RIAA Files Expected Appeal Over Judge's Decision To Decrease Jury Award In Jammie Thomas Trial

from the how-dare-the-judge-be-reasonable! dept

The RIAA's war against reasonableness continues. As totally and completely expected after Judge Michael David reduced the jury award against Jammie Thomas-Rasset from $80,000 per song shared to a still ridiculous $2,250 per song shared, the RIAA has now appealed the case to the Eighth Circuit appeals court. Now is when the case finally starts to get more interesting. The RIAA is actually challenging three parts from the three prior trials (as you may recall, the first two were tossed out). Specifically, the RIAA is asking:

Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act, and therefore refusing to enjoin Defendant from making Plaintiffs' copyrighted sound recordings available to the public.

Whether the District Court erred by concluding that it had committed an error in instructing the jury that making a copyrighted work available for download on a online file-sharing network constitutes a "distribution' under 106(3) of the copyright Act and therefor vacating the jury's verdict and ordering a new trial.

Whether the District Court erred by holding that the jury's award of statutory damages for defendant's willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act.

All three are interesting legal questions. The last one may be the biggest, but the hardest to succeed on. The reasoning used so far by two different judges in dropping jury awards is that the jury awards were so out of line with reality that they violated due process. The RIAA is scared to death that any sort of reasonable awards be associated with copyright law, because they're still under the ridiculously misguided belief that absolutely insane judgments for millions of dollars will scare people into no longer sharing files. The thing is, it's likely they have this misjudged in a big, bad way. The awards in the millions of dollars for just a few songs seem so incredible and so unfathomable, that most people simply think it's impossible. I honestly believe that they'd have a lot more luck if the fines were seen as much lower and much more within the grasp of the average file sharer. But the RIAA is not known for thinking logically.

The first two issues are actually important as well, though they'll get less attention. It's a key fighting point by the RIAA: which is whether or not a copyright holder needs to prove actual distribution to show an infringement of the distribution right under copyright law... or if merely "making available" constitutes distribution. This has been a major point of contention. The RIAA relies on a case about library books to say that merely "making available" is a violation of the distribution right, but other rulings and basic common sense on what constitutes distribution, suggest that merely making available is not, in fact, distribution by itself.

Filed Under: appeal, constitution, copyright, distribution, jammie thomas, making available, statutory damages
Companies: riaa

New Movie, Zenith, Distributed In Segments Via BitTorrent; Funding Needed To Release Next Segment

from the serial-distribution dept

Last week at SXSW Film, I moderated a panel looking at the role of P2P distribution for filmmakers. It really was a case study session, where we tried to look at different things that fillmmakers have done in embracing file sharing, including some things that worked, and some that didn't. You can listen to the whole panel on the SXSW website, including me with my nearly missing voice (SXSW will do that to you). The focus of the panel was really targeted at indie filmmakers who would likely have difficulties going a traditional route in getting their films out to the market. The panel consisted of me as moderator, Ray Privett, the founder of Cinema Purgatorio, Shahi Ghanem, the Chief Strategist from BitTorrent Inc., and Jamie King, the founder of VODO. Privett kicked us off with a preview of a film that he's helping release via BitTorrent and Vodo, called Zenith. You can see the preview below: A couple days after the panel, the first part of Zenith was officially released, via Vodo and BitTorrent. There were a few very interesting things about the way this is being done. The first is that releasing it via BitTorrent really fits with the nature of the film. That is, the film is a bit of a conspiracy theory about a product that has been lost... and then found. So distributing it via BitTorrent really fit with the nature of the content of the film. On top of that, the film is officially by "Anonymous," trying to build into that sort of internet mythology.

The second part that's interesting is that they're trying to release the film in segments, where the latter segments aren't released unless there have been enough donations for the first segments. It's not clear what will happen if enough donations aren't raised, but it's still an interesting strategy. Others have done this on a production basis, where they say that they need a certain amount to conclude production of later segments. In this case, the entire film is made, but they're trying to release it in sections. I really don't know if this kind of strategy works for films, but it's worth watching.

With Zenith, they are offering typical tiered offerings for people who donate different amounts, including the ability to meet with a character in the film. At lower levels, donors can get their names on the future releases as either a thank you or as an Executive Producer credit.

Anyway, Zenith is another case study worth watching. I have no idea if it will succeed with its current strategy, but in a world where most people tend to think that a film has to be released as a full and complete work, it'll be worth watching to see if it works as a "serialized" film instead.

Filed Under: distribution, jamie king, movies, p2p, ray privett, shahi ghanem, zenith
Companies: bittorrent, cinema purgatoria, vodo

Could Collection Societies Help Up-And-Coming Artists With A 20/80 Distribution System?

from the one-idea dept

It's no secret that I'm not a fan of music collection societies in general. I tend to think that once they get the right to collect they begin to abuse that power in ways that actually harm musicians and songwriters more than help them. That's because once they're given a right to demand payments, they continually look to expand that right: covering more areas and increasing the amount they can demand.

While, at first, that might seem like a good thing for the musicians and songwriters they represent, what many don't take into account is the wider repercussions and unintended consequences. For example, by making music more expensive to play, they actually take away a lot of the incentive for many places to play music -- thereby cutting down on promotional venues for certain artists. This has hit coffee shops and other small venues especially hard, and that's quite a problem since so many musicians actually get their start performing at various open mic nights. The second problem, of course, is in distribution. How do these collection societies accurately distribute money. By their very nature, they really can't track how often songs from less-well-known artists and songwriters are played, and so they often just focus on bigger acts -- effectively taking money that should go to smaller artists and giving it to bigger artists! If you catch representatives from those groups off-guard, they even seem willing to admit that, such as the time that a BMI exec responded to such criticism from a songwriter who wasn't getting paid: "I would like to tell him is that he needs to write a hit song."

Andrew Dubber has been thinking about this issue, and is wondering if there might be a slightly better solution that would help up-and-coming artists. His idea is that these collection societies should take 20% of their overall pot of money, and divide it equally among the lower 80% of the musicians and songwriters who are members. It wouldn't be that much money, but it would give them all some money. The remaining 80% of the collection revenues would still be handed out as usual, using whatever techniques the collection societies use to figure out who gets what. My first reaction on hearing this is that it would get people to sign up for a chance at "free money," making it something like a welfare system for musicians. But, Dubber points out in the comments that in order to qualify, you'll still need to have a song that was used somewhere else. You can't just say you're a musician.

I'm still not totally convinced that this would work, and I'm also not convinced that the collection society setup is even worth saving at all. But if such societies are going to be around (and it's almost certain they're not going anywhere), then we might as well look at ways to make them actually help more musicians, rather than simply propping up the top of the top, while holding back new comers.

Filed Under: collection society, distribution, fairness, music

Asus The Latest To Recognize That BitTorrent Is Quite Useful

from the it-ain't-evil dept

To hear some in the entertainment industry tell the story, you'd think that BitTorrent was an evil technology designed with no redeeming value whatsoever. But, of course, there are tons of legitimate uses for it in a more efficient and economic way to distribute files by spreading the burden out. It's great for Linux distributions, for example. And now it's nice to see more and more companies recognizing that there's value in using BitTorrent technology to their advantage. Apparently, the latest is computer maker Asus, which is using BitTorrent for many software downloads. As the article points out, this is hardly revolutionary, but it is nice to see large corporations recognizing the usefulness of the technology.

Filed Under: bittorrent, distribution, software, usefulness
Companies: asus

Michael Moore Admits He Doesn't Care About International Downloads, But He Has To Pretend To

from the download-away dept

We were a bit surprised recently when the news came out that lawyers representing Michael Moore were making the rounds concerning international downloads of his latest documentary, Slacker Uprising. Moore had decided to give the movie away free online, and given his past statements about having no problem with folks sharing a movie online, it seemed out of place to complain about any sharing that didn't just happen in the US and Canada.

Now it appears that Moore himself has taken the initiative to explain, and the answer is effectively that he doesn't care -- but he has to pretend to, because he only holds the rights for the US and Canada. In a note to the site TorrentFreak, he wrote:

"What do you think I'm up to? I know it may not be obvious to most, but I think you guys get it. I only own the US and Canadian rights. So my hands are tied. But this is the 21st century. What are 'geographical rights'?"

He then went on to point to the silliness of trying to prevent fans from sharing a movie:

"I'll say it for the hundredth time: If I buy a book and read it, and then give you the book to read, I have broken no laws. Why is that not true for all media?"

I'm not always a fan of his movies (though I do find them entertaining), but it's nice to see another moviemaker recognizing how counterproductive it is to try to stop file sharing, when embracing it has many more benefits.

Filed Under: bittorrent, borders, distribution, free, jurisdiction, michael moore, movies

Michael Moore's Lawyers Think They Can Limit BitTorrent To Just US And Canada

from the the-internet-doesn't-have-borders dept

It's always amusing when people seem to think that geographic borders actually apply to the internet. We recently wrote about Michael Moore's plan to freely distribute his latest movie online, which supported Moore's earlier statements saying the greater the number of people who see his movies (for free or not), the better off he is. However, when the movie was finally released online, and users were told to share it, some were reasonably surprised that Moore said it should only be shared in the US and Canada. Of course, once people are distributing it online, national borders are somewhat meaningless. And it seems next to impossible to figure out a way to ask people to share the movie, distributing it via torrent sites... but say that it should only be shared within the US and Canada.

However, it appears that Michael Moore's lawyers are now trying to do the impossible. Michael Geist points us to a website that received a DMCA takedown notice for sharing the movie outside the US and Canada. In fact, the lawyers were confused, and the website they sent the takedown to was merely a DNS service, not the webhost, but it appears the lawyers will continue the rather ridiculous task of trying to take down any torrents of the movie outside the US or Canada.

Filed Under: bittorrent, borders, distribution, free, jurisdiction, michael moore, movies

Michael Moore Embraces Free Distribution Of Latest Movie

from the and-another-one dept

No matter what you think of controversial film maker Michael Moore (and I'll admit that I'm not a fan -- I think he's entertaining, but plays way too loose with the facts, even on issues where I might agree with him), over the years this been this odd compulsion by pro-copyright folks to pigeonhole Moore as being against anyone sharing his films online -- despite the fact he's clearly stated he has no problem with people file sharing his movies if it means more people see them. Yet, as we've pointed out, others have claimed that Moore's worst "nightmare" came true when one of his movies was leaked online, despite the fact that the leak helped get it more attention (just as Moore wanted) making the movie quite profitable. Then there was the "legal group" that used one of Moore's films as an example of filmmakers hurt by file sharing -- again ignoring Moore's stated appreciation of fans sharing his movies.

Well, now he's making his stance even clearer. He's releasing his latest movie for free online, though, oddly it will only be officially available that way for three weeks (though, I'm sure by then it will be widely available in unauthorized forms as well). As of right now, it's a little unclear if the movie will be available for actual download or just streaming, though the website for the movie itself, called Slacker Uprising says that it will be a download. I think he's being a bit disingenuous in claiming that he's not planning to profit from the release, as he's also offering a DVD for sale, which will likely do quite well. Either way, perhaps now folks will stop using the leaks of his movies as evidence that he's against free distribution of his movies.

Filed Under: distribution, free, michael moore, movies

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.

Filed Under: distribution, downloads, file sharing, making available, uploads

RIAA Also Tells Judge That Proof Shouldn't Be Necessary To Sue For Infringement

from the heard-this-before dept

Following in the footsteps of the MPAA, the RIAA has now filed its response in the Jammie Thomas case, claiming again that actual proof of distribution doesn't make sense: "Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online." See, there's just one problem with this. The law isn't designed to make it easy to enforce copyright owners rights. It's designed to make sure that only the guilty party is actually blamed for breaking the law. So the fact that it's "difficult" shouldn't sway the judge.

Furthermore, while the discussion here was supposed to focus on whether or not "making available" is infringement, it looks like the RIAA decided to pull in a bunch of other arguments as well, noting that Thomas downloaded many of the songs in her folder (yet, the case was about uploading, not downloading), and that none of it matters because the RIAA actually does have proof of distribution (in the form of Media Sentry downloading the files). Again, though, those points are not what's up for debate here. So, once again, we have the RIAA trying to cloud the issue. Oh yeah, and, of course, the RIAA can't resist using its bogus arguments that international treaties require US courts to treat making available as distribution. That's an incredibly weak argument, based on the idea that these treaties, often written by the industry, and approved by diplomats who don't understand what they really mean, should be binding over what the law actually says.

Filed Under: copyright, distribution, evidence, infringement, making available, proof
Companies: riaa

Viacom-Owned TV Station Using P2P To Offer Up DRM-Free Downloads Of New Show

from the so,-wait...-do-you-like-or-dislike-file-sharing? dept

Viacom seems to have a bit of a multiple personality when it comes to online video. It's famously suing YouTube for $1 billion because some clips of TV shows have shown up on the site, but at the same time, it's been aggressively putting its own shows on a variety of sites. Yet, for the most part, it's focused on having full control -- that is, making them streaming versions only, on specific sites, often complete with advertising. However, it looks like the company is finally realizing that a little uncontrolled distribution isn't such a bad thing. Viacom-owned Spike TV is trying to promote a new TV show by distributing a commercial-free, DRM-free download of the show through a variety of sources including P2P system Limewire. The company admits that it's just trying to entice viewers to watch the series on TV when it debuts later this summer, but it makes you wonder how the company can stand up in court complaining about YouTube, when its out there telling people to do whatever they want to help promote this other show. In fact, the folks behind this offering admit that DRM would have defeated the purpose, which is to get the show seen by as many people as possible: "We're trying for a bit of a ubiquity here, to go where the people are." Wonder if this story will make its way into the Viacom-YouTube lawsuit.

Filed Under: distribution, drm-free, factory, limewire, p2p, spike tv, tv
Companies: limewire, viacom