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Judge says making files available for download is distribution

Written by James Delahunty (Google+) @ 11 Dec 2006 9:00 User comments (43)

Judge says making files available for download is distribution The Recording Industry Association of America (RIAA) has filed thousands of lawsuits against file sharers in the United States claiming that the individuals infringed copyright by sharing music on P2P networks. The trade group has long stated that uploaders on P2P networks are acting as "distributors" but it wasn't until October that this claim was confirmed by a federal judge.
Judge Ann Aiken found that users of P2P software who make illegal files available for download (add to shared folders) are doing the equivalent of distributing the files which justifies a basis for a copyright infringement claim. This revelation came in the case, Elektra v. Perez. This case started like most others with information from MediaSentry resulting in a lawsuit against Dave Perez for illegally sharing music.

Perez denied the accusation of sharing files illegally and said even if he was responsible for the "perez@kazaa" account, simply having the files in a shared directory does not justify a claim of infringement. In this case, and some others, the defendant claimed that distribution does not occur until somebody actually downloads a shared file and that the RIAA should have to prove that distribution ever took place.

Judge Aiken ruled that the plaintiff needs to both demonstrate ownership of of the material and show that the defendant "violated at least one exclusive right granted to copyright holders under 17 U.S.C. § 106", continuing to say that making songs available for download fulfills the second requirement.

Ars technica

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43 user comments

111.12.2006 9:16

no comment?

211.12.2006 9:40

as i read this from my cubicle at a major law firm i can tell you the judge is right. you are acting as a distributer,not distributing, but it still falls under the same law.

311.12.2006 12:29

Yes that is true but still was just wondering if these Payed Sites like Napster and iTUNES. Will get caught in the cross fire. Since the users do not have any real hard copies of any music. Will they be exempted or will the RIAA go to the full extent of there power and push the envelope over board. and start prosecuting paying customers?

411.12.2006 12:59

Is that potentialy he could be a distributer? This is gonna cause a stir!!

511.12.2006 21:05

@ fuzzy I don't know about Napster but I don't recall EVER seeing a shared folder with iTunes that allowed other people to download whatever I put in there. Is it called iTunes Shared Folder? What we are talking about here is not a guy having files on his pc that he doesn't own the rights to but the guy who is making these files available for others to download from him. Totally different thing here. This decision echoes what I've been all along about uploading AND's all about intent. If I place 1GB of copyrighted files in a folder that is accessible to whoever is on the network then my intent is to share copyrighted files. By sharing them I am in fact distributing them. Same goes for downloading. If I download a file called SWE3_Revenge_Sith_Complete_Movie.AVI it is pretty plain to see my intent was to obtain this material, even though the downloading aspect hasn't been addressed by the major players. The only question remaining would be if my intent was to illegaly obtain it or not. Perhaps I believe that REALLY DOES own the copyrights to revenge of the sith and is george lucas incognito.... lol

612.12.2006 2:44

Judge says making files available for download is distribution Yeah so what Selling drugs is also distribution why don't they go worry about that

712.12.2006 11:18

umm... last time I checked the jail population that was incarcerated for NON VIOLENT drug crimes was at about 30% of the total prison population. They are chasing drugs so much that they have to release rapists, armed robbers and murders EARLY to make room for all those dangerous potheads...

not to be rude but your comment was rather shall I say half-baked lol

This message has been edited since its posting. Latest edit was made on 12 Dec 2006 @ 11:20

812.12.2006 13:29

I was thinking.. What if someone were to approach this from a different angle. Instead of creating software which you have to go and download, install and configure, etc.. Someone could write the software in a virus/trojan like way. It would be a program the you installed yourself, but what if it could be proven that it can be installed without your knowledge also. It could auto create online shares of the Microsoft default folders, "My Music", "My Videos", etc. Seems to me this would offer you some sort of plausible deniability. Would something like that work? Seems to me there are many ways of beating those money grubbers at there own game.

914.12.2006 12:52

I read all these post and some of you just do not get it it is simple did you pay for it. stealing is stealing when I first did this with napster back in 2000 before they were a paysite and there was really no law against it. I knew it was stealing I have not done any downloading since they started clampinmg down. I hated it but I get. just be glad they are only going after people who upload.

1014.12.2006 13:32

srry i was just reading about someone that the RIAA attacked a while back he had no P2P clients on his computer just ripped the music from cds or the stuff he got from Napster that was my real ?. Yes i know if you downlaod a app music etc. that was not purchansed by you, you will get cought its just a matter of time before they catch you i just would hate to see paying customers get jailed or even fined for crimes they didnt even commit.

1114.12.2006 14:10

And where files are stored on a third party's server and the third party does not know they are there, what then? Is that third party also guilty. Is there an obligation on the part of the third party to regularly sweep their servers to ensure that they are not being "shared". If the third party does not check the servers regularly and often are they, then, guilty of being distributors? reductio ad absurdam? The point is less concerned with the Law, Ethics and Morality as it is extracting money under any circumstances at all. Are the RIAA potentially guilty of vast intrusion and is the sort of fishing expeditions they carry out illegal? If yes, then are the members of RIAA also guilty and may they be screwed for vast amounts of money? Would it also be possible to screw each individual, personally, rather than them hiding behind the legal fiction of being some sort of entity. From a Christian point of view does this mean that the RIAA and its members guilty of a blasphemous reification in that the RIAA is given the same status as a living human entity at law? Does this mean that we ought to encourage all fundamentalist Christian Movements and Churches to burn the members and employees at the stake for blasphemy? May the RIAA be likened unto the moneychangers in the forecourt of the Temple? And we know what Jesus did with those! "Let him that hath not sinned cast the first stone" - ever heard this before? Do not officers of the court conduct themselves before or under the eyes of God? What would the Christian version of the jihad be, a crusade? Do we know any royal heads of state and or bishops?

1215.12.2006 15:00

whoa Tashammer, that was like.....really heavy. Are we not talking about music downloads.... where did that come from?

1316.12.2006 6:32

Dave Perez could have played dumb if they didn't snatch his computer. He should have installed a hard drive self destruct system. lol.

1416.12.2006 8:07

This should be an easy fix, Mr Perez. Any "Perry Mason" could argue that Perez may have lead the horse to the water but didn't make it drink. Case Closed !!!

1516.12.2006 9:02

If you think about it there is probably not a single person it the world that does not voilate copyright laws. I don't know anyone who has not shared information/data in one form or another that was copyrighted. Every time you "loan" a recording or book or other form of copyrighted material you are guilty. If you copy a recipe out of a cookbook and give it to someone you are guilty. I don't think sharing should be a crime especially since everyone, including that judge, does it. Anyone that considers sharing a crime is a hypocrite. D40

1616.12.2006 9:19

D40 in simple terms you make a good point but not thought out sorry. Loaning a recording or a book out or Writing down a recipe for someone out of a cookbook is a little different than uploading to the masses. How many times do you think that piece of music or movie that gets uploaded gets passed around the internet compared to the one or two that got that recipe, recording, or the book. One guy uploads it and from there it grows like a pyramid scam. Once it is one the net it like trying to take a drop of pee out of a pool.

Don't you hate it When people say, "It's always in the last place you look". What the HELL??? Of course it
is. Why the HELL would you keep looking for it after you've already found it?
Who the HELL are these people?

1716.12.2006 9:45

Oh I get it. Thanks for clearing that up for me. So it's OK to break the law in small quantities but volume is a no no. I think I finally got it now!

1816.12.2006 10:04

D40 thats exactly what I was thinking. slmh1296 "in simple terms you make a good point but not thought out sorry."

1916.12.2006 10:46

D40, if I loan a CD to a friend, that legal. It's when I take that CD and allow it to be distributed, that is illegal. Also known as publishing.

2016.12.2006 11:00

So, OK lets say I'm a real popular guy. I have a thousand friends. So if I take turns loaning it to each of those people (Assuming of course they would never do something so dishonest as make a copy for themselves..), I guess that's OK? But if I upload it to a P2P and share it with all of them at once now I'm a criminal, right? Come on guys I think the dividing line is profit or gain. I believe it should only be a crime to share a copyrighted item if you are selling it or making some kind of a profit from it.

2116.12.2006 11:01

Wouldnt that be the same as sharing the file? That person you "shared" the CD with could decide to rip it and distribute it. Does that make you a criminal for sharing the CD with a friend. Dont get me wrong no matter how its looked at it is stealing. To steal on thing ore thousands is still stealing. How about the recipe argument if somebody copies the recipe and distributes it is it copyright infringment. This is where all the argument comes from at what point does it go from sharing to stealing.

2216.12.2006 11:05

The music industry is saying you may not be benifiting from it but they are loosing money and thereby hurt because of it. I think if they dont want it shared then make it so it cant be shared. Good luck with that though. :)

2316.12.2006 11:05

Ah, now you've hit the nail on the head. The law is ambiguous and therefore should be decided in favor of the defendants untill such time as the law can be clarified so that we all know clearly where the line is.

2416.12.2006 11:20

I agree.

2516.12.2006 11:40

If I'm not mistaken, we ( the law ) already went through this process with video cassettes and cassette tapes. At that time it was ruled that copyright infringement wasn't taking place. People are taping radio, tv programs,and movies on tv everyday. Many make copies for their friends. The relevant legal point seems to be the volume of reproductions 'hand made' versus the wide spread downloading with P2P. I have taped Formula 1 races for my brother and sent them to him on DVD. The media is in the public domain since it's being broadcast over the 'public' airwaves. It used to be that the intent of the recorder was a critical element. If it was the public redissemination of a copyrighted event, that was illegal. If it was for personal use, that was okay. The judge is moving the line here.

2616.12.2006 12:44

i share file's but i DO NOT have a shared folder..BT you rule

2716.12.2006 12:57

D40 I agree with what you said about loaning or sharing copyrighted material is illegal. No matter amount of times I said it is a little different. I never said one was right or wrong. If your friend borrows a item and does not copy it and gives it back it does not matter how many times you let people borrow it that is not illegal. Soon as they copy it they have broke the law. But how do you bust people for that. Plus that is a small amount of what is going on compared to the internet and the millions and millions of people that download illegally ever day this same CD. but here is the difference the RIAA and other companies can track this and can bust people now because it is right out there in the open. If you copy it in your own home nobody is going to be peeking in your window waiting for you to click burn. Now if you are at your favorite music store walk in and shoplift chances are you have been seen you are out in the open just like on the net. So of course they are going to nail you more when you are out in the open. Let me ask you how much friend loaned illegal copies do you have compared to downloaded illegally items off the net. I bet most people have more illegal downloads. I believe music company's are losing money

2816.12.2006 15:44


2916.12.2006 19:02

ant4short when you type in all caps in a forum it is said you are yelling please turn the caps off.

3016.12.2006 19:07

d40 you said "Come on guys I think the dividing line is profit or gain. I believe it should only be a crime to share a copyrighted item if you are selling it or making some kind of a profit from it." Are you not profiting from it because you are not paying for what you download or share seems to me you would gain and the people who made it lose.

3117.12.2006 0:45

what i dont understand is this, the RIAA has just said that producers, artists, etc. are MAKING money now, so what do they turn their sights on, the ones they are supposed to look out for! They want the government to lower the royalties for the songwriters. Sounds like the RIAA is more of a hypocrit if they have to take more money from the people they are making lawsuits for. Its like a lawyer saying that his client is being robbed, but since he is still making money, he wants his fee raised.

3217.12.2006 3:34

I believe most marketed music coming out of the big record companies we can do without. That's just my opinion and doesn't imminently change anything. I do think that computer technology is constantly going to win out over the greedy corporations and their never-ending attempts to shape the constitution to suit their needs. This is where we need to focus our attention and efforts in my opinion. Allowing for Democracy to turn into Capitalism wasn’t the answer; that’s why we have screwed up laws giving them power in the first place, because they are the ones making such laws, and still are. Fortunately, if we are unwilling to put our voices together through the political system, inevitably we’ll play the game in their courts through the use of technology instead. Our ever growing network of open source programmers and the ‘exponential growth of accelerating return’ (as defined by Ray Kuzweil), that technology will get more powerful, smaller and cheaper exponentially, will allow us to come up with new ways to avoid the corruption of the corporate guys in their fat ass suits and wallets. Sincerely,

3317.12.2006 3:39

The basic truth is that Judge Ann Aiken is being paid by the RIAA and their cohorts or she's an idiot. Or both. If anyone knows her email, please forward this message to her. The RIAA and their ilk are nothing more then thieves,crooks and exploiters. Anyone who agrees or supports the RIAA in any way is also in their employ or benefitting from them in some way or is an idiot. Or all three. Need even more evidence of their perfidy? "RIAA seeks lower royalties for music publishers and songwriters" FUCK the RIAA!!

3417.12.2006 3:46

If Mr. Perez has to show "proof" of ownership of material, then the RIAA damn sure needs to provide "proof" of Perez's "sharing" of material.

3517.12.2006 5:38

Not that this matters to the RIAA but they may not be losing as much money as they think because alot of people are like me. If I really like an artist, I buy the cd or dvd. There is nothing on my computer I would have bought anyway and if I lost it all, wouldn't even go to the trouble of replacing them.

3617.12.2006 20:49

Is it any wonder that the RIAA has lost money for the past five years? Draw the line in the sand, and they don't expect anyone to cross? Did they miss the Davey Crockett story when they were little children? Or are they still little children?

3718.12.2006 4:12

should've stored his stuff on DVD-Rs if anything. I don't get why some people just get caught doing this when the RIAA is really behind when it comes to digital music.

3818.12.2006 4:22

wow, after hearing the last few postings, I have to say that the RIAA is really turning into an ugly, greedy monster. Jeez, they want to lower the Artist's Royalties, are they out of their minds. what the hell does that mean now. does this mean that the artists now have to work within the actual street team in order to make up for what they've lost in this Royalty-reduction business. it's no wonder alot of artists are going the Indie, no need for the middle man and they get more out of every album. it's a damn shame how the muthafuckas want to fuck the artists even more for whatever their reasoning, which might just be as shady as their .05 deals that they make when signing an artist

3919.12.2006 5:32

I agree it's all about the PROFIT. If they would make music downloads for $.50 or less instead of a $1.00 more people would be apt to do so. but our entertainers Singers/Actors have become so into themselves they forgot that we are the ones who elevated them to where they now are. People should quit movies and concerts to the ones who are trying to send us to prison/fines. They only understand their savings acct.

4020.12.2006 1:26

Originally posted by NINVIN21:
Judge says making files available for download is distribution

Yeah so what

Selling drugs is also distribution why don't they go worry about that
True that!!

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4120.12.2006 2:40

I think that if the RIAA has to go after the Customers and the Artists for money, then fuck them, I'm downloading I can until my heart is fucking content. I don't even care anymore. it's not like the artists make money off of these albums(that's why some don't give a damn, they're saying fuck you to their record companies by saying this)

4220.12.2006 15:27

I had a friend asl me if he thought P2P was going to be stopped and here is my reply: Well, what I see is a far more decentralized P2P. Some of those are already being used, like BearShare. With this system there is no centralized server, or tracker, just thousands of people somehow connecting directly to each other and sharing their files. I don't believe they can stop it any more that they could back in the sixties when the tape recorder became widely available. Just think of it, anyone can record music off the radio, or video off the TV, or buy one copy and make as many as they want. The internet makes it a bit easier but people who want too bad enough will use whatever means is available. Ultimately the only thing that can't be stolen is the live performance. It's the one thing you can't duplicate with a machine. Another thing is to look at the shear volume in the market. Sharing is not that big a deal when you consider the base that you are dealing with. The amount of sharing that goes on is a drop in the bucket compared to what gets sold through regular channels. Anyone who has done it can attest to how difficult it is to copy a video or burn music CD's. The vast majority of people don't have the skill or inclination to do it. I bet if you check up on it the money spent on lawyers, etc., to try to stop P2P, far exceeds any real losses the industry might have suffered. D40

431.1.2007 15:04

I agree with D40, I don't see any raids on manufacturers like SONY for selling free standing DVD duplicators with 5 & 10 burners, what reason could anyone have for buying a machine with 10 DL-DVD burners, copying DVD's? D40 is point on...anyone with the patience, hours of time & skills to covert 4to6+gig video files from DVD or Satellite/Cable to DivX or mpeg4's for their Archos, ZUNE, ZEN, PSP & iPod should be left in peace, they have earned their right to copy by spending big bucks on all that ancillary software & gear, and made the the industry richer.

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