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New Ruling A Win Or Loss For RIAA?
Depends who you ask...
A federal judge in New York rejected the RIAA's claim that a Kazaa user who "made available" copyrighted material violated the law. According to the Judge, the RIAA "would have to demonstrate that unlawful copying actually took place," according to CNET. Some think this means the RIAA can't win a court case against you simply for making your P2P files available online -- they would need to show that an actual illegal copy was made. Techdirt meanwhile notes that things may not be quite so cut and dry, and this actually may be a win for the RIAA.
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Mega DETH
It's All About The Ping
join:2003-08-20
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Surprised

WOW! I would have never thought it would go this way.

Might not survive review?

KrK
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KrK

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Re: Surprised

This is common sense... but not really a high burden for the RIAA.

All they have to prove is that a copyrighted file was actually downloaded by someone else.... instead of just being offered. ... This really offers little protection for the offender.

What it does mean is that in the lawsuit the RIAA would have to prove you actually broke the law instead of just assuming you did.

Nightfall
My Goal Is To Deny Yours
MVM
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Nightfall

MVM

Re: Surprised

said by KrK:

This is common sense... but not really a high burden for the RIAA.

All they have to prove is that a copyrighted file was actually downloaded by someone else.... instead of just being offered. ... This really offers little protection for the offender.

What it does mean is that in the lawsuit the RIAA would have to prove you actually broke the law instead of just assuming you did.
I agree, this isn't hard to prove. All they have to do is watch what hosts are connected to the peer and when they are downloading. It isn't rocket science or anything.

CableConvert
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I think this ruling has more implications on pending cases rather than future cases. It will, of course cost the RIAA more money to bring these to trial now. Since most IPs they use are blacklisted as soon as they appear, it makes that one step more difficult

Pirate515
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Brooklyn, NY

Pirate515

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Re: Surprised

said by CableConvert:

Since most IP's they use are blacklisted as soon as they appear, it makes that one step more difficult.
If you are referring to some of these RIAA-blocking tools, they are just as effective as a water gun against a brick wall. A lot of RIAA/MPAA contractors who do the catching probably use residential accounts from their own homes. There could be one right next door to you for all you know.
moonpuppy (banned)
join:2000-08-21
Glen Burnie, MD

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Oh my.....

Does this mean the RIAA lawyers are going to have to fabricate even more evidence?
Kearnstd
Space Elf
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Kearnstd

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Re: Oh my.....

thats exactly what i was thinking, they will just fabricate more evidence.

FFH5
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said by moonpuppy:

Does this mean the RIAA lawyers are going to have to fabricate even more evidence?
All they have to do is actually have their 3rd party investigator company download a music file from the offenders machine. Then it is no longer "making available" but allowing a file upload.
8744675
join:2000-10-10
Decatur, GA

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Can't Sue Simply For Making Files Available

Public libraries 'make available' hundreds of thousands of copyrighted works every day, including the music and movies of RIAA and MPAA members. If 'making available' copyrighted material becomes a crime, then every library will be violating the law.

SRFireside
join:2001-01-19
Houston, TX

SRFireside

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Re: Can't Sue Simply For Making Files Available

Libraries are exempt from copyright infringement due to Fair Use. That analogy would never fly. The judge, however, does make an important precedent. If it sticks that means the end of the RIAA's lawsuit revenue.
jc10098
join:2002-04-10

jc10098

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Re: Can't Sue Simply For Making Files Available

I think you are wrong on that one SR. Libraries are NOT allowed to make copies of items. If you check out a dvd or cd, it DOES NOT give you the right to copy it, even under fair use. Libraries have no special privileges. Have you ever seen the signs in libraries near the copiers saying you are responsible for the works you replicate? While it is highly unlikely an author is going to sue a college kid for making some copies of his or her book, I bet it could be done. Likewise, they could sue you if they found out you copied a library dvd or cd. While the Library has the right to make a legal backup, you don't since you aren't the owner. This ruling is good because it basically says, they have to prove that the material is illegally copied. It can't hold the library or anyone else responsible simply for making a piece of work available.

SRFireside
join:2001-01-19
Houston, TX

SRFireside

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Re: Can't Sue Simply For Making Files Available

Libraries don't make copies of books and media and I never said they did. What I did say was libraries are exempt from copyright violations due to Fair Use. That includes schools. Anytime you are distributing or copying material for educational purposes it falls under fair use. I think the original poster was talking about the distribution part of that. Not duplication.
patcat88
join:2002-04-05
Jamaica, NY

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Re: Can't Sue Simply For Making Files Available

Renting is a default right when buying music or books. Although I will expect soon that books will come with shrink wrap EULAs forbidding renting and that if the book's ownership is transfered the book must be relicensed or destroyed.
MyDogHsFleas
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said by SRFireside:

Libraries don't make copies of books and media and I never said they did. What I did say was libraries are exempt from copyright violations due to Fair Use. That includes schools. Anytime you are distributing or copying material for educational purposes it falls under fair use. I think the original poster was talking about the distribution part of that. Not duplication.
You are simply making this up. "Fair use" is not a blank check to distribute and copy any amount of material for educational purposes. There are pretty strong limitations on this. Please do some research before you post crap. For example see »copyright.lib.utexas.edu ··· uid.html

SRFireside
join:2001-01-19
Houston, TX

SRFireside

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Re: Can't Sue Simply For Making Files Available

I don't see any differences in that link that do not support what I said. I never said you can go nuts copying and distributing for educational purposes. I only said they are exempt from normal copyright restrictions. This is what copyright law says:

Notwithstanding the provisions of sections § 106 and § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Don't get all worked up over semantics.
MyDogHsFleas
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said by 8744675:

Public libraries 'make available' hundreds of thousands of copyrighted works every day, including the music and movies of RIAA and MPAA members. If 'making available' copyrighted material becomes a crime, then every library will be violating the law.
No, no, no. Libraries lend out authorized copies of copyrighted works, one at a time. Libraries are not taking copyrighted works, digitizing them into files, and then publishing them online for people to freely download their own digital copy -- which is exactly what peer-to-peer file-sharing systems do. There is no valid library analogy.

elios
join:2005-11-15
Springfield, MO

elios

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Re: Can't Sue Simply For Making Files Available

actuly the Library of Congress is doing just that now
ie making large parts of it available on line for free
MyDogHsFleas
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MyDogHsFleas

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Re: Can't Sue Simply For Making Files Available

said by elios:

actuly the Library of Congress is doing just that now
ie making large parts of it available on line for free
No, they are not making copyrighted materials available online for free.

They have put their catalog online. They've also made certain materials available digitally, that don't have rights issues.

Their image catalog will show you thumbnails but you have to order and pay for true copies.

BabyBear
Keep wise ...with Nite-Owl
join:2007-01-11

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WTG!

Thumbs up for the Judge. Nice to see someone on the bench with some common sense.

TechyDad
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Penalties need to be changed

What really needs to be done is for the copyright infringement penalties to be changed. They were set with commercial pirating operations in mind, but they are now being applied to home users. As the article points out, a user who accidentally sets their entire hard drive to be shared including 2 ripped (legally owned) CDs' worth of music, could face a couple hundred dollars in fines. Is bankrupting individuals and making them lose their homes fair punishment for infringing intellectual property rights on a couple of songs?
axus
join:2001-06-18
Washington, DC

axus

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Re: Penalties need to be changed

I agree, if the punishment fit the crime, there wouldn't be so much backlash. Nobody says that speeding tickets should be repealed, we just pay them and control our speed better next time.

KrK
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Agreed. The punishments really are insane compared to the harm or the crime.

See that's been the biggest problem with a lot of this. Most everyone realizes that copying protected works is not kosher, but, most people don't agree with the heavy-handed tactics and draconian punishments metered out by the laws, either.

Every few years or so they keep lowering the bar for what is "enough" infringement while increasing the penalties-- massively. I mean seriously--- copy some MP3's and face felony charges? Thousands, even Hundreds of thousands in fines? 10 years in prison?!? I mean COME ON. I could rob a place and face less punishment! I could get busted for stealing cars and committing burglaries and face far less.... sheesh... I mean, seriously, stop and think about the crime alleged and then consider the punishment.
kpatz
MY HEAD A SPLODE
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kpatz

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Re: Penalties need to be changed

You could murder someone and face less punishment than by sharing an MP3.

I guess that means music is more valuable than human life?
MyDogHsFleas
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As I understand it, the RIAA lawsuits generally offer to settle for a few thousand dollars.

It's like anything else... there are maximum penalties, but the norm is very different.

TechyDad
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TechyDad

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Re: Penalties need to be changed

It's not really a settlement for a few thousand dollars. How it works is the record label sues "you" as a John Doe (along with a thousand other John Does). They get a judge to approve an order for your ISP to turn over your personal information. Then they drop the John Doe lawsuit.

At this point, you are technically not being sued by the record label.

They then contact you and tell you that you need to call a Settlement Office number or get sued. If/When you call the Settlement Office, you are strongly urged (under threat of multi-million dollar, life-ruining lawsuits) to accept their "settlement offer."

However, recall that you still aren't technically being sued. So it's not a settlement. In addition, the "settlement offer" is very one sided. In it, you would admit to everything that the record label accuses you of. You also agree not to discuss the lawsuits, "settlement", or any other aspect of the situation with anyone. However, no such restrictions are applied to the record label. So the record label gets to portray you in the news media as a captured pirate and you can't argue that you were wrongly identified and "settled" as the cheaper option. You also, by admitting to copyright infringement, open yourself up to other lawsuits by other copyright holders (such as the songwriter's association).

If you don't accept their offer, then the lawsuit begins, of course. However, at the time that the "settlement" occurs, there is no pending lawsuit against the individual.

For more information on how the record label lawsuits work, I'd suggest reading Ray Beckerman's detailed summary here:

»recordingindustryvspeopl ··· #exparte
MyDogHsFleas
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Re: Penalties need to be changed

Thanks for the details.

From my POV, the "settlement" (if it's not a settlement what should we call it?) is a good deal. Writing a check for $3K or so is a whole lot more preferable than going through a huge lawsuit and court case. If nothing else, the fact that a lawsuit was filed against you kills your credit and your ability to get many kinds of employment.

I admit that I was a Napster user in the early days, but got rid of it as soon as the legal questions started. It's just not worth it.

One of my kids was into music sharing also but I had several direct conversations with her and told her people were being sued and she had to get rid of it. She finally did. A few months later she mentioned to me, rather incredulously, "You know, you were right, Dad. My friend's sister just got the letter and her family had to pay like $4000."

I just don't understand the outrage against the RIAA. It's wrong to take copyrighted music and put it out there for anyone to download! Just don't do that and you'll be fine. No RIAA in your life.

TechyDad
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TechyDad

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Re: Penalties need to be changed

said by MyDogHsFleas:

I just don't understand the outrage against the RIAA. It's wrong to take copyrighted music and put it out there for anyone to download! Just don't do that and you'll be fine. No RIAA in your life.
Except that's not entirely true. There have been plenty of cases where the RIAA lawsuits were filed against people who couldn't possibly have engaged in the actions that the RIAA claims that they did. One example that springs to mind is a grandmother accused of downloading hip hop and rap music from Kazaa. One problem: Her Macintosh computer was completely unable to run the Kazaa software. If it weren't for the publicity the case generated, she would have likely been forced into a "settlement" even though she was innocent. (I doubt she had the funds to fight the RIAA.)

Even while they backed down, the RIAA still didn't admit that they were wrong. They claimed that they were just dropping the lawsuit "for now" and could bring it back at any time if they felt like it.

In the end, the recording industry doesn't care who they sue or whether their evidence is correct or not. They care that they are suing enough individuals that it would scare the pirates into not sharing files. It's all about numbers to them, not really catching copyright infringement.
MyDogHsFleas
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MyDogHsFleas

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Re: Penalties need to be changed

said by TechyDad:

Except that's not entirely true. There have been plenty of cases where the RIAA lawsuits were filed against people who couldn't possibly have engaged in the actions that the RIAA claims that they did. One example that springs to mind is a grandmother accused of downloading hip hop and rap music from Kazaa. One problem: Her Macintosh computer was completely unable to run the Kazaa software.
So, how did it happen? The RIAA investigators obviously found someone sharing this music, using an IP address that her Mac had pulled. I read a couple of the articles but no one was specific on this.

I suspect that somewhere, somehow, a PC was plugged into her cable modem and the sharing happened. No one ever looked in her house to see what the setup was. She claims no one ever visits with a laptop or a PC, or uses her Mac. So I ask again... how did this happen?
Even while they backed down, the RIAA still didn't admit that they were wrong. They claimed that they were just dropping the lawsuit "for now" and could bring it back at any time if they felt like it.

In the end, the recording industry doesn't care who they sue or whether their evidence is correct or not.
I think you're ignoring the facts. The RIAA DOES believe their evidence is correct. They say so in the articles about this case. They just gave her a break because they weren't willing to pursue it, for whatever reason.

The RIAA also says this was the only case out of the 300-odd in this round where there was a complaint of mistaken identity. So to say the RIAA "doesn't care whether their evidence is correct" is unreasonable, don't you think?

My opinion is that the EFF and their proponents actually have a hidden agenda... to decriminalize copyrighted file sharing, or at least to make the music and video industries offer their product over the Internet for free or a very low cost. What they are doing is using every PR and legal trick they can, like finding the "Nice Innocent Grandma Assaulted by Jackbooted Thugs!" and playing up that case. And you are buying straight into that PR hype without examination.

I'd have more respect for them if they simply came out and said what they stood for, but also said that the current law is what it is, and people shouldn't be sharing copyrighted material over the Internet.
They care that they are suing enough individuals that it would scare the pirates into not sharing files. It's all about numbers to them, not really catching copyright infringement.
Umm, duh. Of course their agenda is to incent people to behave legally. They can't sue everyone who shares copyrighted material, there's too many of them. What would you do if you were the RIAA and you were faced with rampant piracy? One way of course is to completely change the music/video industry's business model, and that may come, eventually. But, how do you avoid getting simply run out of business in the meantime?

TechyDad
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Re: Penalties need to be changed

said by MyDogHsFleas:

So, how did it happen? The RIAA investigators obviously found someone sharing this music, using an IP address that her Mac had pulled. I read a couple of the articles but no one was specific on this.
It could have been quite a few things. A wireless router that was left open (or a network that was hacked into). It could also have been a problem on the RIAA's end (or rather the people the RIAA hired to find the illegal file sharers). They could have detected activity at one address and written down a different address.
said by MyDogHsFleas:

I think you're ignoring the facts. The RIAA DOES believe their evidence is correct. They say so in the articles about this case. They just gave her a break because they weren't willing to pursue it, for whatever reason.
The problem is, their "evidence" doesn't match up with the computer that the woman has. There have been other questions as to the quality of their evidence in other cases as well.
said by MyDogHsFleas:

The RIAA also says this was the only case out of the 300-odd in this round where there was a complaint of mistaken identity. So to say the RIAA "doesn't care whether their evidence is correct" is unreasonable, don't you think?
The only case that they claim was mistaken identity. But how many of those who accepted the settlement offers were also cases of mistaken identity who just didn't have the time/money to fight for their innocence? If there were any, by signing the settlement they can't come forward and the RIAA can claim (by virtue of the fact that they signed the settlement) that it wasn't mistaken identity.

I myself have said in the past that, were the RIAA to sue me, I'd be tempted to sign the settlement simply because I don't think I would have the time or money to fight the lawsuit. (I don't download or share music so I would be innocent.) Recent developments have emboldened me, so that I think I would now fight the charges. However, if you were to have asked me a few years back, I would have responded that I would *not* have been happy about it at all, but would have seen settling as my only real option.
Expand your moderator at work

pnh102
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How Will This Change Things?

The RIAA and other copyright enforcement companies can simply download infringed works from people who make them available. All it would take would be one download per infringed work to show that copyright infringement was taking place.

The way I see it, all this judge did was require that the RIAA take one extra step before it can sue anyone.

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Millenniumle
join:2007-11-11
Fredonia, NY

Millenniumle

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...

I wish I was more familiar with copyright law. I wonder if there is anything in the law about intent or attempt? The judge's decision would seem to imply there is not.

Dogfather
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Dogfather

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Re: ...

You can read it all here. Each type of distribution (commercial gains, no gains, how much money needs to be involved, bootlegging, etc) and all of the requirements for it to be considered criminal are in the US Code. The NET didn't leave much to interpretation.

»www.usdoj.gov/criminal/c ··· 8red.htm

Millenniumle
join:2007-11-11
Fredonia, NY

Millenniumle

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Re: ...

I wonder if we'll see a push to change legislation? It wouldn't seem hard to make a convincing argument that "making avialable with intent to distribute even without gain" is needed in today's P2P world. I doubt it would be difficult to get it passed with perhaps the exception of legislators fearing a criminal case overload.

TI POIL
join:2006-03-05
Toronto, ON

TI POIL

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What a great news

1-0 for the good guys

Millenniumle
join:2007-11-11
Fredonia, NY

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Millenniumle

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Re: What a great news

While I don't have much sympathy for those who intentionally distribute copyrighted material in-mass to the public, nor do I have much sympathy for some ideas pushed forward by the RIAA, I think the score for the good guys is more like 1-1000. From what I understand many people have been hit hard by RIAA lawsuits totalling in the 10's of millions.

ReVeLaTeD
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San Diego, CA

ReVeLaTeD

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Did anyone else take away...

Quoting this line:
said by The Article :
...they would need to show that an actual illegal copy was made.

To me, that seems like the true intent - not whether a copy was made, or even if a copy was available or shared - but whether said copy was actually an illegal copy. I believe certain fair use laws allow consumers who have purchased a CD to make a "backup" of the CD or the songs on it - which I did. Every song of every CD I own exists as a high quality MP3 on my media server, that way if the CD itself gets damaged or lost, I've still got the song. None of them are shared, but if it were visible to the outside, can they prove that the copies are "illegal" copies? Likely not.

KrK
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KrK

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Re: Did anyone else take away...

said by ReVeLaTeD:

Every song of every CD I own exists as a high quality MP3 on my media server, that way if the CD itself gets damaged or lost, I've still got the song. None of them are shared, but if it were visible to the outside, can they prove that the copies are "illegal" copies? Likely not.
That would probably protect you if the RIAA knew about your library somehow (like someone reported you, or you have a file index or something so they knew the files were there....)

... but where the protection would break down would be if for example you ran a P2P app with your media directories in your shared folders. Then, if someone on the outside can download one of your files, well, you'd be in the RIAA's sights.
Skippy25
join:2000-09-13
Hazelwood, MO

Skippy25

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I would have to disagree

If the person has them there being shared then they are intending on violating the law and thus should be treated just as though they did.

Is there a legal reason they are being shared that one of you can convince me of? And no, ignorance is not a defense (it's a US epidemic). I personally cannot think of 1, but maybe there is.

Rexter
Libertas, Aequitas, Veritas
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cloud 9

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Rexter

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Making available is not publishing.

(My views are bias against current copyright laws, so if you don't want to hear it, put me in your ignore list, and stop reading now.)

It's certainly splitting hairs. Publishing includes distributing, so I could see how they can be classified as the same.»www.merriam-webster.com/ ··· /publish
Placing a file in a share folder is like placing a pile of CD's on my door step. I've made them available to the public, but I didn't publish it. The difference between making available, and publishing comes down to effort. If I open a store front, take out newspaper ads to make sure every one knows that I have these CDs available, that's publishing, or distributing. Just like if I create a warez web site, buy a service that keeps me at the top of Google search, that would be publishing, and distributing. Placing a song in a share folder on Kazaa is not.

Millenniumle
join:2007-11-11
Fredonia, NY

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...

Isn't Kazaa essentially the store front in your analogy, albeit without any finacial gain for the user?

Rexter
Libertas, Aequitas, Veritas
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Rexter

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Re: ...

No Kazaa is more like my porch.

Anon Guy
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A copy say, of a song recorded from off the tv, radio, etc. made available would be an example of a copy not illegally obtained and made available, right. How would they prove otherwise?
MyDogHsFleas
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MyDogHsFleas

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Why is this even a debate? RIAA wins, file sharers lose.

Read the opinion. It says, essentially, that "making available" is not a valid complaint... but it also says that "distributing" and "publishing" are synonymous, and that sharing files into Kazaa is "distributing", and that's a copyright violation. It goes on to deny defendant's motion to dismiss, and to give plaintiff 30 days to amend their complaint.

All that happened here was some legal fine-tuning on the wording of RIAA lawsuits. They can still sue you, and win, if they see your IP address sharing copyrighted material on the Internet, and they find you via a John Doe subpoena to your ISP. They just have to call it the right thing under the letter of the law.
Sammer
join:2005-12-22
Canonsburg, PA

Sammer

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Re: Why is this even a debate? RIAA wins, file sharers lose.

Have to agree, this is no win for those that share copyrighted files without permission.

funchords
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MVM
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funchords

MVM

This is a WIN for RIAA.... MPAA....

Basically, here's the deal:

The gist of this case is Plain-Jane P2P copyright violation.

The judge denied the file-sharers motion to dismiss and ruled that Electra et.al. (RIAA) has a case, and the substance of the case is meritorious. However, this lower-court, non-precedence-setting judge rules that there is sufficient cause to believe that RIAA's complaint is defective where it alleges that the defendant violated its right to "make available" and linked it to the word "authorize" preamble of 17 USC 106 and the word "distribution" in the enumerated items. In other words, the exclusive right to "authorize distribution" does not invent what the RIAA is describing as an exclusive right to "make available."

Since the case is still good without this wordplay, the judge refused to kill the case. He did dismiss the defendant's motion to kill it on procedural grounds. The judge granted RIAA 30 days to reword the complaint to comply with his order.

This is good for RIAA. The judge's strong indication is that the overall case has merit.

---SOAPBOX ON---
Personally, I don't care about the "making available" non-right when it comes to filesharers splitting hairs. But I do care about this alleged right when producers try to milk copyright by taking their works off the market and returning them back to market later. This behavior practically invites abuse, and if their work was tangible, it would be considered a monopolistic abuse.

Copyright was intended to provide a limited amount of time (originally 14 years + a possible 14 year extension) so that an artist or author could exclusively market his wares and earn a living. Taking a work off of the market flies in the face of the intention of the Copyright law. ---SOAPBOX OFF---

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