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story category First Music Download Case Gets Second Chance
Court may have been wrong about specifics of file sharing law
09:47AM Saturday May 17 2008 by KathrynV
tags: legal · Fileswapping
Tipped by TransitMan See Profile
Last fall a Minnesota woman was ordered by the courts to pay over $200,000 in fines in the first case of music download filesharing that went to trial. The court is now about to hear new arguments which could change the ruling in that case. The issue of contention was that the judge previously advised the jury that the woman was guilty of a crime simply for making the music available online; it didn’t matter whether or not anyone had actually downloaded the music.

Through a review of case history, the judge who made that ruling has found that he may have been incorrect; the law may require that there be actual distribution of the music for there to be a crime. In other words, the court is hearing arguments to the effect that there actually had to be files shared in order for there to be a filesharing crime. Because the judge believes he may have been in error, both parties are invited back to the court in July to present their sides of this issue.

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Forums » First Music Download Case Gets Second Chance
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elios

join:2005-11-15
Springfield, MO

hmm

i sent this in yesterday

Transmaster
Onward Through The Fog

join:2001-06-20
Cheyenne, WY

Very interesting

It would seem the RIAA is going to actually have to prove somebody actually shared the files, The making them available argument is not holding water anymore. It is about time this short of thing happens. I have a hunch with these cases getting decided in these way the class action lawyers are going to see an opportunity to extract a bunch of cash out of the recording industry representing all of the people who have paid off because of the threat letters from the RIAA. This is going to get juicy
--
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George Kidd

join:2001-08-09
Vancouver, BC

Juicy

I expect you mean juicy for the Law Suits....

The Beer
I Love It When A Plan Comes Together
Premium
join:2001-07-24
Omaha, NE
clubs:
·ViaTalk

Ok and now the rest of the story...

Other articles on other sites have suggested it's a moot point because...

The burden of proof that she shared the songs is on the RIAA.

Since the RIAA downloaded, in their entirety, the 24 songs in question they proved there was distribution.

So the songs were available, and someone downloaded them, they can prove that.

Article seems a little slanted, note I am not on the side of the RIAA however seems rather open and shut to me.
jjeffeory

join:2002-12-04
USA

Re: Ok and now the rest of the story...

RIAA is authorized to download the files. They have to prove that unauthorized people downloaded. That is very different animal.

Camelot One
Premium,MVM
join:2001-11-21
Austin, TX
clubs:
·VoicePulse

Re: Ok and now the rest of the story...

said by jjeffeory See Profile :

RIAA is authorized to download the files. They have to prove that unauthorized people downloaded. That is very different animal.
I was thinking the same thing. I couldn't sue my neighbor for giving my shovel away, if it was me he gave it to.
--
Intel Quad Core QX6700 @3500Mhz/Asus P5N32-E SLI/4x 1024Mb Corsair/Seagate 750.10/PNY 7800GTs SLI/Silverstone 850W/Custom water cooler

elios

join:2005-11-15
Springfield, MO
its also been proved the RIAA cant infringe on it self
they have to prove a 3rd party downloaded them
good luck with that

TK Junk Mail
Go ahead, make my day
Premium
join:2002-03-03
Margate City, NJ
clubs:
·Comcast

Re: Ok and now the rest of the story...

said by elios See Profile :

its also been proved the RIAA cant infringe on it self
they have to prove a 3rd party downloaded them
good luck with that
Hence their non-stop lobbying efforts to get ISPs to monitor users internet access.
--
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elios

join:2005-11-15
Springfield, MO
·Mediacom

Re: Ok and now the rest of the story...

said by TK Junk Mail See Profile :

said by elios See Profile :

its also been proved the RIAA cant infringe on it self
they have to prove a 3rd party downloaded them
good luck with that
Hence their non-stop lobbying efforts to get ISPs to monitor users internet access.
and that wont happen unless ISP's lose there common carrier get out lawsuit free cards

and even if they did good luck with any thing encrypted
or even rar/zipped

what are they going to do outlaw HTTPS, winrar and winzip?
NormanS
Premium,MVM
join:2001-02-14
San Jose, CA
·Pacific Bell - SBC

Re: Ok and now the rest of the story...

said by elios See Profile :

and that wont happen unless ISP's lose there common carrier get out lawsuit free cards
What give the ISPs this "common carrier" status? And what, exactly, does "common carrier" mean, anyway?

»www.davros.org/legal/carriers.html
»www.cybertelecom.org/notes/commo···rier.htm

I am trying to comprehend how common carrier status actually applies to ISPs. Oh, and there is this:
quote:
Refusal to Carry: Illegal Purpose

Common carriers have an obligation to provide service to any and all comers, except where service is clearly being used for illegal purposes.

And this...
quote:
The term “telecommunications carrier”—

(C) does not include—

(i) persons or entities insofar as they are engaged in providing information services;

It is also not clear to me that a service, or entity classified as a common carrier, can lose its common carrier status. Apparently, it either is a common carrier, by virtue of the services it provides, or it is not.

Perhaps the barracks lawyers should step off of their soap boxes for a moment, and do some research. Time for bed, so I will read more from these two, and other, links later.
--
Norman
~Oh Lord, why have you come
~To Konnyu, with the Lion and the Drum
Skippy25

join:2000-09-13
Hazelwood, MO


edit:
May 17th, @11:49AM

This isnt even a gray area. The individual is guilty of distributing the files whether they can prove someone other than themself could get them. You know this, I know this, the RIAA knows this, and the courts should confirm it.

If you have the files shared, then your intent is for them to be downloaded. All of you "downloaders" will come here to argue your pathetic case because you want the courts to protect you from your illegal activities.

TK Junk Mail
Go ahead, make my day
Premium
join:2002-03-03
Margate City, NJ
clubs:
·Comcast

Re: Ok and now the rest of the story...

said by Skippy25 See Profile :

This isnt even a gray area. The individual is guilty of distributing the files whether they can prove someone other than themself could get them. You know this, I know this, the RIAA knows this, and the courts should confirm it.

If you have the files shared, then your intent is for them to be downloaded. All of you "downloaders" will come here to argue your pathetic case because you want the courts to protect you from your illegal activities.
I agree with you that music thieves deserve what they get. But here is the fly in the ointment if the judge chooses the position that a UNAUTHORIZED DOWNLOAD has to take place. The word UNAUTHORIZED is the key because an authorized agent of the RIAA like Media Sentry who does the download would be an AUTHORIZED download and not an UNAUTHORIZED one.

»www.news.com/8301-13578_3-994564···1_3-0-20
The court agrees with the great weight of authority that Sec. 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public.

Unless a copy of the work changes hands in one of the designated ways, a "distribution" under Sec. 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution.

--
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Skippy25

join:2000-09-13
Hazelwood, MO

Re: Ok and now the rest of the story...

I would agree, but the case should simply be whether or not they are making files available for unauthorized distribution. The fact that an authorized person can obtain them without first having to contact the user (distributor) to show they have authorization shows perfectly clear that anyone and everyone that wants to can gain access to them unauthorized or not by the IRAA.

elios

join:2005-11-15
Springfield, MO
·Mediacom


edit:
May 17th, @12:06PM

the courts seem to think other wise
the fact this is being re-tried and another suit the RIAA filed lost becouse they couldnt prove any one downloaded any thing say other wise

never mind that the MPAA and RIAA havent produced any thing worth spending money wasting bandwidth on in the last 10-15 years

and that there are totally legal uses for P2P

or that you can have false positives read that other RIAA case there the single mother was said to have shared files but never did

or that in the US court system the burden of proof is on the Plaintiff not the Defendant

lets just toss that all out the window but mega corps are ALWAYS RIGHT , right?

PixelFreak
Innocent Until Proven Guilty

join:2001-02-21
Bremerton, WA

said by Skippy25 See Profile :

This isnt even a gray area. The individual is guilty of distributing the files whether they can prove someone other than themself could get them. You know this, I know this, the RIAA knows this, and the courts should confirm it.

If you have the files shared, then your intent is for them to be downloaded. All of you "downloaders" will come here to argue your pathetic case because you want the courts to protect you from your illegal activities.
Wow, I can't even begin to tell you how wrong these statements are without taking up a full page here, which I will not.

I am so glad this guy is not on the jury anywhere since he refuses to follow the letter of the law himself. INTENT to distribute is not against the law, just like most other intentions (unless specifically noted in the statue, such as Possession of Marijuana with intent to distribute). The reason for such a strict writing of the statute is because usually Americans can not be held liable/guilty for thoughts, or intentions. We are only liable for acts (again, unless specifically authorized like the MJ example above).

Tell me you've never thought about busting up your neighbor's car when he plays his music way too loud at night and has his party buddies pissing in your lawn at three in the morning? But, you refrain from actually destroying his car (or face for that matter) and protect yourself from going to jail. Under the OP's belief, you should be convicted because you intended to do it, but it just never happened.

Wow...
--
Music in the soul can be heard by the universe. - Lao Tsu
Skippy25

join:2000-09-13
Hazelwood, MO

Re: Ok and now the rest of the story...

Intent to distribute is a violation of many laws. Your intent to murder someone, your intent to distribute drugs, your intent to molest a child...... etc. Bottom line is that your intent in many things is punishable and it should be in this case. Whether or not you actually did it is moot. The fact that 1, you more then likely stole the file to begin with and 2 the fact that you had it there for others to obtain illegally is enough.

You can continue to skirt the issue all you want, but regardless an illegal act is intended without question. You know it and I know it.

PixelFreak
Innocent Until Proven Guilty

join:2001-02-21
Bremerton, WA

Re: Ok and now the rest of the story...

said by Skippy25 See Profile :

Intent to distribute is a violation of many laws. Your intent to murder someone, your intent to distribute drugs, your intent to molest a child...... etc. Bottom line is that your intent in many things is punishable and it should be in this case. Whether or not you actually did it is moot. The fact that 1, you more then likely stole the file to begin with and 2 the fact that you had it there for others to obtain illegally is enough.

You can continue to skirt the issue all you want, but regardless an illegal act is intended without question. You know it and I know it.
I can't being to tell you how hard I am laughing at this argument. Intent is only part of the analysis if the crime is actually completed. It's an element of the CRIME, but id you don't actually COMMIT the crime, your intent is not punishable. Sheesh.

For you to understand, it's the basic legal principle of ACTUS REUS (the act) and MENS REA (the culpable mental state).

Actus Reus and Mens Rea

Honestly, you act like I came up with these principles so that you can simply discard them for the sake of your argument, but you are wrong - so stinking wrong - it's hilarious. Read those two links, understand them, breathe them in, and then come back here and continue to argue your position about intent being the overall issue at trial without any completed act and I will continue to laugh some more at you. Please, go ahead...
--
Music in the soul can be heard by the universe. - Lao Tsu
jjeffeory

join:2002-12-04
USA


edit:
May 17th, @02:08PM

LOL.

You can NOT use intent here, skippy. There are so many people who have troubles starting a computer and logging in properly. You be hard press convincing me they would know if a program is setting up a share for them to distribute "illegal" files. There is plenty of wiggle room in that argument!

As far as the real illegal downloaders... Their punishment should fit the "crime"... No more, no less...
Skippy25

join:2000-09-13
Hazelwood, MO

Re: Ok and now the rest of the story...

Show me where ignorance is an acceptable form of a innocence plea? If it was every dumbass in the world would claim they didnt know better for every crime ever committed.
six9

join:2001-12-03
Atlanta, GA
·Comcast

Re: Ok and now the rest of the story...

Hasn't someone used the ignorance angle successfully already? I'm thinking of the old argument of leaving your wireless access point unsecured or not securing it to begin with as an out against these organizations.

I have mine secured because I don't want some scumbag trading child pr0n on my network. But then I think of the thousands of Linksys routers that are named Linksys and are wide open. If I was a heavy trader, I would use that technique now, tomorrow, and forever.

And I've seen that happen before. One night in a bar, some guy with his laptop had a P2P, usenet or torrent app open and was downloading tons of stuff on the restaurant network. It was rather amazing to me as I had never thought about doing that before.

chris231989

join:2006-02-12
Joplin, MO
clubs:

what if you where a slilly person

and was using it to share the files between your home and office...

silly but i could see it happening
houghe9

join:2008-02-27
Lexington Park, MD

quick question

After reading only the parts i felt like reading about the Minnesota womans case i have a question.

If i were to setup a warez.ftp server for my own use but screw up my permissions and users such that a anonymous guest could log in but did not have a security level high enough to dload: but could browse my ftp offerings.

am i guilty of copyright infringement?

is it copyright infringement if i dload 45 of 47 files off a news group, and all of a sudden i see 1 of the anti-piracy commercials at the beginning of my dvd's and i have an epiphany i remember what i am doing is wrong just at the same time i remember run sentences are wrong and stop the xfer and never complete the full transfer?

does using par2 files to "rebuild" the original 46 and 47 constitute infingement? technically i didn't dload the whole item i, restored it. How many of the original 0's and 1's have to be dloaded for it to be considered infringement?

cork1958
Cork

join:2000-02-26
Fruitport, MI
·Charter Pipeline

Re: quick question

said by houghe9 See Profile :

After reading only the parts i felt like reading about the Minnesota womans case i have a question.

If i were to setup a warez.ftp server for my own use but screw up my permissions and users such that a anonymous guest could log in but did not have a security level high enough to dload: but could browse my ftp offerings.

am i guilty of copyright infringement?

is it copyright infringement if i dload 45 of 47 files off a news group, and all of a sudden i see 1 of the anti-piracy commercials at the beginning of my dvd's and i have an epiphany i remember what i am doing is wrong just at the same time i remember run sentences are wrong and stop the xfer and never complete the full transfer?

does using par2 files to "rebuild" the original 46 and 47 constitute infingement? technically i didn't dload the whole item i, restored it. How many of the original 0's and 1's have to be dloaded for it to be considered infringement?
Yes,
You are still illegally file sharing. Ignorance of the law, or your own ineptitude, is no excuse!
--
The Firefox alternative.
»www.mozilla.org/projects/seamonkey/

DavidJr

@comcast.net

Least common .......

Lets take this to it's simplest form.

1. Did the user know that their download directory was shared by default.

most people who download software dont even read the eula or anything else for that matter.. its click click click.. hurry up and install already.

Billy bob the dumb redneck may have downloaded a song.. without realizing that it WAS available for them to be downloaded.

so is billy bob guilty of an action he was unaware of?

cork1958
Cork

join:2000-02-26
Fruitport, MI
·Charter Pipeline


edit:
May 19th, @04:39AM

I don't believe it!

You're not telling me that some judge actually believes that somebody was innocent BEFORE being proved guilty, just because the RIAA "SAID" they were sharing?!!

What's this world coming to now?
It only took roughly 6 months for this moron judge to figure that out too!! At least he "did" figure that much out. Better than any other judge, do far.
--
The Firefox alternative.
»www.mozilla.org/projects/seamonkey/

nightwalker342

@cox.net

About time

I'm just glad to see that someone finally stood up to the RIAA. For those saying she is guilty because the files were being shared on her computer, did she even know they were being shared? If you want this to be such a huge issue, then why does Microsoft allow any folder on your harddrive to be shared in the first place? I currently share my drives on my computer with the rest of the computers in my house, because it's easier to download patches and updates on one computer and then access them from the others. Do I have music on my computer, yes I do, so in theory because it is being shared between my computers you could try to say I'm in violation of the RIAA, even though they are mine, because if someone drops by to visit, they "could" copy these songs to their MP3 player. I still stand behind my beliefs it is not the person sharing the files that should be held accountable, but the ones actually downloading them. How hard is it to put a tag on a file that is protected that will send an alert if it is downloaded to a different comuter or IP. The fines should also be appropriate to the persons income. Let's send more single mothers into bancruptcy because their underage kid decided to share some music, we all know the family doesn't need to eat or have a place to live right.....
Forums » First Music Download Case Gets Second Chance


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