Jury deliberates file sharing case

[dj-chefron]

:jpshakehead:
A jury deliberates the first file-sharing trial
For years now, the recording industry has been suing its customers, and for years, it's been winning. Its victories didn't come in the marketplace or in the court of public opinion -- the industry's prospects are still grim and people still hate it -- nor did the victories occur in real courtrooms, either. Of the 26,000 file-sharing cases the industry has filed, most have been settled out of court, the labels strong-arming people into paying a few thousand dollars rather than risk huge legal fees and the possibility of million-dollar fines.

Until now. During the past week, a federal courtroom in Duluth, Minn., has taken center stage in the ongoing battle between the music business and the allied forces of sanity. The Recording Industry Association of America has accused Jammie Thomas, a 30-year-old mother of two from Brainerd, Minn., of downloading 1,700 files from Kazaa. The RIAA's suit seeks damages for 24 specific alleged downloads; if she loses, Thomas could face fines of up to $150,000 per violation. Three and a half million dollars.

The jury got the case this morning, and is deliberating upon it presently. While they're doing so, let's take time to note a couple interesting facts about the trial so far. First -- and does one even need to note this anymore? -- the recording industry did not come off well.

Among it witnesses was Jennifer Pariser, a lawyer for Sony BMG, who outlined a medieval definition of "stealing" music. On the stand, Pariser suggested that any copy of any song -- when you rip a song from a CD to a computer, when you transfer a song from a computer to an iPod, when you burn a CD as a backup, anything -- is theft. "When an individual makes a copy of a song for himself, I suppose we can say he stole a song," she said. Making one copy is "a nice way of saying 'steals just one copy.'"

But the RIAA is even stupider than we give it credit for, turns out. Not only does it have an outmoded definition of stealing, but as Pariser pointed out, it's willing to lose money to defend that notion. Suing customers has cost the record labels money, she admitted -- the legal costs have outweighed the cash the RIAA brings in through settlements. Yet it continues doing so.

None of this means that the RIAA has a losing case against Thomas. Indeed, as I read the coverage (great work, Wired News and Ars Technica!), I can't see how this can be anything but curtains for the mother of two. The RIAA has shown that her IP address downloaded the files in question, and that the username attached to the Kazaa downloads, Terrastar, was Thomas's username for getting into her computer, for her e-mail, for online shopping sites, and for her profile on Match.com.

Brian Toder, her attorney, said in his closing argument that the RIAA can't show that "this actual human being was behind the keyboard." He added, "There are, clearly, alternate explanations. We don't know what those alternate explanations are."

True, but the jury in Duluth is not so technically proficient. Per Ars Technica: "...two of them don't own PCs and have never used the Internet, and a third described himself as a 'total computer illiterate.'"

I don't know if Thomas is guilty. But the law is plain here: if she did the crime, she's up a creek. Not for her but for the rest of us, there could be a silver lining here: If Thomas is forced to pay an outrageous penalty for downloading 24 songs, perhaps it'll be the spark for Congress to take action.

Downloading two dozen songs shouldn't land you with a lifetime of debt. Let's agree with the music industry that it is "stealing." Last time I checked, stealing two CDs is petty theft. It shouldn't be any different for downloads.

[Moksha]

RIAA Jury Finds Minnesota Woman Liable for Piracy, Awards $222,000
By David Kravets October 04, 2007 | 4:34:32 PMCategories: RIAA Trial

DULUTH, Minnesota -- Recording Industry Association of America defendant Jammie Thomas was found liable Thursday for copyright piracy in the nation's first file-sharing case to go before a jury.

Twelve jurors here said the Minnesota woman must pay $222,000 in penalties. They could have dinged her for up to $3.6 million in damages. She was found liable for infringing 24 songs from bands such as Journey, Green Day, AFI, Aerosmith and others.

The verdict, coming after two days of testimony and after about five hours of deliberations, was a mixed victory for the RIAAA, which has brought more than 20,000 lawsuits in the last four years as part of its zero-tolerance policy against pirating. The outcome is expected to embolden the RIAA, which is targeting individuals in lawsuits after concluding the legal system could not keep pace with the ever growing number of file-sharing sites themselves.

Still, it's unlikely the RIAA's courtroom victory will translate into a financial windfall and stop piracy, which the industry says costs it billions in lost sales. Despite the thousands of lawsuits -- the majority of them settling while others have been dismissed or are pending -- the RIAA's litigation war on internet piracy has neither dented illegal, peer-to-peer file sharing nor put the fear into partaking individuals.

According to BigChampagne, an online measuring service, the number of peer-to-peer users unlawfully trading goods has nearly tripled since 2003, when the RIAA began legal onslaught targeting individuals.

At the time, BigChampagne says, there were about 3.8 million file sharers trading over the internet at a given moment. Now, the group has measured a record 9 million users trading at the same time. Roughly 70 percent of trading involves digital music, according to BigChampagne.

The case, however, did set legal precedents favoring the industry:

In proving liability, the industry does not have to demonstrate that the defendant's computer actually had a file-sharing program installed, and that the defendant was at the keyboard when RIAA investigators accessed Thomas' share folder.

Also, jurors may find copyright infringement liability against somebody solely for sharing files on the internet. The RIAA does not have to prove that others downloaded the files, which was a big bone of contention that U.S. District Judge Michael Davis settled in favor of the industry.

Thomas, who maintained she was not the username, Tereastarr, whose Kazaa files were detected by RIAA's investigators, maintained she was not the culprit. Her attorney speculated to jurors that she could have been the victim of a spoof, cracker, zombie, drone and other attacks.

The jury, without getting proof that Thomas was physically at a computer with Kazaa software and share files, found her liable after receiving evidence her internet protocol address and cable modem address were used to share some 1,700 files. The hard drive linked to Kazaa on Feb. 21, 2005 -- the evening in question -- did not become evidence in the case.

According to testimony, Thomas replaced her hard drive weeks after RIAA investigators accessed her share file and discovered 1,702 files. The industry sued on just 24 of those files.

[Doug]

:jpshakehead:

Biased reporting at best. And how can one not laugh at the defense attorney's argument? As clever as it is, the RIAA's evidence makes this case something lawyers like to call "res ipsa loquitur" i.e. the thing speaks for itself.

Do I feel bad that a mother of two may be saddled with a lot of debt if the RIAA wins? Yes. But if she wasn't a mother of two, few would feel sorry for her.

Regarding the RIAA's definition of "stealing"...in the context of copyright law, it is technically correct. Fair use protects private copying, but it is merely a defense to copying.

Let the flame war begin...

[Moksha]

Let the flame war begin...

No need for flames.

She stole music (and she knew it), and now she is paying the price.

[Doug]

RIAA Jury Finds Minnesota Woman Liable for Piracy, Awards $222,000
By David Kravets October 04, 2007 | 4:34:32 PMCategories: RIAA Trial

DULUTH, Minnesota -- Recording Industry Association of America defendant Jammie Thomas was found liable Thursday for copyright piracy in the nation's first file-sharing case to go before a jury.

Twelve jurors here said the Minnesota woman must pay $222,000 in penalties. They could have dinged her for up to $3.6 million in damages. She was found liable for infringing 24 songs from bands such as Journey, Green Day, AFI, Aerosmith and others.

The verdict, coming after two days of testimony and after about five hours of deliberations, was a mixed victory for the RIAAA, which has brought more than 20,000 lawsuits in the last four years as part of its zero-tolerance policy against pirating. The outcome is expected to embolden the RIAA, which is targeting individuals in lawsuits after concluding the legal system could not keep pace with the ever growing number of file-sharing sites themselves.

Still, it's unlikely the RIAA's courtroom victory will translate into a financial windfall and stop piracy, which the industry says costs it billions in lost sales. Despite the thousands of lawsuits -- the majority of them settling while others have been dismissed or are pending -- the RIAA's litigation war on internet piracy has neither dented illegal, peer-to-peer file sharing nor put the fear into partaking individuals.

According to BigChampagne, an online measuring service, the number of peer-to-peer users unlawfully trading goods has nearly tripled since 2003, when the RIAA began legal onslaught targeting individuals.

At the time, BigChampagne says, there were about 3.8 million file sharers trading over the internet at a given moment. Now, the group has measured a record 9 million users trading at the same time. Roughly 70 percent of trading involves digital music, according to BigChampagne.

The case, however, did set legal precedents favoring the industry:

In proving liability, the industry does not have to demonstrate that the defendant's computer actually had a file-sharing program installed, and that the defendant was at the keyboard when RIAA investigators accessed Thomas' share folder.

Also, jurors may find copyright infringement liability against somebody solely for sharing files on the internet. The RIAA does not have to prove that others downloaded the files, which was a big bone of contention that U.S. District Judge Michael Davis settled in favor of the industry.

Thomas, who maintained she was not the username, Tereastarr, whose Kazaa files were detected by RIAA's investigators, maintained she was not the culprit. Her attorney speculated to jurors that she could have been the victim of a spoof, cracker, zombie, drone and other attacks.

The jury, without getting proof that Thomas was physically at a computer with Kazaa software and share files, found her liable after receiving evidence her internet protocol address and cable modem address were used to share some 1,700 files. The hard drive linked to Kazaa on Feb. 21, 2005 -- the evening in question -- did not become evidence in the case.

According to testimony, Thomas replaced her hard drive weeks after RIAA investigators accessed her share file and discovered 1,702 files. The industry sued on just 24 of those files.


Not surprising at all.

[Doug]

No need for flames.

She stole music (and she knew it), and now she is paying the price.

I can't believe we actually agree on a copyright topic...:wink:

[dj-chefron]

Okay she violated copyright laws,but a few days ago there was a thread about tracking mix Cd's for sale.Now correct me if I am wrong but dont you have to pay royalties for the music you use.I know some of you have an ASCAP licence but can you say that for everyone.so tell me whats the difference between file-sharing and selling mix Cd's to the public without a licence or even playing in a public venue without said licence?

[Doug]

so tell me whats the difference between file-sharing and selling mix Cd's to the public without a licence or even playing in a public venue without said licence?

Nothing. But if you're asking me to account for some inconsistency in my position, then you're asking the wrong person. I didn't post in that thread about tracking CDs. And I have said on this board ad nauseam that distributing mix CDs without permission is illegal, whether you sell them or not.

[Moksha]

so tell me whats the difference between file-sharing and selling mix Cd's to the public without a licence or even playing in a public venue without said licence?

Nothing.

[martino]

Mother of two or not, this is bad for the music industry. Why? Because we have the Record Companies and RIAA being rewarded for futility. Instead of spending time and resources remodelling the industry (which it is serious need of), and adjusting the industry to new technologies (not so new now...), The only thing they are focusing on is: "technically, it's illegal, so stop doing it or we'll sue you some ridiculous amount so that you'll hopefully settle out of court..and if not, we'll win in court for even more money".

This is something to applaud? Hurray for RIAA. File sharing's been a problem since 2001 at least. 6 Years later, what have they come up with? Law suits and fake bit torrents to mess up people's computers. (NEITHER OF WHICH IS DOING ANYTHING IN THE BIG PICTURE)

Bankrupting someone over sharing files shows how the whole music industry does not see the forest for the trees.

DJ-Chefron's question is important, because legally nothing is different, but in reality there is a pretty big difference. Copyright law had never considered file sharing. And the whole music industry needs to be remodelled and laws defined to ajdust the technological advancements.

One shouldn't laugh at the defence. You have a private business finding out passwords on your personal computer in this case. Truth is anyone can do whatever they want on your machine (specially with wireless now). They didn't have the Hard Drive in question in this case anyway.

The industry will lose the war against files sharing (it's almost lost already), and this is confusing them that it can win with their flawed/non stategy.

[Doug]

Mother of two or not, this is bad for the music industry. Why? Because we have the Record Companies and RIAA being rewarded for futility. Instead of spending time and resources remodelling the industry (which it is serious need of), and adjusting the industry to new technologies (not so new now...), The only thing they are focusing on is: "technically, it's illegal, so stop doing it or we'll sue you some ridiculous amount so that you'll hopefully settle out of court..and if not, we'll win in court for even more money".

This is something to applaud? Hurray for RIAA. File sharing's been a problem since 2001 at least. 6 Years later, what have they come up with? Law suits and fake bit torrents to mess up people's computers. (NEITHER OF WHICH IS DOING ANYTHING IN THE BIG PICTURE)

Bankrupting someone over sharing files shows how the whole music industry does not see the forest for the trees.

DJ-Chefron's question is important, because legally nothing is different, but in reality there is a pretty big difference. Copyright law had never considered file sharing. And the whole music industry needs to be remodelled and laws defined to ajdust the technological advancements.

One shouldn't laugh at the defence. You have a private business finding out passwords on your personal computer in this case. Truth is anyone can do whatever they want on your machine (specially with wireless now). They didn't have the Hard Drive in question in this case anyway.

The industry will lose the war against files sharing (it's almost lost already), and this is confusing them that it can win with their flawed/non stategy.


Here's my question: What obligation do consumers have to respect copyright law? Because based on your post above, it sounds to me like the technological ease of copying some how excuses consumers from complying with copyright law.

Moreover, while the music industry did shoot itself in the foot early on, it has since adjusted, hence the rise of iTunes, the elimination of DRM for much of the music on iTunes, and a pledge by Universal Music to make its entire catalog of recordings free. Yet somehow, when record companies legitimately enforce their rights against the "poor, innocent" people who are just too destitute to pay .99 for a song, they're the bad guys. Right...

Look, I'll be the first to admit that record companies come off looking bad in cases like this one. But that's only because consumers and their supporters like to play dumb and pretend they're engaged in innocent, harmless activity. They aren't. Let's be real: Record companies have bent over backwards trying to make up for their initial fuck up in not recognizing the power of the internet and the need to give consumers realistic choices. And consumers are still dissatisfied because to them, music should be free.

[martino]

Here's my question: What obligation do consumers have to respect copyright law? Because based on your post above, it sounds to me like the technological ease of copying some how excuses consumers from complying with copyright law.

Moreover, while the music industry did shoot itself in the foot early on, it has since adjusted, hence the rise of iTunes, the elimination of DRM for much of the music on iTunes, and a pledge by Universal Music to make its entire catalog of recordings free. Yet somehow, when record companies legitimately enforce their rights against the "poor, innocent" people who are just too destitute to pay .99 for a song, they're the bad guys. Right...

Look, I'll be the first to admit that record companies come off looking bad in cases like this one. But that's only because consumers like to play dumb and pretend to be engaged in innocent, harmless activity. They aren't. Let's get real: Record companies have bent over backwards trying to make up for their initial fuck up in not recognizing the power of the internet and the need to give consumers realistic choices. And consumers are still dissatisfied because to them, music should be free.

True, there is massive movement to devalue music. Potential consumers feel it is their right to get shit for free now, because it's available for free. And now labels are practically giving away shit for free to react. I agree that that is a problem. And it is a fact that what people are doing is illegal.

I'm not sure about the bending over backwards bit personally. It seems like they've just now finally come to grips with reality of the situation...and it took a computer company to wake them up to begin with. Seemed like tooth and nail for way too long.

I just think/know the overall problem with the industry won't be solved by trying to scare people with these kind of fines. The amount that this woman was fined is ridiculous, even after they lowered it. Her intent should be taken in consideration. It's for personal use...even if the file is seeded to countless people. The prosecution's point about the illegality of copying the file no matter how (onto your ipod or cassette tape or CD) is also ridiculous...even if it's a fact on paper. If this is the mindset of RIAA, they've already lost.

I'm not really sure how to answer your question though. And the labels (with all their resources) don't seem to be doing a better job than i am with my rambling nonsense. I think it's time for a shift in focus from lawsuits to something more innovative is all i'm saying. The first article says they waste more money doing these legal excersises than they are making from any victories. If that's the case, then what is the point of all of this?

[ebot9000]

Mother of two or not, this is bad for the music industry. Why? Because we have the Record Companies and RIAA being rewarded for futility. Instead of spending time and resources remodelling the industry (which it is serious need of), and adjusting the industry to new technologies (not so new now...), The only thing they are focusing on is: "technically, it's illegal, so stop doing it or we'll sue you some ridiculous amount so that you'll hopefully settle out of court..and if not, we'll win in court for even more money".

This is something to applaud? Hurray for RIAA. File sharing's been a problem since 2001 at least. 6 Years later, what have they come up with? Law suits and fake bit torrents to mess up people's computers. (NEITHER OF WHICH IS DOING ANYTHING IN THE BIG PICTURE)

Bankrupting someone over sharing files shows how the whole music industry does not see the forest for the trees.

DJ-Chefron's question is important, because legally nothing is different, but in reality there is a pretty big difference. Copyright law had never considered file sharing. And the whole music industry needs to be remodelled and laws defined to ajdust the technological advancements.

One shouldn't laugh at the defence. You have a private business finding out passwords on your personal computer in this case. Truth is anyone can do whatever they want on your machine (specially with wireless now). They didn't have the Hard Drive in question in this case anyway.

The industry will lose the war against files sharing (it's almost lost already), and this is confusing them that it can win with their flawed/non stategy.

Right on.

At this point the tide has come in, it's time to build boat instead of complaining about the water.

Stef posted this article yesterday (http://freakonomics.blogs.nytimes.com/2007/09/20/whats-the-future-of-the-music-industry-a-freakonomics-quorum/index.html) which features 5 essays written by record industry stiffs about this very problem and what to do about it. They spend a lot of time complaining about what should have happened and finger pointing about who's fucking up, but some good points are made and you can see a lot of attention is starting to be paid to the next real step.

Suing moms for using soulseek is a good way to alienate your fanbase. These guys are really flailing with that one. I agree this woman was stealing - that everyone copying music is stealing - but we gotta figure this out some other way than running around ruining families.

Once you accept that the consumer will no longer pay for music you can start to imagine other ways to make money off of music. How can you give them free music and still make money?

That's the 6 millions dollar question and there's an answer to it...

[Doug]

True, there is massive movement to devalue music. Potential consumers feel it is their right to get shit for free now, because it's available for free. And now labels are practically giving away shit for free to react. I agree that that is a problem. And it is a fact that what people are doing is illegal.

I'm not sure about the bending over backwards bit personally. It seems like they've just now finally come to grips with reality of the situation...and it took a computer company to wake them up to begin with. Seemed like tooth and nail for way too long.

I just think/know the overall problem with the industry won't be solved by trying to scare people with these kind of fines. The amount that this woman was fined is ridiculous, even after they lowered it. Her intent should be taken in consideration. It's for personal use...even if the file is seeded to countless people. The prosecution's point about the illegality of copying the file no matter how (onto your ipod or cassette tape or CD) is also ridiculous...even if it's a fact on paper. If this is the mindset of RIAA, they've already lost.

I'm not really sure how to answer your question though. And the labels (with all their resources) don't seem to be doing a better job than i am with my rambling nonsense. I think it's time for a shift in focus from lawsuits to something more innovative is all i'm saying. The first article says they waste more money doing these legal excersises than they are making from any victories. If that's the case, then what is the point of all of this?

The cases are not brought to seek money. They brought to make people understand that you can't simply violate copyright law because you personally don't feel like you're doing any harm.

Downloading is the equivalent of someone walking into a 7-11, refilling their cup of soda, and walking out without paying, the thought being "hey they're 7-11; they won't miss it." At the end of the day, it's not the value of the thing taken or your perception of its value that makes it stealing (although the value of the thing taken will determine the kind of crime with which you can be charged); it's the fact that you took something without paying for it. I'm for calling a spade a spade and not trying to dress it up as innocent behavior, or worse yet, a noble endeavor in which people are engaged when they download music.

In terms of shifting the focus, I'm not sure what the innovation would be. I mean after you provide .99 downloads and make your catalog available at no cost, what's left to do? And why is there no obligation on the part of consumers to meet the industry half way?

[martino]

There are a few more things to try. How can they afford to not take some risks?

If the RIAA and the majors can't keep up with technology, then they need to jump ahead. Sony created the walkman before, it shouldn't be thinking outside the box for them to consider innovative technology. Instead it apple beat them to the punch.

So, why not introduce/flood the market with consumer ready (meaning very affordable) Super-CD players that have very high bit and sample rates which makes the files huge in size? Introduce an affordable entertainment system that goes with it. But make any of the mediums for reproduction/extraction retardedly expensive.

Or better yet, introduce/flood the market with lazer digital record players at an extremely low price. Practically give them away. Then release records with great art work, huge booklets and and all that...like the records we used to purchase. People will value their record collection again. If you really think about it, this all started with CDs becoming industry standard.

These ideas may be naive, but at least they are ideas. And i don't see how these labels with all their resources aren't taking these kind of risks and thinking on different levels. They need to get beyond the "punish them for copying = because it serves them right, and hopefully copying will stop".

The problem is no one believes there's much value to something that costs 99 cents, can be deleted or copied with the press of one button, has very little information attached, is compressed to the point of not sounding that great, and gets stored next to their porn collection. It's hyper-disposable now.

[ebot9000]

There are a few more things to try. How can they afford to not take some risks?

If the RIAA and the majors can't keep up with technology, then they need to jump ahead. Sony created the walkman before, it shouldn't be thinking outside the box for them to consider innovative technology. Instead it apple beat them to the punch.

So, why not introduce/flood the market with consumer ready (meaning very affordable) Super-CD players that have very high bit and sample rates which makes the files huge in size? Introduce an affordable entertainment system that goes with it. But make any of the mediums for reproduction/extraction retardedly expensive.

Or better yet, introduce/flood the market with lazer digital record players at an extremely low price. Practically give them away. Then release records with great art work, huge booklets and and all that...like the records we used to purchase. People will value their record collection again. If you really think about it, this all started with CDs becoming industry standard.

These ideas may be naive, but at least they are ideas. And i don't see how these labels with all their resources aren't taking these kind of risks and thinking on different levels. They need to get beyond the "punish them for copying = because it serves them right, and hopefully copying will stop".

The problem is no one believes there's much value to something that costs 99 cents, can be deleted or copied with the press of one button, has very little information attached, is compressed to the point of not sounding that great, and gets stored next to their porn collection. It's hyper-disposable now.

Your missing the overall direction of music since the 1960s. In that article Stef posted earlier (link in my post above) there is an essay I found really interesting.

People have actually NEVER cared about fidelity nearly as much as they care about convenience. This is how it's been since they invented LPs, which were way more convenient than 78s, but didn't sound as good. It continued with the advent of 8-tracks, cassettes, and CDs, all of which obviously sounded worse than LPs, but raised convenience up several notches. It's the same reason DJs don't spin vinyl any more! Convenience.

Offering people increased fidelity in place of convenient and free mp3s won't work.

There's an answer to this problem, but it won't come in the form of people going back to buying music. Time for a whole new model.

[Doug]

The problem is no one believes there's much value to something that costs 99 cents, can be deleted or copied with the press of one button, has very little information attached, is compressed to the point of not sounding that great, and gets stored next to their porn collection. It's hyper-disposable now.

That sounds like an excuse to me. Plus, it fails to explain why something like illegal movie downloading hasn't abated despite many of the value added features offered by movie studios on DVDs. Also, I'm not sure I see how making music more expensive and taking away flexibility in consumer purchasing will work. That's part of how the majors got in trouble in the first place. It might work for music connoisseurs, but the majority of the buying public can hardly be described as music connoisseurs.

[martino]

Your missing the overall direction of music since the 1960s. In that article Stef posted earlier (link in my post above) there is an essay I found really interesting.

People have actually NEVER cared about fidelity nearly as much as they care about convenience. This is how it's been since they invented LPs, which were way more convenient than 78s, but didn't sound as good. It continued with the advent of 8-tracks, cassettes, and CDs, all of which obviously sounded worse than LPs, but raised convenience up several notches. It's the same reason DJs don't spin vinyl any more! Convenience.

Offering people increased fidelity in place of convenient and free mp3s won't work.

There's an answer to this problem, but it won't come in the form of people going back to buying music. Time for a whole new model.

I am missing the direction. I never realized Convenience came first.

One thing is the fact that sales of NEW music had been declining before file sharing became a problem . People in the 90's and late 80's were mostly re-buying their vinyl/tape collection onto CD when cd players dropped in price. So it was like a false indicator of the state of the music industry. I'm suggesting those previous ideas due to the fact that it worked once already. The people in stef's article do make some good points. Mainly the issue of singles and convenience.

Doug, it may sound like an excuse, but i'm pretty sure that it's the mentality of purchasing an invisible product for next to nothing. If it's not tangible or doesn't take up "real" space, it's very hard for people to associate value with it...especially if it's cheaper than a bag of chips. I know this doesn't change the legality of it. The law says it's stealing, so it's illegal. I'm saying on one hand you have labels that are filing massive charges against people , and on the other hand they're practically giving away the music for free. I just don't see how this helps anything.
Sadly, it may be too late to reassociate music with monetary value, but these lawsuits aren't helping anyone.

[GROOVE VICTIM]

"Copyright law is by its very nature anti-consumer. It cannot be otherwise and adequately do its job. "


Understand that statement and you'll see why it's hard to prove or justify otherwise.

Peace

[FK]

About the lawsuits: The damages are not for tangible goods, the person doing the file-sharing
was not making any money from any of it, so just as with the hated Rockfeller drug laws, the punishment
does not fit the crime, it is only a testament to the power of the lobbyists who bent the laws to have them
interpreted in such a strict manner.

FK

[dj-chefron]

This blog is a interesting read

Shelly Palmer| BIO | I'M A FAN OF THIS BLOGGER
If the RIAA wins, you really lose!
Posted October 12, 2007 | 11:15 AM (EST)


--------------------------------------------------------------------------------

Breaking Media News



Last week the RIAA won its lawsuit against Jamie Thomas, a Minnesota woman who put 24 songs in her Kazaa shared folder. The judgment, now being appealed, was for $222,000 ($9,250 per song). It's a big number, and because it's so big, it is excellent fodder for sensationalists on both sides of the issue.

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The dust has settled a bit, so I thought it would be instructive to think about how the outcome of this case, known as Virgin v. Thomas (Renamed Capital v. Thomas after Virgin withdrew from the case) might affect the owners and consumers of digital content in the near future.

I am not a lawyer, but I have spoken to several lawyers and learned, interested parties this week about the nuts and bolts of this case. (You can hear my conversation with Ray Beckerman, Esq. at http://www.shellypalmerpodcasts.com)

A couple of things really helped the RIAA win. Ms. Thomas's lawyers tried to claim IP spoofing but, sadly, she used the prefix of her email address as her Kazaa login. The argument was rejected out of hand. And, because she used her home computer, it was child's play to map the IP (Internet Protocol) address right to her. Ms. Thomas was clearly not a computer genius or a hacker. She was just an ordinary person doing what ordinary people tend to do online and she left a serious trail of electronic breadcrumbs.

Then, according to Mr. Beckerman, the jury was given incorrect instructions, which helped the RIAA's case. Jury Instruction 15 said, "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown."

This notion of "making available" is a position the RIAA has taken before, but it is not part of the existing copyright law. In fact, upon reading the text, you will notice that the notion simply isn't there. Let's have a look at the relevant part of the federal copyright law:

17 USC 106: 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

You really don't need to be a lawyer to read and understand that items one and three are pertinent to this case. Thomas put some songs in her "shared folder," if nobody downloaded them, how can she be responsible for "reproduction" or "distribution?"

I don't want to get bogged down in the interpretation of the law, you can find several excellent articles by googling the topic and dig as deeply as you like. The slightly ambiguous legal argument is centered around the concept of "publication." The US Supreme Court says that "publication" and "distribution" are the same thing. Other courts disagree. Like I said, I'm not a lawyer and if these legal distinctions are of interest to you, you should buy your favorite copyright barrister a beer or two and have at it.

For me, the story gets scary if "making available" becomes actionable or illegal. Here's why.

There is no legal difference between putting a song in my P2P Network shared folder or in my public FTP folder or in my "documents" folder. If the content is stored on a personal computer that is connected to the public Internet and I have not properly configured my security settings, the content in any directory (possibly my entire hard drive) might be "made available" to the public.

Lawyers will tell you that "intent" to violate the copyright law is not all that important to this kind of copyright case. My attorney calls it a "strict liability offense" which means that even if you make something available by accident, you are still liable.

Can you imagine how some companies might abuse the power of the copyright law to torture absolutely innocent computer illiterates? If this "making available" decision stands, not knowing how to configure your firewall or not setting a password for your home WiFi network might get you hit with a $222,000 penalty from the RIAA. This feels unfair in the extreme -- but it's the logical outcome if the RIAA ultimately prevails in this case.

I would urge you to get into this discussion. Intellectual property is a significant store of economic value, and content owners need and deserve the best protection we can give them. But we also need to be mindful of fact that the public Internet is an open network with hundreds of millions of computers attached to it. And, to state the obvious, the vast majority of them are not secure. This situation won't change unless you personally get involved. Please contact your elected officials and tell them where you stand on the issues. We elect them and they make (and change) our laws -- but they can only do that if they hear from you!

Shelly Palmer is Managing Director of Advanced Media Ventures Group LLC and the author of Television Disrupted: The Transition from Network to Networked TV (2006, Focal Press). Shelly is also President of the National Academy of Television Arts & Sciences, NY (the organization that bestows the coveted Emmy® Awards). He is the Vice-Chairman of the National Academy of Media Arts & Sciences an organization dedicated to education and leadership in the areas of technology, media and entertainment. Palmer also oversees the Advanced Media Technology Emmy® Awards which honors outstanding achievements in the science and technology of advanced media. You can read Shelly's blog here. Shelly can be reached at shelly@palmer.net