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EFF Takes On RIAA "Making Available" Theory

kdawson posted more than 6 years ago | from the lending-a-welcome-hand dept.

The Courts 366

NewYorkCountryLawyer writes "In Atlantic v. Howell, the Phoenix, Arizona, case in which a defendant who has no legal representation has been battling the RIAA over its theory that merely 'making files available for distribution' is in and of itself a copyright infringement, Mr. Howell has received some help from an outside source. On the last day allowed for the filing of supplemental briefs, the Electronic Frontier Foundation filed an amicus curiae brief agreeing with Mr. Howell, and refuting the RIAA's motion for summary judgment. The brief (PDF), which is recommended reading for anyone who wants to know what US copyright law really says, points out that 'contrary to Plaintiffs' arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work.' This is the same case in which the RIAA claimed that Mr. Howell's MP3s, copied from his CDs, were themselves unlawful."

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Consequences? (2, Interesting)

Naughty Bob (1004174) | more than 6 years ago | (#22019024)

This looks to be open and shut, so, does anyone know- If the judge is sane, and applies the law as he should, what sort of legal precedent will be set? (I'm a stinking U.K.-er, I just want to know)

Re:Consequences? (5, Insightful)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#22019066)

This looks to be open and shut, so, does anyone know- If the judge is sane, and applies the law as he should, what sort of legal precedent will be set?
A very good one.

Re:Consequences? (1)

WaltBusterkeys (1156557) | more than 6 years ago | (#22019146)

The EFF's view isn't any more "what copyright law actually says" than the RIAA's until a judge rules on it. And even then it's subject to appeal.

Re:Consequences? (5, Informative)

morgan_greywolf (835522) | more than 6 years ago | (#22019970)

The EFF's view isn't any more "what copyright law actually says" than the RIAA's until a judge rules on it.


Oh, I think NewYorkCountryLawyer knows what he's talking about. You know how people say IANAL? Well, he doesn't say that because he is a lawyer. And one that has particularly been defending copyright infringement cases lately. This is a reading of existing law, not necessarily trying to establish a 'new law' via legal precedent (which, BTW, isn't all it's cracked up to be.)

Re:Consequences? (-1, Troll)

Anonymous Coward | more than 6 years ago | (#22019182)

There's more info over at the nimp.org site. [nimp.org]

Re:Consequences? (0, Redundant)

Wonko the Sane (25252) | more than 6 years ago | (#22019236)

Your mother must be very proud.

Re:Consequences? (1)

Naughty Bob (1004174) | more than 6 years ago | (#22019306)

I guess I mean 'What rights will a good decision establish, and for whom?'

Re:Consequences? (1)

russotto (537200) | more than 6 years ago | (#22019572)

Unfortunately, "contributory" and "vicarious" infringement cases looked to be open and shut also. There was no law on the books making those actions unlawful. But judges extended copyright infringement law to cover those cases. A friendly judge (which the RIAA has no shortage of) would certainly be willing to add "making available for infringement" to that list.

Is this a good thing? (3, Interesting)

FroBugg (24957) | more than 6 years ago | (#22019040)

Really, is this a good thing?

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?

Yeah, yeah, yeah. The RIAA are bad guys, we all have to hate them. I agree that the judgements they're going after are ridiculous. But is the EFF really trying to say that it's ok to try to commit copyright infringement, but only wrong if you get caught completing it?

Thought crimes (3, Insightful)

flyingfsck (986395) | more than 6 years ago | (#22019096)

Well, is it wrong to contemplate committing a crime and then not do it, or should the person be incarcerated same as if he actually did it?

Re:Thought crimes (3, Interesting)

stubear (130454) | more than 6 years ago | (#22019456)

Ever hear of "conspiracy to [commit some crime]"? You can be held responsible for actions that would have led to a more serious crime. Just because no one downloads the files does not mean his intent was to illegally distribute intellectual property for which he did not have the rights to do so.

Re:Thought crimes (2, Insightful)

stinerman (812158) | more than 6 years ago | (#22019542)

Yes, I have heard of conspiracy to commit X. As of this writing, there is no law on the books for conspiracy to commit copyright infringement, although I believe some congressmen are trying.

Re:Thought crimes (3, Interesting)

Socguy (933973) | more than 6 years ago | (#22019896)

I'm not sure where you are based, but here in Canada, no that is not a crime nor is it a conspiracy to commit a crime. In order to commit theft, you have to take something away from the lawful owner so they don't have it anymore. In terms of copyright infringement, you are allowed to make a copy of virtually anything for personal, non-commercial use. Until the laws are changed, personal copies can come from downloading off the internet.

Re:Thought crimes (1)

TheVelvetFlamebait (986083) | more than 6 years ago | (#22019534)

It's not a thought crime. He performed an action of which the consequences can only be unlawful. There's no persecution of thought here, just of the actions taken, and the damage indirectly done.

Re:Thought crimes (1)

Wonko the Sane (25252) | more than 6 years ago | (#22019668)

the consequences can only be unlawful
You didn't read the article. A major part of their argument is that when the authorized agents of the copyright holders downloaded the material as part of the investigation that this did not violate the Copyright Act.

Re:Thought crimes (3, Informative)

jotok (728554) | more than 6 years ago | (#22019540)

This isn't the same as "contemplating" a crime.
The laws that govern the use of force by, e.g., law enforcement personnel and the military, in most (if not all) nations recognize the idea of "intent." There are clear markers for judging whether or not a reasonable person intends to do something hostile.

If you think all day of how you would like to blow up Congress, then you are guilty of nothing that can or should be prosecutable.
However, if you think all day of how you would like to blow up Congress, then acquire explosives and study blueprints to find out how to bring the building down...well, now you are actually on the road to making your thoughts a reality. If you are caught before the bomb goes off, you cannot use "This is thoughtcrime!" as an excuse. This is also why we have laws against "attempted murder" or "attempted rape" on the books.

Re:Thought crimes (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22019580)

I'd say this is similar to him walking into a bank with a note saying he was robbing the place. He then puts the note on the counter, but nobody notices it, so he walks out, leaving the note behind. What the implications of that action would be are beyond me.

Re:Thought crimes (1)

wizardforce (1005805) | more than 6 years ago | (#22019584)

in this case the only difference between it being a crime or not is whether anyone found your files to download. same exact action, one being a crime and one not, does that make any sense? no, no it doesn't.

Re:Thought crimes (1)

gnasher719 (869701) | more than 6 years ago | (#22019794)

in this case the only difference between it being a crime or not is whether anyone found your files to download. same exact action, one being a crime and one not, does that make any sense? no, no it doesn't.
Of course it makes sense, once you remove your mistake that anything here is a crime in the first place. It is not a crime. You don't go to jail for it. It is about damages and liability. Trying to distribute records, but without success, doesn't cause damage. That is also a major difference for example to theft. Theft is a crime, and the police will arrest you. Copyright infringement (in cases like this one) is not a crime.

Re:Thought crimes (1)

wizardforce (1005805) | more than 6 years ago | (#22019904)

under current law copyright infringement *is* a crime, should it be that way? perhaps not, but legally it is. You can argue the legality of distributing data in the form of music/art etc. all you want, it doesn't alter the fact that two actions although exactly the same are treated differently because of whether or not anyone thought of taking advantage of the offer. that's the idiotic part that doesn't make any sense what so ever. Either it's a crime and the two actions treated equally [because they are] or it isn't a crime and the argument about all of this is mute anyway.

Re:Is this a good thing? (2, Insightful)

Wonko the Sane (25252) | more than 6 years ago | (#22019178)

You're already falling into a fallacy when you equate "infringing vs non-infringing" with "right vs wrong"

Re:Is this a good thing? (4, Interesting)

webmaster404 (1148909) | more than 6 years ago | (#22019190)

It is a good thing in that it is showing the true colors of the RIAA. Even though he might lose the case, its a battle lost but we could win the war. The more people realize that the RIAA is trying to attack us doing the simple act of ripping CDs to MP3s, Joe Sixpack might actually give a second thought if he really wants/needs to spend the $15 to get a new CD. It also could help when a senator/representative finds out that this is what the RIAA has been doing all along and those who actually knew about technology were right, they could take down the DMCA and other atrocious laws. This also might make bands less likely to join a record company that's part of the RIAA (because they are music listeners too) and also start labels breaking away from the RIAA because people won't buy DRMed songs and they don't believe that "piracy" is the same as ripping MP3s. If anything, this should give more evidence into persuading people that the RIAA truly is opposing our freedoms.

Re:Is this a good thing? (1)

shark72 (702619) | more than 6 years ago | (#22019388)

"The more people realize that the RIAA is trying to attack us doing the simple act of ripping CDs to MP3s, Joe Sixpack might actually give a second thought if he really wants/needs to spend the $15 to get a new CD."

This has already been covered endlessly. He isn't under scrutiny for simply ripping the CDs. The record companies claim that he does not have authorization to rip CDs for the purpose of placing them into his Kazaa share folder.

Those eleven words at the end of the sentence may seem inconsequential but they make all the difference. It may not make sense to some people, but in the eyes of the record industry, a ripped MP3 file goes from "authorized" to "unauthorized" when it's placed into your P2P share directory... even though it's the same file.

Trying to break the law is not a crime. (4, Informative)

riseoftheindividual (1214958) | more than 6 years ago | (#22019196)

Planning on breaking the law is not a crime. Actually breaking the law is what defines a crime. Granted, if you've planned on breaking some law and your planning constitutes conspiracy to commit a crime by definition of a law against conspiracy to commit a crime, then you've broken the law in so far as conspiracy is concerned, not as far as the actual crime you conspired to commit(unless you actually committed it).

Re:Trying to break the law is not a crime. (4, Interesting)

FroBugg (24957) | more than 6 years ago | (#22019372)

He did more than just plan to break the law. He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.

Re:Trying to break the law is not a crime. (0)

Anonymous Coward | more than 6 years ago | (#22019504)

Aren't copyright cases civil damages? Can you award damages to someone because something almost happened or could have happened? Do you not have to prove and ACTUAL loss? I trip over a loose piece of clothing in Wal-Mart and almost fell and got hurt, can I sue for damages for the work time I could have lost if I would have fallen?

Re:Trying to break the law is not a crime. (4, Interesting)

Charbox (1134059) | more than 6 years ago | (#22019524)

Putting files up for everyone to grab is not making the copies. The people who download them are making the unauthorized copies. Under your theory, libraries can't have photocopiers because they are just putting it up for everyone to grab copies out of books and magazines.

Re:Trying to break the law is not a crime. (1)

Invidious (106932) | more than 6 years ago | (#22019844)

Actually, no. The distributor's computer creates the unauthorized copies at the request of the client computer.

Re:Trying to break the law is not a crime. (1)

Charbox (1134059) | more than 6 years ago | (#22019928)

So? The photocopier creates the copy at the request of the person pressing the button.

Re:Trying to break the law is not a crime. (1)

Naughty Bob (1004174) | more than 6 years ago | (#22019960)

Actually, no. The Library's photocopier creates the unauthorized copies at the request of the sneaky book thief.

Car analogy! (1)

mangu (126918) | more than 6 years ago | (#22019614)

He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.

In the grand /. tradition, let's try a car analogy. Is leaving the keys in your car a crime? Are you stealing the car or the guy that drives away with it?


Or how about a computer analogy? If you have a computer with Windows in it and without antivirus, etc, connected to the internet are you guilty of a crime?


No matter how easy you make it, the guilty party is always the one who actually *commits* an illegal act.

Re:Car analogy! (1)

jorghis (1000092) | more than 6 years ago | (#22019740)

People always use analogies in ways that are not analagous around here.

In your two examples the person who is being robbed clearly did not intend to get his stuff stolen, you did not deliberately go out of your way to make the car available to be stolen. If you rip copyrighted mp3s and put them up on a file sharing network you are clearly intending for someone to copy them illegally. A better analogy might be if you put your car by the side of the road with a sign that said "take me please I am free". But even that isnt really a valid analogy because it is your car in the example given and you can do whatever you want with it. Intellectual property is completely different and not really analogous.

Re:Car analogy! (1)

Ecneics (799425) | more than 6 years ago | (#22019864)

So if you rented a car and then left that by the road with a sign that said, "take me please I'm free" then surely that would fall about as close as a car analogy could get, but even then I don't think it fits. The car was received through a service while still remaining the property of the company providing that service. You took the property obtained in that service transaction and exercised rights to that property that were neither given nor implied. The obvious glaring difference is that it is physical property and the theft leaves the owner without a car whereas the theft of a file is more like someone took the rented car and allowed people to build their own with their purchased materials using the rented car as a guide. The rented car is still there, but the next person who may have purchased the car has one without the original owner making a profit.

Re:Car analogy! (0)

Anonymous Coward | more than 6 years ago | (#22019814)

In this case there would be two guilty parties. The person who posts the content to a public file share and the person who downloads it. The EFF's argument is that no crime has taken place until someone downloads the content thereby creating an unauthorized copy. The RIAA's proxy doesn't count because he's authorized. IANAL but in the age of the internet that seems like shaky ground to me. The common sense argument is why put it in a place like KaZaa except for the purpose of creating and distributing unauthorized copies.

Re:Car analogy! (1)

ortzinator (1198739) | more than 6 years ago | (#22019862)

Though your analogy is flawed, if the car isn't yours then yes, it could be illegal.

Re:Trying to break the law is not a crime. (3, Insightful)

Artraze (600366) | more than 6 years ago | (#22019638)

It certainly does appear that attempted to. And indeed if that's what he was being charged with, then he probably would be found guilty (as well he should be I suppose). HOWEVER, he is not being charged with _attempted_ infringement; he is being charged with _actual_ infringement. The EFF is just saying that unless the RIAA can _prove_ that the infringement happened, the guy shouldn't be found guilty of infringement. Seems reasonable to me. If we need a law against "attempted copyright infringement" then so be it, but people shouldn't be ruled guilty of infringement just because we don't have one.

Re:Trying to break the law is not a crime. (0)

Anonymous Coward | more than 6 years ago | (#22019674)

Isn't that the same as putting my expensive stuff on the front-lawn and waiting for someone to steal it?

Or was he in fact working for the RIAA and using the old entrapment thing, trying to get a nice precedent? (or is that way too paranoid? :D)

Re:Trying to break the law is not a crime. (1)

jorghis (1000092) | more than 6 years ago | (#22019686)

You know back in the days of Napster everyone was screaming about how horrible it was to go after Napster because it was clearly the individual sharers that were breaking the law. Now we hear everyone getting excited because there is the possiblity that someone who admitted to deliberately sharing copyrighted material online might get off on a weird technicality.

I think that some people just got on one side of the issue because the RIAA wanted to criminalize file sharing in general and now they instinctively take the opposite side of the RIAA every time no matter what. I mean, to a person on the street a guy who admitted that he deliberately made copyrighted material available for distribution online from his computer would be an open shut case.

A lot of people on websites like this arent capable of looking at individual cases objectively and so they take this guys side even when he is obviously guilty and the RIAA is obviously in the right. Effectively people have already reached the conclusion they want (that he should get off) and then rationalize the reason why he should get off. (weird legal technicality)

Re:Trying to break the law is not a crime. (1)

gnasher719 (869701) | more than 6 years ago | (#22019842)

You know back in the days of Napster everyone was screaming about how horrible it was to go after Napster because it was clearly the individual sharers that were breaking the law. Now we hear everyone getting excited because there is the possiblity that someone who admitted to deliberately sharing copyrighted material online might get off on a weird technicality.
I wouldn't call "look at the law, look what it says is illegal and what is not illegal, and you'll find that what I did isn't illegal at all" a "weird technicality".

Like if you were in court for murder, and the victim is actually alive, then I wouldn't call this a "weird technicality".

Re:Trying to break the law is not a crime. (1)

jorghis (1000092) | more than 6 years ago | (#22019884)

I am pretty sure that in your example you would still go to jail for attempted murder if you had tried to kill the victim. The same way that the RIAA will sue you if attempt to commit copyright infringement if you post material that they own the copyrights on onto the internet.

Re:Trying to break the law is not a crime. (5, Interesting)

riseoftheindividual (1214958) | more than 6 years ago | (#22019688)

He did more than just plan to break the law.

I didn't say otherwise. I'm attempting to explain the situation as I've read it.

He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.

Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.

That's not what's happening here. You say he admits to doing everything he needed to do to have commit copyright infringement... if that's the case, then he did commit and he's guilty. But that's not what's being argued here. What's being argued here is that he did not cross the neccesary threshold for having broke the law.

I'm not sure what your opinion is on the concept of "the burden of proof lies with the accuser", but I don't find that concept ridiculous at all. If he attempted to break the law, but did not in fact break the law, then he should not be punished. Have you committed copyright infringement by just putting digital copies on your computer? Have you committed it by putting them into a directory shared by file sharing software(something that can be inadvertently done due to user carelessness)? Or have you broken it once you have actually transfered a copyrighted work to another person?

I always fall back to the simple reasoning, no harm no foul. If no copy was disseminated, then the RIAA can not show they've been victimized, then he should not be punished. In my opinion, anything beyond that is unreasonable control over individual liberty. That's my take.

Re:Trying to break the law is not a crime. (0)

jorghis (1000092) | more than 6 years ago | (#22019766)

> Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.

Um, ok, sure. IANAL but I suspect that if I get a sniper rifle and shoot at the president "its ok I missed" wont stop me from getting thrown in jail.

Re:Trying to break the law is not a crime. (5, Insightful)

Wonko the Sane (25252) | more than 6 years ago | (#22019836)

Attempted murder is a crime because some legislature passed a law criminalizing it.
"attempted copyright infringement" is not a crime, because it does not violate any current law.
Just because it seems wrong to somebody does not make it a crime. Crimes are defined by laws, not your feelings.

Re:Trying to break the law is not a crime. (1)

jorghis (1000092) | more than 6 years ago | (#22019958)

Well, if it isnt illegal (and I suspect that it is illegal) then it really should be. I am sure that if this goes through then the RIAA lobbyists will go to congress and point out how ridiculous it is that this is legal. So either way it wont be a legal loop hole for long. (nor should it be)

Re:Trying to break the law is not a crime. (4, Interesting)

NMerriam (15122) | more than 6 years ago | (#22019734)

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.


Nobody is saying he's not at fault, just that he hasn't committed copyright infringement according to the law. Attempting to commit a crime and failing is not illegal (though you might be committing another crime in the attempt), you have to actually commit a crime.

For example, if you saw a car parked on the street with keys in it and you took it for a joy ride, thinking you were stealing it, it wouldn't be illegal if it turned out the car was purchased for you by your parents. It doesn't matter what your belief or intent is, if what you're doing isn't actually breaking the law you aren't guilty of any crime. That's what is at the heart of this issue -- is it a copyright violation if the material is never actually distributed to anyone, regardless of whether the guy intended for it to be distributed?

Re:Trying to break the law is not a crime. (4, Insightful)

A beautiful mind (821714) | more than 6 years ago | (#22019744)

He did more than just plan to break the law. He attempted to.
Attempting to break the law is not against the law, unless there is specifically a law that makes it a crime for you to attempt to break the law (and convict you even if you don't succeed).

Copyright infringement is not a criminal offense for a good reason, that would get you automatically prosecuted. It is breaking the law only if a.) the act of copying takes place b.) it is not fair use c.) the copyright owner does not give you permission d.) the copyright owner sues you for it and wins the court case.

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement
Again,the matter is not something that would get prosecuted automatically, nor should it be. If someone copies a song and the copyright owner never sues for it, in the eye of the law it is perfectly legal and deserves no punishment. There is a huge difference between a criminal case like attempted murder where even the attempt is prosecuted and between a copyright case where you're saying that it is ridiculous that an attempt is not prosecuted, which in order to realistically work would automatically mean making copyright infringement a criminal offense.

Re:Trying to break the law is not a crime. (1)

gnasher719 (869701) | more than 6 years ago | (#22019822)

He did more than just plan to break the law. He attempted to.
Attempting to break the law is not breaking the law. There are cases where the law says that attempting to commit a certain crime is itself a (lesser) crime, like attempted murder is a crime, but a lesser crime than murder, but unless the law says that attempting something is a crime, it is no crime. In the case of copyright infringement, the law explicitly says that only actual distribution is copyright infringement, attempting it is not.

Re:Trying to break the law is not a crime. (1)

gotzero (1177159) | more than 6 years ago | (#22019986)

I think the EFF as a digital ACLU. They often protect the liberties of people doing something I think is wrong, but when I move back and take out the specifics, I often realize they are fighting to keep me safe. I think on the whole the EFF does wonderful work. I have had to listen to little kids explain to me that file sharing is wrong after the RIAA went INTO THEIR SCHOOLS and tried to push this crap into their heads. If this is going to get fought by protecting a guy that messed up, then I am willing to overlook.

Re:Trying to break the law is not a crime. (1)

LM741N (258038) | more than 6 years ago | (#22019562)

I beg your pardon. With 2 or more individuals planning a crime is called conspiracy and they are generally felonies.

Re:Trying to break the law is not a crime. (1)

jotok (728554) | more than 6 years ago | (#22019594)

Yah, and the sticky part is that, in the spirit of the law, he was committing conspiracy; but I don't think there's a law against "conspiracy to commit copyright infringement."

Of course, the spirit of the relationship between us consumers and the media outlets should be one that includes fair use. If it did then maybe people wouldn't want to dick them over so much.

Re:Is this a good thing? (1)

houstonbofh (602064) | more than 6 years ago | (#22019208)

This difference is if I say?
"Wanna buy some crack? Just kidding..."
In one case I sold crack. In another I made a bad joke.

Re:Is this a good thing? (1)

larry bagina (561269) | more than 6 years ago | (#22019404)

intent.

Re:Is this a good thing? (2, Insightful)

Graham MacRobie (1082093) | more than 6 years ago | (#22019322)

If you read through the brief, you get the sense that the EFF couldn't possibly care less about this particular defendant, and is much more worried about the (possibly far reaching) precedent that will be set as a result of this case - especially since the defendant is appearing before the court pro se.

Re:Is this a good thing? (2, Interesting)

tgrimley (585067) | more than 6 years ago | (#22019380)

So what if he sets it all up and the file sharing program sees it and others see it but he's set up his network to refuse to pass through those packets?

Re:Is this a good thing? (0)

Anonymous Coward | more than 6 years ago | (#22019426)

Yes, that's just what they're trying to say, for the simple reason that it's TRUE.

Imagine that you want to kill some guy. You buy a gun and ammo, and wait for him outside his house; however, he doesn't show up, and a cop busts you instead. According to your logic, you'd have to receive exactly the same sentence now as if you actually KILLED him.

In reality, of course, you didn't kill him. You didn't even try to kill him; you merely planned to. Same here: he obviously DID intend to infringe on some copyrights, but that's not the same as doing it, and not even the same as trying; and FWIW, it's not as if trying is even illegal.

The EFF is doing exactly the right thing here.

Re:Is this a good thing? (1)

flibbidyfloo (451053) | more than 6 years ago | (#22019470)

I've been trying to come up with a physical world equivalent of this issue. The digital world is certainly different than the "real" one, but since our laws are based in the physical, how could we compare for reference?

What if you bought a CD, made one copy of it, and then took that to the student union (or any other gathering place) and just left it, sitting in a box with a sign that says "free CD", like a free puppies sign or something?

If no one takes it, have you committed a crime by leaving it there, available for theft?

What if you make 20 copies and do the same thing? It seems like even if no one takes them, it shouldn't be legal. However, it certainly doesn't seem like you should have to pay a bunch of cash to the RIAA, since none were taken.

Finally, what if you did this, then came back a week later and the box was gone? If the staff claim they threw the CDs into the furnace and they don't know if any were missing at the time, what's your punishment, if any? You've no idea how many were taken, or if any were at all. Should you get off scott free?

Re:Is this a good thing? (1)

Invidious (106932) | more than 6 years ago | (#22019522)

No, that's not what happened, or at least, you cannot infer that.

This guy took some CDs and ripped them to his hard drive. The folder he ripped them to happened to be shared by the filesharing program. I've seen some of these programs attempt to share entire drives, so the user may or may not have been aware of this behavior.

Re:Is this a good thing? (1)

piojo (995934) | more than 6 years ago | (#22019592)

My (perhaps flawed) understanding is that some music downloads are okay. They still violate the copyright act, but so does all fair use. That doesn't make them "not okay" or "not fair use", but it means that anybody that sued you over these violations would probably lose.

I want those with legitimate reasons to be able to get content (I know these reasons may be uncommon, but I don't really care. We may need to find a different way to stop piracy than to prevent everyone from sharing.)

Re:Is this a good thing? (0)

Anonymous Coward | more than 6 years ago | (#22019630)

I guess the EFF is saying he *didn't* commit any copyright infringement, because nodody got a song from him even if he put them on a shared folder. Perhaps he got the intention to share them, but you cannot punish the intention! I frequently have the intention of killing my mother-in-law but I will probably never do it, should I be sent to jail for murder anyway?

Re:Is this a good thing? (1)

theonlyaether (1146549) | more than 6 years ago | (#22019650)

I've worked on a few computers in my life. More than a few, who even cares - The point is, they made their music, software, and just about everything else, available to me. I may have even decided I wanted a thing or two I saw and I might have taken it. The point is I'm the one who made the violation, even if the computer owner was making the data available to me. Get it?

Re:Is this a good thing? (1)

gnasher719 (869701) | more than 6 years ago | (#22019716)

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?
As the article explains, the law says quite clearly that there is no such thing as "attempted copyright infringement". Either the music was distributed or it was not. If it was not distributed, and if there is no evidence of distribution, then there is no case. Intention doesn't count.

Re:Is this a good thing? (1)

danomac (1032160) | more than 6 years ago | (#22019762)

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program.

I've always wondered about that. If he makes them available, and no one downloads them, how is that infringement? It's reasonable to think he ripped them for himself. I really doubt a P2P program can be used to manage a portable player, so you can't use that argument either.

Then again, if they do prove it (by them themselves downloading one of the "available" songs) aren't they still in the same boat? They've probably hired someone to go fishing, and they've downloaded an unauthorized copy of the song in question. From a legal sense, the person downloading it to prove that someone copied the song would be liable, no?

I'm kind of sleepy now, so tomorrow I'll probably wake up and wonder why the hell I wrote this.

Re:Is this a good thing? (1)

LainTouko (926420) | more than 6 years ago | (#22019834)

Copyright was supposed to regulate the publishing industry. Its regulation of private citizens, who didn't really copy stuff back then, came about essentially by accident. When the charge is out of keeping with the spirit of the law, one shouldn't be ashamed of a defense which is out of keeping with the spirit of the law.

Re:Is this a good thing? (0)

Anonymous Coward | more than 6 years ago | (#22019880)

"The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?"

I don't know what the defense is claiming, but I know in the case of some of my friends and family (computer novices) they have NO CLUE that by using the built-in ability to rip a CD in a P2P program, they are effectively making those same tracks available to complete strangers around the world. Likewise, they also do not understand that by downloading a track from elsewhere they are then serving that same track to others (i.e., in both cases, 'making available'). All they think they are doing is downloading the track for themselves -- which in some countries is completely legal, especially if they already own the CD or LP and are just too lazy to rip it or re-record it themselves.

I think the argument that the EFF is trying to make is that "making available" isn't sufficient on its own. If it were, then the fact that a library has copyrighted books in it and a publically-available photocopier would mean that they could be in enormous trouble for essentially the same thing. They are "making available" books, and even providing the equipment that could facilitate the copyright infringement. For some types of copying, "fair use" clearly applies, for some types it doesn't, and there's a wide grey zone in between. It's my understanding that libraries are obliged to try to communicate the difference to their patrons, but they aren't the ones doing the copying, are they? If someone does clearly infringe on copyright with no "fair use" exception is the library on the hook for the deed? Should they be sued by the copyright holder for someone else's infringing act?

To use your expression, it is not the "trying" that matters, it is the question of who is doing the infringing -- the person "making available", or the person who actually downloads that track (or both)? Once someone else infringes, does that make the person "making available" culpable and guilty? If I leave a book on a table outside and someone comes along and copies the whole thing (not practical but imagine if it were easy), should I be sued for leaving it out there or only the person making the copy?

This person may have thought (incorrectly) that all they were doing was making their own copy from their CD onto their computer. I know that ignorance is not much of a defense, but ignorance is widespread for P2P programs and I think intent counts for a lot in a case like this.

On the other hand, if they did know exactly what the P2P software was doing and knew that it was copyright infringement, I see no problem with them being prosecuted for it (although, as you have said, the judgements the RIAA are requesting are crazy).

Too rich to be guilty (3, Funny)

Lije Baley (88936) | more than 6 years ago | (#22019056)

With all that money in his trunk, why would Mr. Howell need to steal music? Plus, I don't think they even have broadband on that island.

Re:Too rich to be guilty (1)

camperdave (969942) | more than 6 years ago | (#22019116)

Maybe that telephone trunk line washed up on shore again.

Re:Too rich to be guilty (1)

esecasco (1160055) | more than 6 years ago | (#22019164)

perhaps they found another one of those cross-Atlantic phone lines, except this one is fiber-optic? Besides at the rate of inflation, his suit-case full of money is probably worth less than a song on the iTunes store.

Re:Too rich to be guilty (1)

Adambomb (118938) | more than 6 years ago | (#22019386)

Packet Over Message In A Bottle.

Really high PL and latency though.

Re:Too rich to be guilty (1)

_KiTA_ (241027) | more than 6 years ago | (#22019632)

Plus, I don't think they even have broadband on that island.

Your forgetting how the Professor made a Satellite Modem and TV out of coconuts in Season 5.

Gilligan was a /b/tard.

Error Will Robinson, Error! (5, Informative)

fredNonesuch (927976) | more than 6 years ago | (#22019128)

While I greatly appreciate your work in helping reign in yet another greedy monopoly abusing their powers, I have to post a correction to the original post. They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa. There have been numerous follow ups to the original assertion, including Techdirt, Gizmodo and Slashdot (noting the Gizmodo retraction) The RIAA has even clarified their position in a somewhat weasel worded quote. In essence, if you don't share, we (probably) don't care.

Error, Nig Robinson, Error! (0)

Anonymous Coward | more than 6 years ago | (#22019204)

Lost In Harlem

Re:Error Will Robinson, Error! (1)

vux984 (928602) | more than 6 years ago | (#22019464)

They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa.

NO. They DID say ripping a copy to the computer was unauthorized.

HOWEVER the LAWSUIT was because he'd put those files into his Kazaa shared folder.

I.e. he wasn't on trial for ripping a CD. But they did say they were unauthorized, nonetheless.

Re:Error Will Robinson, Error! (1)

Artraze (600366) | more than 6 years ago | (#22019530)

> They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa.

Well, they actually did say that to a degree, but more to the point, the "making available" bit is the problem here. While anyone putting songs in a shared folder probably intends to share them, that's not necessarily the case. Many people used to share their entire hard disk, often causing data they didn't want to share to be publicly available.* Now supposing they _did_ intend to share it, intent is only rarely a crime and usually requires is a major burden of proof. If you claim that your "My CDs" folder was automatically shared by Kazaa, then that pretty much kills the case.

*Many identity thieves would seach programs like limewire for soc numbers and the like and were quite successful.

> In essence, if you don't share, we (probably) don't care.

There is a major difference between something being legal, and something being illegal but generally not prosecuted. You may say the precedent that ripping your CDs is a copyright violation is only used to make cases against file sharers, and you may be right. But still that means they now only have to prove you ripped a CD in order win their cases. This would open the door for suing pretty much anyone whether they really were sharing files or not. After all, pretty much everyone that has a computer and a CD has ripped it.

Making "available" (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#22019144)

I'll make you "available," niggers.

If you know what I mean.

In the UK... (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#22019154)

...they call niggers "wogs," but they also call Pakis that.

DID YOU KNOW?

EFF versus RIAA, round 8 (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22019172)

The Exquisitely Fine Firemen take on the Retarded, Idiotic African-Americans, aka niggers

Atlantic vs. Howell's ultimate effects (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22019188)

niggerz criez

Amicus Curiae (4, Informative)

Graham MacRobie (1082093) | more than 6 years ago | (#22019230)

Had to look it up myself...

amicus curiae [utcourts.gov] - A friend of the court; a nonparty who interposes, with the permission of the court, and volunteers information upon some matter before the court.

Will all music eventually be free? (1)

dasButcher (992711) | more than 6 years ago | (#22019242)

OK, the internet killed the record store. What kills me is that the music labels are still searching for the magic formula. I was reading in Baseline (www.baselinemag.com) that Sony finally dropped its digital rights management protection on CDs, clearing the way for greater digital distribution. Is this the beginning of the end? http://blog.baselinemag.com/security/content001/encryption/sony_abandons_drm_and_its_about_time.html [baselinemag.com]

Re:Will all music eventually be free? (1)

ScrewMaster (602015) | more than 6 years ago | (#22019394)

OK, the internet killed the record store.

Yes, and on top of that Video killed the Radio Star [youtube.com] . I suppose the RIAA's logic would say that by posting that link I just facilitated copyright infringement.

What kills me is that the music labels are still searching for the magic formula.

What they're searching for is a magic button that will restore their iron-fisted control of content distribution. What's taking so long is for them to realize that the button doesn't exist because there's no such thing as magic.

even my lawyer smokes it (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22019252)

--- The time to legalize marijuana in California is at hand ---

Its time to collect signatures for the Cannabis Hemp and Health Initiative 2008 [jackherer.com] . The signature gathering has begun and ends around April 15, 2008. We would like to collect all of the signatures in 2-1/2 months."

"This initiative will legalize Cannabis Hemp for (a) industrial products, (b) medicinal preparations, (c) nutritional products, (d) religious and spiritual products, and (e) recreational and euphoric use and products.

It will also include amnesty, immediate release from prison, jail, parole, and probation, and clearing, expungement, and deletion of all criminal records for all persons currently charged with, or convicted of any non-violent cannabis hemp marijuana offense.

Were going to need 434,000 good signatures from registered California voters. This means that well need 700,000 to 750,000 signatures all together. The money you spend on our products will go to pay for printing petitions and renting offices around California. Well need lots of trained volunteers to help collect signatures. We have a training video that we used in the 1994 and 1996 initiatives in California. Here are the links for it:

Part One [youtube.com]
Part Two [youtube.com]
Part Three [youtube.com]
Part Four [youtube.com] "

"The war on drugs to me is absolutely phoney; it's so obviously phoney, okay? It's a war against our civil rights, that's all it is. They're using it to make us afraid to go out at night, afraid of each other, so that we lock ourselves in our homes and they get to suspend our rights one by one." - Bill Hicks

Re:even my lawyer smokes it (0, Offtopic)

ScrewMaster (602015) | more than 6 years ago | (#22019298)

--- The time to legalize marijuana in California is at hand ---

What that has to do with the RIAA and the Howell case? Dude, if you want to spam Slashdot do it in some forum that at least has some relevance to your topic. Otherwise you're just irritating people and you'll get modded to oblivion anyway.

Besides, the way things are going, Californians will be able to legally smoke pot, but they'll be in the dark because they won't have any electricity.

Re:even my lawyer smokes it (0)

Anonymous Coward | more than 6 years ago | (#22019890)

>Californians will be able to legally smoke pot

if they can do that...

>they'll be in the dark ...they won't care...

Bit off topic.. (4, Interesting)

pionzypher (886253) | more than 6 years ago | (#22019264)

But is anyone else worried about this guy going to bat without representation and possibly allowing precedent to be set by his actions? Is this considered by those who would consider later cases based upon the decisions that will be made in this one?

Re:Bit off topic.. (1, Informative)

kramer (19951) | more than 6 years ago | (#22019442)

Trial courts don't set precedent. Courts only set precedent for courts of a lower level. Trial court is the lowest level, therefore trial courts don't set precedent.

There are a few minor variations to this general rule, but they don't really apply here.

Re:Bit off topic.. (1)

larry bagina (561269) | more than 6 years ago | (#22019480)

What about Jamie? She went to court with the facts against her, she intentionally turned over the wrong drive to investigators, and her defense consisted of "I didn't do it". Result -> the first RIAA jury win. There are dozens (maybe hundreds) of people wrongly targeted by the RIAA, but that selfish bitch made it harder for everyone.

But yeah, this clown was almost as bad.

getting old (3, Interesting)

bwy (726112) | more than 6 years ago | (#22019352)

These stories are getting old. We've been hearing about stuff like this for years now. At some point there has to be a truce. I would like to think that most people want to enjoy music while respecting the rights of people who make the music to make a living. I'm not sure what the answer is, but perhaps it is time for the entire middle tier (the record labels) to get ripped out of the equation and for the RIAA to be dissolved. The Amazon store shows progress- at least we are free from DRM hell.

I'd like to see a model where when you pay for music you actually receive a license of some sort for the given song or album. This would be good for a lifetime, and when a new media format comes out, you could get the album or single reissued to you just pay for the price of the media and handling charges. As it stands I had some albums on cassette that I subsequently bought on CD and eventually lost the CDs and ended up buying the digital DRM version. I'll also have to buy the non-DRM version now if I want it. This is total B.S. and seems to be in direct contradiction to the argument that you aren't "buying music", you're "licensing" it.

Re:getting old (1)

$RANDOMLUSER (804576) | more than 6 years ago | (#22019486)

Dude. If you're gonna talk reasonably then you can't have a conversation with the RIAA. The current generation of "leaders" there are the guys who got rich (re)-selling Beatles and Zepplin CDs to the people who already owned (and didn't realize they were going away) the LPs of those same albums. These clowns have an "I'm entitled to make a shitload of money" attitude, not based on the quality of the product they're putting out today, but on the format change that put the last forty years "greatest hits" on sale (and desireable) all over again.

Re:getting old (2, Interesting)

ScrewMaster (602015) | more than 6 years ago | (#22019566)

The "middle tier" are the problem, and the only real problem, and I believe that adding more law is not a solution, in fact we need to repeal a lot of damaging copyright revisions put in place at the behest of big media.

Face it, the "compensating the artists" mantra is just a smokescreen put out by big media, and we shouldn't even be discussing it as an argument against downloading. As long as there is a middleman (or in this case, multiple layers of middlemen) pigging all the copyrights and picking off the bulk of the proceeds for themselves there will be no question of the artists ever being fairly compensated. That's also why the RIAA's plaintive cries of "we're only defending the rights of the artists!" and "downloading is stealing!" largely fall on deaf ears. I mean, once it got out that the music studios were grabbing the lion's share the profits, it became impossible to convince anyone with a broadband connection that they were taking food from the mouths of the artists. At best they were taking Lamborghinis from the garages of the executives.

The big studios are crooks, all of them, who have been stealing from their own suppliers (the musicians themselves) for over a century. It's about time something better replaced them entirely. Once your middle tier is out of the picture, artists will get compensated because they'll own the rights to their own music and will be back squarely in the driver's seat. Believe me, once I know that my hard-earned money isn't lining the pockets of people who contribute nothing to the music, I'll be more than willing to pay.

Re:getting old (4, Insightful)

russotto (537200) | more than 6 years ago | (#22019620)

These stories are getting old. We've been hearing about stuff like this for years now. At some point there has to be a truce.
No, there doesn't. And it's like the middle east; if there is a truce, it will only be until one side sees an advantage in breaking it.

I'm not sure what the answer is, but perhaps it is time for the entire middle tier (the record labels) to get ripped out of the equation and for the RIAA to be dissolved.
That's a good idea, but that's not a truce; that's victory.

Re:getting old (1)

Lunarsight (1053230) | more than 6 years ago | (#22019720)

I do agree that a middle ground needs to be reached. Should an artist have some right to control how their music is distributed? Yes.

While I'd argue P2P potentially could be used by innovative artists to get all sorts of exposure for their music, the ball should be in their court whether they want to allow this or not. (A lot DO allow this - take all the artists who post full albums to Jamendo, for instance.)

As far as the corporate record labels go, they need to stop extorting money out of consumers by threatening to sue them over unfounded piracy allegations. I have sworn I will not give one red cent to them until this ends.

Furthermore, the record labels need to apologize. I'm not talking some wussy, spin-doctored apology like the one the Warner CEO gave. I mean a -real- apology.

While they're at it, they should completely dissolve the RIAA. The damage done to the RIAA's reputation is irreparable. They should create a new entity and start fresh [and not do any of the obnoxious things the RIAA did!]

---
Mike/AMUC
http://www.soundclick.com/AMUC [soundclick.com]

The clients mis-advertise a lot anyway. (4, Interesting)

Egdiroh (1086111) | more than 6 years ago | (#22019520)

I can't say I'm 100% up to date on the current batch of p2p clients but with many of the earlier generation there were common issues of false advertising:

1. Mis-labeled song. Say it's something it's not.

2. Clients set to not allow downloads. A lot of the older clients would let you set the maximum number of downloads to 0. Your stuff would still end up indexed, but no one could download.

3. Host that were fire-walled off from letting people download. The communication for a lot of these networks isn't on one port from one host. So you can have clients advertising content that you can't actually get because of firewalls.


I'm not actually pro-copyright infringement, but a demonstration of advertised content being un-downloadable really swaying a jury. Or better yet I would love the RIAA to sue someone who wasn't sharing because of firewalls and who had meticulous firewall logs, so that they could get roasted.

Technical barriers to copyright violation (2, Interesting)

ozzee (612196) | more than 6 years ago | (#22019536)

Whenever I read the RIAA stories, I keep on thinking, what about a situation where I can communicate some seemingly random bits and someone else makes the effort to reassemble them.

Say for example, I take a digital representation of a copyrighted work, say an mp3 file, and then I proceed to use RAID6 algorithm where I split the file up into 6 chunks, any 4 of which someone can re-create the file. Distribution of 3 of those chunks by me is not a copyright violation since the original work cannot be reproduced. What if someone else unknown by me releases the other 3 chunks. Someone else may retrieve any 4 of those chunks can now reproduce the original work. Either of the suppliers didn't supply the digital bits to create the works.

Similarly, if I produce a one time pad, the length of the mp3 file and I publish it as "Best of Santana", I have in theory not provided anything other than an unintelligible stream of random bits. However, if someone publishes "the key" that once xor'd with the file I originally published, generates the original file, who is in violation ? I centainly can't be, because I just created a random set of bits, the other person in theory can't be because they only produced a key.

The violator may be the downloader, the person who takes those files and re-creates the original but they're alot harder to catch in this scenario.

IANAL so I'd like to hear what the L's in this discussion have to say about this.

Re:Technical barriers to copyright violation (2, Interesting)

muuh-gnu (894733) | more than 6 years ago | (#22019718)

> I keep on thinking, what about a situation where I can communicate some seemingly random
> bits

Your "what if" has already been implemented and running rather well: The "Owner Free File System". (http://wiki.offdev.org/Main_Page [offdev.org] )

Re:Technical barriers to copyright violation (1)

ozzee (612196) | more than 6 years ago | (#22019992)

Thanks, that's a very interesting link.

Still, I'd like to know what a judge would think of this. Mr RIAA is not going to roll over and play dead. What would their argument be ? In this scenario, the RIAA would have to prove I pushed copyrighted bits. However with a one time pad key, there is literally no information I am passing. Does a discussion about the hypothetical amount of information passed even have any weight in something like this. Not only that, my one time pad encrypted file is an original work. If the RIAA did download it, it would be a copyright violation.

I'm not encouraging the use of this, it's really just a curiosity of mine.

Because it's the intent that matters here (1)

mark-t (151149) | more than 6 years ago | (#22019568)

Copyright infringement is kinda funny... because whether or not infringement depends on the designated purpose of the copy being made (being copied for fair use, for example, being exempt from infringement), the intent of the person actually doing the copying is ultimately what matters with regards to determining whether copyright infringement actually applies. Intent is difficult for a court to determine directly, so it must be inferred by the activities of the person. By that reasoning, it seems evident to me that willfully putting a copyrighted file in one's shared documents folder, with full knowledge that would enable other people to download it, even if no downloads actually occurred, is copyright infringement. (The infringement being their making of the copy that they put there).

not a theory (0)

Anonymous Coward | more than 6 years ago | (#22019678)

That's not a theory. Did we learn nothing from the "debate" with fundamentalist creationists?

Oh please (1)

cdrguru (88047) | more than 6 years ago | (#22019942)

The EFF's argument to some extent is probably correct, but then it goes on and on into utter nonsense.

The contention that only "physical distribution" of "material objects" is addressed by copyright and that digital dissemination does not constitute distribution is not going to fly. That pretty much means that I can download anything and no matter what I do, no matter how blatent, as long as it is only in the "digital domain" that no copyright violation can be asserted.

That means that software has no copyright protection if it is downloaded.

That means there is no copyright protection for movies or music when distributed electronically.

While some might wish for this, it isn't going to happen. That pretty much means that any electronic distribution of GPL licensed software has no copyright protection. Really?

This assertion is interesting in the depths that it goes into, but it is senseless.

Am I getting this right? (1)

therufus (677843) | more than 6 years ago | (#22020020)

So by making a file 'available' to the public, I am then violating copyright law?

Well, by this same logic, if I leave my car window open and have a CD sitting on the passenger seat, I am then "making it available to the public". If I buy a DVD online and it is sent to my letterbox outside my house, and I don't have a lock on my letterbox, I am then "making it available to the public".

Where is the flaw in my logic? Or am I actually making a valid point?
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