|RIAA suing P2P file sharers||filtersweep|
Sep 9, 2003 12:04 PM
|I'll skip linking to any stories, since it is old news by now, but how can anyone put a "price" on the "damages" caused by any one user of file sharing. If a person shares 2000 files on a dial-up account and configures the file sharing app to only upload a few mp3s at a time, how can the RIAA have any idea how many copies of a particular song were illegally shared?
How can the RIAA actually know WHAT songs were shared, when there are reportedly so many bogus mp3 ID tags?
How can the RIAA authenticate the IP addresses of the offending boxes when ISPs dynamically assign addresses? How do they deal with non-persistant log-ins of the file sharing apps?
Who bears the burden of proof that any files were shared?
What jurisdiction handles a case, and where does the crime "actually" occur? Is it the downloader or the sharer?
How is copyright notification handled when there are legally free and public domain mp3s tossed in the mix?
If someone OWNS the CDs or LPs or cassettes or whatever of the same material they download, has a crime been committed?
How does the RIAA know that a person is sharing mp3s vs. simply possessing them?
Aside from my complete disgust at the RIAA at this approach, this news leaves many questions unanswered.
|Some good questions||53T|
Sep 9, 2003 12:19 PM
|Some would argue that interesting case law is a failure of the legislative process.
In any case, these lawsuits will bring us some answers to the questions you have raised, such as burden of proof, and the nature of the license granted when you buy a CD. Also is the legality of possesing an unlicensed .mp3 file.
I can feel the RIAA's hesitancy to go too far with this action. They are limiting the action to a small group, and offering amnesty to the larger pool of participants. I am sure that they have discussed the possibility of pissing off too large a group, and triggering a legislative or commercial backlash. I would find it very intersesting to see congressmen's offices flooded with demands for legislation banning the lawsuits, or a massive boycott of RIAA member products. They say sales are down 30% due to downloading. How would they like it if they lost another 50% to a boycott?
Sep 10, 2003 5:23 AM
|::How can the RIAA actually know WHAT songs were shared, when there are reportedly so many bogus mp3 ID tags?
I think that's up to the defendant to prove.
::How can the RIAA authenticate the IP addresses of the offending boxes when ISPs dynamically assign addresses? How do they deal with non-persistant log-ins of the file sharing apps?
ISPs keep logs of every connection and every IP assignment. Plus, even though you have a dynamically obtained IP that doesn't mean every time you connect you get a new IP. Often ISPs will cache an IP to a user for more than one connection.
::Who bears the burden of proof that any files were shared?
Don't really know ... but I think the RIAA uses a log obtained by their scans to prove the file was shared and the defendant has to prove the validity of the claim.
::What jurisdiction handles a case, and where does the crime "actually" occur? Is it the downloader or the sharer?
::How is copyright notification handled when there are legally free and public domain mp3s tossed in the mix?
First, are you familiar with the way they are checking for the MP3s? They have some application that acts like the KaZaA client (or other P2P client tool) that scans the network for songs being shared (there's even a list of the initial scan songs circulating the net). They put in their own search criteria (most are currently popular songs), and when they find a hit the user's network identity is returned with the hit. They then search on that user's identity for the stuff they're sharing (also a KaZaA search option). Basically, they don't know who is downloading - only sharing. And yeah, false MP3 tags will increase the 'hits', but that will only support their cause, the sharer will have to prove it isn't the 'real' song.
::If someone OWNS the CDs or LPs or cassettes or whatever of the same material they download, has a crime been committed?
Yes. Technically, you can have MP3s on your hard-drive IF you own the corresponding CD. But you have to share them for the RIAA to know you have them.
::How does the RIAA know that a person is sharing mp3s vs. simply possessing them?
There's an option in your P2P client for a 'share' folder(s). If you have this option selected, anything in this folder is open to the RIAA.
::Aside from my complete disgust at the RIAA at this approach, this news leaves many questions unanswered.
Yeah, it's pretty difficult for me to accept the "decrease in profit" argument when a) new music sucks - I don't buy CDs anymore (don't really download, either) b) these new pop stars are being showered in money c) music execs are making obscene amounts of cash. (Of course your profits are going to be down if you're paying people more money and taking more for yourself. and d) you don't hear the artists complaining. Their music is getting circulated and heard. Plus, they make a bulk of their money on Tour, not through record sales.
With that said, P2P file sharing is illegal and I'm also a little tired of the bogus arguments offered by the P2P users in their attempt to justify illegal actions.
Sep 10, 2003 6:35 AM
|File "sharing" is an interesting crime. It's not really "theft" in the tradional sense, because theft historically required "taking something with intent to permanently deprive the owner of it." Here, you are not depriving the owner of anything, since you are obtaining a copy only. The original always remains. It's sort of like taking a photograph of a painting. You didn't take the painting, and the owner has lost nothing.
However, there are specific laws dealing with copyright infringement, regardless of our beliefs of whether this is "theft." (There's a law dealing with just about everything that might have been a loophole in older common law now.) Making, possessing, or distributing copies of protected intellectual property without permission is illegal. Seeing a copyright notice is not required specifically. Any idiot knows that popular songs are copyrighted.
The "fair use doctrine" allows limited copies to be made for certain purposes. It could be a small excerpt, for educational purposes, or like a backup copy of something you have purchased. Making or taking copies of songs from others is likely not fair use.
Laws specifically provide for jurisdiction and venue of lawsuits or prosecutions. It depends. If across state lines, it could be federal. Overriding all the statutes are Constitutional concerns of due process -- where you can reasonably be expected to be hailed (hauled) into court.
The burden of proof is always going to be with the plaintiff or prosecution to prove what you took, when, where, etc. The defendant would have the burden to prove a defense, like fair use.
These offenses are likely deminimus in economic terms, if you only download a few files. However, there could be civil penalties, treble damages, punitive damages, and most importantly, attorney fees to be piled on top of the $100 worth of songs you downloaded. Attorney fees could easily be tens of thousands of dollars or more, even in the simplist case.
I think the main concern about these actions is that the offenses seem de minimus, or there is no real sense of violation when only a copy is made, and no deprivation occurs, particularly if the person thinks he would not have purchased the music anyway. If you would not have purchased, then logically you have not deprived the song owner of any income by downloading. While this makes logical sense, it's just not what the law provides.
Nonetheless, the industry may be shooting itself in the foot by suing people. Not exactly good PR, but this industry has always been aggressive about copying; every time a new technology is introduced, they go nuts trying to prevent it or take some license fees from it, from cassette tapes to computers now. Historically, though, the fears never seem to be realized. New technologies always seem to result in even more sales, as people replace older media. Mp3's are a bit different, though, because of the ease of distribution and difficulty catching people. It's one thing to catch someone with a warehouse of bootleg CD's, but another to track down a server or a user.
Hope this helps a bit.
Sep 10, 2003 10:25 AM
|I'm no advocate of software "piracy," "theft" of "intellectual property," or copyright infringement. Quite the contrary, I'm a musician/producer and have worked on some major projects that are likely sitting in many peoples' DVD collections (such as the Spiderman DVD). I would never consider using "warez" applications in the studio- if only for the karma factor.
I find it interesting that my digital cable offers innumerable music (radio) channels that are bundled in the basic cost. Granted I am "subscribing" to this service. Someone could be recording/encoding these songs... or even be recording/encoding MTV or actual FM radio- all of which are about as "lossy" as mp3 encoding. My point is that there is a tremendous amount of "free" music available anyway. Granted there are royalties involved, but "performance royalties" (from broadcast) are a relative pittance compared to sales and "mechanical royalties." Nonetheless, the industry has historically regarded these "free" venues as important marketing areas to promote actual sales.
Another issue about file sharing that is unique is that it involves "sharing." The sharer does not "profit" from the transaction. This makes the issue of "damages" to the recording industry rather sticky. Money was not diverted from the RIAA to some teenager in Hoboken. There is no correlation to an original "willingness to pay" on the part of the downloader- in other words, no direct loss of a sale that could be directly attributed to file sharing. Available money to purchase the music likely never existed. I'm not suggesting that there is some nobel "Robin Hood" ambience to sharing- but rather that actual damages are almost impossible to guage.
If the recording industry would actually ADD VALUE to the sale of a CD, there would be no problem. As it is, you can buy a DVD with all sorts of add-ons and bonuses, better than CD quality audio, etc. for LESS than the price of a CD. We all know that it costs pennies to manufacture CDs anyway... At least with old-school LPs, "album art" actually meant something.... It makes no sense.
|Another point that's been swept under the rug....||newridr|
Sep 10, 2003 6:26 PM
|All this is going on while the major industry players were sued for price fixing. It's amazing that the media paid almost no attention to the settlement (maybe it's not amazing since some of the news outlets are owned by the same parent co's of the entertainment co's that were sued).
Now they are suing a 12 year old girl for downloading music. As Doug has pointed out, the industry has fought many new technolgies. As an example, they fought vigorously against VCR's. Guess what? Movies made millions more than they would have through cinema distribution alone with the sales of VHS copies. Guess that one worked out ok, huh guys?
Now the industry has the chance to revolutionize the way music is distributed again and actually decrease distribution costs with no cd's, cases, shipping, etc. Talk about buggy whip manufacturers trying to hang on to the "good 'ole days."