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RIAA's "Making Available" Theory Is Tested

kdawson posted more than 7 years ago | from the cutting-more-legs-out dept.

The Courts 222

NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."

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First Post (-1, Redundant)

Lucre Lucifer (950263) | more than 7 years ago | (#20273073)

File sharing might be benefited I can't Really tell RTFA is not something I have time for Some people will Time to do so after I post Perhaps I'll stop writing this to read the article Oh no way whatsoever Suck it, RIAA! Time to pay your lawyers

I'm loltarded and I should feel bad (-1, Redundant)

Lucre Lucifer (950263) | more than 7 years ago | (#20273097)

File sharing might be benefited
I can't Really tell
RTFA is not something I have time for
Some people will
Time to do so after I post

Perhaps I'll stop writing this to read the article
Oh no way whatsoever
Suck it, RIAA!
Time to pay your lawyers

Re:First Post (-1)

Anonymous Coward | more than 7 years ago | (#20273505)

And then John was a zombie.

aaarrrg (0, Offtopic)

Tablizer (95088) | more than 7 years ago | (#20273083)

PDF's up the wazoo. Sue 'em!

you want to stop by (3, Informative)

ookabooka (731013) | more than 7 years ago | (#20273133)

As much as i hate the RIAA.... (4, Informative)

timmarhy (659436) | more than 7 years ago | (#20273223)

.. I believe they are correct here - enabling someone else to commit a crime is a crime in itself. And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

Re:As much as i hate the RIAA.... (5, Funny)

jonatha (204526) | more than 7 years ago | (#20273235)

That explains why the man who sold the Virginia Tech shooter his guns is currently in jail.

Oh, wait....

Re:As much as i hate the RIAA.... (-1, Flamebait)

timmarhy (659436) | more than 7 years ago | (#20273289)

Easy. The sale of guns can be for legitimate purposes.

However at no time is the sharing of material, which has a copyright notice on it clearly denying you permission to share, legal.

try to think a little more next time.

Re:As much as i hate the RIAA.... (4, Informative)

Jafafa Hots (580169) | more than 7 years ago | (#20273317)

"However at no time is the sharing of material, which has a copyright notice on it clearly denying you permission to share, legal." Not necessarily. Think two people who each own the CD sharing a ripped copy because one is too stupid to rip their own and wants it on their ipod. Obviously I'm stretching things and that's not what's going on with P2P, but still, its theoretically possible for sharing to not violate copyright.

Re:As much as i hate the RIAA.... (1, Troll)

timmarhy (659436) | more than 7 years ago | (#20273343)

your right, that's a pretty BIG stretch, so my logic still stands i think. If that was the case and you could show you actually owned a purchased copy of ALL the mp3's on your hard drive the RIAA probably would bail out on the legal proceedings. they aren't nearly as stupid as you think

I wonder if a disclaimer to the effect that you must own a copy of said recordings to download them would hold up

Re:As much as i hate the RIAA.... (1, Interesting)

Sj0 (472011) | more than 7 years ago | (#20273537)

I don't think you've been keeping track. They're even more stupid than I think. Anyone who hires counsel who intimidate and threaten witnesses into giving false testimony, or who starts a p2p lawsuit against people who don't own a computer is actually falls outside my ability to conceptualise their stupidity.

Re:As much as i hate the RIAA.... (1)

Nullav (1053766) | more than 7 years ago | (#20273579)

You'd also have to prove that you did nothing but leech content from others (no uploading).

Re:As much as i hate the RIAA.... (2, Insightful)

loganrapp (975327) | more than 7 years ago | (#20273659)

What you're not getting is that with law, non-criminal law, it doesn't have to be beyond a reasonable doubt. Especially when we're talking about something like this. This isn't even about evidence, but about interpreting law.


When you're doing that, possibility is all that matters.

"Is it possible?" Yes. "Then it's (insert ruling)."

"It is possible?" No. "Then it's (insert opposite ruling)."

IANAL, but I have lied and gotten away with it. This is not a lie.

Re:As much as i hate the RIAA.... (3, Informative)

Kjella (173770) | more than 7 years ago | (#20273805)

I wonder if a disclaimer to the effect that you must own a copy of said recordings to download them would hold up

Distribution is an exclusive right of the copyright holder. Distribution to someone who already has a copy is still distribution, and their possession of a copy or not has no relevance on that. Nobody's contesting that illegal distribution happens when an illegal copy is made. The only two arguments have been 1) sharing does not imply that anyone actually copied it, so it doesn't implicate infringement and 2) distribution happens at the client's request, thus the client is liable not the sharer. That disclaimer would have just as much effect as the Internet Privacy Act [snopes.com] .

Re:As much as i hate the RIAA.... (2, Informative)

Kjella (173770) | more than 7 years ago | (#20273747)

I don't think anyone has successfully used that defense, I'd love to see a case file. US law is extremely fuzzy on the subject (it'd have to go under fair use) but pretty much every country that's made it explicit has made it clear that fair use copies must come from your own copy (or legitimately recieved broadcast in case of TV/radio). So the courts might actually rule that you are entitled to rip your own CD but not to copy Bob's rip, even though the result is identical. Certainly if Bob's CD is pirated (1:1 copy) then that taint would stick with any copies made from it.

Legality is not a property of the bits themselves, it all about how you acquired them. So you can't simply take one case "I rip my own CD" and extrapolate that any other case which leads to the same result "I copy Bob's rip of his legal CD", "I borrow Bob's CD and make my own rip", "I download it off P2P with upload disabled" or "I copy Bob's pirated rip" are legitimate, even though the bits are 100% identical. To us working with computers that's absurd - if two files match bit for bit they're the same, equivalent in every way and it doesn't matter if you got them by http, ftp, nntp, dcc or torrent. To the law they can be as different as night and day.

Re:As much as i hate the RIAA.... (1)

Reziac (43301) | more than 7 years ago | (#20273341)

Oh, I see: Since I *might* use my car as a getaway vehicle, and perhaps even parked near the bank, that means I ought to be arrested for bank robbery, even tho I've never robbed a bank.

Per TFA... it refers to mere *possession of a shared folder* that is internet-accessable (per my analogy, possession of a car with a full gas tank) as an infringing act -- even if at no time were any files shared (at no time were any banks robbed).

I'm not promoting copyright infringement, but this "MIGHT be shared" qualification seems perilously close to thought crime. After all, if I buy a gun, I *might* shoot someone.... best arrest me before it can happen!!

Re:As much as i hate the RIAA.... (2, Informative)

timmarhy (659436) | more than 7 years ago | (#20273383)

well, that's a different kettle of fish right there - if they can't show you were sharing anything, then your not a party to any kind of crime.

To be shown guilty the RIAA would need to prove they could download the files from you without breaking the law themselfs. My point was that there is no situation where sharing infringing files can be legal. your car in front of the bank might not be used for a robbery, so of course you shouldn't be arrested (thank you captain obvious).

Re:As much as i hate the RIAA.... (1)

Reziac (43301) | more than 7 years ago | (#20273489)

Well, I thought that was the point -- that the files were *available* to be infringed, but there wasn't any evidence that they actually *had* been infringed; therefore why is just having the files "parked" an infringement?

Just cuz I parked in front of the bank doesn't mean the bank got robbed!

Re:As much as i hate the RIAA.... (1)

SilentChasm (998689) | more than 7 years ago | (#20273509)

IANAL but I would say the problem is that downloading the files is not illegal, only the downloading them without permission of the copyright holder and thus violating their rights. Because they represent the copyright holder then they most likely have permission and can download them from your computer to prove you shared them.

Re:As much as i hate the RIAA.... (4, Interesting)

Propaganda13 (312548) | more than 7 years ago | (#20273627)

The problem is how do they know that they own the copyright to the files.

I have a mp3 file in my shared folder called rehab.mp3. This file is a copyrighted audio recording of my friend talking about rehab. RIAA using false pretext (and possibly violating the terms of use of the network) download this song. They check it and realize it is not the file they thought.

RIAA downloaded copyrighted material without the creator's permission.

I think I just figured out step 3.

1. Make audio recording
2. Put in shared folder
3. ????
4. Profit!

Re:As much as i hate the RIAA.... (1)

shmlco (594907) | more than 7 years ago | (#20274417)

Ripping a CD, making a seed, and uploading said files to a server on the net implies more than just a "little" intent, don't you think? You're not just "thinking" of doing it, but have actually taken the steps needed to commit the act.

Or to continue your rather flawed analogy: you've just exited your idling car and are about to enter the bank, masked and gun in hand. True, you haven't robbed the bank yet... but I doubt that a passing police officer is going to stand around and wait until you actually do so.

Sharing *is* legal (5, Informative)

wurp (51446) | more than 7 years ago | (#20273601)

Why do I have to keep repeating myself [slashdot.org] ?

In the United States, you have every right [cornell.edu] to get together with friends and make copies of music on analog tape, or digital copies of music using digital audio recording equipment. This is per the Audio Home Recording Act of 1992 [wikipedia.org] .

I'm not sure what this means about copying a CD someone else bought to a tape, but copying a CD for a friend using digital audio equipment and audio cds is perfectly legal, and copying an audio tape to another audio tape is also legal. We pay a "tax" to the RIAA on every piece of digital audio equipment, audio CD, and audio tape to allow this.

Re:Sharing *is* legal (2, Insightful)

shmlco (594907) | more than 7 years ago | (#20274349)

And this has what to do with distribution via torrent over the internet? As per the original article?

Re:As much as i hate the RIAA.... (0)

Anonymous Coward | more than 7 years ago | (#20273753)

However at no time is the sharing of material, which has a copyright notice on it clearly denying you permission to share, legal.

You've never borrowed a book or a movie from someone?

Re:As much as i hate the RIAA.... (0, Flamebait)

cliffski (65094) | more than 7 years ago | (#20274159)

If he had, they would no longer have the book or the movie while it was in his possession. Whenever people criticise piracy, slashdot readers always say its fine because the original guy still has his copy. That is the point, you did not borrow something, you copies it, without the permission of the person who created it originally. That's both morally and legally wrong, unless you are a communist and believe in such things.

I no more have the 'right' to freely copy the game 'bioshock' without paying for it, than I do to go into my local store and take whatever food I want. Someone worked hard to produce both products, and if their products are good enough for me to want, I should compensate them fairly for their work.
If I want to voluntarily go without the bioshock game for a week while I lend it to a friend that's fine, but if we both want to be free to enjoy the game unrestricted at our leisure, then we need to purchase two copies. This is entirely reasonable.

Re:As much as i hate the RIAA.... (1)

TempeTerra (83076) | more than 7 years ago | (#20274449)

I no more have the 'right' to freely copy the game 'bioshock' without paying for it, than I do to go into my local store and take whatever food I want.

With respect, that's not a fair comparison. If you take food from your store you're depriving other people of it. The comparison would hold if you could be satisfied by merely looking at food, and you strolled through the 7-11 without buying anything when you were hungry. You would be satisfied and the store would not have lost stock, but the producer would not have been compensated for their work.

Ok, so I totally ruined that analogy. The point remains, you have not deprived anyone of anything - just failed to compensate them for something you found useful. It's still wrong by most people's gut feeling, but in a different way then stealing. See the stupid "you wouldn't steal a car..." ads before movies.

If I want to voluntarily go without the bioshock game for a week while I lend it to a friend that's fine, but if we both want to be free to enjoy the game unrestricted at our leisure, then we need to purchase two copies. This is entirely reasonable.

That's a common position to take, but it's similar to just pirating the game. Consider that in both cases the developer is only compensated for a subset of the people who enjoyed the game. It might feel 'fairer', but the end result is the same.

I'm not trying to tear you down, just playing devil's advocate.

Re:As much as i hate the RIAA.... (4, Interesting)

PopeRatzo (965947) | more than 7 years ago | (#20274553)

That's both morally and legally wrong, unless you are a communist and believe in such things.
So, communism is immoral? As long as I "believe in such things" it's OK to steal? Are you a moron?

Cliffski, seriously, one of the definitions of "stealing" is "taking someone else's property". I don't happen to believe that copying a CD is taking someone's property, because the owner still has it. That's your own description isn't it?

Now the question is "who has the permission of who created it originally"? And what does "permission" mean in this case. I just copied the library's lovely recording of Georg Solti's performance of the opera Parsifal. Richard Wagner created Parsifal originally, and he's not around to give any permission, and I guarantee that he didn't give the Sony Conglomerate permission to make money off of his work.

The library still has their 4-CD set and I've got the music on my mp3 player.

The entire system of "intellectual property" is based on a fantasy designed to make people who have never created anything a way to get rich. As someone who "believes in such things", I say "fuck them". Let 'em work for a living like the rest of us.

Re:As much as i hate the RIAA.... (1, Insightful)

Anonymous Coward | more than 7 years ago | (#20273399)

Were the guns sold illegally? No? THEN ITS NOT THE SAME THING.

Re:As much as i hate the RIAA.... (2, Insightful)

Adambomb (118938) | more than 7 years ago | (#20273243)

That will be sad news to gun shop owners.

or libraries, or sporting good stores, or the ever popular analogy, auto dealerships, etc etc.

Where does one draw the line?

Re:As much as i hate the RIAA.... (2, Insightful)

Osty (16825) | more than 7 years ago | (#20273327)

Where does one draw the line?

One draws the line where the money is no longer available. Gun dealers are not held accountable for the crimes of their clients because the NRA is a huge lobby with plenty of the money. Auto dealers and manufacturers are not held accountable because again they're huge lobbyists with lots of money. Do you know who does get held accountable? Bars that overserver people and then let them drive drunk. Why? Because the restaurant industry is too fragmented to effectively lobby against such legistlation, but the tee-totaller prohibitionists like MADD are big enough to get such terrible legislation pushed through.

Lobbyists are neither good or bad. They're just using the system to further their own interests. If you don't like it, either work to change the system (ha!) or build your own lobby (that's what the MADD folk did). For what it's worth, I like the NRA, I hate MADD, and I'm indifferent to Big Auto.

Re:As much as i hate the RIAA.... (1)

Adambomb (118938) | more than 7 years ago | (#20273385)

Actually, i'll just be canadian thanks.

just seems a rather stupid argument that "enabling" a crime is a crime in and of itself. christ I could stab someone to death with a sharpened candy cane given to me by some kid, should the kid be arrested for making it into a point?

Re:As much as i hate the RIAA.... (0, Troll)

timmarhy (659436) | more than 7 years ago | (#20273471)

well, i'd agree if you came to the kid and ASKED for a candy cane for the purpose of stabbing someone to death. using stupid examples isn't really going to prove your point.

Fact is if i own a cd and share it over the internet without the copyright holders permission, i'd be breaking the law. it's pretty cut and dry chaps.

I fail to see how the /. crowd can cry so foul of this given the way you all react when there's a report of a GPL violation. it's no different. just because you dislike the copyright holder, doesn't mean they are wrong.

Re:As much as i hate the RIAA.... (1)

Adambomb (118938) | more than 7 years ago | (#20273557)

Um, what if the kid handed it to you randomly and you just happened to stab to death the first person you saw?

And also, what law is having an open share breaking? is it also illegal to not lock your doors in the states?

Last i checked it was the process of COPYING the IP that you do not have a license for that is illegal in the US. If you copy an MP3 from someone that is identical in every way to an mp3 you paid for using an online service, I'm pretty sure that would be entirely legal, let alone making it available.

Lastly what the hell are you talking about concerning gpl violations. Rhetoric means shit all.

Re:As much as i hate the RIAA.... (1)

janrinok (846318) | more than 7 years ago | (#20273699)

Fact is if i own a cd and share it over the internet without the copyright holders permission, i'd be breaking the law. it's pretty cut and dry chaps.

But the files haven't been downloaded, or at least there is no evidence to prove that they were. The RIAA are arguing that they could be downloaded. Its not so cut and dried now, is it?

Re:As much as i hate the RIAA.... (5, Interesting)

fishbowl (7759) | more than 7 years ago | (#20273253)

>And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

So my torrent seed of Ubuntu (which is comprised almost entirely of copyrighted material) is illegal?

That is the claim you have made.

Re:As much as i hate the RIAA.... (-1, Troll)

timmarhy (659436) | more than 7 years ago | (#20273321)

grats on a retarded comment, unless you have the IQ of my pet cat you already know this whole story is about copyrighted music, not your stupid ubuntu torrent.

Re:As much as i hate the RIAA.... (2, Interesting)

Hangin10 (704729) | more than 7 years ago | (#20273361)

Cats can be rather intelligent. An analogy using the IQ of your cat might be putting the bar a bit too high...

Re:As much as i hate the RIAA.... (4, Insightful)

dunezone (899268) | more than 7 years ago | (#20273315)

No wonder you're a foe of a friend.

The general statement of saying "enabling someone else to commit a crime is a crime itself" is just nonsense.

With that general statement you could in theory hold a man who drove drunk and killed someone accountable, the manufacturer of the automobile, the designers of the automobile, the assembly line workers(if any) that put the car together, the store or individual who sold that man the liquor all accountable. Because you know, all of those in "theory" enabled that man to drive the automobile while intoxicated. Hell, why not involve the local government for putting those damn roads in that enabled that man to drive his automobile around.

Re:As much as i hate the RIAA.... (-1, Troll)

timmarhy (659436) | more than 7 years ago | (#20273427)

gah this is why i shouldn't comment on /. - people don't read and think, they just post like fucking lemmings whatever the popular thinking is at the time.

REREAD my replies above. there is no "theory" about sharing infringing material, there's no way in hell it can be legal. that'd be like a drug dealer selling someone crack then claiming he thought the crackhead had a prescription for it so it was ok....

Re:As much as i hate the RIAA.... (1)

pembo13 (770295) | more than 7 years ago | (#20273483)

definitely a foe of a friend

Re:As much as i hate the RIAA.... (4, Insightful)

Adambomb (118938) | more than 7 years ago | (#20273623)

If you're so sure, please point the to law that is being broken by making copyrighted material available to be copied.

Oh, and make sure to never play your music too loud, someone might be out there with some good recording equipment.

Re:As much as i hate the RIAA.... (1)

ZachMG (1122511) | more than 7 years ago | (#20273869)

isnt this the point of a copyright, to stop copying?

Re:As much as i hate the RIAA.... (1)

goldspider (445116) | more than 7 years ago | (#20273883)

I know this is Slashdot, but you could at least RTFSummary:

"the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3) [cornell.edu] .

Re:As much as i hate the RIAA.... (1)

Adambomb (118938) | more than 7 years ago | (#20273917)

Yes, and read the details.

Making available of copyrighted material is an interpretation of that code that still has yet to be tested with an actual case.

Now, if its upheld in this and becomes referrable case law, then you are entirely correct.

Re:As much as i hate the RIAA.... (0)

Anonymous Coward | more than 7 years ago | (#20273969)

This would seem to make libraries illegal.

Re:As much as i hate the RIAA.... (1)

Jah-Wren Ryel (80510) | more than 7 years ago | (#20274147)

This would seem to make libraries illegal.
Hell, it would seem to make rentals and sales of CDs and probably DVDs illegal too since they are so easily copied. After all there is no difference in the end result between selling, renting or lending you a CD which you make a bunch of copies of and freely lending or giving you a CD which you make a bunch of copies of.

Re:As much as i hate the RIAA.... (1)

hoffmang (174358) | more than 7 years ago | (#20273903)

So here is the law:

----
  106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(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;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
----

Publishing a song on a public, open network sure looks to violate 3 and 6 (and maybe 5.) It's a special term of art of copyright law, but making the song available is to "perform the copyrighted work publicly by means of a digital audio transmission" since anyone stopping by can click and start listening by means of a digital audio transmission.

-G

Re:As much as i hate the RIAA.... (1)

Adambomb (118938) | more than 7 years ago | (#20273955)

How precisely do you equate making the file available with performance of the piece. Displaying an encoded file is a lot different from broadcasting the actual content of that file.

To me, that is more associated with the act of copying and outputting the file from its digital form to the "content" form.

Now, if this case ends up in the courts upholding the RIAAs interpretation of performance, which parallels what you're saying, only THEN will that truely be what the law means.

Intent and Interpretation are at the core of any law, but its only meaningful when a judge backs up that interpretation.

Re:As much as i hate the RIAA.... (1)

hoffmang (174358) | more than 7 years ago | (#20273989)

You need to go read the law about what a digital audio transmission is.

Do you think you wouldn't be breaking an NDA if you published confidential PDFs on a website absent proof that anyone downloaded? Would you think that your right to privacy was violated if someone posted your home address, social security number, mother's maiden name, and date of birth in a file even though there was no proof it was downloaded either? Also note that there is no proof that it was downloaded because the intent of the applications in question is to create no incriminating trace.

Ask yourself why people use P2P and not webservers. If they aren't breaking the law they should be happy to post these files on their home pages next to their names and email addresses, right?

-Gene

Re:As much as i hate the RIAA.... (1)

Jah-Wren Ryel (80510) | more than 7 years ago | (#20274181)

Do you think you wouldn't be breaking an NDA if you published confidential PDFs on a website absent proof that anyone downloaded? Would you think that your right to privacy was violated if someone posted your home address, social security number, mother's maiden name, and date of birth in a file even though there was no proof it was downloaded either?
Do you realize just how insanely great it would be for corps if trade secrets covered by NDA's had copyright protection too? And what a major boon for personal privacy if all those personal facts were subject to copyright law. Too bad it doesn't work that way, eh?

Ask yourself why people use P2P and not webservers. If they aren't breaking the law they should be happy to post these files on their home pages next to their names and email addresses, right?
Because most people cant figure out how to put a 5MB file, or really a file of any size, on a webserver, but they can download and install napster/edonkey/utorrent/etc with minimal hassle?

Re:As much as i hate the RIAA.... (1)

Adambomb (118938) | more than 7 years ago | (#20274511)

well lets just put it this way.

The way i would see it as a judge, a file is not a performance nor display, a filename is not a performance nor display, a digitally encoded file is not a performance nor display.

A work is only displayed or performed when said file is converted to the audible or visible form, which requires a player not just the file in question.

Since the file on its own bears no relation to the work without a player, why would the supplier of the file be considered in breach of crap all when the onus is on the copier to make it become the original work.

Once a judge decides how THEY see it and it becomes the accepted precedent, then it is law.

Its all in the interpretation.

Re:As much as i hate the RIAA.... (1)

Knuckles (8964) | more than 7 years ago | (#20274055)

Um "making available" is not the same as "distributing".

Re:As much as i hate the RIAA.... (1)

moderatorrater (1095745) | more than 7 years ago | (#20273583)

The thing that I find most disturbing is that they're not trying to get them for sharing, it's for making it available. Why didn't the RIAA get a copy of the song they were making available and then charge them for distributing? If they're going to go by filename alone, then I've got a whole bunch of pictures of faith hill, shania twain, and Melinda Gates that they ought to take a look at.

Re:As much as i hate the RIAA.... (1)

houghi (78078) | more than 7 years ago | (#20274199)

the store or individual who sold that man the liquor
In Belgium the pub owner is accountable. If the person is clearly intoxicated and he gives hime more and then the person has an accident, he might be held accountable.

Yes, this an extremely slippery slope.

Also please stop giving lawers ideas.

Re:As much as i hate the RIAA.... (1)

pembo13 (770295) | more than 7 years ago | (#20273455)

Since when? Has that ever been a rule in recent human history?

Re:As much as i hate the RIAA....WRONG TARGETS (1)

Nom du Keyboard (633989) | more than 7 years ago | (#20273467)

I believe they are correct here - enabling someone else to commit a crime is a crime in itself. And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

Okay, then where is KaZaZ in this suit? And Microsoft? And Dell? And the ISP she subscribed to? Everyone of them enabled her -- or somebody -- to commit this crime. Why aren't all of them part of this, and every other case?

Excuse me, but your silence is deafening.

Re:As much as i hate the RIAA....WRONG TARGETS (0, Flamebait)

timmarhy (659436) | more than 7 years ago | (#20273491)

"Excuse me, but your silence is deafening."

no.. i'm just busy responding to the other 20 retarded comments posted. out of all of you only one person has made any kind of decent comment. read previous posts. otherwise.. your own silence is deafening?

Re:As much as i hate the RIAA....WRONG TARGETS (2, Insightful)

bigstrat2003 (1058574) | more than 7 years ago | (#20274077)

Actually, the most retarded comment posted here was your original one, which said that enabling someone to commit a crime is a crime. You made a blanket statement right there, which is why everyone is (rightly) tearing into you. You can perfectly accidentally enable someone to commit a crime, so if that were a crime, there'd be a lot of criminals around.

Now it's true that distributing copyrighted material without the permission of the copyright holder is a crime (note the key distinction between what I said and what you said, you left out that important bit). I also happen to lean towards the sentiment that making those files available, even if no one actually downloads them, would also be illegal... but you still did make one hell of a stupid statement in saying that it's a crime to enable crime. Not to mention the trollish responses you've made since then, which really aren't helping your case here.

Re:As much as i hate the RIAA.... (0)

Anonymous Coward | more than 7 years ago | (#20273713)

--and that's why you should go to jail for leaving your front door unlocked....moron

Re:As much as i hate the RIAA.... (0)

Anonymous Coward | more than 7 years ago | (#20274131)

only on slashdot, home of pirates and other thieves, would you be modded as flamebait for suggesting that distributing other peoples work for free is wrong.
I agree with you 100%. I wish the RIAA luck.

Re:As much as i hate the RIAA.... (2, Insightful)

baileydau (1037622) | more than 7 years ago | (#20274353)

And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.


Sorry, but isn't this a CIVIL case. If it was a crime, wouldn't this be a CRIMINAL case??

But wait... (5, Insightful)

burning-toast (925667) | more than 7 years ago | (#20273229)

Is the entire basis of the RIAA claims in all of these cases striking anyone else as being entirely based on "it may have been" scenarios being used as proof?

I think that all corporations which sue individuals should have to adhere to criminal court standards instead of needing just a "whiff" of possibility. Individual vs. Individual of course would still be run as a Civil matter. They should be required to obtain warrants if they want a "Discovery" into any non-public records of the individual. IMHO, they should absolutely NOT be able to get any records from any organization whatsoever about an individual without a warrant (consider ISP's releasing IP address / account information to a corporation for a shady example).

This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations).

There seems to be a serious disadvantage for an individual in almost ALL cases involving a company suing an individual (specifically the depth of their pocket books and ability to pay a lawyer).

Thanks for your efforts NewYorkCountryLawyer

- Toast

Much of this post may be conjecture, ranting, etc. I apologize if I got OT, but I would like clarification if any of my views are out of whack, and I wouldn't mind alternate viewpoints so long as they aren't in troll fashion.

P.S. To all grammar Nazi's; I don't really care if I missed anything when I glanced over this post. Don't waste your breath or potentially cause yourself carpal-tunnel by trying to fix it.

Re:But wait... (1)

Rocketship Underpant (804162) | more than 7 years ago | (#20273359)

"This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations)."

Copyright becoming a criminal matter would be absolutely disastrous. You can be sure the RIAA and MPAA would be writing and purchasing the laws, and they'd probably even push for federal laws, where due process is largely absent.

Do you really want a country where someone's entire life can be destroyed, with jail sentences and a criminal record, because he or she shared a favourite song or TV show?

Re:But wait... (1)

burning-toast (925667) | more than 7 years ago | (#20273497)

I agree that it (the infringement which the RIAA is trying their case on) being labelled as a criminal offence would potentially have very very large (and negative) legal ramifications for our rights as consumers (licensees?) of copyright works, but in the same shot I would suggest that criminal intent (I.E. for-profit distribution like the pirates which are actually selling printed "fake" materials or whatever from a stand or a similar electronic system) must be proven and mandatory before a case is to be had in the first place.

To give insight as to my original suggestion (and my opinion): The existing laws pre-DMCA etc. already covered such scenarios. Hell, the FBI was the organization to produce that warning on video tapes! It already WAS a criminal offence under pre-DMCA laws to pirate these works in a manner which meant more than pennies to the copyright holders.

It's not that I want to criminalize the acts which the RIAA are alleging are infringing. Rather, I would rather toss their alligations out of the window entirely, and revert to prior copyright laws which already handled the people which copyright is to protect against (large-scale operations, or for-profit systems).

I'm sorry if my explanation doesn't lend it's self to easily being interpreted.

A bit OT: I think the RIAA is just trying to bend laws and legislation to make a new business model instead of adapting their model to the market. As an Internet Radio consumer (which is a little different situation, but not much) I would be thrilled if their monopoly is destroyed. Tell me again what the difference between Microsoft and the RIAA is? How are they not price fixing, market controlling, lawsuit happy bastards?

Re:But wait... (1)

rtb61 (674572) | more than 7 years ago | (#20274451)

Perhaps the safest way out of the dilemma might be the simple adjustment of P2P file 'sharing' clients to allow only one person at a time to 'play' any particular file stored on the shared file folder. As only one person is using the file and that person using the file is honour bound not to record that file for later use unless they have permission to do so, that file is no longer being made available for copying. Obviously bits in transit or in cache are not a copy otherwise electrical pulses in transit from the amplifier to the speakers could be said to be an electrical pulse copy of the original acoustic recordings. The real questions is are you copyrighting the music or the pit patterns on the cd disc.

Re: Kudos to the NY Country Lawyer! (1)

TaoPhoenix (980487) | more than 7 years ago | (#20273377)

Really.

The last few days he has put in a ton of work with a big spread of news. I could be wrong, but it seems like this year the RIAA monolith is starting to crack, just a little.

Re:But wait... (4, Interesting)

teslatug (543527) | more than 7 years ago | (#20273447)

As long as we're wishing, I'll go one better. The corporations should be forced to pay upfront for the plaintiff's defense if he can't afford a good one. If the corp wins, they win the court costs too. That way people can't be intimidated into folding even when they haven't done anything wrong.

Re:But wait... (3, Interesting)

burning-toast (925667) | more than 7 years ago | (#20273587)

I like this idea! And while we are at it, they have to match expenditures with the defendant's legal defence (I.E. both sides are allowed a maximum amount of legal funds on a scale which goes according to the damages being sought.)

We can all dream right?

- Toast

Re:But wait... (1)

janrinok (846318) | more than 7 years ago | (#20273739)

I'm not an American but why aren't you out there lobbying for just such a change to the US legal system? You are pretty much preaching to the converted by telling fellow /.ers about it. The problem, from my half blind observation point thousands of miles away, is that there is very little chance of anyone being able to persuade those who have the power to change the system to do so. RIAA is simply taking advantage of this fact. Of course I hate what they are doing but within the legal system that they are working they seem to have been having a certain degree of success. I am pleased that they are now having problems but saying 'wouldn't it be better if ....' is only the start of getting things changed. You have the good idea, now all you have to do is get it accepted and passed into law. Incidentally, where I live, if an organisation such as the RIAA failed in a prosecution it would be expected to pay all of the costs of the defendant.

Re:But wait... (1)

Aladrin (926209) | more than 7 years ago | (#20274335)

A corporation is a legal entity just like any citizen. Under your idea, if they sue someone, they have to pay all the court costs up front. (I assume you're including lawyer's fees in this as well.) So if someone sues the corporation, they then have to be rich enough to cover all the court costs themselves.

No, that doesn't work.

I can already hear you saying 'just corporations'... So what about the small ones? It would mean the small companies would be unable to defend their rights, unless they could find an investor to back the court case.

I agree our system isn't fair, but you have to be very, very careful not to unbalance it further towards those with money.

zer vill be no apostrophe! (0)

Anonymous Coward | more than 7 years ago | (#20273729)

P.S. To all grammar Nazi's; I don't really care if I missed anything

The plural of Nazi is Nazis.

Re:But wait... (1)

fimbulvetr (598306) | more than 7 years ago | (#20273835)

For those who RTFS, you may be wondering, 'what exactly is open to the public?', the court has opened a door for what is called "amici curiae":

http://en.wikipedia.org/wiki/Amicus_curiae [wikipedia.org]

Offers a good explanation, but basically, they're asking for _your_ argument. This means, if you have a good, coherent, laid out argument for exactly why "making available" does or does not constitute infringement you may be able to influence the decision of the judge. That's right, despite just how bad we (Americans) think we have it, we still have opportunities to shape the future, if we're willing to put the work in.

Re:But wait... (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#20274591)

Is the entire basis of the RIAA claims in all of these cases striking anyone else as being entirely based on "it may have been" scenarios being used as proof?
Yes.

Unsecured wireless (3, Informative)

Ethanol-fueled (1125189) | more than 7 years ago | (#20273365)

What if I have media in a shared folder while I am using my own unsecured wireless network which I believe nobody else is using?

Improper Defense Strategy (2, Insightful)

Evets (629327) | more than 7 years ago | (#20273381)

This kind of thing highlights the fact that so many of these cases may be implemented with improper defense strategy.

The defendants are vaguely accused and therefore are stripped of the capability to offer a real defense. How many of these cases get dragged into technical arguments about the merits of the case instead of real defenses regarding whether or not the law was actually broken.

For instance - you say that there is "ongoing copyright infringement..." did you try to successfully download a copy of the song today? If it's not currently available, there is not ongoing infringement.

Let's take a look at the royalty checks given to the artists in the 2 years prior to the alleged infringement, the year during, and the year after. Do they indicate the possibility of infringement?

Did the plaintiff actually make any effort to do anything to stop this infringement?

Is there any proof that anybody illegally downloaded the songs from the defendant's computers?

How many downloads of the songs were made? How many people had them available? Is there a possibility that the song was made available for download, but never actually downloaded?

Did the defendant promote his shared songs to the public at large?

If there is a defined date for the alleged infringement or a date range, you can offer proof that it was not possible for the infringement to have occurred during that time frame (i.e. on vacation with computer during that time frame, power outage during the time frame in the local area, computer never on long enough during the time frame for a download to occur. Computer in the repair shop during that time frame, etc.)

We all know the suits are based on flimsy technical merits. OK... so moving forward past the technical aspects - is there reasonable suspicion that infringement did occur within a defined time frame?

The time frame is key to actually being able to defend yourself. Having a defined time frame to work with could save the courts, the plaintiffs, and the defendants plenty of time and energy because the technical merits may not need to be argued if a defense other than "this is a bunch of horsecrap and here is why" is available.

Fair use? (1)

flyingfsck (986395) | more than 7 years ago | (#20273405)

Well, fair use would be downloading a whole file (since it is impossible to download a partial file) then using one paragraph of it in a research paper, with attribution to the original author.

Re:Fair use? (1)

devilspgd (652955) | more than 7 years ago | (#20273725)

Impossible to download a partial file?

HTTP, FTP, and virtually every P2P app on the planet allow you to download parts of a file.

Re:Fair use? (1)

burning-toast (925667) | more than 7 years ago | (#20273815)

Try getting any predetermined piece of any format of an audio file (just the one piece you want, just a sound-bite), and playing it back or inserting it into another audio compilation without having to run through some serious headaches (if it is even possible).

I would imagine fair use would include downloading the entire file, snipping out what you want, and tossing the rest.

But I don't see the relevance here to the case at hand since the alleged infringement hasn't even happened yet (from my understanding of it).

- Toast

Re:Fair use? (1)

devilspgd (652955) | more than 7 years ago | (#20273853)

My cell phone carrier has a service that can identify virtually any song [shoprogers.com] from a 15 second sample transmitted through the cell phone.

It's not like any specific part is needed here -- All the RIAA needs to do is request a small portion of the file (say, 15 seconds worth -- Trivial to determine if you pull the headers first, not much harder if you pull the middle of an MP3)

Re:Fair use? (0)

Paradigm_Complex (968558) | more than 7 years ago | (#20273875)

No, Fair Use is owning the entire file and using one paragraph in a research paper. Fair Use is fair use of what you already have access too, not a free hand to use anything copyrighted in a limited scope.

No Punt Zone (1)

Nom du Keyboard (633989) | more than 7 years ago | (#20273441)

I hope this judge won't punt on this issue, as it appears several other judges already have.

Attn: slashdot editors (-1, Flamebait)

larry bagina (561269) | more than 7 years ago | (#20273461)

I like to violate other people's copyrights and then kneejerk whenever someone is accused of violating the spirit of the GPL just as much as anyone. However, there are currently 2 RIAA lawsuit stories on the front page (that's approaching google/apple territory) and over half of the yro page are New York Country Lawyer/RIAA posts. Please give it a fucking rest. RIAA is bad. Single MILFs are good. And RIAA lawyer (and roland picquelle) have blogs we can read if we want to. The firehose is full of far more interesting shit than this circle jerk.

Re:Attn: slashdot editors (4, Insightful)

Nom du Keyboard (633989) | more than 7 years ago | (#20273565)

Please give it a fucking rest.

Sorry, but I disagree with you. These cases are important to read about, and to discuss. Tens of thousands of people are being sued, and everybody on /. at least knows what a P2P system is. The most downloaded free open source application is a Bittorrent client. This is one of the biggest YRO issues of the moment, and worth following, and discussing, in detail. It's the reason we have DRM, and Vista, and Sony supplied rootkits, and it affects everybody!

Ban Libraries while you're at it (2, Interesting)

BillGatesLoveChild (1046184) | more than 7 years ago | (#20273513)

Does a library "making available" books constitute copy violation too?

The RIAA and MPAA regularly steal from the IP creators anyway: http://www.ornery.org/essays/warwatch/2003-09-07-1 .html [ornery.org]

They really don't have a leg to stand on.

Re:Ban Libraries while you're at it (0)

Anonymous Coward | more than 7 years ago | (#20273819)

Does a library "making available" books constitute copy violation too?
Or a radio station playing music? I remember as a kid we often taped songs from the radio we liked or wanted to play for our friends for that reason or others. We even made and shared tapes from albums or 45s if lucky enough to have them. We used these tapes for our own purposes as well as played them for friends. This was fair use.

When the internet came along, many discovered IRC, then came the Windows clients mIRC and PIRCH which supported playing sounds via the CTCP requests and transfers of files between clients. Now we could allow others to enjoy what we were listening to. Internet connections being what they were at the time we generally shared only shortened lossy versions of what we wanted to play. Then as connections speeded up and compression codecs got better the songs became more complete and of higher quality and even more sending of files went on. We considered this no different from playing albums or tapes in our homes for our guests or our guests bringing along their music to share as well. To many of us those IRC channels were the homes of the channel founders and operators and where we had fun. MP3 was then developed significantly improving the sound quality of the tradeable results, "broadband" allowed many to exchange those quickly and the MP3 channels for trading including special bots set up to handle the transfer requests.

The founders of Napster viewing this saw an opportunity and started Napster, then became successful enough to attract the attention of the media and the RIAA. During the time from the advent of MP3s on the emphasis for many was no longer just sharing their music with their friends but attempting to have more music then all their friends in some odd competition.

Yes, I know I left out the users of shell scripts and the like from the above but most of them didn't script out code to let them play sounds or do colored ascii art since that would just make their clients more vulnerable to attack on the chat servers anyway.

In the days before the tape players, phonographs and radios people shared music by playing and singing it in front of others with their own instruments and voices. No one much sent in payments to ASCAP for the privilege then either. Its long been in people's nature to share their music and the RIAA is not going to be able to stop them because it is just the natural order of things.

Re:Ban Libraries while you're at it (1)

Lorkki (863577) | more than 7 years ago | (#20274547)

Does a library "making available" books constitute copy violation too?

Nope. Then again, libraries pay fees to the copyright owners in proportion with the loaning rates, at least in the part of the world where I live.

analogy (0)

Anonymous Coward | more than 7 years ago | (#20273555)

Oh shoot, then I better pull my car into the garage, otherwise a Toyota might see it and make their own F-150 leaving me open to Ford's copyright infringement suit...

In the USA... (2, Insightful)

deAtog (987710) | more than 7 years ago | (#20273743)

you are innocent until proven guilty. In order to convict someone of unauthorized distribution of copyrighted content, the RIAA must prove that a distribution of their copyright owners' intellectual property(IP) did in fact occur. To this day, the RIAA has failed to charge anyone, who has made their copyright owners' IP available for download, with unauthorized distribution of copyrighted content due to the mere lack of evidence. To further complicate the matter, the RIAA has been known to download a copy of the IP for inspection from the individual that has made it available. This however does NOT constitute unauthorized distribution since the RIAA has been granted permission by the copyright owners they represent to obtain their IP in this manner. In this situation, since the distribution of the content was authorized by the copyright holders, the individual from which they have downloaded the IP from has not yet committed a crime. In order to show that an individual has committed unauthorized distribution of copyrighted content, the RIAA would have to catch the individual in the act of transferring the copyrighted content to another individual who has not been authorized, by fair use or otherwise, to obtain a copy of the IP. The DMCA, on the other hand, explicitly states that in the event an individual has made copyrighted content available without authorization from the copyright owner, the copyright owner is to contact the individual's ISP and request that the content be made unavailable or removed. In the event that the ISP does not comply, then and only then may the copyright owner pursue other measures to have the content forcibly removed. The RIAA has failed, in almost every known case, to follow the procedures detailed by the DMCA for handling possible copyright infringement cases. They are therefore violating US federal law by suing John Doe for copyright infringement before requesting that John Doe's ISP remove the copyrighted content. The truth behind why organizations like the RIAA have been target individuals who have made their copyright owners' IP available is not to charge them with unauthorized distribution of the content, but to charge them for unauthorized possession of their copyright owners' IP. In other words those who are providing the content are also more likely to have obtained the content illegally. However, the assumption that by making the copyrighted content available without authorization is guilty of unauthorized distribution is completely unfounded. While IANAL, this is my understanding of copyright law.

Re:In the USA... (1)

burning-toast (925667) | more than 7 years ago | (#20273791)

Wall of text crits you for 9999 damage. You die.

On a different note:

This is a civil proceeding so "innocent until proven guilty" does not apply. Unfortunately.

See my earlier post "But wait..." for my own take on this...

I agree with what I could understand your point to be, and I still think that the "crime", as stated by the FBI notices, and covered under older copyright law is much more applicable to these situations than the DMCA / RIAA love-fest that is going on. In other words, this case would be tossed unless it was proven to be for-profit, ongoing, or large scale (not that it COULD have been large scale).

- Toast

Re:In the USA... (1)

fimbulvetr (598306) | more than 7 years ago | (#20273915)

Man if you could clean that up and simplify it a little bit, maybe a few more /.s would understand your (insightful post) and given a more complete understanding of exactly what is going on.

Does this mean.... (1)

Argentice (946799) | more than 7 years ago | (#20273893)

Does this mean if I steal my neighbours car he's guilty of theft, because he made it available?

Re:Does this mean.... (2, Insightful)

RAMMS+EIN (578166) | more than 7 years ago | (#20274307)

``Does this mean if I steal my neighbours car he's guilty of theft, because he made it available?''

No. Theft and copyright infringement are very different things.

Re:Does this mean.... (1)

Pykasye (814219) | more than 7 years ago | (#20274465)

Not to hear the *AA tell it.

Re:Does this mean.... (1)

gardyloo (512791) | more than 7 years ago | (#20274325)

Does this mean if I steal my neighbours car he's guilty of theft, because he made it available?
I never did like that sonofabitch. Good thing I tell his damned kids to keep OFF MA LAWN!

Re:Does this mean.... (2, Informative)

Opportunist (166417) | more than 7 years ago | (#20274413)

Depends actually on the country. If I leave my car unlocked, with the keys in plain view inside, and someone takes my car for a joyride and causes an accident, I'm liable because I was careless.

Of course, this does not apply to the internet. Car analogies are rarely really good.

this is stupid (0)

Anonymous Coward | more than 7 years ago | (#20273973)

lets see, the public library has books available and copy machines available so does that mean they are violating the law also, what about women, they have parts that can be used for prostitution, so....males have parts available that can rape...so does this mean every human on planet earth and beyond the stargate should be prosecuted for violating some law because they are available.

Distribution to the public? (2, Insightful)

ortholattice (175065) | more than 7 years ago | (#20274317)

From p. 7-8 of 25 of Defendant's Reply Memorandum of Law in Support of Motion to Dismiss Complaint [ilrweb.com] , referring to 17 USC 106(3): "distribution...to the public" [See, e.g., 2 Nimmer on Copyright 8.11[A], at 81-148. "[I]t is not any distribution of copies or phonorecords that falls within this right, but only such distributions as are made available 'to the public'...[A] limited publication, i.e., a distribution made to a limited group for a limited purpose and not made to the public at large, should not infringe this right."

This is very interesting. Independent of the RIAA case, it seems to open a whole can of worms for copyright holders generally.

Example: I wonder why this wasn't brought up in the case of Share a News Story With Coworkers, Pay a Fine [slashdot.org] where a company settled for $300,000 for distributing news articles internally to employees.

Another (hypothetical) example: internally distributing copies of Microsoft Office to employees is certainly making them available to a limited group and not to the public at large. What is the catch? The EULA wouldn't seem to apply since it is only agreed to after the program is run, not when it is distributed before ever running it.

Anyone have a .torrent? (2, Funny)

gardyloo (512791) | more than 7 years ago | (#20274357)

I sure would like to read the supporting documents linked to in the summary (you know, to protect my liberties and, um, stuff like that), but they seem to be slow or absent. Anyone have a .torrent?

Fortunately for the pirating community ... (1)

snoggeramus (945056) | more than 7 years ago | (#20274425)

Fortunately for the pirating community, the RIAA's member companies "make available" the music already in digital form through their extensive network of music stores. Thus only a comparative small investment needs to be made by a would-be pirate.

What is "making available"? (3, Interesting)

Opportunist (166417) | more than 7 years ago | (#20274443)

I have some songs on my HD. Ok. I may have bought them, or ripped them (which is still legal in some countries), or whatever other means there are to get them legally and on a HD.

Now, I'm a computer moron and have no idea what I'm doing. They are being shared through Windows' own system of making files available, SMB. They are incidentally "available" because they reside in a subfolder of "my folder", which is trivial to "share" in the network. Maybe there was even a good reason to do that for me, because there are other files in there, too, which I may share and I couldn't figure out how to share only those files and not the ones copyrighted.

"Making available"? When you go by the logic usually applied to carelessness concerning computers (i.e. "You're not liable for anything dumb you do with your computer when you're too stupid to know it"), it's not. Still, the difference to "making available" on a P2P network is a matter of protocol, it's not something different in a legal or factual sense. Sharing those files on P2P instead of SMB only means that a different application is responsible for the "making available" part, the rest is essentially the same. I grant access to the files to parties who I'm not allowed to share those files with.

What about trojans? Imagine I had a "P2P trojan" (and, bluntly, I'm surprised that something like this doesn't exist yet in wide spread). Said trojan would act as a relay for people who want to share certain content. Am I making it available? More important, is this suddenly the first trojan whose actions are blamed on the person infected by it?

What about insecure FTP servers? There are literally thousands if not millions of machines on the net that run a copy of some Windows Server version with IIS enabled that allow anonymous up- and download. I checked it once, it usually takes about 10 minutes before you become the drop point for someone who needs to spread files. Again the question, are you liable for it? Yes, common sense says you should be, but generally the creed stands that, if you're too stupid to know, you are off the hook.

So what is "making available"? Where is that line between "too dumb to know that you're sharing" and "knowing what you're doing and thus being liable"?
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