This article is related to a prior post, found here: Courts split

 
 In another blow to the recording industry, a Federal District Court Judge in the District of Minnesota in Capitol Records, Inc. v. Jammie Thomas, has granted a new trial in a copyright infringement case stating that his jury instruction was in error when he stated “The act of making copyrighted sound recordings available for electronic distribution on a peer to peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.”

 In his brief order in Capitol Records, the Judge stated that his decision to grant a new trial was founded on the fact that both parties failed to cite a controlling Eighth Circuit case that held "…infringement of the distribution right requires an actual dissemination of either copies or phonorecords." National Car Rental System, Inc. v. Computer Associates Int’l, Inc., 991 F.2d 426,434 (8th Cir. 1993).

 This order for a new trial is in agreement with the recent decision in London-Sire Records, Inc. v. Doe., a District of Massachusetts case in the First Circuit that denied a subpoena to identify Doe because the recording company failed to state a claim of copyright infringement if there was no evidence of an actual distribution/download.

 The new trial decision, however, is contrary to the case in Elektra v. Barker, in the Southern District of New York, where the judge held that “making available” is enough to state a claim of copyright infringement.  Elektra was in the Second Circuit.
 

So far the Supreme Court has not ruled on the finely pointed question of whether “making a copyrighted song available for download” infringes upon a copyright owners exclusive right to distribution.

 It remains to be see how much attention these recent decisions get in the other Circuits as the onslaught of recording industry cases funnels itself through the District Courts.

    A recent pair of federal district court decisions are split on whether making copyrighted songs available for download violates copyright laws even when there is no proof that the copyrighted works were ever downloaded under 17 U.S.C.A. Sec. 106.  An original article on this news is here:    http://news.lp.findlaw.com/ap/high_tech/1700//04-04-2008/20080404145001_26.html.  The two cases are:  Elektra Entertainment Group, Inc. v. Barker and London-Sire Records, Inc. v. Doe.
    These two cases are virtually identical in factual scenarios.  In each case a set of Defendant’s had copyrighted songs on their harddrives that were made available to anyone on the internet via Peer to Peer software - a common scenario among mp3 owners.  In the past decade, there have been an enormous amount of complaints filed in courts by record companies against individuals who distribute their copyrighted works.  In many of these cases the record companies are successful either through out-of-court settlements or decisions on the merits of the case.  However, what is interesting in these cases is that there was no proof available that the songs were ever downloaded. Therefore, the record companies were arguing that merely making the songs available through peer to peer software violates copyright law.
    The crux of this issue in both of the cases came down to statutory interpretation of what is the meaning of "distribution" within 17 U.S.C.A. Sec. 106(3).  Sec. 106 states:

"The owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (sec 3) to distribute copies or phonorecords of the work to the    public by sale or other transfer of ownership, or by rental, lease, or lending;"

    In both cases, the record companies were arguing that publication and distribution were synonymous.  There is a lengthy discussion that I will avoid on how each judge arrived at different decisions based on Supreme Court cases interpreting the terms "publication" and "distribution". However, the bottom line is that the Elektra case said publication = distribution and the other did not, resulting in practically diametrically opposed decisions.  The Elektra case held that making available for download was distribution for purposes of Sec 106(3), and the London-sire case said merely making a song available wasn’t enough.
    This split is important because it essentially comes down to the question of how much proof the record companies need to gather before they have a prima facie case of copyright violation.  It is also important for the millions of people out there on peer to peer networks sharing songs.  As both cases acknowledged, many people out there have validly obtained copyrighted songs through purchase and unknowingly offer them on the internet through peer to peer software.  Is it really fair to go after these people if you can’t truly show an active participation in the distribution?  Furthermore, is it fair to go after someone even if there’s no proof that they know they are offering the copyrighted song and that there is absolutely no proof that the song was ever downloaded by a third party? Either way, it is an interesting battle of statutory interpretation among the federal courts that could have important implications in the ever-present wrangling over mp3s and copyright violations.

US Attorney General Roberto Gonzales has proposed legislation with much harsher punishment for copyright violations, including jail time. Although the Intellectual Property Protection Act doesn’t appear to change the
fundamentals of US copyright law but does allow more leeway for the
police when investigating suspected crimes, and harsher punishments for
those convicted. Among the major changes are criminalizing "attempted" copyright violation, as opposed to "actual" and removing the requirement of copyright registration before criminal prosecution can be sought.

Although Gonzales’ proposal is far from being implemented as a law, it shows a distinct effort by the US Department of Justice to prosecute copyright violations. I am somewhat troubled by criminalizing "attempt" to commit copyright violation. I am troubled because it is not clear what would constitute an "attempt" to commit a copyright infringement. For example, putting a small part of my music collection on an FTP server which is accessible only by me so that I can listen to the music from my office (legal under copyright) may make me a candidate for DOJ prosecution - should it?

Another argument against the proposal posed by the Public Knowledge foundation criticizes the removal of the requirement to have a copyright registered before b

“The bill would eliminate the requirement that a copyrighted work be registered before the government could pursue a criminal copyright infringement claim. Current copyright law requires a copyrighted work to be registered with the U.S. Copyright Office before an infringement suit can be filed–regardless of whether it is a civil or criminal suit. While this change might increase the Department’s ability to apprehend copyright infringers, it would have an overall negative effect by discouraging copyright registration.

It would be interesting how Congress picks this? Undoubtedly, the bill will be greeted with much enthusiasm by Hollywood.

Misrosoft promises that its newly announced "Microsoft Defender" will be able to detect and clean the Sony rootkit installed when a Sony CD is played on a Windows/Mac machine.

Microsoft had to take a side in this dispute, after all other security firms such as Symantec and McAfee have already announced plans to treat Sony’s software as malicious (which it is, isn’t it?) and protect against it. Sony doesn’t have to complain much however; Microsoft’s Vista operating system will have the DRM protection built-into the kernel of the OS so that the Sony’s of tomorrow would not have to make their own weak attempts to write DRM protection mechanisms - Microsoft will give it to them "for free."

A software piracy ring has been busted by US DOJ federal agents with 70 raids resulting in four (only four??) arrests.

The U.S. raids were coordinated with law enforcement officials in 10 other countries conducting similar operations. According to the Department of Justice (DoJ), the raids were all targeted at the Internet’s "first providers" of pirated software, movies, music and games.

Commonly known as "warez" groups, the networks operate as the original sources for the majority of pirated works distributed and downloaded on the Internet. The stolen works frequently eventually filter down to peer-to-peer (P2P) networks and other public file-sharing networks.

[Via InternetNews.com -]

Two Brittons considering themselves as the "Robin Hoods of the Internet" were convicted on Internet piracy charges. They were arrested in a U.S.-led sting operation. Throughout their trial they claimed that they have done nothing wrong - instead they said they simply downloaded the illegal software (calculated by US Customs to be worth more than $1B) just to try it before they bought it.

The two men seem to be a link of a chain of hackers and crackers who take a piece of software to crack it (or remove protections) and then distribute it, usually on peer-to-peer networks.

Once cracked, the testers - often IT managers with
access to sophisticated computer systems - then made sure the
reconfigured software worked before passing it on to the packagers. It
was their job to upload the software onto secure servers from where it
could be delivered to users on the internet.

The packagers would also add special labels to the
software which acted like film credits, ensuring fame and notoriety for
those who had cracked it.

[Via BBC News, UK -]

Assistant Attorney General Christopher A. Wray of the Criminal Division
and U.S. Attorney Kevin J. O’Connor of the District of Connecticut
announced yesterday that three men have pleaded guilty to charges of
conspiracy to commit criminal copyright infringement in the first U.S.
cases to be brought as a result of an 18-month, multinational software
piracy investigation known as “Operation Higher Education.”

“Cybercrime and online piracy respect no boundaries,” said Assistant
Attorney General Wray. “Operation Higher Education, and the broader
Operation Fastlink of which it is a significant part, are just another
step in our increasingly global effort to target organized online
piracy at all levels and around the world.”

[Via LinuxElectrons, TX -]

Few weeks ago we reported that russian prosecutors were interested in the cheap mp3s allofMP3.com was selling. It appears that after investigation the Russian prosecutors have decided not to pursue charges because despite lack of clear licenses for most of the music, under Russian copyright law there was no violation.

Russian law was written to prevent CD and DVD piracy - copyright
infringement through a physical medium. Its online manifestation was
not something taken into account by legislators.

So it seems like as long as the songs are not distributed in any physical medium, and even though it is clear that at least some of the online songs are not licenses to be resold, allofMP3.com can continue its business. I wonder if the Russian legislature will come under fire by RIAA for leaving loopholes so big for something so important in the world of MP3 players.

[Via Register, UK -]

Hopefully they will fix this one quickly.

"I almost got a heart attack when I was going over those papers," said
Margaret Szeliga, an automotive design engineer and single mother.
"What happened? How did this happen? I was in shock when I saw those
court papers."

Looks like Szeliga’s mother, a 70-year old Polish immigrant, who speaks little English, never owned a computer, and certainly didn’t listen to "Armed to the Teeth" and similar songs was named in the latest series of lawsuits against filesharers.

Actually, it turns out that Szeliga’s 17-year old daughter was the culprit - she had file-swapping software and like millions of other teenagers was downloading music freely off the Internet. Because the kid and her mother lived in grandma’s apartment, grandma was the one named in the lawsuit.

[Via The Bay City Times, MI -]

Are we legal after all, or not? This seems to be the question that Russian MP3 site seems to be answering the hard way.

AllofMP3.com has been operating for several years, asking consumers to
pay just 2 cents per megabyte of downloads–usually between 4 cents and
10 cents per song. Alongside the catalogue available at traditional
stores like Apple Computer’s iTunes, the site offered access to songs
from the Beatles and other groups that haven’t yet authorized digital
distribution.

The Russian site claimed that it had licenses to do so from a local clearing house, but record labels maintain otherwise. The Moscow City Police Computer Crimes division completed an investigation earlier this month and recommended that prosecutors charge the site’s operators with criminal copyright infringement. So, after all, they weren’t legal.

[Via ZDNet -]

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