p2pnet news RIAA News:- | MPAA News:- Minnesota mother Jammie Thomas has really set the MPAA anti-P2P people on their ears.

Last year when, in the first (and still the only) file-sharing case to go to trial, a civil jury said Thomas owed the labels nearly a quarter of a million dollars in damages for allegedly distributing copyrighted files online, “I don’t think the case is over by a long shot,” said Recording Industry vs The People’s Ray Beckerman.

“The verdict, based as it upon an entirely erroneous jury instruction going to the very heart of the case, will almost definitely be set aside on appeal.”

Beckerman, who recently went into private practise for himself, was right and he was wrong.

It was indeed an entirely erroneous jury instruction, but it wasn’t set aside on appeal.

Instead, judge Michael Davies, who’d presided, admitted he’d made a mistake, saying he’d committed a “manifest error of law” in telling the jury the, “act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without licensefrom the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown”.

Davis also specifically asked “interested parties” to submit amicus briefs.

That’s “making available”.

To date,10 copyright law professors, the Intellectual Property Institute of William Mitchell College of Law and, in a joint submission, Electronic Frontier Foundation, Public Knowledge, US Internet Industry Association, and Computer & Communications Industry Association have taken Davis up on his invitation.

But they’re not alone.

Hollywood’s MPAA also felt compelled to contribute and Wired’s David Kravets spoke with two MPAA lawyers who were disputing parts of another earlier Wired Threat Level story quoting the MPAA on whether or not merely having a file in a shared folder constitutes distribution under the US Copyright Act, “as it applies to peer-to-peer file sharing networks”.

“No actual transfer of the work is required,” they told Kravet unequivocally. “You need to prove there’s works in the share folder, and that is distribution,” the story has Joseph Geisman, MPAA’s chief intellectual property attorney, stating flatly.

That’s “making available”.

The second lawyer was MPAA general counsel Greg Goeckner.

Said the first Wired story under MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits >>>

The Motion Picture Association of America said Friday intellectual-property holders should have the right to collect damages, perhaps as much as $150,000 per copyright violation, without having to prove infringement.

“The attorneys said the text of the story about the ‘making available’ argument was accurate, but they thought the headline and the first paragraph were inaccurate,” says Kravet, going on, “We had a cordial, and highly academic back-and-forth about a legal concept that stands at the heart of the file sharing world: Is merely making available music, or other copyrighted works, on a peer-to-peer network unauthorized distribution under the Copyright Act, subject to a maximum $150,000 fine for each work?

“The MPAA answered that question with an emphatic yes on Tuesday and did so on Friday in a lengthy brief submitted on behalf of the Recording Industry Association of America’s lawsuit against Jammie Thomas.”

Kravets’ second Threat Level story continues >>>

“What we’re saying, by having a copy of a copyrighted work in a shared folder, you are distributing it under the copyright law,” Goeckner said during the interview.

Threat Level reported that assertion on Friday. The two lawyers were unhappy with the headline, which read: “MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits.”

The MPAA attorneys also did not like what in journalism jargon is called the “lede,” the first paragraph of our Friday post: “The Motion Picture Association of America said Friday intellectual-property holders should have the right to collect damages, perhaps as much as $150,000 per copyright violation, without having to prove infringement.”

In defense to such alleged egregiousness, Threat Level quoted directly from the MPAA’s brief, which backed the “making available” argument:

“It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise….”

We naturally thought, by reading the brief, the MPAA meant no proof was required. But the lawyers, during our discussion, pointed out that “indirect proof” is necessary.

The MPAA’s lawyers said the argument rests on how one defines distribution in the copyright context.

“It is a distribution by putting works in a shared folder. You can deem that copies are being made. That goes for the indirect proof,” Geisman said. “Having it in a shared folder is indirect proof of actual copying of another user.”

“In our view,” he added, “you don’t have to actually show copying happening in order to prove distribution.”

A host of digital rights groups, including the Electronic Frontier Foundation and a group of professors, labeled such an assertion as attempted copyright infringement, not covered under the Copyright Act. They claim infringement occurs only when there is actual proof of distribution — that somebody else made downloads of a defendant’s share folder.

The MPAA counters, saying that was never Congress’ intent.

“If the other side is right,” Goeckner said, “it’s kind of open season on copyrighted works on the internet.”

Pilloried as file sharing criminals and thieves

Meanwhile, while these fascinating technical arguments continue, thousands of innocent men, women and even young children not only across America, but around the world, the vast majority of whom are, or were, Big 4 customers, are being pilloried as file sharing criminals and thieves because neither the major Hollywood studios nor the Big 4 record labels can grasp the fact they’re now operating in the digital 21st century, not the physical 1990s.

And Kazaa, the P2P file sharing application which is far and away cited most frequently in the RIAA sue ‘em all cases, was itself named in a class-action last year.

Bringing it was Catherine Lewan and named were Kazaa owner Sharman Networks Ltd, Geoffrey R. Gee, Global Nominees and Credit Facilities Ltd.

One of the principal elements is the accusation Kazaa, “designed its software, ‘in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so’,” says the court document.

Finally, in a third Threat Level article, “Here is a scholarly paper on the topic, written by Draeke Weseman, a third-year law student at William Mitchell College of Law,” says Kravets, stating >>>

Among other things, the Copyright Act of 1976 fails to address adequately the digital age, he writes.

“My concern is that Congress was in fact not successful at preventing future shock within at least one specific area: digital distribution. I am concerned that Congress, blinded by the foreseeable age of digital reproduction technology then arriving, failed to accommodate the age of digital distribution technology just beyond the horizon,” Weseman writes in Future Shock and the Copyright Act of 1976: Is Merely Making a Copyrighted Work Available for Digital Transmission a Violation of § 106(3)?

“Now, having technologically arrived at that horizon, the courts are left scrambling to adjudicate allegations of copyright infringement through digital distribution systems without adequate Congressional guidance. The most glaring example of the future shock phenomenon in copyright law arises in the recent litigation carried out by members of the recording industry against individual peer-to-peer users.”

Stay tuned.

Jon Newton - p2pnet

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This entry was posted on Thursday, June 26th, 2008 at 10:54 am and is filed under MPAA News, RIAA News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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