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.
I see (Score:5, Insightful)
Ok, there's their mistake, they didn't hire a lawyer. Three paragraphs? That's just crazy.
Hopefully they'll hire one before the time to appeal expires.
Bittorrent is not a p2p file sharing program. (Score:5, Insightful)
that's all
To rain on your parade... (Score:5, Insightful)
Regardless, the article submitting shouldn't be so quick to dismiss a judge's ruling as foobar just because he doesn't like the outcome. I actually agree with the judge's decision, despite my strong disdain for the RIAA/MPAA and its friends.
One of my soulseek folders reads (Score:5, Insightful)
The folder that I download tracks to is named paying_canadian_recordable_media_levies_lets_me_d
Re:Bittorrent is not a p2p file sharing program. (Score:3, Insightful)
Let them Fry! (Score:5, Insightful)
Are they just idiots? There is no excuse here. They knew what their software was doing and if they didn't know they should not have been using it.
Don't like copyrights?
Only by completely ignoring the industry will they get desparate and be forced to relax the licenses they have legally chosen to apply to their property.
Is your life really so empty that you can't get by without your stolen music?
He who has the gold rules (Score:2, Insightful)
Naturally enough, they are keenly interested in ensuring as heavy-handed an enforcement of copyright law as possible.
The more control they can maintain over YOU (and what you do with any and all data in your possession) the more money they can make from you.
It is an uphill battle for those interested in personal freedom. But I guess that's nothing new.
Publishing (Score:5, Insightful)
It seems to me that putting files up for P2P sharing is the same as putting them on your web site which is the same as publishing. It also seems to me that both the publisher and the downloader are guilty of copyright infringement, assuming that any reasonable downloader would know that the publisher doesn't have the distribution rights.
Re:To rain on your parade... (Score:1, Insightful)
even if there are hashes involved... you could rewrite a client to send false hashes...
Re:US Intellectual Property laws (Score:5, Insightful)
In the USA, your options for leadership are
1. The We'll Say And Do Anything To Acquire And Retain Power Party (1), backed by the Oil Industry - currently in power
2. The We'll Say And Do Anything To Acquire And Retain Power Party (2). backed by the Media Industry
Good luck with that.
And it damn well should be. (Score:4, Insightful)
The 'leaving your back door open' analogy is not a good one. A better analogy is buying a book, scanning it, and posting it on a web page. In fact, it's EXACTLY the same thing, only with a different protocol.
Re:Let them Fry! (Score:1, Insightful)
It's not my fault that my life is empty. And I never stole it, I just made an exact duplicate of it using my own resources. It never cost them a dime. In fact, they actually gained a small amount of money because I pay a music tax on recordable media. And I don't hear you complaining about the mp3s I copied from the radio. Why is that? To me, it seems that I can listen to my Britney Spears guilt-free.
God my life is empty.
Re:Bittorrent is not a p2p file sharing program. (Score:5, Insightful)
copyright infringers get sued != BitTorrent is an illegal technology
My point, however, was that although your logic is flawless, they don't act on logic. They act on a series of baby steps towards a goal: Pay per listen.
Re:Ok, which is it. (Score:4, Insightful)
Theft requires two things.
1) The thief must take something.
2) The victim must be deprived of the item the thief took.
Copyright infringement is morally and ethically similar to theft, but it consists of the following corresponding steps:
1) The infringer copies something.
2) The victim is deprived of the benefit potentially gained by the use of the copy.
It's the distinction between outright pain and mere inconvenience. Geeks like to think of everything as true/false, digital decisions, but the fact is that life and human nature is analog. Copyright infringement is at its base far less damaging than outright theft.
Re:And it damn well should be. (Score:3, Insightful)
Yeah - like all those photocopiers in the public library - sue those assholes man! What do they think they are doing leaving copyrighted material around like that.
Re:And it damn well should be. (Score:4, Insightful)
That's not the point being made. Crazy Law Ahead! (Score:4, Insightful)
Let's worry about the actual point being made:
To see how retarded this is, take this "making available" nonsense a few steps down the slippery slope to DRM hell, where sharing is a crime:
Citizen, have you been sharing your password access? Do you have the right to read [gnu.org] anymore?
Copyright is supposed to encourage publication for the benefit of the public domain. It is supposed to be a temporary exclusive right to publish. People violating that exclusivity could be told to stop and sued in civil court by the rights holder. 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.
If we give this kind of power to publishers, every education will create a life time's worth of debt for little more than access to textbooks. Imagine music industry methods applied to all human knowledge. As Newton understood, every person's contribution to human knowledge is dwarfed by the accumulated store. What you have will be held cheap and you will have to work very hard to get what you need.
Re:Geek Speak Criminal Definition (Score:2, Insightful)
You all seem to be mixing up one thing here: This is not a criminal case. This is not stealing we're talking about. It's infringement of rights.
Guilty until proven innocent, I'm afraid.
Re:He who has the gold rules (Score:5, Insightful)
Re:He who has the gold rules (Score:4, Insightful)
Re:US Intellectual Property laws (Score:5, Insightful)
1. The We'll Say And Do Anything To Acquire And Retain Power Party (1), backed by the Oil and Media industries
2. The We'll Say And Do Anything To Acquire And Retain Power Party (2). backed by the Oil and Media industries
Re:One of my soulseek folders reads (Score:4, Insightful)
I always figured people who steal music should use stolen media on which to store it. Only seems right.
Comparing physical stuff with virtual stuff is stupid. It doesn't work. At all.
Also, mv is not cp. Even you know the difference.
There are some valid arguments against file sharing but equaling stealing physical things with copying virtual things only make you look unintelligent.
Re:Let them Fry! (Score:2, Insightful)
If it were stealing we would not need copyright laws, as we already have laws and punishments for stealing!
Is this the real world, or the Matrix? :p (Score:2, Insightful)
Are we now going to be held criminally liable for what we might do?
Did I wake up this morning in Minority Report [imdb.com]?
Are they also saying, then, that since the version of PING that comes distributed with, say, Fedora Core or Redhat is a DoS tool and therefore illegal to own, simply because you could use many copies of it spread out over many computers, run with maximum message size, no delay, and running ad infinitum? Or that if I happen to have tools in my garage that could be used to break into someone's house, that it's the same as actually committing breaking and entering?
Oh, wait! I have the math and physics skills to determine critical mass! I must be teh terr0ri$t! Everybody panic!
What's next, then? If you have a Bittorrent client that you use only to download completely legal files (like, say, Fedora Core) that by association, Fedora Core must be illegal because you use an "illegal" piece of software to download it?
I'm being a little rediculous -- but only a little. This is exactly the sort of mentality I'm coming to expect these days. :p
Comment removed (Score:3, Insightful)
Re:He who has the gold rules (Score:3, Insightful)
Re:Let them Fry! (Score:3, Insightful)
Re:I see (Score:5, Insightful)
So judges in this country can't reason if I don't hire a $200/hr lawyer? What if I've got 5 kids to feed and don't have money for a lawyer? That means everything the other side says is true regardless of whether or not they proved it?
Re:I see (Score:4, Insightful)
Re:Bizarre... (Score:2, Insightful)
Don't get me wrong - I disagree with the extent of the damages and the litigation in the first place but playing dumb and equating file transfers (copies you implicitly sanction by using file sharing software) with burglary (somebody breaking into your house and removing your personal affects) will only help them bring down any attempts to justify file sharing protocols.
I agree the result in this case is ridiculous but the Howell's really should have hired a lawyer or at least got legal advice on their defense. They needed to emphasize that no illegal activity had occured. The galling aspect to this case is that they have been punished for future crimes - essentially the judge didn't buy their argument that they were only intending private sharing and that they would have gone on to share files with other Kazaa users in the future.
I think Kazaa [kazaa.com] need to change their logo. "Fast, safe, free." The terms 'safe' and 'free' are false advertising.
Re:and I got it for a song ... (Score:3, Insightful)
(I'm obviously not pointing fingers at you in particular, as I have no way to know if you've done this or not.)
Anyone who is surprised that the RIAA is suing has NOT been on the internet, and thus they don't have to worry about it. Everyone else has been warned for quite some time now, and it's not like they had no clue it was illegal before the lawsuits even began.
Re:Bittorrent is not a p2p file sharing program. (Score:5, Insightful)
When you buy a new CD, you are putting money into the pockets of
the RIAA. When you buy a used CD, you put your money into the
pocket of whoever last bought the CD, and the RIAA doesn't get
a penny.
Re:I see (Score:5, Insightful)
Judges are supposed to be neutral and judge. If you can put together a coherent defense, the judge should listen. But if you don't, it's not the judge's job to be defense lawyer. Perhaps it should be easier to get free legal representation, but to keep that clear separation between your team, their team and the referee is vital.
Re:He who has the gold rules (Score:1, Insightful)
If you're counting all the 20th century music by all those dead people, perhaps. But if you only count new music (lets say from the present century), most of it is indie.
In the last century, a bar band needed a label to record; studios, pressing, and distribution were all controlled by the labels. But we have computers now; five hundred bucks for a machine more powerful than the biggest supercomputer in existance when CDs were invented.
Hell, I have friends with CDs out, and none of them have an RIAA contract. A label tried to to sign Joe [mcgrew.info] and he told them to go to hell. The link is to a blog posting with links to MP3s of live recordings (acoustics in the clubs aren't good; find a copy of Posamist's CD for quality). Some other friends [thestationmusic.com] have 2 CDs out and SHNs at Archive.org [archive.org]. And those are just a couple of my friends; here [kuro5hin.org] is a Michael Craford article linking to thousands of FREE MP3s. The article is several years old, there are more free MP3s posted on the internet every day!
"Piracy" is a red herring. You can "download" the entire top 40 in a few hours by plugging your radio's headphone jack into your PC's sound card and sampling [kuro5hin.org] the RIAA dreck. The RIAA's problem is that they control radio and empty-v, but they can't keep Joe and Dave and the other thousands of bands Mike linked to off of P2P or internet radio. That's the real reason they have attacked both of those outlets (and very sucessfully, too).
It's not about copyright infringement. It's about destroying the major labels' competetion. There is no reason whatever to download or upload top 40 crap with P2P; it's easier to sample it from the radio. Old John Lee Hooker tunes, and indie music, are what P2P is for.
-mcgrew
Re:He who has the gold rules (Score:3, Insightful)
But the fact is, data is as free as you make it. And they don't control it as well as they'd like you to think. Ubiquitous P2P is civil disobedience which is direct democracy overturning the copyright regime.
That's called decieving oneself. (Score:1, Insightful)
Same place that the "I want the privacy to do illegal things and not get caught" come from.
"In what world is this insightful?"
Remember we're your posting?
The number of posts admitting to piracy and taking responsibility can be counted on one hand. The rest simply demonstrate the human capacity of self-rationalization that'll keep us from achieving the ideal vision we have tried to claim since the beginning.
Re:and I got it for a song ... (Score:3, Insightful)
Very well I'd imagine.
Re:and I got it for a song ... (Score:5, Insightful)
Really? You REALLY think that most Windows users know what P2P systems are, have installed the client, and have accidentally put music that they've purchased into the file structure on their machine that "shares" that music with a couple million of their best-friends-for-life-that-they've-never-met?
No, I'd say that a minority of Windows users - of computer users in general - make a habit of grabbing up infringing copies of other people's work, and then place it in a bucket that a has-to-be-installed-to-work piece of software that in turn exposes it to the ranks of other to-cheap-to-pay-for-entertainment users. It's not like this stuff happens by default through the C$ share over the user's WAN connection. It requires action, and usually a weird (though, lamentably, more and more common) sense of entitlement, and usually some very small voice in the back of the head that says, "you're gambling against being caught, here, but - OMG! - I got that new Avril CD without having to pay for it!"
People who install P2P clients to download Linux distros or game patches can't complain about this either: that ISO image of some album they're making available through the same interface didn't get there by accident.
There are also plenty of people out there that are stupid enough to "make available" without even realizing it.
Yes, it's a shame that so many people who DO know better have polluted the landscape on this issue, somehow contributing to a loss of clarity on the central notion: that artists who choose to sell their work are not, actually, very happy when you rip off a copy. You can't seriously tell me that you think that MOST low-tech users who end up with a P2P client full of downloaded, copyrighted music they didn't pay for (and offering back up a folder full of copyrighted music) really think that their ISP's monthly bill somehow grants them unlimied Gwen Stefani recordings or the entire 2006 works of the NSO or all of the movies that they used to have to pay NetFlix to see, but which now, miraculously, they get for free from their best friends in... Russia? Belgium? The script kiddie next door? People DO know better. The thing they don't yet seem to understand is how much of a trail they leave behind them as they look for ways to avoid spending a flippin' DOLLAR for a song to listen to while drinking their $3 latte, or while jogging in their $200 shoes.
Re:and I got it for a song ... (Score:5, Insightful)
Easy to avoid? People have been pointing out that we are rapidly approaching the day when, if you walk down a sidewalk whistling a tune, you'll be arrested and charged with unlicensed performance of a copyrighted work of music.
Fact is that the only practical way to avoid this now is to never say or do anything at all in public (which includes on the Internet). I've tested this a few times by asking a simple question: Suppose I have a tune in my head, and I'd like to discover whether it's something I "composed" myself or is a tune whose copyright is owned by someone. How do I do this?
I have asked reps of a couple of music publishers. Their answer, apparently said with a straight face as far as I can tell, is that I should buy a copy of everything they've published and search through it all. Of course, this only works with that one publisher; to actually answer the question, I'd have to buy a copy of every work of music ever published by anyone and search them all.
There is something of a shortcut. Here in the US, the Library of Congress (LoC) has copies of most of what has been published in the country. I could go to Washington and spend a few years searching through their archives. Then I could do the same in all other countries. This would only take a few lifetimes, not the thousands of lifetimes that the "buy and search everything" approach would take. But still, there's a certain limited practicality here.
Fact is, the only way I can determine in my lifetime whether that tune in my head is copyrighted is to publicly perform it, preferably in a recording, and wait to see whether anyone sues me.
Actually, there is a less reliable but more practical way that a number of musicians have been using: Put a copy online (either as music notation or a recording), accompanied by a note saying that you haven't determined whether it's copyrighted, and if anyone knows who owns the tune, send a message to <email-addr>. This isn't guaranteed to protect you, because the owner might be a bastard who will sue you for even this transgression.
And it still has the problem that, in practice, you get mostly copyright claims that turn out to be bogus. Publishers regularly claim copyright on music that's centuries old. If you can show this, they'll slink of to look for another victim. And sometimes this happens, because what happens is that someone sees your note and sends a message saying "That was published by So-And-So in London in 1793 as <title> in <book>." If you know this, you can use it as a weapon against the publisher.
But it's all very unreliable, and depends on the good will (or reasonable lawyers) of corporations, in addition to help from other musicians who stumble across your stuff. In general, there's no way to know that a random public utterance or idly whistling a tune won't be a copyright violation. The only really safe strategy is to be utterly silent in public. On the Internet, this includes learning enough about your computer's innards to guarantee that it isn't exposing any file to outsiders.
Re:and I got it for a song ... (Score:3, Insightful)
Trivially easy, I see it all the time. It goes something like this:
User: Where can I download new music?
Local geek: P2P
User: Huh?
* Local geek installs P2P on User's machine
User: Thanks!
Re:Bizarre... (Score:3, Insightful)
Re:and I got it for a song ... (Score:3, Insightful)
kryptkpr, above, made a good point on this issue. I'd make another one; even if it is clear to the user that by installing a P2P application and placing files in their 'shared folder' is tantamont to sharing copies of the file, it is not clear to the layman, especially a minor, that such an act of sharing is illegal. Many people do not think in computer terms, and think that the paradigm of sharing in the modern age is not different in kind from the sharing of yesteryear, such as loaning a book or record to a friend. Most people would not implicitly expect such behavior to be wrong, and probably would not know that it was (according to the law) until they were told.
Even prior copying activities have been protected in the past, and there is not an average adult today that would question the legality of taping their favorite show on TV to watch at a later time, or even loaning or giving that tape to a friend. The minutiae of 'fair-use' are not even on the radar screen for such people; they've been doing it for years, don't see sharing songs as any different, and are basically unaware of the underlying legal arguments either way.
Hey, it's Arizona! (Score:3, Insightful)
'Nuff said.
You want "justice" - stay out of Arizona, Texas and the rest of those "hanging judge" blue states. Not that the rest of the US is all that sharp in that regard...
Should have let Mexico keep 'em - let them enjoy "Mexican justice."