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Defendent argues "making files available" isn't infringement

Written by Rich Fiscus (Google+) @ 20 Aug 2007 21:46 User comments (27)

Defendent argues "making files available" isn't infringement The assertion that making a song available over a P2P network like KaZaA infringes on the copyrights of the record labels will be tested by Warner v. Cassin next month, as attorney Ray Beckerman will argue the matter in a federal court in White Plains, NY.
Although the RIAA's claim that making a song available over a P2P network infringes on a record label's copyrights may seem sound at first glance, the issue is as not cut and dried as the music industry would lead us to believe. First, the RIAA has not established that any infringement has actually taken place. The RIAA's claims of copyright infringement come after its investigator, MediaSentry, discovers music in a P2P user's shared folder. MediaSentry then takes screenshots, notes the IP address, and the litigation process is set into motion. That's the sole basis for the RIAA's complaints.

Beckerman argues that if making available is found to be the same as distributing, it could have broader implications than just sharing files over a P2P network. "Under such an elastic interpretation and ill-defined standards, almost all participants in the Internet would become vulnerable to accusations that they 'make available' a variety of content, including copyrighted materials, to users," he argues in the reply. Think about hyperlinks, which make available other content on the Internet. Providing a hyperlink could be construed as distribution under the RIAA's definition, argues Beckerman.

Source: Ars Technica

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27 user comments

120.8.2007 23:04
WierdName
Inactive

Ooh, interesting point. I wonder how this will turn out. And does anyone find it odd how the RIAA picture has a greater than sign in front of the actual RIAA letters meaning that the RIAA is less than?

220.8.2007 23:26

Never paid much attention to their logo. If all this goes down as the article says, the average user should be in the clear for downloading anything for a few years to come.

If hyperlkinks are indeed violations, Google, Yahoo, Altavista, Excite, Lycos, and the other search engines will have much more money to cough up to the RIAA, so they will get sued first for providing the means to obtain illegal content.

Us regular people will be be small change at that point.

321.8.2007 1:47

Interesting, so heres a worthy zippy example I offer free cds of stuff (random odds and ends) at my yard sale (site with ads/donations) or just on a stand in my front yard (adless site no donation like youtube) so where dose infringement begin?

I am offering this free stuff for free when dose infringement begin when I make moeny in the same setting or when someone wonders buy and gets it for free?

421.8.2007 4:24
duckNrun
Inactive

Under this guise it's not just about music anymore.

You do a search and come up with a hyperlink to a copyrighted news article, or picture, or a You Tube clip... BAM... the search site is infringing.

An online forum has someone link a comment to provide the source for proving his comment... infringment

This also means IF I copyright something and then 'someone' places links to it over the web... each of those sites is infringing on my copyright and thereof are able to be sued by me. Someone could post a hyperlink in a RIAA forum and I could sue them for proving the link lol. And it wouldn't neccessarily have to be a hyperlink. Just providing the URL would be the same as providing the info...

521.8.2007 7:56

Finally, some smart lawyers to fight the RIAA!

621.8.2007 8:37

good deal,but what happens to all the consumers "little guys" that
have been sued already?.the riaa isnt about to give money back.

721.8.2007 9:02

Hyperlinks have been an issue for a long time now and the courts still dont know how to fully address the issues involved. There was an Ausie, if I recall correctly, shutdown a while back for having links to various sites that provide MP3s and other useful stuff. There have also been others that were aloud to have links even after being shutdown.

This is from Wiki;
http://en.wikipedia.org/wiki/Hyperlink

In certain jurisdictions it is or has been held that hyperlinks are not merely references or citations, but are devices for copying web pages. In the Netherlands, for example, Karin Spaink was initially convicted of copyright infringement for linking, although this ruling was overturned in 2003. The courts that advocate it see the mere publication of a hyperlink that connects to illegal material to be an illegal act in itself, regardless of whether referencing illegal material is illegal.

Here is an article on Hyperlink At Your Own Risk;
http://www.internetlibrary.com/publications/hayor_art.cfm


I dont see any solutions on this litigation any time soon and I think we will see judges waffle on their decisions in this area.

Oooops I've put hyperlinks in my Reply hope no one comes after me, LOL.

821.8.2007 9:26

Quote:
I am offering this free stuff for free when does infringement begin when I make moeny in the same setting or when someone wonders buy and gets it for free?

If you buy a CD, you can give it away for free. If you make 100 copies and give them away, that's a copyright violation.

If you're caught with 100 priated CDs, you are probably going to be busted, even if they can't prove that you've actually sold or distributed any yet. The odds are in the RIAA's favor on this one. :(
This message has been edited since its posting. Latest edit was made on 21 Aug 2007 @ 9:29

921.8.2007 10:40
webe123
Inactive

Quote:
Quote:
I am offering this free stuff for free when does infringement begin when I make moeny in the same setting or when someone wonders buy and gets it for free?

If you buy a CD, you can give it away for free. If you make 100 copies and give them away, that's a copyright violation.

If you're caught with 100 priated CDs, you are probably going to be busted, even if they can't prove that you've actually sold or distributed any yet. The odds are in the RIAA's favor on this one. :(

Well if they win this one, they are going to have to PROVE in a COURT OF LAW that hyperlinking is connected to piracy.

And with Google,Yahoo and everyone including their brother doing it, I don't see the RIAA winning this one, sorry.

1021.8.2007 10:58

Originally posted by duckNrun:
Under this guise it's not just about music anymore.

You do a search and come up with a hyperlink to a copyrighted news article, or picture, or a You Tube clip... BAM... the search site is infringing.

An online forum has someone link a comment to provide the source for proving his comment... infringment

This also means IF I copyright something and then 'someone' places links to it over the web... each of those sites is infringing on my copyright and thereof are able to be sued by me. Someone could post a hyperlink in a RIAA forum and I could sue them for proving the link lol. And it wouldn't neccessarily have to be a hyperlink. Just providing the URL would be the same as providing the info...

Thats most likely where he's taking this, smart lawyering on his part, get his number in care you are the victim of a witch hunt by the RIAA
This message has been edited since its posting. Latest edit was made on 21 Aug 2007 @ 10:59

1121.8.2007 11:29
WierdName
Inactive

This is really interesting when you think about it. I mean, using something like KaZaA or Limewire only makes you files able to be browsed by other people using those clients- or possibly through other means... But if you think about it, that is essentially what you are doing by having very low security on your computer with an internet connection. You are making all of your files available to anyone with enough know-how to connect to your computer and browse the filesystem. They can then download copyrighted work from your computer to theirs. So by having low security, you have just allowed someone the ability to copy music to their own computer just as you are by using a client like KaZaA or Limewire.

EDIT- Oh, and getting limewire or kazaa is just as easy as tools to get into someones computer. The reason that is true is because for anyone to get free limewire (IDK about kazaa), they have to go to the same place as anyone that would be looking for "[something something] tools" or the like. All they have to know is what those "something something" tools are...

This message has been edited since its posting. Latest edit was made on 21 Aug 2007 @ 11:33

1221.8.2007 11:32

Quote:
Quote:
I am offering this free stuff for free when does infringement begin when I make moeny in the same setting or when someone wonders buy and gets it for free?

If you buy a CD, you can give it away for free. If you make 100 copies and give them away, that's a copyright violation.

If you're caught with 100 priated CDs, you are probably going to be busted, even if they can't prove that you've actually sold or distributed any yet. The odds are in the RIAA's favor on this one. :(
the CD has random stuff from the net on it its not direct copies of anything,merely random data.

1321.8.2007 12:18

It will all be a matter of time when you ISP hands over logs to the RIAA. I can't see this happening since Con-cast and all other big name ISP's will lose all their customers to small ISP companies. But they will make an example out of someone. My friend got busted for running a Hotline server a few years back, told him the mp3's are illegal but the software was not. I can't see how any of that is illegal since Hotline server was a great way to get your files when you are away from the computer.

1421.8.2007 14:17

This is the stupidest thing I have ever heard. Your responsible for your own security and computer and those who connect to it.

1521.8.2007 15:07

Originally posted by ZIppyDSM:
Interesting, so heres a worthy zippy example I offer free cds of stuff (random odds and ends) at my yard sale (site with ads/donations) or just on a stand in my front yard (adless site no donation like youtube) so where dose infringement begin?

I am offering this free stuff for free when dose infringement begin when I make moeny in the same setting or when someone wonders buy and gets it for free?

The problem you would face is your not an autorised distributor regardless if you make money or not would be my guess,however there is an agreement of some sort which makes sense and is the reason why downloaders are'nt prosecuted apart from child porn uploaders & downloaders etc

The reason no one gets dealt to by the RIAA for downloading is that everything on the net has to be downloaded to view,the net would fail if we were forced to pay for every site we visit,plus the fact there's an agreement that all web content provders sign stating some sort of waiver for websurfers,hence it's the uploaders that they go after

1622.8.2007 18:08

@c1c

Comcast got busted for turning over logs previously. It seems buy them turning over the logs, they were going against their own privacy policy. I vaguely remember this, but it boiled down to something like because you pay for their service, they had to uphold the privacy agreement. If they offered a free service, then they could have done whatever they wanted with the logs.

@Zippy

You example brings up some good points. What if your disc contained content that was perfectly okay to be hosted on the net today, but not tomorrow? One would think that you would be in the right today. However, what if the content on your disc has been ordered to be removed from the Internet one month after your offering. Would you be in the wrong?

@Mr-Movies & @

So with this logic applied in a very loose sense, would the provider of the hyperlink that led to illegal downloading be as guilty as the owner of a gun shop that sold a gun that was used to commit a crime?

@WierdName

They say that knowledge is power. If you applied this concept in a really loose sense, you could say that because one knows how to do something, then the possibility exists that they might actually proceed with that knowledge. Just because I can hack into your computer, does this make me guilty if I never do it?

1722.8.2007 18:31

Unfocused
thats the thing demos and ads are still owned by the "owners" and they have the right to be assy and file C&D's the question is what fair use rights do I have to say screw them tis a godamn demo/ad its already out of your hands you have no control over "free" distribution of it.

Screw copy right laws the focus is completely wrong,first off the current IP/CP laws need to be reworked into business only rules thats bent to protect the original IP/CP(man sues conglomerate over them givign him a bad deal,he wins :P )


while all the consumer stuff is placed into fair use,and fair use is bent to be consumer friendly (conglomerate can only sue a indavendaul if they can show in a court of law they have made more than 500$ in profit off whatever it is they are bitching about)

Now that might get some donation and ad severs in trouble but the rest are off Scott free.


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Lets renegotiate them.

---
Check out my crappy creations
http://zippydsmlee.deviantart.com/

1822.8.2007 20:09
WierdName
Inactive

Originally posted by Unfocused:
@WierdName

They say that knowledge is power. If you applied this concept in a really loose sense, you could say that because one knows how to do something, then the possibility exists that they might actually proceed with that knowledge. Just because I can hack into your computer, does this make me guilty if I never do it?
The thing is though, that it is in essence the same thing to open up your computer with limewire or kazaa as it would to have little or no security on your computer. In both ways, you are opening up the copyrighted content, just to different people. Both types of people have the knowledge to access those files, either through the P2P client(s) or "tools." The only real difference between the two is the difficulty on the other persons part for accessing those files.

EDIT- I guess what I'm saying is that why should it be illegal to have a client such as limewire or kazaa when all it is doing is making the copyrighted files more easily accessible. It should just be illegal to actually partake in the action of copying the file(s).
This message has been edited since its posting. Latest edit was made on 22 Aug 2007 @ 20:12

Doesnt expecting the unexpected make the unexpected expected and therefore mean youre expecting the expected which was the unexpected until you expected it?
"Opinions are immunities to being told were wrong." - Relient K

1922.8.2007 21:24

@WierdName

It all comes back to nobody want to take the blame. First it was the creators of the P2P software, then it was the software itself, now the want to say it is the ISP's.

Just get to the bottom of the suing and sue Sun, IBM, and anybody else who helped develop the computer without them, this wouldn't have happened. While they are at it, they can sue Al Gore also, didn't he claim to have invented the Internet?

Problem solved for the RIAA and MPAA. They have sued the responsible parties, eliminated the computer and the Internet. They can go back to being the money grubbing whores that they are.

2022.8.2007 23:23
WierdName
Inactive

Originally posted by Unfocused:
...they can sue Al Gore also, didn't he claim to have invented the Internet?
Lol. Ya, I believe he did claim to have been the real inventor. As for the RIAA, they need to either sue everyone who has had anything to do with computers and networking and anyone who has/had a computer. Then they can employ enough people to live with every single person on earth and make sure they aren't doing anything illegal... with copyrights anyways.

Doesnt expecting the unexpected make the unexpected expected and therefore mean youre expecting the expected which was the unexpected until you expected it?
"Opinions are immunities to being told were wrong." - Relient K

2123.8.2007 3:24

Quote:
Defendent argues "making files available" isn't infringement
Would this not work only depending on the files made available.

2224.8.2007 10:33

I don't know why there aren't more of this type of argument.

Sharing or transmitting or even SELLING an MP3 or any other computer file isn't the equivalent of sharing music. You can't hear the file. You can't watch an MPEG file. Even if you try to, they sound like ~15 seconds of static - NOTHING like the song/movie clip that was copyrighted. So how can they claim that a computer file is THEIR property?

They didn't write the file. They didn't write the software that created the file or that decodes it into an audible signal. They didn't pay for the hardware the file is stored/transmitted/played back on. They didn't copyright any of that stuff, either.

By that logic, ball-point pen manufacturers are illegally selling copyrighted paper documents because the pens can be used to generate something that looks like the copyrighted work.

And what if I rip a CD song to a firm medium (like floppy, memory card, etc.), make 100 copies, & put them in the mail. Is the USPS now legally liable for creating a network to illegally distribute copyrighted works? They know it can happen and they don't do ANYTHING to stop it, and that's the exact reason Napster, KaZaa, & LimeWire were all shut down. Why do ISPs & P2Ps get slammed for doing it, but USPS, UPS, FedEx, & DHL don't? For all RIAA & MPAA have shown/proven, USPS could be doing more than Napster & the others ever did, COMBINED.

2324.8.2007 11:59
WierdName
Inactive

Originally posted by Steve83:
I don't know why there aren't more of this type of argument.

Sharing or transmitting or even SELLING an MP3 or any other computer file isn't the equivalent of sharing music. You can't hear the file. You can't watch an MPEG file. Even if you try to, they sound like ~15 seconds of static - NOTHING like the song/movie clip that was copyrighted. So how can they claim that a computer file is THEIR property?

They didn't write the file. They didn't write the software that created the file or that decodes it into an audible signal. They didn't pay for the hardware the file is stored/transmitted/played back on. They didn't copyright any of that stuff, either.

By that logic, ball-point pen manufacturers are illegally selling copyrighted paper documents because the pens can be used to generate something that looks like the copyrighted work.

And what if I rip a CD song to a firm medium (like floppy, memory card, etc.), make 100 copies, & put them in the mail. Is the USPS now legally liable for creating a network to illegally distribute copyrighted works? They know it can happen and they don't do ANYTHING to stop it, and that's the exact reason Napster, KaZaa, & LimeWire were all shut down. Why do ISPs & P2Ps get slammed for doing it, but USPS, UPS, FedEx, & DHL don't? For all RIAA & MPAA have shown/proven, USPS could be doing more than Napster & the others ever did, COMBINED.
I don't know if it's just me being tired or what but I don't think I understand what you are saying.

2424.8.2007 12:39

A file on a computer isn't music. It isn't even CLOSE to being music. It doesn't sound like music, and it can't be enjoyed like music. It's not comparable to the sound on a record or tape because computer files aren't SPECIFICALLY intended to be played audibly. And for a shared file on MY computer to become music in YOUR house, it has to go from my HDD, thru my mobo, thru my NIC, out to my cable modem, thru who-knows-how-many servers, thru your modem/NIC/mobo/HDD/mobo/codec/sound card/amp/speakers (and I'm skipping a LOT of steps). That's a LOT of filtering, encoding, decoding, modification, & handling before it even comes CLOSE to being "illegally distributing copyrighted material".

What I distributed (in the example above - not in reality) was just a 100kB/s burst of noise - not "Van Halen - Just a Gigolo", which is all in the 20-20kHz range. So how can RIAA claim I infringed on anything they own?

Hell - someone HUMMING the song in a public area is doing more real infringing!

This message has been edited since its posting. Latest edit was made on 24 Aug 2007 @ 12:41

2524.8.2007 16:16
WierdName
Inactive

It's really hot here today so sorry if I am just missing the whole point, but I would think that is distributing because even though the audio is being converted into a string of 0s and 1s, it is still coming out on the other end as the same or somewhat the same audio.

2625.8.2007 6:17

Originally posted by Steve83:

By that logic, ball-point pen manufacturers are illegally selling copyrighted paper documents because the pens can be used to generate something that looks like the copyrighted work.

Why do ISPs & P2Ps get slammed for doing it, but USPS, UPS, FedEx, & DHL don't? For all RIAA & MPAA have shown/proven, USPS could be doing more than Napster & the others ever did, COMBINED.
You know, this is a really good point. As long as distrubution occurs (regardless of the means), using their logic, that equals illegal sharing.

However, isn't messing with the mail a federal offense? If I sent you a flash drive of my music (whatever the terms my music means these days), they wouldn't legally be able to know the contents of the package.

So, should I feel guilty next time I walk out of Office Depot with a pack of paper and some ink refills? You never know, I could be running an illegal book duplication facility out of my garage...
This message has been edited since its posting. Latest edit was made on 25 Aug 2007 @ 6:18

2725.8.2007 10:42
WierdName
Inactive

Originally posted by Unfocused:
So, should I feel guilty next time I walk out of Office Depot with a pack of paper and some ink refills? You never know, I could be running an illegal book duplication facility out of my garage...
I KNOW... We should do a permit system where you have to have a license to purchase paper more than a specific amount. And the same for ink too.

Doesnt expecting the unexpected make the unexpected expected and therefore mean youre expecting the expected which was the unexpected until you expected it?
"Opinions are immunities to being told were wrong." - Relient K

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