[Ed. note. This is a reprint of a post from June 23, 2008. We republish it in honor of Monday's argument in Capitol v. Thomas, since it so accurately and succinctly sums up the RIAA/MPAA cartel's "legal" position. -R.B.]
Excuse me folks, but I couldn't resist pointing out one of the best headlines I've ever seen, the one where Afterdawn.com summed up the MPAA amicus brief in Capitol v. Thomas in about as eloquent a fashion as anyone possibly could have:
MPAA to judge: We don't need no stinking proofComplete article.The MPAA is arguing in legal brief that plaintiffs should be allowed to collect hundreds of thousands of dollars in damages with no proof that anyone has actually downloaded from a defendant's shared folder. The brief was filed by MPAA lawyers threw in in Jammie Thomas' appeal of the $222,000 judgement against her for copyright infringement. Judge Michael Davis asked for public comments on whether simply making files available is a violation of The Copyright Act and the MPAA took the opportunity to put in their 2 cents worth.
Actually 2 cents may be a little generous for the MPAA's contribution. Their argument basically goes something like this, it's difficult, or maybe impossible, to prove that people are actually downloading files from someone's shared folder so the courts should just assume files are shared with the intention of distributing them illegally and rule in favor of the plaintiff.
Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property
14 comments:
Well, at least those [enter "anakata"(*) quote here] from the MPAA are consistent in their Point of View!
Read the leaked ACTA (1) document. Since they obviously want for their MAFIAA(2) controlled enforcement body the right to act even without a formal complaint of a rightsholder, it is just consequent that they too want to act even without needing to proof that anything illegal actually happened....
...It could happen and therefor it is bad in their warped reality view. :-(
(1)
http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement
(2)
http://mafiaa.org/
(*)
http://static.thepiratebay.org/dreamworks_response.txt
via
http://thepiratebay.org/legal
__
A_F
Ray,
What about the issue that they brought up about treaties in their brief?
Since they filed at the last minute specifically to prevent any sort of debate, can that be refuted to the judge before he decides?
Is it possible that the judge may be swayed by that if there is no chance to put a stake in the heart of the treaty argument?
Anonymous, fear not!
This was just the "warm up" phase so that the judge can "play a bit" with the arguments in his mind this is not even the first quarter of the "game" where he is the "referee" and about to decide.
Nonsense stuff from these "if you have those kind of friends you don't need no more enemies"-amicus curiea can be wiped away when it is time for oral argument: sometimes in Juli/August IIRC without looking it up. The "end game" time if you will.
slightly off topic:
Now the highest court in austria has shown common sense too that mom's and dad's are not responsible if their minors do "it".
the highest austrian court noted among other things that:
(freely translated by me)
It can't be assumed that the innerworkings of "online media distribution systems" [*SCNR*] are known to grownup moms and dads.
So Mr. F was under no obligation to be aware of the fact that the data in those Systems is accessable for others. He was therefor under no obligation to monitor the internet activities of his minor daughter.
Therefor he is not responsible for what his daughter had done and he is under no obligation to pay the [austrian terror sleeper cell of the MAFIAA] LSG[1] anything based on their allegation of vicarious liability on behalf of the father Mr. F.
The LSG was sentenced to pay Mr. F his cost in an amount of ~ $1750.
"Die Funktionsweise von Filesharing-Systemen könne bei Erwachsenen nicht als bekannt vorausgesetzt werden, weshalb F. nicht habe wissen müssen, dass die Daten damit auch anderen zugänglich gemacht würden. "Er war daher auch nicht verpflichtet, die Internetaktivitäten seiner Tochter von vornherein zu überwachen. (...)Damit fehlen aber die Voraussetzungen für eine Haftung des Beklagten als Gehilfen in Bezug auf den Verstoß seiner Tochter im November 2006.""
reported in german at heise.de
http://www.heise.de/newsticker/Oesterreicher-haftet-nicht-fuer-Filesharing-seiner-Tochter--/meldung/109846
http://www.internet4jurists.at/entscheidungen/ogh4_194_07v.htm
[1]
http://www.lsg.at/
This is absolutely hilarious! They want everyone guilty before proven innocent. Well, when you really think about it, it would make the world of litigation run a whole lot faster. Stranger, but faster...
I seriously doubt there is an existing bit of common sense in the RIAA and MPAA organizations people all put together. They surely boggle my imagination!
RJ
Reminds me of that one time someone sued the government for implanting an alien transceiver in her brain.
Well of course it was difficult to get evidence, since Martian technology is invisible to x-rays.
Ray,
Don't know if you saw this link:
http://dmca.cs.washington.edu/
It is about research done by the University of Washington that can be used in Court to counter both RIAA and MPAA assertions.
Regards,
blhseawa
William Patry has some interesting (and not so flattering) commentary on the MPAA's brief. It's a good read:
http://williampatry.blogspot.com/2008/06/mpaas-brief-and-charming-betsy.html
FYI:
Commentary & discussion:
Heise online (german)
thanks michael donnelly for that interesting link.
William Patry, formerly copyright counsel to the U.S. House of Representatives, Committee on the Judiciary, formerly Policy Planning Advisor to the Register of Copyrights, formerly Law Professor, Benjamin N. Cardozo School of Law; author of numerous treatises and articles (including one on fair use with Judge Richard Posner), including the new 7 volume treatise on "Patry on Copyright" wrote:
"[...]It is telling that the MPAA leads with its international arguments. One usually leads with what you believe to be your strongest argument. The converse of this is that you downplay your weakest argument. In this case, the MPAA must regard its construction of domestic law as its weakest, and is therefore asking the court to effectively enact its view of what the law should be, but isn’t. Separation of powers appears to be as outmoded as the threshold requirement that copyright owners prove infringement.
[...]
The MPPA and RIAA approach is to try and get through the courts what they would be unable to get through Congress because of the backlash and opposition. Let’s hope the courts resist the temptation to be legislators."
Just because something is costly or difficult to prove doesn't mean you get to ignore your burden of proof in court.
I can think of a lot of ways to prove that someone is actually sharing music the RIAA members own, its just that they are impractical to implement in general or too expensive.
For example: The RIAA and it's members could purchase every major ISP in the US (or contract with them). Then they could dictate that the ISP require it's customers to run anti-P2P scanning software in the same way anti-virus software is commonly run on PCs. Or they could have the ISP's customers sign a contract to allow the RIAA to scan/sniff the customer's traffic as it comes to their backbone to validate that they aren't sharing copyrighted songs improperly.
Sure the ISPs would lose subscribers and piss off the remaining ones but if there was enough money paid to the ISPs to counteract this, that wouldn't be a problem. I'm sure buying all the major ISPs would be a little expensive too.
If they are truly loosing $200k per P2P user, then this might even be cost effective.
Its just the RIAA chooses not to pay the money for such efforts that they do not have the proof that is legally required for them to make their cases.
So when the RIAA says its difficult or impossible to detect P2P sharing what they really mean is that it's too expensive for their current budget and we'd like the courts to give us these benefits for free.
Bzzzt, sorry. The courts are not here to make your outdated bussiness model be more cost effective for you.
"Do not pass Go! (or get expedited discovery) Do not collect $200 (or even 100x that per song)
Unfortunately, michael donnelly, Mr. Patry just decided to permanently close his blog. That's too bad, I was looking forward to reading the entry you referenced.
screwmaster, thank you for bringing to my attention the sad news of Prof. Patry shutting down his blog.
Warning! This is copyrightinfringement using google cache of Prof's Patry entry. I claim fair use!
+++++
Tuesday, June 24, 2008
MPAA’s Brief and the Charming Betsy
The MPAA’s amicus brief in the Thomas P2P case in Minnesota has received a lot of publicity. What does the MPAA brief say? There are two parts to the brief. First, the MPAA takes the position that existing, domestic U.S. copyright law already incorporates the MPAA position. Second, and as an alternative, MPAA argues that domestic U.S. law should be construed to adopt its position because a failure to do so will place the U.S. in conflict with its supposed international obligations. All parts of the MPAA’s arguments are wrong: existing U.S. law rejects the MPAA position, international agreements do not adopt the MPAA position, and even if they did, U.S. law cannot be changed by the courts to make it fit such international obligations.
It is telling that the MPAA leads with its international arguments. One usually leads with what you believe to be your strongest argument. The converse of this is that you downplay your weakest argument. In this case, the MPAA must regard its construction of domestic law as its weakest, and is therefore asking the court to effectively enact its view of what the law should be, but isn’t. Separation of powers appears to be as outmoded as the threshold requirement that copyright owners prove infringement.
The MPAA’s international argument is based on two poles: first, the 1996 WIPO treaties, which do mandate a making available right, also mandate the MPAA’s interpretation of that right. No evidence of this is presented. Where in the treaties does it mandate that countries dispense with the requirement – which has existed from the beginning of copyright in the U.S. – that the copyright owner prove one of its rights has been violated? The MPAA declares that “A violation of the making available right does not require that copies were actually transferred to particular individuals,” Brief page 7, but supplies no support for this. There is simply no support for the position that countries, in implementing a making available right, must dispense with any evidence that copies were obtained by others. Countries are free to require such proof.
It is the nature of international agreements that they set forth broad concepts, leaving it up to national legislatures to fill in the details consistent with their local laws. U.S. law has long required actual distribution to violate the distribution right. If such a radical change was to be made, it could only have been made by Congress. The U.S. Congress was assured that no changes were necessary to adhere; in none of those assurances was Congress told that the treaties would dispense with the requirement of proving an actual distribution occurred in order to violate the making available right. MPAA’s position, in short, is that the making available right is synonymous with no proof of an actual distribution, but it comes up short in proving that was the case. Indeed, the Hotaling case, much relied on by the industry, has been roundly criticized by copyright scholars and by courts. If the MPAA’s view of U.S. law were accurate, Hotaling would have been non-controversial.
Because countries are free to require such proof, the MPAA’s argument that U.S. law must be construed (read: rewritten) to dispense with such proof also fails. But even here, the MPAA brief overstates its only authority, Murray v. The Schooner Charming Betsy, 6 U.S. 64, 2 L. Ed. 208, 1804 WL 1103 (1804). In The Charming Betsy, the Supreme Court, per Chief Justice John Marshall, held that “a statute ought never to be construed to violate the law of nations, if any other possible constriction remains.” The opinion only applies when a statute is ambiguous. It has no application when a statute is clear but conflicts with international norms. The Charming Betsy is merely a canon of construction; it is not a substantive legal doctrine. This all the more so because the WIPO treaties are not self-executing.
The MPPA and RIAA approach is to try and get through the courts what they would be unable to get through Congress because of the backlash and opposition. Let’s hope the courts resist the temptation to be legislators.
+++++
hope that helps screwmaster
Post a Comment