Studios: we shouldn’t have to prove anyone used shared movie files

by Walter Olson on June 21, 2008

The act of making available movies for P2P copying should itself give rise to damage liability, with no need for a showing that anyone actually came along and availed themselves of the illicit property, Hollywood moviemakers are arguing. “It is technologically infeasible to determine whether the public is copying an open share folder, although the RIAA makes its own downloads from defendants’ share folders, produces screen shots and, among other things, captures an IP address. An Arizona judge ruled last month in a different case that those downloads count against a defendant, a one-of-a-kind decision being appealed on grounds that the RIAA was authorized to download its own music.” Infringement penalties can run to $150,000 per copyright violation. (David Kravets, “MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits”, “Threat Level” blog, Wired.com, Jun. 20). More: Ars Technica.

{ 5 comments }

1 Jim W 06.23.08 at 8:48 am

Downloading isn’t infringement, distribution is. If the defendant is appealing based on the argument that RIAA had authorization to download its own music, he should lose because distributing something back to the copyright holder is still infringement.

What RIAA is arguing is that it shouldn’t have to actually prove distribution occurred. It should only have to prove that distribution could have occurred. They are doing this because their pre-trial evidence gathering technique of harvesting IP addresses via MediaSentry and Friends is very error prone and also can’t lead to evidence of distribution.

RIAA is basically screwed. All the potential defendants and many of the judges have caught on to this and they have basically been reduced to arguing “Hey shareholders, this bucket is bigger than it looks! We still have a chance to hold back the tide! Don’t bail on us!” It’s ultimately going to prove futile and I think everyone with a clue has realized this is how it would play out since like 5-10 years ago.

2 David Schwartz 06.23.08 at 10:00 am

I agree with Jim W’s first paragraph.

Suppose someone is selling counterfeit Coca Cola. Coca Cola may employ people to buy the counterfeit product and then sue for fraud. The counterfeiters can’t argue that selling counterfeit Coca Cola *to* Coca Cola is lawful because Coca Cola is authorized to call anything it would like Coca Cola.

This is the same argument the respondents are making here. The because the RIAA can authorize any distribution it likes, their distribution to the RIAA is implicitly authorized when the RIAA did what anyone else could do.

I also agree that the “making available” argument is bogus.

An even stronger DMCA defense is available. If you didn’t buy the music yourself but instead got it from party X and sent it to party Y, you are just the type of intermediary the DMCA intended to exempt from copyright liability. (Heck, you don’t even know whether or not the content is copyrighted. Just because it says it’s X doesn’t mean it is X. And the DMCA doesn’t create any obligation for entities that just move data from X to Y to look into that data, even if the cache it.)

3 gitarcarver 06.23.08 at 12:51 pm

Suppose someone is selling counterfeit Coca Cola. Coca Cola may employ people to buy the counterfeit product and then sue for fraud. The counterfeiters can’t argue that selling counterfeit Coca Cola *to* Coca Cola is lawful because Coca Cola is authorized to call anything it would like Coca Cola.

The only problem I see with this is that the RIAA is not the copyright holder on any of the materials. It seems to me that using the Coke analogy would be saying that the RIAA and Coke have the same status as the copyright holder or property rights holder. They are not.

4 Jim W 06.23.08 at 11:36 pm

You can authorize someone else to gather info, issue press releases and sue on your behalf. I have no problem with the existence of the RIAA or that they might sue someone. The problem is that they aren’t doing what most people would consider “suing someone.” Rather than chase after people against whom they have legit cases with the intent to win and recoup damages, they are intentionally using the high cost of litigation to avoid having to litigate the merits. It’s basically legal terrorism directed against downloaders.

Schwartz, the problem with your DMCA defense is that you
a) aren’t acting as a service provider and
b) the guy you got the file from isn’t really privy to the transfer to the guy you are sending it to. You are only acting as an intermediary in the same sense that the guy who owned your house before you was an intermediary between the guy he bought it from and you. DMCA is protecting people who act more like brokers than owners of the distributed material.

If the guy you got the song from still exercised control over the song and used your hardware to share it, you could probably argue a DMCA safe harbor.

But the real strong defenses right now are:
a) RIAA’s goon squad doesn’t gather enough data to prove distribution. Without that, they pretty much can’t win on the merits. That lady who got dinged for huge damages was the victim of bad jury instructions (judge said no need to prove distribution). RIAA cannot win on the merits. The law is crystal clear on this. They need to change how they prepare for lawsuits or this will continue.
b) Even if they can prove distribution, they still have to prove it was you or someone under your control. Want to bet they have detailed knowledge of your local network topography? They don’t.
c) Downloading or possessing copyrighted material isn’t legal or actionable. Only the distributor is liable. As countless studies have shown, the vast majority of downloaders are leechers or casual sharers rather than providers of material. The guys RIAA wants to catch are often overseas.
d) bittorrent’s network architecture is much harder to traverse than fasttrack. You could write a program to bootstrap and traverse every fasttrack computer in relatively short time, making a list of who was sharing what. With bittorrent, it is an NP-complete problem. You have to go to thousands of websites to find what files are available and then connect to thousands of trackers and thousands of client machines. And then you have to cross reference them all before everyone’s IP address changes. Much harder challenge.

5 gitarcarver 06.25.08 at 12:11 pm

Jim W.,

You can authorize someone else to gather info, issue press releases and sue on your behalf.

I suspect that this is in response to my comment about “Coke” and the RIAA. Please allow me to clarify. I am not saying that the RIAA can not be authorized to represent a copyright holder, but that the RIAA – even if authorized – does not have the same rights as the copyright holder themselves. Furthermore, it cannot be assumed that if the RIAA is suing, that they have that authorization.

There are three basic copyrights associated with albums (old school) / CD’s (new school.) The first is the copyright of the song itself. That copyright belongs to the writers of the song. In some cases they sign agreements with publishing companies, but for the most part, the rights are those of the song writers.

The second copyright is to the artist recording the song.

The third copyright is for the album / CD itself – the artwork, etc. That is usually held by the record companies – Sony, BMG, Capital, etc.

One of the issues that you raise and I wish to expand upon is that the RIAA sues on “behalf” of the record companies, and supposedly on behalf of the artists / songwriters. The problem that has come up with is that the RIAA uses a “shotgun” approach to these “lawsuits” claiming that they represent songwriters and artists when in some cases, they do not have the authorization that you mention. It is “lawsuit terrorism,” but the people they are aiming thier shotguns at are fighting back and winning more and more. The problem is that the people can’t lobby for laws that are more favorable to the RIAA, so the $1.5 million the RIAA spent on lobbying last year will probably sway Senators and Representatives away from the people, and to the RIAA.

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