Beta

Slashdot: News for Nerds

×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Judge Rules Shared Files Folder Not Enough

Zonk posted more than 7 years ago | from the you-actually-have-to-commit-a-crime-to-be-punished dept.

Music 156

NewYorkCountryLawyer writes "In UMG v. Lindor, Judge David G. Trager rejected Ms. Lindor's objection to a Magistrate's Report, in which Ms. Lindor complained that the Report could be read to imply that 'the mere presence of a shared files folder on an individual's computer would ... satisfy the requirements of 17 USC 106(3)', saying that the Report of Magistrate Robert M. Levy could not be so read, since '[t]he report and recommendation does not comment on whether or not the mere presence of a shared files folder satisfies 17 USC 106(3). Instead, it makes clear that plaintiffs will have the burden of proving actual sharing. [Report and Recommendation, at 5] ('At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs.') (emphasis added)'"

cancel ×

156 comments

Link whoring (-1, Troll)

Anonymous Coward | more than 7 years ago | (#17347176)

Is it just me or do most of the stories that get posted by Zonk involve a /. user who is link whoring their companies and/or blogs?

Makes sense... (4, Insightful)

Kjella (173770) | more than 7 years ago | (#17347194)

...but I doubt it makes for much of a defense. To imply that "shared files" == infringement would criminalize everything from SMB shares to god knows what. I expect in practise this just means they'll have to explain how it applies in a specific case. The "You can't prove anyone downloaded from me, even though it's advertised through file searches and I'll send it to anyone that asks" is a razor thin defense to begin with.

Re:Makes sense... (2, Informative)

j00r0m4nc3r (959816) | more than 7 years ago | (#17347226)

Yeah especially since every single Windows computer has the administrative C$, D$, etc... shares which basically encompasses the entire computer.

Re:Makes sense... (5, Interesting)

Anonymous Coward | more than 7 years ago | (#17347450)

Actually it makes a good defense. The person providing files is not breaking any law. It's when you actually download it that you do break it. They have to go after the people downloading. That's a BIG difference.
In question is 17 USC 106(3):

"to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;"

One downloading could actually OWN the work they are downloading. Is that infringing? I doubt you could sell that to a jury...notice that all of these include a monatery exchange.

Re:Makes sense... (1, Interesting)

Anonymous Coward | more than 7 years ago | (#17347520)

It's when you actually download it that you do break it. They have to go after the people downloading.

Yes, it's amazing how many people seem to misunderstand this. Making a file available for download is like leaving a book on a photocopier. At most it's an invitation to someone else that might amount to contributory infringement. It's the person who initiates the actual copying (if any) who is directly infringing.

Re:Makes sense... (4, Insightful)

Loonacy (459630) | more than 7 years ago | (#17347652)

That person had it available for download from their own computer, so I thought they owned the copyright. Seriously, it's not MY responsibility to make sure everything I download or buy is being distributed legally. It's the distributor's responsibility to make sure they have the right to distribute.

Re:Makes sense... (4, Insightful)

AusIV (950840) | more than 7 years ago | (#17347950)

Try that after buying some crack. Tell the judge "He invited me into the back alley and sold me the crack. It's not my responsibility to make sure what I'm buying is legal.

Seriously though, that's a weak argument. When one person is distributing thousands of well known songs and hundreds of high dollar movies, you can be fairly confident that the distribution is illegal.

That said, I think it's a weak case to go after downloaders instead of distributors. The only way to have evidence that they're downloading something (prior to searching their computer) is if they're downloading it from you, and if you actually own the copyright to that item, I'm not sure you can distribute it illegally.

Re:Makes sense... (4, Insightful)

fafalone (633739) | more than 7 years ago | (#17348092)

Well, say the crack dealer is an undercover cop. To avoid entrapment, the buyer would have to be the first one to indicate he wanted to do an illegal transaction. The cop couldn't just walk around saying "You want crack?" and arresting everyone who says yes.

Re:Makes sense... (0)

Anonymous Coward | more than 7 years ago | (#17348132)

The cop couldn't just walk around saying "You want crack?" and arresting everyone who says yes.

Yet people can go around the internet saying "I'm hot 14 yr old and want to fuck" and ask cops to arrest everyone who says yes.

http://www.signonsandiego.com/uniontrib/20061203/n ews_2n3internet.html [signonsandiego.com]

Something to think about...

Re:Makes sense... (1)

epee1221 (873140) | more than 7 years ago | (#17348516)

AFAIK, if it's not a cop saying that, then it's not entrapment.
(IANAL)

Re:Makes sense... (1)

Maxo-Texas (864189) | more than 7 years ago | (#17348674)

It gets tricky there.

a) if they are NOT a cop, then once the police becomes aware that they are going around distributing crack to catch crack users, then the police should be arresting them, right?

b) if the cops give them permission to do this (and so don't arrest them), then they are really an extension the police.

I'd really like to see one of the RIAA companies get busted for distributing their real copyrighted material. The obvious solution would be to say "Well you gave away this free into the public domain so you gave up your copyright on this item".

Re:Makes sense... (4, Insightful)

wolrahnaes (632574) | more than 7 years ago | (#17348452)

Try that after buying some crack. Tell the judge "He invited me into the back alley and sold me the crack. It's not my responsibility to make sure what I'm buying is legal.
Bad analogy. You are expected to know the crack is illegal, where when file sharing is involved it's hard to tell. The content is available legally, some artists do release one or two tracks for free on their web sites, so you are presented with a confusing scenario.

Anyways, downloading is basically impossible to get sued over. If you're downloading off some random guy on the Internet, how's the **AA going to know, and if you're downloading off one of their bot machines it was completely legal because they own the copyright and put it up for free download. (as an aside, I came to this conclusion once before when they were polluting KaZaA and the like with damaged files and I decided to download 5-6 damaged versions and put them together in to one good version. It only worked with certain songs and was more work than it's worth, but technically it would have been legal.)

Sharing is the only way you'll face legal trouble now and in the foreseeable future.

Re:Makes sense... (1)

mark-t (151149) | more than 7 years ago | (#17348692)

You are expected to know the crack is illegal, where when file sharing is involved it's hard to tell.

You should probably modify that assertion by putting the word "sometimes" between "it's" and "hard".

More often than not, it's a no-brainer that a person distributing a movie that's only JUST come out is probably not doing so entirely legally...

But hey, if there's really any doubts whatsoever, you can always ask the copyright holder or publisher about it, and if it's illegal distribution, they'll probably appreciate that you thought to ask first... and at that point, you leave it up to them to handle. If it's legit, then download away!

Re:Makes sense... (1)

RedGlobe (1043054) | more than 7 years ago | (#17348330)

Users are absolutely responsible for what they do on their computer. To say its a distributer's responsability is to say I'm driving a car and if it crashes, its the distributer's responsability that nothing gets damaged and nobody gets hurt. It just doesn't make sense. But as for privacy and freedom of information, you should be able to download anything.. its information and a lot of times you don't know the legitimacy of a file. If you found a file called, "fglalis.avi" you wouldn't know if it was legal or not. The host of that file would know this, and they are responsible for that. Now if someone downloaded that file and it was illegal, and then hosted that file for other people... that would hold the original downloader responsible.
A lot of times people don't know that what they download gets marked as 'shared' for other people. But its every user's responsability to know what their computer is doing.

Re:Makes sense... (0, Flamebait)

DECS (891519) | more than 7 years ago | (#17348788)

Except that's file shares don't work like copiers. If I put files in a shared folder, it's not a book in a copier, but a system designed to create copies and distribute them to anyone who posts a request.

My system copies the data and sends it to other parties, or even multiple parties simultaneously. Just because my computer is doing the copy and distrubute work doesn't mean I bear no responsiblity. If I programmed a robot to shoot anyone entering my yard, I would eventually be guilty of murder. I couldn't pin it on an independant system.

So no, it isn't a copier that others help themselves to, its a system that happily copies and distributes content. If I feed content owned by other people into my magic file share, I know what the result will be, and I know that I'm perpetrating theft.

What people "seem to misunderstand" is that creating a fanciful story intended to absolve them of responsibilty for their own actions does not actually work in the real world.

-

Device Problems In Search of a Solution [roughlydrafted.com]

Re:Makes sense... (2, Insightful)

The Infamous Grimace (525297) | more than 7 years ago | (#17347900)

"to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;"
I doubt you could sell that to a jury...notice that all of these include a monatery exchange.

No, they don't all include monetary exchange. I can transfer ownership of an item to another without money ever being involved, and it could be argued that this is exactly what is being done by file sharing. When I allow you to download a file from my computer, I am in effect transfering ownership of the data in that file to you. Something to think about.

-Peter

Re:Makes sense... (1)

malarkey (514857) | more than 7 years ago | (#17348212)

OK, now how do we balance "When I allow you to download a file from my computer, I am in effect transfering ownership of the data in that file to you. Something to think about." with yesterdays story Judge Rules Against Deep-Linking of Content [slashdot.org] where the person linking to content freely available on a website is the bad guy?

Apparently you missed the intent clause (1)

MadRat (774297) | more than 7 years ago | (#17348306)

In order to distribute the person with the shared folders had to have an intent to distribute otherwise no criminal law was broken. The key word is intent, because simply making them available through negligence is not unlawful yet. In a civil case negligence is no defense, but in a criminal case it makes all the difference in the world. So in your example, the violation is for a criminal act, which means the intent clause has to be satisfied. If it can be shown that a computer operator at the basic level should know and understand the shared folders concept then a civil case is more than satisfied. Unfortunately, the average user cannot be held to such a high threshold of knowledge, considering Microsoft makes the whole issue so complicated.

Re:Makes sense... (1)

jb.hl.com (782137) | more than 7 years ago | (#17348688)

When I allow you to download a file from my computer, I am in effect transfering ownership of the data in that file to you. Something to think about.

No, you're not, you're giving someone else ownership of an identical file. Your ownership of the original one doesn't alter or diminish in any way.

This, by the way, is the same argument every single Slashbot uses to say that P2P != theft every single time that someone dares call P2P stealing.

Uhh... (1)

Belial6 (794905) | more than 7 years ago | (#17348700)

Uhh... Hasn't it been well established in previous cases that you don't own the music. You only own a license to listen to the music? Now, I think that all of those cases were incorrectly determined, but if the legal system says having posession of the file when you have paid for it in a store doesn't constitute ownership, then there is no way that letting someone else copy the file could be a 'transfer of ownership'.

Re:Uhh... (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348794)

Letting someone listen to, or even copy, something, would not be a "transfer of ownership" within the meaning of the distribution rights section of the Copyright Act.

Re:Makes sense... (1)

Kjella (173770) | more than 7 years ago | (#17348202)

Actually it makes a good defense. The person providing files is not breaking any law.

A&M Records Inc. vs Napster, Inc. (2001):
"We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."

That interpretation has been confirmed many times, for example in the Grokster suit before the Supreme Court. Could we please please stop legal misinformation? Under current copyright law both the uploader and downloader are breaking the law.

Re:Makes sense... (2, Insightful)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348314)

Agreed that uploading for purposes of copying and downloading for purposes of copying may constitute copyright infringement. In the RIAA v. Consumer cases, however, the RIAA has evidence of neither. Nor does it have evidence that the defendant did anything at all. So where is the legal misinformation to which you are referring?

Re:Makes sense... (1)

green1 (322787) | more than 7 years ago | (#17348320)

what this seems to do though is indicate that you need to prove a transaction took place. it's not enough to show that someone was WILLING to distribute, you have to prove that they DID distribute. so if you can prove that subject A sent a file which they weren't authorized to distribute to subject B you will have a case, however simply saying "there was a list of files over here that someone COULD have downloaded" isn't enough

to use the analogy that the record companies love so much: you can't simply have a bunch of CDs on a table somewhere with a sign saying "Steal me", you have to wait until someone actually steals one before a crime has taken place. (this all of course assumes that the orriginal file or CD was legitimately obtained in the first place, if you can prove that the person didn't have the right to have that file to start with then you should be able to prove that an illegal act has already occured)

Re:Makes sense... (1)

sorak (246725) | more than 7 years ago | (#17348048)

It also makes a big difference, because, if the RIAA decides to sue over some infringement, real or imagined, they may find that I store my media files on a shared folder. The jury may or may not be saavy enough to realize that since my firewall block SMB traffic, that the only people who could illegally download from me are my technophobic mom, and my fiance, neither of whom own a computer (meaning they would have to use either my home pc or my laptop to steal my MP3s, but the fact that it can be done via a network share somehow makes me more of a threat than if the mp3s were simply on the computer.)

But, I'm getting off point. The point is that, once you start saying x = y and y=z, then you run into situations where it doesn't matter if anyone is actually breaking the law. There's a network involved, so it's illegal. Reminds me of a law in Tennessee. You have to provide proof of insurance when a cop pulls you over. That SHOULD be a violation of the "burden of proof". But the law considers it required paperwork, meaning that it doesn't matter if you actually have insurance, if you don't have that card on you, you get fined.

No net effect (0)

Anonymous Coward | more than 7 years ago | (#17347202)

It's trivial to meet the "preponderance of evidence" standard by the RIAA having connected to the defendant's torrent (or other P2P session), receiving one block fron data from them, and then inferring that because the protocol require reciprocal exchange of data, that the defendant's machine passed on blocks data to the other people in the torrent.

There's no requirement that the whole work be downloaded to demonstrate infringement, AFAIK.

Re:No net effect (1)

Schraegstrichpunkt (931443) | more than 7 years ago | (#17347256)

and then inferring that because the protocol require reciprocal exchange of data,

Except it doesn't.

Re:No net effect (0)

Anonymous Coward | more than 7 years ago | (#17347658)

If the RIAA is legally authorized to download the content from those sharing, then what laws is the sharer breaking by sending them data? The RIAA is not a branch of law enforcement, and therefore would have to be breaking the law themselves to acquire any evidence against the person. The Sharer could have a filter blocking all incoming and outgoing packets that are not registered to the RIAA, and (if the RIAA is permitted to receive the data) breaking no laws. If the RIAA were to locate these individuals illegally and "anonymously" tipped off law enforcement, I see no problems (happens all the time these days). But the approach they've been taking is absurd.

Re:No net effect (1)

aussie_a (778472) | more than 7 years ago | (#17347902)

My understanding is that its legal to download illegal to upload. The fact its the RIAA downloading it is irrelevant. Just as it would be illegal for a bootlegger to sell a pirated CD to the RIAA, its illegal to upload the RIAA songs without permission from the RIAA. AFAIK the RIAA downloading the content doesn't automatically grant you that permission. However IANAL and AFAIK this defence hasn't been tried in a court of law.

Re:No net effect (1)

HermMunster (972336) | more than 7 years ago | (#17348430)

Each song is valued at $.70 for the copyright owner (approximately--according to values I have read in various cases and on this site). A candybar costs between $.50 and $1.00. Do our police really have the time to go after every petty theft? The RIAA could create a real burden on the public law enforcement and upon any individual accused by them. The city governments can't afford to pay their police to run after ever petty theft. The average citizen can't afford to defend against every allegation of the RIAA after sicking the police on the citizen.

The purpose of this is to show that the RIAA must show that infringement actually took place and that just having a list of filenames is not sufficient. Someone should set a trap for the RIAA by creating a shared folder of text files with the names of the songs of approximately the size of an actual .mp3 of the same name and then when they are attacked by the RIAA show that no infringement took place and that the RIAA is not doing their homework and thus burdening the courts, law-enforcement and the general public with their witch hunts.

Lacking weight (2, Insightful)

Xiroth (917768) | more than 7 years ago | (#17347204)

Uh, do we really need a blow-by-blow for this case on here? I mean, this is an interesting decision, but it seems to be more a procedual ruling rather than setting a precedent of any strength. Posted on a legal blog I could understand, but I doubt that enough of Slashdot's readers are fluent enough in legalese to get much sense out of it, or even get particularly interested in an intermediate step like this if they do understand it. Disclaimer: IANAL, so this is wide open to being contradicted to someone who is actually in the field.

why it's important (1, Insightful)

Anonymous Coward | more than 7 years ago | (#17347498)

Had the finding gone the other way administrative shares in windows would have automatically become infringing activity.

Re:Lacking weight (5, Interesting)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17347560)


I think it's actually quite significant.

I'm not aware of another decision, among the 25,000 or so cases that have been brought so far, where the Court has (a) laid out the standard of proof the RIAA will have to meet at trial, or (b) made it clear that the RIAA's theory -- that merely having a shared files folder is in and of itself a "distribution" -- won't cut it at trial.

If you or any other reader is aware of any such decision, please bring it to my attention. Thanks.

Re:Lacking weight (1)

nomadic (141991) | more than 7 years ago | (#17348300)

I think you're right. I mean maybe it would belong on the front page as part of a larger post listing each development in the trial, but not a story by itself.

Re:Lacking weight (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348366)

This is the first time I know of, out of about 25,000 or so cases that have been brought so far, where the Court has (a) laid out the standard of proof the RIAA will have to meet at trial, or (b) made it clear that the RIAA's theory -- that merely having a shared files folder is in and of itself a "distribution" -- won't cut it at trial. I think that's deserving of a separate post.

Re:Lacking weight (1)

nomadic (141991) | more than 7 years ago | (#17348578)

Well I'm not familiar with all 25,000 cases, but obviously every one is going to have a standard of proof that the RIAA has to meet, presumably the usual "preponderance of the evidence" listed in this story. I can't really envision a trial, even a bench trial, where the standard of proof isn't set forth at some point. I probably shouldn't speak more to the decision because the link in the story doesn't work, so I can't see either the magistrate's report, the objection, or the court's response to the objection.

Re:Lacking weight (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348606)

Dear nomadic, I'm sorry your links to the legal documents aren't working. The litigation documents are all *pdf files, and they're working for everyone else, so you probably need to download a newer version of Adobe Reader. All the federal court files are *pdf's, that's the federal court standard, so there's nothing I can do about it.

I'm confused... (3, Insightful)

darien (180561) | more than 7 years ago | (#17347206)

So hang on... so the judge dismissed an objection to a report that implied that having a Shared Files folder would satisfy the terms of 17 USC 106(3). Er, is this good or bad news?

Re:I'm confused... (2, Informative)

WgT2 (591074) | more than 7 years ago | (#17347414)

I'm confused as to why the editors gave absolutely no background summary concerning whatever this case is.

Why should it make sense when, in reality, it's a continuation of a separate, as it were, 'conversation'?

Re:I'm confused... (2, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17347578)

It's all in there. First read the magistrate's report. Then read the objection to the magistrate's report. Then read Judge Trager's decision.

If you want to go back further, read the motion papers for the preclusion motion in UMG v. Lindor [riaalawsuits.us] .

Re:I'm confused... (0)

Anonymous Coward | more than 7 years ago | (#17348748)

I don't think so - I believe these are fair criticisms, and you have not presented any mitigating excuses.

Is this normally how you present arguments, too?

That is, here are a list of cases that show $SOMETHING, your Honour, please go and read them to see a) what they show, b) how it is relevant to this case, c) whether it supports the plaintiff or defendant.

Re:I'm confused... (4, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17347570)

It's good news, because the objection was just complaining about some language, and the judge was saying 'don't worry, the language doesn't mean what you feared it meant... and just to be sure, let me make it clear: the plaintiffs will have the burden of proving defendant actually shared files'.

Re:I'm confused... (0)

Anonymous Coward | more than 7 years ago | (#17348054)

Are you sure it's good news? I'm not sure how the RIAA is going to prove someone shared files with Kazaa without violating someone's privacy. Maybe for this individual's case yes, but look at it this way... Sure the Kazaa app advertises shared folders, but it doesn't also broadcast the fact that you are in the process of transferring a file. At least not directly. There may be some way to craft searches or passively watch network traffic to see if it is happening like there is with BitTorrent. As far as I am aware though, they're going to have to go upstream to your provider and watch you there to really know if your shared files are being downloaded.

That's bad, because now they'll push for the legal right to do so. Either that, or the judge is saying the RIAA really only has a beef with the initial seeder of the file and must find and sue him. That would be great, and that would be feasible without giving the RIAA new rights to invade privacy, but I don't think that's what the judge meant. It would also be a devastating blow to the RIAA, because there would be no way for them to find out who seeded all the files that are already out there now.

But hey, this is Slashdot. I didn't even RTFA. ;-)

Re:I'm confused... (1)

spiritraveller (641174) | more than 7 years ago | (#17348436)

As far as I am aware though, they're going to have to go upstream to your provider and watch you there to really know if your shared files are being downloaded.

That's bad, because now they'll push for the legal right to do so.


I don't believe that any provider keeps logs which are that detailed... they would essentially have to keep copies of every packet sent and received. There simply isn't enough hard drive space to do that.

As for whether the **AAs might seek the ability to directly monitor your communications with other people, I find it unlikely that they would get that. It would be such an obscene invasion of privacy, that I don't even believe Congress would do it.

Congress has done some pretty obscene things lately, but that has always been supported by the "Stop the Terraists" or "Think of the Children" arguments. "Think of the entertainment industry" and "think of the artists" doesn't have the same ring to it.

Re:I'm confused... (1)

HermMunster (972336) | more than 7 years ago | (#17348480)

Sounds straight forward to me. It is my opinion of what the fall out will be. IANAL.

1) They must show that the files were transferred illegally. They can do this by downloading the files. I don't believe they'd be guilty of illegal sharing if they downloaded files that they own. Just like the artist of the music couldn't be found guilty of copyright infringement on music they created.

2) They must show that they actually contain the content to which the files describe.

3) They must prove they have the rights to those files. They can't download files who's rights are owned by someone else and claim damages for themselves.

4) They must prove that the individual receiving the files don't actually own rights--such as owning a CD but not knowing how to make an mp3 out of them and they just downloaded to get a back up.

Sort of off topic:
If you want to ensure that you aren't caught up in Microsoft violating your privacy by them aiding these cheesy organizations (RIAA, etc) then you should be using a very viable OS such as Linux. I personally feel that Microsoft has worked with organizations such as the Department of Homeland Security and other organizations (civil and governmental) to include extremely hidden processes which allow certain amounts of monitoring to take place. If you use Linux there's no chance of getting wrapped in a battle if, and when, it is discovered. Essentially I'm saying that I believe the Linux is the safest route to ensuring your privacy.

Re:I'm confused... (1)

mjtaylor24601 (820998) | more than 7 years ago | (#17348708)

Let me start off by saying that I liked your analysis of the ruling and I don't mean to offend, but this parting shot across Microsoft's bow kind of stuck in my craw:

"I personally feel that Microsoft has worked with organizations such as the Department of Homeland Security and other organizations (civil and governmental) to include extremely hidden processes which allow certain amounts of monitoring to take place"

Do you have any sort of evidence to back up that accusation? If so I for one would be very interested to read it, so please share with the class.
If not, then in future you might want to reconsider making baseless claims like this. All it does is make OSS advocates look like a bunch of paranoid conspiracy nuts, which ultimately just encourages people to dismiss excellent software like Linux out of turn.

Could it be! An intelligent Judge! (4, Insightful)

gsn (989808) | more than 7 years ago | (#17347210)

One that actually believes you have to be shown to sharing copyrighted material before being found guilty of it. Merry fucking Christmas.

Tiny steps. Maybe next year we can get a judge who recognizes that the RIAA "settlements" are pure extortion and the entire calculation for how much financial damage was caused by sharing a file is pure bollocks. Eventually one who realizes that an IP address!=identity and they shouldn't be allowed to just ask ISPs for IP address and get any kind of information at all. And that it shouldn't be a crime to punch the RIAA layers and moguls in the face... one can dream.

Re:Could it be! An intelligent Judge! (3, Funny)

Travoltus (110240) | more than 7 years ago | (#17347250)

This judge will get sued for all the infringement that will be allowed because of this.

Well, not really, but you never know...

In it for the money (4, Interesting)

Propaganda13 (312548) | more than 7 years ago | (#17347278)

Shouldn't the RIAA get a couple of rock solid cases to win in court instead of extort^H^H^H settling for money? If piracy is that rampant, shouldn't they be able to get some slam dunk cases in court? Couldn't they link a case or two and have involved third parties testify? Like a druggie or undercover officer testifying against a drug dealer? IANAL, so I don't know how that would work in a civil case.

Re:In it for the money (0)

Anonymous Coward | more than 7 years ago | (#17347632)

"to win in court instead of extort^H^H^H settling for money?"

wait a minute would that not mean "extort delete t delete r delete o and leaving finaly ext"

isn't extort^W the right code here? and a ^H to not have a double space between "of" and "settling"

SERIOUS question!! Helpfull answer welcome.

Re:In it for the money (1)

Fordiman (689627) | more than 7 years ago | (#17347780)

In your case, I think ^W would be perfect; it would close the window you're trying to comment in. *smirk*

I believe ^^H (ctrl-backspace) would work best, like so: ... extort^^Hsettle

Re:In it for the money (1)

swillden (191260) | more than 7 years ago | (#17347864)

I believe ^^H (ctrl-backspace) would work best, like so: ... extort^^Hsettle

Then you've got a seriously screwed up copy of WordStar.

Re:In it for the money (3, Insightful)

Sancho (17056) | more than 7 years ago | (#17347970)

Why should they? The settlements are working so well.

The RIAA's goal in these suits is to stop copyright infringement by making an example out of people. A couple of million dollar judgements isn't likely to be more effective than dozens of multi-thousand dollar settlements, and it's going to cost a hell of a lot more.

Furthermore, there's always the chance that they'd lose. A loss would be devestating, because they would start seeing more and more people fighting the allegations, which they don't want.

Re:In it for the money (1)

HermMunster (972336) | more than 7 years ago | (#17348522)

All along the RIAA has been using the public to disseminate information that would scare the rest of the public out of piracy. They are much more successful at reducing piracy because you, yes you, talk about it all the time. The more you talk about them filing the cases the more people refrain from pirating.

This is the very reason they want to the newspapers in the defendants local community to write articles about them pirating. They know that the disclosure of this is more impacting than the actual filing of the case. Now that they have the burden to prove the infringement (as has always been the case--it is just been enforced by a court) this will hurt them more than any. When those that are at the end of these cases receive their filing by the court the more of them will defend against it.

Certainly the RIAA will have to change their tactics. You all better damn well expect it.

Re:Could it be! An intelligent Judge! (2, Insightful)

91degrees (207121) | more than 7 years ago | (#17347316)

One that actually believes you have to be shown to sharing copyrighted material before being found guilty of it.

Well, I'd hope that most judges would expect a certain amount of proof before awarding a multi billion dollar judgement against an individual. When you're asking for the life ruining damages the RIAA are demanding, a judge isn't going to rush the case so he can get away and play a few rounds of golf.

Re:Could it be! An intelligent Judge! (1)

Threni (635302) | more than 7 years ago | (#17347392)

> Maybe next year we can get a judge who recognizes that the RIAA "settlements" are pure extortion

Won't make him many friends. Perhaps you'll find one who values justice over his career. I wouldn't hold your breath.

Re:Could it be! An intelligent Judge! (1)

ucblockhead (63650) | more than 7 years ago | (#17348446)

Keep in mind that the vast majority of these cases are never seen by a judge. A judge can only rule if victim stands up to the RIAA and refuses accept their extortionary settlements.

Re:Could it be! An intelligent Judge! (1)

Millenniumman (924859) | more than 7 years ago | (#17348544)

How about people who can stop themselves from pirating music? Is it really so hard?

If you dislike the major recording companies, don't buy music from them.

Re:Could it be! An intelligent Judge! (2, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348620)

The defendant in this case never even turned on a computer.

I'm so confused (1)

djshaffer (595950) | more than 7 years ago | (#17347252)

And I think the solution may be for this judge to talk to the one(s) that have ruled that just linking to copyrighted material is infringement.

Re:I'm so confused (2, Interesting)

ScentCone (795499) | more than 7 years ago | (#17347650)

And I think the solution may be for this judge to talk to the one(s) that have ruled that just linking to copyrighted material is infringement.

Except... the other judge did not say that. The guy in question wasn't just "linking to" someone else's content... he was embedding someone else's copyrighted videos in his own site, making it look like it was his material, while still burning up the other guy's bandwidth. It was classic leeching, and he was making ad money off of doing it.

Re:I'm so confused (3, Funny)

aussie_a (778472) | more than 7 years ago | (#17347932)

So if I have a window in my house overlooking a screen from a drive-in and charge deaf people to sit and look out my window, is that copyright infringement?

Hmmm... perhaps I should make a new name "TerribleAnalogyGuy"

Re:I'm so confused (1)

ScentCone (795499) | more than 7 years ago | (#17347984)

So if I have a window in my house overlooking a screen from a drive-in and charge deaf people to sit and look out my window, is that copyright infringement?

Hard to say how that would play... but in practical terms, you can't do that for an audience of thousands or millions the way that you can with a leeched-material web site. I'm betting that charging admission to look over the fence at a drive-in movie theatre is a bad enough example that we'll have a hard time really coming to an agreement on the specifics (local zoning thing? theft of services thing? copyright? no business license to do that in your house? etc), but it doesn't matter. Only a morally rudderless person would even spend a moment wondering if that's an ethically bankrupt business model, or that - regardless of your take on DCMA, etc - it's plainly oozing money off of someone else's work and property.

Doesn't matter. Content leeches are parasitic scum, and everyone knows it. The particular mechanism by which you stop them is a practical matter... but anyone who defends them on principle is made of some odd stuff.

Re:I'm so confused (2, Interesting)

HermMunster (972336) | more than 7 years ago | (#17348546)

It would not be illegal since the screen, in this scenario, is visible to anyone in the public, even if they are only able to see it from your residence or ones near you. Because it is being broadcast in the open it isn't illegal. The motion picture group might want royalties from what you charge and the government might want to collect taxes but there'd be no legal infringement. You can equate it charging to have someone listen to a CD that you picked up off the street. I found a CD once that was in good shape. I didn't like the music so I gave it to a friend.

One would also have to argue that your charging is in fact causing any damage to the movie industry.

Intent to share ? (2, Insightful)

iemeeltje (845499) | more than 7 years ago | (#17347262)

Copyrighted files on a shared folder is indeed not equal to sharing copyrighted files. However doesn't this show "intent to share" ? Don't know a lot on the US justice system (criminal, civil etc.) but I guess the proverb "stupidity doesn't mean innocense" still holds. To me it seems the plaintiff needs to prove actual sharing in order to get damages (?)

Re:Intent to share ? (1)

Nadir (805) | more than 7 years ago | (#17347290)

Actually I believe it's more along the lines of "Ignorantia legis non excusat" [wikipedia.org]

Re:Intent to share ? (2, Informative)

gnasher719 (869701) | more than 7 years ago | (#17347500)

'' Copyrighted files on a shared folder is indeed not equal to sharing copyrighted files. However doesn't this show "intent to share" ? Don't know a lot on the US justice system (criminal, civil etc.) but I guess the proverb "stupidity doesn't mean innocense" still holds. To me it seems the plaintiff needs to prove actual sharing in order to get damages (?) ''

This seems a bit mixed up. First, having a shared folder does _not_ mean "intent to share". Even if it means "intent to share", it doesn't mean that any sharing and any copyright violation happened. If I offer everyone on Slashdot to copy my complete music collection, and nobody takes up the offer, then no copyright violation has happened. On the other hand, many on Slashdot have in the past argued that having an unprotected open wireless connection shows "intent to share", but they are wrong, and courts have decided they are wrong.

And that seems to be exactly the point that the judge made: There was a report saying that the defendant had file sharing turned on. The defendant complained because she was afraid someone might conclude that file sharing had actually happened. The judge rejected her complaint because _nobody could legally draw that conclusion_. Exactly as you said, the plaintiffs need to show that actual copyright violation happened, or has most likely happened.

Re:Intent to share ? (1)

iemeeltje (845499) | more than 7 years ago | (#17347600)

This seems a bit mixed up. First, having a shared folder does _not_ mean "intent to share". Even if it means "intent to share", it doesn't mean that any sharing and any copyright violation happened. If I offer everyone on Slashdot to copy my complete music collection, and nobody takes up the offer, then no copyright violation has happened. On the other hand, many on Slashdot have in the past argued that having an unprotected open wireless connection shows "intent to share", but they are wrong, and courts have decided they are wrong.
All really seems to depend on interpretation... Soliciting to a crime or attempt to commit a crime is 'sometimes' punishable, sometimes it isn't (criminal law). Publicly sharing a folder feels to me like an attempt to commit a crime, but could be diminished by the user's stupidity (not knowing how to set permissions and such). However, in order to claim damages by the plaintiff there should be evidence of "sharing". So I'm not claiming that (like in technical) "sharing a folder" is the same as "distributing files", only the intent to share files which may or may not be an offense. If "sharing a folder (with copyrighted material)" is not an attempt to an offense then why share a folder with copyrighted material ? Doesn't the defendant have to prove non-intent or is the full burden of intent on the plaintiff. Just sharing my thoughts on the subject, my credo in such cases is "don't get caught"...

Re:Intent to share ? (1)

Fordiman (689627) | more than 7 years ago | (#17347810)

"Soliciting to a crime or attempt to commit a crime is 'sometimes' punishable"

Hence one of the many and varied differences between a crime and a civil infringement. 'Intent to infringe' isn't actionable, nor is solicitation to infringe or incitement to infringe. (this includes all civil infractions, like, say I incite you to break my arm, and drop charges on battery. You could not then win a suit against me for inciting you to break my arm)

Re:Intent to share ? (3, Insightful)

gnasher719 (869701) | more than 7 years ago | (#17347858)

'' Soliciting to a crime or attempt to commit a crime is 'sometimes' punishable, sometimes it isn't (criminal law). Publicly sharing a folder feels to me like an attempt to commit a crime, but could be diminished by the user's stupidity (not knowing how to set permissions and such) ''

Well, there are different kinds of crime. If you plan to steal my wallet, and a police officer knows about it, he can wait until you take my wallet and arrest you afterwards. If you plan to kill me, and a police officer knows about it, he cannot wait until you kill me; he has to stop you before you do it or even try to do it. Therefore there is a good reason to make it a crime to plan or attempt to kill someone; there is much less reason to make it a crime planning to steal my wallet.

Also: Not knowing that sharing copyrighted files is a a copyright infringement is not an excuse.
Not knowing that files you shared were copyrighted is some amount of excuse (if I give you some music, claiming that it is in the public domain, you share it, and it turns out that I lied to you, that is an excuse for you).
Not knowing that you are sharing files _is_ an excuse (unless you should have known).

you're wrong -- police can wait until he kills you (0)

Anonymous Coward | more than 7 years ago | (#17348758)

Read some of the case law http://www.firearmsandliberty.com/kasler-protectio n.html/ [firearmsandliberty.com] .

The police have no duty to protect you ... not even if you've been granted a protection order.

Your analogy also fails because there is a charge for "attempted robbery" just as there is one for "attempted murder" and there is not one for "planning" to kill someone.

Wonder if the laws the RIAA bought included an "attempted copyright violation"?

Re:Intent to share ? (3, Interesting)

davepermen (998198) | more than 7 years ago | (#17347572)

Hm.. so having a gun does show "intent to kill"?

I know it's different, but i think the choice to not make it illegal to "just show intent" is a good one anyways.

If they find someone with "intent to share", they have reasons enough to observe and get an actual case, in which the ones shares, if he does. Or find out if he tries to.

If the police gets to know that i intend to murder, they try to stop me before I do, and can get me in front of law for this. But they can't get me in front of law because of murder. I could, right before doing the act, think otherwise and just wouldn't have done anything. Nobody can prove the murder as long as it didn't happen.

But showing intent is another delicti. I mean, if they get one sharing 100ths of gigabytes of copyrighted material over bittorrent or similar (i think they mean such shares, not windows shares.. it's just common terminology), they can react, but they can not bring him to case for sharing as long as they haven't proved it.

This is just right.

Re:Intent to share ? (1)

Fordiman (689627) | more than 7 years ago | (#17347786)

Administrative shares are illegal then? How about a passworded FTP server? Those both can be considered 'shared' media.

Re:Intent to share ? (2, Informative)

91degrees (207121) | more than 7 years ago | (#17347972)

The RIAA are claiming for damages. Not punishment.

A similar example would be if I broke your window, regardless of intent, you could sue me for the replacement of the cost of the window if you could prove it was me. If I intended to break your window, but kept missing when throwing rocks, then you haven't suffered any harm so couldn't sue me.

Re:Intent to share ? (0)

Anonymous Coward | more than 7 years ago | (#17348714)

If it's a Windows machine, isnt every folder a shared folder? :-)

English please??? (-1, Redundant)

Anonymous Coward | more than 7 years ago | (#17347274)

Can anyone who understands the summary give a rough english translation?

Re:English please??? (5, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17347638)


We complained that Magistrate's report implied that merely have a shared files folder on the internet would be a copyright infringement.

Judge said "no, it doesn't say that, it means that the RIAA will have to prove that defendant actually did share files".

Re:English please??? (1)

KenBot_314 (744719) | more than 7 years ago | (#17347846)

But... I am still confused...
Is this saying that if they can prove you had a shared folder and that folder contained copyrighted works, then you are guilty of copyright infringement? OR do they actually have to prove that someone downloaded a copyrighted work from that shared folder before they can use this as evidence of copyright infringement?
That kind of scares me if the first is true...

Re:English please??? (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17347882)

No, I think the decision specifically negates the first possibility.

Re:English please??? (2, Interesting)

jc42 (318812) | more than 7 years ago | (#17348342)

Is this saying that if they can prove you had a shared folder and that folder contained copyrighted works, then you are guilty of copyright infringement? ...
That kind of scares me ...


As well it should. The obvious parallel that occurs to me: I have a lot of copyrighted works sitting on bookcases in my living room. Right at this moment, both our front and back doors are unlocked. (It's late Saturday morning here, and we've been going in and out of the house.)

If the prosecution's claim here is valid, then I'm also guilty of copyright infringement. After all, anyone could walk in off the street and take one of those copyrighted works off my shelf. They wouldn't even have to steal the book. There's a copier over in a corner, so they could copy a few pages, walk out with them, and I'd never know. Until someone sues me for "distribution", and uses my unlocked door as evidence of intent.

Now, obviously a computer directory full of files is physically different than a bookcase full of books with a copier in the corner. An unlocked door and a shared folder are physically different. But as far as the "intellectual contents", these two cases seem quite similar.

What's the legal difference here? Are there any lawyers here that can explain? Or am I taking a severe risk by not hiding my bookcases behind locked doors at all times?

Who cares, all musicians are cocaine/heroin adicts (-1, Troll)

cheekyboy (598084) | more than 7 years ago | (#17347308)

I mean seriously, who cares if people copy music, the drug addict looser musos will always make music.

Are the artists totally in bed with columbian drug lords? or is it because they generate such massive
amounts of legal money making ventures its ok?

Get a clue judges, the people Pro (C) are the same people that are Pro Drugs and Cocaine!

Shared Folders do not equal P2P (3, Insightful)

AC5398 (651967) | more than 7 years ago | (#17347326)

Shared folders are not evidence that you're running p2p programs. My freakin Windows XP Media Centre PC came with shared folders that I still can't get rid of.

Re:Shared Folders do not equal P2P (0)

Gentlewhisper (759800) | more than 7 years ago | (#17347374)

99% of all pirates use Windows in some way.

Re:Shared Folders do not equal P2P (2, Funny)

iemeeltje (845499) | more than 7 years ago | (#17347634)

In that case Microsoft would be a co-conspiritor to distributing copyrighted materials (?) :-)

Oohhhhkay then (3, Insightful)

LordPhantom (763327) | more than 7 years ago | (#17347452)

I like NYCountyLaywer. But..... that headline was terrible. A summary should, in LAYMAN's terms, describe why I should spend a few moments reading about the issue.

Ms. Lindor complained that the Report could be read to imply that 'the mere presence of a shared files folder on an individual's computer would ... satisfy the requirements of 17 USC 106(3)', saying that the Report of Magistrate Robert M. Levy could not be so read, since '[t]he report and recommendation does not comment on whether or not the mere presence of a shared files folder satisfies 17 USC 106(3).

Seriously , do you really think that 95% of the readers are going to know off the top of their heads what 17 USC 106(3) is? I like playing armchair laywer, so I bothered to find out, but that headline made my eyes bleed. I suspect I would have started channeling Lewis Black if I hadn't posted this.

Re:Oohhhhkay then (5, Interesting)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17347630)

Sorry LordPhantom, will try to do better next time.

I have a lot of pressure on me from a lot of directions.

One source is the RIAA, which has been scouring my internet writings and keeps trying to discredit me with the Judge. Just the other day, when I wrote to the Judge to submit the decision of the District Court of Utrecht in the Netherlands, and the independent expert report upon which it was partially based, they tried to "strike" my submission, and in support of their motion to "strike" sent the judge a page from my blog. It's all here [blogspot.com] .

Mainly, I've come to this decision: I'm under so much time pressure, I have to concentrate on what is the most important contribution I can make, and leave the rest to others. The most important contribution I can make is get accurate news and information out there. So I try to concentrate on that and let the rest of the world take care of the rest. Excellent commentators such as p2pnet.net, Ars Technica, TechDirt, Digital Music Web Log, Boing Boing, and others, can often make it more understandable. I got a laugh when Grant Robertson of Digital Music Weblog wrote that my article "How the RIAA Litigation Process Works" read like dry toast, and wrote his own version of it designed for non-lawyers.

Re:Oohhhhkay then (1, Interesting)

Anonymous Coward | more than 7 years ago | (#17347816)

Ray wrote: "Sorry LordPhantom, will try to do better next time"
you already showed that you can do better. (better in terms of "understandable for non-lawyer /. crowd". See http://yro.slashdot.org/comments.pl?sid=213318&cid =17347570 [slashdot.org]
maybe for your next submissions you could make it this way: one short introduction sentence in english what the following legalese sentence, that contains also all the links, mean.
And with regards to "[...]the RIAA, which has been scouring my internet writings and keeps trying to discredit me with the Judge", I believe the Honorable Judges Trager and Levy have peeked into your blog in their sparetime already and they are able to see that RIAA-Richard's trials to smear you are useless since you keep your postings generally objective and pure on a fact topic.
Next Time RIAA-Richard makes 100 screenshots and delivers only 1, maybe you should attach a screenshot of the same posting to your answer to the judge too.
But not only your headlines like he did, but also the comments visible. That way the judge has it in the file that not you to be blamed (if even any is to at all), but the bad boy Alter_Fritz.

-- Alter_Fritz

Re:Oohhhhkay then (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17347974)



Dear Alter_Fritz:

Thanks for your suggestions.

I think Richard truncated my blog post [blogspot.com] where he did (compare this [ilrweb.com] with this [blogspot.com] ) because he didn't want Judge Levy to see that the litigation documents were being hosted by Pike & Fischer's Internet Law & Regulation [ilrweb.com] , which is a very important legal publisher.

I think it was much more important, in my response, to call attention to the decision of the Amsterdam Court of Appeals [ilrweb.com] , affirming the District Court decision [ilrweb.com] and agreeing with the report of Prof. Sips and Dr. Pouwelse [ilrweb.com] , than to sink to Richard's level and waste the Magistrate's time with a debate over the merits of my humble blog.

Don't you?

Re:Oohhhhkay then (0)

Anonymous Coward | more than 7 years ago | (#17348496)

I think this kind of answering technigue was very well choosen. Very smart to push the follow up decision by a higher court as a reaction to his wanting to have the judge ignoring the lower court ruling ;-)

--
Alter Fritz

Re:Oohhhhkay then (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348584)

Thank you Alter.

Re:Oohhhhkay then (0)

Anonymous Coward | more than 7 years ago | (#17348656)

P.S.
no, I don't think he willfully truncated at that specific point. (I guess the natural and healty paranoia we all have is in that specific case a bit to high in you) [no offence!]

looks more to me that
a) his default font pt value is relatively high
b) he uses stupid internet explorer as display client and
c) his "print page" values compared to the printer in use are oviously somehow fucked up.

I don't believe that he deliberately chooses such a big font that this print out broke the page exactly at that point where it did, but that he is just not the smartest in setting up the printpage feature (or he has a serious eye problem that he needs such big letters)

--
Alter Fritz

(P.S. P.S. me writing anonymously not under psyeudonym cause /. is not accepting mailinator.com as Registering Mailprovider to secure my Pseudonym Alter_Fritz for commenting therefor ./ is LAME!)

Re:Oohhhhkay then (2, Funny)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348050)

Correction. Grant wrote that my post [riaalawsuits.us] was "dry like a bread sandwich" [weblogsinc.com] .

Re:Oohhhhkay then (1)

mrbcs (737902) | more than 7 years ago | (#17348324)

Ray, Thanks for all your insight and posts that do help us understand the gestapo tactics of the RIAA.

After seeing thousands of "IANAL", it's refreshing to actually hear from a lawyer that's in the trenches!

Re:Oohhhhkay then (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348358)

Thanks, mrbcs. Much appreciated.

Re:Oohhhhkay then (1)

Fishbulb (32296) | more than 7 years ago | (#17348264)

Hey, dry writing or not, good work.

Thanks.

Re:Oohhhhkay then (2, Insightful)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#17348288)

Thanks for your kind words, Fishbulb. A little encouragement, now and then, helps.

mod Up (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#17347530)

The goodwiil their hand...she

Who said the case law has to make sense? (2, Insightful)

Anonymous Coward | more than 7 years ago | (#17347672)

Case one: In some locales having a sufficient quantity of drugs in your possession does make you a drug dealer. What if you are just a bulk-shopper with a large habit and like to save a few bucks?

Case two: I lend you my car (license you some music). You park it legally in front of a bank and go inside to speak to a teller. Those naughty bank robbers opt to use my car as the getaway vehicle. You leave the bank and the car is gone. Did you participate in the crime? I can sue you for actual damages because I can't get to work now. I can also sue the robbers for the same thing.

Re:Who said the case law has to make sense? (2, Funny)

Fordiman (689627) | more than 7 years ago | (#17347842)

Case one illustrates the difference between crime and infringement, as far as consequences go. You can't win a case on intent, or even posession alone, if the case is civil.

I don't know what case two illustrates. I assume the 'I' in it is the RIAA, the 'you' is the consumer, and the 'car' is music, but I'm not sure where the bank robbery or theft comes in. I'm thinking this just goes into the 'bad vehicular metaphor' category.

If only they had to prove an actual loss of money (1, Interesting)

Anonymous Coward | more than 7 years ago | (#17347844)

... Since it's entirely possible the downloader wouldn't have wanted (or even been able) to pay the market price for the files.
Load More Comments
Slashdot Account

Need an Account?

Forgot your password?

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
Create a Slashdot Account

Loading...