leflaw
The RIAA loses (or not)
There's been a lot of discussion in the blogs lately about court rulings that could complicate the RIAA's lawsuit campaign against illegal file-sharers. The three limit, to varying degrees, the record companies' ability to argue that p2p users violate copyrights merely by putting songs into folders from which other users could copy. The best post is (not surprisingly) from William Patry's copyrights blog, which summarized and analyzed the decisions out of New Haven, New York and Boston. It's also worth reading this post by EFF's Fred von Lohmann (make sure to follow the links to this earlier, related post), and this one by Eric Bangeman of Ars Technica.
Those entries cover the legal issues far better than I could. However, they don't discuss how little relief the rulings may give to those sued by the RIAA. As the Jammie Thomas trial demonstrated, the RIAA's case doesn't rely on the allegation that a defendant merely put songs in his or her shared folder. Its anti-piracy contractor, MediaSentry, actually downloads songs from the target's shared folder. That enables the RIAA to allege that the songs were reproduced and transmitted without the labels' permission.
The MediaSentry evidence seems pretty damaging, if the RIAA can get past the challenge of identifying the person (not the IP address) who logged into the file-sharing network and enabled MediaSentry to make the copies. Still, it raises at least a couple of larger questions. One is whether MediaSentry's evidence will stand up to increasingly aggressive challenges, including accusations that it's an unlicensed investigator. The more interesting one, though, is whether copyright law was written in a way that doesn't cover songs uploaded through p2p networks. From a policy standpoint that seems kind of nutty -- after all, uploaders (e.g., people who put items into shared folders) are the ones who breathe life into file-sharing networks and enable rampant online piracy. But the reasoning behind that point of view strikes me (a non-lawyer) as, well, not nutty.
Patry and von Lohmann both have argued that transmitting a song through a file-sharing network doesn't amount to a distribution. Von Lohmann contends that the exclusive distribution right of copyright holders -- "to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending" -- covers only the distribution of physical objects. As much as I like the notion of the Internet as a series of tubes, I have a hard time envisioning solid objects passing through it.
I think both Patry and von Lohmann would argue that transmitting a song through a file-sharing network doesn't constitute a reproduction, either. Again, the law's language -- "to reproduce the copyrighted work in copies or phonorecords" -- seems to require the creation of a fixed, material object to constitute an infringement. Downloading songs from someone else's shared folder onto your hard drive clearly fits that description, but having something downloaded from your shared folder doesn't. The uploader isn't the one making an unauthorized copy, the downloader is. (Unless, of course, the file uploaded was an unauthorized copy in the first place.)
If that interpretation were to become the law of the land, the RIAA would be limited to suing downloaders -- a more difficult task than targeting those who share files, but hardly an impossible one. Many of the older song files floating around p2p networks can be traced through their hashes back to copies made by users of the original Napster and other defunct file-sharing networks. There may be other tell-tale evidence in a song's metadata. But if the legal landscape reached that point, it's a safe bet that music, movie, software and game companies would press Congress to expand the exclusive rights of reproduction and distribution to cover p2p transmissions. They might even succeed in persuading lawmakers to outlaw attempted copyright infringement (something they'd previously sought for criminal piracy). And isn't that what "making available" is? Attempting to infringe?
gdZiemann
"Von Lohmann contends that the exclusive distribution right of copyright holders -- "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending" -- covers only the distribution of physical objects."
That's not true. No where in the Copyright Act that copyright protection extends only to physical product. Infringement in the real world is infringement in the digital world. That statement is ridiculous and doesn't help his credibility as someone knowledgeable about these issues.
Posted by:
marcus |
April 08, 2008 at 07:07 PM
Judge for yourselves, lawerly readers. This is from Section 101, the definitions portion of copyright law:
"'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term `copies' includes the material object, other than a phonorecord, in which the work is first fixed."
"`Phonorecords' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term `phonorecords' includes the material object in which the sounds are first fixed."
The law doesn't define material objects, but Websters equates material with physical or "of matter," I guess we could debate whether pulses of voltage are physical objects, but they're certainly not fixed. That's why transmissions don't seem to fit the bill, but again, IANAL.
Posted by:
Jon Healey |
April 08, 2008 at 08:13 PM
@Jon Healey:
I see what you are getting at, but digital copies aren't abstract ones and zeros floating about in some idealistic Platonia - they are stored on a physical medium. If we are willing to accept that the definition of an illegal copy can be applied to just one track out of many on a CD (or even to single sample in an otherwise original track), there is no reason why this cannot be extended to a single file or fragment of same on someone's hard-drive. That too, in the end is a physical region of magnetic material. No difference.
Transmissions are also conducted through a physical medium, by the way. Even wireless Internet goes down a series of wires sooner or later.
Posted by:
Krzysztof Wiszniewski |
April 09, 2008 at 06:40 AM
I'm out of my depth here, KW, but it seems to me that the word you're skipping over in the definitions is "fixed." Ones and zeroes passing through the network aren't fixed. They become fixed when they arrive at the downloader's hard drive. You might argue that the uploader makes a fixed copy on his/her machine in the process, too, but I don't believe that's how the process works, technically speaking.
Posted by:
Jon Healey |
April 09, 2008 at 07:22 AM
I agree with Marcus. In the 'definitions' section, we see that both 'copies' and 'phonorecords' include language referring to previously undeveloped methods of creation and playing. That language was purposely created vaguely for this very application. In order to fully protect copyright holders, the language allows for the addition of new formats and transmission processes to be covered.
If the issue is the word 'fixed', well then let's all take a look at our music folders. Is it a jumble of 1s and 0s that we have to rearrange ourselves to create each song? No. The 1s and 0s are organized with a starting point and a finish line - Fixed.
And as far as transmission is concerned - you wouldn't arrest someone for delivering drugs to another person's house would you? Even if it weren't their drugs? Oh wait....
The bottom line is that digital files (ie 'copies') of protected material absolutely fall under copyright law.
And while I do not condone ANY of the RIAA's tactics in trying to obtain $$$ from lowly file-sharers, I support copyright law and an artist's right to be compensated.