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[ARS] EFF attacks foundation of entire RIAA lawsuit campaign

post #1 of 7
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Preface : I searched before posting but didn't find anything similar/related, however if I still managed to repost just report my thread instead of posting "repost".

-Thanks

Quote:
The Electronic Frontier Foundation weighed in this week on the Jammie Thomas file-swapping case, where the judge has asked for public comment on whether just making a file available for download on a P2P network should count as copyright infringement. In its filing (PDF), the EFF goes for the jugular, seeking to show that the RIAA's entire approach to file-swapping cases is flawed.

Not only does the Copyright Act not grant a "making available" right, the EFF said, but trade groups also shouldn't be allowed to claim that an actual distribution took place based solely on downloads from their own investigators. Together, this two-part theory would effectively eviscerate the RIAA's current legal campaign by making it nearly impossible for copyright holders to show that infringing distributions to the public have taken place over P2P networks.

"Making available"=="distribution"?


To tackle the first part of the equation, the so-called "making available" right, the brief makes an argument based largely on "the plain language of the Copyright Act and applicable precedents" (this was the same approach taken earlier in the week by a group of copyright scholars).

It claims that the right "to distribute copies or phonorecords of the copyrighted work to the public" granted in the Copyright Act means that an actual distribution must be proven. This is a more demanding standard of evidence than simply showing a judge that copyrighted files exist in a user's shared file folder on a P2P network.

One of the key parts of this claim is that Congress showed in other laws that it could be quite clear about granting a "making available" right when it wished to do so. The fact that the Copyright Act doesn't include such language should be taken as an obvious sign that just attempting to distribute a work cannot be considered copyright infringement, said the EFF.

The EFF points to several high-profile court cases in support of its argument, including Atlantic v. Howell and London-Sire v. Doe, both of which Ars has covered in painful detail if you're curious about the backstory. Even in the recent Elektra v. Barker, which did support the idea of a "making available" right for copyright holders, the EFF notes that the judge's support was "weak."

"While the Elektra court suggested that an offer to distribute might violate the distribution right, the court hesitated to 'equat[e] this avenue of liability with the contourless "making available" right proposed by [plaintiff record companies]'," noted the EFF.

In other words, if you want to sue, you need to show that the plaintiff actually transferred the files in question.

MediaSentry=="the public"?

So RIAA investigators just have to download the file instead of peeking into a shared folder, right? Sure, it's a bit more resource intensive, but it's not big deal.

Not quite, says the EFF in its brief; downloads by MediaSentry and other investigators don't count, either.

"It is axiomatic that a copyright owner cannot infringer own copyright," says the brief in its concluding section. "By the same token, an authorized agent acting on behalf of the copyright owner also cannot infringe any rights held by that owner. Accordingly, where the only evidence of infringing distribution consists of distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish that other, unauthorized distributions have taken place."
[SOURCE]

There's a lot more to read if you go to the source link, but I especially love the highlighted portions, when taken as a whole it paints an interesting picture and IMHO a valid argument...

EFF's Claims

1) The Copyright Act does not claim that making available or attempting to distribute a work is copyright infringement.
2) Filing suit requires proof that the plaintiff (*Illegally)transfered the files in question.
3)*Copyright owners and their agents cannot infringe on their own IP rights by downloading the plaintiff's files.

Conclusion:

The RIAA has been doing it wrong, and (hopefully) the court's will see it this way as well. I like the whole "burden of proof" thing, even if it's only a preponderance of the evidence in Civil cases.

Suspected of Infringement ≠ Actual Infringement or illegal distribution (Despite the MPAA claiming otherwise)

^ This coming from someone who hates piracy(ME). Piracy in and of itself is not reason enough to justify the erosion of our rights!
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post #2 of 7
Intending to distribute copyrigted material is still wrong whether techinically against the law or not. Intending to commit a crime is a lesser crime in many, many other situations, so why not here? There is absolutely no reason to have files in a shared folder other than to make them available for sharing. There are easier, legal ways to transport files from one location to another than through a P2P program. Ignorance of the user is the only issue I can see here, and although ignorance shouldn't give you immunity to the law (especially when it is a matter of simple ethics like in this case), I wouldn't be opposed to first time offenders receiving a warning as well as instructions on how to get rid of the shared files.

And how is the RIAA downloading files from people not proof of distribution? Whether it should warrant the same penalties as the actual deed is another story, but this methodoloy for catching a criminal (or would-be criminal) works for prostitution, ticket scalping, and even for more serious issues such as preventing sexual predators. I'm not saying it's the best way to do things, but if it works for other crimes why not for this one as well? As long as the person isn't baited into giving up the files by the RIAA I see no reason to discount this as evidence of copyright infringement.

I now await the lame excuses of pirates who, despite having their flawed reasoning defeated time and time again, continue to try to justify being a thief.
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post #3 of 7
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Quote:
Originally Posted by stargate125645 View Post
Intending to distribute copyrigted material is still wrong whether techinically against the law or not. Intending to commit a crime is a lesser crime in many, many other situations, so why not here? There is absolutely no reason to have files in a shared folder other than to make them available for sharing. There are easier, legal ways to transport files from one location to another than through a P2P program. Ignorance of the user is the only issue I can see here, and although ignorance shouldn't give you immunity to the law (especially when it is a matter of simple ethics like in this case), I wouldn't be opposed to first time offenders receiving a warning as well as instructions on how to get rid of the shared files.
I agree, intending to distribute copyright material is still wrong, but (IMHO) proving intent is much more difficult in this case... Perhaps the individual in question is purely a leecher and never "intended" to distribute copyright material or the accused may have lost/broken their CD collection(a stretch I know) and decided to download the songs they bought fair and square? Leeching is still wrong, but it does not impact the music/movie industry as much as seeding; which (IMHO) is why they make the distinction "Intent to distribute". In the 1:1bn chance that a person was simply rebuilding their lost/stolen/broken CD collection(CD cases/receipts as proof) I doubt the court would find that person guilty. Ultimately that's what burden of proof is all about, innocent until PROVEN guilty. Not suspected of intent to distribute Copyright material and you're guilty.

Quote:
And how is the RIAA downloading files from people not proof of distribution? Whether it should warrant the same penalties as the actual deed is another story, but this methodoloy for catching a criminal (or would-be criminal) works for prostitution, ticket scalping, and even for more serious issues such as preventing sexual predators. I'm not saying it's the best way to do things, but if it works for other crimes why not for this one as well? As long as the person isn't baited into giving up the files by the RIAA I see no reason to discount this as evidence of copyright infringement.
Conflict in interest, that's why... The RIAA, MPAA, ect are all trade groups that represent various industries and they are not the LAW. In your analogy you cite various sting operations but those all involve real law enforcement(local, state or federal). Ignorance may not be an adequate defense, but if you're ignorant how do you prove intent?
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post #4 of 7
Quote:
Originally Posted by Twinnuke View Post
What does it matter especially for music. They are already rich, so what if they lose a could thousand, less drugs for them.
Welcome to America.
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post #5 of 7
Quote:
Originally Posted by stargate125645 View Post

I now await the lame excuses of pirates who, despite having their flawed reasoning defeated time and time again, continue to try to justify being a thief.
No excuses neccessary, your post deals with right or wrong, but that has no real bearing on the laws currently in place. I agree with you on the ethical part, but if something is not against the law by the current laws then it IS NOT ILLEAGAL! should we maybe change the law, yes. Should we apply the law incorrectly to punish people for moral infractions, no.
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post #6 of 7
Quote:
Originally Posted by stargate125645 View Post
Intending to distribute copyrigted material is still wrong whether techinically against the law or not. Intending to commit a crime is a lesser crime in many, many other situations, so why not here?
[...]
And how is the RIAA downloading files from people not proof of distribution? Whether it should warrant the same penalties as the actual deed is another story, but this methodology for catching a criminal (or would-be criminal) works for prostitution, ticket scalping, and even for more serious issues such as preventing sexual predators. I'm not saying it's the best way to do things, but if it works for other crimes why not for this one as well? As long as the person isn't baited into giving up the files by the RIAA I see no reason to discount this as evidence of copyright infringement.

I now await the lame excuses of pirates who, despite having their flawed reasoning defeated time and time again, continue to try to justify being a thief.
What you're talking about would be perfectly correct for a criminal case. This is a civil case.

So....

YOU SUING ME ≠ ME GOING TO JAIL
    
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post #7 of 7
Quote:
Originally Posted by stargate125645 View Post
Intending to distribute copyrigted material is still wrong whether techinically against the law or not. Intending to commit a crime is a lesser crime in many, many other situations, so why not here? There is absolutely no reason to have files in a shared folder other than to make them available for sharing. There are easier, legal ways to transport files from one location to another than through a P2P program. Ignorance of the user is the only issue I can see here, and although ignorance shouldn't give you immunity to the law (especially when it is a matter of simple ethics like in this case), I wouldn't be opposed to first time offenders receiving a warning as well as instructions on how to get rid of the shared files.

And how is the RIAA downloading files from people not proof of distribution? Whether it should warrant the same penalties as the actual deed is another story, but this methodoloy for catching a criminal (or would-be criminal) works for prostitution, ticket scalping, and even for more serious issues such as preventing sexual predators. I'm not saying it's the best way to do things, but if it works for other crimes why not for this one as well? As long as the person isn't baited into giving up the files by the RIAA I see no reason to discount this as evidence of copyright infringement.

I now await the lame excuses of pirates who, despite having their flawed reasoning defeated time and time again, continue to try to justify being a thief.
Could I just ask how much music you listen to?
    
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