The MPAA Says They Shouldn't Need Proof To Sue You

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]

Comments

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  1. EricaKane says:

    Oh cmon. The lawyers do what the MPAA tell them to do.

    Prosecute their case with vigor. Anything less than that, and a lawyer is not doing their job.

  2. mmstk101 says:

    In related news, I’ve decided to sue the MPAA for 100 billion dollars for infringing . . . . on something . . . .

  3. Nogard13 says:

    I say we all file $149,999.99 infringement violations against the MPAA without stating what proof or evidence we have that they ripped us off with ideas for movies. According to their lawyers, they should have to pay up, right?

  4. HIV 2 Elway says:

    Yesterday a self righteous douche brought a pirated copy of the new Indiana Jones movie over to my neighbors. Who can I turn the smug asshole in to?

  5. If there’s no proof, how do /they/ know it happened?

    She’s a witch, I say! Burn her!

  6. leprofie says:

    With the current level of unsophisticated computer users, and with music being automatically placed in a shared music folder, having copyrighted music in a shared folder is the norm. My daughter had a college internet account suspended because of the music files (that came with the computer) in a shared music folder whenever she logged onto the college network. She had no idea about shared folders and had to be walked through the process of closing shared folders.

  7. PHX602 says:

    Perhaps the MPAA should change their slogan to:

    “Fuck you, pay us.”

  8. WrighteousMetsFan says:

    22 songs on the Kazaa network? Are they also planning on suing me for video taping the 2002 World Series without the express written consent of MLB? Jeez.

  9. B says:

    Dear MPAA Attorney
    I’m intrigued by your ideas, and would like to subscribe to your newsletter.

    Yours in “Truth,”

    The Justice Department.

  10. dallasmay says:

    Come On Lawyers!!! Won’t some one out their PLEASE sue the MPAA lawyers for Copywrite infringement on the same principals?! If you don’t need proof than their guilty too.

    $150,000 please!

  11. rekoil says:

    Guess what? Drug dealers (at least, the smart ones) don’t keep records of their illegal transactions either. Nor do muggers, for that matter…

  12. ibored says:

    Whats really disturbing is that the Judge in the case bought into this in the first place and used it in the jury instruction. Its a positive sign that he is correcting his mistake but the simple fact that he allowed it in the first place is very very bad for the rule of law. The law is suppsoed to have a positive affect on the lives of citizens and protect them from big business, not vice versa. If the courts reversed this waky trend that corporations are ‘people’ I dare say the consumerist woudl quickly become irrelevant from lack of current material…

  13. Letsgohokies says:

    I’m suing for the hour and a half of my life that I’ll never get back for watching “The Happening”

  14. speedwell (propagandist and secular snarkist) says:

    @Nogard13: Thread win.

  15. Televiper says:

    The Wired article has a bit of spin on it. The lawyer is suggesting that copyright infringement should include instances where you’re explicitly making copyrighted material available. It’s similar to the change of “possession with intent to traffic” when you’re caught with 2 kilos of coke and a list of clients. He’s saying that, having a shared folder, and making it available shows that kind of willful intent. You would still need proof that there is a shared folder, that the material made available in the folder is copyrighted, that the folder has been made available, and that folder is on the defendants computer.

    That being said I think it’s wrong. It obviously favors legal assaults on the small guy where the level of infringement is so small, it’s undetectable.

  16. mizj says:

    I’d like to sue the MPAA for releasing gems like “I Know Who Killed Me,” “Howard the Duck,” “Catwoman,” etc. Also, we should get additional damages for any Madonna or J.Lo vehicle foisted upon us.

  17. Boatski says:

    If the price for a movie or CD wasn’t so damn high then there wouldn’t be ANY problems. Who the hell wants to pay $12-$15 for a CD in which not all songs will be very good. Sure, you can use iTunes, but a lot would like to have the physical disc.

    Same goes for movies. $15-$18 for a DVD, $25-$40 for a Blu-Ray, and $~5 to rent a movie.

  18. zentex says:

    fuck it, screw the whole ‘due process’ crap and lets live in a world controlled by corporations and government oversight.

    well…we’re almost there.

    I love how lawyers will try anything to win without thinking ahead of the consequences their actions and the resulting precedent will set for future, unrelated cases.

  19. HIV 2 Elway says:

    @mizj: Lave Howard the Duck out of this.

  20. LatherRinseRepeat says:

    I find it odd that the penalties for “stealing” music/movies on P2P is more steep than actually stealing a CD/DVD from the store.

  21. donkeyjote says:

    @rekoil: That’s illegal. Tax fraud.

  22. HIV 2 Elway says:

    @HIV 2 Elway: Leave, asshole

  23. acknight says:

    @Televiper: Yes, but is there an analogous copyright infringement with intent to traffic charge?

  24. evslin says:

    @zentex: That includes the stunt the RIAA pulled with dropping one dead-end case against somebody only to refile it in hopes of getting it put on a different judge’s desk. If anything these jokers are showing the whole country how anybody with a ton of money can game the legal system.

    We need more good guys like Ray Beckerman on the job to help protect citizens from their own court system, and that’s sad.

  25. SuffolkHouse says:

    Is this really unprecedented?

    Does a child need to kill someone in order to be arrested while caught planning to blow up her school? No.

    If I hire someone to shoot my spouse, I can be arrested though she isn’t yet harmed.

    What if I’m stuffing clothing into my underpants at the GAP. Can I be arrested before I walk out?

    Ah, but here’s a question – if I participate in a NAMBLA pedophile P2P, can I be arrested BEFORE I download pics or without evidence of downloading them?

    Should the laws protecting copyright be MORE aggressive than anti-pedophile legislation?

    Just thinking here. I’m not a lawyer.

  26. ne1butu says:

    “Yesterday a self righteous douche brought a pirated copy of the new Indiana Jones movie over to my neighbors…”

    The entertainment industry has become fat-and-happy selling crap to consumers and following an antiquated marketing and sales model. In the 80s, you’d have to spend $25 on a CD with one decent track and 12 lame ones and, until the mid 90s, if you wanted a copy you’d have to settle for a poor quality cassette. Record companies needed the technology to stay old-school for their sales model to work. Even in the 90s, consumers begged for online music but the music industry refused, creating an underground demand on P2P networks and making it clear that music has no intrinsic value. Even after Apple was successful selling tracks for 99 cents, the big music companies still held back until they were nearly bankrupt. Now the RIAA is getting their rocks off by suing grandmothers and teenagers. The reality is that music is worth, at the max, only $.99 per track. To many people, the music on their iPods is worth absolutely nothing, and the availability of free music has opened up new artists that wouldn’t have otherwise been purchased. The music industry needs to stop this obnoxious, greedy harping and change their business strategy. Maybe it means less profit for them, but we live in a country where consumer demand determines the value of the products we buy. And it’s clear that the value of the products the music industry is selling is worth substantially less today that it was twenty years ago.

  27. anatak says:

    “copyright infringers typically do not keep records of infringement.”

    Right. Thieves usually have detailed journals of the houses they’ve broken into along with what was stolen. Car thieves typically keep record of what cars they stole, when, and the chop shop that they sold it to. Drug dealers keep books on all of their dealings – buying and selling – as well as the full names and addresses of sources and customers. These records are usually found in plane sight in the criminal’s home or on their person at the time of questioning, bearing the label of “CRIMINAL ACTIVITY LOG”.

    Copyright infringement really should get special treatment.

    *Puke*

  28. SuffolkHouse says:

    @mizj:

    Sue them for Ishtar!

  29. Televiper says:

    @acknight: There isn’t. The lawyer is suggesting there should be one. His reasoning is that “shared folders” have an obvious function, and there is a considerable step in proving actual distribution.

  30. privatejoker75 says:

    AMERICA….FUCK YEAH

  31. quirkyrachel says:

    You know, I once connected to a P2P network and I’m pretty sure it was the MPAA that copied some of my songs. Well, no. I don’t actually have evidence…but who needs that?

  32. Bladefist says:

    Of those who are bitching, how many of you still go to the theater and watch movies? I myself have boycott the theater, and refuse to see any movie that is made by the companies that front the MPAA. I do have netflix, but, I think they make a lot less money off me that route.

    However, I will be temporarily lifting my ban on theaters for the new batman movie. I know, I’m weak, but, come on, its Batman.

  33. InThrees says:

    Corporate-Fascist power play occurring.

  34. loganmo says:

    Kramer: I think we are looking half a millimeter.

    Elaine: Can it cut that thin?

    Kramer: Oh, I’ve cut slices so thin, I couldn’t even see them.

    Elaine: How did you know you cut it?

    Kramer: Well, I guess I just assumed.

  35. Greasy Thumb Guzik says:

    @EricaKane:
    But the lawyers are required under Rule 11 of the Federal Rules of Civil procedure to certify that their client has a prima facie case.
    If they have filed this suit & have certified the case under Rule 11, the judge can hold them in contempt, although it’s rare & unfortunate that any judge ever does this.

  36. Trai_Dep says:

    It’s amusing (and gratifying) to see the Judiciary gradually wake up, like a Walt Disney cartoon of Sleeping Beauty. Kudos to the Defense to patiently explaining how these P2P networks work, and the holes in the MIAA argument.
    You mean you actually need to prove that something was actually taken?!
    In a court of law?!
    I’d add to that: prosecutors (or the MIAA) would have to prove that if the defendant had the King James bible on his P2P directory, they’d have to prove that, as a result, someone else received a KJ copy in its entirety.
    Otherwise, they’re suing for Grand Theft Auto, when only a lug-nut was “taken”.

    (“Taken” being a topic for another conversation.)

  37. LouSir says:

    “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 time and money to do so.”

    It’s absurd that in this day and age “journalists” do not know the function of a lawyer! 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.

    Please refrain from lawyer bashing until you understand that which you bash.

  38. Applekid ┬──┬ ノ( ゜-゜ノ) says:

    @SuffolkHouse: Murder and sexual abuse, in the two examples provided, are not even close to piracy on any reasonable person’s scale of morality.

    The whole concept of piracy = theft assumes that those who pirate would otherwise buy, which is absolutely not the case, so even the comparison between piracy (not really any property lost) and shoplifting (property is now lost and cannot be sold) is flawed.

  39. Trai_Dep says:

    @SuffolkHouse: There are laws on the books that make it illegal to attempt murder. Not so for this case.

  40. axiomatic says:

    Whatever…. I just don’t really care anymore. I’ve learned to live without the MPAA and RIAA product.

    Congrats MPAA/RIAA you’ve opted for irrelevance. Hope you can turn a profit on irrelevance. Good luck with that…

  41. Scoop11 says:

    Personally I would sue the MPAA for having a crapy ratings system that confuses more parents than helps them.

  42. @anatak: “Is you taking notes on a motherfucking criminal conspiracy?”

    /Stringer Bell’d

  43. HeartBurnKid says:

    @SuffolkHouse:

    Is this really unprecedented?

    Does a child need to kill someone in order to be arrested while caught planning to blow up her school? No.

    Of course not. Lives are at stake.

    If I hire someone to shoot my spouse, I can be arrested though she isn’t yet harmed.

    Again, lives are at stake.

    What if I’m stuffing clothing into my underpants at the GAP. Can I be arrested before I walk out?

    Actually, no you can’t. It’s not shoplifting until you leave the premises.

    Ah, but here’s a question – if I participate in a NAMBLA pedophile P2P, can I be arrested BEFORE I download pics or without evidence of downloading them?

    Should the laws protecting copyright be MORE aggressive than anti-pedophile legislation?

    No, they shouldn’t. I put protecting record companies’ outdated business model pretty low on the priorities list, much lower than protecting children from people who want to diddle them.

  44. milqtost says:

    @acknight: I’ve always found this amusing too (in a sad panda kind of way). The reason is obvious – when someone shoplifts the disc, RIAA and MPAA don’t lose any money as the store already bought it – it’s the store that is out the money.

  45. mike says:

    @WrighteousMetsFan: Did you only have implied oral consent?

  46. Geekybiker says:

    @SuffolkHouse:
    Well for shoplifting I’m pretty dang sure that you have to attempt to leave the store for it to be considered shoplifting legally. You might get in some *other* sort of trouble for stuffing things into your underpants though. Vandalism perhaps?

  47. EricaKane says:

    @Greasy Thumb Guzik First, this issue dealt with jury instructions approved by the Judge and sent to the jury, not filing a new case.

    I’m sure the RIAA or whoever else has enough evidence (i.e. logs) to prove that something happened, or else the jury wouldn’t have taken 5 minutes or so to find this woman liable.

    That being said, the Judge realized there was a problem with his instructions and didn’t want to get reversed on appeal.

    There was a good faith reason for including that language in the jury instruction (i.e. the other case since vacated) so it is not an unreasonable extension of the law.

  48. ne1butu says:

    @Applekid:

    Agreed. Planning to commit murder and “planning to exchange music” aren’t even remotely the same. Murder is illegal and always has been. Exchanging music has been, until very recently, perfectly legal. Even today, only the RIAA and their cherry-picked judges consider it to be unlawful to exchange music. However the marketplace has not made this determination. The music industry is fighting and failing to keep itself relevant. Music will continue to exist with or without middlemen selling to consumers. Either the music industry needs to embrace what consumers are saying, or they need to get lost.

  49. EricaKane says:

    @Geekybiker: Actually I think concealing goods in the store is a shoplifting crime as well.

  50. bohemian says:

    I thought these cases were civil cases not criminal. If that is the case none of the comparisons to other crimes matter because this isn’t being considered a crime.
    It is one party whining they want money from another party for supposed damages. The supposedly damaged party should have to prove and have evidence they were damaged.
    IE: computer forensic proof actual distribution happened. They also are not going after downloaders but uploaders who are not making any profit from any supposed distribution. I also have issue with the dollar amounts. Maybe they should be limited to suing for the face value of the DVD for each time said person allowed a download from their P2P share file but only with concrete proof of such. When they can only nail someone for their actual losses of say $14.00 x 2 downloads for a total of $28.00 the MPAA would quit trying to make an example of people and suing them for huge sums of money.

    They are doing this to try to scare people out of fear that they number will come up, this has nothing to do with actual redress for financial losses. It is using the civil courts as a bully tactic.

  51. donkeyjote says:

    @EricaKane: @Geekybiker: Depends on the state. Some have concealment = shoplifting rules. Others do not.

  52. Gokuhouse says:

    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.

  53. CaptZ says:

    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.

  54. SuffolkHouse says:

    @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.

  55. @anatak: Drug dealers keep books on all of their dealings – buying and selling

    Apparently you never read Freakonomics. See chapter 3.

  56. synergy says:

    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.

    See: Gitmo.

  57. msbask says:

    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?

  58. Witera33it says:

    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.

  59. HeartBurnKid says:

    @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.

  60. @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.

  61. parad0x360 says:

    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?

  62. Televiper says:

    @msbask: That’s a pretty daft statement.

  63. Jesse says:

    @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]

  64. Televiper says:

    @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.

  65. HeartBurnKid says:

    @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.

  66. consumerd says:

    perhaps I should claim my innocence with no proof either!

    *Scoff* that whole due process thing is a pain isn’t it?

  67. modenastradale says:

    @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!”)

  68. Angryrider says:

    And why shouldn’t they sue us without proof? It’s their American right! Whoo!

  69. PHX602 says:

    @Magnakai Haaskivi: Does the chair know we’s gonna look like some punk-ass bitches?

  70. @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.

  71. Hijakk says:

    Hey MPAA!
    BAAAAAAAAWWWWW!

  72. Jesse says:

    @HeartBurnKid: Are they making the original available for download or a copy by putting it in a shared folder?

  73. OneMHz says:

    QQ

  74. vastrightwing says:

    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.

  75. bobfromboston says:

    @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.

  76. drjayphd says:

    @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.

  77. @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.

  78. @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.

  79. Jmatthew says:

    @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.

  80. jimconsumer says:

    @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.

  81. Jmatthew says:

    @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…

  82. chartrule says:

    i’d like to know what the lawyers were snorting, smoking, or shooting when they came up with this one.

  83. @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.

  84. forgottenpassword says:

    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.

  85. mmmmna says:

    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’.

  86. @forgottenpassword: “I only meant to consume pirated material, not distribute it” is a pretty flimsy defense.

  87. Meathamper says:

    Unbelievable. They might as well sue everyone who uses P2P for legal uses, or why not just sue anyone with an Internet connection?

  88. pigeonpenelope says:

    @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?

  89. pigeonpenelope says:

    @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.

  90. drjayphd says:

    @pigeonpenelope: Having just read Eating In the Dark, I’m not sure Monsanto’s physically capable of looking benign in ANY context.

  91. maverickuw says:

    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.

  92. ageshin says:

    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.

  93. Dakine says:

    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.

  94. aikoto says:

    @Dakine: Or a judge can order you to decrypt it and allow them access. Then what?

  95. Moosehawk says:

    So, because there’s no proof, that means there DEFINITELY is proof of copyright infringement? I don’t see how that works.

  96. drjayphd says:

    @Moosehawk: It’s that whole “absence of evidence” vs. “evidence of absence” thing. Ask Rumsfeld.

  97. SpiderPaintingDollars says:

    @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.