Friday, August 15, 2008

Wall Street Journal article on Capitol v. Thomas and filesharing

Sarah McBride of The Wall Street Journal has written an interesting article on Capitol v. Thomas and the RIAA's moribund "making available" theory.

It is always a pleasure to see the major business media taking an interest in the RIAA's madness.

Music File-Sharing Decision To Have Broad Impact
If New Trial Is Granted Copyright Violations May Be Harder to Prove
August 15, 2008

A coming federal-court decision holds consequences for the Recording Industry Association of America and the thousands of people it is suing over shared music files.

Last year, a jury in federal district court in Duluth, Minn., found Jammie Thomas liable for copyright infringement based on songs the RIAA said it found in her computer. Ms. Thomas was told to pay up, to the tune of $222,000.

But the judge in the case, Michael Davis, says his instructions to the jury might have been wrong.
Complete article

Commentary & discussion:
WSJ Law Blog

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 portable music player


Anonymous said...

Record companies say they already go beyond simply showing that songs were on a computer. Their investigators download a selection of songs, proving distribution, they say. If the songs were illegal copies to begin with, they can generally prove that, too, they say.

According to this logic, we now have both "legal" and "illegal" copies of songs, and there's a way to prove the difference. What a fascinating concept. This man would say that the RIAA has to come clean on exactly what this difference is and how it's proven.

...including the position that making files available doesn't equal distribution.

This man feels that this argument is miscast. More properly put he believes it should be argued: Attempted copyright infringement doesn't equal actual copyright infringement.

{The Common Man Speaking}

Anonymous said...

“And regardless of this particular question, we do have complete downloads of songs in the case against Ms. Thomas, as we do in all our download cases.”... Of course they can make this claim, they have had the evidence to tinker with...

David Donahue said...

This actually brings to mind an important series of deposition questions for Media Sentry, namely:

-Where are the actual song files you allegedly downloaded from the defendant's PC?
(note: the defendant needs a hard disk image of the MS PC system that downloaded this for forensic analysis and verification).

-Did you compare the song files taken from the defendant's PC with the files that you personally downloaded from the suspected file sharer PC?
-Were they byte for byte identical?
-If there any any differences in any of the files what leads you to think that you have actually identified the right defendant's PC?

(Practice tip: Media Sentry should have to submit to the court a copy of the allegedly downloaded song files BEFORE the plaintiffs have access to the disk image of the Defendant's PC and also the defendant's experts should be able to compare these files and validate they are the same).

-What safeguards are in place to prevent mixing up the song files on your Media Sentry Download PC and the files taken from the defendant's PC?
-Who at Media Sentry has access to bypass these safeguards? (Tip: The defense would need to validate that these individuals could and did not do so).
-Did you find CD ripping software on the defendant's PC?

-Using this software, did you rip a copy of the original CD's possessed by the defendant to generate file version of the songs?
-Are these files identical to either the files found on the Defendant’s PC image and/or the files allegedly downloaded from the Suspected file sharing PC? (note: even if they are the same it does not nessesarily mean that the defendant shared them).

If they have actually identified the correct defendant, actually downloaded files and handled them properly with required safegards, these questions should pose little difficulty for Media Sentry.

Heh heh heh - They're toast...