EFF Takes On RIAA "Making Available" Theory 366
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."
Consequences? (Score:2, Interesting)
Re:Consequences? (Score:5, Insightful)
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Re:Consequences? (Score:5, Informative)
Oh, I think NewYorkCountryLawyer knows what he's talking about. You know how people say IANAL? Well, he doesn't say that because he is a lawyer. And one that has particularly been defending copyright infringement cases lately. This is a reading of existing law, not necessarily trying to establish a 'new law' via legal precedent (which, BTW, isn't all it's cracked up to be.)
Re:Consequences? (Score:5, Informative)
By the way, the proof that even the RIAA lawyers know that their theory is baseless is that they have abandoned it and omitted it from all of the complaints they've filed during the past 5 months or so. See "RIAA Abandons "Making Available" in Amended Complaint in Rodriguez case" [blogspot.com] and "RIAA Abandons "Making Available" in New Complaints Being Filed" [blogspot.com]
Re:Consequences? Bogus (Score:3, Interesting)
If they know its clearly bogus, then why don't they, in fairness, also drop all the previous cases where they argued this in the first place?
not necessarily (Score:3, Insightful)
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Re:Consequences? (Score:5, Informative)
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)
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A
Is this a good thing? (Score:3, Interesting)
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)
Re:Thought crimes (Score:4, Interesting)
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Re:Thought crimes (Score:4, Interesting)
Re:Thought crimes (Score:5, Informative)
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.
It's a civil case, not a criminal one, right? (Score:3, Informative)
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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
Re:Thought crimes (Score:4, Interesting)
All countries I know of, however, DO have thought crimes: drug prohibition. Think about it: what does a drug do to you? It changes your brain chemistry, which is another way of saying it changes your thoughts. Drug prohibition, then, is making it illegal to have those thoughts. That is, literally, thought crime and thought control. Does that make drug prohibition bad public policy? Maybe not, but it is a pretty significant limitation on freedom.
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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)
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.
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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.
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Re:Is this a good thing? (Score:5, Interesting)
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"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
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Trying to break the law is not a crime. (Score:4, Informative)
Re:Trying to break the law is not a crime. (Score:5, Interesting)
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.
Re:Trying to break the law is not a crime. (Score:4, Interesting)
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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
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The thing is that the *PERSON* who is making the unauthorized copy is the person doing the downloading.
Car analogy! (Score:2)
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
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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
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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:Car analogy! (Score:4, Informative)
Selling drugs is illegal no matter who you're selling them to. The same is not true of copyrighted content.
Dan Aris
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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
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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".
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Re:Trying to break the law is not a crime. (Score:5, Interesting)
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.
Re:Trying to break the law is not a crime. (Score:5, Insightful)
"attempted copyright infringement" is not a crime, because it does not violate any current law.
Just because it seems wrong to somebody does not make it a crime. Crimes are defined by laws, not your feelings.
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Re:Trying to break the law is not a crime. (Score:5, Interesting)
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?
Re:Trying to break the law is not a crime. (Score:4, Informative)
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?
Re:Trying to break the law is not a crime. (Score:5, Insightful)
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.
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.
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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.
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Read the brief (Score:2)
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:
law != morality (Score:2)
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
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
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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.
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"Wanna buy some crack? Just kidding..."
In one case I sold crack. In another I made a bad joke.
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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.)
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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
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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
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Too rich to be guilty (Score:3, Funny)
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Really high PL and latency though.
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Your forgetting how the Professor made a Satellite Modem and TV out of coconuts in Season 5.
Gilligan was a
Error Will Robinson, Error! (Score:5, Informative)
Re:Error Will Robinson, Error! (Score:5, Informative)
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NO. They DID say ripping a copy to the computer was unauthorized.
HOWEVER the LAWSUIT was because he'd put those files into his Kazaa shared folder.
I.e. he wasn't on trial for ripping a CD. But they did say they were unauthorized, nonetheless.
Amicus Curiae (Score:4, Informative)
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)
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There are a few minor variations to this general rule, but they don't really apply here.
Re:Bit off topic.. (Score:4, Insightful)
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.
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First, this is a civil matter, so the issue is whether or not the defendant is liable; guilt is not at issue.
Second, in the US system -- and I'm simplifying things here, a bit -- any party can appeal if things are not entirely to its liking, though in practice, it is usually one or the other. But for the US Supreme Court (as distinguished from the various state Supreme
getting old (Score:4, Interesting)
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.
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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
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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)
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We've grown up a generation that thinks if it can be sent over a wire, it should be free. If I can find a way to download it, I took it for free. Therefore, I'm a winner and the people paying are suckers and losers.
If you honestly believe that "content creators" and their agents should have any rights, you must be over 30. I'm over 30 but I don't know many people under 30 that believe that - the Internet is free, everything on it should be
The clients mis-advertise a lot anyway. (Score:4, Interesting)
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.
Technical barriers to copyright violation (Score:3, Interesting)
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.
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> 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])
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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
Because it's the intent that matters here (Score:2)
Intent does NOT matter (Score:2)
Oh please (Score:2)
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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Yes, and on top of that Video killed the Radio Star [youtube.com]. I suppose the RIAA's logic would say that by posting that link I just facilitated copyright infringement.
What kills me is that the music labels are still searching for the magic formula.
What they're searching for is a magic button that will restore their iron-fisted control of content distribution. What's taking so long is for them to realize that the button doesn't exist because there's no such thing as m
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So by making a file 'available' to the public, I am then violating copyright law? Well, by this same logic, if I leave my car window open and have a CD sitting on the passenger seat, I am then "making it available to the public". If I buy a DVD online and it is sent to my letterbox outside my house, and I don't have a lock on my letterbox, I am then "making it available to the public". Where is the flaw in my logic? Or am I actually making a valid point?
I would say you're making a valid point. Certainly Judge Kenneth Karas would say so, since he made exactly the same point to the RIAA's lawyer at the January 26, 2007, oral argument [blogspot.com] (pdf) of Elektra v. Barker [blogspot.com]. (See, e.g. page 28 of transcript.)