesting new legal theories (like using the RICO statute to go after the music cartel). The reason Big Media is pushing so hard for legislation that protects their interests is that on balance they have been loosing in the courts.
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.
Re:That's not the point being made. Crazy Law Ahea (Score:1, Informative)
No they aren't. Those who are responsible to take care of the children are liable (and only in a limited way). Otherwise that whole adoption thing would become quite complicated (and I think it was obvious that the parent was speaking about the biological parents).
Pro se case (Score:4, Informative)
Re:I see (Score:4, Informative)
Re:Geek Speak Criminal Definition (Score:3, Informative)
Re:and I got it for a song ... (Score:3, Informative)
I've posted about this before, so I'll rehash it here:
Touring is generally not profitable for most bands. Even when you factor in sleeping on sofas/in vans, eating road pasta, and the good will of your fans, it's break even, at best. I know, I've been there, and I have a large circle of friends who do the same. Some of which have rather large followings in many countries. Most of us have to scrimp and save during our 40 hour work weeks to save up a couple thousand dollars so we can take off a few weeks to travel around the country. Yeah, gas is that bad these days (when you're hauling around gear and 5 or 6 adults, a hybrid ain't gonna cut it), but even at lower gas prices, it was still a struggle.
A buddy of mine went to Europe with his band for 3 months. Played 6 nights/week for 6 weeks, took 4 weeks off, then did another 6 nights/week for 6 weeks and came back. His band had guarantees, etc. He went to Europe with a hundred bucks in his pocket and came home with about the same. He did have a great time, however, and got to see parts of the world, and there's really no price tag on that.
Anyway, the point is, quit propagating the myth that bands make money on tour. Most of us don't. And if we were making that much money, you could bet your ass that the venue owners would quickly start moving in on the action even moreso than it is, now.
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.