Another P2P Review

The Weekly Suits

Ratting In the Frat

There’s three areas of activity: the colleges, a lottery winner, and a court appeal.

At the colleges, in the MIT case in the MIT case, RIAA just refiled the subpoena in the federal district court in Boston rather than Washington, DC.

MIT has said it will release the name as soon as it figures out who it is. They’ve already figured out who owns the machine, but since it was in a fraternity house, it is unclear who may have actually done the deed

While this should lead to some tense times in the old Theta Delta Chi, it should be pointed out that this is a civil suit, not a criminal case. There is no need to prove guilt beyond a reasonable doubt. If the other side has more evidence that you did it than you have evidence that you didn’t, you lose. Nor do you have any Fifth Amendment rights against self-incrimination. If RIAA asks you in a civil lawsuit, “Did you do it?” and you refuse to answer, that refusal to answer is held against you (and could get you contempt of court).

So if everyone hushes up and says nothing, the owner of the computer will in all likelihood end up being liable. Given the evidence RIAA already has, this is not a matter of the RIAA having to prove the owner did it; the burden of proof is going to be on the owner to show that he didn’t.

This isn’t Law and Order; this is Judge Judy.

Please, please, please don’t think you’re protected because of something you saw on TV or in the movies. You don’t have the rights you think you have.

Jane Doe Says No

The RIAA has filed over a thousand subpoena requests. To now, outside of the two Boston-area colleges ((Boston College/MIT), only one person has moved to try to quash the subpoena.

Even presuming many or even most lottery winners haven’t been contacted yet or have decided what to do, this is hardly a big turnout.

Jane Doe is perfectly entitled to do this. What’s important to realize is that no one court decision at this stage is make or break. If, for instance, a judge in a California district court said that Jane Doe was right and the DMCA subpoena provisions are unconstitutional; that doesn’t end the legal war. Only a decision by the U.S. Supreme Court to that effect would do that.

It won’t be surprising if RIAA loses a legal decision here and there. Wouldn’t be surprising if they lost a lawsuit here or there, either.

But if they do, don’t believe anyone who tells you that the war is over, one way or the other. It won’t be.

Grokster Case To Be Appealed

MGM plans to appeal the Grokster case, in which a court ruled that Grokster wasn’t legally responsible for the illegal actions committed by people who use it.

BTW, the Grokster decision is the reason why RIAA is suing people. The court simply said that the people committing the illegal acts were the ones to go after, not Grokster.

The appeal doesn’t appear to have a prayer on legal fundamentals (but see below). The only issue on which the decision might be reversed in the issue of involvement by Grokster in the acts of infringement.

What appears to be the deciding factor in these cases is the degree to which the network in question actively assists in the process of infringing.

Napster providing a lot of active assistance. That was no good. Grokster apparently didn’t. It just provided the tools and had no part in the process of people actually using them.

It’s very doubtful the appeals court will reverse the decision; I doubt RIAA’s lawyers really expect that, either.

At least not immediately.

Grokster was decided on the basis of Sony. Sony is a very misunderstood case. People think the Supreme Court said in Sony, “You can’t pass a law prohibiting things like VCRs.” Wrong.

What the Supreme Court said in Sony was that “It is Congress’ job to decide these things. If Congress wants these things to be illegal, then they ought to pass a law. Until they do, it’s OK.”

The Supreme Court makes different kinds of decisions. Some are based on Constitutionality. Many aren’t; they’re just based on interpretations of the law. Sony is the second type.

Congress could pass a law tomorrow effectively overruling Sony to ban P2P networks, and the Supreme Court would almost certainly say, “OK.”

Appealing Grokster is simply another way the content providers tell Congress, “Uh, you better do something.”

A Good Legal Summary…

here. It’s part one of a series, the next being a study of what would likely happen under a variety of scenarios.

Increasing The Hassle

Wired has an article on how content providers plan to make P2Ping less efficient and more frustrating

Some are of at least questionable current legality, but it’s sure ironic when lawbreakers start screaming for the law when others do unto them what they do unto others.

No, Canada

There continues to be a myth about Canada and P2Ping. People seem to think you can’t be sued for P2Ping copyrighted files in Canada. Wrong. It’s pretty unlikely you’d be sued, but you could be.

There is a provision under Canada’s Copyright Law which allows copying for personal use, but the very next provision prohibits the distribution of such a copy, including “communicating to the public by telecommunication.”

Civil fines and penalties for copyright infringement are similiar in form to those in the U.S. (though the maximum statutory penalties are rather less). What Canada does not have is an instant subpoena like the U.S.. Someone suing a P2Per would have to go to court and get orders from the court to do that. It’s doable, but obviously would involve much more time, effort and money.

That’s why at the moment there’s little chance of facing the music about the music in Canada over P2Ping. Not because it’s perfectly legal. If Canada ever passed a law allowing for quickie subpoenas, Canadian P2Pers would be in the same boat as their U.S. counterparts.

The Coleman Hearings

Senator Norm Coleman pronounced himself mostly satisfied by the RIAA response to his initial letter, but plans to have hearings on the subject anyway.

Some active in the P2P movement say they want to testify before the committee. I think that’s an excellent idea.

From what I’ve seen so far, the more familiar the average Congressperson gets with the typical P2Per, the more he or she wants to hang ’em.

Take Senator Orrin Hatch. This was somebody with a record of opposing Microsoft, somebody who finances his own recordings because of the rotten deal the record companies offer.

This was somebody likely to be more sympathetic than most to complaints about the music industry. After getting one heavy dose of P2Pers, though, he’s ready to deputize vigilantes.

A Congressional hearing should be a sight, especially after the “S” word gets mentioned.

A Partisan Issue?

There’s a fascinating article about how some Republicans view this matter differently than one would expect and why.

Talk about a game within a game. Ironically, that may prove to be far more important than all the protests combined.

A Chilling Effect…

dropped significantly. True to form, some kneejerked that this could not possibly be true. Such people probably would also claim that having a cop standing in front of you has no effect on whether you commit a crime or not, either.

What’s important is not a big decline while the heat is on (literally, not just lawsuits but summer and vacation), but rather what happens if the coast looks clear.

Another much disputed factor is the degree to which the record companies have been hurt by P2Ping as opposed to other factors.

One interesting survey on this issue survey on this issue indicates that while P2Ping represents most of loss in CD sales, even those who don’t do at all are buying measurably fewer CDs.

A good rule of thumb in life is that when one side says everything is caused by something, and the other says nothing is caused by something, the truth is somewhere in the middle.

The various surveys taken on the issue seem to indicate that very roughly half the decline in CD sales are due to file-sharing, and the other half due to something else.

One reason not usually mentioned when analyzing the problem is the decline in sales among “old fogies” (those over 36 years old). They’re not downloading, and they’re not buying because they’re not finding what they want.

Ludicrous Literal-Mindedness

Figurative speech is not a strength of P2Pers.

We’re all familiar with the claim that P2Pers aren’t stealing because copyright infringement isn’t legally described using the term “theft.”

Now a few have triumphantly discovered that they aren’t literally guilty of piracy under the law, either.

Now you know why someone came up with the Microsoft tech support joke.

Arguing about this is precisely like the punch line of the joke, technically correct but completely useless. It’s illegal and you can get sued or even end up in jail for it.

Then your cellmates can tell you they aren’t guilty of sodomy, either. 🙂 Exact same logic.


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