James Delahunty
14 Jan 2008 16:46
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