If You Block Your P2P App From Sharing Files, Are You Still Guilty Of Making Files Available?
from the it's-going-to-need-to-in-this-case dept
Contrary to popular opinion (partly due to a misunderstanding press that will often repeat this myth), the various lawsuits regarding file sharing have never been about an individual downloading unauthorized copyright-covered works, but in uploading or sharing them. Amusingly, there are some legal experts who point out that a clear reading of copyright law in the US actually suggests that uploading is perfectly legal, while downloading may not be. Either way, the entertainment industry has focused on going after people for uploading (specifically: distributing) unauthorized materials. And that has resulted in an ongoing legal debate over the question of whether or not simply making something available is the equivalent of distribution under the law. There have been a few court rulings on either side of this question, but the trend seems to be leaning towards the fact that making available is not the equivalent of distributions. That would be a problem for the recording industry, as it would then need to prove actual unauthorized distribution, which could be quite difficult.That said, in one case, it may be facing an even bigger uphill battle. That's because it charged someone with distributing/uploading content, despite the fact that he'd modded his file sharing software to not allow any uploads. It's difficult to see how they can get him for even "making available" given that he set up the software in a way to not actually make anything available at all. But, of course, given how much the entertainment industry relies on flimsy evidence, it's probably no surprise that it didn't even check to see if this guy was making any files available before charging him with doing so.
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Filed Under: distribution, downloads, file sharing, making available, uploads
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This will be interesting visual in court. Could you imagine them wheeling in two computers into the court room, followed by the expert testimony from a PHd in CS, explaining on a whiteboard in multiple colored markers how it works to the attorneys representing the RIAA?
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-anthony
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without
See, BT slices all the files shared into smaller chunks. This makes it possible to send and receive multiple pieces from multiple sharers simultaneously, and is the essence of BT itself (aside from the networking necessary to carry this off and offer load-balancing to ease the load on the early uploaders). So an individual is swapping chunks of files that will add up to potentially infringing materials. (Note that a BT client can, and often does, begin uploading parts of a file almost immediately after receiving the first chunks itself.)
The potential for infringement of copyright starts getting probablistic about here. BT clients keep track of the ratio of uploaded chunks to downloaded chunks; there's some nettiquette that an individual should upload at least 1x or 2x as much as they download (maintaining the network so the file can continue to be shared), but it's not generally enforced, and in fact depending on the torrent you might have to seed an unreasonably long time to reach such a ratio, if the files aren't hugely popular. The ratio is also enforced in ad-hoc private networks of sharers -- have a ratio below 0.5, and they might kick you off altogether.
So you might for example have downloaded a Futurama movie, say about 700 megs. If your ratio is 0.75 on it, you've uploaded 525 megs. So have you, under the law, uploaded the movie? What you've uploaded, even if it was all to one person (a rare occurrence), is not sufficient to constitute the movie. It'll be a bunch of noncontiguous chunks that won't even play. And even if your ratio is over 1, that's not proof you uploaded the whole movie either -- you may have uploaded chunk #137 four times, #138 once, and #140-142 not at all. How can it be proved that you shared a whole movie file?
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After that argument's been finished, they'll probably start on BitTorrent, but that's a much more difficult target. Not only because of the file transfer method, but because there are literally hundreds of legitimate uses of the technology, from WoW updates to Miro downloads to Linux ISOs. So, they can't attack the technology. If this ever was to be outlawed, everyone would already have moved to the next technology.
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Seriously, people? You know, there's a thing out there we call a "search engine". It lets you just type in what you're looking for, and it searches the internet for you! Crazy, I know, but it's true, and lots of people use them every day.
Oh, what the hell, I'll do your work for you.
http://www.google.com/search?q=mac+torrent+software
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So if someone steals your backup copy
When you look at this issue using physical media I think it is clear the person who copied (downloaded) the material is violating copyright, not the person 'making it available'. Simply placing your legal copies of songs where someone else could POTENTIALLY make an unauthorized copy should not be regarded as infringement.
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I didnt do enough :(
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Physical analogy
In a similar fashion I see a difference between someone coming up to your house opening the door while your not home, an steeling a CD versus you putting the CD out on the corner with a stand that says "Free for the taking".
I disagree with the idea that making available is a crime, but I wouldn't go so far as to say it's innocent. Especially in a peer to peer environment.
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Drafting Table
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