A legal brief submitted by an attorney representing The Motion Picture Association of America states that intellectual-property holders should have the right to collect up to $150,000 per violation without having to actually prove copyright infringement, Wired reports. The MPAA attorney, who seems to feel very inconvenienced by the whole “due process” thing writes, “It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement.” Details, inside…
This document is among other briefs submitted to a judge overseeing the Jammie Thomas trial, the only RIAA case ever to go to trial. Thomas was sued by the RIAA for $222,000 for “making available” 24 songs on the Kazaa network. At the time, Judge Davis instructed jurors that they only needed to find that Thomas had an open share folder and not that the songs were actually copied or transferred. However, the judge has since suggested that he made have made a mistake in giving this instruction and is deciding whether to order a mistrial.
The article says,
The deadline to submit briefs to the judge was Friday. Among the briefs, the Electronic Frontier Foundation, Public Knowledge, the United States Internet Industry Association and the Computer and Communications Industry Association all jointly filed a brief, saying the law did not allow damages for “attempted” copyright infringement.
“Given the serious consequences that flow from copyright’s strict liability regime, the court should resist plaintiffs imprecations to expand that regime absent an unequivocal expression of Congressional intent,” the groups wrote, noting that the language in the Copyright Act demands actual distribution to the public of protected works.
It was a similar brief in tone to the one that a group of 10 intellectual property scholars lodged earlier in the week.
But the MPAA, long an ally to the RIAA, which has sued more than 20,000 individuals for file sharing of copyrighted music, told Judge Davis that peer-to-peer users automatically should be liable for infringement.
“The only purpose for placing copyrighted works in the shared folder is, of course, to ‘share,’ by making those works available to countless other P2P networks,” the MPAA wrote.
It is absurd that lawyers, of all people, believe we should live in a society where clear and concrete proof needn’t be necessary to establish one’s guilt. Proving cases of copyright infringement is far from impossible. It is only a matter of spending the proper amount of time and money to do so.
MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits [Wired]
Capitol v. Thomas [Wiki]
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@EricaKane: @Geekybiker: Depends on the state. Some have concealment = shoplifting rules. Others do not.
I hereby accuse everyone on this site who posts today of copyright infringement. My reason for doing so??? Well, you all must be using a computer and therefore you have the ability to use P2P file sharing programs and are liable for potentially doing illegal things.
I use Limewire and download all I want…..I do buy CD’s from those artists that are not jerks and think they are high and mighier than anyone else.
@HeartBurnKid:
You are right, that lives are at stake with respect to premeditating murder. However, the slippery slope that many went down with the “Let’s throw out the constitution” meme is quite a stretch. So, my point was made; there is a precedent for such a thing. It is the severity of the act that matters.
@anatak: Drug dealers keep books on all of their dealings – buying and selling
Apparently you never read Freakonomics. See chapter 3.
See: Gitmo.
At my office, lots of people bring books into work and leave them in the kitchen so that others can read them.
Couldn’t the publisher’s of these books bring the same charges against the ‘sharers’ since anyone could take the book and photocopy it?
So this is a little bit of technical semantics here, but you don’t have to be sharing with a peer to peer group to have a share file. You could have a local network. For example, I “share” between my laptop and desktop computers. Just because the file exists does not mean that it is intended for piracy. Since I own both machines and, one of them can store alot more, I am often uploading from the larger machine to bring with me on my laptop. It is a leap of logic to assume that that shared folder is intended for the general public.
@msbask: Of course they can, and that’s what the RIAA and the MPAA don’t tell you when they call P2P “stealing”.
We’ve been sharing information since the beginning of time. The internet just makes easier to do on a global level. The problem is that we’ve spent the last century monetizing the idea of “intellectual property”, and now there are entrenched interests resisting the change back to the earlier ways. They’ll fall by the wayside eventually.
@LouSir: “As the first post stated so well, an attorney advocates the position of his client, not his own. The attorney does not need to believe in the client’s views to bring an action. He cannot bring an action on his own, unless your Jack Thompson and we see what has happened to him.”
That’s not entirely true. It’s unethical and censurable (under FRCP) for attorneys to bring cases they know have no basis. These attorneys KNOW that the cases they’re bringing don’t meet minimum standards to file, and they bring them anyway. That’s wildly unethical.
As an attorney myself, I completely agree with Jay’s last comment. Attorneys should NOT participate in the undermining of our legal rights. It’s wrong.
If no proof is needed does that mean I can sue the **AA? I mean they dont have to prove it so why should I?
@msbask: That’s a pretty daft statement.
@msbask:
No, it’s a different subject with that. Sharing an original copy (e.g., giving your friend a CD you bought) is not copyright infringement.
With file sharing, you are keeping the original digitized copy and allowing someone else to have a copy when you use a P2P network.
[en.wikipedia.org]
@Witera33it: It’s redundant statement though. This particular legal brief is specifically referring to shared folders made available to P2P networks. It’s being said that having a shared folder open to Kazaa implies intent, as it has no other function.
@Jesse: Ah, but somebody could go into the breakroom, take the magazine I left there, and go right to the copy room and make photocopies out of it. Just like somebody could download the tracks that are in a shared folder.
So, again, it seems like, applying the RIAA/MPAA’s rules, leaving books and magazines in the break room would be infringement.
perhaps I should claim my innocence with no proof either!
*Scoff* that whole due process thing is a pain isn’t it?
@Eyebrows McGee:
“That’s not entirely true. It’s unethical and censurable (under FRCP) for attorneys to bring cases they know have no basis. These attorneys KNOW that the cases they’re bringing don’t meet minimum standards to file, and they bring them anyway. That’s wildly unethical.”
Not quite. If the attorneys have a colorable argument for the extension of legal doctrine, they could definitely file an otherwise deficient lawsuit without there being any ethical issues. (In other words, their position is: “I may not satisfy the elements of the action as it’s currently defined, but just wait until I get it redefined!”)
And why shouldn’t they sue us without proof? It’s their American right! Whoo!
@Magnakai Haaskivi: Does the chair know we’s gonna look like some punk-ass bitches?
@Applekid: Murder and sexual abuse, in the two examples provided, are not even close to piracy on any reasonable person’s scale of morality.
The UN is still trying to wrap its head around that idea: “The United Nations and its member states seem to finally be recognizing that systematic mass rape is at least as much an international outrage as, say, pirated DVDs.” [www.nytimes.com]
@SuffolkHouse: I am not a lawyer, but my understanding is that someone who is conspiring to blow up a school is not arrested for blowing up a school: they’re arrested for conspiring to blow up a school. “Intent to commit crime” sounds like something I’ve heard before.
Now, if you will allow me to enter the no-spin zone—because this article is full of spin—the real question here is whether or not making available constitutes copyright infringement. Some say no, that based on the way the current law is written, simply offering a file for distribution is not infringement.
But it sounds like a gray area. Let’s say I buy a bunch of DVDs. I put them in a Redbox-style vending machine that offers duplicates to anyone who wants one. Does someone actually have to duplicate a DVD for my endeavor to qualify as infringement?
I think that’s the question here.
Hey MPAA!
BAAAAAAAAWWWWW!
@HeartBurnKid: Are they making the original available for download or a copy by putting it in a shared folder?
QQ
I’m not a lawyer, but doesn’t the plaintiff have to show damages? If so, what exactly are the damages? As far as I’m concerned, there are no damages by making a file available in a shared folder. No one was hurt, no money was lost. The lost income is purely fictitious. It is not due to a shared folder of MPG/MP3 files. If I can’t find the music I want by P2P, I don’t order the CD. I do without. And so do most people. This is the same argument that Designers used against copy watches and leather goods. The people who buy them would not have purchased the real thing. The damages are fake.
@LouSir: It is absurd to call anyone who writes for Consumerist a “journalist.” In journalism they actually investigate stories, talk to those involved, try to balance the issues.
Consumerist writers typically just post whatever comes their way and add a knee-jerk reaction.
@vastrightwing: Except the designers actually have more case there, in that the copiers are profiting off their brands. Unless someone’s dumb enough to try and advertise (and make money from) copyright infringement, they ain’t making money. Hell, The Pirate Bay sells ads, but that doesn’t even cover operating expenses, if I’m correct.
@vastrightwing: As far as I’m concerned, there are no damages by making a file available in a shared folder. No one was hurt, no money was lost. The lost income is purely fictitious.
I’m not a lawyer either, but that’s not how copyright law works. See
“Statutory Damages” in Copyright Law and the MP3.com Case [GigaLaw.com]. Good luck with that defense when you the finger targets you.
@vastrightwing: As far as I’m concerned, there are no damages by making a file available in a shared folder. No one was hurt, no money was lost. The lost income is purely fictitious.
I’m not a lawyer either, but that’s not how copyright law works. See “Statutory Damages” in Copyright Law and the MP3.com Case [GigaLaw.com]. Good luck with your defense when the finger targets you.
@anatak: “Drug dealers keep books on all of their dealings – buying and selling – as well as the full names and addresses of sources and customers. “
this is actually kind of true.
Check out the chapter in Freakanomics about it.
@anatak: You’re missing the point, goofy. In the case of dealing drugs, there are specific laws that allow you to be charged as a drug dealer absent any evidence that you actually delt. If you have more than x of substance y in your possession, the law says you’re a dealer.
However, with copyright infringement, there is no such law. The actual law says that you have to have distributed the works. Simply having them in your shared folder is clearly evidence that you intended to distribute, but it is NOT evidence that you actually distributed. Do you see the difference here, scooter? There is no law that says you are guilty of copyright infringement for putting the material in a shared folder. They really do have to prove distribution. Making available for distribution and actual distribution are two entirely different things.
@Michael Belisle: I am not a lawyer, but my understanding is that someone who is conspiring to blow up a school is not arrested for blowing up a school: they’re arrested for conspiring to blow up a school. “Intent to commit crime” sounds like something I’ve heard before.
I’ll throw in the standard, “Not a lawyer, but…” clause here…
My understanding is generally you have to show intent to harm in order to push conspiracy or intent charges. You can’t be charged with intent to blow up a school for being stupid and mixing the wrong chemicals together in chemistry class…
Also, those are generally criminal proceedings… I’m not sure there’s anything similiar in civil procedings… generally you have to show a loss… so if someone tries to steal your car, but the cops show up and drag him off, he can be charged for trying to steal your car, but you can’t sue him, because there were no damages… if he steals your car and then it vanishes, you can try to sue for your losses…
Of course a lot of this assumes that intellectual property rights, which are hard to transfer over to concrete analogies… remember, according to the RIAA someone listening to one of my CDs in the same room with me is stealing…
i’d like to know what the lawyers were snorting, smoking, or shooting when they came up with this one.
@Jmatthew: Also, those are generally criminal proceedings… I’m not sure there’s anything similiar in civil procedings… generally you have to show a loss…
That’s exactly where my point about how I think statutory damages come in. Under the current law, the RIAA doesn’t need to prove that they suffered a loss. They sue for statutory damages, and the judge or jury sets the amount.
When it comes to some p2p programs…. once you have downloaded something….it automatically goes onto a “shared folder” & is shared. And many people do not know that they are actively sharing it with the rest of the world. This does NOT necessarily show “intent” to distribute.
I hereby commission my lawyers to sue every other lawyer for the mere sake of them existing. The proceeds are to be used to fund yet more lawyers to sue other lawyers. The proceeds from that are again used to fund more lawyers to sue other lawyers. At some point, the rest of the world evaporates….. and all we will have left is the MPAA and one rogue copy of ‘Father Knows Best’.
@forgottenpassword: “I only meant to consume pirated material, not distribute it” is a pretty flimsy defense.
Unbelievable. They might as well sue everyone who uses P2P for legal uses, or why not just sue anyone with an Internet connection?
@anatak: however in all of those cases you presented, there was evidence that they committed the crime. in this case, they’re saying that there is absolutely no evidence, merely speculation, of a crime. am i misunderstanding something?
@Jmatthew: I agree with your statement.
The MPAA pisses me off so bad I want to swear. They’re so evil and they get away with it. They make Monsanto look benign.
@pigeonpenelope: Having just read Eating In the Dark, I’m not sure Monsanto’s physically capable of looking benign in ANY context.
I say let’s go to the same court if that is upheld and sue the MPAA for copyright infringement for every movie ever made. Since no proof is needed for infringement, it should be an easy win.
The simple answer to the problem of copyright infringement is for the owners to never publish their products. This way there will be nothing to shear and nothing to copy. I haven’t bought a CD in over seven years, because there are no stores that sell them. I could go on the internet and by a poor quality copy, that in no way even meets the level of the records of olden days. Soo I vote for zen music, the sound of no sound.
Encrypt your systems. I mean the entire hard drive. There are free programs available for both Macs and PCs to accomplish this. If they want to prove, (or claim they have proof), of distribution or even “intent” by way of a shared folder, the first thing they have to do will be to break NSA grade encryption.
I’m not distributing anything but I do put a high priority on my personal privacy. My systems have all been encrypted since 1999. The RIAA / MPAA might be ruthless, but i seriously doubt they are going to spend the time and money on trying to crack HD encryption. It’s a pointless endeavor. It would take a team of Cray’s a few billion years to bust it, unless they got extremely lucky.
You do have control over your own systems. Stop giving the RIAA the rope to hang you with.
@Dakine: Or a judge can order you to decrypt it and allow them access. Then what?
So, because there’s no proof, that means there DEFINITELY is proof of copyright infringement? I don’t see how that works.
@Moosehawk: It’s that whole “absence of evidence” vs. “evidence of absence” thing. Ask Rumsfeld.
@aikoto: The judge can not order you to decrypt your system, this falls under the 5th amendment. If the decryption will incriminate you, you do not have to go through with it.