RIAA v. Barker Showdown Slated for January 76
NewYorkCountryLawyer writes "Judge Kenneth M. Karas has set Friday, January 26, 2007, at 2:15 P.M., as the oral argument date for Tenise Barker's motion to dismiss complaint, in Elektra v. Barker, in federal court in Manhattan. The argument will take place at the newer federal court house, located at 500 Pearl Street, New York, New York, in courtroom 21D on the 21st Floor. Proceedings are open to the public. This is the case in which amicus briefs were filed by the Motion Picture Association of America (MPAA), the Electronic Frontier Foundation (EFF), the U.S. Internet Industry Association (USIIA) and the Computer & Communications Industry Association (CCIA), and a Statement of Interest was filed by the U.S. Department of Justice (USDJ). Defendant Tenise Barker moved to dismiss the complaint on the ground that neither downloading nor uploading had been alleged sufficiently to give her notice of what she was being accused of, and on the further ground that merely "making available for distribution" was not a copyright infringement at all. The RIAA and MPAA argued that merely "making available" was indeed a copyright infringement. Defendant, CCIA, and USIIA argued that it was not. EFF argued that intangible computer network transmissions cannot be "distributions" within the meaning of the Copyright Act. USDJ argued that they can be. Defendant refrained from taking a position on that issue here and here. The DOJ refrained from taking a position on the "making available" argument, indicating that it had never prosecuted anyone for "making available". See page 5, footnote 3."
Best of luck (Score:2)
"Making available" (Score:5, Interesting)
If I leave a stack of copied CDs (ones I own myself) that I made for backup purposes (since my CDs quite easilly scratch) accidentily on a table in a foodcourt and someone takes them with them, would I be sueable for infringement of copyright?
And if I did it on purpose?
And how do we decide whether it's on purpose or not?
Splut.
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Actually
(Just making a solid real world comparison to the ethereal 'net' world, and yes, it's flawed, I do realize that
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More up here [canada.ca]. Not only you can copy all the CDs you borrow (be it from a friend or a library), but you can share them online, too (says the Supreme Court [google.ca]).
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If you have your CD's stolen (not copies, but the original CD's) is the person who took them guilty of theft, or copyright infringement?
Surely you could not be guilty of distribution, since they were wrongly taken from you. Giving them away would not be a crime either, as you are giving up ownership willingly. The key to the argument is numbers. When you, and the 2nd party are both using a single purchased copy, at the same time (as opposed to, say, renting and returnin
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But yes, if you can't make a backup for yourself, you certainly can't give a copy to everyone in your family, they should each buy one if you listen to in different places/formats at the same time.
Don't forget if you play your radio/CD/IPOD in your cubicle, you're inviolation of the broadcasting rules unless you pay BMI/ASCAP for playing it in a public place without properly licensing
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Ideally, no, that act would not fall under copyright infringement by itself without intent.
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In the UK I'm sure you could only be found guilty of conspiricy if a 'crime' had actually happened, now adays just talking about something is enough to get a conspiricy charge.
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Interesting. Then why... (Score:3, Interesting)
No intent. Why are you liable for one while you're not for the other?
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As you've demonstrated, the effect of intent on being charged with a crime varies depending on the crime. Specifically, how much "they" dislike the crime.
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It is often not stated in the EULA (which are also, in some countries, by no means binding) or in the manual of P2P programs that you are automatically offering what you are downloading.
So many people run P2P tools with no knowledge behind the idea of P2P (similar to their general knowledge concerning computers, IP laws and all the other little funny things that clog the legal system) and offering copyrighted material wit
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That is, of course, one of the main jobs of a jury. The law has spent a few thousand years (as long as there has been law) making determinations as to whether the actions of an individual were on purpose or not. It's not a new problem.
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There's no need to rely on any one person for the penalties for or definition of copyright infringement -- go to the source [gpo.gov] (or Cornell's helpful pseudo-mirror [cornell.edu]). I agree with you that there may be penalties for unintended infringement.
I also believe that making available copyrighted materials for distribution probably isn't illegal since there is no law
Attempt example ... (Score:2)
Re:"Making available" (Score:5, Interesting)
The short answer: probably not.
Using this as an analogy for P2P sharing ignores two important ethical and legal factors: (i) what you intent was, and (ii) what results are reasonably foreseeable consequences of your actions.
If somebody picks up your backup CDs that you have accidentally left on the food court table, you clearly have no intent to enable copyright infringement. But if you leave the backup CD's at a kiosk somebody has labelled "CD Swap", a reasonable person might infer you intended to give a third party access.
As for forseeability and its relationship to responsibility, let me give you a true example. My nephew leant his college roommate his laptop to do a last minute paper. The roommate left the laptop open on the floor and went to bed. My nephew came in late at night, and very considerately did not turn on the light. As a result he stumbled over his laptop and broke the screen. The roommtate contended he wasn't at fault, because it was my nephew who stepped on his own laptop.
This story illustrates several valuable points, not the least of which is "neither a borrower nor a lender be." But the key one for us is that we are responsible for the reasonably forseeable cosequences of our actions. A reasonable person would predict that a laptop left open on the floor in a darkened room probably would come to harm. This means that the roommate has a duty not to put it there, and by breaching that duty makes himself responsible for the consequences.
Applying this principle to your analogy, a reasonable person does not expect that carrying backups around will lead to their being stolen; it might happen, but it is not likely. The degree of probability matters; people carry things that are valuable to them around all the time, and sometimes lose them. But I think you're in good shape if you can show that the care you took with the copies is no different from the care a reasonable person takes with property that is his own and in which he places considerable value.
Personally, I'm pro music sharing. But there's no consistent way to argue that copying music on P2P is a copyright infringement but that sharing music on P2P is not. Every right, whether fundamental or statutory, imposes corresponding duties on others to respect that right. The duties aren't limited to direct violations of the right, but extend to taking reasonable care that the right not be violated as a predictable result of our actions.
A good example of the duty of reasonable care is the recent spate of stories about databases of personal information being stolen because they were on laptops or removable media. The argument that absolves P2P sharers from responsiblity for forseeable copying would also absolve the agencies in these cases from responsibility for forseeable identity theft.
There are only three logically possible ways to argue that P2P sharing is not a copyright violation. The first and best would be to argue that P2P downloading is not a copyright violation at all, but somehow falls under the heading of fair use. The second would be to show that the kinds of copying done as a result of sharing would not reasonably forseeably include copyright violations. The last way would be to show that you took reasonable steps to guard against improper copying.
The last two arguments are not as attractive as they might seem. A mistaken belief that an act is legal doesn't absolve you of your duty not to aid it, any more than believing that the person who steps on the laptop is responsible makes it OK to leave the laptop on the floor. It's the forseeability of the act that matters, not the foreeability of the act's legality.
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As for forseeability and its relationship to responsibility, let me give you a true example. My nephew leant his college roommate his laptop to do a last minute paper. The roommate left the laptop open on the floor and went to bed. My nephew came in late at night, and very considerately did not turn on the light. As a result he stumbled over his laptop and broke the screen. The roommtate contended he wasn't at fault, because it was my nephew who stepped on his own laptop.
A reasonable person would predict that a laptop left open on the floor in a darkened room probably would come to harm.
(emphasis mine) Yes, a reasonable person would predict that. But this was a college student who was probably up late writing the last minute paper, and when he was going to bed the open laptop probably provided enough illumination for him to think that it is visible in the dark room easily.
That he was probably tired may have assisted in forgetting about the power-saving mode. Or maybe he was ignorant of power-saving mode at all - you can never tell what someone kno
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A minor question here: Isn't the RIAA arguing that an MP3 copy (not lossless) is the same as a CD quality (lossless) copy of the music involved in the infringement. If so, this puts recordings off the radio in the same category as MP3 file sharers? Doesn't it? If the
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I'm fairly certain that the law enforcement authorities will try only to catch the forger rather than all who have used the fake $20 bill.
I think they would care if you knew that it was fake and still tried to use it. We can be reasonably sure (in the US, at least) that the currency is not fake. We can't make the assumption that files on P2P networks are legit from the copyright owner.
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No. True, they'd probably like to be able to say copying music from any source without a license is illegal, bu
Radio Stations (Score:1)
AFAIK radio stations don't pay for that right. In fact, the record companies generally send out advanced copies of CD's to the radio stations to play. Radio is a free advertisement for the record company of their artist.
There is a big difference between P2P downloading and radio, in that with the P2P you can download the entire album and play it over and over again at
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1. I disagree that there are only 3 logical arguments.
2. Additionally, your statement fails to take into account the fact that there are a great multiplicity of different kinds of "P2P sharing" behaviors involving copyrighted recordings, just as th
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Do you have examples of other arguments that don't fall in his categories? Note that he's not talking about arguments about whether copyright law is just in this regard, merely that it is, in fact, illegal to violate copyright law as it stands. Perhaps you could claim that copyright law would not withstand a constitutional challenge if it blocked P2P sharing, but that seems pretty unlikely.
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2. You can assume, if you like, which of the multitude of possibilities he was talking about, but I was clarifying an error in the logic of the statement. He was speaking as though there were one kind of file sharing behavior, when in fact there are a multiplicity. I predict that
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Well, I suppose that if you want to take the statement out of context, you are correct.
If you read back to the start of the thread, I
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Great, well, if you don't actually say anything more than "I disagree," then why bother posting on a discussion site? It adds nothing.
As for your other point, I think the other reply to your post said it pretty well... sure, there ARE plenty of clearly legal uses of P2P sharing but
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And I'm sorry you fault me for pointing out that there are many different types of file sharing behaviors, rather than just one
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The GGGP said there are only 3 possible arguments.
I responded that there are many more than 3.
If you want to believe that there are only 3 possible arguments, that's your prerogative.
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Well, IANAL, but I think these three classes of arguments are the only ones I can imagine when it can be shown you have provided a file somebody else has copied illegally. I suppose that you could add disputing whether the copying in fact took place.
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What I'm talking about isn't what you can get away with; it's what the law entitles you to do with copyrighted materials.
Suppose, as a lawyer, a client asked you about a certain P2P application that would be illegal, but impossible to prove. Can you ethically and legally advise him to go ahead just because it would be easy for you defend later? Naturally,
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Re:"Making available" (Score:5, Insightful)
If they would read the statute (copyright Act section 106) they'd feel differently, but they don't feel they have to do stuff like that.
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Best of luck to those intrepid souls who are doing their best to defend our interests though. Who knows, maybe we'll get lucky. There's always an outside chance that the judge will be an honest one who actually understands technology.
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If you are a U.S. citizen, your Federal tax dollars are being used to help the MPAA wage its civil lawsuit here. You knowm, if I filed a civil lawsuit against someone, it sure would be nice if the Federal government decided to get involved and backed up my postion. But it sure would not be fair.
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But take comfort in this:
The DOJ did NOT support the "making available" argument at all; it expressly distanced itself from that argument on page 5, in footnote 3, indicating that it has NEVER prosecuted someone for "making available".
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Re:Feh! (Score:5, Informative)
Distribution vs. Reproduction/Performance? (Score:5, Insightful)
Is YouTube distributing the videos, or reproducing/performing them for the public?
In a way, the only real difference is scale. Public performance is limited by the size of the arena, which largest venues are still orders of magnitude smaller than YouTube's possible audience. YouTube can be used by anyone in the world with a connection to the Internet and a reasonable PC.
So, YouTube could potentially target more people more easily than a public performance. But a public performance is guaranteed to impact a number of people (all those within hearing or seeing distance), whereas a YouTube video might never be watched by anyone.
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"Making Available".. (Score:5, Insightful)
This argument is full of holes.
Aero
Not just books (Score:3, Interesting)
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Is the library to be blamed for "making a
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"She's in trouble for "Making available"?"
Not quite -- for making unauthorized copies available. It's just two words, but an important distinction. If the library made their own copies and sold or lent them, there'd be an issue. But (much to the RIAA's chagrin, I'm sure), you can generally lend, sell, trade, etc. originals as much as you like. I know that many people reading this will say "what's the big deal if I lend the CD I bought to my friend Billy, vs. burning him a copy?" but the law has countles
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"Not quite -- for making unauthorized copies available. It's just two words, but an important distinction."
Actually, shark, you're giving the RIAA too much credit. Had every single one of the songs been an authorized copy, as for example one purchased lawfully from iTunes or a similar entity, the RIAA would still be pursuing its suit against her. The Hotaling case dealt with unauthorized copies. The RIAA, however, does
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Acronym Heaven (Score:1)
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Civility on Slashdot. Whatever is the world coming to?
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The American justice system used to be characterized by quite a bit of civility, sometimes to the consternation of clients who wanted a 'pound of flesh'.
That was before a new breed of lawyers came along who will do anything their client tells them to.
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One thing I wonder about with the RIAA lawyers, when they are at a cocktail party and someone asks them what kind of law they practice, what do they say?
"I sue children, disabled people, dead people, working people, people on welfare, grandmothers, people on social security, people on disability, the working poor, students, and regular middle class people, for copyright infringements they didn't kn
Forgetting for the moment the legality, or lack... (Score:1)
Re:Forgetting for the moment the legality, or lack (Score:2)
"As to P2P filesharing, I'd take the probably here unpopular view that it is a plain violation of the rights of the artists and/or recording companies."
I think that's a mischaracterization. I'd wager that even the most rabid P2P enthusiasts recognize that copyright law exists and that making unauthorized copies via P2P is a violation of same; the common view is that we don't need to pay attention to those rights for one or more reasons:
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Agreed with your points (the list was my summary of popular opinion around here, not a reflection of my own views). I think it's a common belief around here that software developers (in particular, OSS developers) should have their rights respected to a greater extent to artists or record companies, apparently for the primary reason that we have empathy toward OSS developers, whereas we don't feel that much of a connection with people in the music industry (no matter what side of the mixing board or mahogan