MPAA Explains Why Proof Shouldn't Be Necessary In Copyright Infringement Cases

from the who-needs-evidence? dept

Mon, Jun 23rd 2008 7:31am — Mike Masnick

The entertainment industry has been pushing for courts to rule that simply "making available" content for file sharing is the equivalent of copyright infringement. There's a big problem with this, however. Copyright covers a few different things, and the key ones under which most people are charged is unauthorized "distribution." But, if there's no evidence that a file was actually shared, it's difficult to see how distribution actually occurred. Basically, those who say making available isn't distribution are simply saying that for someone to be charged with unauthorized distribution there should at least be proof that distribution occurred. In most (though not all) cases, the judges have seen this and ruled that simply "making available" is not distribution.

In the one high profile case that a judge ruled otherwise, the infamous Jammie Thomas case, the judge has now admitted that he may have made a "manifest error of law" and has asked parties to file briefs to give their thoughts on the making available issue. The MPAA has taken the opportunity to basically say that it's too difficult to find actual proof, and therefore they shouldn't have to do so:

"Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.... It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement."

In other words, since it's difficult to get proof, we shouldn't have to provide proof. This is especially problematic given how flimsy the "proof" that the entertainment industry already relies on.

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Filed Under: copyright, making available, proof
Companies: mpaa

43 Comments

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Steve R. (profile), 23 Jun 2008 @ 7:48am

Due Process Anyone ???
Robespierre would be proud that the MPAA is emulating his techniques.
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Anonymous Coward, 23 Jun 2008 @ 7:49am

Would it count as "proof" if the MPAA downloaded the "made available" content themselves?
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Devious, 23 Jun 2008 @ 8:05am

How about this...
Lets get the MPAA and RIAA going after criminals and product owners, seriously. If you leave your CD's in your car, you are "making available" because someone could come along and steal them. Therefore they are commiting Copyright Infringement since they took your CDs from you. And you should get in trouble because you left them in your car therefore you made them available. This also applies to your home where you keep your DVDs, they are available for a burgular to steal and take, therefore the burgular is commiting Copyright Infringement and you are a crimnal for making them available. The should sue Wal-Mart too for making DVD's and CD's available and they should sue those that might shoplift said CD's and DVD's for Copyright Infringement.

It is a sarcastic stretch but it is all coming to this one day.
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Anonymous Coward, 23 Jun 2008 @ 8:22am

Re: How about this...
It'd only be copyright infringement if they came in, you made them copies of your CD's and DVDs and they left you with the originals. The fact that you gave them copies makes it infringement.

If they took your originals without your permission, that is theft, but not copyright infringement.
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Ulle, 23 Jun 2008 @ 8:25am

This line of thought should scare the hell out of all Americans, imagine if the courts are to accept this, how long before law enforcement agents start using the same line of BS. Well your honour, we don't have any proof that the defendant actually robbed the bank, but he was seen on the same street that the bank is located the same week the robbery took place so we want this court to find him guilty on our word.
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Chronno S. Trigger, 23 Jun 2008 @ 8:26am

Re: How about this...
If you have windows and iTunes or Napster or any other download service you are "making available". Windows has this default function of creating a share called C$. It shares out the entire C drive (as well as any other drive) and cannot be unshared.

Not as sarcastic of a stretch and it will probably come first.
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Chuck Norris' Enemy (deceased), 23 Jun 2008 @ 8:37am

Criminal or civil
Criminal cases are required to show evidence beyond reasonable doubt. These MPAA/RIAA suites are civil suits where the burden of proof isn't as important. That is why O.J. was acquitted in his murder (criminal) trial but found guilty in his civil trial. He got to walk free but as a poor man. So showing evidence that an individual put copyrighted material in a public/shared location might be enough to say it may have been copied to make them liable for infringement in a civil court.
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BillGod, 23 Jun 2008 @ 8:38am

too hard to prove??
"It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement."

Couldn't people being sued currently use the MPAA quote above as their WHOLE defense? I mean they just admitted in court that it's impossible to find out the info.
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deadzone (profile), 23 Jun 2008 @ 8:41am

Seems simple...
"Burden of Proof" falls upon the MPAA/RIAA just like in any other case. Why should they be allowed to essentially not prove their allegations because it's "harder" for them to show the burden of proof?

If an individual has distributed something that the MPAA/RIAA owns illegally then the MPAA/RIAA should have to prove it with actual evidence of wrongdoing instead of basically an allegation of wrongdoing.

It's shocking that the MPAA/RIAA have been allowed to litigate in this manner for so long!
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Voice of Reason, 23 Jun 2008 @ 8:43am

Does anyone believe...
That files published on bittorrent or through other file sharing networks are done so with the intention "not" to be distributed in violation of copyright?

I guess this is just the standard sort of free-beer groupthink that passes for reason on anti-intellectual property websites these days. Most of you people probably have never been on the other end of massive copyright infringement of your IP. But what's fair is fair.. if something took money time, and effort to create and was created with the assurance that by law others must pay for a copy, not paying is stealing. If you want to change the law such that IP producers can expect no more protection and no longer bother with the current IP business model then go ahead. Just don't pretend that excuses like "how could she know that her files would be downloaded on bit-torrent" is a proper legal excuse.
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sonofdot, 23 Jun 2008 @ 8:56am

Re: Does anyone believe...
Voice of Reason, my ass. You're more like the Voice of Misinformation. You don't have a clue what you're talking about, asshat. Go off and play in the sandbox with angry dude.
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Scote, 23 Jun 2008 @ 8:56am

Talking MPAA Barbie: "Proof is hard..."

Too effing bad. If you get to demand $150,000 per incident you darn well have to provide proof of infringement. Because of the ridiculously high civial statutory damage awards in copyright cases (meant for commercial piracy operations) a copyright owner has essentially more power than a local prosecutor and a lower standard of proof, so the least the **AA's should have to do is prove their case.
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Anonymous Coward, 23 Jun 2008 @ 9:14am

Re:
No, because you can't infringe upon your own copyright. If the RIAA or MPAA downloaded their own content they'd be "stealing" from themselves.
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comboman, 23 Jun 2008 @ 9:15am

Re:
Would it count as "proof" if the MPAA downloaded the "made available" content themselves?
Hard to say. It might be seen as entrapment.
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Anonymous Coward, 23 Jun 2008 @ 9:17am

Re: Does anyone believe...
Depends. Files can be distributed on bittorrent and not be copyright, but the situation you describe is (usually) just that.

However, the **AA have been using such evidence as 'the computer was connected to the internet during the month of ' and due to the fact that they use the money they get from cases to fund other lawsuits, removing the burden of proof is basically giving the lawyers a blank cheque signed by every person that has internet access (and not always then).
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David, 23 Jun 2008 @ 9:20am

Re: Re: How about this...
It is also "Fair Use" under RIAA and MPAA rules :)
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Mike C., 23 Jun 2008 @ 9:21am

Re: MAPP download as "proof"
This won't work because the issue is supposed to be whether or not the content was "distributed" to an UNAUTHORIZED individual. A copyright holder is implicitly authorized to download their own content. Similarly, an agent of the copyright holder (e.g. MediaSentry/SafeNet) is also authorized.
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icepick314, 23 Jun 2008 @ 9:31am

WTF?!?!?
normally when you can't prove your case in a lawsuit, like it or not, the case gets dropped...

why is RIAA/MPAA think they are so special?

how many times did defendant in a murder trial got the chair because the state prosecution said it's too hard to prove their case?

MPAA's explanation is just downright funny...but not ha ha funny...
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ehrichweiss, 23 Jun 2008 @ 9:38am

Re: Re: How about this...
You speak the truth and it's only going to get worse as the new network-capable hard drives are starting to appear since you configure them to share, usually with little security, to everyone on the network but if you aren't a sysadmin, there's a high probability that they are going to end up sharing it on the WAN(the "intrapipes") instead of just the LAN(your local network).
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Dan, 23 Jun 2008 @ 9:41am

xbox
If you have an xbox 360 or a media pc you can make your files available on your network so you can watch movies or listen to music from other computers to the other devices on your network same with the ps3 and any network video/media player. Most of these devices come with some type of software to do this. Is that copyright infringement as well because I have the files available for my personal use anyone that connects to my open wifi network can get to these files as well and copy them if they want to its not on a torrent site or some other file sharing site just on my network. with a always on internet connection the files are available there if any one has the knowledge to get past my firewall and connect to my network has access to these files
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Anonymous Coward, 23 Jun 2008 @ 9:48am

Re: Re: How about this...
i wish the scenario you describe were the case, then I could store all of my mp3's in a shared folder without fear. However, as it stands now, even though I didn't "give them a copy" as you say, the RIAA still argues that I am distributing.
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deadzone (profile), 23 Jun 2008 @ 10:07am

Re: Does anyone believe...
No one is saying you don't have a right to protect what you own. We are simply saying PROVE IT - in the same way everyone else has to.

An alleged act is not proof of wrongdoing until it is demonstrated to be a fact in a court of law under strict adherence to the "burden of proof" that must be provided. No individual or entity can simply state that it's "too hard" to show proper burden of proof and have a ruling in their favor.

I am sorry that you are having problems but Due Process applies to everyone and everything regardless of the situation.
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Anonymous Coward, 23 Jun 2008 @ 10:14am

Re: Re: MAPP download as "proof"
Actually it would suffice unless the person sharing could prove they knew they were sharing with the content owner.
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Matt, 23 Jun 2008 @ 10:23am

And for that matter...
Probable cause can be difficult to find, so let's use the same reasoning to abandon the fourth amendment...
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Anonymous Coward, 23 Jun 2008 @ 10:27am

So if that's true.
" It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement."
Well the MPAA / RIAA / Ect
They all stole all my music ideas, I don't have any direct proof, but it's very difficult because of the modern form in how they stole all my music / movie ideas.

Think I can go after them for a few Billion ?
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Mike, 23 Jun 2008 @ 10:33am

Public libraries "make available"
Are public libraries "guilty" of "making available" because they offer both books and photocopiers in the same facility?
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Kozlo, 23 Jun 2008 @ 10:42am

Re: Re: How about this...
Administrative shares can be "unshared". Also note these shares are by default only accessible to systems on your subnet part of the local "users" group.
http://www.windowsnetworking.com/kbase/WindowsTips/WindowsXP/AdminTips/Network/DisableWindow sNTW2KXPHiddenAdministrativeShares.html
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Anonymous Coward, 23 Jun 2008 @ 10:51am

We don't need proof and she owes us $200,000 period. All of our hard earned money we pay to congress should be all the proof we need.

We have murderer's walking free because of lack of proof. Why should the **AA's get to extort money from whomever they choose without having to actually prove anything? They really are delusional.
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Another Dan, 23 Jun 2008 @ 11:02am

Re: xbox
In your example, I would have to say no, because they had to bypass your firewall. A firewall should be considered a reasonable security measure by the court. If everything was open and they just had to come in and get it, the *AA's would say "Ya, that's making available".

Of course, if your made your network available version from originally encrypted media to begin with, the point is moot thanks to the DMCA.
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Carl72, 23 Jun 2008 @ 11:08am

I have an idea...
...how about all IP owners who are really for our current state of copyright law simply don't produce anything. Because really by creating things you are making it availble to be stolen and thus in violation of your own copyright.
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snowburn14, 23 Jun 2008 @ 11:13am

Re: #25
I like that. In the (hopefully) unlikely event that their argument wins any judges over, I would LOVE to see everyone sued by the industry file a counter suit alleging that their copy is in fact the original, and it was the record/movie company that stole it and distributed it without their permission. And don't ask for proof, because they're very clever technopirates and it would be too hard to get any evidence to support the claim...
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Sean, 23 Jun 2008 @ 11:21am

Re: Re: Re: MAPP download as "proof"
So you only allow others that are sharing to DL from you and then once some one dls from you have the program DL one ot there files. That way if they received a file from you you did the same from them. Allowing you to show they were doing the same thing they accuse you of doing if they do not own the distribution rights to it. In the event that they do have the rights to distribute the file and you have now received it from them you will be able to limit your liability since files were received from an authorized source who openly shared the files.
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PaulT (profile), 23 Jun 2008 @ 12:04pm

Re: Does anyone believe...
Oh dear, let's list the errors here:

1. Nobody mentioned Bittorrent, so stop with the strawmen. This is about standard P2P programs where the program has a setting that tells it which folders to share online. This is normally a documents or music folder by default, so the user needn't be aware that it's being shared to begin with.

2. The owner of the account may not necessarily be the user of the computer. The person who is infringing may not be the person in court. Remember, IP spoofing has recently been shown to "prove" that a laser printer was used to download music while the RIAA's evidence has still not resulted in a single prosecution from being upheld in court.

3. "not paying is stealing.". No it's not, by any literal or logical interpretation of the term.

4. "If you want to change the law such that...". Nobody's arguing for a change in the law here. The simple facts are that the people who are being sued are the same people who buy music - there are many studies available that prove this. Changing the business model so that any infringement does not affect the core business is what's necessary here, not legal action.

5. "if something took money time, and effort to create and was created with the assurance that by law others must pay for a copy,". Many of us here would argue that the people who only create music in return for financial riches are the people who have no business polluting our culture with their music to begin with...

Fortunately for us, the artists and consumers who understand that your arguments are stupid and counter-productive is increasing constantly.
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Anonymous Coward, 23 Jun 2008 @ 1:03pm

If the store owner is "making available" the merchandise and someone takes it, is the store owner in violation of copyright?
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Scote, 23 Jun 2008 @ 1:17pm

"If the store owner is "making available" the merchandise and someone takes it, is the store owner in violation of copyright?"

No, it is worse than that, far worse.

Under the shaky theory of "making available" as a copyright crime, nobody has to **do** anything. The mere fact that a copyrighted work is *available* at all is what the **AA's claim is a violation of copyright, because somebody could theoretically make a copy, in whole or in part, of the work if it is "made available. That's why "making available" is such a crock.

If you loan somebody a book or CD, you are "making available"--regardless of if they copy it. If you have books in your home or office where people have access to them you are "making available." Anyplace that loans or rents books, magazines, newspapers, CDs, DVDs, etc. is "making available" even though public libraries and private video rental stores are completely legal.

"Making available" makes everybody a copyright criminal liable for nearly unlimited cash damages, with no need to prove any copying or any intent to copy. "Making available" is crap.
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zcat, 23 Jun 2008 @ 1:17pm

"proof that anything was made available" ?
I think we're all chasing a strawman here; it doesn't really matter that much 'actually transferred' vs. 'made available'. I think the distinction we should be looking at is 'proof that the file actually was being offered by the machine at this IP address, right now' vs. 'some RIAA computer got told by a tracker / emule client / whatever that some IP address has the file, although it might have been spoofed or it might have been a totally different person who had that DHCP-allocated IP address a couple of hours ago or perhaps even yesterday'
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Kyros, 23 Jun 2008 @ 1:29pm

So I called the MPAA
So I just called the MPAA asking about this statement...they didn't have a reply. They just said, "umm....could you email me that so I could have an aid respond?"

Office of the Chairman and CEO
Washington, DC
1600 Eye St., NW
Washington, DC 20006
(202) 293-1966 (main)
(202) 296-7410 (fax)
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Anonymous Coward, 23 Jun 2008 @ 1:55pm

Re: Does anyone believe...
Uh, you're talking BitTorrent, which is a legal way to share files.

I believe it exists in the "head shop" exception ('...you agree to only use these rolling papers and bongs to smoke tobacco, and only if you are of the legal age to use it...') but you're shooting the messenger to go after BitTorrent.
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Anonymous, 23 Jun 2008 @ 3:03pm

Massive but unprovable?
Anyone else wonder why something so "massive" is unprovable? What else is massive but unprovable? Would it be more provable if it were less massive?
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John Wilson, 23 Jun 2008 @ 8:02pm

You can always move to Canada...
Where, should the latest amendments to the Copyright Act will, in fact, make it illegal to "make available" anything which might be covered by copyright.

Not that the RIAA and MPAA along with their Canadian branch organizations dictated this to a compliant and lazy Industry Minister, or anything like that.

Oh, let me add another whack with the paddle with putting up BitTorrent (how it's spelled, actually) as a straw man/person/program in all of this when it's major uses are perfectly legal and above board.

And to think that the original Copyright Act in England was entitled "An Act to Encourage Education"!

And it was put in place to stop the MPAA and RIAA of Queen Anne's day from ripping off writers not to allow them to continue.

ttfn

John
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John (profile), 24 Jun 2008 @ 1:40pm

Some points
First, the burden of proof in a criminal case is much higher than in a civil case. The prosecutor usually needs a LOT of proof to send a person to jail and a LOT more proof to send a person to the electric chair.

But, this doesn't mean someone can sue someone and walk into a courtroom saying "Proving the case is too hard. I win."
If that's the case, I'm going to sue the RIAA and MPAA just because I can: "Sorry, your honor, it's too hard to prove they injured me. Just give me the money." :)

Seriously, though, what is wrong with the attorneys who take cases like these? Again, did they not go to law school? Did they not learn about the burden of proof in civil cases?
Should these attorneys be dis-barred until they go back to law school and learn about concepts like proving a case?

It's too easy to blame the nebulous "RIAA" or "MPAA": let's hold the individual attorneys accountable. After all, they're the ones who have to file the legal paperwork.
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Blaise Alleyne (profile), 26 Jun 2008 @ 12:59am

Re: Does anyone believe...
Does anyone believe... that files published on bittorrent or through other file sharing networks are done so with the intention "not" to be distributed in violation of copyright?

Uh, yeah. Despite the fact that there is nothing wrong with file sharing (not all files are copyrighted), some copyright holders have actually begun distributing some of their own content through BitTorrent, like television broadcasters and musicians.
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unknownsoundman, 30 Jun 2008 @ 5:26am

RiaaMpaaRant
Perhaps, with a little luck this thing will finally bite them in the butt!
After all, it is OK to bribe or force "By Law", ISPs to reveal surfing habits and personal identification of individuals.
By allowing telecommunications, computer, software, and music/video companies to not only monitor, but to use, and to monetarily profit from:
the DATA passed between two PRIVATE computers.
It seems to me to be a breach of contract,
as well as illegal!
> As THEY are profiting from a practice that illegly involves monitoring content that is not owned by them.
They are also using the data to manipulate pricing to the market, in areas such as load, and throttling, and now "UNLIMIT-ING the UNLIMITED PLAN".
Got to set-up the next tier.
It is OK for them to restrict bandwidth, when half of it is advertisements for them or their clients.
> is this band-width limiting thing such a good thing?
"Oh, OK, AFTER we get them to extend the package..."
It is OK for them to disable ports, to limit or stop the ability to use apps like VOIP, and PtP, and yet for them to offer the same type programs and IT IS OK!
And it is NOT OK for mICROsOFT, Sony, or any other service or goods provider:
to embed software, spyware, trojan, rootkits, or other spying devices,
or to monitor content with-out a judge approved court order.
IE: They are services and goods suppliers, not the internet police.
> note to: State Attorneys
>How about a universal EULA written FOR the PEOPLE.
Back to the Illegal/Un-Authorized Data Monitoring, Mining, Combing, Manipulating, Breach of Privacy>(I gave them "the trust of my privacy"), and sale of illeaglly obtained data.
That content should be available only to the parties (peers)connected, as part of a PRIVATE connection (encryption)and should be private by the same means that telephones are covered now.

AS A RULE OF THUMB...Would it be illegal?...
>if I did itit would be illegal
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