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New Dismissal Motion in File Sharing Case 256

Posted by CowboyNeal from the moving-on dept.
NewYorkCountryLawyer writes "A new motion to dismiss an RIAA peer-to-peer file sharing case has been made, this time in Brooklyn federal court, in Atlantic v. Huggins, reports Recording Industry vs. The People. As in Elektra v. Santangelo, the RIAA had served a boilerplate complaint alleging generally 'downloading' ,uploading', and 'distributing', but without naming any specific acts. Defendants' lawyers argue that "the Complaint alleges in conclusory fashion and upon information and belief that defendant used "an online media distribution system" to download and distribute certain alleged copyrighted recordings to the public, and/or to make such recordings "available for distribution to others." but "makes no attempt to describe the specific acts of infringement or the dates and times on which they allegedly occurred.""
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New Dismissal Motion in File Sharing Case More

New Dismissal Motion in File Sharing Case

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  • Exactly. I'm waiting for a case. (Score:3, Insightful)

    by Nomihn0 ( 739701 ) on Thursday September 29, 2005 @09:14PM (#13681677)
    This is why I am waiting for an uploader case to go to COURT. Let's have a martyr ... and watch him live to tell the tale.

  • IF the motion is not denied.... (Score:5, Insightful)

    by GenKreton ( 884088 ) on Thursday September 29, 2005 @09:16PM (#13681690) Journal
    If this motion is not denied, regardless if he wins or not, at least this may make the extortion process a bit more expensiver per a person for RIAA, assuming this instills enough fear that they attempt to properly develop a case on a per-person basis. It maybe just whishful thinking on the other hand.

  • This is a very bad precedent. (Score:5, Funny)

    by Anonymous Coward on Thursday September 29, 2005 @09:17PM (#13681697)
    If this continues, we might start to see a rash of people defending themselves against lawsuits, rather than sticking to the time-tested system of out-of-court-settlements our nation is founded on. Who knows what effect that might have on our national justice system?
    • People of the USA would have justice for all, instead of justice for rich bastards and multinational corporations
      • People of the USA would have justice for all, instead of justice for rich bastards and multinational corporations

        You left out the piece of shit deadbeats who file frivolous lawsuits based on bullshit injury claims.

        • Most of those people are looking for a quick settlement. They put the figure low enough so that it's cheaper to settle than to fight, but sometimes, the other side does fight back.
          • Most of those people are looking for a quick settlement. They put the figure low enough so that it's cheaper to settle than to fight, but sometimes, the other side does fight back.

            That number can run well into the 10's of thousands of dollars and still be cheap enough to settle. That's high to me, and crap like that is why we all pay high insurance rates.

        • Re:This is a very bad precedent. (Score:5, Insightful)

          by SavvyPlayer ( 774432 ) on Thursday September 29, 2005 @10:19PM (#13682024)
          The trouble is there is little risk in these types of lawsuits. The big players sue the little guy all day every day knowing full well their suits will be settled for a net profit, while the little guy with a pro-bono attorney in other cases also have a good shot at settlement. Personally I see no morality in either situation.

          If judges were required on the other hand to impose upon a losing plaintiff the defendant's legal fees, the number of frivolous suits on both sides would fall dramatically -- perhaps to 5% of today's levels.
          • If judges were required on the other hand to impose upon a losing plaintiff the defendant's legal fees, the number of frivolous suits on both sides would fall dramatically -- perhaps to 5% of today's levels.

            You'd also see a sharp falloff of risky but legitimate suits, and that's a bad thing.

            What judges need is the leeway to order payment of the defendant's legal fees if the suit is particularily absurd; the requirement to do so makes the situation worse.
          • Maybe it should voluntary, the imposing legal costs thing.

            The problem is that the rich guy can use his money to crush the little guys. The suits don't even have to be for a profit, they just need to kill off the big file sharers, and they wager that the cost of getting rid of the major distributors will greatly hurt filesharing. And they think that a 10% to 20% reduction in piracy would greatly boost their shares, which reduction is what I guess they'd get from forcing a less centralized system and higher
          • If judges were required on the other hand to impose upon a losing plaintiff the defendant's legal fees, the number of frivolous suits on both sides would fall dramatically -- perhaps to 5% of today's levels.
            Then it becomes poker. Big companies can bluff out smaller player all day every day 24/7/365. There is a solution... but this isn't it.
          • Well, technically speaking, in the federal court system, a judge CAN impose the defendant's legal fees for an obviously frivolous action.

            See Federal Rules of Civil Procedure, specifically Rule 11(b)(2), which specifies that claims must be based in law or in a nonfrivolous extension of law. Rule 11(c) covers possible sanctions.

            Now, Rule 11 isn't designed as a cost shifting device (this is an actual quote from memory, but I can't remember the actual case), but will be used as one in obviously frivolous

    • Re:This is a very bad precedent. (Score:2, Funny)

      by Anonymous Coward
      The DMCA allows the RIAA to pay one lawyer to file 500-1000 John Doe lawsuits at once to learn the identities associated with IP addresses. They don't pay any more court fees for all those suits than they would have if they filed only one suit. Then they pay one marketing droid to issue a press release attacking thieving piratecriminals and sit back and watch the fear campaign work its course in the media.

      Their next step is hiring a direct marketing firm to send out threatening letters to the victims inst

      • The DMCA allows the RIAA to pay one lawyer to file 500-1000 John Doe lawsuits at once to learn the identities associated with IP addresses.
        HOLY CATS! The RIAA is a front for the religious right in its pursuit to track down all the dangerous pr0n surfers! They don't care if the RIAA loses, so long as they get the goods on the IP addresses.

        We're all screwed.
        • Actually, they have the FBI for that. [lupinia.us] I wish I was joking.
          • Completely off topic but

            I read your linked article, and found it interesting, but it overstated its case. There is a legal (IMHO valid) difference between porn and obsenity, and obsenity is not protected by your first ammendment rights. The difference is determined using the Miller Test, which the article does an excellent job of explaining includes, among other things, community standards. He then goes on to express dismay that the government is judging whether something is art or not, completely ignori
      • Intellectual property laws are important. The RIAA is a gang of selfish, money-hungry corporations engaging in legalized extortion. These opinions are not mutually exclusive. I think we just need to figure out some sensible middle ground - say, 10 years for copyright/patent protection and no DRM allowed.

        The purpose of IP laws are to enhance public domain. When viewed this way, the general principle (though possibly not the implementation in the U.S.) makes a lot of sense.

        Somebody I know once suggested m

  • IANAL, but... (Score:2, Interesting)

    by Brandon K ( 888791 )
    makes no attempt to describe the specific acts of infringement

    Now, IANAL, but how much more descriptive can you be? They're practically handing them a printout with what illegal files had been being shared, are they not? What else is necessary?

    • Re:IANAL, but... (Score:5, Informative)

      by Larmal ( 691516 ) on Thursday September 29, 2005 @09:25PM (#13681731)
      no, they're handing a printout with what files were available to be shared - there's no proof, however, that anything was actually shared - which is the point of the grandparent. If memory serves me correct, this is exactly why the judge in Canada threw out the case (i think - can i get a confirmation on this?)
      • anyway to prove that that those screenshots are legit? sow the seeds of doubt that the RIAA forged the screenshots... IANACS but even if the RIAA had a log showing that they downloaded from this guy, is it hard to forge log files etc? wouldnt they need log from his computer to prove what was uploaded? do these logs even get created by filesharing software?

        • Re:IANAL, but... (Score:3, Interesting)

          by InvalidError ( 771317 )
          In eMule, there is an option to save logs to disk but it is not enabled by default.

          If the RIAA followed due process, they would have filed a complaint with the RCMP or local police, the police would have investigated the lead and verified the *AA's claims, then they would have requested a warrant and raided the house.

          The RIAA takes justice in its own hands to extort money from people through out-of-court settlements. Last time I checked, justice self-service and extortion were both illegal in the USA, Canad
      • This is exactly correct. The filing is saying that the RIAA is not making any actual claims, just noting the potential for claims - there is a difference. When you claim a damage you have to be very specific, right down to the penny.

        Where? What? When? Why? etc...

        And finally: what can the court do to help you recover?

        You must state a claim AND a proposed resolution in settlement of the claim.
    • The RIAA accused them, so they MUST be guilty!

      The RIAA has whole teams gathering evidence. They wouldn't accuse an innocent person.
      • Yes, they have teams of monkeys who would have a better chance of rewriting A Tale of Two Cities then generating reliable evidence.
        Monkey #1 go get a list of IPs owned by an ISP serving a low income neighborhood
        Monkey #2 pick X from the list
        Monkey #3 here's a list of our most popular songs, pick X dozen
        Monkey #4 make up a time stamp to be "generated" by our tracking software

        There's a thing called reasonable doubt and my doubt is becoming less resonable with every RIAA lawsuit where I don't see some reasonab
      • The RIAA accused them, so they MUST be guilty!

        The RIAA has whole teams gathering evidence. They wouldn't accuse an innocent person.

        Man. That's like the prosecutorial equivelant of the Chewbacca defence. And it's shockingly accurate to the way they seem to do their cases.

    • Re:IANAL, but... (Score:5, Interesting)

      by chphilli ( 885315 ) <chphilli+slashdo ... TBSDom minus bsd> on Thursday September 29, 2005 @09:28PM (#13681748) Homepage Journal

      It looks like what the RIAA provided was just a list of file names that the defendant had available for downloading. However, this does not show that any files ever were actually transfered.

      According to TFA, prior cases have shown that for a copyright to be infringed, a specific instance (or instances) of infringement must be shown. For example: "On the [day] of [month] at [time], the file [filename] was transfered from [defendant] to [recipient] by means of [transport medium]. The file in question is [of some relation] to our copyrighted work: [copyrighted work with copyright information]. At least, that's my take on it. (IANAL)

    • Re:IANAL, but... (Score:3, Interesting)

      by ciroknight ( 601098 )
      How about a little proof other than a file name and an IP address? But then of course, the only way they could (reasonably) do this, is to download a copy of the song from that person. But then, doesn't that mean they're committing the same crime as they are charging the person with? Is it legal to steal something back if it was stolen from you to begin with? (of course, this is a bad example; copyright infringment isn't theft, and it certainly isn't tangible, along with a civil action, not a criminal one..
      • How about a little proof

        Proof is for trials - simple allegations are for complaints, the document that a motion to dismiss goes up against.

      • Re:IANAL, but... (Score:3, Insightful)

        by EvanED ( 569694 )
        But then of course, the only way they could (reasonably) do this, is to download a copy of the song from that person. But then, doesn't that mean they're committing the same crime as they are charging the person with? Is it legal to steal something back if it was stolen from you to begin with? (of course, this is a bad example; copyright infringment isn't theft, and it certainly isn't tangible, along with a civil action, not a criminal one.. yet).

        Yes, it is a bad example, and flat out wrong on a couple poin

    • Re:IANAL, but... (Score:2, Informative)

      by Anonymous Coward
      The motion implies that the RIAA did not make any specific allegations of infringement. It claims that it is not enough to show that a person had copyrighted material that _could_ have been downloaded. What is necessary, according to the motion, is to show that a person actually distributed copies of protected works to the general public. Since the RIAA didn't have any specific claims of what works were distributed, when the were distributed, or to whom they were distributed, it does seem like a reasonab

    • Re:IANAL, but... (Score:5, Interesting)

      by twiddlingbits ( 707452 ) on Thursday September 29, 2005 @09:31PM (#13681774)
      It depends on the laws covering indictments in that State. There is an old lawyer saying that "You can get a Grand Jury to indict a ham sandwich" which means the prosecutor gets a lot of leeway at that level and does not have to be specific. However, at the real trial there generally needs to be a lot of SPECIFIC evidence to convict. If it is a criminal offense evidence must be "beyond a shadow of a doubt", civil cases just need to be "preponderance of evidence". And then again juries are funky, they can convict or set free based on how thier perceive the defendant and the prosecutor. OJ got off but Scott Peterson got nailed. Neither case really had a lot of evidence that directly proved murder. This case could also end up settling out of court, unless those who are being sued have deep pockets or a pro bono [no charge] lawyer. The RIAA or defendant can always subpoena the logs from the IP provider (assuming they kept any) that should settle a lot of things. If the RIAA has logs they have to turn them over to the defense as per the Rules of Evidence.

      • Re:IANAL, but... (Score:3, Informative)

        by ari_j ( 90255 )
        I think this is a civil case - no indictment, no grand jury, no prosecutor, no conviction. And the Rules of Evidence don't require the RIAA to turn over any logs it may have. The Federal Rules of Procedure certainly may, but there are a lot more details to know before they'd be required to hand over their logs.
        • Yes, it is a civil case but I read the complaint and I can't see a claim in there. The Federal Rules of Evidence might apply here depending on if it is heard by a Magistrate Judge but in any case each side has to fully brief the other side otherwise how can they prepare a complete defense?. Of course you can play games and keep them in the dark as long as you can get away with it. No surprises like on TV ;) IANAL, but I know quite a few.

      • Re:IANAL, but... (Score:2, Informative)

        by DaveLatham ( 88263 )
        If it is a criminal offense evidence must be "beyond a shadow of a doubt"

        Make that "beyond a reasonable doubt". There's very often a shadow of a doubt. It's just not always reasonable.
    • Now, IANAL, but how much more descriptive can you be? They're practically handing them a printout with what illegal files had been being shared, are they not? What else is necessary?

      If someone wanted to press charges against an individual for flashing them, the police wouldn't take the report if the person didn't specify when and where the acts occured, even if the victim had a long list of different dance moves the guy did in the buff.

  • Who can sue for copyright infringement? (Score:2, Interesting)

    by Anonymous Coward
    If A copies file F copyrighted by B, can C sue A for copyright infringement?

    If so, A could still have a license from B to copy F. Does A have to show such a license for his defense, or is A assumed innocent and the burden is placed on C to demonstrates that A couldn't possibly have a license from B?

    This is a general question. F can be software, music, movies, your brother's wedding pictures etc. B and C can be various organizations, laywer firms, artists, producers, your brother.

  • What does not kill me only makes me stronger (Score:5, Interesting)

    by ReformedExCon ( 897248 ) <reformed.excon@gmail.com> on Thursday September 29, 2005 @09:25PM (#13681728)
    Here's what happens now. RIAA makes the request to Congress that ISPs open up, on request, records indicating upload (the main problem) transfers citing the obvious rampant criminal sharing going on on the network. Congress, in response, seeing both an opportunity to pad the coffers of its reelection campaigns as well as a chance to strengthen the rights of IP holders, decides to strike a blow to the 4th Amendment and force upload data to be opened upon subpoena.

    Both sides in this equation (file uploaders and the RIAA) are in the wrong. You simply can't decide that you don't have to follow the law because you 1) don't like the law and 2) that technology allows you to violate the law easily. Moreover, the RIAA is continuing to alienate its customer base by using heavy-handed tactics on fairly low-level criminals. In addition, by continuing to violate the law and thumbing their noses at the industry, the file sharers themselves are forcing the lawmakers into strengthening IP laws.

    I do not blame this guy for fighting the lawsuit. It takes a lot more guts to stare down the RIAA than to give in and pay them their due. But by forcing the RIAA to be more thorough in the future means that future lawsuits won't get away so easily.

    And since this is just a motion for dismissal and not an actual dismissal (who knows what judges will do?), the judge may decide that the RIAA has enough evidence to prove that this guy was a file sharer and toss out the dismissal.
    • You simply can't decide that you don't have to follow the law because you 1) don't like the law and 2) that technology allows you to violate the law easily.

      Sure you can! You resign yourself, however, to suffering the full penalties of a law, even if you consider it invalid. It would probably be a gross overestimation to ascribe to any significant proportion of filesharers any kind of truly well-concieved ethical stance, though.

    • Re:What does not kill me only makes me stronger (Score:5, Insightful)

      by phauxfinnish ( 698087 ) on Thursday September 29, 2005 @09:53PM (#13681917)

      You simply can't decide that you don't have to follow the law because you 1) don't like the law and 2) that technology allows you to violate the law easily.

      I hate this line of reasoning. You absolute can violate a law because you don't like it and/or have an easy time doing it. The fact that you can do something doesn't make it morally or legally right, but you can still do it. When a large number of people loose respect for a law, the will of these people being what gives the law validity in the first place, it is time for the law to be reconsidered. When the people want to repel a law, or decide how that law be applied, it is the government's job to accommodate to the extent that the Constitution allows. If the Constitution does not adequately fulfill the needs of its people then it is up to the people to work within their government to modify it.

      Laws can be broken. Perhaps laws should be broken. I think everyone should intentionally break a law once and a while, just to remind yourself how thin the line is between order and chaos. And how thin a line order is within the surrounding chaos. Society lacking structure opens itself to rule of the strongest, but the government that too firmly restricts its citizens will fall at their hands.

      A balance must be struck. The people must be secure in their ability to control their government, and a government must depend on her citizens to behave in a civilized fashion. For either to overstep their place would be disastrous.

      • Re:How many people... (Score:2, Informative)

        by bwcbwc ( 601780 )
        actually obey the speed limit on the interstate? I would estimate about 40% where I live. If you're willing to pay the consequences, you can violate any law you want.

        I see his point though. Is music/software/video piracy a social good when practiced on the scale enabled by the internet? I've seen the arguments on both sides for years, so I'm old enough to be cynical about both sides.

        Most pirates download because they're cheap and want instant gratification, instead of waiting until they've paid down the cre

      • Re:What does not kill me only makes me stronger (Score:5, Insightful)

        by Anonymous Coward on Friday September 30, 2005 @12:55AM (#13682491)
        Great post.

        I'd like to add, when the populace, in large numbers, chooses to willfully break a law, or thinks they would not be acting *unjustly* if they were to do so, this is often an indication that the law itself does not reflect the actual will of the people. In today's climate, where it is often the wealthy and powerful minority that make or influence the laws, rather than the "will of the people" (in representative form), it's important to note this point.

        Of course, the public also sometimes seeks to resist laws that they don't like simply because the laws are designed to benefit society at their individual expense (Social Security, Medicare, smoking bans, taxes in general).

        And finally, the public is often so misinformed, easily manipulated, and easily swayed by persuasive (but fallacious) arguments by friends, colleagues, and celebrities, that they form unreasonable beliefs about whether certain laws are just, similar to how the public is so easily manipulated into voting for politicians who promise to serve the public interest if elected/re-elected, despite having prior *public* voting records that demonstrate the emptiness of those promises. My point being, society is often wrong about what's good for itself, so it should always be with a large grain of salt that any particular credence is given to demonstrations by "the will of the people."

        However, if the people are in strong opposition against a particular law, that *should* motivate the smarter people to take a hard look at the law and examine whether the law is in fact not in the populace's best interest.
    • Here's what happens now. RIAA makes the request to Congress that ISPs open up, on request, records indicating upload (the main problem) transfers citing the obvious rampant criminal sharing going on on the network. Congress, in response, seeing both an opportunity to pad the coffers of its reelection campaigns as well as a chance to strengthen the rights of IP holders, decides to strike a blow to the 4th Amendment and force upload data to be opened upon subpoena.

      And here's what happens to defeat that. You

  • This is going nowhere... (Score:5, Interesting)

    by WebHostingGuy ( 825421 ) * on Thursday September 29, 2005 @09:26PM (#13681735) Homepage Journal
    As a former federal practice attorney this motion is going nowhere.

    Federal rules allow a plaintiff in a lawsuit to just give enough notice to the defendant so they have a clue; a small clue. Further procedures such as discovery, document requests and depositions are meant to bring out the specifics of how and why. Federal Judges allow alot of leeway in these because that's what the case law lets them do. And, even if the defendants were to show that the plaintiff didn't provide them with enough notice 99 times out of 100 the Judge just rules that the plaintiff has to file a restated complaint with more information. (I have rarely heard of any case which was thrown out because of failure to plead.) Further, the cases these attorneys rely upon are mainly just district court opinions which are presuasive but not necessarily binding. The two appeals court cases they do rely on don't really help--one is out of the appellate circuit which does not make it binding and the other in circuit is just a general clarfication. This is nothing but a drive by the defendants attorneys to rack up billing hours or gain media attention.

    • Re:This is going nowhere... (Score:5, Informative)

      by WebHostingGuy ( 825421 ) * on Thursday September 29, 2005 @09:46PM (#13681869) Homepage Journal
      The reason for allowing a low barrier intitially is that history has shown that if you don't do so you can get stuck in just figuring out what the plaintiff is trying to sue over. The Federal rules basically want to avoid this and get the parties into the meat of the suit--whether they did it or not. Some states still require very specific pleadings. That is, the plaintiff has to spell out in specifics what the defendant did. However, this leads to a lot of legal ploys. One time in a state which required specifics as an attorney for the defense I delayed the lawsuit for eight years withoug getting into any meaningful discovery or even allowing the plaintiffs to move the case forward. Compared to that I'll take the low barrier anyday.
    • The very clearly reasoned and yet utterly unreasonable legal position that you describe illustrates admirably why the law is held in such low regard these days and lawyers are viewed as bloodsucking scum.

      Strategies, counter-strategies, technicalities, 10 million stages to the legal "game", and every move achieving almost nothing except a transfer of money into the wallets of lawyers. Absolutely wonderful.

      Meanwhile, sight is lost of whether the alleged wrongdoings actually constitute a loss for the plaintif

  • At Last.... (Score:5, Interesting)

    by zappepcs ( 820751 ) on Thursday September 29, 2005 @09:26PM (#13681738) Journal
    At last, finally, it comes down to "show me when and where and how they broke the law" instead of OMG, they have P2P software, they must have broken the law. Maybe the wildfires in CA are because of their exploitation of the world in general? Well, maybe not, but its about time someone made them prove illegal file sharing actually took place.

    My opinion? The Internet is so big, so anonymous, so unstoppable... to try to stop it is just ignorant. Litigation in these cases is so much like trying to stop the tide from coming in with buckets. Get over it, your business model is gone... nobody likes you... start selling your product with at least 20th century means. Joining the 21st century would be better.

    When will the world learn that TCP/IP and the Internet are far more than they know how to deal with?

    It gives me more glee to see the *AA in a bit of trouble than it does to see MS losing ground in their marketplace...... I don't even care how much trouble, the fact that they have to prove something is just a very good thing. and it is about time.
    • My opinion? The Internet is so big, so anonymous, so unstoppable... to try to stop it is just ignorant.

      Your opinion seems to be based upon as much ignorance. The Internet is very much stoppable. Governments could very easily make Internet access illegal merely by passing laws. Data lines can be cut with a nice heavy pair of scissors. Governments are VERY powerful. People seem to forget this in this day and age, because the US government dances to a corporate tune these days. While outlawing the Intern
  • Could it be? The RIAA has gotten away with these silly, "you've been downloading, so it must be illegal" accusations quite a bit over the last year. Maybe it is finally time for the users to finally stand up and say "Oh yeah? Prove it!"

  • Copyright law in general (Score:3, Interesting)

    by Council ( 514577 ) <rmunroe AT gmail DOT com> on Thursday September 29, 2005 @09:36PM (#13681808) Homepage
    There are so many issues like this -- there was that questionable BigHack paper about the illegitimacy of digital copyright in the first place, and so many questions of intent that really haven't been addressed. I'm glad to see that . . . you know, I don't care right now.

    I know it's a big deal, freedom of speech and information in the digital age, but sometimes I just get tired of it all. I'll care again tomorrow, probably. But right now . . .

    http://www.xkcd.com/drawings/copyright.jpg [xkcd.com]

    Anyone wanna go out for a drink?

  • File contents (Score:4, Interesting)

    by Scrithy ( 919074 ) on Thursday September 29, 2005 @09:40PM (#13681827)
    I've heard that they give defendants a list of files...but how do they know the contents of these files? If I upload something called yesterday.mp3 how do they know it isn't a recording of me singing the song?
  • Will they swing again, or they gonna go for the easy bunt? Bases are loaded, tension is high... will this be the one that makes or breaks their game?
  • Before they sue anyone, simply have one of their employees download a few songs to their private PC from the defendant's system.

    There you go. Actual distribution. Actual copyright infringment. Known date and time.
    • "Before they sue anyone, simply have one of their employees download a few songs to their private PC from the defendant's system."

      But if the RIAA owns the copyrights to those songs (or acts as an agent of the copyright holders), then uploading a file to an RIAA member isn't infringement, is it?

      Moreover, in such an instance, the RIAA would be participating and even encouraging the distribution. You can't sue someone for behaviour you incited, can you?

  • Comment removed (Score:3, Interesting)

    by account_deleted ( 4530225 ) on Thursday September 29, 2005 @09:52PM (#13681902)
    Comment removed based on user account deletion

    • Re:So basically (Score:3, Informative)

      by cpt kangarooski ( 3773 )
      So basically, you don't really know that much about copyright, do you?

      First, civil actions for copyright infringement use a preponderance of the evidence standard, not beyond a reasonable doubt. Second, an uploader not only engages in reproduction (because copies are made within their computer) but also in distribution, which does occur if someone downloads the file. Third, copyright infringement is a strict liability offense; intent is irrelevant. It might play a factor in the amount of damages, but you ca

      • Re:So basically (Score:4, Informative)

        by Kjella ( 173770 ) on Thursday September 29, 2005 @10:42PM (#13682104) Homepage
        Third, copyright infringement is a strict liability offense; intent is irrelevant.

        Intent is irrelevant if you performed the act, but what if you didn't? I'll take the only other strict liability issue I can remember, fucking minors. It doesn't matter if you intended to or not. But intending to or conspiring to fuck a minor is also illegal (cops pick up peeps from chatrooms on that). Because as far as I know, the RIAA has no evidence that a copyright infringement did actually occur. Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine). Yes, the file is available for anyone to download. Did anyone actually do it? The best they can shoot for is intent to violate copyright law.

        Kjella
        • Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine).

          Why wouldn't that work? I haven't heard of courts refusing to consider that to be infringing. Got a cite?

          The best they can shoot for is intent to violate copyright law.

          Which isn't an offense, so they're not shooting for it at all. Probably they can find some evidence of infringement during discovery, or at least think they can.
          • Unless they downloaded it themselves, which doesn't work (Unclean hands doctrine).

            Why wouldn't that work? I haven't heard of courts refusing to consider that to be infringing. Got a cite?

            Sorry, I don't got a cite but I'm trying to apply logic (never a good thing when dealing with the law). I can see it being taken as proof that the file was authentic and actually available for download (some share files with ports closed, fake clients etc.), but I can't see it be accepted as counts of infringement.

            RIAA: Let

            • Re:So basically (Score:5, Informative)

              by cpt kangarooski ( 3773 ) on Friday September 30, 2005 @12:22AM (#13682411) Homepage
              This just brings us back to your needing to get more familiar with the law. All this stuff is covered in 17 USC 501 et seq.

              For copyright infringement, there are a couple of different remedies: injunctive relief, damages, seizure and destruction, and costs and fees.

              Injunctive relief (i.e. a court order whereby the infringer is told to stop infringing) has no connection with whether there was one infringement or a thousand. A plaintiff is satisfied with a single injunction.

              Damages are calculated one of two ways, at the copyright holder's option. First, either the actual damage caused to the copyright holder, plus the net profits of the infringer. In your typical downloading case, these are too negligable to care about. So the second option is statutory damages. There, the infringer has to pay an amount set by the court, within a range set by the statute, and which goes up or down depending on whether the plaintiff can prove that the infringement was willful or the defendant can prove that the infringement was in good faith. But this amount is determined, not per infringement, but per work infringed! If you upload one copy of an mp3 or a thousand copies of the same mp3, it's all the same. The statutory damages can only increase in you're infringing multiple works.

              Seizure and destruction are usually more aimed towards professional infringers. The copies they've made, and the tools they've made them with can be confiscated and destroyed. This is unlikely to be applied to John Filesharer, however.

              And finally court costs and reasonable attorney fees can be imposed on the loser, if the court wants.

              So there's no way for the RIAA to increase the amount of damages just by downloading more than once. Now, if there are multiple works being shared, then that can increase the damages spectacularly, but it's difficult to see why that's an inherently bad thing. After all, RIAA would _not_ be the party responsible; it's the defendant that put up all those different files for download.
              • If you upload one copy of an mp3 or a thousand copies of the same mp3, it's all the same. The statutory damages can only increase in you're infringing multiple works.

                Well, I admit I've misread this section to be per infringment, not per infringed work. None the less, I feel you're still "making your own pot of gold". It's like renting out a car to someone, making them liable for damages during the rental, then smash up the car to cash in on damages. The fact remains that unless they had actively caused an i
                • None the less, I feel you're still "making your own pot of gold". ... The fact remains that unless they had actively caused an infringment to happen, it is possible that there would be no infringement at all.

                  This is not true, due to the nature of the infringement.

                  The offense here is that the uploader distributed the files. It doesn't actually matter who is on the other end of the distribution. They are not allowed to distribute copies to anyone. Not even the copyright holder.

                  The infringer can't claim that h
      • Comment removed based on user account deletion
        • Perhaps it's safe to say that the uploader is negligent because of the P2P configuration and deserves to get sued though.

          Sigh.

          Negligence is irrelevant. For a strict liability offense all that matters is that you did it. No one cares what was going through your head, or whether you breached a duty of care, or anything. If you do it, that's it, end of story.

          The only way you can avoid liability for this sort of thing is to show that you didn't do it. For example, if you can prove -- and this would be quite di

  • The money factor (Score:4, Insightful)

    by merc ( 115854 ) <slashdot@upt.org> on Thursday September 29, 2005 @10:00PM (#13681941) Homepage
    The RIAA won't care if someone wins a dismissal. The defendant had to pay for a lawyer and spend time fighting the case. As long as they sell the tech community on the idea that infringement will cost you something if you refuse to settle they still win, at least idealogically.
    • They will care, because the grounds set forth in the motion are fully applicable to ALL the RIAA complaints, which are identical boilerplate. A dismissal will be a precedent that may force the RIAA to reconsider its whole strategy which has been to sue people right and left, without evidence of any copyright infringement having been committed by them.
  • The RIAA want to sue everyone so they'll stop downloading music and actually pay for it. Sounds great, but what about their customers? Broke-ass college students may download the music for free now but would become addicted to always having new music and when they graduated and had massive mounds of disposable income would begin buying CD's in earnest. Why would a college graduate want to buy a CD from a company that sued their best friend back in college? Sounds good in theory, but doesnt work - like comm

  • What is copywritten ? (Score:5, Interesting)

    by Tsiangkun ( 746511 ) on Friday September 30, 2005 @12:01AM (#13682356) Homepage
    What exactly does the copyright cover on a musical work ? The notes, the chords ? The lyrics ? a likeness to a song ?

    Is the copyright for the entire piece ?

    If I downsample something to a 4 bit audio sample, is it a violation of copyright ?

    If I get some shitty song stuck in my head and keep singing it, is it copy right infringement ? What if I tape myself ? And Distribute the tapes ? For a fee ?

    If I translate a copywritten text to heiroglyphs, poorly, is it still compyright infringment, or just a story with the same plot and same basic them ?

    When does something stop being copyright infringment and become something else ?

    • Re:What is copywritten ? (Score:3, Informative)

      by Anonymous Coward
      Both the song (music/lyrics) and the performance itself is copyrighted (not copywritten -- we're talking about a right to copy, not writing copy). The song is copyrighted by the songwriter, and is subject to compulsory licensing which means that anybody can perform it by paying a set fee to the songwriter. Recording a variation of the song not covered by fair use will require negotiating a license.

      The performance is copyrighted by the performer and is only subject to compulsory license according to very str

    • If I downsample something to a 4 bit audio sample, is it a violation of copyright ?

      No, it makes you a remixer. ;-)

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