William Patry, author of the treatise Patry on Copyright, has weighed in with a blog post in which he praises Judge Wake's recent decision in Atlantic v. Howell, but criticizes the portion of the decision which holds that MediaSentry was not authorized to download the 12 copies, and that MediaSentry's own downloads could constitute a "distribution" even though there was no sale or other transfer of ownership, there was no license, lease, or lending, and there was no dissemination to the public, all of which are requirements for a distribution under the Copyright Act.
Commentary & discussion:
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
7 comments:
It does seem odd. If MS wasn't "authorized" to download the songs then the biggest illegal downloader in the country may well be MS. And the RIAA failed to join them as a party in the complaint with the defendant. :-)
Out of curiosity, in the case the download is considered distribution and allows for a lawsuit, would the RIAA be able to 'ignore' the infringement by MS while at the same time pursuing a case against whoever they allege to have shared the file?
Don't be silly. If a cop purchases drugs from a dealer to obtain evidence to bust that dealer, is the cop guilty of a crime? Of course not. Why is this any different?
Silly? Off the top of my head, the differences are:
a. criminal liability (drugs) vs. civil liability (alleged, of the incorrect "exclusive right", copyright infringement based on information and belief)
b. cops are law enforcement agents vs. MS which is?/is not? a private investigator (but they are not law enforcement agents)
c. drugs would have changed hands (an actual distribution by sale of a physical object) vs. an alleged copy that was made (maybe, maybe not, from one or multiple sources?), where no actual distribution occurred - i.e. no physical object changed hands in any way shape or form
These 3 are glaring, insurmountable differences between the false analogy you have presented and the decision reached by Judge Wake in this particular case.
Marsvenge
I'd explain the difference between an unlicensed private investigator who constantly gets warning letters from local prosecutors, and a fully vested law enforcement officer working in full cooperation with the local prosecutor.
But you'd be better served reading chapter 1 of any intro to criminal justice textbook.
See also "pretexting," a deceptive investigation practice, which is now banned in some jurisdictions.
In my humble opinion there does seem to be a significant incongruety here. On the one hand, if MSy are an authorised agent then, as no other evidence supporting the allegations has been presented, no infringment has been alleged that can be prosecuted.
On the other hand if MSy are unauthorised then, 1. they have broken the law and are copyright pirates, worse they are doing it for commercial gain, and 2. their evidence as such should be excluded as it was obtained illegally as they are not apparently registered anywhere in the U.S. as P.I.s.
I am not a lawyer.
Tailgunner30
When it comes to drugs in my state, there is actually a special law that allows police and agents to possess drugs for the purpose of nailing those who buy.
However, our state has NOT passed such a special law for Alcohol or Cigarettes. Thus, when the Police send an underage person in to purchase, the store involved has the purchaser charged as well, and uses this to get the charges dropped against the store. If the police send someone that actually is old enough, but looks younger, the courts here have said it is NOT a crime not to have checked the ID, since the actual person is in fact old enough.
The record companies in this case have a similar problem. Without some kind of special law, it is impossible for them to collect evidence of infringement. Such evidence needs to be proof of a download from that person who is NOT an agent of the copyright holder. However, even with such proof the Downloader is the person primarlly responsible.
Until recent versons of Windows came out, it was not uncommon for the ENTIRE harddrive of most persons running such operating systems to be shared as c$. Thus even local copies of owned CD's or legal downloads could be exposed to the internet. Ive never seen any case that has found that anyone is _Required_ to secure their harddrive from access from the internet. In any case, "willful" is not an issue as these sharepoints were set up automatically by windows, NOT by express action of the computer owner.
Although the judge in this case has stated that the copies downloaded by MS are unauthorized, the judge seems to have admitted that this is still not evidence of primary infringement, because MS did the downloads and MS is therefore liable as a primary infringer.
Remember drug busts are done by the GOVERNMENT, and the RIAA is NOT the government, nor possessed of any police powers. Thus comparing the investigations of the Government to the RIAA is not the same.
Im waiting now for each defendant in these suits to file a counterclaim against MS for primary infringement, and asking them to pay any judgment they are assessed.
Things will get real interesting in these cases in the future.....
Albert
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