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RIAA's $222k Verdict Is Likely To Be Set Aside

ScuttleMonkey posted more than 5 years ago | from the one-step-forward-two-steps-back dept.

The Courts 224

NewYorkCountryLawyer writes "Apparently the RIAA's 'big gun' didn't fare so well this morning in Duluth, when he tried to persuade the judge in Capitol v. Thomas that the part of the Copyright Act which says 'by sale or other transfer of ownership, or by rental, lease, or lending', can be disregarded. According to an in-person account by Wired.com the Judge indicated that he is likely to grant a mistrial, setting aside the $222,000 jury verdict based upon his incorrect jury instruction, and that he will probably hand down his decision in September. Just yesterday some of the same lawyers got rebuffed by the US Court of Appeals for the Second Circuit in their attempt to argue that Cablevision's online storage for its customers constitutes a copyright infringement, in Cartoon Network v. CSC Holdings. There, too, the content owners had argued that the wording of the Copyright Act did not mean what it said. There, too, the Court politely but firmly disagreed."

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224 comments

Infringing your own copyright (5, Insightful)

gbulmash (688770) | more than 5 years ago | (#24473419)

The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Not defending the RIAA, but just pointing out something that seems illogical to me.

Re:Infringing your own copyright (5, Insightful)

jrl87 (669651) | more than 5 years ago | (#24473581)

As I understand it, it is because the undercover cops are legally sanctioned to conduct investigations (provided the follow all the proper laws/regulations). However, that doesn't mean I can buy drugs and then give said drugs to the court as evidence that whomever I bought them from is a dealer. There is most certainly a probability of some sort of conflict of interest. Perhaps I am a drug dealer, and simply don't like my neighbor.

In any case, the RIAA is not using (or so it seems on /.) legitimate means to go undercover (ie unlicensed investigators). They are in some effect being a vigilante (or trying to anyway).

Re:Infringing your own copyright (3, Interesting)

the eric conspiracy (20178) | more than 5 years ago | (#24473587)

The reason this may stand up is that in the drug case it is SELLING the drugs that is illegal. In copyright law it is making the copies that is illegal. So -

in the drug bust the cops observe the dealer selling drugs; i.e. the illegal act.

in the copyright case making available is not the illegal act. The party making the copies (i.e. downloading) is the only one committing the illegal act.

Re:Infringing your own copyright (3, Insightful)

Anonymous Coward | more than 5 years ago | (#24473739)

So, genius, explain to me how you upload something without making a copy. I mean, are you seriously telling me that you were able to post a copy without first copying the post into the HTTP request, followed by Slashdot copying the post into its database?

My understanding is that downloading has been ruled legal in a few countries (notably NOT the US) because the first copy was made on the uploading side.

So sending a file would be illegal, as the first copy of the file created exists on the uploader's side.

Unless you're suggesting that the uploader did nothing wrong but somehow a set of bytes that just so happen to be copyrighted material managed to arrive at the investigator's computer from packets marked as being from the uploader's computer.

Somehow that doesn't seem very likely.

Seriously, everyone knows that both the uploading AND the downloading are blatantly illegal. Don't kid yourself. Both involve making copies. First the uploader copies it into IP packets, then the downloader copies from the IP packets to reassemble the final file.

Both sides copy, and as you say, the act of copying without permission is illegal.

Re:Infringing your own copyright (4, Insightful)

Pseudonym (62607) | more than 5 years ago | (#24474755)

So, genius, explain to me how you upload something without making a copy.

I don't know why you got modded down as a troll. You ask a very important question which, fortunately in this case, has a very simple answer:

Jammie Thomas isn't accused of uploading, she is accused of "making available". If you have a file that you have the legal rights to, and you happen to put it on your hard drive in a place where your file sharing software (which you only use for legal purposes) can find it (presumably by accident), then you're "making available" even if no upload happened.

Re:Infringing your own copyright (2, Interesting)

Gat0r30y (957941) | more than 5 years ago | (#24473805)

The party making the copies (i.e. downloading) is the only one committing the illegal act.

This raises an interesting legal question. The copy operation gets initiated from another computer, is the person who initiated the operation (the downloader) responsible? Or is it the person who made it available? If it weren't copyright would illegal acts be viewed the same way?
What I'm trying to get at is if someones PC got infected with a virus, under the view that the host is responsible, one could hold people who own infected PC's responsible for the behavior of the virus right?

Re:Infringing your own copyright (5, Insightful)

Dancindan84 (1056246) | more than 5 years ago | (#24473877)

The library makes copyrighted works available and they aren't at fault if someone violates copyright using one.

Re:Infringing your own copyright (1)

fractic (1178341) | more than 5 years ago | (#24474263)

You have a point but it's not exactly acurate. Renting a book from the library isn't copyright infringment. Of course you COULD copy the book you borrowed but by downloading something, you are allready infringing on copyright.

Re:Infringing your own copyright (4, Interesting)

fredklein (532096) | more than 5 years ago | (#24475157)

Most libraries have a copy machine in them. So, Person 'A' walks into a library, takes a book off the shelf, walks over tot he library's copy machine, and copies the book.

Who's responsible? Person 'A' who did the copying? Or the library for 'making available' the copier??

Re:Infringing your own copyright (4, Insightful)

dgatwood (11270) | more than 5 years ago | (#24473911)

Basically, it's the same as a library making CDs available for borrowing and providing a CD copier. As I understand it, if you as the borrower are making the copies, even if the library provides the equipment, you are violating copyright, not the library. Not sure if that theory has been tested in court, though. But yeah, one could reasonably interpret copyright law to indicate that the downloaders are violating copyright, not the people making it available. This differs from hosted storage in which the person who uploaded it to the server initially was making an unauthorized copy, i.e. both parties committed a copyright violation.

Of course, when they were going after downloaders, everyone screamed and said that they should go after the people making it available in the first place. I don't think there's any way for these folks to win... except... oh... maybe not suing their fans.

Re:Infringing your own copyright (2, Informative)

falconwolf (725481) | more than 5 years ago | (#24474483)

The copy operation gets initiated from another computer, is the person who initiated the operation (the downloader) responsible? Or is it the person who made it available?

According to the law, it's the downloader who is responsible. In a post on yesterday's article someone offered a good example, sorry I don't recall the person. The example used a newspaper. If I buy a newspaper, read it in a park then leave it on a park bench I'm not breaking the law. Well, depending one where I might be breaking a littering law. But if someone else picks the paper up then copies it and hands out the copies, they are breaking the law if they do not have the copyright holder's permission.

Falcon

Re:Infringing your own copyright (3, Interesting)

Red Flayer (890720) | more than 5 years ago | (#24474009)

In copyright law it is making the copies that is illegal.

This is not true, which is kind of the point of the judgment being referred to.

It is distributing copies that is illegal. You can make as many copies as you want, but if you rent them out, sell them, etc, then you are in trouble.

The party making the copies (i.e. downloading) is the only one committing the illegal act.

You're pretty close there... but making the copy is not the problem. The problem is downloading it. If I were to log into your computer remotely, and copy all your copyrighted media files to the same computer, that is not a violation. Transmitting the files? That's a copyright violation.

Re:Infringing your own copyright (0)

Anonymous Coward | more than 5 years ago | (#24475483)

So...copyright no longer includes the right to copy [bitlaw.com] ?

Re:Infringing your own copyright (1)

jcdill (6422) | more than 5 years ago | (#24474487)

It depends on how you "make available" the file for downloading. In most cases, the file you "make available" is not the original copy. In the course of making it available to be downloaded, it may have been illegally copied.

(This post isn't meant to imply that I approve of the RIAA's behavior in this matter, just to discuss if unapproved copying has already taken place before the file is downloaded to determine if it is a copyright protected work - a necessary step before any copyright infringement claim can be made.)

Re:Infringing your own copyright (1)

tattood (855883) | more than 5 years ago | (#24474925)

The reason this may stand up is that in the drug case it is SELLING the drugs that is illegal.

No, I'm pretty sure that the act of purchasing illegal drugs, is also illegal, because you are now in possession of said drugs.
The same argument could be made for cops posing as prostitutes. Prostitution is illegal, but the police are not committing a crime by posing as a prostitute.
As another poster commented, it is because the police are sanctioned to be posing as drug buyers, etc. If the police/FBI were to be the ones downloading/making available, then I think it would hold up in court. Since these investigations are being done by private companies, I don't think that it will hold up.

Re:Infringing your own copyright (2, Insightful)

Lobster Quadrille (965591) | more than 5 years ago | (#24475297)

No, I'm pretty sure that the act of purchasing illegal drugs, is also illegal, because you are now in possession of said drugs.

Posession and selling illegal drugs are both illegal, but the penalties for selling are a lot more severe, which is why given the choice, the cops would rather bust the guy for the latter.

Re:Infringing your own copyright (4, Insightful)

OverlordQ (264228) | more than 5 years ago | (#24473611)

Undercover cops buy drugs in the course of performing their duties as a law enforcement officer and the state doesn't have to prosecute them for buying them.

Fixed that for ya.

Re:Infringing your own copyright (0)

Anonymous Coward | more than 5 years ago | (#24473635)

I'm not a lawyer (obviously!) but I know there is a huge difference between civil law (copyright infringement) and criminal law (buying drugs). Just knowing that they are different makes comparisons invalid.

Remember the RIAA isn't a state or federal institution. If Joe Public went on the streets trying to expose drug dealers he most definately would be liable to prosecution.

Re:Infringing your own copyright (0)

Anonymous Coward | more than 5 years ago | (#24473645)

IANAL - But I see the difference here between copyrighted material and crack cocaine is that one has restrictions on who has access to information, whereas the other is a tangible good illegal to own. To say that authorities can legally hang on to the crack cocaine used in this example, would not be accurate either. The authorities bought which was illegal in the first place, to protect wider society. Simply owning crack cocaine is not allowed. At all. [br] But now lets say I happen to be Micheal Jackson back in the day he owned some of the Beatles recording rights (I think). Despite you seemingly offering up the recordings to the general public, Michael Jackson could download those recordings off you for as long as he owned the rights to that music, and no law has been broken. [br] You can't steal which you already own. Now, if Michael Jackson watched a family member download those same files say from, The local IHOPs WiFi hotspot, then there might be a legal breach there, because you have somebody that doesn't own any right to that information. From my understanding also, if that family member at the WiFi hotspot happened to own already, a copy of that work they downloaded, that could/should fall under fair use (if there is such a thing anymore).

Re:Infringing your own copyright (1, Insightful)

Anonymous Coward | more than 5 years ago | (#24473669)

Simple. MediaSentry are not the police. However if the RIAA keeps losing court battles like this one I'm sure they will lobby to change that.

Re:Infringing your own copyright (4, Informative)

whoever57 (658626) | more than 5 years ago | (#24473707)

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.

You missed the point. The problem for the RIAA is that when they downloaded the files, they were authorized to download the files (as representatives of the copyright holders) and thus, because this was an authorized download it does not provide evidence of a copyright violation. It's really a catch-22 situation for the copyright holders.

Re:Infringing your own copyright (1)

dirk (87083) | more than 5 years ago | (#24474261)

Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it. The issue is that the person is distributing the songs and they do not have the authority to distribute them. IT doesn't matter who they distribute them to, they don't have the authority to distribute them to anyone at all. So unless the copyright holder tells them "yes, I authorize you to make a copy of that for me", it isn't legal for them to distribute it even to the copyright holder. This is especially true since the uploader doesn't know who is downloading from them, so they can't claim the RIAA gave them permission, as they didn't even know the RIAA was the ones downloading.

If I'm handing out copies of the latest Josh Grobin CD and I hand one to Josh Grobin himself (he's probably the only one who would take it) that doesn't suddenly make it okay for me to be handing them out, even to him. He didn't give me permission to distribute, I just happened to hand it to the one person who could give me permission.

Re:Infringing your own copyright (4, Insightful)

whoever57 (658626) | more than 5 years ago | (#24474453)

If I'm handing out copies of the latest Josh Grobin CD and I hand one to Josh Grobin himself (he's probably the only one who would take it) that doesn't suddenly make it okay for me to be handing them out, even to him. He didn't give me permission to distribute, I just happened to hand it to the one person who could give me permission.

I don't think your example is applicable. To make it closer to the real event: imagine that I offer to make copies of Josh Grobin's CD and the only person who asks for a copy is Josh Grobin. I stress "asks", because that is what happens with P2P. There is no evidence that anyone else received a copy, so a court has to assume that no-one else did receive a copy. Now, do you think that the copy that Josh asked for was unauthorized?

Re:Infringing your own copyright (1)

Todd Knarr (15451) | more than 5 years ago | (#24474551)

The relevant question the court would ask is "Did you know it was Josh Grobin when you made the copy for him?". If you didn't, then the fact that he was the copyright holder would be set aside as irrelevant. You didn't know that and yet you made the copy for him anyway, so the presumption is that you'd've done the same if he hadn't been Josh Grobin.

Re:Infringing your own copyright (3, Insightful)

whoever57 (658626) | more than 5 years ago | (#24474853)

The relevant question the court would ask is "Did you know it was Josh Grobin when you made the copy for him?".

Would a court ask this? I don't recall seeing intent in any copyright statues that I have read (not that I claim to be an expert on the subject of copyright). Essentially, what you are suggesting is that the court should say: "in the hypothetical case that the person requesting the file did not have permission, the defendant would have violated copyright". The problem is that courts don't make awards (or, should not) on the basis of hypothetical violations.

To use a car analogy, it's like being given a speeding ticket by a cop who states "had the defendant not seen me, he would have been speeding down this stretch of road, so we can presume that he is guilty".

Re:Infringing your own copyright (2, Funny)

mcpkaaos (449561) | more than 5 years ago | (#24475219)

Now, do you think that the copy that Josh asked for was unauthorized?

Unless he happens to own distribution rights to his own music, yes.

As a side note, I didn't know who Josh Grobin is so I searched for him on Google. After hearing a sample of his music, I think all copies of his CD should be unauthorized. No offense to his fans but it was the first time I clicked a Youtube link and actually wished I had been rickrolled.

Re:Infringing your own copyright (2, Insightful)

falconwolf (725481) | more than 5 years ago | (#24474549)

Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it.

That's the line the MafiAA uses, however it is not illegal to make available, which is what the uploader is doing. You have the right to swing at me but your right ends where my nose begins.

Falcon

Re:Infringing your own copyright (1)

countach (534280) | more than 5 years ago | (#24474567)

I would think that if Josh took the copy knowing full well what it was, there would be an implied authorization. Not to mention that in the P2P case, it is the downloader who initiates the copying and distribution cycle.

Re:Infringing your own copyright (1)

ijakings (982830) | more than 5 years ago | (#24474597)

The point is they cant prove you gave it to anyone else.

Your wrong in a few things, the copyright holder cannot violate their own copyrights, therefore no matter who is uploading no law is broken if someone authorised by the copyright holder downloads the information.

Making the songs avaliable isnt distribution. Following (and Fixing) your analogy

If I'm OFFERING to hand out copies of the latest Josh Grobin CD and I hand one to Josh Grobin himself (he's probably the only one who would take it) that continues to make it OK to OFFER so long as noone actually takes it except Josh Grobin himself.

Since the RIAA cannot prove that you handed it to anyone else they cannot get you for it. And you dont need permission to give it to the Copyright holder, they cannot infringe their own copyright.

Re:Infringing your own copyright (0)

Anonymous Coward | more than 5 years ago | (#24474795)

Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it.

Your post shows a decided lack of understanding of how P2P actually works.

An example: On my computer, I have music to which you own the copyright. The music is from a legal source. You come over to my house, and make a copy.

Am I guilty of copyright infringement? No - because *you* are the copyright holder, and so therefore you're not capable of infringing your own copyright. Have I "uploaded" the music anywhere? No, I haven't - you just used my hardware to make the copy.

Now, suppose instead of coming over to my house, I set up a file share. You connect to this share and download music. Now, am I guilty of copyright infringement? I haven't uploaded anything - you've just used my hardware (and bandwidth) to make the copy.

In both cases, there is nobody uploading.

When you read this post, is CmdrTaco or CowboyNeal manually clicking a button on the /. server to authorize it? No, it happens automatically. The only person clicking is you. The action of a machine can't violate the law, only the action of someone *using* the machine can.

Re:Infringing your own copyright (0)

Anonymous Coward | more than 5 years ago | (#24475029)

Now, suppose instead of coming over to my house, I set up a file share. You connect to this share and download music.

Your post shows a decided lack of understanding of how TCP/IP actually works.
For one person to be downloading something, someone else has to be uploading that thing.
Download [wikipedia.org]

Re:Infringing your own copyright (1)

Just Some Guy (3352) | more than 5 years ago | (#24475529)

Unless they authorized the uploader to distribute the files, then it isn't a legal upload, no matter who is downloading it.

They did. An agent of the lawful owner of a copyrighted work asked another party to make a copy of that work on the owner's behalf. That's about as legal as you can possibly get.

Re:Infringing your own copyright (1)

ShaunC (203807) | more than 5 years ago | (#24475017)

The problem for the RIAA is that when they downloaded the files, they were authorized to download the files (as representatives of the copyright holders) and thus, because this was an authorized download it does not provide evidence of a copyright violation.

Doesn't it, though? Certainly whoever uploaded the files was not authorized to distribute them. That's the copyright violation.

Not a catch-22 (1, Informative)

Anonymous Coward | more than 5 years ago | (#24475139)

This is not a catch-22 for copyright holders. I am a photographer, and I have prosecuted copyright infringement several time. I find EVIDENCE that someone copied the images illegally, by finding copies published in placed that did not license them. The RIAA already does this -- when they find actual unauthorized copies (like CDs at flea markets).

Re:Infringing your own copyright (4, Informative)

Tmack (593755) | more than 5 years ago | (#24473711)

The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?...

The reason undercover cops arent charged is because they are officers of the law, and are thus believed to be pursuing the upholding of the law. See entrapement [wisegeek.com] as it relates to undercover cops "selling" illegal drugs. Since the RIAA "Investigators", many of whom are not even licensed, they are not officers of the law, and thus should not face the same privilege. For similar reasons, setting up your own drug sting operation to help cleanup your neighborhood by trying to sell oregano will probably get you thrown in jail instead of any "customers" you might catch. The defense is arguing that if the investigators are not liable for downloading the content illegally, then the content must be authorized by the RIAA. In this case, its like they sent their own "Johns" out on the street to find prostitutes, and then rather than turning over their own Johns after the deed is done, only turn over the prostitutes, all while not being official law enforcement agents. They are overstepping their rights and should not be afforded the privilege they have assumed.

Tm

Sometimes (2, Informative)

pagewalker (1286802) | more than 5 years ago | (#24474023)

Often Police Officers are reasonably doing what members of the public commonly do, out of a belief that someone is a criminal. If the belief is reasonably formed, I applaud them for it--the police shouldn't be prevented from, in the course of an investigation, pretending to be a regular Joe or Sally in order to see if someone is selling drugs, for example.

But you run into real problems, too--I've heard stories from people who work in environments where, because the police expect there to be corruption, the police send in undercover people all the time and repeatedly try to get non-criminals to engage in criminal activity. It's one thing to notice someone is dealing drugs or traveling with drugs--it's quite another to ask them to help you transport those drugs by weaseling them into it. "Oh, you're flying down to such-and-such a city for your sister's birthday? Could you drop this package of mine off with an old friend?" That kind of thing.

Some cops behave better than others, and of course they have a job to do. It's hard to find the line, sometimes, but it's important to remember that there is one.

With the RIAA, obviously it's different: this is a private group copying something they've sold to you, saying you're the one who's copied it, and then suing you for it.

As an Artist, of course I think we need copyrights, because I spend months or years of my life writing a book. But going after a pirate (or a ninja) who probably wouldn't have paid for the book in the first place isn't helpful to me: it generates bad will, it's a bigger drain on society than the copy is, and I'd rather have the book read by someone who didn't pay for it than have it be not read by someone who wouldn't have read it otherwise.

I'm not saying I'd never enforce copyright, nor that people should be violating it. But suing everyone who does is not the right answer.

drugs (1)

falconwolf (725481) | more than 5 years ago | (#24474617)

the police shouldn't be prevented from, in the course of an investigation, pretending to be a regular Joe or Sally in order to see if someone is selling drugs, for example.

Yes they should, drugs shouldn't be illegal!

Falcon

Re:drugs (1)

easyTree (1042254) | more than 5 years ago | (#24475189)

Nuh-uh. If drugs weren't illegal, the police wouldn't have any reason to harrass 35% of the population and the criminals wouldn't have a lever with which to prevent people from running to the police when abused. That just wouldn't do.

Re:Sometimes (0)

Anonymous Coward | more than 5 years ago | (#24475069)

I'd rather have the book read by someone who didn't pay for it than have it be not read by someone who wouldn't have read it otherwise

You'd also rather have it copied by that person and given to 10 other people, some of whom might have paid for it, if the free copy was not available?

Re:Infringing your own copyright (2, Insightful)

notamisfit (995619) | more than 5 years ago | (#24474169)

This is a civil case, not a criminal one. Unlike criminal liability, civil liability can be waived by the offended party (the RIAA or the companies it represents).

Re:Infringing your own copyright (1, Informative)

Anonymous Coward | more than 5 years ago | (#24474223)

Repeated waiver of civil liability would give legal grounds for the argument of general waiver of civil liability.
 

Rather the opposite. (2, Insightful)

Jane Q. Public (1010737) | more than 5 years ago | (#24475429)

Quote: "The defense is arguing that if the investigators are not liable for downloading the content illegally, then the content must be authorized by the RIAA."

It is actually the other way around: the defense is arguing that SINCE the downloading was previously authorized by the RIAA as part of the investigation, no infringement took place! You can't illegally copy your own goods, or goods that you are authorized to copy by the copyright holder!

Re:Infringing your own copyright (4, Informative)

Just Some Guy (3352) | more than 5 years ago | (#24473829)

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Sharing music is not inherently illegal. Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances (fair use, media shifting, etc.). If a copyright owner or their agent transfers a song, no violation has occurred. Contrast with a drug deal which is always against the law.

Re:Infringing your own copyright (2, Insightful)

falconwolf (725481) | more than 5 years ago | (#24474659)

Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances

The copying isn't illegal, it's giving the copy away or getting the copy without also getting the original that's illegal.

Falcon

Re:Infringing your own copyright (0)

Just Some Guy (3352) | more than 5 years ago | (#24475137)

Well, OK, distribution. That was implicit in the "making a copy" step in the context of this conversation.

Re:Infringing your own copyright (1)

gnasher719 (869701) | more than 5 years ago | (#24474041)

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

There is a difference. When two people meet, one having drugs and the other having cash, and they exchange drugs for cash, then usually both have committed a crime. In the exceptional case that the second person is a cop trying to find a criminal, only one person has committed a crime. Selling drugs is illegal, even if the buyer is a cop. However, copyright infringement involves making an _unauthorised_ copy. In this case, no unauthorised copy has been made. The copy that was made is not authorised, so no copyright infringement has happened.

Re:Infringing your own copyright (1)

Basilius (184226) | more than 5 years ago | (#24474271)

The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Not defending the RIAA, but just pointing out something that seems illogical to me.

Because the crime being prosecuted, in both cases, is the distribution of the item in question, not the acquisition.

The primary difference between the drug and MP3 analogy is that the act of an authorized agent of the copyright holder requesting distribution of the MP3 constitutes permission to distribute, and that's legal. It would likely be entrapment, otherwise.

That is not the case for drugs. You (generally) cannot create a situation for authorized distribution of drugs.

Re:Infringing your own copyright (1)

gnasher719 (869701) | more than 5 years ago | (#24474591)

That is not the case for drugs. You (generally) cannot create a situation for authorized distribution of drugs.

A similar situation with alcohol: In most countries it is illegal to sell alcohol to someone under a certain age. If you send out an undercover cop who is say 25 but looks like he is 15, and a shop sells him alcohol, then the sales person didn't actually break the law (even though there is evidence they were willing to break it).

Re:Infringing your own copyright (1)

techno-vampire (666512) | more than 5 years ago | (#24474647)

The primary difference between the drug and MP3 analogy is that the act of an authorized agent of the copyright holder requesting distribution of the MP3 constitutes permission to distribute, and that's legal. It would likely be entrapment, otherwise.

IANAL, but as I see it, having the investigators download copies would be evidence of infringement if and only if the RIAA's "making available" theory were valid. In that case, they could argue that even though they'd authorized the downloading of this copy, they hadn't authorized the person making it available to do so, and therefore infringement had occurred. Of course, that idea went down in flames, so the whole idea of using their own investigators to "prove" piracy by their own actions is right out.

Re:Infringing your own copyright (0)

Anonymous Coward | more than 5 years ago | (#24474359)

doubt it, but because the cops are gov't and city works, and the RIAA is a private company?

Re:Infringing your own copyright (2, Insightful)

falconwolf (725481) | more than 5 years ago | (#24474389)

Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

As the subject line says, you can't infringe on your own rights. The investigators worked for the copyright owners and had their permission. The police, being part of government, has a Get Out of Jail card.

Falcon

Re:Apples and Oranges (1)

Technician (215283) | more than 5 years ago | (#24474427)

Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.

I understand the point, but it doesn't apply. In the drugs case, the cops didn't legally manufacture the legal to posses drugs. The drugs in question were not legal. In the RIAA case, the recordings were legally created by RIAA members and then downloaded by the legal copyright holder. It would be different if the actual songs were illegal products not produced by RIAA members. If she provided underground detailed bomb or meth manufacturing instructions in an audio file, then the distribution of an illegal product may be the issue, not copyright infringement.

Re:Infringing your own copyright (0)

Anonymous Coward | more than 5 years ago | (#24474611)

Is it illegal to 'buy' drugs? or is it just illegal to sell or have drugs in your possession? I am also sure that the law would not pertain to law enforcement especially if it was possession cause how can you take something away that is illegal to have if you are law enforcement?

Another point is when they do prostitution stings they don't actually sleep with the guy trying to buy sex to bust them... they get the transfer of money...

Re:Infringing your own copyright (4, Informative)

AK Marc (707885) | more than 5 years ago | (#24474729)

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Because the criminal requirements are that if someone believes they are committing a crime, then they are. If there is a buy for drugs and it's flour, it's still a crime. If someone shoots into a trunk they previously locked someone in with the intent of killing them, it could be tried as attempted murder even if the person was moved from the trunk and was in no actual harm. However, civil cases are different. Most require that you get actual damage. If someone tries to break a contract and believes they did break a contract, they still aren't guilty of breaking it unless there is some harm to the other side. You can't sue someone if they didn't harm you.

If he "makes available" something, but no copies were made, then there was no loss. If he makes something available and the only person that makes the "illegal" copy is the copyright owner or their agent, then there was no loss. Without a loss, there can be no civil case.

Not defending the RIAA, but just pointing out something that seems illogical to me.

You have pointed out another reason why they are pressing hard for making all infringements, including incidental non-commercial infringement into crimes, rather than simply "illegal" (but requiring civil actions). There is a different set of rules for civil suits (not to mention the cost of prosecution) and they favor the RIAA if these are all criminalized.

Re:Infringing your own copyright (1)

batkiwi (137781) | more than 5 years ago | (#24474921)

You're using the wrong analogy.

It is not drug dealing or transporting illegal substances when an officer takes some seized drugs out of the evidence locker and into court for a trial, despite him "moving" them, because he was authorized to.

Re:Infringing your own copyright (1)

lysse (516445) | more than 5 years ago | (#24474957)

Not really. Possession with intent to supply is a crime in and of itself. "Making available" would be the equivalent charge for the downloaders, but we all know how well that legal argument has been received; that means that only the act of allowing a particular unauthorised download itself violates copyright, at which point the argument that the particular downloads presented as evidence are anything but unauthorised becomes a somewhat valid point to make... particularly if the courts were to decide that the amount of damages payable are directly contingent upon the number of unauthorised downloads that the plaintiff can prove actually occurred.

Re:Infringing your own copyright (1)

Lobster Quadrille (965591) | more than 5 years ago | (#24475253)

Undercover cops buy drugs and the state doesn't have to prosecute them for buying them

Those are police officers, working under the supervision of the government in gathering evidence for a criminial trial.

These are private investigators, with already provably questionable tactics and working for a private industry to gather evidence for a civil suit. Different rules certainly apply.

I do not think... (0)

Anonymous Coward | more than 5 years ago | (#24473447)

I do not think that that word means what you think it does.

You shouldn't trust (0, Troll)

Moryath (553296) | more than 5 years ago | (#24473545)

"in-person accounts" of things either - even if it's Wired.

Look at what happened to the two border patrol agents the Bush Administration is holding as political prisoners for arresting a drug runner who has ties to the Mexican Mafia and therefore to Bush.

The court of appeals said verbally that they were aghast, the prosecution ADMITTED that their star witness (the drug runner) lied under oath. The court of appeals in open court said that they couldn't see possibly how this was a valid prosecution under the law.

10 months later, after the Bush admin / Mexican mafia threaten the judges, they "somehow" now see how preventing the defense from showing that the drug runner had been caught running multiple loads even while under his "immunity agreement" with the prosecution - while the drug runner was claiming it was a "one time only thing" because "he needed money for his grandmother's operation" - was legally valid and no new trial is warranted.

My prediction: the judge who said this, will get a phone call from the Prez or several Congresscritters, or a visit from certain branches of covert government and/or MafiAA stooges, and will "magically" put off the ruling for 6 months and then issue the opposite opinion when he thinks nobody is looking.

Re:I do not think... (0)

Anonymous Coward | more than 5 years ago | (#24473987)

I know you believe you understand what you think I said, but I'm not sure you realize that what you heard is not what I meant.

Don't celebrate yet. (5, Insightful)

Hatta (162192) | more than 5 years ago | (#24473463)

Even if the 'making available' argument doesn't stand under current law, you can expect attempted copyright infringement to be made illegal when congress gets back from vacation.

Re:Don't celebrate yet. (2, Interesting)

LM741N (258038) | more than 5 years ago | (#24473727)

I agree. As long as our representatives in Congress and the Senate are in the pockets of media companies, all of these types of court battles will mean nothing in the future. So ones only option is to vote, voice your concerns to your elected officials, and then become incredibly cynical after realizing that they don't really care- since most of their constituents don't care either.

Apathy in the USA. I really don't know what its going to take to wake up our country to reality. Being outnumbered 200% by illegal aliens? A large percentage of US citizens living on the street? Collapse of Social Security? Other countries no longer buying our T-Bills? Our currency worth 5% of a Euro? Who knows?

Re:Don't celebrate yet. (0, Flamebait)

lordofwhee (1187719) | more than 5 years ago | (#24474113)

My money is on mass exodus after a president starts yet another war the people don't want.

Re:Don't celebrate yet. (2, Insightful)

Danse (1026) | more than 5 years ago | (#24474443)

Even if the 'making available' argument doesn't stand under current law, you can expect attempted copyright infringement to be made illegal when congress gets back from vacation.

Yep. Some of the new legislation they're trying to push through makes the DMCA look like the "Free Kittens and Ice Cream For Everyone Act". As long as our Congress is up for sale and people aren't paying attention to copyright legislation, we're going to keep getting screwed time after time. I hardly ever see anything about copyright legislation in the mainstream media, except when they're talking about how the mean nasty pirates are going to have the poor recording and movie industry execs sending their kids to school wearing last year's fashions. NPR does some decent interviews from time to time, but that's about it.

strip them (2, Interesting)

fuliginous (1059354) | more than 5 years ago | (#24473467)

The judge should strip them of their right to practice until the successfully pass an English language exam showing that they can actually read and comprehend words.

Re:strip them (0)

Anonymous Coward | more than 5 years ago | (#24473753)

The judge should strip them of their right to practice until the successfully pass an English language exam

If only we could apply they same test for posting to slashdot!

Re:strip them (2, Insightful)

Kozar_The_Malignant (738483) | more than 5 years ago | (#24474153)

An attorney we use is fond of saying that words and punctuation have to mean something, or else there is no point in writing things down in laws and contracts.

Re:strip them (1)

Technician (215283) | more than 5 years ago | (#24474479)

The judge should strip them of their right to practice until the successfully pass an English language exam showing that they can actually read and comprehend words.

You are expecting too much from an administration who spent time trying to figure out what "is" is.

Re:strip them (1)

Ungrounded Lightning (62228) | more than 5 years ago | (#24474521)

The judge should strip them of their right to practice until the successfully pass an English language exam showing that they can actually read and comprehend words.

You are expecting too much from an administration who spent time trying to figure out what "is" is.

"administrations" are time-limited instances of the top levels of the executive branch. Judges are part of the judicial branch - over which the executive branch has essentially no control beyond appointing judges for open (or new) seats and hoping congress confirms the appointments.

Re:strip them (1)

techno-vampire (666512) | more than 5 years ago | (#24474707)

You are expecting too much from an administration who spent time trying to figure out what "is" is.

I didn't know Bill Clinton was still in office.

Head I win, Tales you lose. (0)

Anonymous Coward | more than 5 years ago | (#24473485)

It's the only way they know how to play.

Brilliant (4, Insightful)

Nefarious Wheel (628136) | more than 5 years ago | (#24473563)

I think it's an indication that judges do read ABA journals, that word does get around, and that perhaps there is a hope that these tactics are being exposed for what they are, a colossal rort of the legal system for private gain. You can fool some of the people some of the time, and some of the people all of the time, but you can't fool all of the people all of the time, it appears.

The Transcript (0)

Anonymous Coward | more than 5 years ago | (#24473599)

"Ya see, the Copyright Act, was just a big joke. I mean, when they were making it, they didn't even know about leasing non-physical things like music and software. Because, if it can apply to non-physical or non-real things, it's obvious that this so called Copyright Act isn't real in the first place."

RIAA sol (2, Interesting)

harvey the nerd (582806) | more than 5 years ago | (#24473679)

Definitely looks like a major crack forming in the **AA DeathStar...

As for the Congress getting more blatantly in bed with **AA, keep it up and I suspect people will stop writing them checks too, ass well as ignoring them generally. That's kind of the way these things seem to work in other countries.

By my reckoning, RIAA has had 20+ yrs to get a consumer usable act *started*, much less its act together, and failed. The model of selling the same tunes 12x to the same person in a digital age, threatening to break people "legally", and indiscriminately sucking off education resources, just doesn't cut it. Time to shape up or ship out, guys.

Re:RIAA sol (1)

mnemocynic (1221372) | more than 5 years ago | (#24474233)

ass well as

Freudian slip?

Re:RIAA sol (1)

GoodNicksAreTaken (1140859) | more than 5 years ago | (#24474681)

indiscriminately sucking off

More than just a slip

Did someone say Duloc? (0)

Anonymous Coward | more than 5 years ago | (#24473683)

[song]
Welcome to duloc
such a perfect town
Here we have some rules let us lay them down
Don't make waves
Stay in line
and we'll get on just fine
Duloc is a perfect place
Please keep off of the grass
shine your shoes
wipe your...face
Duloc is
Duloc is
Duloc is a perfect place!
[/song]

Oh wait, DulUTH? My bad.

Mistrial? WTF (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#24473721)

Look, I'm no fan of the RIAA, but to set aside a jury's verdict is fairly unamerican. A jury listened to the facts, contemplated the charges, and rendered a verdict. Setting that aside is something that courts should be loathe to do, and should only be done at the appellate level by seasoned, reasoned jurists.

Re:Mistrial? WTF (1)

shentino (1139071) | more than 5 years ago | (#24473817)

If the judge screws up when he gives the jury instructions, that is a reversible error of law.

The judge is the boss of the courtroom, and can't just screw it up like that. It's his job, as the law expert, to explain to the jury (who, btw, were too stupid to get out of jury duty) how the law is. If you screw up the instructions, you screw up the verdict.

Garbage In, Garbage Out.

It's so bad I think the judge should cover the court costs personally. Anyone screwing up like that as a lawyer would be slapped with malpractice. Should we not hold jusdges to the same standard?

Re:Mistrial? WTF (5, Interesting)

NormalVisual (565491) | more than 5 years ago | (#24473873)

but to set aside a jury's verdict is fairly unamerican

Not when the judge in question gave an incorrect interpretation regarding a point of law to the jury that almost certainly affected the verdict. I think it's a sign of a pretty good judge when he has the balls to say he made a mistake big enough to warrant a do-over.

Re:Mistrial? WTF (2, Insightful)

Anonymous Coward | more than 5 years ago | (#24474215)

I, personally, am an adherent to the principle of jury nullification. I think that's the point of having a jury in the first place. A judge is far more qualified to appraise the "legality" of a case than a legal lay-person. Juries should be instructed to exercise their own judgment taking into account their own values, the circumstances unique, and the legal arguments that take place between the lawyers as arbitrated by the judge. In that order!

Of course, in America, if anyone tries to make a jury aware of this inherent right during the course of a trial, it is grounds for a mistrial. Look it up.

Re:Mistrial? WTF (3, Informative)

NormalVisual (565491) | more than 5 years ago | (#24474309)

I, personally, am an adherent to the principle of jury nullification.

As was John Jay, the first Chief Justice of the U.S. The really sad thing is that all jurors should already be aware of their absolute rights as arbiters of facts *and* the law, but peoples' knowledge of how their own government works is a joke nowadays.

Re:Mistrial? WTF (4, Insightful)

terrymr (316118) | more than 5 years ago | (#24473929)

did you read the part where it said the verdict would be set aside because of bad jury instructions ... if the jury gave the wrong answer because they were asked the wrong question it should be set aside.

Mistrial is not a set-aside... (3, Insightful)

argent (18001) | more than 5 years ago | (#24474199)

He's not saying that the Jury's verdict is wrong, he's saying that the decision was made on incorrect information. The fact that they based their decision on were wrong. If a Jury found a man guilty of murder but it turned out that the prosecution had hidden facts that would have exonerated the defendant, would you consider that "unamerican"?

Re:Mistrial? WTF (4, Insightful)

AK Marc (707885) | more than 5 years ago | (#24475001)

Look, I'm no fan of the RIAA, but to set aside a jury's verdict is fairly unamerican. A jury listened to the facts, contemplated the charges, and rendered a verdict.

They were essentially mis-instructed in the charges.

Setting that aside is something that courts should be loathe to do, and should only be done at the appellate level by seasoned, reasoned jurists.

Lawyers are officers of the court. They must act within the bounds of the court process. To give purposefully misleading information to the judge is outside what they are supposed to do. The judge is not and can not be an expert in everything. The lawyers in the case are supposed to bring up everything relevant, and the judge decides points of law and the juries points of fact. But, the judge decided a point of law incorrectly, essentially because the lawyers on one side lied to the judge. That is a violation of the process and should require a mistrial. The jury made a decision based on incorrect instructions. Thus the decision they made may have been correct based on their information, but may not have been correct if they were properly instructed. The judge gave them one last chance to convince him that the information provided to the judge was correct, and he indicated that he does not believe the instructions he gave the jury were correct, and thus he should declare a mistrial.

As for whether that's right or wrong or whatever, that's what's happening here, and well within the rules of order. It was started because the lawyers on one side misinformed the judge. And that's simply not allowed.

Re:Mistrial? WTF (2, Interesting)

Nefarious Wheel (628136) | more than 5 years ago | (#24475141)

Lawyers are officers of the court. They must act within the bounds ...

Bravo, you win the Internet. That is a well-reasoned and informed presentation of the situation.

Isn't the RIAA moving away from this... (1)

The Ancients (626689) | more than 5 years ago | (#24473741)

...or is it just too tempting?

I wrote a (very) short piece [mothership.co.nz] on this after the music industry had a wee get together in Kristiansand back in June last year.

One of the outcomes reported was the recognition that monetising, instead of prosecuting, was a better idea. Is it just the wheels moving slowly or is the easy path involve a lot less work for a lot more short term gain?

Online Storage (1)

vimm (1300813) | more than 5 years ago | (#24473837)

...their attempt to argue that Cablevision's online storage for its customers constitutes a copyright infringement

What's this mean for WoW Glider, that's basically the same thing, only quicker?

lucky for her, really (-1, Troll)

SirShmoopie (1333857) | more than 5 years ago | (#24473845)

To be honest, either she ignored her council, or got seriously bad advice, because she'd have been better off fessing to file sharing up from the start, and accepting the risk of what even the RIAA originally expected to be a much smaller fine.

I'm not siding with the RIAA, and I think the final fine was absurd, but she lost all hope of having the jury sympathise with her when she spouted her several crocks of shite about being hacked, and that made the fine possible in the first place.

Its a good thing this crazy fine has been reversed, but I have to admit I felt she brought most of it on herself by lying in court.

If she'd gone for honestly and asked for leniency based on the myriad questionable aspects of the RIAA's case, I think things would have gone a lot better first time round.

Re:lucky for her, really (3, Funny)

shentino (1139071) | more than 5 years ago | (#24473975)

If MediaSentry hacked her to frame her, I wouldn't be the least bit surprised.

R3 got DoS'ed by them, after all.

Re:lucky for her, really (-1, Troll)

SirShmoopie (1333857) | more than 5 years ago | (#24474367)

Don't be silly, it was quite obvious she was guilty as charged, the only grossly unfair thing was the punishment.

Re:lucky for her, really (2, Insightful)

gnasher719 (869701) | more than 5 years ago | (#24475055)

Don't be silly, it was quite obvious she was guilty as charged, the only grossly unfair thing was the punishment.

She was charged of having committed copyright infringement in two different ways. The first charge was incorrect and only happened because the RIAA's lawyers lied to the court, and the evidence for the second charge is most likely incorrect as well.

Re:lucky for her, really (0)

Anonymous Coward | more than 5 years ago | (#24474395)

To be honest, either she ignored her council, or got seriously bad advice, because she'd have been better off fessing to file sharing up from the start, and accepting the risk of what even the RIAA originally expected to be a much smaller fine.

I fail to see how she would have been better off. She'd have faced the same situation -- $750 to $150,000 per infringement, plus court costs -- without the possibility of being found not liable (i.e., let off the hook).

At least one member of the jury didn't appear to fully understand the evidence, at least with regard to whether the drive failed or was thrown out to try to beat the rap, and given that they felt $222k was in any way a reasonable penalty for a handful of $1 music files I certainly don't think hindsight demonstrates there was much mercy for the defendant to throw herself upon.

I thought much the same thing about the defendant's strategy as you did, at first glance, but after looking at the alternative I really think it was the best choice of a poor lot.

And who knows, maybe the verdict gets overturned to boot? Would this second-guessing have occurred if the defendant simply admitted liability and hoped for "low" damages to come back from the jury?

Re:lucky for her, really (4, Interesting)

easyTree (1042254) | more than 5 years ago | (#24475233)

I'm not siding with the RIAA..

That's perhaps the fourth time I've seen that in this thread. RIAA trolls sure do have a lot of free time.

This just means..... (1)

budword (680846) | more than 5 years ago | (#24473913)

It's time to bribe....ummm...I mean fund the campaigns of incumbent congressmen. The judges are much harder to buy off.

Don't bother cheering. We're all screwed. (5, Insightful)

The Breeze (140484) | more than 5 years ago | (#24474155)

None of this means a damned thing if the RIAA succeeds in getting their private gestapo made into an arm of the Department of Justice. Remember, they are pushing a bill to create a Federal framework for billing the US Government for both civil and criminal actions using Federal officers to do their dirty work. Even if you don't download music, you're gonna pay through the nose in tax dollars and the loss of more civil rights as the government bureaucrats try to ram through new laws to "support their mission" - mandatory ISP snooping and filtering, legitimized abuse of due process, lower standards of evidence, and a grab bag of laws to "protect jobs" (that's the rationale being currently used to get this bill passed). We're setting ourselves up for an Orwellian nightmare of epic proportions if this nightmare passes.

Re:Don't bother cheering. We're all screwed. (1, Funny)

MarkvW (1037596) | more than 5 years ago | (#24474481)

Ohmigosh! A nightmare of Orwellian proportions. Winston? Where are you? Are you okay?

Re:Don't bother cheering. We're all screwed. (2, Insightful)

lysse (516445) | more than 5 years ago | (#24474989)

Look on the bright side. Western society is in terminal decline anyway. When archaeologists of the next great civilisation look back at us, the RIAA's efforts to turn corporate policy into federal law are going to be seen as something of a barometer... if they are even remembered at all.

No doubt (1)

easyTree (1042254) | more than 5 years ago | (#24475123)

Verrilli said illegal distribution is implied on Kazaa and other file sharing networks. "There's no doubt it's being done millions and millions of times," he said.

I beg to differ. There's no doubt that noone's downloading your crappy product but your unlicensed investigators...

Also, lol - people still use kabaaaaaa ?

This is Soooo Funny (1, Funny)

Anonymous Coward | more than 5 years ago | (#24475291)

Watch as yet another RIAA lawyer makes a complete ass of himself... and in the Midwestern normal town capital of the world no less... why do i feel like Garrison Kieler should be commenting on this.
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