Appeals Court Doesn't Buy File Sharers' Arguments
from the with-good-reason dept
A couple of weeks ago, for some odd reason, a bunch of blogs started reporting that Patricia Santangelo's fight against the RIAA represented the first person to fight back against an RIAA lawsuit. That's clearly false. We've linked to a number of such suits -- though most eventually end up being settled quietly. However, in one case where the woman lost the case and appealed, the federal appeals court has shot down her appeal and told her to pay $22,500. From the description of the case it sounds like the court made the right decision, actually. The woman's defense was that she was using downloading to "sample" before buying. Not only is that not actually a defense under the law, but it misses the point of what she was being sued for. The RIAA suits are all about sharing music, not downloading it. So the problem isn't (so much) that she downloaded songs, but that she left them in a sharable folder for others to download. Also, obviously, we're no fans of the RIAA's tactics (have you noticed?) -- especially their attempt to call infringement "theft" when even the Supreme Court says it's clearly different. However, the opening on this article makes it sound like the judges did say she was like a shoplifter, a charger her lawyer rightly calls "inflammatory." However, from the details, it appears that's not what the court was actually saying. They simply used a shoplifting example to discredit her (bizarre) claim that she shouldn't be found guilty because she shared less than others. In that situation, the court is absolutely right. That's not a defense at all. It's really too bad that this is one of the cases that went to court (and is now getting publicity), because it puts the focus on all the wrong issues and gives the RIAA another story to mis-use in talking about their fight against file sharing. While we believe the RIAA's strategy is strategically stupid, doing much more harm than good, that doesn't mean they don't have legal grounds to do what they're doing in many of these cases. The people who decide to fight back need to have legitimate arguments -- and this woman didn't appear to do so.
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stirring?
Mike are you stirring? You know a lot of the folk that come here believe it to be their devine right to ignore any and all laws relating to music copyright! Ok, now I'm stirring a little too ;)
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No Subject Given
Does this mean if I burn a mix CD to use in my car and leave it unlocked I am breaking the law?
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whats the deal
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Re: whats the deal
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It's not quite that simple
To continue you analogy, it would be like sitting in your car and handing the mix CD out the window when someone walks up and asks for it.
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Re: No Subject Given
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Re: whats the deal
The only feasible way to get around this limitation, without discussing illegal tactics, is to tune in to broadcasts which use the multicast protocol. I recall that a couple of global concert events streamed music this way. Of course, the downside is that you only listen to the music they want to stream and your ISP needs to support (enable) the multicast protocol.
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Re: No Subject Given
If I mark my MyMusic file as shareable... yes, that is probably with the intent to allow others access to my music files. Any you and the RIAA are right... it is wrong to do so. However, if I rip music from the CD's I own and move them to a file for temporary storage until I can organize them, and I didn't notice that the file I have them in is shared... that's not doing anything wrong.
That's the point of all of these articles. The RIAA is saying (by their actions, if not by their statements) that if you have any MP3's on you computer, you are hands-down a criminal. They are making the broad assumption that anyone who has files on their computer is automatically sharing them and that all people who share any files are doing so for piracy (yarr).
Sorry... if I have a text file for a game I created (role-playing, et. al.) and I want to distribute it through a P2P network... there's nothing that says I can't. Just because I'm sharing some file and have Kazaa or BearShare installed to facilitate that share, doesn't mean that I'm distributing bootleg copies of copyrighted material. That's what the RIAA can't seem to understand.
So the root of the problem is this. A big, deep-pocketed company is too lazy to examine each of the "thieves" they are accusing. So instead of reviewing, in depth, the circumstances behind each case (to avoid falsely accusing their own customers) they choose to just jump on everyone and anyone who might be a thief. And to make sure that they aren't discovered in their false accusations, they rely on the fact that they can afford more legal work than the people they accuse, thereby forcing a settlement. They're letting money do the talking here, not truth or fairness.
And, yes, there are false accusations going on. With the wide number of people the RIAA is accusing... statistically, they have to hit at least one innocent person somewhere.
Anyone else want this soapbox now that I'm done with it? It'd make a great endtable.
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Re: No Subject Given
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She's a fool
What a dumb ass...
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Re: No Subject Given
Simply-put: your statements (no, they are not arguments… you’re not making any points here) are moronic and ad-hominem. If you can't write anything about the issue, keep your mouth shut. Don't go around looking for a fight just because you're insecure about yourself and have to prove yourself through the anonymity of an internet post-board.
You’re welcome to express your opinion… just don’t expect anyone to take you seriously when all you do is devolve to junior-high level of attacks against people. Time to grow up.
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Re: No Subject Given
on to your next statement about a file for a game you are making... guess what RIAA is not suing people who have bearshare installed RIAA is suing people who share ILLEGAL COPYRIGHTED material and companies like bearshare themselves for promoting the sharing of illegal files. Now while some people myself included rely on legal file-sharing to distribute products, when a company has more than 75% illegal files being shared... than there is a problem there, and were I in RIAA's shoe's I would do the same thing. I would much rather RIAA solve the problem, so companies like sony don't have to try all this rootkit crap. All of you terrible music sharers are screwing over us people who actually want to buy our music and put it on our I-Pod!
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Re: No Subject Given
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Re: No Subject Given
Read the second link to the old Techdirt story.. It is not stealing, nomatter how many insults or childish tantrums you throw. It isn't right, and it isn't legal, but it's not stealing.
And by the way, I don't think there are many people who are reading your side, much less taking it, when it has the flavour of a drunk high school kid. Are you a lawyer, by chance?
Your arguments (which need to be deciphered from the venom and immaturity) are flawed and show a poor understanding of the whole situation.
But thanks for wasting Mike's server resources with that.
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Re: No Subject Given
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Re: No Subject Given
You are absolutely right... ignorance is no excuse for the law. My point, however, was that it is possible that some of the people being accused are not guilty. My problem with the whole thing is that the RIAA is not even considering that possibility.
Yes, the RIAA is doing the right thing in protecting the intellectual property of the artists they represent... they are just doing it in a very heavy-handed, generalizing and callous way. And for a business (or for an entity representing a business) that's a bad idea. "Hey customers, we don't care why you have those files on your computer. We don't care why you have that P2P program. We're going to sue for piracy." Not the greatest of messages to send.
For your statement of "guess what RIAA is not suing people who have bearshare installed RIAA is suing people who share ILLEGAL COPYRIGHTED material and companies like bearshare themselves for promoting the sharing of illegal files." Well, there have been plenty of stories where the RIAA's case was little more than having a P2P program on the accused computer. Suing the P2P provider themselves...well, that's a different discussion all together.
Yes, the illegal file-sharers are hurting the industry... but they are not alone in that. Good or bad, right or wrong, it’s the truth.
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Re: No Subject Given
The difference is that the P2P network user installed software specifically to enable others to locate and copy files from you. They overtly, by intention or negligence, shared copyrighted works.
The analogy to leaving a mix cd in your car and a thief stealing it is more akin to being infected with some sort of malware and having your files shared without overtly acting to do so.
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Re: No Subject Given
Granted, it's not a real strong argument on the RIAA's side, but it worked...
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As far as P2P networks go, it just replaces people sharing mix tapes or mix cd's. If something is a replacement activity could one really say that's it lead to a massive decline in sales?
This is not only about the money though, it's about complete control over consumers.
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the only safe thing to do-buy, buy, buy!
Buy many copies of CDs:
buy one for hone,
buy one for work,
buy one for school,
buy one for the car.
Buy as many more copies of cds you can think of.
no downloading of music,
no burning of cds on the computer.
no copying of cds.
What I'm saying is-if you want copies of cds-you have to pay for them! This is the reality we are facing today. No one wants to pay $18.00 per copy. But I'm convinced that you must if you want copies of it. I know it's not an attractive idea to people. But when one makes copies of cds or downloads them-stands the risk of being sued by the RIAA.
So you want copies? Buy them! It's the only safe thing to do.
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Re: No Subject Given
While some people are attacking Pariah for the above statement, he's actually making a very good point that is currently being argued in various courts. Some courts have said (contrary to what some are saying in these comments) making available is not distributing.
While some people are trying to paint this as a black and white issue, it's a lot more involved than that. The lawsuits are all for "distribution" of unauthorized material. So, the question that is being raised is whether or not having copyrighted material in a shared folder is equal to "distribution." The computer owner could claim that even if the content is available, no one has downloaded it, and, thus, no distribution has taken place. Some courts have agreed (in both the US and Canada).
So, that would be a valid argument -- but it's not one that the woman in this case used. Of course, there's a simple response to this by the RIAA: they just need to download the songs from these openly shared folders -- and then they can prove distribution.
The point, though, is that Pariah did ask a valid question.
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Re: No Subject Given
I don't have any of these problems!
I'm not being sued, and I'm saving a whole lot of money by simply turning on the radio and listening to whats available to me. it's just noise that helps me sleep at night.
I think if anyone should be sued its not the one who shared the music they downloaded, its the one who actually put the CD in ther CD ROM and intentially COPIED it to thier HD. and unless you can prove that, then you don't have a case. and if your not the one copying the CDs to your HD then stop downloading it because it is STEALING.
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Re: the only safe thing to do-buy, buy, buy!
Start looking for alternative distribution houses that use non-DRM MP3s as their distribution source and buy their music. Buy as much of it as you can and watch the RIAA shrivel and die.
This is about full control. Corporate control of the copyrights that no longer expire at the artists death as they should, control of the manufaturing and control of the distribution. Like the guild's of old in England the U.S. public no longer owns any intellectual property. The corporations own it forever as the public domain concept is lost from our copyright law.
Yes, it is illegal to share copyrighted music. Yes, people are not being careful enough when they install P2P software to turn off sharing files be default.
and
Yes, the RIAA technically under current law has the right to sue for every piece of music that is illegally shared.
This is how it should be. Artists and corporations should be able to make money from the material that they create. This also should lead to more good material being available to us for consumption.
However, the RIAA should not have the legal right to tell me what I can do for my own use with a piece of music that I have purchased. It also shouldn't have the right to own a piece of music after the original artist has been dead for 20+ years. More music needs to enter the public domain to be freely enjoyed and performed by more people.
This is the ideal content to be on P2P networks not pirated stuff. It is time for us all to put more energy into buying music from alternative distributors and talking to our representatives that we want U.S copyright law to be enforced as it was originally intended. When the artist is gone and their wife is gone their music should become free for the masses to share and enjoy.
Think of the music, plays and art that we could all enjoy for free and the extra quality that would go into new content to entice us to purchase it versus using the public domain music.
Ok, flame war to follow.
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Re: No Subject Given
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Re: the only safe thing to do-buy, buy, buy!
Are there legitimate places that sell non-DRM files such as MP3?
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Any other way...
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Re: the only safe thing to do-buy, buy, buy!
What is permitted under the law? One needs a legal scholar to know the answer to this.
I think the RIAA is misleading people as to what the law permits-they take advantage of the confusion. But I couldn't tell you how they are doing this because even I don't know what the law is.
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Re: whats the deal
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No Subject Given
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Re: No Subject Given
The music (a sequence of notes) and lyrics are both copyrighted, as well as the performance. Doing your own cover version only gets around the performance copyright.
Here's a better solution; support unsigned artists who make their own original music available for download in unrestricted formats. They're a little hard to find sometimes, but they are out there!!
http://www.goingware.com/tips/legal-downloads.html
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Re: No Subject Given
Rikko's right.
If you hacked the recording studio and stole the files directly from them, yes it would be stealing (they are the owner).
If someone buys the cd and dupes it then sends it out to anyone, thats not stealing, thats a violation of copyright laws. totally different.
You didnt steal it from the owner since it was purchased legally and was offered freely. Even the person offering it isn't stealing since he/she purchased it to begin with.
That is (I think anyway) the difference between thinking emotionally and thinking logically.
Emotionally people associate things incorrectly, he stole that from the record company by not paying for it. How if the goods were no longer owned by the record company? This is the definition of stealing:
stealing
n 1: the act of taking something from someone unlawfully;
Since the things were offered (even possibly unknowingly, shame on those dimwits who aren't smart enough to stop doing things they shouldn't) nothing was stolen. Copy rights were violated yes, but nothing was stolen.
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Re: No Subject Given
So if it's a credited tribute that you're giving away for free... feel free to thumb your nose at the RIAA as you wish.
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Re: whats the deal
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Re: whats the deal
Have you noticed it slowing down overall in the last year or so? I have. And guess what? YOU ARE THE REASON!
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My problem with all of this...
What exactly happened to this?
This isn't an issue of whether or not someone is actually doing anything illegal as far as I'm concerned. It is whether or not their actions can be PROVEN beyond a reasonable doubt. This seems to be a step all too often skipped by the RIAA/MPAA. I have a huge problem with this.
I don't encourage filesharing. I encourage boycotting. EVERYONE should join me. Just a suggestion...
However, with bittorrent as an example, how can "DISTRIBUTION" ever be proven?
It surely can't be enough to see an old log from Suprnova.org that says I downloaded a 15k .torrent file. Just because I have a small .torrent file does NOT mean I actually downloaded the copyrighted material it links to. And therefore I definately didn't DISTRIBUTE.
Also, even if I did use bittorrent to download a copyrighted file and I started uploading bits and pieces of it while it was downloading (because that's what bittorrent does), it is still ONLY bits and pieces.
Unless I leave the file uploading for months at a time, I will NEVER NEVER EVER actually send the ENTIRE file to any single person. Therefore I am not DISTRIBUTING the whole, completed, and viewable work to any single person.
I am only sending pieces of the data (1's and 0's) to several different people. Those pieces by themselves are completely useless and not viewable. So how can it be proven (beyond a reasonable doubt) that even uploading a little bit of a file is actually "DISTRIBUTION?"
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Definition of theft and stealing as opposed to cop
Posted by nunya bidness:
you are in posession of something that you did not pay for,and were supposed to, that is stealing.
No, this is at best called possession of stolen property, assuming you can't be proven to have done the taking of it.
Posted by nunya bidness:
This may be the definition of the word stealing and you're closer to the mark than nunya bidness was. Here's the thing, though: stealing is not the same thing under the law as theft. The law has several clearly defined aspects of "stealing" which we would all consider "stealing" but are technically different crimes. As an example, in Washington State "theft" is defined very clearly here. What it boils down to is in Washington State theft requires the thief to deprive the owner of something. When it comes to copyright violations, you aren't deprived of your work; rather, your right of exclusive control over distribution has been violated.stealing n 1: the act of taking something from someone unlawfully;
Here's a real world example: I am the current copyright holder of much of my father-in-law's original photographs, for example. I, as the copyright holder, license certain magazines and publishers of calendars to reproduce and distribute copies of the works. They pay me royalties for extending them this privilege. If someone were to redistribute a digital copy of one of these original works of art via P2P, copyright law would be violated. If someone stole the original negatives, however, then that would be theft under the law.
This is really the cause of all the confusion over what the Supreme Court decided. When Mike states (and rightly so) that sharing out copyrighted music, or whatever, over peer to peer networks is not the same as shoplifting, he is absolutely correct. It may be "stealing" as popularly defined but it is NOT the same as shoplifting (Theft, 3rd Degree in WA State).
Hope that helps. As a copyright holder myself, even I was confused at first.
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Re: Definition of theft and stealing as opposed to
stealing n 1: the act of taking something from someone unlawfully;
Sorry; that was posted by Anonymous Coward, not nunya as I posted. Copy and paste is usually your friend.
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Re: No Subject Given
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ONLY THE LAWYERS WON
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Re: whats the deal
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Re: No Subject Given
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Re: Definition of theft and stealing as opposed to
Theft
"(a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services;"
The service is selling music.
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Re: the only safe thing to do-buy, buy, buy!
Then again, a thought, isn't copyright laws to protect someone else from making a monetary gain on your work? Or does it include the loss of revenue due to massive replication and distribution?
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What is wrong with you people
nunya bidnes
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Re: What is wrong with you people
But all of that is outside what this whole RIAA thing is. The problem that I am having (I can't speak for everyone else here) is that the RIAA is not after its lost sales. It may say that it is, but that's just the yummy sugar-coating it's putting on this to hide the fact that they are just after control.
Yes, it's all just another facet of the same thing we see everywhere else... Greed. Greed for money, power, what have you. But the point is that the RIAA is pissed because they no longer have as much of a majority of control over the distribution of something that should be free in the first damned place. It's music. It's something that should enhance and beatify our society and civilization. Not something that should be used to get rich.
Now I know, I'm being tree-huggy and idealistic. But it pisses me off that the RIAA is taking advantage of its financial resources and availability of lawyers to strong-arm people that are innocent, just because they are trying to intimidate everyone. Say what you want, but not everyone involved in this is guilty. Not everyone involved are criminals.
As far as supporting artists... I do. If I hear music that I like, even if a friend "loans" me a copy of their CD, I'll go out and buy the original. One, I like to have the cover art and the little snippets in the liner notes. Two, I have no other way to support artists (unless I just mail the artist check or something). I don't like how so little of my money gets to the artist, but there's nothing I can do about that as a consumer.
I also go to concerts, but then again, a lot of the money for that goes to the ticketing agency (I hate Ticket Miser almost as much as I hate the RIAA).
I have quite a bit more to say, but I'm devolving into a soap-box rant... and work is calling.
Again, Nunya, good points.
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Re: What is wrong with you people
When someone buys my product and makes it available to others so they can all make copies, that is stealing plain and simple. No play on words can make this right. It is definitely not sharing, like sharing a sandwich, or lending a cd that you own to a friend.
Again, this is not true. The Supreme Court has said it's not true. It *IS* infringement and it *IS* illegal, but it's not theft. For it to be theft, someone would need to be deprived of something, and in this case no one is. Saying it's theft instead of infringement clouds the argument. We're not saying it's "right" at all. You need to separate those two things. It's illegal, but it's not theft.
If I only sell one product and millions are using it by obtaining copies of it, that means lost sales and I won't be doing that again.
This makes a lot of assumptions, some of which are quite problematic. "Lost sales" is not a valid term here. If I set up a pizza shop, charging $10 for a pizza and someone sets up a shop next to me charging $5 -- all the sales go to him. Are those "lost sales" to me? No, it's because I didn't compete.
Yes, the music situation is different, because it involves intellectual property, but I'm isolating the "lost sales" problem, which is a useless term because it's impossible to define "lost sales". Many people choose not to buy. Are those "lost sales"?
his whole file sharing thing will hurt everybody in the end, it is sad that many people are too short sighted to see what is happening.
On a first pass, it may seem that way, but plenty of independent studies have suggested this is not true. Again, I'm NOT saying it's not illegal or wrong. I'm just saying the actual research suggests the impact is not what you claim it is. Getting more people to listen to your music can be a net positive. The music itself acts as an advertisement for other things -- which could include a CD, merchandise, concert tickets, and plenty of other things.
Please stop hiding behind legaleze like "sharing" and "copyright laws", etc...you sound like criminal defense lawyers.
It's not "legaleze," we're trying to have an honest discussion.
here is still going to be financial consideration in music distribution, maybe directly to the artist, but it cost money to produce it. If there is no money to be made there will be significantly less music available to everyone, and I personally do not want that to happen. Let's look toward the future, feed and nurture it, so it may grow.
Business models can change. There's nothing that says the money has to be made directly from selling the CDs or the music. In the past, we've pointed out plenty of other business models where the music is given out for free -- and that helps sell other stuff.
Again, PLEASE understand: copyright infringement is illegal. I'm not defending it. I don't think it's right, and I don't do it. The law is clear on that. The point we're making is that (1) the genie is out of the bottle: a lot of people are file sharing already and aren't going to stop no matter what you or the music business says. (2) there are ways to then embrace this, making everyone happy. Calling people thieves for simply wanting to listen to music that they wouldn't buy otherwise sets up a very antagonistic approach that isn't likely to help anyone.
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Re: What is wrong with you people
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Re: What is wrong with you people
Which actions are you talking about? How many times do I need to say I don't download or share files?
I'm just calling a spade a spade
Except you called it wrong.
Business needs to make money in order to survive.
Right. Absolutely. And didn't my post explain plenty of ways for that to happen without necessarily selling music directly?
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Re: What is wrong with you people
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Re: What is wrong with you people
Heh. Indeed, we agree on that point. I'd just say, by the way, that most of the studies on the types of bands that benefit from file sharing suggest two things:
(1) the mega rockstars (the ones most likely guilty of what you suggest) go away.
(2) instead, we get a lot more musicians who would have been left behind before, who become reasonably successful.
In other words, by figuring out alternative business models, it should help those musicians you seem more inclined to *like*, by changin the incentives of the music business.
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Re: What is wrong with you people
If you know who made Apostrophe you know where I'm coming from. Sorry if my bordom at work lately made me say things to piss anyone off, but I was having fun. By the way, anybody who thinks I was immature and evil or "venomous", you ain't seen nothing. Go buy some good music if you can find it...
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Re: the only safe thing to do-buy, buy, buy!
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innocent until proven guilty
this RIAA stuff is all civil. in a civil suit you don't enter a plea of guilty/not-guilty/no-contest because you cannot be found guilty. you may be found liable and have to pay restiution, but you will not be found guilty and sentenced.
that is why some who have posted here are sensitive to the terms theft and/or stealing. those are criminal offenses. copyright and intellectual property violations and disputes are civil matters.
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