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Boston University Student Challenges RIAA

kdawson posted more than 7 years ago | from the back-off dept.

The Courts 381

NewYorkCountryLawyer writes "A Boston University student identified only as one of the 21 'John Does' in Arista v. Does 1-21 has challenged the RIAA's alleged right to get his or her identity from the school, bringing a motion to vacate the ex parte discovery order obtained by the RIAA, and to quash the subpoena served on the university. John Doe's court papers (PDF) argue, among other things, that the RIAA's papers are 'based on a flawed theory that having copyrighted music files on an individual's computer or on an assigned folder on Boston University's server is a "distribution" of such copyrighted music files, where such folder is merely accessible by others.'"

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381 comments

Hey Pater man... (-1, Offtopic)

pak9rabid (1011935) | more than 7 years ago | (#19507245)

...watch out for your corn hole.

Nothing for you to see here, move along... (1)

Red Samurai (893134) | more than 7 years ago | (#19507253)

Could be applying to the RIAA pretty soon.

Good luck, man. (0, Redundant)

Kagura (843695) | more than 7 years ago | (#19507263)

You'll be needing it.

I say... (1)

katterjohn (726348) | more than 7 years ago | (#19507309)

Go him. He has a good argument involving the "distribution" part (not that he should have to argue).

And, yes, I'd be saying this even if I was for the RIAA :)

Re:I say... (3, Insightful)

Anonymous Coward | more than 7 years ago | (#19507563)

as much as I'm against the RIAA, I'd actually have to agree with them on this case.

If you have copyrighted media on your computer, in a publically available share, that is pretty much distribution.

Example: You live somewhere, where the is street traffic. Now, lets say within arms reach of the street, you place [something]

[Something] is either
(a) Illegal to distribute (not necessarily posses, just distribute)
(b) Illegal to distribute to minors
(c) Illegal to distribute to others not possesing a license.

Are you breaking the law by putting it out there in the open, where anyone can access it trivially?

As a few examples:
Illegal narcotics
Pornography
Guns (regular or automatic)
Perscription medications
etc. etc.

Re:I say... (4, Insightful)

rhartness (993048) | more than 7 years ago | (#19507695)

So... public libraries are illegal because anyone can check out a book and photocopy the contents of copy righted material? What about the music CDs of movies that you can access there? It's the same principle, in my opinion.

Re:I say... (4, Insightful)

Applekid (993327) | more than 7 years ago | (#19507917)

Book publishers seem to be kicking themselves for not organizing into crime syndicates like the RIAA and MPAA, otherwise libraries WOULD be illegal.

Re:I say... (2, Insightful)

MankyD (567984) | more than 7 years ago | (#19507943)

As a few examples:
Illegal narcotics
Pornography
Guns (regular or automatic)
Perscription medications

It's worth noting that everything you listed there is considered in some way harmful by someone. No one really considers music (overall) to be harmful*. If you went and set a stack of CD's on the street that said "take one", no one is going to freak out.

*Yes, I know some people rail against explicit lyrics, but that says nothing of other forms of music. Let's not get pedantic here.

Re:I say... (2, Insightful)

Scrameustache (459504) | more than 7 years ago | (#19508071)

You live somewhere, where the is street traffic. Now, lets say within arms reach of the street, you place [something] either
(a) Illegal to distribute (not necessarily posses, just distribute)
(b) Illegal to distribute to minors
(c) Illegal to distribute to others not possesing a license.

Are you breaking the law by putting it out there in the open, where anyone can access it trivially?
So you think it should be illegal to leave your keys in your car? That covers (b) and (c).

Of course he's distributing it (1)

goombah99 (560566) | more than 7 years ago | (#19507671)

Duh. Isn't that what network connections are for, distributing data? He has no case.

Of course, he might not be distributing it (5, Insightful)

0p7imu5_P2im3 (973979) | more than 7 years ago | (#19508067)

But what if his intent was only to give himself access to his data from any location on campus?

In that case, it is not distribution. It is giving himself location free and operating system unlimited access to his purchased content.

If possession is 9/10ths of the law, then my receipt says I can do whatever I want with my legally purchased content so long as I don't produce copies for financial gain.

There is law against selling copies of content without access to copyrights. There is law against copying content without access to copyrights. There is no law against making one's legally purchased content accessible to oneself (unless you break encryption in the process).

NIGGERS (-1, Troll)

Anonymous Coward | more than 7 years ago | (#19507319)

SMELL LIKE SHIT.

goatse.cz

*Ding* (1)

Stanistani (808333) | more than 7 years ago | (#19507323)

NewYorkCountryLawyer, what does this mean:

"I am surprised, and disappointed, that the illegal joinder of Defendants wasn't also attacked at this point. Someone really needs to take the RIAA to task over their repeated violation of this federal court order."

What federal court order?

Re:*Ding* (5, Informative)

dotHectate (975458) | more than 7 years ago | (#19507477)

I don't distinctly remember which one it was, but I remember reading it.

Apparently a judge (most likely federal) told them that they *must* sue individuals and not large groups of people, unless those people were all involved in the alleged lawbreaking as a whole unit (ie. conspiracy) or a single occurance. Basically the judge told them they couldn't do this just because it was convenient for them. What it amounts to is that a single case with 21 "John Doe" persons = 1 filing fee (read; less money). But since each person's alleged infringement has no relation to the other's, they are *supposed* to file 21 separate cases (read: significantly more money).

Also, by doing it this way, it costs more money for the court to send out the proper notices to the participants. Money that they aren't getting from the RIAA.
*Money that we pay in our taxes.*

Re:*Ding* (4, Interesting)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#19508183)

I have no idea where you got that quote from, but whoever wrote it is referring to Fonovisa v. Does 1-41 [blogspot.com] , where the RIAA was ordered, in 2004, to cease and desist from the illegal practice of joining multiple John Does for its own convenience in a single case. The RIAA has been ignoring that order ever since. This Boston case is yet another example of the RIAA ignoring the Fonovisa v. Does order.

his argument seems flawed (2, Interesting)

maynard (3337) | more than 7 years ago | (#19507371)

Essentially, as I read it he's arguing for no criminal liability for illegal redistribution due to having no intent to distribute. Yet he admits to having placed copyrighted works in public folders on a public university system, which allowed others to copy his work. Further, he must have had the ability to set filesystem permissions to intentionally prevent redistribution. I think he's liable. If they can't prove criminal misconduct, at the least by his own admission they can prove civil negligence.

Re:his argument seems flawed (4, Insightful)

Mr EdgEy (983285) | more than 7 years ago | (#19507405)

If i leave my car outside unlocked are you free to take it? Of course this is different because data can be duplicated, but just because something is there doesn't mean it has to be taken.

Re:his argument seems flawed (5, Interesting)

Psmylie (169236) | more than 7 years ago | (#19507495)

I think a better analogy would be: If you had a case of beer in your unlocked car and some kids opened the door and took it, would you be liable for distributing alcohol to minors? I don't know the law in this case (NAL), but it seems stupid to charge the person who bought the beer in this case. Unless, of course, they can prove that he got out of his car, looked over at a bunch of kids, and said, "Gosh, I sure hope nobody takes any of this beer out of my unlocked car, wink wink" then walked away

Re:his argument seems flawed (5, Interesting)

Marxist Hacker 42 (638312) | more than 7 years ago | (#19507765)

Actually, to be exact- you left a Flash Card of some sort on the front seat of an unlocked car. You come back, the Flash Card is still there. Somebody else copied it in the mean time, but you haven't lost anything- you still have the data on your flash card. Was it your fault that the data was copied?

Re:his argument seems flawed (1)

Choad Namath (907723) | more than 7 years ago | (#19507813)

I don't think this is a fair analogy either. The default state of a file on your computer is unshared. You have to take active steps to make it available to be shared, and putting something in your shared folder is generally assumed to be an invitation to others. It's more like he took the case of beer and placed in on the hood of his car.

Re:his argument seems flawed (1)

Technician (215283) | more than 7 years ago | (#19507859)

I think a better analogy would be: If you had a case of beer in your unlocked car and some kids opened the door and took it, would you be liable for distributing alcohol to minors?

Unfortunately, that party is likely to be shown in another light. Hey, guys, the party is at my place www.KaZa.com. Bring something to share to get in. You show up with the keg of MP3's that you just lifted from the local supermarket (RIAA member's CD's) with the price tags still attached (Metadata).

It will be very hard to prove when he came to the party, he knew what he brought to share. The fact some minors may or may not have actualy taken a sample or two is not the charge. The charge is he willingly brought it to share even if the only reason for sharing was to get into the party to enjoy someone else's contributions to the shareing pot. The sharing with minors would be if the MP3's shared were of the nature they had parental advisory stuck all over them limiting access to minors. This is not the charge. Offering to share with anybody who came to the party is the charge.

I wish him luck. He's going to need it.

Re:his argument seems flawed (1, Insightful)

Anonymous Coward | more than 7 years ago | (#19507897)

Unless, of course, they can prove that he got out of his car, looked over at a bunch of kids, and said, "Gosh, I sure hope nobody takes any of this beer out of my unlocked car, wink wink" then walked away.

The actual guy (not the guy in your analogy) had better hope that he didn't send out email to any of his friends saying "Hey Guys, I've got free music in my public folder". For that matter, he'd better hope he never mentioned it in casual conversation - because his friends may not be willing to risk going to jail for perjury (or even obstruction of justice) if such a conversation did take place and he wants them to hide that fact.

I suppose that the Napster argument won't go very far these days but maybe he could make the Napster argument just for himself - particularly, if he could show that the only way he could make the files available to himself from elsewhere on the network was to put them in his public folder.

Re:his argument seems flawed (1)

Nkwe (604125) | more than 7 years ago | (#19507981)

How about this analogy:

Student has a bookshelf full of legally purchased CDs in his dorm room. 1) Roommate listens to or copies one or more of the CDs without first student's knowledge or permission. or 2) Culture of the dorm is that room doors are generally not locked (at least not during floor-wide party hours...) Student from down the hall comes into the room and listens to or copies a CD without the knowledge or permission of first Student.

In both of these cases the student put the music in a location that could have been accessed by others, but did not give permission, invite, or generally have control over access restrictions to those other people. Would the student be liable for copyright infringement?

Re:his argument seems flawed (1)

thestreetmeat (1055390) | more than 7 years ago | (#19508165)

isn't placing copyrighted material in public folders at least the same as saying "gosh, I sure hope nobody copies this, wink wink"?

Re:his argument seems flawed (1)

maynard (3337) | more than 7 years ago | (#19507505)

Here's one better: What if *you* move *my* car to a public location without my permission, unlock it, and then claim innocence of the resulting theft as well as no liability for my loss due to your ignorance of the potential outcome. I don't think that would fly in court. Then again, INAL. I don't even play one on TV.

Re:his argument seems flawed (1)

Anonymous Coward | more than 7 years ago | (#19507683)

Better analogy: I take my super-duper replicator ray and zap your car, producing a perfect copy. Then I move the copy into a public area and somebody uses *their* replicator ray on it.

You still have your car. But now so does everybody else.

This is why copyright infringement is not theft. Theft has two parts: the recipient of the stolen goods is unjustly enriched, and the original owner is unjustly impoverished. With copyright infringement, only the first part (unjust enrichment) has actually occurred. The original owner still has theirs.

Some would argue that there is no harm unless there is unjust impoverishment; others argue that unjust enrichment is equivalent to it because the original owner should be the only one to profit from it, and therefore unjust enrichment == unjust impoverishment because every copyright infringement is a lost sale. The truth lies in between.

Re:his argument seems flawed (1)

maynard (3337) | more than 7 years ago | (#19507745)

This is why copyright infringement is not theft.

You'll have a hard time convincing our legislators and courts of that assertion these days. Good luck.

Re:his argument seems flawed (2, Insightful)

sqlrob (173498) | more than 7 years ago | (#19507785)

They've already convinced the courts.

Hence the charge is "copyright infringement" and not "theft"

Re:his argument seems flawed (3, Interesting)

Maximum Prophet (716608) | more than 7 years ago | (#19507573)

If you leave a CD lying around, and someone walks by and steals it, they are guilty of theft. I don't see that you'd have any liability. If on the other hand, someone walked by and copied it, they are guilty of infringement, you also should be without liability.

If you loan a paperback book to a friend, that's ok. (Libraries do it all the time) If the friend copies the paperback, they are guilty of infringement, but I don't see any liability for you.

I'd say he has a good case, unless he intentionally put an electronic sign on his files, saying "Copy These Please!!!"

Re:his argument seems flawed (1)

morgan_greywolf (835522) | more than 7 years ago | (#19508035)

I'd say he has a good case, unless he intentionally put an electronic sign on his files, saying "Copy These Please!!!"


Didn't he do just that by putting them in a shared folder and leaving the permissions wide open? How is that different from putting them on a public ftp server, adding them to the shared folder of a P2P program, or tossing them on a web site?

Re:his argument seems flawed (4, Interesting)

moderatorrater (1095745) | more than 7 years ago | (#19508157)

I think it's going to come down to how the publicly accessible folders are generally used. If they're usually used for storage and the student never advertised the music, then they'll have a good chance of the case being dismissed on the grounds of no intent. However, if the folders are generally used for sharing music and there's a culture of everyone browsing and copying from everyone else's folders, then I would imagine the judge would find intent based on the music being in the folder.

Re:his argument seems flawed (2, Insightful)

Arcquist (1100065) | more than 7 years ago | (#19507437)

Ignoring the intent and other issues I find what constitutes 'distribution' interesting. I personally think it should include intent. As you've stated it it seems you imply that leaving a CD on a park bench is 'civil negligence' and should lead to charges...

Re:his argument seems flawed (0)

Anonymous Coward | more than 7 years ago | (#19507577)

Well the CD is covered as found property. Now that's not so on a network. If the folder is his, presumably those who have access to it, know what they are allowed to have access to. Much in the same way a network administrator has dominion over but does not own all the data on a network. Just putting it in a folder that's labled as his and isn't explicitly shared (intent) via something like kazaa is a pretty good argument.

Re:his argument seems flawed (1)

Divide By Zero (70303) | more than 7 years ago | (#19507835)

Much in the same way a network administrator has dominion over but does not own all the data on a network.

Interesting thought.

You put some MP3s of your favorite obscure band, that you ripped from a CD you bought, in your home folder (not globally shared) on a multiuser system. Say, a university server, or maybe something at work. Your sysadmin is good at his job, and runs nightly backups of all the users' files.

You now have positive knowledge that someone not licensed for the content (the sysadmin) can and WILL copy those files on a daily basis.

Are you distributing? Are you liable in a civil suit? Would the RIAA agree?

What's the difference between this scenario and his?

Re:his argument seems flawed (1)

maynard (3337) | more than 7 years ago | (#19507589)

No, because there's no criminal duplication involved in redistributing a licensed copy of that CD. IOW: there's no initial crime in giving away (or selling) a used CD, so there is no liability for having done so to begin with. In this case, a person has already admitted that criminal activity took place within his University account and filesystem. We already know a law was broken. So, is the owner of that account criminally or civily liable for the consequences? I'd like to hear a real lawyer speak up on that issue.

Re:his argument seems flawed (1)

Arcquist (1100065) | more than 7 years ago | (#19507779)

No, because there's no criminal duplication involved in redistributing a licensed copy of that CD. IOW: there's no initial crime in giving away (or selling) a used CD, so there is no liability for having done so to begin with.
I guess I wasn't clear. What I meant was that by leaving a CD on a park bench (which is publicly accessible) I could, by your reasoning, be liable if someone comes along, copies the CD, and replaces the CD on the park bench. By your reasoning I have 'distributed' the CD by allowing (intentionally or not) someone to copy it.

So in this case too I could admit that a crime had taken place but that crime wasn't theft (the CD was returned) and I'd argue that leaving the CD there wasn't 'distribution' so the only crime was copyright infringement by the person who copied the CD on the bench.

Oh well, it doesn't really matter anyways I just think that you have to be careful with defining the word 'distribution' as if it includes unintentional public access you can get into all kinds of weird situations. Are you 'distributing' alcohol to minors if you forget to lock up a store with alcohol in it? etc, etc?

Re:his argument seems flawed (1)

XnavxeMiyyep (782119) | more than 7 years ago | (#19507869)

What if the CD was already saved onto his computer? Or if it was a burned backup of an additional CD he had at home?

Re:his argument seems flawed (1)

SDF-7 (556604) | more than 7 years ago | (#19508153)

No, they admitted no such thing (and in fact argued strongly the opposite).

What they "admitted" was that the files were in a sharable folder/directory on the network.

They also "admitted" (because it was in the RIAA's subpoena) that an agent of the RIAA copied the files. Said agent of the copyright holder, however,
had the permission of the copyright holder (member of the RIAA) to make said copies [otherwise the RIAA would have to sue their agent now].

As such -- no admission of anyone other than the RIAA's agent was made, and if the only copying activity was authorized... no crime took place.

If you believe otherwise, then you'd better be really, really careful about where you leave your audio files. Allow them for even a moment on a
machine with those hidden default Windows shares like $C... and you're arguing that you're now guilty of copyright infringement -- even though
no copy was ever made. And I'd argue that this is just silly.

It is interesting -- if the judge accepts the argument, it would mean that the RIAA would have to definitely prove its case (that actual
infringement occurred, i.e. an unauthorized copy was made... which implies to me that they'd have to either track it using watermarking or
packet interception to really prove it) just in order to get a subpoena to identify the defendant. Seems a little strict -- but they have
good cites on the requirement being intentionally this way in the legislation to prevent spurious fishing expeditions.

Re:his argument seems flawed (0)

Anonymous Coward | more than 7 years ago | (#19507455)

I think he's trying to argue that even though it was possible for people to copy the files, they didn't actually do so, so there wasn't a copyright violation.

He's got a point.

Re:his argument seems flawed (0)

Anonymous Coward | more than 7 years ago | (#19507469)

So you are implying that it is a crime to leave something, that isn't harmful, unlocked? In the case of a gun you could say it creates a public health threat but this is like leaving a box of magazines out.

Re:his argument seems flawed (1)

wynler (678277) | more than 7 years ago | (#19507483)

An example.  I leave my cd-player and my cd-wallet on the front porch of my house.  It's not locked up, it's a safe community.

Someone comes along and copies my CDs and leaves.

Explain to me how I'm guilty of distribution?  Just because I don't lock up my CDs doesn't mean that someone else has the right to copy them.

Re:his argument seems flawed (1, Insightful)

Anonymous Coward | more than 7 years ago | (#19507491)

A book in a library is still copyrighted. If you use the libraries photocopier to make an illegal copy of the work "You" are infringing not the library. I believe that that is basically his argument.

Re:his argument seems flawed (1)

Fozzyuw (950608) | more than 7 years ago | (#19507703)

A book in a library is still copyrighted. If you use the libraries photocopier to make an illegal copy of the work "You" are infringing not the library. I believe that that is basically his argument.

A good analogy. But I have to ask, isn't it actually legal to copy small portions of a whole product for 'reasonable' use? Like photocopying a page or writing notes of a book for research, report? But not photocopying the entire book, re-binding it and giving it away (or worse, making a profit from it)?

Cheers,
Fozzy

Re:his argument seems flawed (3, Informative)

Red Flayer (890720) | more than 7 years ago | (#19507815)

That's not wholly correct, however. Libraries can indeed be held liable for patrons' copying of copyrighted works. This is called vicarious infringement, and can only occur if the library does not post a notice near reproduction equipment about copyright law applying to patrons' use of the equipment -- libraries get a special exception to Section 18.

Note that since the defendant is not a library, this exception does not apply to him.

Re:his argument seems flawed (4, Interesting)

brunascle (994197) | more than 7 years ago | (#19507493)

how is that different that leaving a CD physically out in the open? someone else is able to grab it and copy it. would that make me liable for leaving it there?

Re:his argument seems flawed (1)

Fujisawa Sensei (207127) | more than 7 years ago | (#19507781)

how is that different that leaving a CD physically out in the open? someone else is able to grab it and copy it. would that make me liable for leaving it there?

Its nothing like leaving a CD on a table and people coming by and copying it without permission. When you pick a CD up from the table you are not asking for the CD, unless somebody or something is there to control access to the CD. When you put a file on a server, to get a copy of the file you send a request or command for the server to give you a copy file in question. Ones the request is made, the server then checks whether or not you are authorized to receive the file. Very different from picking a CD up off a table.

Re:his argument seems flawed (5, Insightful)

dschuetz (10924) | more than 7 years ago | (#19507527)

Essentially, as I read it he's arguing for no criminal liability for illegal redistribution due to having no intent to distribute. Yet he admits to having placed copyrighted works in public folders on a public university system, which allowed others to copy his work. Further, he must have had the ability to set filesystem permissions to intentionally prevent redistribution. I think he's liable. If they can't prove criminal misconduct, at the least by his own admission they can prove civil negligence.

This argument would damn every soccer-mom and burger-flipper who plugs a home computer into their cable modem without remembering to set up a firewall. I think that, reading the citations in the motion, they make a good point -- copyright infringement, they argue, requires both intent and commercial gain, not to mention actual infringement (which nobody has proven even happened).

Though I've grown weary of all the crazy analogies flung around on Slashdot of late, I feel the need to provide one of my own: You're sitting in a university library with your laptop, and the guy across the table from you gets up to search the stacks for something, leaving his folder of music CDs on the table. You grab one, stick it in your laptop, and in a couple minutes have ripped a perfect digital copy of it, before the guy even returns. Is he then criminally liable for having permitted you to infringe the copyright of that CD, because he didn't lock up the discs or take them with him? Or, worse, if you have the ability to do exactly what I just described, but don't take advantage of it, is he still liable just for having provided the opportunity for infringement?

BTW, I'm not sure this motion is on the behalf of a single defendant, but all of them (it's listed as representing Does 1-21).

Re:his argument seems flawed (1)

dschuetz (10924) | more than 7 years ago | (#19507561)

Wow. In the time it took me to write that response, three other people came up with the same basic analogy.

I'm honestly not sure how I feel about that. :)

Re:his argument seems flawed (1)

Billosaur (927319) | more than 7 years ago | (#19507631)

The same basic argument would seem to apply to a memory stick or thumb drive. If I leave them lying around, does that make me liable if someone steals them and copies the data? Not really, anymore than you could be charged with manslaughter if someone steals your car and kills someone with it while running from the cops.

A better analogy... (4, Insightful)

Junta (36770) | more than 7 years ago | (#19508163)

A better analogy would be to say he has some music files, and he puts it on a shared folder somewhere.... oh wait...

But seriously *WTF* is with all the analogies. The original concept is not that hard to completely understand. If he put it in his home directory, and the default permissions were open (i.e. umask being set stupidly), then I would say he has an argument. However, if he had to explicitly change permissions on it, or put it in something analagous to a 'public_html', intent to distribute can be argued. If you put a big sign on your drive saying 'I put music on here, feel free to copy it', it's obvious you are inviting the activity.

Re:his argument seems flawed (1)

Fujisawa Sensei (207127) | more than 7 years ago | (#19507915)

A user putting up music on a server similar to asking the guy with the CD in his possession if you can burn a copy of it while you're visiting with him. Which is very different than if he walked off and left the CD on the table by accident. Because to retrieve a file from a computer system, you have to issue a request to that computer system.

Re:his argument seems flawed (0)

Anonymous Coward | more than 7 years ago | (#19508095)

A user putting up music on a server similar to asking the guy with the CD in his possession if you can burn a copy of it while you're visiting with him.

How exactly do you come to that conclusion? I saw in your other reply that you believe that when I copy a file on a computer I'm asking... well, someone I guess... for permission to copy that file. Are you stating that by putting a file on a machine, I am deputizing that machine to have the right to grant or withhold access to the file in my stead? What about viruses, etc? If a trojan or worm installed on the machine starts emailing the files that I explicitly instructed to not be world readable to other people, did I deputize the worm to override the permission I gave on my computer and do that?

Re:his argument seems flawed (1)

Gman14msu (993012) | more than 7 years ago | (#19507565)

Those aren't public folders or a public university. Boston University is a private institution and while many people have access to those folders, the public does not. BU is an expensive school to be at and those students pay quite a bit to have access to those folders.

Re:his argument seems flawed (1)

maynard (3337) | more than 7 years ago | (#19507719)

IMO: you're nitpicking over the meaning of the term "public". I'm not claiming that BU is a publicly owned institution. Nor would it matter were it so.

Re:his argument seems flawed (1)

vux984 (928602) | more than 7 years ago | (#19507567)

Suppose I leave some of my CDs on a table in one of the university common rooms; maybe I wanted to make them available for my fellow students to use in the common room, maybe I left them for a friend to pickup. What if there happens to be a PC in that room with a CD burner available for student use? Is that now 'distribution' too?

Anyone can come along and make a copy. What's the difference, exactly?

Re:his argument seems flawed (2, Insightful)

Billosaur (927319) | more than 7 years ago | (#19507585)

However, just because the files are there, does not mean they were put there with the intent to distribute them to the populace in general. While the folders may have been public, the fact is no one is under any obligation to change the permissions on a folder. And it's also possible that changing the permission might make the content inaccessible to some form of media player that would access the folder. Also, even if the permissions are changed, that does not stop someone with adequate knowledge or superuser permissions from altering the permissions or copying the content despite the permissions.

Just because the files are there doesn't automatically mean he was intending to share them or anything else. They simply are. Implying that the existence of something proves guilt is a bit of a flawed argument. The RIAA has to prove intent and they don't have the evidence.

Re:his argument seems flawed (1)

matlokheed (602233) | more than 7 years ago | (#19507749)

Nobody is under the obligation to change the permissions on a folder, but they're also not under the obligation to put copyrighted software out on a share either. If someone put a PC in the middle of the dorm's lounge with a burner on it and some media, they would definitely be held liable. Just because there's less physical media involved, this doesn't make this case any less copyright infringing.

Wrong (1)

brennz (715237) | more than 7 years ago | (#19507601)

The argument being made is not the he had no intent to redistribute, but instead that there is no evidence that any redistribution ever occurred, and if it did, there is no allegation that it *actually* occurred.

Re:Wrong (1)

maynard (3337) | more than 7 years ago | (#19507641)

Isn't that because discovery is not yet complete? It would seem to me that if such logs and records do exist, arguing lack of criminal intent by a Jon Doe is not reason to quash fact finding.

Re:his argument seems flawed (1)

c_woolley (905087) | more than 7 years ago | (#19507613)

You could be correct about him being liable "if" he had access to change file permissions. If this is a public folder that he used for storage, and is actually owned by someomne else, he may not have permissions. Although in most cases, if you have the ability to create, you can also assign permissions.

I don't really care for the RIAA and consider them Beady-Eyed little pukes, but I do see flaws in this person's argument that can come out early. I do feel that if anyone is going to take on the RIAA, it will probably be a college student. And the law student that wins against them can probably be guaranteed a nice fat-paying job stealing money from others...ah the irony. :)

Re:his argument seems flawed (3, Interesting)

Seraphim_72 (622457) | more than 7 years ago | (#19507661)

The college that I work at has photocopy machines in the library. So whose fault is if I walk home with a copy of Harry Potter, the host, the technology, or me?

Sera

Re:his argument seems flawed (1)

228e2 (934443) | more than 7 years ago | (#19507715)

@maynard, thank you for being able to decipher the difference between this case and simply leaving an article laying about. Look /., its obvious that this kid knew what he was doing when he set his permissions up, since when do sa's assign 777 rights to everyones folder? He had the ability to set his permissions correctly, chances are that was the default, but he changed it and got burned. This isnt equivalent to leaving a CD out for christ sake, get real people.

Re:his argument seems flawed (1)

Delirium Tremens (214596) | more than 7 years ago | (#19507885)

> since when do sa's assign 777 rights to everyones folder?

755 is the default mask in many places, mind you.
And 777 is very often used for /tmp content too.

Re:his argument seems flawed (1)

maynard (3337) | more than 7 years ago | (#19507991)

*cough!*

No SA in right mind would set /tmp to mode 777. It needs the sticky bit to prevent writes by non-owners. Try mode 1777.

Re:his argument seems flawed (1)

brunascle (994197) | more than 7 years ago | (#19507985)

who said it was 777? all it says is that others had read access, not write. and actually, having a home folder (or just the public_html folder) with 777 on a university network is extremely common (or at least it was when i was in school). not sure how they got set that way in the first place, but it was a common joke to modify someone's public_html folder (and thus, they're school.edu/~username/ website).

Re:his argument seems flawed (4, Informative)

Smidge204 (605297) | more than 7 years ago | (#19507741)

I must apologize, I had modded to +1 Interesting but after reading the PDF itself I think I'll reply to your comment instead.

What he is arguing is, at least as I see it: "Just because I left it in a public place does not mean anyone actually copied it. You have not claimed anyone but your agent has copied it, you have not claimed that I invited anyone to copy it, you have not claimed that I was aware anyone has copied it, nor that I as even aware they they could be copied." (Emphasis mine, the original word was "alleged")

...but they filed for a subpoena anyway. In short, it seems the RIAA hasn't even accused anyone of wrongdoing before asking for their personal information. All they saw was "Hey, this kid has music files that I can download" and went at him. THAT is the basis upon which the subpoena is being challanged.

A possibly poor analogy: I leave a CD on a table in a public place (a public park, say), for whatever reason. An RIAA agent comes by, sees the CD, and noticed he can pick it up. They then subpoena the town/city for all records of who was in the park that day, sitting at that particular table, because someone was "distributing" music illegally.

The kicker is, he cites supporting law verbage and other court cases where this situation was determined to not be copyright infringement.

IANAL though. Grain of salt for ya...
=Smidge=

Re:his argument seems flawed (1)

maynard (3337) | more than 7 years ago | (#19507893)

Oh, I don't care about the karma, I'd rather have the reply. Thanks.

What he is arguing is, at least as I see it: "Just because I left it in a public place does not mean anyone actually copied it. You have not claimed anyone but your agent has copied it, you have not claimed that I invited anyone to copy it, you have not claimed that I was aware anyone has copied it, nor that I as even aware they they could be copied." (Emphasis mine, the original word was "alleged")


The problem as I see it is that this is no reason to quash an investigatory subpoena for fact finding. A person has placed copyrighted materials on an electronic system and made those materials available to the public for duplication. Was there illegal copyright infringement? No one will know until after the necessary fact finding for discovery. It seems to me - as a layperson - that requesting documentation from the University to determine if criminal activity and civil liability is perfectly reasonable.

Re:his argument seems flawed (1)

Grax (529699) | more than 7 years ago | (#19508145)

(IANAL) The law doesn't allow for this kind of fact finding until the prima facie case is made. They are arguing that the prima facie case has not been made.

What this means (as I understand it), is that it is first the duty of the plaintiff to establish the basics of the case. The argument here is that there are not any actual allegations of wrongdoing, therefore there is no basis to allow the fishing expedition to continue.

Re:his argument seems flawed (1)

RichMan (8097) | more than 7 years ago | (#19507763)

> et he admits to having placed copyrighted works in public folders on a public university system,

How is that different than playing the music on his sound system in his room? Anyone next door or in the hall could have recorded it with a mic.

His actions did not amount to distribution. He should not be responsible for the actions of others.

Re:his argument seems flawed (0)

AK Marc (707885) | more than 7 years ago | (#19508043)

Essentially, as I read it he's arguing for no criminal liability for illegal redistribution due to having no intent to distribute. Yet he admits to having placed copyrighted works in public folders on a public university system, which allowed others to copy his work. Further, he must have had the ability to set filesystem permissions to intentionally prevent redistribution. I think he's liable. If they can't prove criminal misconduct, at the least by his own admission they can prove civil negligence.

Have you ever been to a library? They have all those copyrighted books right next to the photocopy machines. If he's guilty of criminal intent to distribute, then I think every librarian in the country should be hauled in and jailed too.

Re:his argument seems flawed (1)

UnknowingFool (672806) | more than 7 years ago | (#19508101)

Yet he admits to having placed copyrighted works in public folders on a public university system, which allowed others to copy his work.

One of the arguments here is intent. His lawyers are aguing that according to the rules about copyright infringement the guilty party must actually take steps to distribute the material. Making the material available for copying is not enough because the student may not have intended for anyone but himself to access the material.

Further, he must have had the ability to set filesystem permissions to intentionally prevent redistribution.

That is a rather large assumption. It assumes that the student knew how to set permissions and that the student had the ability to set permissions. There are no details about this but it is more likely that the university created a shared folder for him on their network. The settings may have been defaulted to where it was accessible by others. If it is like my university, the student has little control over these settings. It is the responsibility of the plaintiff to prove that the student took steps to distribute the material.

I think he's liable. If they can't prove criminal misconduct, at the least by his own admission they can prove civil negligence.

Copyright infringment like this is never criminal. This is purely a civil matter. This student wasn't pressing thousands of CDs and selling them on the street. The student has admitted nothing in this case. He had songs on a network folder. Maybe he didn't have a laptop and wanted to play his music anywhere on the campus he happened to be. It is up to the plaintiff to prove that the student intended to distribute material and that the student did distribute material.

Ironically by accessing the material, the RIAA might have broken laws regarding criminal tresspass, especially if they did not have permission to access his files.

Yet another reason.... (1, Redundant)

jeiler (1106393) | more than 7 years ago | (#19507383)

...to support independent music.

Jackie Chiles to the rescue! (3, Funny)

pak9rabid (1011935) | more than 7 years ago | (#19507421)

Its your American right to distribute music! It's lude, crude, litigious, OUTRAGEOUS!

Civil negligence?! (3, Insightful)

Anonymous Coward | more than 7 years ago | (#19507435)

So if I leave a CD laying on a table where someone else might see it, am I "civilly negligent"? What stupidity.

Re:Civil negligence?! (1)

Technician (215283) | more than 7 years ago | (#19507955)

So if I leave a CD laying on a table where someone else might see it, am I "civilly negligent"? What stupidity.

Absolutely not. When I walk away with your CD, you no longer have it or the license to listen to it. That right was transfered with the transfer of posession.

Put the CD in a glass case so I can't take it, but right under the case is a flash drive with the MP3's of the CD with a note, feel free to copy the MP3's from this flash drive.. Um then things change. Now offering to provide copies to anyone who wanted them instead of simply giving away the original is where the line was crossed.

A few questions... (5, Interesting)

EonBlueApocalypse (1029220) | more than 7 years ago | (#19507443)

I just have a few questions which probably are irrelevant to all this but, what happens if you have 4 or 5 people split the cost of a few albums equally and then listen to the music between themselves on a folder available over a network connection... is this breaking the law? If that so when does it become legal? Would they have to be living with each other for example having music available to other family members over a network in the home? Or am I not even supposed to be doing that?

Re:A few questions... (4, Informative)

pak9rabid (1011935) | more than 7 years ago | (#19507533)

If the RIAA had their way, this would be illegal. In fact, if the RIAA really had their way, you'd be paying each time you listened to your CD...

Re:A few questions... (1)

simm1701 (835424) | more than 7 years ago | (#19507643)

Maybe I should apply for a patent on coin operated home stereos....

Though obviously the lack of coin storage space would drastically reduce the playback time between empting of something like a nano...

Re:A few questions... (1)

EonBlueApocalypse (1029220) | more than 7 years ago | (#19507651)

Of course that's if they had their way, which they may push for one day but I'm more curious about actual laws in place now and if it is in fact illegal to do some of what I mentioned.

Re:A few questions... (1)

228e2 (934443) | more than 7 years ago | (#19507753)

the RIAA would make it illegal for people to chip in a buy a CD? get a grip on reality . . .

the problem is you're trying to be fair (3, Insightful)

circletimessquare (444983) | more than 7 years ago | (#19507617)

fairness never had anything to do with what the riaa is doing or has done. the riaa is pursuing control. control ossified into "law" when laws on the subject matter only applied to a handful of distributors of music. but now that everyone with an internet connection is a potential distributor of music, the "law" is basically antiquated bullshit

you should stop asking questions with the idea of fairness in the forefront of your mind. instead work along the mental model of schoolyard bully trying to get what he wants, then the answer to your questions are obvious:

"no, you can't do that, because i don't control it. that's not fair? too bad"

Re:the problem is you're trying to be fair (1)

Billosaur (927319) | more than 7 years ago | (#19507691)

If the RIAA could find a way to charge people for listen to music floating on the air, they would. The RIAA is in it for the money, to line their coffers. They will take advantage of anything that will allow them to continue their stranglehold on the music industry. Perhaps it's because deep down, they realize that the Internet has upset the apple cart, and they cannot maintian their grip. It's now possible for bands to record, mix, and produce their own music without interference from a record label. That frightens them -- the idea that consumers might actually be able to get the music they want, when they want, how they want, without ponying up to them.

everything you said is right except for one word (1)

circletimessquare (444983) | more than 7 years ago | (#19507987)

replace "might" with "will"

the riaa is dying. the dinosaur is still large and terrible and one swipe of its tail can take out dozens. but the wound is mortal, and pretty soon it will be stone cold dead. what we are witnessing is merely the violent transition to death of a business system made rapidly extinct by technological innovation

the law is about 40 years behind the technology, and this discrepancy is driving everything we are seeing. it is of course utterly insane to sue people for thousands of dollars for pointing and clicking on music files. and yet, there it is. in some ossified minds still stuck in the year 1977, suing your customers somehow seems prudent

Re:A few questions... (1)

DarkBlackFox (643814) | more than 7 years ago | (#19507669)

That brings up an interesting question. When you, I, or anyone purchases music, the purchaser becomes the licensee of said content, right? Generally speaking, only the licensee is authorized to listen to the music. What if a corporation/non-profit/non-singular entity or group purchases the music? If the group itself is licensee, do all members share the license?

God yet more legal crap (-1, Troll)

Timesprout (579035) | more than 7 years ago | (#19507513)

on a supposedly geek site.

Re:God yet more legal crap (0)

Anonymous Coward | more than 7 years ago | (#19507615)

You bitch but if I may...
  1. This is on a fileshare case, the outcome affect us geeks!
  2. There's a nice little section on how stories are picked (also the firehose)
  3. how much do you pay to read? Nothing? not stop yer bitchin!

Re:God yet more legal crap (1)

Volante3192 (953645) | more than 7 years ago | (#19507825)

how much do you pay to read? Nothing? not stop yer bitchin!

Just wait until book publishers have their way!

Cry me a river (2, Insightful)

BlackCobra43 (596714) | more than 7 years ago | (#19507677)

Digital copying and copyright infringement are two hot topic issues that affect practically all geeks in some way. If you'd rather hear about obscure single-line improvements in the Linux Kernel,all the time, this isn't the place for you.

Re:God yet more legal crap (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#19507725)

Time to change your tampon, sunshine.

Re:God yet more legal crap (1)

MonkWB (724056) | more than 7 years ago | (#19507809)

For some reason you think that geek only refers only to the technical aspects of computers, while it can apply to anyone who is intensely interested in any subject. I am a computer geek/nerd and also a law geek/nerd. Please back off you insensitive and uncomprehending clod!

Easy fix, dude. (4, Informative)

porcupine8 (816071) | more than 7 years ago | (#19507867)

Click on "Preferences" in the menubar just below the /. logo. Then click on "Homepage" on the next menubar. Scroll down to "Customize Stories on the Homepage" and change the radio button next to "Your Rights Online" (last option in the list) to the big red no sign.

Security hacking and online storage (5, Interesting)

geek2k5 (882748) | more than 7 years ago | (#19507539)

This could lead to some interesting complications when dealing with online storage.


For example, if a person has music online and believes that it is secured, would they be liable if someone breaks in and makes it available to others? I could see instances where this other person breaks in, makes the music available and then reports to the RIAA after a number of downloads are done.


Now some people would say that security is your responsibility, but how do you handle environments where someone else is providing a service and you don't control everything?

Re:Security hacking and online storage (1)

EonBlueApocalypse (1029220) | more than 7 years ago | (#19507965)

That probably wont even be addressed till someone is taken to court for that exact reason. Laws will be passed and little will be done or noticed until someone blogs about it which the average slashdoter will know and care about, excluding the rest of the populous.

Greed, control, and misunderstanding of technology are leading us away from the growth and development in society we have come accustom to. There seem to be similar trends like that of the RIAA's on other technologies and sciences. The future we all envisioned as kids will never be in our life time.

Question... (1)

Mockylock (1087585) | more than 7 years ago | (#19507623)

How could people be arrested for accessing networks without permission, via Wifi or any other means... but RIAA can browse around using whatever means necessary? I'm guessing its just p2p software or ISP subpoenas?

Interesting approach (3, Interesting)

RichMan (8097) | more than 7 years ago | (#19507727)

If I play music over my speakers others can hear it.
If I stream music off my hard drive, how is this different than playing it over the speakers?
If people play it off my hard drive how is that different than playing it over the speakers.

The above assumes private playing of a valid music source.

There is a very fine distinction to be argued here. That will have to cover buffering, decoding and all sorts of stuff.

I wish they would sue those boom box cars (4, Funny)

Maxo-Texas (864189) | more than 7 years ago | (#19507945)

who are illegally distributing music to me through the solid walls of my friend's house from three blocks over.

Sometimes they distribute music to her from 5:30am to 2am.

Hero tag applies. (1)

Geekfather (1012353) | more than 7 years ago | (#19508097)

Hope his folks have money...

Another What If: (1)

IndustrialComplex (975015) | more than 7 years ago | (#19508149)

What if I moved all my CDs onto a home computer, for personal use so I don't have to fiddle with CDs in a changer all the time. I put them in a shared folder so my Receiver can access and play them.

I live in the middle of nowhere, I don't secure my wireless router because I prefer it that way. (That and its a 500+ foot drive up my dirt road once you turn off the main road) Either way, I don't want my network secured from someone piggybacking off my signal.

However, IF someone were to connect to my network, I would be in the same situation as many of these students. There was no intent to distribute to others. I simply wanted to have my access to my files unhindered by encryption and permission schemes.

People may say that I'm different because I live on a mountain and 5 miles from the nearest town. What if it was only 1 mile?

2000 feet?

50 feet?

How close do I need to be before my 'intent to distribute' is proven despite the fact that my network topology has not changed?

One more analogy... (4, Funny)

kidcharles (908072) | more than 7 years ago | (#19508191)

If one more person posts an analogy involving a CD left on a table in a public place, I will club this baby seal to death.
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