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EFF Takes On RIAA "Making Available" Theory 366

Posted by kdawson
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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EFF Takes On RIAA "Making Available" Theory

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  • Consequences? (Score:2, Interesting)

    by Naughty Bob (1004174)
    This looks to be open and shut, so, does anyone know- If the judge is sane, and applies the law as he should, what sort of legal precedent will be set? (I'm a stinking U.K.-er, I just want to know)
    • Re:Consequences? (Score:5, Insightful)

      by NewYorkCountryLawyer (912032) * <ray@nosPAm.beckermanlegal.com> on Saturday January 12, 2008 @06:33PM (#22019066) Homepage Journal

      This looks to be open and shut, so, does anyone know- If the judge is sane, and applies the law as he should, what sort of legal precedent will be set?
      A very good one.
      • The EFF's view isn't any more "what copyright law actually says" than the RIAA's until a judge rules on it. And even then it's subject to appeal.
      • not necessarily (Score:3, Insightful)

        by nguy (1207026)
        If this becomes a clear legal precedent, we may be facing legislation that imposes specific, severe penalties merely for "making available", and that would be an overall worse outcome. A bit of legal uncertainty may well be preferable, because it gives judges more leeway and limits severe penalties only to those cases that actually warrant them.
    • by russotto (537200)
      Unfortunately, "contributory" and "vicarious" infringement cases looked to be open and shut also. There was no law on the books making those actions unlawful. But judges extended copyright infringement law to cover those cases. A friendly judge (which the RIAA has no shortage of) would certainly be willing to add "making available for infringement" to that list.

      • Re:Consequences? (Score:5, Informative)

        by DustyShadow (691635) on Saturday January 12, 2008 @08:40PM (#22020160) Homepage
        Actually contributory and vicarious liability has full support in 17 USC 106 where it says it is unlawful "to do and to authorize any of the following"

        Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (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; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

        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)
        • Re:Consequences? (Score:4, Insightful)

          by NewYorkCountryLawyer (912032) * <ray@nosPAm.beckermanlegal.com> on Sunday January 13, 2008 @12:07AM (#22021492) Homepage Journal
          The courts have repeatedly made it clear that 'authorizing' is not copyright infringement, that there has to be an underlying infringement of one of the rights.
          • I was simply responding to the statement that contributory and vicarious liability have no support in the statute. The OP was correct in stating that they are court made doctrines but Congress was aware of them when it was drafting the '78 Act. The legislative history further states that a "well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers."

            A
  • by FroBugg (24957) on Saturday January 12, 2008 @06:30PM (#22019040) Homepage
    Really, is this a good thing?

    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)

      by flyingfsck (986395) on Saturday January 12, 2008 @06:35PM (#22019096)
      Well, is it wrong to contemplate committing a crime and then not do it, or should the person be incarcerated same as if he actually did it?
      • Re:Thought crimes (Score:4, Interesting)

        by stubear (130454) on Saturday January 12, 2008 @07:12PM (#22019456)
        Ever hear of "conspiracy to [commit some crime]"? You can be held responsible for actions that would have led to a more serious crime. Just because no one downloads the files does not mean his intent was to illegally distribute intellectual property for which he did not have the rights to do so.
        • Re: (Score:3, Insightful)

          by stinerman (812158)
          Yes, I have heard of conspiracy to commit X. As of this writing, there is no law on the books for conspiracy to commit copyright infringement, although I believe some congressmen are trying.
        • Re:Thought crimes (Score:4, Interesting)

          by Socguy (933973) on Saturday January 12, 2008 @08:08PM (#22019896)
          I'm not sure where you are based, but here in Canada, no that is not a crime nor is it a conspiracy to commit a crime. In order to commit theft, you have to take something away from the lawful owner so they don't have it anymore. In terms of copyright infringement, you are allowed to make a copy of virtually anything for personal, non-commercial use. Until the laws are changed, personal copies can come from downloading off the internet.
          • Re:Thought crimes (Score:5, Informative)

            by Myopic (18616) on Saturday January 12, 2008 @10:45PM (#22020982)
            Yes, you are correct, that's why downloading songs without paying for them isn't theft -- it's copyright infringement. The difference is just as you say -- you must deprive the original owner of enjoyment of the thing stolen. If I download a song from you, you can still enjoy the song, so it isn't theft, and people who claim it is theft are knowingly pushing lies. It isn't at all like stealing a car, in which case you could

            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.
            • Atlantic v Howell is a civil case, where plaintiff asserts a damage and wants compensation. A lot of talk here about thought crime and all, but that's not the case. The government is not charging them criminally. No one's going to jail, unless they start up debtor's prison. Note: IANAL, I just play one on the net. Unlike NYCL, who actually knows what he's talking about.
        • Re: (Score:3, Interesting)

          by nurb432 (527695)
          While that is true, and does exist on the books, is it considered "conspiracy to commit" when its a *civil* act involved and not criminal?
        • Re: (Score:3, Interesting)

          by Obyron (615547)
          Conspiracy is when two or more parties form an agreement (implied or expressed) to perform a criminal (or tortious, in the case of civil conspiracy) act. Remind me what this has to do with one guy ripping a CD to a directory that may have been shared in a file sharing program? Are we going to legislate what directories we can and can't store files in?

          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
      • It's not a thought crime. He performed an action of which the consequences can only be unlawful. There's no persecution of thought here, just of the actions taken, and the damage indirectly done.
        • the consequences can only be unlawful
          You didn't read the article. 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.
          • Re: (Score:3, Insightful)

            by ShinmaWa (449201)

            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:Thought crimes (Score:4, Informative)

        by jotok (728554) on Saturday January 12, 2008 @07:23PM (#22019540)
        This isn't the same as "contemplating" a crime.
        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.
      • in this case the only difference between it being a crime or not is whether anyone found your files to download. same exact action, one being a crime and one not, does that make any sense? no, no it doesn't.
        • in this case the only difference between it being a crime or not is whether anyone found your files to download. same exact action, one being a crime and one not, does that make any sense? no, no it doesn't.

          Of course it makes sense, once you remove your mistake that anything here is a crime in the first place. It is not a crime. You don't go to jail for it. It is about damages and liability. Trying to distribute records, but without success, doesn't cause damage. That is also a major difference for example to theft. Theft is a crime, and the police will arrest you. Copyright infringement (in cases like this one) is not a crime.

          • under current law copyright infringement *is* a crime, should it be that way? perhaps not, but legally it is. You can argue the legality of distributing data in the form of music/art etc. all you want, it doesn't alter the fact that two actions although exactly the same are treated differently because of whether or not anyone thought of taking advantage of the offer. that's the idiotic part that doesn't make any sense what so ever. Either it's a crime and the two actions treated equally [because they ar
    • Re: (Score:3, Insightful)

      by Wonko the Sane (25252) *
      You're already falling into a fallacy when you equate "infringing vs non-infringing" with "right vs wrong"
    • by webmaster404 (1148909) on Saturday January 12, 2008 @06:43PM (#22019190)
      It is a good thing in that it is showing the true colors of the RIAA. Even though he might lose the case, its a battle lost but we could win the war. The more people realize that the RIAA is trying to attack us doing the simple act of ripping CDs to MP3s, Joe Sixpack might actually give a second thought if he really wants/needs to spend the $15 to get a new CD. It also could help when a senator/representative finds out that this is what the RIAA has been doing all along and those who actually knew about technology were right, they could take down the DMCA and other atrocious laws. This also might make bands less likely to join a record company that's part of the RIAA (because they are music listeners too) and also start labels breaking away from the RIAA because people won't buy DRMed songs and they don't believe that "piracy" is the same as ripping MP3s. If anything, this should give more evidence into persuading people that the RIAA truly is opposing our freedoms.
      • by shark72 (702619)

        "The more people realize that the RIAA is trying to attack us doing the simple act of ripping CDs to MP3s, Joe Sixpack might actually give a second thought if he really wants/needs to spend the $15 to get a new CD."

        This has already been covered endlessly. He isn't under scrutiny for simply ripping the CDs. The record companies claim that he does not have authorization to rip CDs for the purpose of placing them into his Kazaa share folder.

        Those eleven words at the end of the sentence may seem inconsequ

        • Actually they did contend that the act of ripping the CD to MP3s was in itself a violation of copyright.

          The judge had asked whether the copies were themselves unauthorized. The RIAA has taken the position, in testimony at the Capitol v. Thomas trial, on its web site, and in congressional testimony, that copying files from a cd onto one's hard drive is a copyright infringement (despite the fact that its attorneys had stated otherwise to the US Supreme Court). The RIAA was answering the question "yes".

    • by riseoftheindividual (1214958) on Saturday January 12, 2008 @06:43PM (#22019196) Homepage
      Planning on breaking the law is not a crime. Actually breaking the law is what defines a crime. Granted, if you've planned on breaking some law and your planning constitutes conspiracy to commit a crime by definition of a law against conspiracy to commit a crime, then you've broken the law in so far as conspiracy is concerned, not as far as the actual crime you conspired to commit(unless you actually committed it).
      • by FroBugg (24957) on Saturday January 12, 2008 @07:04PM (#22019372) Homepage
        He did more than just plan to break the law. 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.

        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.
        • by Charbox (1134059) on Saturday January 12, 2008 @07:21PM (#22019524)
          Putting files up for everyone to grab is not making the copies. The people who download them are making the unauthorized copies. Under your theory, libraries can't have photocopiers because they are just putting it up for everyone to grab copies out of books and magazines.
          • by jorghis (1000092)
            A better analogy:

            The library puts a photocopier out that will instantly print out a complete copy of "Tales of the ACME company" at the touch of a button. It does this in spite of the knowledge that the author of the book holds the copyright and doesnt want you spitting extra copies out of your little machine. In this case the author would have a pretty good case for a lawsuit against the library.

            Just because a photocopier CAN be used for copyright infringement doesnt mean that it actually is, and most of
        • 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.

          In the grand /. tradition, let's try a car analogy. Is leaving the keys in your car a crime? Are you stealing the car or the guy that drives away with it?

          Or how about a computer analogy? If you have a computer with Windows in it and without antivirus, etc, connected to the internet are you guilty of a crime?

          No matter how easy you make

          • by jorghis (1000092)
            People always use analogies in ways that are not analagous around here.

            In your two examples the person who is being robbed clearly did not intend to get his stuff stolen, you did not deliberately go out of your way to make the car available to be stolen. If you rip copyrighted mp3s and put them up on a file sharing network you are clearly intending for someone to copy them illegally. A better analogy might be if you put your car by the side of the road with a sign that said "take me please I am free". But
          • by novakyu (636495)

            Or how about a computer analogy? If you have a computer with Windows in it and without antivirus, etc, connected to the internet are you guilty of a crime?

            I can't speak on the "crime" issue, but my campus minimum security standard policy says that a computer needs to have an antivirus and software firewall (of course, I ignore it for the most part, since I figure it's relevant only for the Windows-using population). Oh, and there's a "system and network security" department, and one of its many jobs is to port scan computers do determine whether they have been compromised or not---and they'll cut you off the net if your computer is compromised (which is, of

        • Re: (Score:3, Insightful)

          by Artraze (600366)
          It certainly does appear that attempted to. And indeed if that's what he was being charged with, then he probably would be found guilty (as well he should be I suppose). HOWEVER, he is not being charged with _attempted_ infringement; he is being charged with _actual_ infringement. The EFF is just saying that unless the RIAA can _prove_ that the infringement happened, the guy shouldn't be found guilty of infringement. Seems reasonable to me. If we need a law against "attempted copyright infringement" th
        • by jorghis (1000092)
          You know back in the days of Napster everyone was screaming about how horrible it was to go after Napster because it was clearly the individual sharers that were breaking the law. Now we hear everyone getting excited because there is the possiblity that someone who admitted to deliberately sharing copyrighted material online might get off on a weird technicality.

          I think that some people just got on one side of the issue because the RIAA wanted to criminalize file sharing in general and now they instinctive
          • You know back in the days of Napster everyone was screaming about how horrible it was to go after Napster because it was clearly the individual sharers that were breaking the law. Now we hear everyone getting excited because there is the possiblity that someone who admitted to deliberately sharing copyrighted material online might get off on a weird technicality.

            I wouldn't call "look at the law, look what it says is illegal and what is not illegal, and you'll find that what I did isn't illegal at all" a "weird technicality".

            Like if you were in court for murder, and the victim is actually alive, then I wouldn't call this a "weird technicality".

            • by jorghis (1000092)
              I am pretty sure that in your example you would still go to jail for attempted murder if you had tried to kill the victim. The same way that the RIAA will sue you if attempt to commit copyright infringement if you post material that they own the copyrights on onto the internet.
        • by riseoftheindividual (1214958) on Saturday January 12, 2008 @07:39PM (#22019688) Homepage
          He did more than just plan to break the law.

          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.
        • by NMerriam (15122) <NMerriam@artboy.org> on Saturday January 12, 2008 @07:46PM (#22019734) Homepage

          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.


          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?
          • by The Empiricist (854346) on Saturday January 12, 2008 @10:05PM (#22020710)

            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.

            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?

        • by A beautiful mind (821714) on Saturday January 12, 2008 @07:47PM (#22019744)

          He did more than just plan to break the law. He attempted to.
          Attempting to break the law is not against the law, unless there is specifically a law that makes it a crime for you to attempt to break the law (and convict you even if you don't succeed).

          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.

          It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement
          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.
        • He did more than just plan to break the law. He attempted to.

          Attempting to break the law is not breaking the law. There are cases where the law says that attempting to commit a certain crime is itself a (lesser) crime, like attempted murder is a crime, but a lesser crime than murder, but unless the law says that attempting something is a crime, it is no crime. In the case of copyright infringement, the law explicitly says that only actual distribution is copyright infringement, attempting it is not.

        • by Kjella (173770)
          In civil law, you shouldn't award damages for things that didn't happen. If I attempted to embezzle a million dollars and failed, should I still owe the company a million dollars? If I attemped to infringe on copyright and failed, should I still owe the RIAA 750-150000$/song? These are not criminal trials, they are civil suits by a company for alledged damages. The proof of intent may be overwhelming, but unless the actual act was committed I don't see that the RIAA has any claim to damages.
        • 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.

          If you'd read the brief, you'd know that this is not exactly what the EFF is claiming. They are very specifically attacking the idea that "making available" without actual dissemination of the work constitutes infringement (an idea that has ramifications that go far beyond file-sharing - e.g., Google search results, etc.). As for the rest of the case, this is what they have to say:

        • >>> "he's not at fault"

          I don't think they are claiming that, they are claiming he didn't break the law. If the man's (filesharer) position is considered wrong then the law should be changed to say that attempting to provide an illegal copy is wrong ... there seems to be a bit of a slippery slope there though.

          Consider a guy too drunk to drive legally - he can't get the key in the door and fails to get in the car (if he sits in it he's in charge and committing an offense). Now I think it's terrible t
        • Re: (Score:3, Interesting)

          by Casualposter (572489)
          As the law and the courts have repeatedly stated. . . "attempting" to violate the copyright act is not a crime and is also harmless to the copyright holder. SO it is legal to put your files in a shared folder. However, if you do that AND someone unauthorized by the copyright holder makes a copy of the file, then you are liable for a violation of copyright law.
      • by LM741N (258038)
        I beg your pardon. With 2 or more individuals planning a crime is called conspiracy and they are generally felonies.
      • by jotok (728554)
        Yah, and the sticky part is that, in the spirit of the law, he was committing conspiracy; but I don't think there's a law against "conspiracy to commit copyright infringement."

        Of course, the spirit of the relationship between us consumers and the media outlets should be one that includes fair use. If it did then maybe people wouldn't want to dick them over so much.
    • This difference is if I say?
      "Wanna buy some crack? Just kidding..."
      In one case I sold crack. In another I made a bad joke.
    • Re: (Score:2, Insightful)

      If you read through the brief, you get the sense that the EFF couldn't possibly care less about this particular defendant, and is much more worried about the (possibly far reaching) precedent that will be set as a result of this case - especially since the defendant is appearing before the court pro se.
    • Re: (Score:2, Interesting)

      by tgrimley (585067)
      So what if he sets it all up and the file sharing program sees it and others see it but he's set up his network to refuse to pass through those packets?
    • by piojo (995934)
      My (perhaps flawed) understanding is that some music downloads are okay. They still violate the copyright act, but so does all fair use. That doesn't make them "not okay" or "not fair use", but it means that anybody that sued you over these violations would probably lose.

      I want those with legitimate reasons to be able to get content (I know these reasons may be uncommon, but I don't really care. We may need to find a different way to stop piracy than to prevent everyone from sharing.)
      • Fair use doesn't violate the copyright act. Fair use is an exception that acts as a defense against claims of copyright infringement.
      • by cdrguru (88047)
        Unfortunately, you are missing the target of most of the people on the planet right now.

        Piracy == getting stuff for free.

        Paying is for losers. Sharing is for winners. As long as people believe this and have it drilled into them in universities all over the world, there is no stopping piracy. Look at the numbers in the PDF - there are hundreds of millions of people using P2P networks to share files and not pay. What possible occurrence could make these people stop sharing and start paying? My belief is
    • 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?
      As the article explains, the law says quite clearly that there is no such thing as "attempted copyright infringement". Either the music was distributed or it was not. If it was not distributed, and if there is no evidence of distribution, then there is no case. Intention doesn't count.
    • by LainTouko (926420)
      Copyright was supposed to regulate the publishing industry. Its regulation of private citizens, who didn't really copy stuff back then, came about essentially by accident. When the charge is out of keeping with the spirit of the law, one shouldn't be ashamed of a defense which is out of keeping with the spirit of the law.
    • Re: (Score:3, Insightful)

      by jamstar7 (694492)

      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?

      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

  • by Lije Baley (88936) on Saturday January 12, 2008 @06:31PM (#22019056)
    With all that money in his trunk, why would Mr. Howell need to steal music? Plus, I don't think they even have broadband on that island.
    • Maybe that telephone trunk line washed up on shore again.
    • by Adambomb (118938)
      Packet Over Message In A Bottle.

      Really high PL and latency though.
    • by _KiTA_ (241027)
      Plus, I don't think they even have broadband on that island.

      Your forgetting how the Professor made a Satellite Modem and TV out of coconuts in Season 5.

      Gilligan was a /b/tard.

  • by fredNonesuch (927976) on Saturday January 12, 2008 @06:38PM (#22019128)
    While I greatly appreciate your work in helping reign in yet another greedy monopoly abusing their powers, I have to post a correction to the original post. They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa. There have been numerous follow ups to the original assertion, including Techdirt, Gizmodo and Slashdot (noting the Gizmodo retraction) The RIAA has even clarified their position in a somewhat weasel worded quote. In essence, if you don't share, we (probably) don't care.
  • Amicus Curiae (Score:4, Informative)

    by Graham MacRobie (1082093) * on Saturday January 12, 2008 @06:48PM (#22019230) Homepage

    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)

    by pionzypher (886253) on Saturday January 12, 2008 @06:52PM (#22019264)
    But is anyone else worried about this guy going to bat without representation and possibly allowing precedent to be set by his actions? Is this considered by those who would consider later cases based upon the decisions that will be made in this one?
    • Re: (Score:2, Informative)

      by kramer (19951)
      Trial courts don't set precedent. Courts only set precedent for courts of a lower level. Trial court is the lowest level, therefore trial courts don't set precedent.

      There are a few minor variations to this general rule, but they don't really apply here.
      • Re:Bit off topic.. (Score:4, Insightful)

        by cpt kangarooski (3773) on Saturday January 12, 2008 @09:14PM (#22020388) Homepage
        That's incorrect. A trial court certainly may establish a precedent; it's just that the precedent would be influential, rather than binding. Influential effects of precedents are very common, in fact. For example, one appellate court might follow in the footsteps of another appellate court at the same level; courts in one state may look at the opinions of courts in another state as to similar laws; a state court might find that the interpretation of state law by a federal court is worth following; a court in one country might take guidance from a court in another country, and so on.

        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.
  • getting old (Score:4, Interesting)

    by bwy (726112) on Saturday January 12, 2008 @07:01PM (#22019352)
    These stories are getting old. We've been hearing about stuff like this for years now. At some point there has to be a truce. I would like to think that most people want to enjoy music while respecting the rights of people who make the music to make a living. I'm not sure what the answer is, but perhaps it is time for the entire middle tier (the record labels) to get ripped out of the equation and for the RIAA to be dissolved. The Amazon store shows progress- at least we are free from DRM hell.

    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.
    • Dude. If you're gonna talk reasonably then you can't have a conversation with the RIAA. The current generation of "leaders" there are the guys who got rich (re)-selling Beatles and Zepplin CDs to the people who already owned (and didn't realize they were going away) the LPs of those same albums. These clowns have an "I'm entitled to make a shitload of money" attitude, not based on the quality of the product they're putting out today, but on the format change that put the last forty years "greatest hits" on
    • Re: (Score:3, Interesting)

      by ScrewMaster (602015)
      The "middle tier" are the problem, and the only real problem, and I believe that adding more law is not a solution, in fact we need to repeal a lot of damaging copyright revisions put in place at the behest of big media.

      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
      • by cdrguru (88047)
        Why would anyone ever, ever pay after experiencing half a lifetime of downloading for free?

        The "artists" better find some other way of getting paid other than making music and selling recordings. Begging on street corners with a guitar works.

        No way is anyone under 30 I know going to some day wake up and decide they are going to start paying for music suddenly.
    • Re:getting old (Score:5, Insightful)

      by russotto (537200) on Saturday January 12, 2008 @07:32PM (#22019620) Journal

      These stories are getting old. We've been hearing about stuff like this for years now. At some point there has to be a truce.
      No, there doesn't. And it's like the middle east; if there is a truce, it will only be until one side sees an advantage in breaking it.

      I'm not sure what the answer is, but perhaps it is time for the entire middle tier (the record labels) to get ripped out of the equation and for the RIAA to be dissolved.
      That's a good idea, but that's not a truce; that's victory.
  • by Egdiroh (1086111) on Saturday January 12, 2008 @07:20PM (#22019520)
    I can't say I'm 100% up to date on the current batch of p2p clients but with many of the earlier generation there were common issues of false advertising:

    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.
  • by ozzee (612196) on Saturday January 12, 2008 @07:22PM (#22019536)
    Whenever I read the RIAA stories, I keep on thinking, what about a situation where I can communicate some seemingly random bits and someone else makes the effort to reassemble them.

    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)

      by muuh-gnu (894733)
      > I keep on thinking, what about a situation where I can communicate some seemingly random
      > 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])
      • by ozzee (612196)
        Thanks, that's a very interesting link.

        Still, I'd like to know what a judge would think of this. Mr RIAA is not going to roll over and play dead. What would their argument be ? In this scenario, the RIAA would have to prove I pushed copyrighted bits. However with a one time pad key, there is literally no information I am passing. Does a discussion about the hypothetical amount of information passed even have any weight in something like this. Not only that, my one time pad encrypted file is an origi

  • Copyright infringement is kinda funny... because whether or not infringement depends on the designated purpose of the copy being made (being copied for fair use, for example, being exempt from infringement), the intent of the person actually doing the copying is ultimately what matters with regards to determining whether copyright infringement actually applies. Intent is difficult for a court to determine directly, so it must be inferred by the activities of the person. By that reasoning, it seems eviden
    • If you actual read the fine brief by the EFF you will see that according to the law, intent does not matter. If intent was what mattered then the RIAA would certainly prevail since intentionally "making available" implies intent. The EFF cite the letter of the law and then give many case law examples that make clear that an actual transfer to a 3rd party must occur before it is a copyright violation. They cite cases where unauthorized people advertised copyrighted works and the defendants prevailed becau
  • The EFF's argument to some extent is probably correct, but then it goes on and on into utter nonsense.

    The contention that only "physical distribution" of "material objects" is addressed by copyright and that digital dissemination does not constitute distribution is not going to fly. That pretty much means that I can download anything and no matter what I do, no matter how blatent, as long as it is only in the "digital domain" that no copyright violation can be asserted.

    That means that software has no copyr

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