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EFF targets RIAA's 'making available' claims

Written by James Delahunty (Google+) @ 14 Jan 2008 16:46 User comments (14)

EFF targets RIAA's 'making available' claims The Recording Industry Association of America (RIAA) has been bending the legal system to its position that "making files available" is enough to find a defendant guilty of copyright infringement. This is what happened in the infamous case against Jammie Thomas, and it is the argument in several others. In the case against Jeffrey and Pamela Howell, this is the offense the RIAA is claiming again. In response, the Electronic Frontier Foundation (EFF) has submitted a new amicus brief.
The civil liberties group that is determined to protect your digital rights has pointed out that there is no such crime as "attempted copyright infringement." The record labels claim that 11 tracks were shared by the Howells but fail to provide any real evidence of sharing. SafeNet (MediaSentry) was able to download songs from the Howells computer using Kazaa.

The EFF does not accept this as adequate evidence of infringement however. Copyright law states that content owners control the distribution of copies to the public, and so the RIAA needs to prove that such unauthorized distribution took place. The EFF states that the copyright owner itself could not be considered as the public, and that an authorized agent acting on behalf of the copyright owner (SafeNet) could not possibly infringe any rights of the owner.

"Where the only evidence of infringing distribution consists of distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish that other, unauthorized distributions have taken place," the brief reads. It is the opinion of the music label trade group that if MediaSentry could download the files so easily with Kazaa, then it is highly probable that many others have, including of course, members of the public.

In response, to the EFF claims that 2.2 million users were using Kazaa software at the time this alleged "infringement" took place. All 11 tracks are very popular hit records and not indie bands, and so were most likely shared by many of the 2.2 million users at the time. "It is highly unlikely that, among the millions of KaZaA users who are likely to be sharing them at any time, these 11 songs would have been downloaded from Defendants' computer," EFF argues.

While the EFF is taking no position on whether the Howells are innocent or guilty of infringement, it is seeking to force the record companies to actually prove, beyond a doubt, that distribution to the public actually took place.

Source:
Ars Technica

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14 user comments

114.1.2008 17:32

wow, well who uses kazaa anymore?

214.1.2008 19:51
WierdName
Inactive

That is a very valid point. It is the law and duty of the jury to find the defendant guilty BEYOND A SHADOW OF A DOUBT or let them go. America wasn't built on "probably guilty," "maybe guilty," "could be guilty," "was at the scene of the crime," etc. To convict someone, you have to know without a doubt that they committed the crime. Otherwise, someone completely innocent could get the punishment for someone else' crime. If the RIAA can't prove that someone else actually downloaded from a defendant's computer, they can't convict them by law. But then again, they are the RIAA so they can do whatever they want *rolls eyes*.

314.1.2008 23:25

When I pay for something, it's mine and I should be able to share it with who ever I please!

414.1.2008 23:32
WierdName
Inactive

Originally posted by lawe1:
When I pay for something, it's mine and I should be able to share it with who ever I please!
...The problem is that you paid for your usage of the file (you are talking about audio/video/software media right?). You didn't buy a license to give copies to every person you know, or don't know for that matter. What you paid for was a license to use it for your own personal purposes. Note however, that your own personal uses can be to share it temporarily such as to bring a movie over to someone else' house to watch. It would become illegal if you rip that movie and give that permanent copy away if you keep the original copy though. In other words, you can't give out a copy of your official copy unless you get rid of your official copy. You can share your official copy.

This article is about making your copy/copies of your official copy available. In other words, copying your original copy then putting that copy up for others to get. The problem is that you yourself didn't make whatever it is so you don't have the rights to copy off your original then giving away those copies. It's the same as if someone copied your work then just gave those copies away.
This message has been edited since its posting. Latest edit was made on 14 Jan 2008 @ 23:40

515.1.2008 2:20

What really pisses me off about this whole deal is that the record companies never had a problem with this back when they sold Vinyl and you could record the album to a cassette and do what ever you wanted with it!

615.1.2008 2:41

Originally posted by WierdName:
That is a very valid point. It is the law and duty of the jury to find the defendant guilty BEYOND A SHADOW OF A DOUBT or let them go. America wasn't built on "probably guilty," "maybe guilty," "could be guilty," "was at the scene of the crime," etc. To convict someone, you have to know without a doubt that they committed the crime. Otherwise, someone completely innocent could get the punishment for someone else' crime. If the RIAA can't prove that someone else actually downloaded from a defendant's computer, they can't convict them by law. But then again, they are the RIAA so they can do whatever they want *rolls eyes*.

Actually in civil cases, which is what the RIAA lawsuits are, the standard is simply a preponderance of the evidence, which translates in English to more than 50% sure.

715.1.2008 3:52

Yes in a civil case you only have to make a jury believe someone is guilty by the "evidence" you "provide". I would venture to say that the riaa lawyers pick the most computer illiterate people they can find to sit on these juries. Why? It's easier to pull the wool over their eyes due to lack of knowledge. If these cases were in criminal court I think they would have a hard time getting any "convictions".
Why? The means by which evidence is obtained is still questionable at best. The use of questionable tactics seem to be overlooked by the courts in these civil cases.

And it just proves the golden rule once again. He who has the gold makes the rules!!!!!!!!

Remember one thing be afraid big brother is watching you and your guilty until proven innocent and by then your homeless and destitute.

815.1.2008 4:34
WierdName
Inactive

Originally posted by Blackjax:
Remember one thing be afraid big brother is watching you and your guilty until proven innocent and by then your homeless and destitute.
....and the man-wife of cell block D. Unless of course you're female then you're woman-husband of cell block D.
As far as the 50% sure for a guilty verdict, I didn't know that. I'll have to look into that. Any way you look at it though, these lawsuits are BS! Just as pointed out by Blackjax, the evidence they provide was obtained in very questionable ways. Also, there seems to be some very computer illiterate people on the juries because a lot of the common sense stuff just doesn't seem to even be considered. That's just life for you though. Just like that one song, Highschool Never Ends. In this case, you got the winy kid who gets everything they want getting everyone else in trouble.

915.1.2008 8:29

Originally posted by wolfmanz:
What really pisses me off about this whole deal is that the record companies never had a problem with this back when they sold Vinyl and you could record the album to a cassette and do what ever you wanted with it!
Yup. Agree.
But at the same time, digital information wasn't a factor those days in age. Therefore limiting the amount of people you could "share" said records with. With the digital age, one song can suddenly become available to millions of people at once.
Yet, i agree.

Quote:
The civil liberties group that is determined to protect your digital rights has pointed out that there is no such crime as "attempted copyright infringement."
This is where the RIAA gets to flex there mafia muscles. Keeping in with what Vurbal stated, 50% sure, they'll find some way to nail 'em down enough to cover that 50% margin. And as was also pointed out, sometimes the jury selection isn't in the defendants favor. It's hard to have a fair, unbiased jury when there computer knowledge rivals that of my six year old who can effectively turn one on and find the games.

The RIAA found a way to please their employers, take some people down in an overstated effort to prove their worthiness, and fill their incredibly deep pockets at the same time. It's disgusting and wrong.

1015.1.2008 11:39
banned2X
Inactive

I download everything from flicks to songs BUT I remove them from the torrent upload list IMMEDIATELY and move to another folder. I hate to say this but this girl deserves a penalty...............NOTHING to the extreme of what she got, but a couple grand for being a dummy, a dumb frakkin' dummy. And I must say that for all practical intents and purposes............"making files available" is copyright infringement. DON'T MAKE AVAILABLE PEEPS! We all must cover our asses. Peer guardian, relocating files, not uploading. Let those in 3rd world countries and countries that don't participate in the copyright program do the uploading. Take Iran for example.............frankly, they don't give a shit about ANYTHING the U.S. has to say or do. Rightfully so as I'm in the U.S. and I hate the fact that my country feels it has the right to police every frakkin' country in the world. Once we attempt to do this with China...................the jig will then be up...............for US.

1115.1.2008 12:12

i think we need more combined programs, something maybe in rotating ftp instead of p2p. i dunno how it works, but i like Ed2k/Emule. i dont share anything but all the servers are none-the-less european.

1215.1.2008 16:41

Quote:
When I pay for something, it's mine and I should be able to share it with who ever I please!
No. That's the whole point of copyright law. You can't buy a book, make copies, and go into the book publishing business! Of course, you do own the copy you bought, and you can do whatever you want with that one copy... You can lend it, sell it, write in it, or burn it!

Quote:
What really pisses me off about this whole deal is that the record companies never had a problem with this back when they sold Vinyl and you could record the album to a cassette and do what ever you wanted with it!
It's always been a copyright violation to distribute unauthorized copies. The RIAA never sued anybody for making a copy for a friend, and AFAIK they've never sued anybody for emailing an MP3 to a friend. But, in the analog days they did go after people who were selling "bootleg" copies.

Quote:
The civil liberties group that is determined to protect your digital rights has pointed out that there is no such crime as "attempted copyright infringement."
If the EFF wins this one, congress will probably make it a crime! And, the judge in the Thomas case ruled that "making available" is a violation, so this is current case-law, until it's overturned by a higher court.

1315.1.2008 17:14

Quote:
As far as the 50% sure for a guilty verdict, I didn't know that. I'll have to look into that.
Try Wikipedia.

AFAIK, it's not a "guilty" verdict. The jury's decides if the plaintiff's claims are proven true or not, and usually if he/she was "harmed" or "wronged". Even though it's not a criminal case, the jury can decide to punish the defendant by making him pay extra with "punitive damages".

While were on the subject, the U.S. standard for criminal conviction is "beyond a reasonable doubt", not "beyond a shadow of a doubt". For example, it would be unreasonable for a jury to find someone not-guilty because of the slight possibility that the crime was committed by an idential twin that nobody knows about.
This message has been edited since its posting. Latest edit was made on 15 Jan 2008 @ 17:38

1414.2.2008 18:30

Originally posted by Shegax:
wow, well who uses kazaa anymore?
Very true my friend. Once Kazaa started having legal troubles that was the time that people went elsewhere and people that stayed behind well should have left and now they are stuck.

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