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

Tue, Jul 15th 2008 7:41am — Mike Masnick

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

16 Comments

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Anonymous Coward, 15 Jul 2008 @ 8:06am

This is why you don't let your legal department run the IT group.

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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Anonymous Coward, 15 Jul 2008 @ 8:37am

I wonder how this squares with the methods that are used to collect the data. Supposedly they just set up a P2P client and see what is available. But if the user isn't set up to share, then this method of detecting the user would not work.
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Adrian Constant, 15 Jul 2008 @ 8:45am

without
While the case in question is exemplary because a non-uploader is being charged with uploading, more common cases (with your average Bittorrent client) have other qualities which could be a real headache if the "making available" theory is tossed out.

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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Is it Infringement to retain the original, 15 Jul 2008 @ 8:53am

So if someone steals your backup copy
I copy my MP3 files to CD as a means of backing up the data, which I understand I have a right to do. If someone rips a copy of my backup CD without my knowledge am I guilty of infringement? Did my backup CD constitute 'making available' or is the person who ripped a copy of the CD the violator of the copyright?

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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Guilty, 15 Jul 2008 @ 9:11am

I didnt do enough :(
I could have done so much more!! I am a failure and a burden on the society. booohooooo
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PaulT (profile), 15 Jul 2008 @ 9:53am

Re: without
Yeah, the making available argument is quite amusing for this very reason. The semantics in other cases seem to be argued over Kazaa and Limewire, when anyone with sense no longer uses those programs (which were essentially set up not to have the same legal flaws as Napster did).

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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Liquid, 15 Jul 2008 @ 10:10am

Re: Re: without
Exactly, but you know they will find some way to go after BitTorrent. It's just another way for them try and make money that they "Lost" from people downloading it. Like you said PaulT we will already be on the bigger and better technology. When they finally get caught to that they will try to find a way to go after that as well.
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P2P Mac-using newbie, 15 Jul 2008 @ 11:12am

Re: Re: without
What should people "with sense" who have Mac computers use instead of Limewire? Thanks for your expertise.
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Ruin20, 15 Jul 2008 @ 11:13am

Physical analogy
Although I think the making available clause is bogus, I do see some difference when using a P2P network. Peer to Peer networks often require the clients to report what information is being made available to share. This is different then say Bittorent, where sharing is a matter of exchange during the transfer process, or someone hooking up a computer with a share drive to a network. The client is actively broadcasting or advertising the fact it has the material.

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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Xanthir, FCD, 15 Jul 2008 @ 11:19am

Re: Re: Re: without
What should people "with sense" who have Mac computers use instead of Limewire? Thanks for your expertise.

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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Anonymous Coward, 15 Jul 2008 @ 12:20pm

Re: Re: Re: Re: without
Seriously, people? You know, there's a thing out there we call a "search engine".
Mac-using newbie was asking PaulT in particular for his suggestion, not you for your useless troll's response.
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Anthony, 15 Jul 2008 @ 12:28pm

Re:
I love this idea. see the problems is too many old people who dont understand the internet are getting put in these legal situations. Wait a good 15-20 years and the court system will fix to the internet revolution.

-anthony
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Anonymous Coward, 15 Jul 2008 @ 12:46pm

Re: Physical analogy
This is different then say Bittorent,...
Um, no it isn't. BitTorrent is also a P2P application and works the same way.
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Anonymous Coward, 15 Jul 2008 @ 1:08pm

Re: Physical analogy
It all gets weird when "making available" comes into play. Every radio station is making songs available to the listeners. They have no control over who copies the songs, and (I think!) courts have ruled that home taping of radio broadcasts is legal. And what about Netflix? They're "making available" all those nice, clean digital DVDs and downloads. If you loan a legitimately purchased CD to a friend, you are "making available" just as surely as if you gave him a copy of the CD. Our legal system is really f**ked up if it doesn't take these situations into account and says "making available" is a crime!
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Ulle, 15 Jul 2008 @ 2:06pm

To make music or movies or software available you would setup a folder and make it available for sharing on a network then designate that folder in the torrent client you are using as the shared folder. (I don't file share so i am just guessing here) Now if you were to have that folder located on an external hard drive, if the RIAA does decide to come after you could you not just unplug said hard drive, store it at a friends house and the RIAA would not have any sort of proof you had any shared files or am I totally out in left field?
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Sport Watches, 17 Jun 2010 @ 5:22am

chance I was looking for on this topic, thanks for sharing ...

Drafting Table
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