by George Ziemann

The BS Alert Level has risen to baboon-butt red, as the industry AND media try to convince us that sales are up because the 2003 decline was only half as bad as 2002, despite being 50% worse than both 2000 and 2001.

The Hollywood Reporter said, "Music biz bounces back." Uh... not exactly.

Even the Register asked the rhetorical question, "Music sales are on the mend?"

Sales are still going DOWN. Play the percentages and stand them on their pointy parts all day, but down is still down. It is not a "bounce back", it is not "on the mend." It IS an attempt to change reality merely by saying things are better. After all, it worked on the other end, when they created a problem where none had to exist.

And the pirates? Long gone. Not even a problem any more.

Online Music Piracy Plummeted in 2003
Drop Coincided With Recording Industry Lawsuits, Survey

By David McGuire -- Washington Post

Illegal trading of music over the Internet plummeted in the second half of 2003 in the face of a highly publicized legal blitz launched by the recording industry, according to a study released today by the Pew Internet & American Life Project.

The number of American Internet users who say they download music fell from 29 percent (about 35 million users) in the spring of 2003 to 14 percent (about 28 million users) in November and December, according to the phone survey of 1,358 Internet users age 18 and over.

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Back up the bus, Barbara...

What happened to the 12- to 18-year-olds? This was everyone's biggest criticism of Pew's earlier studies. And even the illustrious Hilary Rosen reminded us at the end of 2002 that the under-18 age group was the fastest growing segment of peer-to-peer users.

"Since so much of the growth in peer-to-peer network use has been in the 12- to 18-year-old category -in fact, 18- to 30-year-olds, the activity has generally been about the same in the last 2 years. What we're seeing is tremendous growth in the 12- to 18-year-old. That means, as parents buy broadband and DSL and cable online services for their house, their kids are using that to go upstairs and steal music."

So this time, they left out the fastest growing segment. Mysteriously, this has changed everything.

Just as it would have if Pew had thrown out the under-18 responses the last time.

"Coinciding with the apparent decline in file-sharing, ComScore found that the number of Americans visiting legal, paid downloading services like Apple's iTunes and the revamped Napster service increased in 2003."

Let's see... both iTunes and the recycled Napster "service" launched in 2003. Since they didn't exist in 2002, any sales at all would be an "increase in 2003."

"RIAA Chairman Mitch Bainwol said that findings further confirm value of the industry's legal campaign. 'This is another data point that tells us in fact that the lawsuits have had an enormous impact on public awareness about the legality of downloading,' he said."

Keep believing it, Mitch. You're our best weapon.

Propaganda works best on the people who want to believe it.

I have seen the same, I wondered how long it would take for the machines to rev up after the defeats 2 weeks ago. Some interesting quotes from MSNBC.

"But the slide in sales hasn't been addressed at all by the lawsuits, says Fred von Lehmann, senior intellectual property attorney for the Electronic Frontier Foundation. Von Lehmann believes many respondents to the Pew survey didn't reveal their true downloading habits for fear of being sued. And even if fewer users chose were sharing files, he said, those scared by the lawsuits weren't moving over to paid services, which require special software and often use proprietary formats."

"On the other hand, he acknowledged, "When free services go away, there will be some portion of people who will never do it again.""

With new DVD-music & other formats coming that have no increase in quality of the music or sound. Continued Lawsuits. And crappy 99 cent downloads with lots of DRM to go around.

I believe that people just don't want to F___ with it anymore. Too much of a hassle...with all of it.

According to the top-of-the-hour ABC radio news update in St. Louis, Missouri:

The number of music downloaders has decreased by half. The industry's lawsuit campaign is a possible explanation.

I was nearly thrown into a fit of road rage.

hahahahahahahahahaha. I can believe the industry and it's supports wanted us to believe that. but isn't there ANYONE in the news media who knows how to count?? I'm really perplexed by this.

It's obvious that the major media outlets and most newspapers (dispite a few rouge journalists) are in the RIAA's pocket but I'm suprised that orginazations who trust and rely on facts (even if they skew it to their own agenda) will readily accept these statements as facts without getting verifacation from other sources.

This may be harsh but the medias total unreliable and biased coverage of this issue calls their objectivity in question. I would love to see it another way but it's hard to.

Anyone in the media, get the numbers correct and verify it, then I challenge you to report the truth on this issue. But then again they claim that's minipulative when you suggest they are not benifiting the public.

This reminds me of NAZI germany or the USSR or CHINA only STATE approved reporting is allowed!!!!! the STATE of course is the RIAA!!!!

Anybody see the Shah of Iran's son on Fox TV tonite? He says Iran is ready for a constitutional monarchy.

This is fucking crazy. Fox PropgandaTV will result in a nuclear war. They will nuke us just because Rupert Murdick has a small penis and wants to act like a big shot.

I try to never watch Fox (Paranoia Central)

a constitutional monoarchy which is mindfull of copyrights and charges $.99 per civil rights violation.

What do u mean you don't watch Fox? They have the best fiction out there. Its the most fun to watch.

It's also the channel most likely to make you shoot your TV.

a constitutional monarchy?

aint that an oxymoron?

Like I said before, they can keep believing their made up numbers all the way through bankruptcy court and when they're finally shut down because nobody will buy their crap. By that point the homegrown and independent acts will have an even bigger footprint to sell and distribute on the net and the big labels will be irrelevant...

...except for the occasional, scandelous story about their best pop star marrying and annuling in less than 24 hours. If she continues to represent the current trend the big labels want to sell, we've got nothing to worry about.

Leflaw-- whatever happening to posting appropriately?

On the other hand, LOL.

I don't watch Fox. I'm worried what would happen to me if I did. I might start breaking things, or maybe just even get angry enough to hack into Fox's website and post a URL redirect to www.deanforamerica.org.

Music biz on the mend, hah. The only place they're going is down- straight down!

:-:~ Phantom

fox is the best network there is i dunno what else ud ever want to watch on tv that isnt on fox or the cartoon network

yes i agree fox is a grate network............it's fox news thats cruppet in almost every way
but other then that how can you say no to watching a good epasode of the simpsons lol i mean thay had some of the best shows on TV

did'nt we all love it when the simpsons went on a campain to out FOX news on thair unfair and unblanced views?

did we all love it when the simpons outted the GUV on thair number hideing

and how thay outted the GUV on how meaningless the war on iraq whas-----other then the fact that sadom husan whas a flipin loon who needed to be took out of power thair whas no real reson to go to war with them thay could have just killed him and no one would have followed in his foot steps no sence in killling any iraqes lol

Even if Mr. Bainwol is right, he still needs to figure out what to do about the new difficulty the RIAA will now have in securing supoenas.

One option is to cut back on the lawsuits, and then for those who are targeted, sue them for everything they're worth - no settlements. But this would be risky. First, the publicity would be bad. Second, it would force defendants to hire attorneys to fight the case, and the RIAA could lose.

They wont lose. They have good edivence, and if anything looks remotely like it could be a problem they just settle. The publicity is not a problem either: Bad publicity is the objective here. Scaring people off the networks only works if people hear about it. But like the first SeA campaign, its only a last resort. Only once all other options have been tried.

You're probably right, goldenpi, they will not likely lose in the absolute sense.

But, even if they get a conviction on copyright infringement, they still would have to get enough money to pay for the lawsuit if it is challenged and fought in court. And there are no guarantees that they will be awarded a large sum of money, even if the targeted individual could afford to pay.

To really scare people, the RIAA would probably have to win a large settlement, even if it comes close to bankrupting a family. And the question is, will they be able to get a court to allow such an award, even if in theory they could get one under the DMCA?

Has anyone actually been found guilty of file sharing in a court case? Is it really against the law? Even if you're offering content? Where does it say that? And if it does say that somewhere in the depths of Title 17 of the US Code, is there any indication of how one could discern between the legal and the illegal content? If not, how would one determine that they are sharing an "illegal" file?

"Has anyone actually been found guilty of file sharing in a court case?"

Not that I am aware of.

"Is it really against the law?"

99.44 percent yes.

"Where does it say that?"

Section 106. Also, read the court opinions. Iirc even when the RIAA loses, the courts acknowledge that infringement is occuring. I think Ginsburg just did it again in the latest case. The only thing I recall in favor of file sharing of copyrighted materials without consent being legal was when that appeals court judge asked the attorney about leaving the door to your house open. That was a good point.

"And if it does say that somewhere in the depths of Title 17 of the US Code, is there any indication of how one could discern between the legal and the illegal content?"

That is the potential defendants problem. People are responsible for their own actions.

"If not, how would one determine that they are sharing an "illegal" file?"

I believe there are online online databases for ASCAP and BMI. But anyway, in reality most people are looking for something that has been commercially released and is copyrighted.

mroop That is the potential defendants problem. People are responsible for their own actions. Your right about that. So if there bots copied my hard drive. Then are in violation of the net act and should go to jail. And if they did copied my hard drive they are in violation of my upload and download agreement in my shared folder. They there fore owe me 30 billion dollars

"Has anyone actually been found guilty of file sharing in a court case?"

Not that I am aware of.

"Is it really against the law?"

99.44 percent yes.

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If no one has been proven guilty of committing this "crime" then it is merely a hypothesis.

Innocent until proven guilty.

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I looked through Section 106 and I didn't see peer-to-peer file sharing mentioned anywhere.

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"And if it does say that somewhere in the depths of Title 17 of the US Code, is there any indication of how one could discern between the legal and the illegal content?"

That is the potential defendants problem. People are responsible for their own actions.
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Oh, I see. So this means we can enact laws and not even tell anyone about what is and is not legal. It is not up to Congress or the courts to tell us what is legal and what is not. We're supposed to just know the difference.

So speed limit signs and traffic signals are now outdated. Everyone knows what the rules are. Where exactly does the school zone start? That is the potential defendants problem.

"Also, read the court opinions."

And this is the most irrelevant statement of the bunch. Since no one has been tried for this supposed offense, there is no court opinion yet, except that the DMCA does not apply to p2p.

"If no one has been proven guilty of committing this "crime" then it is merely a hypothesis.

Agreed. That is why I said 99.44 percent instead of 100.

"Innocent until proven guilty."

Also agreed.

"I looked through Section 106 and I didn't see peer-to-peer file sharing mentioned anywhere."

True. But as you know, statutes are given meaning in real life situations by court opinions. As I noted, the courts seem to be indicating in dictum that file sharing of copyyrighted materials without consent is infringement.

"So this means we can enact laws and not even tell anyone about what is and is not legal. It is not up to Congress or the courts to tell us what is legal and what is not. We're supposed to just know the difference."

Original copies of copyrighted material are marked as such. If someone puts up copyrighted material on the net and does not indicated it is copyrighted then the downloader is acting at his peril. But no one is going after downloaders. And as you have noted, the person downloading the material may not be violating the law because he is not the person that is committing the act of distribution.

"And this is the most irrelevant statement of the bunch. Since no one has been tried for this supposed offense, there is no court opinion yet, except that the DMCA does not apply to p2p."

Read the dictum. That tells you which way the courts are likely to act. And it doesn't look good for distributors. The statute does not have to say "file sharing" specifically, it already says "distribution" and file sharing seems to obviously be distribution.

"Original copies of copyrighted material are marked as such."

So what? Everything is copyrighted from the moment of creation, by default.

"file sharing of copyyrighted materials without consent is infringement."

And so when Moby says, "Download my new CD" then we're okay. We have his consent. If the guy from Disturbed says his band doesn't want the RIAA's "assistance" then their music must be fair game, eh?

The bands say, "go ahead and share." We're authorized.

"Read the dictum. That tells you which way the courts are likely to act. And it doesn't look good for distributors."

Speculation and hearsay.

"Speculation and hearsay."

LOL. True, but I'd call it an educated guess. "You don't need a weatherman to know which way the wind blows."

Anyone who thinks they have a good legal argument that would allow them to serve up files is free to continue on their way and test their theory in a court of law. This is how laws are made. The EFF should offer to defend someone for free and indemnify them against all damages. But I haven't heard about them looking for a defendant for a test case.

The only argument I like so far is the one that says, "I didn't distribute anything, I just left my door open." But I don't think it will fly because your intent in leaving your door open is clear.

"So what? Everything is copyrighted from the moment of creation, by default."

Well then you just made my argument. Everyone sharing is now on notice.

"And so when Moby says, "Download my new CD" then we're okay. We have his consent. If the guy from Disturbed says his band doesn't want the RIAA's "assistance" then their music must be fair game, eh?"

But they aren't the copyright holders, right? So their consent is not legally valid.

Let me also add that every fact situation that occurs in the world is unique. The job of the lawyer is to look at your particular fact situation and compare it to the existing law in order to tell you if what you are doing is legal or not. If your lawyer tells you that it is OK to distribute copyrighted works without consent via file sharing solely because it has not been specifically held to be illegal, then I would advise you to find another lawyer or ask him to defend you for free and agree to indemnify you against all damages if you get sued and lose.

"But I don't think it will fly because your intent in leaving your door open is clear."

Yeah, what is it? What is my intent in sharing a dozen or so songs? Or even 100? Or 1000?

Promotion.

"So what? Everything is copyrighted from the moment of creation, by default."

Well then you just made my argument. Everyone sharing is now on notice.

Yes, everyone is on notice that it is perfectly legal to offer your own music for upload on peer-to-peer networks, as a quarter-million acts are currently doing. And to the 60 million peer-to-peer users, take note of this -- We're giving you permission to listen to our music.

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"And so when Moby says, "Download my new CD" then we're okay. We have his consent. If the guy from Disturbed says his band doesn't want the RIAA's "assistance" then their music must be fair game, eh?"

But they aren't the copyright holders, right? So their consent is not legally valid.

--------

Oh, that's right. Disturbed and Moby are indentured servants. Not anything at all like those authors and creators the copyright laws were designed to protect.

"Yeah, what is it? What is my intent in sharing a dozen or so songs? Or even 100? Or 1000?

Promotion."

I don't even know what role intent plays. But your intent is to distribute. Promotion is your motive.

"Yes, everyone is on notice that it is perfectly legal to offer your own music for upload on peer-to-peer networks, as a quarter-million acts are currently doing. And to the 60 million peer-to-peer users, take note of this -- We're giving you permission to listen to our music."

Absolutely!

"Oh, that's right. Disturbed and Moby are indentured servants. Not anything at all like those authors and creators the copyright laws were designed to protect."

I'll buy that. : ) Now that Moby has millions of dollars he has enough money that he can go his own way next time. But he will probably go back with a company that takes his copyright, just like the rest of them.

Innocent until proven guilty? In criminal cases yet, but not civil. Copyright infringement is usually civil. The standards of proof is much lower.

"But your intent is to distribute. Promotion is your motive."

No, I "distribute" on my web site, where my product is sold. I "advertise" with inferior freebies on p2p. They are worthless.

The entire point of the entire "piracy" game has always been because the rest of us can get there, too. It is not exclusive to the RIAA and that's the problem.

My lawyer says anything prior to 1971 is legal since there were no sound recording copyrights.

My lawyer says my music is legal. My lawyer says that music from other artists who have openly acknowledged the use of their music in mp3 format as promotion is legal.

Downloading music is not illegal.
Uploading music is ONLY illegal in the limited case of RIAA music. However, there is no way to make that determination based on the fact that it's got a copyright symbol, which is not the infringement being claimed by the RIAA.

They are suing for infringement of the "circle p" (phonorecord) copyright.

So we have one way of telling the difference, provided we have a physical copy.

Oh, darn. That doesn't even work. My CD has both of those symbols on it. But you can still share it.

The copyright mark has become meaningless. It symbolizes nothing.

intent is a mental aspect. what did a person "intend" to do, or what were their "intentions". Seems to me the act was distribution and the intent was promotion...as in, I intend to promote my records through the act of sharing them online and enabling the distribution to potential paying customers....

or am I all wet on that one

You're a little moist on that one. : ) Legally speaking, the intent is the intent to do the act. Motive is the reason for doing the act. For example, you are guilty of murder if you intend to kill. You're motive is money, revenge, etc. So if you are distributing, the intent is to distribute, the motive is to promote or to get back at the RIAA or whatever it may e.

This is known in criminal law as the "mens rea" - The state of mind indicating culpability which is required by statute as an element of a crime.

As I noted above, there may not be an intent requirement for copyright infringement. This means that the mere act of infringing is all that is needed to be found liable, intent is not an element of the cause of action.

It is wrong to criminalize file sharers who are not attempting to profit from the file sharing. I don't care if even technically it were illegal to share files. If it is found to be so, we have unjust laws.

COPYRIGHT REFORM NOW!

Shmoo, of Electric Gypsy
Support Local and Independent Music!

Let me get this straight, George.

You're saying that there are two copyrights here, a publishing copyright identified with a © and then a phonorecord copyright identified with a (P). (darn, I don't know the code for making that p symbol)

And the (P) only came into effect in 1971?

So sharing Sgt. Pepper's Heart's Club Band is OK? because that was 1967? But Sgt. Pepper still has a © too, so why wouldn't that apply?

I think I'm all mixed up. Help me out.

" This is known in criminal law as the "mens rea" - The state of mind indicating culpability which is required by statute as an element of a crime."

What was the crime again?

autodidact -- and anyone else not clear on this.

First of all, if the (p) symbol is in any font, I haven't found it yet.

The © is to designate the copyright of the underlying words and music. (p) is to designate the copyright of the phonorecording, that is, the performance of the underlying words and music.

Each song has a separate © copyright, although you can batch together some if the authors are exactly the same. For my own last CD, we had about 5 copyrights to contain all of the underlying words and music (each writer had their own copyrights), with another to protect the sound recording.

I believe the (p) started in 1972, which would mean that nothing up through 1971 has a sound recording copyright, provided you dub it off the vinyl or cassette. And the Library of Congress records denote the earlier (p) rights as "analog", opening the door for an argument that digital was not expressly addressed.

"What was the crime again?"

Maybe you missed it, but I said that copyright infringement (a civil cause of action) may not even have an intent requirement. In this case, mere distribution would suffice for a violation of the statute. If the statute does have an intent requirement, this would be met by the intent to distribute. "Promotion" would not be relevant to the intent requirement, because it would constitute "motive" and not "intent".

Then why was this necessary?

July 17, 2003 -- Legislation introduced into the U.S. Congress this week would make uploading a file to a peer-to-peer (P2P) network a felony with penalties of up to US$250,000 in fines and five years in prison.

(http://www.crmbuyer.com/perl/story/31138.html)

I don't believe I heard about this law passing and, believe me, we would have heard about it.

Why would it be necessary to pass a law against peer-to-peer if it was already illegal? Why would Congress waste time arguing about it if it was already part of the law?

Yikes!

"Why would it be necessary to pass a law against peer-to-peer if it was already illegal?"

Because Title 17 is a civil law. This law would make it a criminal violation too. Two different bodies of law. Civil law is people suing each other. (Although the govt. may be able to go after individuals under Title 17, I'm not sure) Criminal law is the government fining people or putting them in jail.

Also note that I did not say that file sharing of copyrighted material without consent has been specifically found to be illegal under civil law. Just that there is a 99.44 percent chance that it will be held illegal if someone decides to test it. I think you would see someone like EFF test it if they thought they had any chance of victory. So far no one has decided to step forward and I think it is because they know they will lose and they can't leave a client on the hook like that without informing them of the risks.

You can see by the link below that Title 18 is the criminal law. That is where this new law would go if it passed.

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

Apparently there is still no way to make downloading illegal. They are suing uploaders. If we sponge off the files in other countries, no problem, unless we get mistakenly caught in the net, like the old guy who didn't own a computer, or the man charged with downloading Spanish music who doesn't speak Spanish.

Also, there are cheap pay sites in other countries for MP3s.

But it apears to me that what mroop is saying is that the infringer is the one who offers the copy, not the one who receives the copy. Is this established in some sort of legal precedent. Have they ever tried to sue people who receive copies as apposed to those who provided them? (I don't mean just music here, obviously.)

Another question. What if you buy a bootleg CD, which you may or may not know at the time of purchase is a bootleg. I know a guy who visited Russia several times and came home with suitcases overflowing with bootlegs (and legitimate Russian CDs at low prices too). As for the bootlegs, would such a purchaser ever be prosecuted?

Just curious.

"But it apears to me that what mroop is saying is that the infringer is the one who offers the copy, not the one who receives the copy."

Theoretically.

"Is this established in some sort of legal precedent."

Not in regards to peer-to-peer. If anything, in every single instance wherein "consumer theft" has made it to the courts (home taping, VCRs) thus far, the courts have found in favor of the consumers' right to do whatever they want once they have bought a product.

"Have they ever tried to sue people who receive copies as apposed to those who provided them?"

Specifically, no.

And in general, they music business has not tried to sue any consumers yet. The trend thus far has been to extort a "settlement." No case has gone through court yet.

"But it apears to me that what mroop is saying is that the infringer is the one who offers the copy, not the one who receives the copy. Is this established in some sort of legal precedent."

What is against the law is "distribution". THat is why the person offering the copy is the one they are going after.

"I know a guy who visited Russia several times and came home with suitcases overflowing with bootlegs (and legitimate Russian CDs at low prices too). As for the bootlegs, would such a purchaser ever be prosecuted?"

I could see someone getting caught with suitcases full of bootlegs being charged with something, although I don't know what. It sounds to me like this would be someone who is going to be selling them. Actually, if customs found this person they would probably just seize them and let the person fight to get them back. I have heard of shipments of bootlegs being seized at customs.

"If anything, in every single instance wherein "consumer theft" has made it to the courts (home taping, VCRs) thus far, the courts have found in favor of the consumers' right to do whatever they want once they have bought a product."

The courts have found in favor of the consumers right to make copies for personal use. I am not aware of any court saying that consumer are permitted to distribute copies.

"I am not aware of any court saying that consumer are permitted to distribute copies."

I am not aware of any court saying that "leaving your front door open" by sharing the contents of your hard drive constitutes illegal distribution.

mroop...I know about mens rea...reminds me of "Mens RIAA"..
but, just to keep the proper definition...
dictonary.law.com says this of intent :
"intent
n. mental desire and will to act in a particular way, including wishing not to participate. Intent is a crucial element in determining if certain acts were criminal. Occasionally a judge or jury may find that "there was no criminal intent." Example: lack of intent may reduce a charge of manslaughter to a finding of reckless homicide or other lesser crime."

lectlaw says :
"INTENT - The determination or resolve to do a certain thing, or the state of mind with which something is done. "

And, I think I certainly was in the right area here..
mroop said : Date: January 5, 2004 @ 6:40 PM

"You're a little moist on that one. : ) Legally speaking, the intent is the intent to do the act."

CW said ate: January 5, 2004 @ 6:22 PM
"intent is a mental aspect. what did a person "intend" to do, or what were their "intentions". "

If you compare what mroop said, and what CW said, with the above definitions...I don't think I was moist..I think I was right on target...
Intent is a volitional concept...what one had in their mind that they wanted to do...

PS..George, are they going to include "baboon-butt red" as one of the new M&M colors? ROFL LMAO

From a footnote in the DMCA
"“Copying” is used in this context as a short-hand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act. Consequently, a technological measure that prevents unauthorized distribution or public performance of a work would fall
in this second category.
Copyright Office Summary December 1998 Page 4"

So, they basically bring in the distribution issue by tieing it up with unauthorized copying...which has, since copyright began, been the big thing that copyright controls...i.e. the right to make copies...hence the term...copyright.

I think it is duplicitious in a way to now give the word copy, a definition that encompasses distribution..you could of course make many unauthorized copies and NEVER distribute ONE to anyone else.

I agreed Code. I was just trying to explain the difference between intent and motive. The plaintiff is not required to prove motive, but they are required to prove intent if that is an element of the crime. You know this if you watch Law and Order.

"I am not aware of any court saying that "leaving your front door open" by sharing the contents of your hard drive constitutes illegal distribution."

We agree that there has not been a holding directly on point yet. However, prior precedent certainly indicates that file sharing of copyrighted materials without consent will not be found to be legal.

Again I wonder: why has no one stepped up to the plate to get a final decision? Where are you EFF? Where are you enterprising attorneys who could really make a name for yourself by whipping the RIAA? Where are you ISP's who want to make money selling broadband? All I see are procedural challenges.

"PS..George, are they going to include "baboon-butt red" as one of the new M&M colors?"

No, but Crayola may be looking at it...

hummm i would be willing to go to court with the EFF if thay REP me free and covered any costs that i may detear

i would even D/L a whole bunch of riaa songs and perposly get cought call thair phone number and report my self lmao.....

but only with a contract with the EFF lol

but any way i have nothing to do at the moment and spear heading the friest contest of the DMCA in the issue of big bisness vs p2p D/Lers sounds like fun watching the RIAA cower in fear me and my lowyer supeana all thair records and what not.......lol

mroop: "I could see someone getting caught with suitcases full of bootlegs being charged with something, although I don't know what. It sounds to me like this would be someone who is going to be selling them. "

No, he's just a big music fan, like so many of us. He married a Russian wife. Bought lots of music, Russian and otherwise, both through the legit stores and also through the bootleg vendors while visiting there. Not selling!

re: intent of "leaving your front door open"

since none of those fingered by the RIAA have actually gone to trial, we don't know how this would play out. so many people are so technologically ignorant, I think it could legitimately be argued by most people that they did not understand that downloading files in to their KaZaa download folder constituted offering them for distribution. I understand that. You understand that. 90% of the people using KaZaa probably don't have a clue as to what's really going on.

maybe ignorance would turn out to be no excuse. but since there has been no trial, it is an open question. legitimately many of them could claim they did not intend to distribute, i.e. they did not even know their front door was wide open.

"No, he's just a big music fan, like so many of us."

I hear you, but if they catch you with suitcases full of bootlegs at the border chances are pretty good that they will take them from you. I remember reading about packages being seized by Customs back when there was a bootleg crackdown a few years ago.

"maybe ignorance would turn out to be no excuse. but since there has been no trial, it is an open question. legitimately many of them could claim they did not intend to distribute, i.e. they did not even know their front door was wide open."

Ignorance is no excuse. I just did a few minutes of quick research. According to this link civil infringement is a strict liability tort.

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01850.htm

A strict liability tort means the person is held responsible for committing the act regardless of intent. In other words, intent is not required to be found guilty.

http://www.levanlaw.com/html/practice_areas.html

The open question is whether "leaving your door open" and having someone avail themselves of your copyrighted material would constitute infringement. While there is no specific holding on this issue, it is pretty clear that it is infringement. Read the court opinions on file sharing including the latest one by Ginsburg. The courts always say that infringement is occuring. So you can say it is an open question, but it would be extremely unwise to expect that you would be succesful using this as a defense.

Think about this - how much of a boon would it be to broadband providers if they could advertise their service by telling you that you could download all the copyrighted music and movies you wanted for free? It would be huge. So if you were an ISP, why wouldn't you offer to defend an uploader so you could win the case and then begin your advertising campaign? I think the reason you haven't seen an ISP or anyone else step up and offer to defend someone is because they know very well that there is a snowball's chance in hell of winning the case.

I just skimmed the RIAA v. Verizon opinion from December 19th and found this language regarding p2p.:

"We are not unsympathetic either to the RIAA's concern regarding the widespread infringement of its members' copyrights, or to the need for legal tools to protect those rights."

And this:

"The stakes are large for the music, motion picture, and software industries and their role in fostering technological innovation and our popular culture. It is not surprising, therefore, that even as this case was being argued, committees of the Congress were considering how best to deal with the threat to copyrights posed by P2P file sharing schemes."

This kind of language acknowledging that file sharing of copyrighted materials without consent via P2P constitutes infringement can be found in all the opinions that deal with file sharing. So to think that the courts will hold that it is not infringement when the issue is specifically addressed is not very realistic.

Well, I don't think I said it wasn't infringement. However, if a case actually went to trial, don't you think that a person's intent would have some bearing on the case, at least in the judgment stage?

Actually, in the real world, if a person literally leaves their door open, and people come in and steal things, it is the person "stealing" who is at fault. Yet, in the wacky world of RIAA, I can take all I want (for that, all they will do is shake their finger at me and say, "naughty, naughty"), I just can't give out, then they will try to sue me.

Not that I care one way or the other. I haven't been on any P2P since RIAA started on its insane lawsuit rampage. So I need no defense. I'm not distributing on the net.

"However, if a case actually went to trial, don't you think that a person's intent would have some bearing on the case, at least in the judgment stage?"

I'm not sure what you mean by "the judgement stage". But per the above info civil infringement is a strict liability tort and therefore intent is not an element of the cause of action. Maybe you mean the "sentencing phase"? But that is criminal law and there is no sentencing phase. In civil law there is the asessment of damages. Intent may play a part there, but I don't know and I'm too lazy to do the research. : )

"Yet, in the wacky world of RIAA, I can take all I want (for that, all they will do is shake their finger at me and say, "naughty, naughty"), I just can't give out, then they will try to sue me."

Well, it's not the world of the RIAA, it is the world of copyright law. And keep in mind that "stealing" and copyright law are really two different bodies of law, so the door open thing is really an imperfect analogy.

having to agree with mroop on his last post...