We recently received the following informative e-mail from a Verizon customer, who writes:

I am writing to strongly protest Doug Ginsburg's decision today which refused to uphold Congress' intent and the Federal Courts order in favor of the Recording Industry Association.

All ISP's are well aware of the content flowing over their wires. They are making significant amounts of money from the subscription and hosting fees generated from the transmission of stolen property (copyrighted works).

I must ask the Judge, if FEDEX was unknowingly warehousing and shipping packages which contained cocaine would the the Judge prohibit prosecutors from issuing a subpoeana to obtain the name of the client? Certainly not.

Get real. There is no CIVIL right to remain anonymous in the trafficking of stolen property.

------------

Q1) Was the cocaine stolen?
Q2) ISP are not "warehousing" the "stolen property," which, in the case of the analogy presented, is illegal whether or not it is stolen. So far, possession of audio files is not, in and of itself, a federal offense.
Q3) Value -- package of cocaine vs. an mp3 file.

Enough quibbling. Here is the heart of the writer's complaint.

"All ISP's are well aware of the content flowing over their wires. They are making significant amounts of money from the subscription and hosting fees"

Well, the hosting fees part is just plain wrong. If the ISPs were hosting the files, they would be forced, under the law, to identify the users with the lame subpoenas issued under the DMCA, which is EXACTLY the sort of behavior the DMCA was designed to protect against.

But that's not what is going on.

And look at it from the ISP's point of view. You sell an Internet connection for X dollars a month. Each ISP, has a technical limitation of how much bandwidth they can provide at any one time, which is why people with websites get charged bandwidth fees when they have too much traffic.

But the users of the Internet, those who are merely "on" it but don't necessarily have a website, those are the common customers of an ISP.

The more customers that are actively using a filesharing service at any one time, the more bandwidth is being soaked up by that ISP. From a supply/demand point of view, it would be in the ISP's best interest if you paid you X dollars a month and actually used it as little as possible. The more heavy users they have, the greater the drain on the ISP's resources.

So that's not what this is all about. It's about the consumer's right to due process, the fact that the RIAA is trying to apply a law specifically designed for one scenario to another.

Because, as far as I can tell, there is still no law against downloading.

And frankly, if I discover that my ISP is "well aware of the content flowing" between my computer and that of, say a Senator or an attorney or even the rough tracks I share with my guitar player, well, I think I've got a problem with that, too.

Which leaves us with the first sentence. If the desired result of Congress' intent was so well-defined, you'd think that they would have added specific language to cover this technological development that they had never imagined. After all, the Copyright law gained a lot of girth with the DMCA. Another pound wouldn't have made any difference.

Uh huh

Was it signed Cary Sherman........lol

nah, cary sue doesn't know how to email

another anology. the highway system was built by the government. We know full well that the highway system is used by drug runners and criminals of all sorts to distribute stolen goods (not that downloaded music is stolen) and to evade prosecution.

However the police cannot stop and search your vehicle without probable cause (some would argue that point but generally it's true) even though they know there's illegal traffic going over the highways.

ISP's should be under the same restrictions. I don't fault the writer of the email at all, he has obviously bought into the mass media, entertainment industry hype (When they use the same words you can tell they're being a tape recorder rather then having independant thought). Of course there are those who would say the same about us.

yea, what ever. To the person who sent this email, you need to get your facts together before or you make your self look like a dingle berry.

Good analogy, Compmore.

Alternately, one might ask one's self how many murders, drug deals, and crimes of various sorts were planned and organized over the telephone. If the E-mailer's argument were valid, the phone companies would be responsible for all of it! I mean, their systems are being used as a conduit to plan and execute a crime!!

A ridiculous argument from someone who obviously doesn't have a clue.

I am getting tired of "dingle berries" like that guy arguing a subject they know nothing about. Also of people calling it "stealing". I still cannot figure out what people are stealing - its their computer, their internet connection, what is being stolen, "Potential Sales?" That's like suing someone for walking past a store and not buying anything.

The automobile analogy is not on point because according to the US Supreme Court an autombile can be searched with probable cause but without a warrant and without the approval of a judge. The info gathered by the RIAA would be sufficient to meet the probable cause requirement, but a judge's approval is required per the latest court opinion. So probable cause is not the issue, it is the prior approval of a judge that is the key.

Downloading, and filesharing, are not specified in ANY law as being illegal. What I have in my computer and what I send to another computer is private and personal and no one has the right to view, track, or intercept it without my permission or without reasonable cause that I am doing something illegal. The courts have already upheld that filesharing is legal, which is why Kazaa and Grokster and all of them were acquitted by the courts.

Their alleged crime is that we're "trafficing and distributing copyrighted materials" aka mp3s of songs and albums. There is no law that mentions specifically an mp3, wma, or any audio format, there is only broad generalizations that corporations like the RIAA are trying to abuse and twist into their own interpretations of it. We're "trafficing" this stuff not for profit, but for entertainment. 99% of the people that download a song don't start burning hundreds of CD-Rs and selling them on street corners. They listen to them. I thought that was what music was for, although apparently the labels (not the artists) think it's for them to extort $$$ off of.

"The courts have already upheld that filesharing is legal, which is why Kazaa and Grokster and all of them were acquitted by the courts."

Sorry, but you are wrong. Maybe you should read the court opinions before you offer your interpretation.

"We're "trafficing" this stuff not for profit, but for entertainment."

Copyright infringement does not hinge on whether the motive is profit or entertainment. Infringement is infringement, profit motive notwithstanding.

please I'm not here to argue fine points of the law. I'm not a lawyer so forgive my my backwards use of the language. but I do know that police cannot just stop you on the highway and decide to look in the trunk or take the seats apart just because they feel like it. they need a warrent (unless they spot something suspicous through the window when they're talking with me) besides the RIAA has made many mistakes already in there quest for information. IP address mistakes, and many more. they are NOT a police agency and their goals are far less nobel then law enforcement is supposed to be. They need to be watched and regulated very carefully.

The anology still stands even though the details may be different.

George should have published his e-mail address. This person should see how it is to lose privacy over the web.

"Sorry, but you are wrong. Maybe you should read the court opinions before you offer your interpretation."

And maybe you should explain why he is wrong, mroops, instead of just stating that he is wrong--and thereby assuming God-like status for yourself.

"Copyright infringement does not hinge on whether the motive is profit or entertainment. Infringement is infringement, profit motive notwithstanding."

Copyright is broken. Mickey Mouse should have went into the public domain this year if copyrights really existed, but they don't. Copyright has merely become a nuisance to Corporate America, forcing them to spend lobbying money to purchase Congressmen like Sonny Bono to get copyright extended in perpetuity. Why should anyone respect copyright law if copyrights never end like they're supposed to? A copyright that never ends is not a copyright. Don't get so bogged down in details that you miss the forest for the trees.

George hits the nail on the head, as usual, once again, when he mentioned "IT'S ABOUT A CONSUMER'S RIGHT TO DUE PROCESS..."

The RIAA is trying to circumvent that, in a thuggish, extortionist attempt to be police, judge, jury and executioner.

Due process is like a disease, nowadays, however, to those who the Bush crime family would like to eradicate in the misguided "war on terror" and Patriot Act nonsense.

Due process is a disease for right wingers who despise liberals. The RIAA is following suit...(pun fully intended

Due process is what will create the next question when the RIAA has to bring a case before a judge in order to find out an identity for an IP address.

At some point, the RIAA will have to explain to the judge exactly what law has been broken, somehow distinguishing it from the non-commercial use that the courts have ALWAYS protected.

zachary I agree with you except for the disease statment. Due process is a disease for liberals and conservitives when soft money is involved. Keep in mind it was the republican congress along with the Liberal executive branch that got the DMCA passed. both are responsible.

The only time you see liberals screaming about due process is when someone gets beaten up by the police. the only time you see conservitives scream about due process is when someone gets busted for insider trading. Both pay lip service, and both ignor it when the soft money starts rolling in

File sharing IS legal, mroop.

Except for that miniscule amount of content produced by the RIAA.

Please do not mix up conservatives, liberals, and politicians. Thank you.

Quote: "The automobile analogy is not on point because according to the US Supreme Court an autombile can be searched with probable cause but without a warrant and without the approval of a judge. The info gathered by the RIAA would be sufficient to meet the probable cause requirement, but a judge's approval is required per the latest court opinion. So probable cause is not the issue, it is the prior approval of a judge that is the key."

But only law enforcement agencies have this right, NOT CORPRATE BUSINESSES! There is a difference. The RIAA is not a law enforcment agency.

"Copyright infringement does not hinge on whether the motive is profit or entertainment. Infringement is infringement, profit motive notwithstanding."

mroop, you are so wrong here. Copyright law is in itself a profit motive.
It is a financial incentive to create. The copyright holder has the granted artificial monopoly (meaning only holder has right to make the $$$.) To infringe, you would be making $$$ without the right to do so. Sharing a song with someone is NOT infringement, it is fair use. SELLING an unauthorized song IS infringement.

It has EVERYTHING to do with the profit motive.

Shmoo, of Electric Gypsy
Support Local and Independent Music!

"File sharing IS legal, mroop. Except for that miniscule amount of content produced by the RIAA."

I beg to differ. File sharing is legal with the consent of the copyright holder. The RIAA is the only party suing people, for now.

"And maybe you should explain why he is wrong, mroops, instead of just stating that he is wrong--and thereby assuming God-like status for yourself."

I don't know all the details, if you are really interested then you can read the opinions too. : ) The courts certainly did not say that file sharing is legal as fjones claims. I believe that the courts that found in favor of the file sharing services held that they were not guilty of contributory infringement.

"Sharing a song with someone is NOT infringement, it is fair use. SELLING an unauthorized song IS infringement. It has EVERYTHING to do with the profit motive."

If that is what you believe then I suggest you study up on your copyright law because you too are wrong! : ) Here you go:

http://www4.law.cornell.edu/uscode/17/

"At some point, the RIAA will have to explain to the judge exactly what law has been broken, somehow distinguishing it from the non-commercial use that the courts have ALWAYS protected."

Very simple, Section 106 (a) - the copyright holders exclusive right to distribute copies. There is no profit motive requirement needed to violate 106 (a).

file sharing is legal provided you are sharing legal works, whether it be a picture, game, movie, etc. If file shareing was illegal, then all forms of file tranfer would be consider as illegal as well, since then downloading or uploading a file to someone is just that, file shareing. P2P just makes the task easier to share it with millions of people.

Daniel

filesharing is legal. you're just assuming all files have copyrights attached to them. The vast majority of files being shared (P2P, corporate business networks, messengers, ftp servers etc.) are public domain or intended by the distributor to be shared.

sharing a song IS fair use. otherwise every single person in this country (including yourself) who has loned a tape or CD to a friend is guilty of infringment. sharing is sharing reguardless of what the law says. The copyright laws are so twisted and complexed even a brillant genius like yourself couldn't make sense out of them.

I don't give a shit about your interpritation of what's legal or not. we're all talking about what's right. something you know nothing about unless you can read a court opinion to find out what a judge thinks

compmore,

actually, I know of a colleage who takes a very strict interpretation of copyright law - and he would argue that if you GAVE a single copy of a tape to a friend (not loaned, as you state in your example) then you are guilty of copyright infringement - even if you copied a broadcast TV movie as opposed to copying a tape from Blockbuster.

you're right bufo. absolutly right. that's the point I was making. everyone is guilty. that's how messed up the laws are, just depends on who's interpreting them. he would argue the sky is pink just for the point of argument.

but copying a broadcast from TV was ruled fair use wasn't it??

"but copying a broadcast from TV was ruled fair use wasn't it??"

Copying - yes. Distributing - no.

mroop

The police can only search your vehicle after putting you under arrest and they do need probable cause to put you under arrest.

"The police can only search your vehicle after putting you under arrest and they do need probable cause to put you under arrest."

The police can search your vehicle without arresting you. I speak from personal experience. : )

That's provided that theyhave probable cause.

And no, the fact that you were speeding does not give them probable cause.

Unless they have that, you can refuse a search of your vehicle and there's not a damn thing they can do about it.

File sharing in and of itself is not illegal. That's what's being argued. Everything on P2P networks doesn't have a copyright attached to it, and even then some of the copyright owners don't object to it being shared. Some of them even put their own music on P2P networks.

EVERYTHING is copyright protected by DEFAULT! (Even the words we bandy about here are technically protected) and NOTHING is in the "public domain" until god only knows how many years past the life of the author.

mroop, you quoted my words directly in a post you made above... by YOUR reasoning, that would be considered infringement (and illegal.) However, I don't consider it infringement, I consider it "fair use." You did not take my words (nor me yours) and publish a book and charge $$$ for that book, so no infringment took place.

The profit motive IS needed for infringment.

Shmoo

"mroop, you quoted my words directly in a post you made above... by YOUR reasoning, that would be considered infringement (and illegal.)"

No it wouldn't, it would be fair use to quote you regardless of what you consider it.

"The profit motive IS needed for infringment."

How many times do I have to tell you that profit motive is not required for infringement? Don't take my word for it, read the statute at the link I posted. For as much as you complain about copyright law, you should at least have a basic understanding of how it works. If you think a profit motive is required for infringement then you do not have even a basic understanding of copyright law. Read the statute, please.

"That's provided that they have probable cause. And no, the fact that you were speeding does not give them probable cause."

I know that. In fact I wrote it up above. What I also said is that the info that the RIAA gathers would constitute probable cause against the file sharers that they go after. So the issue is not probable cause, it is the approval of a judge or (as I believe you noted) the fact that the RIAA is not a law enforcement agency.

"File sharing in and of itself is not illegal. That's what's being argued. "

Well of course file sharing in and of itself is not illegal. That is stating the obvious. When discussing lawsuits against file sharers I figure it is assumed that we are talking about people who are sharing in copyrighted materials without the consent of the owner.

"How many times do I have to tell you that profit motive is not required for infringement? Don't take my word for it, read the statute at the link I posted. For as much as you complain about copyright law, you should at least have a basic understanding of how it works. If you think a profit motive is required for infringement then you do not have even a basic understanding of copyright law. Read the statute, please."

That might be, but profit motive plays a big part in how much is awarded in damages, if any are to be awarded at all.

A judge/jury is going to award a hell of lot more money in the case of someone who burned thousands of bootlegged CD's and sold them on a street corner than they are to someone who shared files over a P2P network or FTP site.

This is why the RIAA is only suing people who don't have the money to fight them in court.

If they screw up and sue someone who does have the money to fight them, they'd be in big trouble because their evidence is very unreliable, and they've already made several mistakes.

They'd have to prove that they suffered damages, and that said damages came as a result of the defendant's actions.

Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

---------

Sorry mroop. "Commercial nature" IS a fact which must be considered. This would be the profit motive you casually dismiss.

You can claim it's not a factor all day long, but there it is -- commercial nature. And no one has proven beyond a reasonable doubt that file sharing has caused a detrimental "effect of the use upon the potential market for or value of the copyrighted work."

Then consider points 2 and 3 together. The RIAA is using the sound recording copyright as the basis for their suits. This copyright covers the collective whole of the CD. If it is one song from a CD, which is being shared, you are now talking a fraction of the original, probably ten percent or less. Compress it into mp3 and now you're talking about 1/100 of the original work.

No profit. If you're a musician you could almost get away with the "research" clause. You're sharing a tiny audibly flawed representative piece of the original work, with no real empirical determination of how it effects the value of the original.

So prove to me why me sharing a Moby song -- with the approval of the artist, btw, the opinion of the "copyright owner" notwithstanding -- is not fair use.

And if you can manage an explanation of that, then explain to our audience how some morally-correct p2p user is supposed to tell the difference between the authorized and the unauthorized, keeping in mind that there were 250,000 artists and 1 million songs posted at mp3.com for free download.

Might I also add that this is also why the RIAA isn't going after downloaders.

Besides being incapable of identifying downloaders(because they aren't very tech-savy), it would be harder to prove that they suffered any damages as a result of your downloading.

Furthermore, the civil penalties and court costs of such a case are a lot less than those of uploading, hence a downloader would be a lot more inclined to fight their case in court rather than just settling.

About the police and probable cause. In all actuality, this comes out later, during court. If a cop asks to search your car and you refuse; you can be detained and even arrested on a mere suspicion. You can fight out the details later, in court. In which case the cop will lie his lilly white arse off; and you will most likely lose the case. Not because you lied on the stand, but becuase the court is bound to take the cops word over yours; And you can bet your ass your testimony of the events and his will not match.

Don't be stupid enough to think you have that many rights. Police do as they like, you get to argue the fine points later in front of a Judge.

Regards,
Raid

"About the police and probable cause. In all actuality, this comes out later, during court. If a cop asks to search your car and you refuse; you can be detained and even arrested on a mere suspicion. You can fight out the details later, in court. In which case the cop will lie his lilly white arse off; and you will most likely lose the case. Not because you lied on the stand, but becuase the court is bound to take the cops word over yours; And you can bet your ass your testimony of the events and his will not match.

Don't be stupid enough to think you have that many rights. Police do as they like, you get to argue the fine points later in front of a Judge."

That's exactly what the police want you to think when they ask to search your car.

'Mere suspicion' does not give them the right to search your vehicle. The Supreme Court has ruled against this time and time again, the most recently being last month.

A man who was pulled over for speeding refused to give consent to search his vehicle, the officer did anyway, crack cocaine was found, and he was sentenced to prison.

The supreme court found that the officer did not have probable cause to have his vehicle searched, and that the interrogation went over the time necessary to write him a citation for the infraction.

His conviction was overturned and he was released.

"I am writing to strongly protest Doug Ginsburg's decision today which refused to uphold Congress' intent and the Federal Courts order in favor of the Recording Industry Association."

Doug? Does this writer know him personally to be on such a first name basis with a jurist? And, is he or she a mind reader to know the "intent" of Congress? Congress is not a being with one, unilateral voice without dissent. This statement is poppycock and nonsense. The decision rendered was a lengthy one and based on firm judicial precedent and fair reasoning. I read the decision. Obviously the reader must have read the RIAA version of it.

"All ISP's are well aware of the content flowing over their wires. They are making significant amounts of money from the subscription and hosting fees generated from the transmission of stolen property (copyrighted works)."
Hmm...more personification of large bodies of differently thinking individuals. The statement that all ISPs are well aware of the content flowing over their wires, reveals the kind of conspiratorial thought that gives conspiracy theorists a bad name. What UTTER nonsense.

No ISP "knows" or "is aware" of anything, since an ISP is a company, not a natural person and thus cannot be aware of all content going over their "wires" (does this person really believe such lunacy?). Only humans (or sentient beings) can be "aware" of anything !

"I must ask the Judge, if FEDEX was unknowingly warehousing and shipping packages which contained cocaine would the the Judge prohibit prosecutors from issuing a subpoeana to obtain the name of the client? Certainly not."

Again, FEDEX is a company, and does not "KNOW" anything, and will never know anything. People can know things, companies are NOT sentient beings and do not "know" anything. This character needs to read something about semantics before firing off such drivel.
Prosectors do NOT issue subpoenas. Judges do. Not only does the e-mailer have bizarre ideas about companies being sentient beings, but he or she obviously doesn't understand the subpoena process.

"Get real. There is no CIVIL right to remain anonymous in the trafficking of stolen property."

Given the above bizarre idea they have about prosectors issuing subpoenas, I am not surprised the writer makes the bizarre statement above. The Verizon case had nothing to do with trafficking of stolen property, and there was no such accusation even issued by the RIAA in seeking the subpoenas. The subpoenas delivered to the ISPs were about alleged
"copyright infringement" issues, and NONE were about anything to do with "stolen property".

If the e-mailer wants to engage in writing fiction, he or she would spend their time better reading Philip K. Dick,
or Isaac Asimov, H.G. Wells, or other writers, than to quit wasting their time in e-mailing lunatic letters which only serves to reveal their illiteracy regarding the subpoena process, the judicial system, and the allegations of the RIAA.

George...I would suggest a more liberal usage of the "Delete" key in e-mails. I have found great facility in doing that...and it saves me a lot of time in avoiding ranting like this one.

~Code

Electro-N -- There simply is no law against downloading. The uploading cases hinge on the "redistribution" angle.

If you find a song on the internet and download it for free, YOU haven't infringed on anything except perhaps the RIAA's ability to take your money.

George, I know.

I'm just trying to say that even if it were illegal(or if the RIAA could spin it in a case to make it look like it was) the profit motive would still pertain.

I was talking more in a civil manner than a criminal manner.

CODE you know how RIAA lawyers like to RANT!!!!! Doesen't mean they know anything???? I don't think George needs to delete this RIAA lawyer only gives us a chance to tell the TRUTH on the RIAA and win folks over on this Debate!!!!!

"So prove to me why me sharing a Moby song -- with the approval of the artist, btw, the opinion of the "copyright owner" notwithstanding -- is not fair use."

Rather than give a long explanation, I'll just say that I will eat my hat on the day that a court of law finds that distributing copyrighted material without consent via a file sharing network is considered fair use. It will never happen.

"And if you can manage an explanation of that, then explain to our audience how some morally-correct p2p user is supposed to tell the difference between the authorized and the unauthorized, keeping in mind that there were 250,000 artists and 1 million songs posted at mp3.com for free download."

It's irrelevant.

"Not because you lied on the stand, but becuase the court is bound to take the cops word over yours;"

The court is not bound to take the cops word over the defendants.

"'Mere suspicion' does not give them the right to search your vehicle. The Supreme Court has ruled against this time and time again, the most recently being last month."

Agreed. You do need probable cause.

mroop, I understand copyright law fairly well, even for a layman who has a personal and professional interest in copyright law.
True, IANAL and am not perfect and all, but George (and others) defended my assertion that profit is needed as a motive for infringement with sucsess in post(s) above, by my judgement.

Hint...
Your best arguement against me should hinge on something George posted...

"(4) the effect of the use upon the potential market for or value of the copyrighted work."

...although, we would respond that it needs proven that filesharing hurts the potential market value for recorded music.

If this were the motivation for infringement, however, you might claim that this is not a "profit motive" and perhaps would be correct... in this case, it would be a motive for the suppression of another's profit.
Semantically, you would have me here...

(but even still, it has to do with profit, either the alleged infringer's or that of the infringee, so is still a "profit motive.")



Keep trying... you keep us on our toes!

Shmoo, of Electric Gypsy
Support Local and Independent Music!

IRRELEVANT?!?

A million authorized songs are irrelevant? Then so is iTunes' paltry collection. So is the entire output of the recording industry.

If the majority is irrelevant, then the minority must be of equal or lesser value.

And the majority says the value of an mp3 is zero.

"Rather than give a long explanation" you'll just revert back to speculation.

My apologies, but I am merely a victim of a one sided circumstance!