Debate over "making available" jury instruction as Capitol v. Thomas wraps up

As Capitol v. Thomas heads to the jury, the attorneys sparred over the question of whether making a file available over a P2P network was infringement. The judge's proposed jury instructions say that "an actual transfer must take place" in order for copyright infringement to occur.<BR><BR>Read More

 

[johnsonfromwisconsin]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">The question of whether making a file available equals distribution came up on the first day of the trial during the testimony of Sony BMG head of litigation Jennifer Pariser. Toder asked her how she knew that the 25 songs covered in the lawsuit were distributed over KaZaA. "That's the way the system works," replied Pariser. "I know that each one of the 25 songs was distributed." <BR><BR>It was then that Toder raised the issue. Richard Gabriel quickly objected to Toder's mentioning the topic; the judge sustained the objection and the issue was dropped. Throughout the rest of the trial, the RIAA's assertions that Thomas engaged in distribution over KaZaA went unchallenged. </div></BLOCKQUOTE><BR><BR>I was hoping an attorney on these boards might chime in with this as it's confusing me. This question seems <I>integral</I> to the case, yet it was silenced at the beginning and let the plantiff's assertion ride. Anyone have any ideas why this objection might have been sustained by the Judge?

 

[Anonymous Freak]

Sadly, I do have to agree with the RIAA on this one. If I have counterfeit CDs (or even just burned CD-R copies of commercial CDs,) sitting in a cardboard box on a street corner in New York, marked "Any CD just $2", that's copyright infringement, regardless if I have sold any or not.<BR><BR>Same with this.

 

[Mister Morden]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Anonymous Freak:<BR>Sadly, I do have to agree with the RIAA on this one. If I have counterfeit CDs (or even just burned CD-R copies of commercial CDs,) sitting in a cardboard box on a street corner in New York, marked "Any CD just $2", that's copyright infringement, regardless if I have sold any or not.<BR><BR>Same with this. </div></BLOCKQUOTE><BR><BR>No, the appropriate analogy would be leaving a box of burned CDs on the street with a sign that says "FREE CDs!", and then no one decided to take one.

 

[abamfici]

But what about those fake MP3s filled with garbage or the wrong song? Doesn't the RIAA have to actually download the song and verify it's as advertised?<BR><BR>Is it copyright infringement to sell a CD labeled "Kanye West - Graduation" when it's really just a coaster?

 

[zoso_DK]

If you sit on a street corner with a box full of burned cd's, then you allready violated the copyright.<BR>The correct analogy would be, that if you have 25 songs on your computer in a shared folder. Then somebody breaks in your house and copies your music onto a USB stick. Or if you leave your WAN unprotected and make it possible for others to copy the music. Then you broke the copyright.<BR>It makes perfect sense that they should prove, that somebody actually copied the music.

 

[LinuxPengwin]

This is the question, and I see both sides. You can argue that no "copying" occurs until data is transmitted over the network, or you can argue that that is simply transmission, and the act of making the file available is making infinite copies. This particular ruling is going to be the single most influential element of this case, and I would *not* be shocked if this particular issue climbs up the courts in the short term, and is addressed by Congress at some point in the near future as well.

 

[bokubob]

Gosh, if "making available" is the same as distributing, thousands of paper boys have put in a lot a unnecessary effort!<BR><BR>-Jonathan

 

[LinuxPengwin]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by bokubob:<BR>Gosh, if "making available" is the same as distributing, thousands of paper boys have put in a lot a unnecessary effort!<BR><BR>-Jonathan </div></BLOCKQUOTE><BR><BR>Visit:<BR>www.nytimes.com<BR>www.philly.com<BR>www.washingtonpost.com<BR>etc.<BR><BR>Is this the same job formerly being done by paperboys?

 

[NW]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by johnsonfromwisconsin:<BR>This question seems integral to the case, yet it was silenced at the beginning and let the plantiff's assertion ride. </div></BLOCKQUOTE><BR><BR>It's not a ride. She made some files available. The Company Formerly Known as MediaSentry downloaded them. There's your distribution. Happy?

 

[bjornstar]

Careful LinuxPengwin, you may have just distributed copyrighted material. Expect a call from those newspapers' lawyers.<BR><BR>Personally having 1000 copies of a CD that you own is not copyright infringement. Putting those 1000 copies of a CD that you own in a box and taking it outside of your house is not copyright infringement. Putting those 1000 CDs into the hands of other people is copyright infringement. If none of the copies of that CD have gone into another persons hands you have not committed copyright infringement.<BR><BR>Otherwise, the RIAA could sue me for copyright infringement if I burned 1000 copies of my favorite CD and then threw them into the garbage. God, that's a scary thought, maybe the RIAA will start looking through peoples' garbage bins for music that they are "distributing" to the junkyard.<BR><BR>There are so many problems with this case and so many definitions that haven't been clarified and it all scares me.

 

[LinuxPengwin]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by bjornstar:<BR>Careful LinuxPengwin, you may have just distributed copyrighted material. Expect a call from those newspapers' lawyers.<BR><BR>Personally having 1000 copies of a CD that you own is not copyright infringement. Putting those 1000 copies of a CD that you own in a box and taking it outside of your house is not copyright infringement. Putting those 1000 CDs into the hands of other people is copyright infringement. If none of the copies of that CD have gone into another persons hands you have not committed copyright infringement.<BR><BR>Otherwise, the RIAA could sue me for copyright infringement if I burned 1000 copies of my favorite CD and then threw them into the garbage. God, that's a scary thought, maybe the RIAA will start looking through peoples' garbage bins for music that they are "distributing" to the junkyard.<BR><BR>There are so many problems with this case and so many definitions that haven't been clarified and it all scares me. </div></BLOCKQUOTE><BR><BR>But is sticking that box of CDs on your doorstep with a sign that says "Free CDs!" infringement? Does that depend on whether anybody takes one?<BR><BR>To Clarify: <BR><BR>By running Kazaa, you have made a conscious decision to stick the box of CDs on your doorstep with a sign that says "Free CDs Here!", and you have listed your name in the yellow pages as a source of Free CDs.<BR><BR>Anyway, the court *will* rule on this some way or another, but Congress has to take a stand one way or the other at some point.

 

[windnwar]

I don't see why they didn't argue that it could have been spyware of some variety that may have installed kazaa on her computer, might even had led to the bad drive, which may not have been a bad drive but it was an easy sell for the geek squad guys. 2005 kazaa was in full use then, much more so then now and there were more then a few spyware apps bundling it with toolbars etc, then. It really wouldn't have been hard to have ended up on her computer. <BR><BR>The thing is, without that hard drive they have no way to prove it so you basically have a "he said, she said" deal. And they've already admitted they can't identify the actual human and that she's an avid buyer of music. What cracked me up the most was when they started reading off bands that they said were in that folder, hell I have most of those bands music as well on my computer, most of it wasn't even that eclectic or really outside of that particular genre and most was also fairly popular. <BR><BR>I think the best the riaa should expect out of this is a draw, or to lose.

 

[LinuxPengwin]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by windnwar:<BR>I don't see why they didn't argue that it could have been spyware of some variety that may have installed kazaa on her computer,.... </div></BLOCKQUOTE><BR><BR>Because she *did* install Kazaa on her computer, and going into that argument seems to be a surefire way to perjure yourself.

 

[Gilgamesh]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by johnsonfromwisconsin:<BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">The question of whether making a file available equals distribution came up on the first day of the trial during the testimony of Sony BMG head of litigation Jennifer Pariser. Toder asked her how she knew that the 25 songs covered in the lawsuit were distributed over KaZaA. "That's the way the system works," replied Pariser. "I know that each one of the 25 songs was distributed." <BR><BR>It was then that Toder raised the issue. Richard Gabriel quickly objected to Toder's mentioning the topic; the judge sustained the objection and the issue was dropped. Throughout the rest of the trial, the RIAA's assertions that Thomas engaged in distribution over KaZaA went unchallenged. </div></BLOCKQUOTE><BR>I was hoping an attorney on these boards might chime in with this as it's confusing me. This question seems <I>integral</I> to the case, yet it was silenced at the beginning and let the plantiff's assertion ride. Anyone have any ideas why this objection might have been sustained by the Judge? </div></BLOCKQUOTE><BR>The judge properly sustained the objection because Toder's question called for a legal conclusion. From my reading of the article, Toder was questioning Pariser on whether she believed "making available" was an act sufficient to constitute distribution under the Copyright Act. This is a matter of law.<BR><BR>The rules of evidence allow for witnesses to give testimony on facts, observations, and opinions, within the limits of various rules. The rules do not permit a witness to provide testimony that constitutes a legal opinion or legal conclusion, except in very narrow circumstances (i.e. an attorney called as an expert witness in a legal malpractice suit). It is for the judge, not the witnesses, to instruct the jury on the law that governs the dispute, thus the testimony would have been improper.<BR><BR>To the extent that the parties disagree on the jury instructions, counsel will argue and the judge will decide outside the presence of the jury, and then the judge will call in the jury, instruct them on the law, and send them to deliberate.<BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by bjornstar:<BR>Personally having 1000 copies of a CD that you own is not copyright infringement. </div></BLOCKQUOTE><BR>Unless the alleged infringer proves that the duplication of each of those 1,000 copies was fair use, it is indeed copyright infringement. Unauthorized duplication is an infringing act. See 17 U.S.C. § 106 .

 

[andrewme]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by NW:<BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by johnsonfromwisconsin:<BR>This question seems integral to the case, yet it was silenced at the beginning and let the plantiff's assertion ride. </div></BLOCKQUOTE><BR><BR>It's not a ride. She made some files available. The Company Formerly Known as MediaSentry downloaded them. There's your distribution. Happy? </div></BLOCKQUOTE><BR><BR>But MediaSentry was (I'm guessing) acting as an agent of the label(s). That doesn't prove that anyone else received the files.

 

[kobolds]

I don't think making a file available is consider copyrights infringement , and also "an actual transfer must take place" is consider infringement to occur. ok let me give example <BR><BR>let just say in future all our music player and tv are connect to network . these machine has function to play music / video stream . now I put some video and music available on network so that me and my family can access it anywhere . <BR><BR>is my act consider as copyrights infringement?

 

[NW]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by andrewme:<BR>But MediaSentry was (I'm guessing) acting as an agent of the label(s). That doesn't prove that anyone else received the files. </div></BLOCKQUOTE><BR>Why did she need someone else to download them for her to be guilty? "But, officer, she's a cop not a hooker" will fly over real well with the jury.<BR><BR>btw it's only entrapment if the government is telling her it's OK, and she knows it's the government telling her that. MediaSentry is private, and she doesn't know them from Adam, and they didn't tell her it's OK, and they don't even have any kind of permission from the copyright holders to even make it OK.<BR><BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by kobolds:<BR>now I put some video and music available on network so that me and my family can access it anywhere. Is my act consider as copyrights infringement? </div></BLOCKQUOTE><BR><BR>If you 'make it publicly available' and someone downloads it, then yes, obviously (to this judge). If you have some form of authentication and authorization where you and your family members have specific accounts and the public has no access, then the scope is small, there is no harm to the marketability of the work, etc. and it probably falls under fair use in the US.

 

[LinuxPengwin]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by NW:<BR>If you 'make it publicly available' and/or broadcast it, then yes, obviously. If you have some form of authentication and authorization where you and your family members have specific accounts and the public has no access, then the scope is small, there is no harm to the marketability of the work, etc. and it probably falls under fair use in the US. </div></BLOCKQUOTE><BR><BR>++...<BR><BR>I would imagine that even if you don't have specific logins, but, say, you were running an FTP server and not advertising it in any way - i.e. you just had it as an IP address that you could type in from wherever, you'd be fine. If you posted somewhere public "Hey... free music over on my server!" then there are issues.

 

[NW]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by LinuxPengwin:<BR>I would imagine that even if you don't have specific logins, but, say, you were running an FTP server and not advertising it in any way - i.e. you just had it as an IP address that you could type in from wherever, you'd be fine. If you posted somewhere public "Hey... free music over on my server!" then there are issues. </div></BLOCKQUOTE><BR><BR>Unless, say, your IP was once indexed by google, and then they reindex, and someone at MediaSentry does a search, and you find yourself in court.

 

[.Spartan]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content"> "The mere act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network without license from copyright owners does not violate the copyright owners' exclusive right to distribution," reads the proposed jury instruction. "An actual transfer must take place." </div></BLOCKQUOTE><BR><BR>At least the judge and I are on the same page - that is always a good thing.<BR><BR>On a side note I wonder if this case will revive the debate of the legality of prostitution given all the apparent similarities between the "acts" as it were.

 

[z0phi3l]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by kobolds:<BR>I don't think making a file available is consider copyrights infringement , and also "an actual transfer must take place" is consider infringement to occur. ok let me give example <BR><BR>let just say in future all our music player and tv are connect to network . these machine has function to play music / video stream . now I put some video and music available on network so that me and my family can access it anywhere . <BR><BR>is my act consider as copyrights infringement? </div></BLOCKQUOTE><BR><BR>Technically yes according to the labels, to most of us that would fall under Fair Use, but to the RIAA/Labels, just the fact that you ripped the original CD to your PC is considered Copyright infringement. Seems to be the angle they want to push for, kill off Fair use to make their BS lawsuits stick somehow.

 

[Frosty Grin]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content"><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by bjornstar:<BR>Personally having 1000 copies of a CD that you own is not copyright infringement. </div></BLOCKQUOTE><BR>Unless the alleged infringer proves that the duplication of each of those 1,000 copies was fair use, it is indeed copyright infringement. Unauthorized duplication is an infringing act. See 17 U.S.C. § 106 . </div></BLOCKQUOTE>What about CD ripping? Is it copyright infringement? I have three copies of the CDs I bought: on my PC, on my iPod and on backup DVDs. Should it be considered copyright infringement?

 

[bond007]

<blockquote class="ip-ubbcode-quote">
<div class="ip-ubbcode-quote-title">quote:</div>
<div class="ip-ubbcode-quote-content">Originally posted by zoso_DK:<br>If you sit on a street corner with a box full of burned cd's, then you allready violated the copyright.<br>The correct analogy would be, that if you have 25 songs on your computer in a shared folder. Then somebody breaks in your house and copies your music onto a USB stick. Or if you leave your WAN unprotected and make it possible for others to copy the music. Then you broke the copyright.<br>It makes perfect sense that they should prove, that somebody actually copied the music. </div>
</blockquote>
<br><br>I think it would be more like (going with the street corner one). Setting up a laptop on a street corner, filled with mp3s that you should already own on CD, making sure the laptop cant be stolen -- View image here: http://episteme.meincmagazine.com/groupee_common/emoticons/icon_smile.gif --, and then leaving it, then anyone who comes along and has a look can make a copy of what ever is on there to what every device they have on them, ie the mp3 player or a laptop etc.

 

[Kurenai]

If there's one thing I've learned from this thread it's that real world analogies for this *don't work*. Or they become so excessively specific that they lose all explanatory value.<br><br>Leaving a box of cds on the corner with a label "free cds!" isn't accurate because there's still only one copy and the ownership has simply transferred. <br><br><blockquote class="ip-ubbcode-quote">
<div class="ip-ubbcode-quote-title">quote:</div>
<div class="ip-ubbcode-quote-content">Setting up a laptop on a street corner, filled with mp3s that you should already own on CD, making sure the laptop cant be stolen Smile, and then leaving it, then anyone who comes along and has a look can make a copy of what ever is on there to what every device they have on them, ie the mp3 player or a laptop etc. </div>
</blockquote>
<br><br>Accurate, but so wordy/specific that you might as well say "Setting up kazaa and sharing out your music folder". Analogies are supposed to make things simple so they can be understood, ne?<br><br>Anyway, I would tend to agree with the judge, that the RIAA needs to prove actual distribution occurred. Since analogies to the situation are either confusingly complex or inaccurate, as the defense I'd probably be using them extensively to obfuscate the issue -- View image here: http://episteme.meincmagazine.com/groupee_common/emoticons/icon_smile.gif --<br><br>On a side note, if things go totally to shit and the jury rules that 'making available' is equivalent to distribution, pretty much everyone with a shared folder with an mp3 in it is guilty, ne? It brings up an interesting point. Could someone come up with a p2p app that only used windows shared folders (or smb shares on your *nix of choice) to provide files? If that existed, couldn't one argue that because windows comes with shares by default (C$, etc) that one had no idea they were distributing? Obviously someone was just connecting to your shares without your knowledge or permission. Hey, your computer came that way, what can you do?

 

[WaltC]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by NW:<BR><BR>It's not a ride. She made some files available. The Company Formerly Known as MediaSentry downloaded them. There's your distribution. Happy? </div></BLOCKQUOTE><BR><BR>So then, the only evidence the RIAA can submit to the court proves that Media Sentry is the actual copyright violator, since it downloaded the copyrighted files? I wonder, too, how the Media Sentry software is able to escape the legal definition of "spyware" that is increasingly becoming a judicial standard nationally. If the Media Sentry software is not spyware, then what is it?

 

[.Spartan]

The answer to that question is a simple one. It is an authorized agent of the RIAA that has assumed the role of preemptive law enforcement for the government. After all we all know how the private sector is far more efficient and cost effective then public agencies. Privatization its a good thing for the tax payers -yes?

 

[GirgleMirt]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Mister Morden:<BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Anonymous Freak:<BR>Sadly, I do have to agree with the RIAA on this one. If I have counterfeit CDs (or even just burned CD-R copies of commercial CDs,) sitting in a cardboard box on a street corner in New York, marked "Any CD just $2", that's copyright infringement, regardless if I have sold any or not.<BR><BR>Same with this. </div></BLOCKQUOTE><BR><BR>No, the appropriate analogy would be leaving a box of burned CDs on the street with a sign that says "FREE CDs!", and then no one decided to take one. </div></BLOCKQUOTE><BR>Why the free cd sign? It could be that you left the box for one of your friends to pickup.<BR><BR>If someone sees the box sitting in your property, decides to open it, go thru your cds, and make a copy of some of your cds, then HE is the one doing something wrong. You never gave authorization to this individual to copy your backups...<BR><BR>As I said in other threads, and as said a canadian judge, the act of making available doesn't fill out "the preconditions to copying and infringement are set up but the element of authorisation is missing"<BR><BR>http://episteme.meincmagazine.com/eve/forums/a/tpc/f/1740...5377831#778005377831

 

[SonicHgHog]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">btw it's only entrapment if the government is telling her it's OK, and she knows it's the government telling her that. MediaSentry is private, and she doesn't know them from Adam, and they didn't tell her it's OK, and they don't even have any kind of permission from the copyright holders to even make it OK. </div></BLOCKQUOTE><BR><BR><BR>I do not know about that. What about downloading Music that you owned already on CD. Using Kazah as a fair use system. Never getting a song you did not alreay own.<BR><BR> So one could argue that downloading music from Kazah is legal under fair use, if that is your method of getting a backup. <BR><BR><BR>In other words, Giving someone a CD to make a backup for you.

 

[oblib__]

Regarding the "Free CDs": if you copy a CD you own, you have infringed copyright unless you can prove it meets one of the exemptions (fair use for example). It doesn't matter if you give it or sell it to someone else, it's infringement. <B>Not a valid analogy!</B><BR><BR>Allow me to reiterate what I said in the previous discussion:<BR><BR>Distributing copies of a copyrighted work is illegal unless authorized by the copyright holder (see the law). You can be excused from infringement of copyright by claiming a fair-use defense.<BR><BR>In other words, ripping a CD is infringement, but you can probably prove it is fair use, and not be held accountable.<BR><BR>As for Media Sentry being an "agent":<BR><BR>It's says in the law that giving someone a copy of something you don't own copyright on (or you are not authorized by the copyright owner) you are guilty of copyright infringement. <B>Buying a copy of a song does not authorize you to distribute that song to <I>anyone</I> else.</B><BR><BR>Now, it's true you might have a decent chance at defending yourself via fair use if the recipient already has a copy of the song, given you didn't really hurt the market for the song, but if you'll notice, the lawyers (who are payed lots of money to know what they are doing) are not even beginning to pretend that fair use has anything to do with this case.<BR><BR>I think the point some of you are missing is that <B>MediaSentry is not on trial here</B>. Thomas is on trial, and they think they have proof that she infringed on copyright by distributing (aka uploading) the songs. So unless she meets one of the exceptions to copyright infringement, she is guilty and punishable if she actually made it available for upload and someone downloaded it. If your concern is that she was coerced into distributing, you're clutching at straws.<BR><BR>Turns out that it's not very likely that MediaSentry will be brought to trial because the copyright owner would need to file suit. I'm guessing they already agreed not to do that.

 

[Niomar]

If "making available" is the same as distribution, then wouldn't libraries be in violation of copyright laws too? There is a significant difference between the two actions.<BR><BR>Niomar

 

[Davebo]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by johnsonfromwisconsin:<BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">The question of whether making a file available equals distribution came up on the first day of the trial during the testimony of Sony BMG head of litigation Jennifer Pariser. Toder asked her how she knew that the 25 songs covered in the lawsuit were distributed over KaZaA. <BR><BR>It was then that Toder raised the issue. Richard Gabriel quickly objected to Toder's mentioning the topic; the judge sustained the objection and the issue was dropped. Throughout the rest of the trial, the RIAA's assertions that Thomas engaged in distribution over KaZaA went unchallenged. </div></BLOCKQUOTE><BR><BR>I was hoping an attorney on these boards might chime in with this as it's confusing me. This question seems <I>integral</I> to the case, yet it was silenced at the beginning and let the plantiff's assertion ride. Anyone have any ideas why this objection might have been sustained by the Judge? </div></BLOCKQUOTE><BR><BR>My question is this - what makes a lawyer an expert on these technologies? This Jennifer Pariser is a freaking lawyer - that automatically makes her an expert of everything? <BR><BR>The judge should be questioning her competency at answering the questions directed at her. "That's the way the system works," replied Pariser. "I know that each one of the 25 songs was distributed." 'How do you know this' <-- is what the judge should be asking if he gave a fuck...

 

[Chrismik]

It seems to me that this trial needs to resolve two issues:<BR>1) What is “distribution?” If it is “making available” then librarians are just as culpable. If it is actual transfer, then the RIAA needs to demonstrate how many (if any) instances occurred to prove damages. Sharing a 1910 Fruitgum Company song and sharing a prerelease of a contemporary artist are not the same degree of “damage.”<BR>2) What rights do consumers have? If when we buy a record we actually only get a license for the music, then we ought to be able to convert our old vinyl to digital. Downloading a better quality copy of something we already have should be OK. And by the way, if there’s only one decent song on a CD, we ought to be able to return it as “misrepresented.”

 

[LinuxPengwin]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by GirgleMirt:<BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Mister Morden:<BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Anonymous Freak:<BR>Sadly, I do have to agree with the RIAA on this one. If I have counterfeit CDs (or even just burned CD-R copies of commercial CDs,) sitting in a cardboard box on a street corner in New York, marked "Any CD just $2", that's copyright infringement, regardless if I have sold any or not.<BR><BR>Same with this. </div></BLOCKQUOTE><BR><BR>No, the appropriate analogy would be leaving a box of burned CDs on the street with a sign that says "FREE CDs!", and then no one decided to take one. </div></BLOCKQUOTE><BR>Why the free cd sign? It could be that you left the box for one of your friends to pickup.<BR><BR>If someone sees the box sitting in your property, decides to open it, go thru your cds, and make a copy of some of your cds, then HE is the one doing something wrong. You never gave authorization to this individual to copy your backups...<BR><BR>As I said in other threads, and as said a canadian judge, the act of making available doesn't fill out "the preconditions to copying and infringement are set up but the element of authorisation is missing"<BR><BR>http://episteme.meincmagazine.com/eve/forums/a/tpc/f/1740...5377831#778005377831 </div></BLOCKQUOTE><BR><BR>Leaving a box for your friends is setting up an FTP server and telling your friend "here". If somebody by some chance types in your IP and random - they're doing it without your permission. By sharing your music on Kazaa, you're not only giving everyone out there permission to access your stuff, you're advertising the fact to anyone who is looking for that specific stuff.

 

[Hunter Viking]

This lady is going to Burn. Here's a bit from one of the local newspapers covering the story.<BR><BR>" In other testimony potentially damaging to her case, Thomas admitted that she burned copyrighted music onto CDs to give as gifts and wrote a college paper defending the original version of the file-sharing network Napster, which she admitted using before it was shut down in 2001.<BR><BR>When Gabriel pressed her on how she could know so much about file sharing and never hear of the well-known Kazaa network, she maintained that was indeed the case."<BR><BR><BR><BR>Never heard of KaZaa....<BR>She's going down!

 

[jakattak]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">The judge should be questioning her competency at answering the questions directed at her. "That's the way the system works," replied Pariser. "I know that each one of the 25 songs was distributed." 'How do you know this' <-- is what the judge should be asking if he gave a f@#$... </div></BLOCKQUOTE><BR><BR>It's not the judge's job to ask as far as I know. I always thought that was the attorney's job.

 

[BigLan]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by ChrisMik:<BR>It seems to me that this trial needs to resolve two issues:<BR>1) What is “distribution?” If it is “making available” then librarians are just as culpable. If it is actual transfer, then the RIAA needs to demonstrate how many (if any) instances occurred to prove damages. Sharing a 1910 Fruitgum Company song and sharing a prerelease of a contemporary artist are not the same degree of “damage.”<BR>2) What rights do consumers have? If when we buy a record we actually only get a license for the music, then we ought to be able to convert our old vinyl to digital. Downloading a better quality copy of something we already have should be OK. And by the way, if there’s only one decent song on a CD, we ought to be able to return it as “misrepresented.” </div></BLOCKQUOTE><BR><BR>Librarians are OK because they're not actually copying - they're distributing a single copy to multiple people, plus I think they have an agreement with copyright holders (or are protected by law.)<BR><BR>The riaa is contending that there was at least 1 distribution (to mediasentry.) They would also like to have the jury find that each shared song was an infringement, which I don't necessarily buy. Sure, a lot of the songs probably were uploaded by the defendent, but we'll never know. Given how big the statutory damages are per track though, the record label could get a sizable award just from the 25 tracks that mediasentry grabbed.<BR><BR>I'll agree that the punishments are way out of line with the offense, but that's not up to the judge or jury to decide about, you'll need to write to your senator/congressman. (Wouldn't a 1910 recording be in the public domain by now anyway?)<BR><BR>Consumers are covered by fair use, which gives you some rights on what you do privately. Note that downloading isn't really a part of this case (and I think it's legal,) it's the uploading which is the issue. In the cd analogies in the thread, it's not the people who take a copy of the cd that get in trouble, it's the one providing it.

 

[epp_b]

Wow, an article written after midnight - that's dedication. Thanks, Ars!<BR><BR><BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">It's not a ride. She made some files available. The Company Formerly Known as MediaSentry downloaded them. There's your distribution. Happy? </div></BLOCKQUOTE><BR>Sure, but MediaSentry is acting on behalf of the labels. If they claim this, it's not copyright infringement. Otherwise, MediaSentry is liable for mass copyright infringement. It's lose-lose for the RIAA is this respect.

 

[Wraithlord]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by WaltC:<BR>So then, the only evidence the RIAA can submit to the court proves that Media Sentry is the actual copyright violator, since it downloaded the copyrighted files? </div></BLOCKQUOTE><BR><BR>No, no, no, NO. This needs to be cleared up. I'll try to do it, if Gilgamesh feels the needs to reclarify what I said, super, but this notion needs to be shot down.<BR><BR>Copyright, in short, gives you just that, the sole right to copy (including <B>distribute</B> and to show publicly). She is being sued under the allegation that she violated the RIAA's sole right to redistribute the work. MediaSentry had permission from the RIAA to download tracks (and downloading is still a legal mess anyways), but, by them downloading, she <B>distributed</B> a copyrighted song, without the permission of the copyright holder.<BR><BR>As always, how the RIAA is abusing the court system is disgusting, but that doesn't mean they're always wrong in this case. The "making available" argument is, I believe, on top of the claim re: MediaSentry, which I think would just go to increase damages. <--This point I'm not totally sure of, Gilg, and others that aren't stuck in 1L Hell, care to enlighten?

 

[nzruss]

My neighbor plays his music on Fridays way to loud.... is he "making it available" to me? Is this copyright infringement? <BR><BR>Or is it only copyright infringement if I set up a microphone and recorded it (thus having made a copy)?