Monday, March 06, 2006

RIAA Argues that Merely Having a Shared Files Folder is in and of itself a copyright infringement

In its briefs responding to the amicus curiae briefs of the Electronic Frontier Foundation, the U.S. Internet Industry Association, and the Computer & Communications Industry Association, the RIAA argues that merely having a shared files folder with copyrighted material in it -- even if the files in it were legally authorized copies, and even if the files were never uploaded and copied by anyone from the shared files folder -- is in and of itself a copyright infringement.

RIAA Brief in Opposition to Amicus Brief of CCIA and USIIA*

RIAA Brief in Opposition to Amicus Brief of Electronic Frontier Foundation*

*Published online at Internet Law & Regulation



Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

21 comments:

Jonathan said...

Coming soon: RIAA declares thinking about a tune is copyright infringement.

CodeWarrior said...

Well, it's now official.

CodeWarrior said...

The RIAA has now gone off the deep end. Look, I have books that I have written and have copyrighted. If I want to share the friggin' books across the WWW through a shared folder, that's my choice and the RIAA can't do a damn thing about it.

I also have friends who are songwriters and performers, and if they want to put their own tunes in a shared folder and generate buzz by sharing them, it's their choice and the RIAA has no say so about it.

If their position is now as stated, that having legally owned copyrighted files in a "shared folder" is copyright infringement, they need to revisit the meaning of copyright infringement.

rufus said...

OK the RIAA has concluded that just having a shared folder with copyrighted material in it is infringement and subject to severe penalties. Probably millions of dollars a piece in fines to the millions of us out there. A judge may rule in favor of that. So now I may ask the RIAA this question, Who's folder is it? The person who created the folder of course. But who is the creator? The owner of the house where the computer is located? The person who's name is on the internet account? The children or other persons who live there? Friends or family who frequently visit the household and have access to the computer? Any or all known hackers? Any or all of the above? I am waiting for the judges to rule on that. Their investigative tactics are very poor as to who the actual infringers are.

qwasinaut01 said...

rufus: you make a very good point, I think. And I think it extends beyond just this shared folder issue - it seems to me that the RIAA's cases in general hinge on who put what where and for what purpose. Most of the argument has hinged around what was put and for what purpose, but we've already seen some cases (Chan?) where the question of who put it there was raised.

Interestingly enough I that the court's decision on some of these issues could have a very serious impact on computer security in general. If the courts find that the owners of a computer are responsible for the content on their computers and how their computers are being used then computer security is going to suddenly become critically important. And consumers in general are going to be placed at a serious disadvantage, in my opinion, because computer security is hard for "laymen."

If, on the other hand, the courts find that the parties using the computer are responsible, we could see the opposite trend - people leaving their computers as unsecured as possible. I've personally seen this with open wireless routers - if one has an open wireless router connected to one's Internet connection then specific traffic can't be tied directly to oneself. (boy, that sounded awkward)

Similarly, there is at least one high-profile case in the UK where a defendant is claiming that someone broke into his computer and used it for nefarious purposes and he's just a victim. This practice could become quite widespread if the courts decide that the owner is *not* responsible for the content on their computer.

Frankly, I'm not sure which is worse.

StephenH said...

I think the reason they are arguing this, is because if the judge rules against the RIAA in this regard, the threshold of what constitutes infringement will changed in such a way that an automated bot searching the network will not be sufficent evidence to prove guilt. If the consumer wins this case, the RIAA will have to prove FORENSIC EVIDENCE that a file in the shared folder has actually been downloaded by someone else, and worse yet that the file was in fact pirated. Proving this will require a search warrant on BOTH ends, if it is provable at all! Getting and executing these warrants will be very expensive for the RIAA, and in some cases may result in a not guilty verdict!!!!!!!

I bet that this is why they are trying very hard to win this case. Any strong consumer defense in these cases, because consumers don't have tons of money may cost the RIAA more money than they could recoup from the consumer.

Martin said...

Skimming through those two documents, I dont see them making the claim that "having a shared files folder is in and of itself a copyright infringement". The RIAA seems to be making the case that TRANSMITTING a copyrighted song over the internet or even making it available to someone through the use of file sharing software violates the law. Where do they say that having a copyrighted file on your computer but not providing or making it available to anyone else is illegal?

I'm not a lawer, maybe I am misinterpreting what the RIAA is trying to say.

Ray Beckerman said...

Dear Martin,

I don't see how you could miss it. It appears on virtually every page of the briefs, starting on page 1.

See, e.g., the RIAA brief responding to CCIA/USIIA brief:

page 1, 2nd paragraph, 5th sentence...... page 2, 1st full paragraph, 3rd sentence.... page 11, 2nd paragraph, 1st sentence....

Martin said...

Well I read the sections you pointed out and think I understand the confusion now, though I still disagree with the headline for this post.

Correct me if I'm wrong: The RIAA thinks its illegal to make a copyrighted file available for someone to download regardless of whether it is actually downloaded or not.

That is quite a different thing that what your headline reads.

AFAIK the RIAA isn't saying that naming a folder "shared files folder" is illegal.

I also dont think the documents say that it is illegal to allow a file sharing application to index files you ripped onto your computer from a CD you bought as long as noone else is able to download the files. Your computer not being connected to the internet would be one such situation.

I kind of understand the RIAAs point here. Once you make the files available for someone else to download, someone could copy them without any interaction by you. Since people are free to download the files at will, you have already taken all the actions necessary to allow the filesharing to take place.

I'm not saying the RIAA is right or wrong, I'm about as pro-filesharing as a guy can get, but I think your headline misrepresents what the documents you cited are saying.

qwasinaut01 said...

I have to disagree with martin, I'm afraid. The headline isn't "RIAA Argues that naming a Folder 'Shared Files Folder' is in and of itself a copyright infringement." The headline is "RIAA Argues that Merely Having a Shared Files Folder is in and of itself a copyright infringement."

The issue isn't the name of the folder, it's the fact that the files are shared. Yes, technically you can ask Windows to "share" a folder even if you're not connected to a network - but if you have no network, the folder isn't really "shared" with anyone, so the technical definition of "Shared Files Folder" is somewhat silly there.

The RIAA is contending that if you have a folder whose files are shared with anyone then you have committed a copyright infringement. See, for example, Section II, first sentence: "the ... right is violated when a copyrighted work is made available to others." (emphasis mine)

Under this definition, if you have a computer which shares copyrighted files with anyone, including your roommates, for example, then the RIAA contends you are in violation of the copyright. I believe this is consistent with the headline - "... Having a Shared Files Folder is ... a copyright infringement."

Again, it is my belief that, among other things, this creates an unnecessarily large burden on the consumer. Do all computer users know if their folders are shared? Should they be legally required to do so? Does the RIAA know who caused the folder to be shared? Is the owner of the computer responsible for all activity on that computer?

I can understand why the RIAA would like to make this distinction, and I understand how you can empathize with their position, but I think the precedent here is a very dangerous one.

Martin said...

Points taken. Thanks for your thoughtful responses. I agree that that holding an unsuspecting user accountable for sharing their files, when some sharing software does so automatically, might be unfair. Where do you think the line should be drawn? Or should there be a line?

Ray Beckerman said...

Dear Martin,

It has never been a copyright infringement to "share".

So I don't know where you are getting your legal information from.

If you came to my house and I shared my music with you, by playing something for you, or by lending you a cd, etc., that is not a copyright infringement.

If I lent you my cd to listen to, and you instead -- without my knowledge -- made copies of it, that might well be a copyright infringement.

qwasinaut01 said...

martin:

Unlike Ray, I am not a lawyer, so take that into account.

Now that that's out of the way, here's what I personally think: The RIAA should not win these lawsuits, nor should they be allowed to pursue them.

In my opinion, for the RIAA to succeed in prosecuting a consumer for filesharing, they should be required to show that:

a) Someone (the "sharer") deliberately made files available for others (the "pirates") to copy.

b) The identity of the sharer is conclusively known.

c) The files made available by the sharer contain copyrighted materials.

d) The copyrights for those materials are owned by a party represented by the RIAA.

e) One or more pirates made a copy of the files shared by the sharer.

f) The identity of one or more pirates is conclusively known.

g) One or more of the pirates who copied the files do not have rights to a format-shifted copy of the copyrighted materials (i.e. the pirates don't already own a legitimate copy of those copyrighted materials in a different format).

It seems to me that in this specific discussion the RIAA wants to avoid having to demonstrate that (a) was deliberate (by asserting that it doesn't matter if it was deliberate or not, the fact that it happened is sufficient), avoid having to demonstrate (e) at all (by asserting that it doesn't matter if copies are made), and thereby avoid (f) and (g) entirely also (as they are moot if (e) is avoided).

Which makes sense, frankly, because (f) and (g) are hard to demonstrate and, if you managed it, you could much more easily prosecute the pirate than the sharer. If the RIAA could do (f) and (g) they wouldn't be after the sharer, I don't think, because the case against the pirate is much cleaner.

Incidentally, points (b) and (c) have been contested in other cases, so the RIAA should have trouble there as well.

qwasinaut01 said...

Ray:

Ha! You posted while I was writing my post! So I wrote my post without seeing yours first - my post isn't meant to be a challenge to yours or anything like that.

However, I'd be interested to see if my line of thinking makes any legal sense at all. I know you cannot give out legal advice over the internet, but surely you can issue a correction to someone if they are way off base...

Thanks.

Ray Beckerman said...

All I can tell you is that you can look high and low in the Copyright Act, and you won't find any prohibition against "sharing".

Indeed it would be a pretty bleak world if one could not share music, or art, or poetry, with others.

rufus said...

If I have a cd, album, Itune song, or movie that I have purchased and I want to enjoy it with other people, or share it with others I believe I have the right to do so. I do not think it is feasible or even necessary to have to call the RIAA or an artist and ask for their permission to share the material with others. If I ask the entire neighborhood to come to my house and watch the latest movie I bought or listen to a Itune song I purchased, is this not legal? If it is not now, or in the near future, legal then let's all save up our $thousand RIAA settlement fee now because almost everyone of us is guilty. It will allow the RIAA to shoot fish in a barrel. I should have, and I believe I do have, the right to have a shared folder on my computer of any type of material I have purchased and want others to enjoy free of charge. Now, on the other hand, I realize that the people I share my material with may not all be law abiding citizens. Some may make copies to keep to distribute to others for profit. This I cannot control as a sharer. I do not think we should ban the act of sharing because some abuse it and go against the law. If the RIAA can't ban P2P networks, neighbors, or friends from sharing copyrighted materials then they will have to live with it and factor it in as the cost of doing business. I realize that everytime I buy a cd and lend it to a friend to listen, that person feels that since he heard it enough he will not buy it. This will lead to a lost sale and possibly a layoff and an artist will not get a cut, but we cannot create millions of criminals subject to fines, litigation fees, lawyer fees, etc. just because they want to share something they enjoy and think others will enjoy.

David Fedoruk said...

This is an old issue in the music business. Older than CD and lp's. Jazz musicians need to know thousands of tunes in the right keys and with the right chords. Some wrote these down.

Musicians hear a song and can play it. This is a common skill, not an uncommon one. Some wrote these down in books known as "Fake Books". A good Fake book sold for thousands of dollars. They were also illegal because almost every song in them was under copyright. If you owned one you were in fear that you would be arrested for the copyright violation of the hundreds of songs (even Happy Birthday), and if you shared this, you were distributing.

I know that musicians both valued these and were also scared they'd be caught with it. They carefully kept these out of sight.

Somewhere there must be case law on this type of sharing between musicians or students of those musicians

Cheers
David

Ray Beckerman said...

David,
You're not going to find caselaw on something so obvious. The RIAA's far fetched arguments are unprecedented. If they prevail in the courts, copyright law will have been stood on its head.

David Fedoruk said...

No,I guess you wouldnt find case law on it because those who were prosecuted didn't have the money for lawyers. So they merely lived in fear -- this is dispite the fact that soemthing like this were tools of their trade. Likely the chord progressions used were not available in any published form -- the are a shared resource between performing musicians.

As a student, I never understood why a teacher could not write out 32 bars of a melody without fear of prosecution.

I'm thinking out loud here, but this issue is similar though it was publishers then and now it is the RIAA. The vicitms are just as helpless. They attack the people who keep them in business.

I have more idea.. perhaps this is a blog article!

David

Carnage said...

So much effort to sign up just to make a comment -_-

Anyway, i'd like to make this point, it may not apply directly to everyone, however its somewhat relevant.

My home network consists of 3 windows Pc's and a linux router/firewall/webserver/fileserver

the linux machine allows users on any of the windows machines to conenct to a directory using a login username and password, everyone has a different login and a different area. I am the only one with root.

Althou my brother may upload some of his music to his directory so that he can play it no matter which pc he uses and it isn't shared with any other network user. As i have root access, he is automatically (totally outside of his control) sharing the files with me. So i have access to any of his music i want to get, in addition as i can ssh into the box remotly (useful for performing upgrades while i'm at uni) i can access those files no matter where i am in the world.

By this, any folder on a computer is illegal. (think sysadmins at big firms for a larger scaled example, someone could bring in music from home to listen to at work and well...)

The riaa really havn't a clue when it comes to technology...

Ray Beckerman said...

Sorry carnage, but we were getting too many anonymous cowards who appear to have been RIAA clones.