vpoko
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| reply to SilverSurfer
Re: Bad Summary
pnh102 is right, "showing evidence of a crime" is not an element of a civil case. "Showing evidence of a tort" or something similar is. Nobody said proof wasn't required, but the word "crime" is out of place in an article dealing with civil infractions. |
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Dogfather
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1 edit | It certainly is if the RIAA looking to claim damage awards stated in the criminal statutes.
Those big penalties are written into the criminal statues. If this was a simple civil tort, they would only be able to collect their actual damages plus perhaps an unspecified punitive damage.
Like shoplifting and writing bad checks, the criminal statue grants additional damage awards but you only get the damage award if that statue was violated.
They absolutely must prove the crime happened if they want to collect damages for violation of the statue. |
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vpoko
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Jamaica Plain, MA
| That's not true, you're confusing "criminal damages" with "statutory damages". RIAA/MPAA only need to prove their case by "preponderance of the evidence", not "beyond a reasonable doubt", and the state is not required to provide an attorney for you. There may be civil damamges that kick in upon a criminal conviction, but the statute also allows for pure civil suits absent of a criminal prosecution. There's nothing criminal about it. |
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Dogfather
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4 edits | Criminal damages and statutory damages aren't mutually exclusive.
They don't get statutory damages unless they show the statue to which the statutory damages apply was violated. Their damage award was received based solely on the files being available for transfer.
This is where the RIAA ran into a wall. Merely hosting the files (making them available) isn't a violation of the statue AT ALL. The statute specifically requires a transfer and the court overturned the decision requiring proof that the transfers occurred. Whether by preponderance of the evidence or not, the RIAA showed ZERO evidence that the transfers actually occurred.
IOW, hosting the files by itself is not actionable because there is no statute prohibiting it and the RIAA/MPAA can't go after those people outside the statutes because they have no damages from someone just hosting files. |
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Neyland
join:2003-02-04
USA
| said by Dogfather  :Hosting the files by itself is not actionable because there is nothing illegal about it and the RIAA/MPAA can't go after those people outside the statute because the have no damages from someone just hosting files. Yet... If this becomes the requirement, I honestly feel they will buy the change necessary in Washington. It shames me to say it, but in these situations our lawmakers are for sale.
Now, must you download the whole file or just a part? If you have to get the whole file... how does that work in a distributed system? They allow legal 'sampling' of songs without copyright issues correct? I could easily say that little bit you got from me was just a... sample.
Or I could say it was just data. By itself it was useless.. completely unrecognizable as anything copyrighted to anyone. |
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Dogfather
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| That was my question from a few weeks ago. If it's a torrent, does a few KB of a file constitute a "work"? And could the RIAA do their own downloading? Meaning can the RIAA infringe on their own works?
The law is unclear but what is clear is that simple making files, even if they're entire songs available, isn't a violation of the statue and thus the RIAA doesn't get sh!t. |
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vpoko
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Jamaica Plain, MA | reply to Dogfather
That's all fine and dandy, but you still haven't shown where "criminal" plays into it. There are no criminal damages without a criminal conviction. |
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Dogfather
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4 edits | Because the statues in question are criminal statutes (specifically Title 17 506 and 507 and Title 18 Sec 2319) and these statutes permit both civil and criminal penalties.
No one is talking about criminal damages (eg property damage). My point is even in a civil action you don't get the statutory damages unless you fulfill the requirements per the statue (the person has to be found to infringe). And in this case the statue in question doesn't allow for statutory damages for hosting files, only for transferring files (hosting isn't infringement). But the RIAA got their award based on the hosting alone. It's simply not a violation of the Copyright Act to host files, according to this court.
IOW, the RIAA's case was that the Copyright Act was violated thus they're entitled to statutory damages per the statute. The court tossed it out saying the RIAA must show evidence that the Copyright Act was violated. |
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major marco
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| reply to vpoko
said by vpoko :pnh102 is right, "showing evidence of a crime" is not an element of a civil case. "Showing evidence of a tort" or something similar is.
It is? That's a new one on me. Gonna have to write that one down and use it sometime....But your honor, showing evidence of crime is not an element of the case...showing evidence of a tort is!
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Tracking Lord Stanley
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1 edit | reply to vpoko
The RIAA & MPAA is Abusing the Court System
said by vpoko :pnh102 is right, "showing evidence of a crime" is not an element of a civil case. "Showing evidence of a tort" or something similar is. Nobody said proof wasn't required, but the word "crime" is out of place in an article dealing with civil infractions. Court is a "quest for admissable evidence". Civil courts require proof, more proof better you are, and a preponderance of the "evidence" in your favor to win. Criminal court is same proof but beyond a reasonable doubt.
Actually, the lawyers are stupid since if they claim "crime", they shouldn't be there a prosecutor should. Crimes have punishements. Civil torts have damages (loss of money).
Ex: If your friend stole your iPod, that is a civil case not a crime unless a prosecutor has almost nothing to do. It could be a crime but without prosecution, isn't. So, you sue in small claims and have 2 witnesses saying, "Yeah, he took it" or a video of he took it, you win the case by the preponderance of the evidence. A receipt proving you bought it, witnesses saying it was yours, and witnesses saying, "Yeah, he has it" will work too.
Simply, without a prosecution, there is no crime. Just a tort. Now, it could become a crime if the case is won and prosecutors decided to go after the person and win.
Once the find an unfriednly judge, the RIAA and MPAA will get whacked. "It's the proof, stupid!"
Now, if the RIAA or MPAA reps downloaded from you, you might have a civil case for invasion of privacy, malicious prosecution (torts or criminal prosecution works for that), and maybe even illegal wiretapping if say you were on dialup. If you have Vonage hooked up to a HSI connection along with downloading/uploading, invasion of privacy could still take root or illegal wiretapping since you could sue them for reading all your data. How do we know what they were looking at on IP address 189.xx.xx.xx? I doubt seriously they can't look at ALL data so how are they "looking" in the first place. Just using bittorent would be illegal on both sides if downloading copyrighted material, but, where is the distribution? If nobody but the RIAA/MPAA downloaded it, they have a weak case the Judge should pounce on.
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vpoko
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join:2003-07-03
Jamaica Plain, MA | reply to major marco
Re: Bad Summary
I suppose if you ever had a judge that didn't know the difference between a crime and a tort you could pull that one out. |
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