A Copyfighter’s Musings

 This is truly classic RIAA spin.  The Doe case is about due process, not
file-trading.  The issue of whether or not Doe claims any “right to steal
music” is irrelevant.

  From what I see, the Doe case comes down to one question:  “Does the
existence of copyrighted works in a publicly accessable file constitute
probable cause of infringement?”

  I think there are a couple problems for the RIAA with the Doe challenge.
The mp3s in the shared file could be personal copies, and therefore legal.
The shared file itself is legal.  There is nothing in the copyright law that
appears to mandate a higher standard of care for an individual to keep
copyrighted works under lock and key.

  Lastly, I don’t see anything in Title 17 that stretches the concept of
distribution to cover the facts.  It is possible that the RIAA may seek to
extend the idea of “publication” to cover Doe, but I’m not sure that would
work.  I think the RIAA supported Conyers bill, which would make the mere
presence of copyrighted works in a shared file evidence of infringement, was
a recognition of the proof problem they face.  Without something that
actually and clearly constitutes infringement, it is impossible to claim
probable cause that the infringement occurred.

  Fred W

——

What if the RIAA used an “investigator” to download the files using a P2P
application which accessed Jane Doe’s files for the transfer – – all in
advance of requesting the subpoena.  Then its more than just “making
available.”  It’s also watching – – or failing to watch – – and then in
either case not stopping the transfer from occurring.  My guess would be
that the RIAA has done just this (and I would hope much more given their
budget) for every user targeted with a subpoena in advance of requesting the
subpoena.  If not, the users could simply wipe their drives on learning they
have been targeted and the RIAA would be left empty handed and unable to
even file a complaint.

Your analysis leaves out an important link in the chain.  The user, in order
to make the files available, has to install a P2P application and let that
application “run” while the user is connected to the Internet after
directing the application to share or not share the files if they are
requested by others.  This doesn’t happen by osmosis.  It’s not about a
passive set of files located on a hard drive.  Its a set of files located on
a hard drive *and then* intentionally opened to the entire user base of a
P2P application.

What if every day I took a stack of photocopied Bob Dylan lyrics from a book
I bought and placed them in front of my house with a sign that said “free
lyric sheets of Bob Dylan songs, leave your free lyric sheets of stuff I
might like in return.”  Would that be distribution?  Of course.

JOSH (by Josh Wattles)

—-

> What if every day I took a stack of photocopied Bob Dylan lyrics from a book I
> bought and placed them in front of my house with a sign that said “free lyric
> sheets of Bob Dylan songs, leave your free lyric sheets of stuff I might like
> in return.”  Would that be distribution?  Of course.

Yes, *that* would be distribution. But that’s not an accurate analogy to P2P
file sharing. It would be more accurate to say that you left a photocopier
on your front lawn with one copy of the Dylan lyrics, along with an
invitation for others to make copies.

Is that a distribution? Nope.

<copyright lawyer mode>
Section 106(3) of the Copyright Act grants to owners the exclusive right to
“distribute copies or phonorecords to the public by sale or other transfer
of ownership….”

In a P2P network, however, no one is distributing a phonorecord by sale or
transfer of ownership — that would only apply if you physically removed the
hard drive from your computer and handed it to another person. The
phonorecord (which is, by definition, the physical copy, not the intangible
copyrighted work) is not being distributed here!

I’d maintain that, as a matter of black letter copyright law, what is really
going on is solely reproduction. So the proper analysis for a P2P “uploader”
should be one of contributory infringement of the reproduction right, not
violation of the distribution right.
</copyright lawyer mode>

Of course, the Ninth Circuit seems to have taken a different (and mistaken)
view in the Napster ruling. We’ll see if other courts make the same mistake.

Fred (by Fred von Lohmann)

—-

Very good, Fred.

But your analysis requires reproduction as a predicate to distribution when
in fact reproduction is not a predicate to distribution.

First, in technical copyright lawyer mode (without representing the view of
any current or past clients), there is no requirement that the actus reaus
of the copy making reside with the putative infringer of distribution
rights.  The infringing act can be the naked distribution of the copy
without also having the infringer bear responsibility for the copying
itself. (A  distributor of books can be liable for copyright infringement
just for distributing unauthorized copies while the publisher could infringe
for both the making of copies and the authorization of distribution.)

Second, as a factual matter, a copy is made in the process of a P2P
transfer; and although we would likely think it is being made by the
downloader, in point of fact the copy cannot be made without the originating
file being offered by the uploader.  I would posit that the offering of the
original is a direct participation in the act of copying, not simply a
contributory factor to the copying.  File sharing is in the nature of barter
for many P2P users in which access to other files is traded for access to
user controlled files.  And, it is not really access which is provided to
files resident on the user’s hard drive.  The resident file is not what a
downloader uses to view the work. The user’s file has to be made available
to be copied by the downloader. This is not an indirect enabling of the
copying.  It is an active step to permit the copy in the first instance.

Third, in member of the public mode, if it looks like distribution, if it
functions like distribution, if the results are identical to
distribution – – I could go on – – at some point it is distribution both in
fact and in law.

Fourth, you are right about my analogy being off – – they always are – – but
using yours; if you are trying to maintain a lack of distribution, with
copying as a predicate to distribution, then I probably should put the book
on the porch with an extension cord offering power to anyone who brings
their own photocopier.  A bit awkward, that!

JOSH (by Joshua Wattles)

—-

And that, folks, pretty well sums up the arguments that a court will have to
choose between some day.

I never meant to suggest that only the person who makes the copy can be held
liable for its distribution. Josh is absolutely right (though it shocks the
average layperson) that bookstores are strictly liable for any infringing
books they sell.

But I disagree with Josh’s latter point — I don’t understand what he means
when he likens offering a file for copying to “direct participation in the
act of copying.” I leave my front door open and invite anyone to bring their
own computer over and make themselves a copy — I’m not “directly
participating” in the copying. I may or may not be contributorily liable for
the copying, but that’s another story, subject to a different analysis.

In a P2P network, there’s just no copy changing hands. There are new copies
being made from existing ones. Who is making the copies? Well, the
downloader provides the computer, the hard drive, the searching, and the
commands to begin the copying. Looks to me like he’s the one making the
copy.

Of course, many may wonder what difference it makes, since the reproduction
right is clearly implicated. But mark my words, this subtle difference will
make a difference, sooner or later.

And then the court will have to choose b/w Josh’s analogies and mine. 😉

Fred (by Fred von Lohmann)

—-

Well, without having to take sides on whose analysis is correct here, I
have to wonder what the consequences of the courts siding with Fred
would be.

Assume Fred is correct and the courts agree with him:

Suddenly, those who make available (“uploaders”) music on P2P networks
cannot be successfully sued by the RIAA. This only applies to those who
make music available, since Fred’s non-silly analysis relies on the
silly distinction that copyright law makes regarding “phonorecords” as
opposed to other copies. (If that isn’t the case, and the analysis
applies to all media, then the RIAA is going to have many allies in its
fight against such a decision). The RIAA can’t go after downloaders
because they can’t legally “see” the downloading.  Does this mean the
RIAA gives up?

Possible responses from the RIAA:
1) Do some downloading from each distributor to show that uploaders were
actually distributing the file, or engaged in contributory infringement
of the right of reproduction, or whatever the new definition of what
uploaders are doing is illegal is.  Problem – this is difficult, costly
and creates new evidentiary burdens that the RIAA won’t like.  Which
brings us to:

2) Get the law changed.  Adverse court decision comes down for the RIAA,
they will have a very persuasive case that the law needs to be changed
… after all they are only going after the most egregious uploaders
right now, right?  And a decision along Fred’s analysis protects the
most egregious of uploaders.  But what should the new law be?

2)a) Get rid of the silly distinction between phonorecords and other
types of copies.  Highly unlikely, all music industry contracts are
structured with this distinction in mind, record companies certainly
aren’t going to want to go through all the repercussion such a change
would entail.

2)b) Make it legal, with some sort of easy-to-acquire “subpoena” or
something, to actually watch (sniff packets) uploaders to see the
downloading taking place, and also find out who is downloading in the
bargain.  This is unlikely because the ISPs will fight tooth and nail
against this – it would be very expensive for them.  Additionally,
privacy rights still have some respect in Congress.

2)c) Enter the glorious future of blanket licensing.  Unlikely – I don’t
think the RIAA is ready to give up the fight just yet.

2)d) Create a new right under 17USC106, call it the “right to make
available”.  We have a possible winner here.  This right is like the
distribution right, but is much more expansive and covers what uploaders
are doing.  The copyright industry would certainly support such an
expansive right, and I’m not sure the anti-copyright expansion crowd
could fight it successfully, given such an adverse court decision. Such
an expansive, codified right could be extremely problematic, especially
when one considers its interaction with the DMCA and contributory
infringement doctrines.

The legislative process is messy and doesn’t particularly favor
anti-copyright expansion.  It is not entirely clear what the legislative
outcome would be, but giving the RIAA such a strong motivation to force
a new legislative solution would probably not work favorably for the
anti-copyright expansion crowd.  Certainly, there is a large potential
for legislative blowback, if Fred’s analysis wins the judicial day. 
Uploaders might win a battle, but lose a campaign.

Frankly, I think we need to completely reform and rethink copyright law
as a whole.  It is a mess and the subtle distinctions that Fred is
pointing out are part of the problem. I’m not sure this is necessarily
the best way to go about it.

(by Ernest Miller)

—-

I’m with you on the black letter concept that the exclusive right to distribute copies and phonorecords only pertains to the distribution of physical objects (due to the definition of copies and phonorecords) but what about the performance rights?  My reading is that “making available” would be covered, with respect to the sound recording, by the exclusive right to perform the sound recording work publicly by means of a digital audio transmission and, with respect to the musical composition, by the exclusive right to perform the musical composition publicly.

Note that:

“To perform or display a work “publicly” means –

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

I agree with Kevin that a work actually has to be performed in order to constitute an infringement but assuming that the work is performed and that it is available to the public “in separate places and…at different times,” how would that not implicate the exclusive right to publicly perform – or am I misreading you?

Best.

Whitney (by Whitney Broussard)

—-

Ah, Whitney, you’re raising the stakes in our nice, narrow, technical
debate. 🙂 I was *only* talking about the distribution right, and how that
glove just won’t fit. Public performance, well, that’s another matter.

I have two answers for you. First, the flip answer:
What, every download is a public performance!? Really? What about the whole
DPD invention by Congress? Does that mean ASCAP/BMI collects on every
download? Double taxation! Chaos! Cats and dogs living together!

Now, the serious answer:
I have no idea. I think interesting arguments can be marshaled on both
sides. (And I ain’t going to marshal them, lest the RIAA lurkers on the list
cite my email against me in future litigation – hi Matt!) There’s also the
evidentiary issue buried in here (as helpfully pointed out by Ernie in this
thread) — I think it’s much harder to prove public performance in the P2P
context. I don’t think it’s enough to just point to materials residing in a
“shared” directory.

Interesting to note that the public performance right has never (to my
knowledge) been invoked by copyright owners in any P2P case.

Fred (by Fred von Lohmann)

Filed by Derek Slater at 5:39 pm under
Comments Off on P2P Infringement Discussion on Pho