RSSEFF argues placing files in 'Shared Folder' isn't sharing
By Scott M. Fulton, III | Published January 15, 2008, 1:26 PM
Can the act of file sharing take place "passively," without the users' direct involvement; and if so, can they no longer be held liable for copyright infringement? That's the question a US district court is preparing to consider.
Next week, an Arizona district court will hear arguments in the ongoing case of the Howell family of Scottsdale, who last August was found to be illegally distributing 2,329 MP3s in violation of copyright. At that time, the judge in the case ruled that the fact that those MP3s appeared in Mr. Howell's shared music folder for his Kazaa program was proof enough that he had intention to share them, and that no evidence needed to be uncovered of actual subsequent file transfers.
Recording studios are seeking summary judgment in the case against the Howells, but now the Electronic Frontier Foundation has stepped up in the family's defense. Mr. Howell had argued that he had actually legally purchased the CDs from which all 2,329 of those tracks had been ripped, and that some malicious user had found a way -- without his knowledge or intervention -- to move those files into the Kazaa shared folder.
Rather than concentrate on the matter of why a hacker would go to that much trouble when the same files were probably available through Kazaa elsewhere, the EFF will argue the question of whether positioning files on one's own hard drive constitutes a virtual act of sharing. More specifically, the Foundation will examine whether that act constitutes direct copyright infringement, as indicated in an amicus brief filed last Friday.
From a legal perspective, the question boils down to whether storing something in a publicly accessible location constitutes publication, and whether that publication is essentially the same as distribution. Congress has already seen the two as separate states, the EFF says.
"Plaintiffs [in the recording industry]...point to the statutory definition of 'publication' (which expressly encompasses 'offering to distribute')," states the EFF's amicus brief (PDF available here), "asserting that 'publication' and 'distribution' have been treated as synonymous for some purposes by some courts and therefore that the definition of 'publication' expands the meaning of 'distribute.' Contrary to Plaintiffs' view, the inclusion of 'offering to distribute' in the definition of 'publication' actually underscores the fact that Congress knew how to reach mere offers when it wished to do so."
But if the court does conclude that the two are the same, then the EFF points out another pitfall: that US law already defines "publication" to imply the distribution of something you can hold in your hand.
"If 'publication' and 'distribution' are truly synonyms, then Plaintiffs' [RIAA] case fails outright, because the legislative history makes it clear that 'publication' is limited to distribution of tangible, material objects," the EFF continued. As Congress has already put forth, it cited from case law, 'any form or dissemination in which a material object does not change hands - performances or displays on television, for example - is not a publication no matter how many people are exposed.' Defendants here are not accused of distributing physical goods."
The judge in the case has already ruled that positioning a file in a sharable location is effectively the same as sharing, and is therefore open to infringement. So one very critical question now becomes whether the EFF's arguments may come too late for the Howells.
so if i had a bunch of cds sitting on my porch and someone went there and copied them wouldn't that be the same thing?
i think having something in a shared folder does break any law since it is not up to the owner to keep people from stealing music. If I leave my car in a bad area with the keys in it on purpose, while a dumb idea, if someone takes it then they would be stealing and I would not have broken any law.
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|If the table you left them on had a sign on it that said, "put your illegally ripped CDs here for others to take"?
Illegal distribution.
If not? Up in the air, you could have simply forgotten them.
It boils down to knowledge and intent. In the Kazaa case, the dumb broad had both.
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|This is a tough one for me. I don't think people just accidentally install software like Kazaa. However, it is possible that a visiting relative or guest in the home elected to install it without asking. Parents, please note that teenagers are famous for doing dumb stuff like this. Having said that, I think the RIAA has the burden of proof here and should have to prove that files were actually shared. If I make a folder on my hard drive with the same path as the Kazaa sharing folder, but I don't actually install Kazaa, am I guilty of file sharing? If I put files in a folder called "Nobody Download These" but then let people on the internet access them, am I safe because the folder says for people not to take the files? I think not!
I don't like how the RIAA does things, but I can't give file swapers the moral high ground either since they know the law and choose to break it. This problem does have some good solutions, and most people are too lazy and shortsighted to actually solve the problem. They'd rather use programs like Kazaa and get themselves into trouble like this.
America could bring the RIAA to its knees if we flatly refused to buy a single album for three months. It would put us in a position of power and would allow us to tell them that we won't buy anything with DRM on it and that they'll have to treat us like customers, not villains. If they got smart, they could use people's natural tendency to share their favorite music and could develop a business model that uses that desire to share as a marketing tool. Right now, they're too busy chasing pirates and preventing me from listening to a CD I got for Christmas because my player can't handle the new DRM on it. We do have the power to stop this racket in its tracks. I just wish people would get smart and use it.
Money is all the RIAA understands. Until we set the record straight on us being their customers, and ultimately their bosses, expect to see more lawsuits, more strong-arming, and more DRM enabled hardware like hard drives and DVD players.
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|I can't speak for everyone, but I haven't bought a CD in a very long time. I actually can't remember the last time I actually went into a store and bought one. DVD's on the other hand I still buy, but they're few and far between as well.
I'm not even trying to boycott anything, but I would. It's just that IMHO everything that's come out recently has really sucked. **turns on AC/DC**
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|I've disabled all sharing capabilities on my PC anyways. I'm not even sure if I even have the folder on my PC. Still, I applaud the EFF.
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|This goes back to the RIAA case that the stupid chick lost.
I believe, when it was ruled, for this case, that making available=shared, it was done so merely because the defendant had previously written a paper on naptser and through it, proved that she had a thorough understanding of what sharing a folder through the likes of Kazaa meant.
The question of whether making available=sharing should, and will be, judged separately in each and every trial.
IMO, it was properly decided in that trial. She knew what it meant. As for grandmas, households, etc., they should all be decided on their on merits, not the precedent of this case, and...since this is civil court, that is exactly how it works.
Neat, Huh?
Yay for the EFF wasting time and money!
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|BS, complete BS. "A hacker moved my files into the Kazaa shared folder" I'm against the RIAA sueing Grandma because she had 8 files downloaded, but I'm not against them sueing someone sharing 2,329 files. I would say if the defendant can prove he/she had legel possesion of all of the cd's prior to the incident then thats a different issue but even the claim of a hacker moved them shows guilt if you ask me. 2,329 Shared files is not an accident, hackers dont go in looking for MP3 files to move around.
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|A similar topic relating to this issue was discussed in this forum a while back.
If I make a few (illegal) copies of a CD and then physically take them to a public location, like a Starbuck's and leave them on the counter for anyone to take, is that an act of illegal PUBLICATION...even if nobody ever takes one of those copies and they sit there untouched ?
If I actually stand there and hand them out to passers-by, then I am guilty of illegal distribution. But what happens if they just sit there collecting dust until somebody throws them out ?
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|CD, Book, Car(!)
originals not copies(!)
Are you encouraging, or facilitating the 'borrowing' of or the 'stealing' of ?
Are you sharing by simply having the item in a public place ?
If someone takes our original CD and makes a copy of it, without our consent, or even your knowledge - can you be held accountable.
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|If the table you left them on had a sign on it that said, "put your illegally ripped CDs here for others to take"?
Illegal distribution.
If not? Up in the air, you could have simply forgotten them.
It boils down to knowledge and intent. In the Kazaa case, the dumb broad had both.
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|tricky !!!
Making Available
Distribution
Publication
There is a point that doesnt seem to be covered in the article.
Often in a family people will place file that all the members can access in the 'Shared Folder'
This is generally meant to mean "share with the users of this PC" not the entire world(!) (if the intent was to share with the entire world - then why would we have firewalls ?)
My second point is that some software automatically adds existing folders to the list of folders the program uses, thus offering (for example) the 'Shared Folder' for everyone (including the whole world) - AND may not inform the user of this.
So ...
1. a family member puts a file in a 'shared folder' intending to share it with other family members.
2. a family member installs software.
3. the software allows the world to access the 'shared folder'
Questions ...
1. are family members allowed to 'share' with each other - or is this illegal
2. is the software at fault - in not informing the users of its action - similar to the rootkit cases.
3. since it was the software that actually did the sharing - who is to blame ???
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|I blame the Internet. We should get rid of it in order to save the RIAA. This is a matter of National Security! If terrorists are successful in their attempts to morph the music industry's distribution system into a direct-artist-to-consumer model, surely our civilization will be at an end.
Time to pick sides. :)
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|Not quite.
The music was in the 'Kazaa Shared Folder' which is entirely different than the 'Shared Folder' in Windows.
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|People should learn how to use the software that they have. If someone installs a file sharing program and doesn't know what folders are being used, then they should be held accountable. Ignorance is no excuse. Don't want to learn how to use a piece of software? Then don't use it!
If a hacker/cracker went to the trouble of beaching a computer's security in order to move some MP3s, they're going to be doing a lot more than that. That computer would become a zombie.
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|thanks for the clarification :-)
but doesnt KaZaA also search for media in My Photos, My Videos, My Music and also add those folders
I know ignorance is no real defense, and whoever installed KaZaA program should have checked that no files (which they didnt have the right to share) were being shared
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