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Law Profs File Friend-of-Court Brief Against RIAA

Soulskill posted more than 5 years ago | from the dissenting-opinions dept.

Media 186

NewYorkCountryLawyer writes "A group of 10 copyright law professors has filed an amicus curiae ('friend of the court') brief on the side of the defendant in Capitol v. Thomas, agreeing with the judge's recent decision that the $222,000 verdict won by the RIAA appears to be tainted by a 'manifest error of law.' The clear and well-written 14-page brief (PDF) argues that the 'making available' jury instruction, which the RIAA had requested and the judge ultimately accepted, was in fact a 'manifest error of law,' making the point, among others, that an interpretation of a statute should begin with the words of the statute. My only criticism of the brief is that it overstates the authorities relied on by the RIAA, citing cases which never decided the 'making available' issue as cases which had decided it in the RIAA's favor." As it turns out, the MPAA, close ally to the RIAA, has come forth with a more controversial view. They suggest that proof of actual distribution shouldn't be required. From their brief (PDF): "Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."

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186 comments

Wow. get a load of that. proof not required (5, Insightful)

unity100 (970058) | more than 5 years ago | (#23883977)

you accuse someone of something, then come up and say that 'proof is not required'. get a load of that !!! back to middle ages. next ; witch hunting, death by stoning, and dung for dinner.

well, since it has come to this, i am hereby accusing all MPAA, RIAA members of child abuse, child pornography, treason. remember, PROOF IS NOT REQUIRED.

Re:Wow. get a load of that. proof not required (5, Interesting)

Heather D (1279828) | more than 5 years ago | (#23884011)

Indeed, the MPAA seems to genuinely believe that they are above the judgements of us 'commoners'. There was a time when I would have laughed at this, these days I'm only pretty sure that it won't go over.

Re:Wow. get a load of that. proof not required (1)

ProdigySim (817093) | more than 5 years ago | (#23884679)

I don't know about that, but what I do know is that in a capitalist system a Lawyer can get paid a lot of money for arguing that his client is right no matter what :) You don't have to think you're right to argue it in court.

Re:Wow. get a load of that. proof not required (5, Insightful)

Sonnekki (978779) | more than 5 years ago | (#23884021)

Indeed! I thought we took a step forward as a society by creating rules and mandates.

If proof isn't required for this, then WHAT IS proof required for??

Christ on a stick.

Re:Wow. get a load of that. proof not required (4, Funny)

Dayze!Confused (717774) | more than 5 years ago | (#23885013)

At one point we needed too much proof so we started printing a lot of it; proof then went down in value due to inflation and is now lower than the US Dollar.

Re:Wow. get a load of that. proof not required (0)

Anonymous Coward | more than 5 years ago | (#23886157)

At one point we needed too much proof so we started printing a lot of it; proof then went down in value due to inflation and is now lower than the US Dollar.

I never understood why we gave MAFIAA, Enron, and all of our politicians such a hard time for all those all-night paper-shredding sessions? They were willing to work overtime to restore the value of truth, and look at the thanks they get!

Re:Wow. get a load of that. proof not required (0, Flamebait)

aug24 (38229) | more than 5 years ago | (#23884037)

treason

Well, it's worked out exactly like that for the Gitmo inmates, so I'm looking forward to seeing people in grey suits over there next to the ones in orange.

Sauce for the goose, etc.

Justin.

Re:Wow. get a load of that. proof not required (1, Insightful)

Anonymous Coward | more than 5 years ago | (#23884071)

Where does this stupid meme come from? The Gitmo inmates aren't accused of treason. They're not even Americans, for crying out loud!

Re:Wow. get a load of that. proof not required (4, Funny)

cp.tar (871488) | more than 5 years ago | (#23884089)

well, since it has come to this, i am hereby accusing all MPAA, RIAA members of child abuse, child pornography, treason. remember, PROOF IS NOT REQUIRED.

In addition, I will testify against them.

Re:Wow. get a load of that. proof not required (4, Funny)

Kjella (173770) | more than 5 years ago | (#23884665)

well, since it has come to this, i am hereby accusing all MPAA, RIAA members of child abuse, child pornography, treason. remember, PROOF IS NOT REQUIRED.
In addition, I will testify against them.
Some of the music they put out should probably be considered child abuse. What's worse, the children seem to have been groomed to like it.

Re:Wow. get a load of that. proof not required (4, Funny)

Libertarian001 (453712) | more than 5 years ago | (#23884825)

And the mere fact that they chose not to respond to these allegations (of child abuse, child pornography and treason) is proof of their guilt.

I'll get the rope.

Re:Wow. get a load of that. proof not required (1)

cp.tar (871488) | more than 5 years ago | (#23885393)

I'll get the pitchforks.

Who has the torches?
And I don't mean the electric ones.

Re:Wow. get a load of that. proof not required (5, Insightful)

dogscats (720965) | more than 5 years ago | (#23884105)

By this court's reasoning, every library in the country is guilty of copyright infringement because by permitting people to borrow books, it is "making available" those books for copying. Absolutely absurd, no?

Re:Wow. get a load of that. proof not required (1, Informative)

Televiper2000 (1145415) | more than 5 years ago | (#23884197)

The libraries are licensed to lend you the books. They've been granted that right by the copyright holders.

Re:Wow. get a load of that. proof not required (0)

Anonymous Coward | more than 5 years ago | (#23884321)

And if I'm not mistaken, when you buy a CD, you are allowed to rip that music to .mp3 (or else PMPs would be pointless). In iTunes, if you're connected to other people, you can freely listen to their music by streaming it over the network. In both cases, people could illegally make copies: either by photocopying the book from the library, or by making a copy of your song. But not everyone has iTunes, and there's no "Stream Only" sharing permission. If it's not illegal to listen to music you don't own over a network (in which case, RIAA would be suing Apple), then sharing your music isn't inherently a crime (obviously, you can't stream on most P2P apps, but the point stands for the "making available" argument in general).

The point being, while partaking in actions fully allowed to them by the letter of the law, both are making the media (books/music) "available" to be copied by less honorable people. The difference is, even if it is proven that someone checked out a book from a library and copied, collated, stapled, and sold it, no-one is going to sue the library; yet even if there is no proof that any copying occurred with music, the fact that it's even possible to do so makes the user liable to be sued.

Re:Wow. get a load of that. proof not required (2, Insightful)

Anonymous Coward | more than 5 years ago | (#23884329)

The libraries are licensed to lend you the books. They've been granted that right by the copyright holders.
I'm not so sure that's true. I'm pretty sure no license is required, and libraries operate completely under fair use.

Re:Wow. get a load of that. proof not required (5, Informative)

mmurphy000 (556983) | more than 5 years ago | (#23884683)

The libraries are licensed to lend you the books. They've been granted that right by the copyright holders.

Perhaps in your country, that's true. In the US, that's incorrect.

Libraries buy books no differently than anyone else, except that since they buy in quantity, they usually work with a distributor or "jobber" rather than deal with a zillion publishers individually. Otherwise, there's no real difference — they pay, they get the books, they use the books. It just so happens that "use the books" involves a moderately-constrained lending program.

It is conceivable that there's a clause in copyright law that grants libraries special rights, though I'm not aware of any such clause.

Instead, libraries tend to work on first sale doctrine, AFAIK. They bought the book, so they can lend it, use it to prop up short table legs, or whatever they feel like doing with it. So long as they don't copy the book, there is no copyright infringement.

Comparing a library to the "making available" case is a bit of a stretch, though it is worth noting that there was a similar round of sturm und drang around libraries making coin-op copiers available to patrons, on the grounds that it facilitated copyright infringement. I forget if that made it all the way to a trial verdict or if the plaintiffs just dropped the whole issue.

Re:Wow. get a load of that. proof not required (5, Informative)

Rival (14861) | more than 5 years ago | (#23884833)

They've been granted that right by the copyright holders.
This is not entirely true. At least in the U.S., this is granted by the U.S. Government. [cornell.edu]

Some interesting reading, there. For example:

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if--
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
Provided one can get their collection classified as an archive in regard to this title, it should be fairly easy to make a case for fair-use (not that we should have to make a case to begin with, but these are litigious times.) I especially enjoy the note about finding replacements "at a fair price".

Re:Wow. get a load of that. proof not required (1)

mrchaotica (681592) | more than 5 years ago | (#23885443)

The part of the law you quoted is concerned with the library copying its own materials. This has nothing to do with what the thread was talking about, which was lending the originals.

It is not necessary to "make a case"... (1)

Jane Q. Public (1010737) | more than 5 years ago | (#23886347)

because it has been done. More than once and long ago. That issue has been pretty solidly decided.

Re:Wow. get a load of that. proof not required (2, Insightful)

mrchaotica (681592) | more than 5 years ago | (#23885397)

They've been granted that right by the copyright holders.

No, they haven't! They've been granted that right by law, over the strenuous objection of copyright holders!

Re:Wow. get a load of that. proof not required (1)

TheGratefulNet (143330) | more than 5 years ago | (#23886013)

The libraries are licensed to lend you the books. They've been granted that right by the copyright holders.

I have borrowed cd's and dvd's from libraries. many people have. I don't think they have any special arrangement with the music and movie people (??)

so NOW what do you say?

Re:Wow. get a load of that. proof not required (1)

silentcoder (1241496) | more than 5 years ago | (#23884211)

You know, your analogy is very much better than my attempts below to explain the idiocy. This is so true. Libraries let anybody borrow a book, usually free of charge, and most even have photocopiers inside the building where you could copy as much as you want for a nominal per-page charge. They'll warn you that more than a few pages is infringement but how many varies from country to country (in South Africa it's 1/3) and of course there are purposes for which even 100% would be legal (education for example) so they won't really check up.
Nobody would agree with suing librarians for a fortune because of this - how is file sharing any different ? Merely putting the files in a share is no different to letting people borrow books from a library. If somebody now makes a copy the library is not infringing. Even the 'download is itself a copy' argument fails because many books in a library are NOT allowed to be taken home but you are always welcome to copy pages of interest for further study from those and that makes pretty much an exact same scenario,

I am basically posting my agreement with you very clearly because I think you hit the nail on the head and I could see room to expand a little. If I had modpoints though - you would get all of them as this is by far the best analogy I have ever seen on this topic.

Re:Wow. get a load of that. proof not required (-1, Redundant)

Televiper2000 (1145415) | more than 5 years ago | (#23884295)

File sharing is 100% different. Libraries are granted the right to lend book by the copyright holders. Most file sharers are not granted this right. The photocopier falls under the category of fair use. Besides, most people aren't mentally retarded enough to pay 3x as much for a book by photocopying it when they could just read it half the amount of time. They give away movies and music all the time on the Internet and it's the same principle. The rights holder grant the distributer permission.

Re:Wow. get a load of that. proof not required (5, Insightful)

silentcoder (1241496) | more than 5 years ago | (#23884479)

What ?
I dare you to walk into any library and say 'please show me the license you have for each book you lend out'. They won't have a single sheet like that. Libraries do not have any kind of certificate either that says
"This is a public library certified to lend books under agreement with the book publishers association of $COUNTRY"

There is nothing like that. Libraries are NOT Licensed to lend out media - because nobody NEEDS a license to lend out MEDIA. Copyright does NOT prohibit lending to another party ! It prohibits copying and DISTRIBUTION OF COPIES.
Lending out an original is not copyright infringement or even MENTIONED in the copyright ACT of ANY country !

But lets get a fairer example then. Almost all libraries have more than books, you can usually also take out DVD's and music CD's - the selection is more limited than a music store but then again they tend to have a BETTER selection of the true artistic greats (even if they are less commercially successful).
These are almost always available for lending, and always easy to copy. If I loan a DVD from the library and copy it has the library 'made it available for piracy' ? I am deliberately NOT comparing with a video store which rents it out commercially because they ARE licensed (or at least SHOULD be) and pay a licensing fee for the right to do so.
Libraries are not and never should be because they are not renting out (which copyright covers) they are LENDING out (which it doesn't).

And even if in your country libraries need to have a license to lend media (does this apply to the small library of childrens books at the local creche ? my home library if a friend wants to borrow one of my discworld books ?) then it would surely not be a license to allow people to copy what they lend - the library has no control over what you do with the media you borrow once you walk out the door, if you copy it, it is your infringement and regardless of any license-to-lend or lack of it, them making it available to you is NOT an infringement.

Sorry I think the library analogy to their 'making available' argument is perfectly valid. In fact, I would have been MORE (but not much) sympathetic if they were trying to claim that making available in a fileshare is unauthorised broadcast (this is not handled identically in all copyright systems - in South Africa for example they had to amend the creative commons licenses to include broadcast because redistribution right doesn't include broadcast here but it does in America) - after all if you play a song on the radio without a license it's still broadcast regardless of whether anybody is listening. I do think though that they are well aware that any judge will decide it ISN'T a form of broadcast which is why they haven't tried it. But to say that making available = distribution even if nobody downloaded is outright ludicrous.

Formalize the Analogy (1)

GospelHead821 (466923) | more than 5 years ago | (#23885985)

I think that your analogy is a good illustration, but it is also important to recognize the limitations of the analogy. In the case of the library, you can not borrow their copy of a DVD without depriving them of their physical media for some time and you can return it without copying it, if you wish. In the filesharing case, at no point is the lender deprived of their copy of the media and you can't "borrow" it, except by copying it.

I think that this distinction is important because it seems very clear to me that filesharing is NOT like library lending in these important ways. This both makes filesharing appear more ethically questionable than library lending (which I believe it is) and also to protect library lending from criticism when the side of the argument representing copyright holders wants to use the same analogy against libraries.

Re:Wow. get a load of that. proof not required (1)

Blackhalo (572408) | more than 5 years ago | (#23886055)

"I do think though that they are well aware that any judge will decide it ISN'T a form of broadcast"

Wait, broadcast? I like this line of reasoning. How much does a radio station pay when they broadcast a song? Is it somewhat based on the number of listeners? I can see a parallel between file sharing and a radio broadcast where the song is recorded. Is the radio station guilty of copyright infringement when I record a song off of the radio? Is not the difference in this scenario just that one is digital and the other analogue?

I do not think it would be in the best interest of the RIAA for it to be ruled a broadcast as the penalty for broadcasting a song without paying the dues to ASCAP or BMI (I think) is nowhere near the settlements that they have been seeking.

If it were ruled a broadcast, the RIAA would get NOTHING.

Re:Wow. get a load of that. proof not required (1)

silentcoder (1241496) | more than 5 years ago | (#23886353)

Ooooh, I like that.
@NewYorkCountyLawyer... can this work !?!?!? (I don't actually mean to ask for real legal advice, but you are our resident anti-RIAA lawyer and you ARE handling these cases... maybe /. actually has a useful contribution for you here ? With a little help from me :p )

I mean, when you think about it, it is in practise MUCH more like an unlicensed radio broadcast than like any other form of copyright infringement (you're not selling an illegally made DVD copy on the streetcorner after all)- so shouldn't the penalties and laws be the same ?

This could end the regime for good, if it requires fileshares to get licenses to broadcast music, that's a flat rate thing, and it leaves the only potential criminality existing in users who keep the copies.
We already have systems in place for legal internet radio streaming, which is handled very much like radio broadcast... is having files in your share-folder really different from an on-demand webradio stream ? The software to save streams permanently are easily available and at least this will put the legal question back where it belongs: with the downloaders.

Re:Wow. get a load of that. proof not required (0)

Anonymous Coward | more than 5 years ago | (#23886371)

I don't know much about the law aspect of it but I do know that the libraries here in Canada where I live also lend out CDs and DVDs which I would think is pretty well exactly the same as making available unless they have a license that I am unaware of

with apologies to monty python. (3, Funny)

mathnerd314 (1212880) | more than 5 years ago | (#23884119)

witch hunting

"Quiet, quiet! There are ways of telling if she is a witch. Tell me. What do you do with witches?"

"Burn them!"

"And what else do you burn?"

"More witches! Um... Wood!"

"Does wood sink in water?"

"No! No! It floats!"

"And what else floats in water?"

"A duck!"

"So, logically..."

"If she weighs the same as a duck, then she must be made of wood! And therefore... a witch! Burn her!"

all the "proof" you need.

Re:with apologies to monty python. (3, Funny)

zippthorne (748122) | more than 5 years ago | (#23884929)

IIRC, the woman in that quote actually was a witch, and also actually did weight the same as a duck, so I'm not sure what, exactly, you're trying to make fun of.

Re:Wow. get a load of that. proof not required (1)

trolltalk.com (1108067) | more than 5 years ago | (#23884161)

well, since it has come to this, i am hereby accusing all MPAA, RIAA members of child abuse, child pornography, treason. remember, PROOF IS NOT REQUIRED.

Seeing as they MPAA is advocating the removal - for them only - of the guarantees outlined in the law in general, and the Constitution in particular, a charge of treason, or at least sedition, might actually fly.

You could have their trial at the same time as Bush and Cheney's.

Re:Wow. get a load of that. proof not required (1)

Opportunist (166417) | more than 5 years ago | (#23884217)

You know, this is one of the few occasions when "mob rule" suddenly doesn't seem so terrible. I mean, it's not much worse than the mockery of "due process" we see every day.

At least under mob rule, such crooks would quickly be hanged. We can return to due process afterwards...

Re:Wow. get a load of that. proof not required (1)

trolltalk.com (1108067) | more than 5 years ago | (#23884343)

Hanging them would probably meet "acceptable community standards".

Re:Wow. get a load of that. proof not required (1)

aproposofwhat (1019098) | more than 5 years ago | (#23884557)

Hanging them would probably meet "acceptable community standards".

Only if it's by the goolies :P

Innocent until proven guilty? (1)

AtomicDevice (926814) | more than 5 years ago | (#23884167)

Last time I checked that was the law 'round these parts. Unless we're in Mother Russia where it's the other way around and you have to sit in a cage during your "trial". People *might* be stealing from my house, so they should have to pay me as if they were. I can't proove it, but c'mon, thing of how I'm (probably) being wronged!

Re:Wow. get a load of that. proof not required (3, Informative)

Kneo24 (688412) | more than 5 years ago | (#23884171)

That's not exactly what the MPAA is claiming. They're claiming they don't need any sort of proof to start accusing people. What they're saying is that if a person makes a file available, it shows intent. And based off of said intent, a copyright holder shouldn't need to show further proof of infringement.

It is a bit of a slippery slope, sure. Some people don't actually realize they're sharing files. Some do. They're going to have to prove something at some point, whether it be "intent" or actual infringement, I would assume.

Re:Wow. get a load of that. proof not required (0)

Alicat1194 (970019) | more than 5 years ago | (#23884257)

What they're saying is that if a person makes a file available, it shows intent. And based off of said intent, a copyright holder shouldn't need to show further proof of infringement.

So by the MPAAs reckoning, I should be able to have my boss charged with rape, since he has all the equipment, and has spent time in the same building as me? Nuts, just nuts (no pun intended).

Re:Wow. get a load of that. proof not required (1)

You ain't seen me! (1237346) | more than 5 years ago | (#23885975)

So by the MPAAs reckoning, I should be able to have my boss charged with rape, since he has all the equipment

Sounds like you seem to now your boss just a little too well :p

Re:Wow. get a load of that. proof not required (3, Insightful)

kurt555gs (309278) | more than 5 years ago | (#23884549)

If some one is lurking around the mall, is that 'intent' of robbery?

No, I think proof is needed of each single instance.

And, I have yet to be convinced that 'sharing' is wrong, in my mind, it would only be real copyright infringement if the works were actually sold to some one.

That is what copyright law was originally meant to protect, SALE of some ones work without authorization, not letting some one read, see, listen to it.

Re:Wow. get a load of that. proof not required (1)

zappepcs (820751) | more than 5 years ago | (#23884249)

Better we take a page from King Phillip and just go ahead and accuse them of blasphemy, secret meetings, desecrations of our holy book, buggery, and worshiping satan and other false gods. Let the tortured confessions begin.

It might end with pitchforks and torches at the castle door in the middle of the night...

It's probably good that the **AA don't operate in a country where such high drama happens. Instead they have to deal with 'all your mp3 are belong to us' and getting rick rolled 47,062 times a day while they're trying to figure out who is downloading with P2P.

As for the MPAA thinking they don't have to prove anything: it looks like the tide of court opinion is rolling back into the place it needs to be. Soon the **AA's career ship will set sails for other shores. If no proof is needed, then it doesn't matter what you steal from them, using simple logic, since they won't care in court what the evidence shows. That sounds like an invitation to go ahead and crack all their codes, steal their wares and have fun with their business' profitability.

Personally, I prefer the pitchforks and torches in the middle of the night.... I always liked that movie.

Re:Wow. get a load of that. proof not required (2, Interesting)

thewiz (24994) | more than 5 years ago | (#23884267)

What all the **AAs are doing is a simple application of the "Golden Rule": He who has the gold makes the rules.
Just remember what happened during the French Revolution [wikipedia.org].

Re:Wow. get a load of that. proof not required (0)

Anonymous Coward | more than 5 years ago | (#23884367)

you accuse someone of something, then come up and say that 'proof is not required'. get a load of that !!! back to middle ages. next ; witch hunting, death by stoning, and dung for dinner.

well, since it has come to this, i am hereby accusing all MPAA, RIAA members of child abuse, child pornography, treason. remember, PROOF IS NOT REQUIRED.

Where is a lawyer when u need one? I thought the writ of habeus corpus guaranteed that the accused would be presented in person with the proof of the misdeed.

Re:Wow. get a load of that. proof not required (4, Interesting)

Kjella (173770) | more than 5 years ago | (#23884611)

The Wired article and Slashdot summary got so much spin, it needs a little counterspin.

Can you be convicted of murder without a body? Yes, you can [wikipedia.org]. But wait, how do you do that without proof they died an unnatural death or even died at all? Circumstancial evidence - it's been enough to prove "beyond a reasonable doubt" so certainly it could be enough in a civil case.

What the RIAA is saying is that they have enough circumstancial evidence. That sharing a file on a public file-sharing network that exists for the very purpose of distributing files, where it's available to anyone that requests means that the network will perform its expected purpose - which for a copyrighted file is to perform unauthorized distribution. That this in itself is a "preponderance of evidence" that copyright infringement did occur, even without the body and smoking gun.

I think the RIAA could gather fairly strong evidence on this easily - set themselves up as a fake sharer of the same file and record how many people tried to downloaded from them. I think that would be very strong circumstancial evidence that copyright infringement does occur for others sharing the file. The standard of proof is after all quite low.

What I fear is that if this passes through, laws will change because it essentially makes P2P users immune and you know the powers to be won't stand for it. The only way to get direct evidence of infringement between third parties would be wiretap warrants. Wiretaps for "suspected copyright infringement"? That'll be rubberstamp heaven and the police wouldn't handle the volume - enter the copyright cops. I think there's more to lose by winning the battle than not.

Re:Wow. get a load of that. proof not required (2, Insightful)

dpiven (518007) | more than 5 years ago | (#23885043)

I think the RIAA could gather fairly strong evidence on this easily - set themselves up as a fake sharer of the same file and record how many people tried to downloaded from them. I think that would be very strong circumstancial evidence that copyright infringement does occur for others sharing the file. The standard of proof is after all quite low.
What does that prove? If someone downloads a fake file, that doesn't say jack about infringement of copyright. Saying otherwise is like an undercover cop selling someone a baggie of road salt and then busting them for possession of crack.

The standard of proof isn't all that low: they have to prove not only that someone knowingly made the file available with intent to distribute, but that the file contained copyrighted material, and the file was actually transferred to another party. (Current copyright law allows me to make [contrary to most EULAs] umpty-zillion backups of something, but does not allow me to convey that something to someone else unless I get rid of all my copies in the process.)

Suppose I make available a file called, say, "Windows Vista Ultimate.iso", but it happens to contain a couple of gigabytes of trash. (Yes, I know, the real one already does.) The RIAA wants it so that I am already breaking some sort of law, even if 1) what I am conveying contains absolutely no protected content (at least until somebody files a patent claim on /dev/random), and 2) nobody downloads my bogus Vista ISO in the first place.

Many other courts have already stomped the "making available" argument into the mud and paved it over, and the RIAA itself has abandoned many lawsuits based on that premise for fear of further stompage.

Obligatory Liar Liar (2, Funny)

Amarok.Org (514102) | more than 5 years ago | (#23884821)

Fletcher: "Your honor, I object!"

Judge Stevens: "Why?"

Fletcher: "Because it's devastating to my case!"

Judge Stevens: "Over-ruled."

Fletcher: "Good call!"

Re:Wow. get a load of that. proof not required (4, Insightful)

Tisha_AH (600987) | more than 5 years ago | (#23884895)

Next, the police will be picking people off the streets for prostitution. A girl is walking from church to her grandmothers house, minding her own business. The police arrest her and charge her with "making available" on a prostitution charge. I can see it in court;

"well, your honor, she was wearing a sun-dress and makeup, and you know what sort of girls those are." the judge, "ah, I see your point, we don't have to prove that she was giving BJ's in the back of a car, just that she was "making it available. GUILTY ON ALL CHARGES!"

Why can't a radio station be charged with "making available? Hell, anyone can pull out a tape recorder. OMG, I hummed a song earlier today! What if someone heard me and downloaded music because of it. Can they charge me??

This is spinning wildly out of control. The record companies must have a 20:1 ratio of lawyers to artists. Maybe they need just open a class action lawsuit against every American since we are all engaged in a conspiracy against them.

RIAA, be careful what you ask for. Maybe someday there will be a revolution and the RIAA lawyers will be lined up against the wall.

"And that one in the spotlight, he don't look right to me. Get him up against the wall. -- 'Gainst the wall!"

Re:Wow. get a load of that. proof not required (1)

rtb61 (674572) | more than 5 years ago | (#23885003)

Well technically speaking the people that the RIAA and the MPAA represent could be charge with child abuse as they do produce content that is often intended to promote self destructive life styles that is often targeted at children. The only thing really lacking has been the proof of intent, so perhaps this law change is a could idea.

So lets target the mass media companies and the marketing companies, now proof of intent should be required, just the clearly evident consequences and a 'belief' of the intent and hence guilt, so what should be the penalty for a whole bunch of corporate executive child molesters.

This has other repercussions (1)

Reziac (43301) | more than 5 years ago | (#23885165)

Indeed... there is no proof that you owe me rent for taking up space on my computer screen, but since having to prove that you did so would be an onerous burden on myself, we'll just find a judgment of $150,000 in my favour and be done with it. Fork it over!!

And it'd be tough to prove that you aren't squatting in my rental house, but having to come up with such proof is depriving me of revenue. So we'll just find in my favour and now it's up to you to cough it up!!

To reword the MPAA quote in terms of the above,

"Mandating such proof could thus have the pernicious effect of depriving rental owners of a practical remedy against massive squatter infringement in many instances."

Re:Wow. get a load of that. proof not required (1)

sconeu (64226) | more than 5 years ago | (#23885217)

All we need to do is put Thomas on a scale with a duck. If it balances, SHE'S A WITCH!!!!

Boycott CD's and DVD's (5, Interesting)

Anonymous Coward | more than 5 years ago | (#23883983)

We should all just boycott buying any CD's or DVD's at all. Don't download anything from iTunes or any of the other stores, either. If we make a strong stance and hit them in the wallet, maybe...just maybe...they'll get the message.

Re:Boycott CD's and DVD's (5, Insightful)

Anonymous Coward | more than 5 years ago | (#23884095)

Unfortunately, the only message I think they'll get from that is "Oh noes! More people are pirating our shit!"

Re:Boycott CD's and DVD's (2, Insightful)

Sonnekki (978779) | more than 5 years ago | (#23884173)

What really needs to happen is the artists move away from the record industry and movie industry, and start distributing it on their own.

Yeah, it'll be tough for the artist(s) to compete with huge companies, but if the artist is actually good, (assuming consumers are willing to donate money in exchange for good music / movies directly to the artist) that shouldn't be too much of a problem.

Furthermore, if the companies have nothing to sell, then there's nothing to pirate!

Re:Boycott CD's and DVD's (1)

Televiper2000 (1145415) | more than 5 years ago | (#23884271)

NO, artists have been doing this for decades. What really needs to happen is people have to stop turning their noses up on anything that isn't pushed by the mass media. It's bullshit that Radiohead and Nine Inch Nails get heaps of praise for moving away from major labels. Most bands never touch major labels.

Re:Boycott CD's and DVD's (1)

Kneo24 (688412) | more than 5 years ago | (#23885423)

I hate to break it to you, but major labels are currently a necessity. An evil one, but they're there for a reason. The fact is, a good portion of the population doesn't want to take the time to find out what is good by sifting through 1 million shitty bands just to find that one good one. The major labels do this for us. They help promote the music that they think we, as a whole, want to listen to. (I realize "good" is subjective here.)

Without either NiN or Radiohead having been famous, their model probably wouldn't have worked out to well for them in the first place. They probably wouldn't have become famous without a major label.

Re:Boycott CD's and DVD's (3, Funny)

Opportunist (166417) | more than 5 years ago | (#23884233)

So what you want to say is that the more insane copyright laws get, the more people download content illegally?

Hey, I have a really weird idea how to solve that problem and make both sides happy!

Re:Boycott CD's and DVD's (1)

Quasimodem (719423) | more than 5 years ago | (#23884887)

We should all just boycott buying any CD's or DVD's at all...they'll get the message.
When will we start seeing those film and recording artists -- so quick to tell us what we should support or boycott -- start refusing to participate in the projects of producers and distribution companies that support the MPAA and the RIAA?

They HAVE been... (1)

Jane Q. Public (1010737) | more than 5 years ago | (#23886393)

They HAVE been getting the message. People have stopped buying CDs in droves. As a result, more and more record companies are dropping "DRM" and limited-use "licenses" for their music.

Study after study (as mentioned here on Slashdot just a couple of days ago) have found that most people are perfectly willing to pay for music... but they are NOT willing to pay too much, or to pay full price for "use-protected", limited music, or to pay $20 for a CD that only has one or two good songs on it.

They want to pay per song, and get unlimited use for their money.

Really? (5, Insightful)

hal2814 (725639) | more than 5 years ago | (#23884025)

"Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."

If they can't prove the distribution, then how do they know the copyright infringement is happening?

Re:Really? (1)

UnixUnix (1149659) | more than 5 years ago | (#23884053)

"Mandating...instances" is just legalese for "won't let stakeholders browbeat innocents" :-)

--- Cutting through doublespeak since 1988

Re:Really? (5, Funny)

zblack_eagle (971870) | more than 5 years ago | (#23884063)

If they can't prove the distribution, then how do they know the copyright infringement is happening?

The same method they use to come up with the imaginary losses they suffer due to copyright infringement

Re:Really? (1)

ithellion (1311757) | more than 5 years ago | (#23884425)

It's rather simple. They take the amount that their profits were going up per year since before the whole p2p movement started, then assume it should have followed a curve like that forever (If not more because of the "we are awesome and deserve more" effect. Since it hasn't, their "losses" have become the difference.

Re:Really? (1)

Libertarian001 (453712) | more than 5 years ago | (#23884837)

"The same method they use to come up with the imaginary losses they suffer due to copyright infringement"

In the Navy we called this PFA -- pulled from ass

or possibly PFM -- pure fucking magic

Re:Really? (4, Informative)

NearlyHeadless (110901) | more than 5 years ago | (#23884135)

If they can't prove the distribution, then how do they know the copyright infringement is happening?

Their argument is that just making a copyrighted work available on a peer-to-peer network is infringement by itself. They argue that they shouldn't have to prove actual distribution, that is, that someone downloaded it. To see what files someone has made available is simple, by the very nature of peer-to-peer networks. Proving that someone has downloaded a particular file from a particular user is much more difficult.

Re:Really? (4, Insightful)

jedidiah (1196) | more than 5 years ago | (#23884523)

Sure. Showing that someone "is up to no good" has always
been more difficult than proving they actually did something
wrong. This has been a problem for accusors since the dawn
of time. The fact that justice can be difficult is no good
excuse to take shortcuts with the process.

Re:Really? (1)

NearlyHeadless (110901) | more than 5 years ago | (#23884877)

Showing that someone "is up to no good" has always
been more difficult than proving they actually did something
wrong. This has been a problem for accusors since the dawn
of time. The fact that justice can be difficult is no good
excuse to take shortcuts with the process.

On the basis of the briefs, it looks like the law professors have a better case based on the language of the statute. But I have to say that I don't see this as a case of some vague "up to no good" standard. If the distribution actually took place, there was infringement. If the distribution didn't take place, there was no point in making the files available.

It would be like hiding a camera in the girls' locker room, then arguing that no invasion of privacy occurred unless someone was actually watching the monitor while the girls were in the shower. It's hard to prove when someone was watching, but there's no point in putting the camera there unless you want to watch.

Re:Really? (2, Interesting)

smoker2 (750216) | more than 5 years ago | (#23885315)

Yeah right, so if I set the permissions on everything in my shared folder to 600 ,then they can still get me, because the titles are visible.

Re:Really? (1)

Opportunist (166417) | more than 5 years ago | (#23884251)

They say so. DUH!

What? It worked for getting laws, now it shouldn't work for getting legal titles? Is the bribe not high enough or what's your problem, judge?

Re:Really? (1)

CRiMSON (3495) | more than 5 years ago | (#23886431)

Dood they've got an IP and a NAME! (who cares if they don't linkup, just having both is insta-guilty!)

RIAA has it so tough, and never gets what it wants (4, Funny)

cpt kangarooski (3773) | more than 5 years ago | (#23884031)

Oh, certainly! If RIAA accuses someone of breaking a law, it is certainly a terrible burden on them to have to prove that, following the actual wording of the law Congress chose, an offense actually happened. Who among us hasn't had the same problem, from time to time?

If I went to Alice's bank, and demanded that they give me all of her money, because Alice died and left it to me, it would be a great hardship for me to have to show that Alice actually died, and actually willed the money as I claimed. Why, with the onerous burden of proof in my lap, I might not be able to collect anything! Just because there's an outside chance that she's still alive and doesn't know me from Adam doesn't mean that the bank shouldn't take my word for it.

I can say, absolutely honestly, that I have more sympathy with RIAA on this issue, than I have ever had with them on any other. Just don't ask me to prove it.

Re:RIAA has it so tough, and never gets what it wa (1)

Reziac (43301) | more than 5 years ago | (#23885487)

"If I went to Alice's bank, and demanded that they give me all of her money, because Alice died and left it to me, it would be a great hardship for me to have to show that Alice actually died, and actually willed the money as I claimed. Why, with the onerous burden of proof in my lap, I might not be able to collect anything! Just because there's an outside chance that she's still alive and doesn't know me from Adam doesn't mean that the bank shouldn't take my word for it."

The solution is simple: Kill Alice. Mail the corpse to the bank.

What? gaining the required proof involves blatantly criminal acts? No worse than what the RIAA does, and they suffer no penalties...

Soon... (0)

Anonymous Coward | more than 5 years ago | (#23884081)

They'll no longer need a *case* to sue. Free monies for our favourite shambling corporate presence.

Please do not fund the copyright lobby (4, Insightful)

Peaker (72084) | more than 5 years ago | (#23884117)

As independent authors, musicians and Free software developers and movie makers prove again and again, creating wonderful works of art and creativity does not require copyrights for a monetary incentive.

Movies, perhaps, require more financial support, but note: without copyrights, each of us would be exposed to many more movies which will all be far more accessible (non-copyrighted material can be distributed much more easily). So even if less movies are made, we will still enjoy more of them.

When you buy a piece of software, music or pay to see a movie, your money is not supporting the artists, or even supporting further creation. What you are supporting is a lobby that furthers laws to benefit companies to the great detriment of society. You are funding the enemies of society.

Please do not pay the copyright lobby to pass more anti-society laws.

Thanks.

Re:Please do not fund the copyright lobby (1)

cliffski (65094) | more than 5 years ago | (#23884941)

how does a game like Bioshock or Call of Duty 4 get made under your system?
because I loved both games and was happy to pay for them, yet you seem keen for that system to be smashed to pieces, and thus deprive me of being able to enjoy that kind of entertainment.

if you like free software,games and music, go and enjoy it. That's fine, nobody cares. Pirating copyrighted stuff on P2P just goes to show that that is exactly the kind of content people want. Free music and movies are not in the torrent sites top ten lists.

Also, my work is protected by copyright, and when you buy it from me, I get 90% of the money, so don't try and lump all copyright holders in together with this crap about the artists not getting paid.

Well... (2, Funny)

SirLurksAlot (1169039) | more than 5 years ago | (#23884141)

They suggest that proof of actual distribution shouldn't be required.

I don't know whether to be worried or relieved. It worries me that a judge somewhere is going to buy into that, at which point we can all kiss "innocent until proven guilty" goodbye. On the other hand this could turn out very well indeed if they get laughed out of court and be made to play by the same rules as everyone else.

This is turning ever more insane... (5, Insightful)

silentcoder (1241496) | more than 5 years ago | (#23884149)

One thing worth remembering of course is that the RIAA is not alone, it has little clones all over the world that follow in the footsteps of it's master (not least because they want to be able to buy resell rights for RIAA member companies' products). Here in South Africa for example we have ASAMI - which as gone so far as to say in public that 'recording a TV-show on your VCR is technically copyright infringement but we don't intend to prosecute that one simply because it would be impractical in cost compared to the damage done".
Actually, South Africa has a subset of copyright law known as Fair Dealing which is pretty much identical in wording to the US Fair Use law and recoridng a TV show to VCR is entirely legal. So is showing a DVD of a documentary to a class of schoolchildren.

Of course they have happily confused plagiarism with copyright whenever it suited them and love to call it 'theft' - despite the fact that copyright infringement isn't theft - it's a civil infringement not a criminal one - and stories of large scale seizures of 'pirate DVD manufacturing warehouses' are common on the news.

So the impact that these kinds of idiocies in the US legal system has is global because the RIAA's minions will attempt to subvert any laws in any countries to suit.

Let's just see what we have in this post (a fairly representative sample I think):
-Merely making it available is the same actually giving somebody a copy... by that thinking if I forget to lock my door and somebody steals my fridge... I'm as guilty of theft as he is ? I would go so far as saying that sharing music isn't copyright infringement at all, downloading it may well be, but making it available (Especially as it frequently happens without the person's knowledge) is not. It could even be argued that there is significant legal uses for sharing music - for example to save a friend who also owns the same album the massive effort involved in a format shift you already made. If others now download the music from you as WELL - without your intent... are you still guilty ? This is a side-effect of the technology and has nothing to do with what you did - sharing with somebody who had the RIGHT to get a copy of the music (he already PAID for it). There is no such thing as 'attempted' infringements in civil cases, especially not copyright.
-Oh we shouldn't need to actually PROOF our claims. Not only is it enough to say you 'made it available', heck they think they don't even need to back that up !
-When they THEMSELVES download the music which this entire thing is about them claiming to own in order to proof it's available from you... that download BY THEM can be counted for damages ? How the hell are they damaged if they download their OWN music ? Before I pointed out one example of a P2P usage to share with a valid, authorized downloader - who could be MORE valid and authorized than the copyright owner ? They could try to make a case against a CD-owner having the right to DOWNLOAD rather than RIP digital copies -- but surely not that the OWNER of the copyright isn't an authorized downloader ! What is worse, if they are damaging their own copyright by downloading it... wouldn't that make this a case of evidence obtained illegally (through the breach of the very law in fact they are trying to proof you breached ?). It's not just legally unsound, it's logically unsound (to put it politely).

And that's not even thinking of things like copy protection mechanisms which are outright attempts to make it impossible to excercise our fair user rights. It seems clear to me they only care about that side of copyright law they can abuse to make money. They cannot get rid of fair use law outright, so they try to technologically strong-arm it away from us.
Frankly, I believe that a judge should say that no person or corporation can claim protection under a law they repeatedly and continuously fail to respect. If you do not respect fair use (which implies no effort made to prevent people from making backup copies), how can you claim protection under the rest of the copyright act ?

How much longer are we going to put up with this ?

It is better for 10 guilty men to go free.... (2, Insightful)

danceswithtrees (968154) | more than 5 years ago | (#23884315)

Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.
There is a saying in law, "Better that ten guilty persons escape than that one innocent suffer." http://www.law.ucla.edu/volokh/guilty.htm [ucla.edu] I agree with this on some level but also have some reservations-- you can make valid arguments for the n value higher or lower.

The RIAA wants to restate this as "Better to make all eleven persons pay than to let one innocent man off the hook."

And in other news... (2, Funny)

hyades1 (1149581) | more than 5 years ago | (#23884351)

Five congenital liars, a serial killer, six child molesters, several sewer rats and a starving weasel applied to the same court for status as "Friends of the RIAA".

Re:And in other news... (0)

Anonymous Coward | more than 5 years ago | (#23884431)

... a starving weasel ...

Darl McBride?

Proof (1)

shatfield (199969) | more than 5 years ago | (#23884487)

Proof of actually committing the crime shouldn't be an obstacle of someone getting convicted of committing the crime.

Hmmm sounds fishy to me... ;-)

This whole thing also shows; (1)

jskline (301574) | more than 5 years ago | (#23884499)

This whole thing also shows that they are in a fairly visible prospectus to challenge and over turn any and all laws related to "fair use".

If they get their way; you will only have radio and TV. Items such as VCR's, PVR's, tape decks, and anything that can record will be prohibited by law. You won't even be able to own one of these devices for personal use. This is the goal of eliminating these rights of the public to own recording equipment. They will control what you see and hear.

Damned commies.

Circular reasoning hoy! (1)

tietokone-olmi (26595) | more than 5 years ago | (#23884685)

Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.

Until proven, there is no massive copyright infringement in a case against an individual. Indeed, it would be rather curious to accuse an individual of "massive" copyright infringement; that would require tens of thousands of instances by a casual reading.

Heck, seeding that much over BitTorrent with a one megabit upstream would take years.

No wonder the MAFIAA would be more comfortable with being able to make accusations without having any proof.

Copyright rulz!! (0)

Anonymous Coward | more than 5 years ago | (#23884783)

Totally insane. MPAA is making a laughing stock of itself with the claim that proof isn't required.

"pay to see a movie, your money is not supporting the artists"

This is not really true. Box office revenues go to the companies that make the movies. In turn, they pay to the people who work on them, which is different from making music.

Finally, copyright exists to protect the rights of everyone - do not attack the concept itself on the basis that it is being heavily misused but recognize the issue itself!

My favorite example ... (4, Insightful)

jc42 (318812) | more than 5 years ago | (#23884811)

Someone once pointed out that under the "making available" theory, most men with a wife or girlfriend could easily be charged with involvement in prostitution. After all, if a man leaves his woman home alone or lets her go out in public by herself, she could very easily make herself sexually available to any passing man.

This isn't entirely hypothetical, of course; there are some parts of the world where men do take this attitude.

Somehow, I think I'd rather not have such legal theories adopted where I live. I think my wife would agree.

I've also noticed that we often have tools like knives lying on our kitchen counters. Those knives have often been out, and even used, when we have visitors. Kitchen knives could be used to kill people. So are we "making available" dangerous weapons when we give visitors such easy access to our kitchen knives? (Sometimes we've even put steak knives on the table, knowingly and with the intention that they be used. ;-)

Re:My favorite example ... (1)

deadcrickets (1307745) | more than 5 years ago | (#23885751)

Why not? You read about it all the time where police department X finds item Y and claim that somehow it's associated with crime Z even when it's not. They are ASSuming and hoping or trying to convince people it's true.

what a crock. (1)

DragonTHC (208439) | more than 5 years ago | (#23884847)

the RIAA knows it is violating the law and tricking judges into believing their bullshit.

If someone steals a pizza and gives you a slice, does that mean you were going to buy a slice or even a whole pizza?

No, that's not a loss to the pizza joint. Only the original pizza is the loss. While we know pizzas can't replicate, it still bears resemblance.

Are you breaking the law by accepting a free slice from a stranger? I can't say you are. You may be playing gastronomical roulette, but not breaking the law.

Even if the pizza could replicate, accepting a free copy slice still isn't breaking the law. You're not initiating the replication. So, it's easy to see how the RIAA could make the false claims that their merchandise trickling downstream is a loss. They are, however ignoring the simple fact that there is no reliable way to determine how many recipients of said merch were potential customers. Probably a lot smaller amount than you think.

How many people buy the product after eating a free sample at the grocery store? They still give away free samples to increase the chances of purchase.

If the RIAA and MPAA want to truly stop piracy, the first thing they need to do is secure their supply chain. The second thing is, stop releasing r5 DVDs in asia before theatrical releases. And third, adapt their business model to the changing market. The only two CDs I've bought in the past 15 years have both been new releases by Paul McCartney. Buying mainstream music doesn't support artists. Since I don't listen to mainstream music, I don't have much to worry about.

The CD is a dead format. The DVD will be dead in less than 10 years.

The industry would rather lobby congress to pass laws to protect their revenues than adapt their business model to the changing market.

CD's are a niche product these days. When I go to the mall, I pass through FYE on the way to the movie theater. The only people I see buying CDs are over 50 or foreigners. Bands should give their music away for free in mp3 format, still sell a physical CD made in small batches for a price, and charge advertisers for reaching their audience. Ad supported music seems silly, but it's highly targeted and you know your demographic.

There I just solved the music business model.

Re:what a crock. (1)

vajaradakini (1209944) | more than 5 years ago | (#23885779)

I buy CDs and I'm neither over 50 or new to my country. I like the artwork and I like the fact that I can make my own .ogg files to go on my computer. Granted, I rarely buy them when they're not on sale and I don't buy everything I download (if someone can't put more than two good songs on an album I don't see why I should buy it). I know a number of people who actually still buy music in a physical format from a store, even if they don't all buy CDs (a couple of my friends collect vinyl).

If anything, I would say that radio stations have lost out more than anything. I used to listen to the radio frequently, but since I can now make my own playlists and listen to whatever song I want whenever I want and not put up with shitty songs, I don't anymore.

Pretty scary if RIAA/MPAA get their way (0)

Anonymous Coward | more than 5 years ago | (#23884909)

"You've got music and movies on your home network, but we don't think your WiFi is secure. Someone might have driven by and downloaded it. We can't prove that anyone did, but the law says we don't need to. We just need to think it happened. We think it happened. That will be $3000 please."

How is this different? (2, Insightful)

m509272 (1286764) | more than 5 years ago | (#23885063)

If I left a CD sitting on a park bench and walked away from it, haven't I made it available? If CDs were in my car with the windows open and someone reached in and took them was I making them available? In each of these cases the "IP owners" aren't getting paid. So am I guilty of some hideous crime? The logic of being convicted on making available is just pure crap.

Re:How is this different? (1)

silentcoder (1241496) | more than 5 years ago | (#23885853)

Actually the only difference is that there is no copying involved, but let's add it.
Say I rip a bunch of my CD's into a digital format, mp3 for argument's sake then I put all these on a memory stick to plug into my car's mp3 player (the point of all this).
There is nothing hypothetical so far, I have done that, and I listen to music I legally own every time I drive this way.

Now imagine I forget a window open, somebody reaches in and grabs the memory stick. This person now has copies of the music, which were legal when I made them (fair use) but are not legal for him to have (he doesn't own the originals) - am I guilty of 'making the infringing material available' ?

Okay so in this case there is clear theft of property, let's take it a step closer to the filesharing example. Say I also have on the same memory stick a spreadsheet for work. A colleague needs the data I have been working on and in the interest of expediency I just hand him the stick to copy this file (which I legally own the copyright on) with my permission and the intention that he should give me the memory stick back when he is done.
As he browses to copy the spreadsheet, he notices that I have the latest 36 Crazy Fists album on the memory stick and, without my knowledge or intent, copies it. Sure I gave him access to the stick, the copies on it are legal, but I did not give him permission to copy the music (which he has no legal right to - I would argue he has a moral right but that's an issue for activism and lobbying, under current law it's not allowed) - but I also did not delete all the music or copy the file myself to actively prevent him from getting at the music... is this 'making available' ?
How is this different from filesharing ? And in this case, the files were actually copied.
These guys now want me to be liable for copyright infringement just for HAVING the songs on the stick which I let my colleague borrow. Even if he never copies them !

This is just spiraling ever deeper into the absurd.

Re:How is this different? (1)

asylumx (881307) | more than 5 years ago | (#23886333)

First of all, I don't think they need to prove that the file sharing happened as long as they can prove that it was enabled -- A guy who has drugs for sale on the street is guilty of distribution even if he hasn't had a customer. He only has to offer it and most P2P clients will offer any file in your download folder as an available file to any other P2P user.

Actually, i think both of your examples are negligence on your part -- the first, not protecting your personal property from theft (however you are not responsible for what the thief does with the property) and the second, once again, you gave your friend access to far more than you needed to in order to achieve your goal. The problem with P2P is that many of the clients, when you install them, by default will open your download folder up as a shared folder with anyone else on the network. So, basically you are saying "Hey, anyone can come make copies of anything I have in this folder" by installing the software.

I get what RIAA and MPAA are going for, but at the same time I think they've gone way overboard on this and we all know the reason they are doing it is because they are getting away with it. They'd still be going after the clients if they hadn't realized how much time & money they were losing.

What I'd like to see is the court to ask the artists themselves to testify. I know they don't hold the copyright but that's bullshit anyway. I bet if you actually asked the artists, the percentage of those who care and those who don't might be closer to 50/50.

Re:How is this different? (1)

silentcoder (1241496) | more than 5 years ago | (#23886439)

Wait, you actually think that not cleaning the music from my memory stick before using it to transfer a completely legal file to a friend is the same as selling drugs ?
For starters, I'm not *selling* anything, whether the drug dealer made a sale or not, he was charging money to do something illegal. In my second example, I wasn't even aware that anything illegal was being done.

If somebody visiting me takes the knife out of my kitchen drawer and kills his wife, am I now guilty of murder for not preventing this person access to something (the knife) which could potentially be used to break the law with ? If I see him trying to stab her and do not try to defend her, that is (and rightly so) a crime on my part - but that is something very different.
Even if it's a gun, that he takes out of a display cabinet - how can I be accountable for that ? It is this kind of logic that is turning the world into a nanny state- which is exactly like a police state except with nicer wallpaper.

How is this different from the second memory stick example ? The crime happens out my site, my property being used to commit it is beyond my knowledge and certainly beyond any intent or gain for me !

Do you seriously suggest that people should delete any music/movie/ebook files they have on memory sticks before using them to share data files with colleagues ?
Well that is the RIAA's logic, making a person legally liable for the actions of another - not for having assisted in the actions, merely for not preventing access to something (in the loosest meaning of the world) which was used to perform those actions.

So the MPAA is guity by their own rules? (1)

arthurpaliden (939626) | more than 5 years ago | (#23885351)

So that means that if I go into the reception area of the MPAA offices and they have magazines on the table they are "making available" copyrighted materials to the public since any one can walk in and start transcribing the contents within them.

RIAA is kinda right... (1)

tertrures (1238098) | more than 5 years ago | (#23886367)

"Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."

That's true, you know. Mandating proof of actual distribution, instead of just making available, really makes it a lot harder to prove copyright infringement. They are right when they claim it's very inconvenient for fighting piracy...

But you know what? The law's not supposed to be "convenient" for anybody! Claiming "the law doesn't apply here since it's not convenient for my interests" doesn't really work.

William Mitchell College of Law jumps in.... (1)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#23886379)

too, along with Electronic Frontier Foundation, US Internet Industry Association, Public Knowledge, and Computer & Communications Industry Association, on the side of Jammie Thomas. Also joining in with the RIAA and MPAA is an amicus curiae "Thomas D. Sydnor II of the Progress and Freedom Foundation", whatever the heck that is. Apparently Sydnor was a lawyer for content owners before he set up this "foundation". Here is a complete list [blogspot.com] of the amicus briefs. Some good reading in there. My prediction: the RIAA's 'making available' theory is dead in the water in Duluth, and the RIAA's only trial is going to result in a do-over.
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