|
Wired – June 20, 2008:
|
As far as I can figure, the problem the MPAA is having is that in modern P2P systems, such as bittorrent, you’re downloading bits and pieces from numerous different users. The only person who for certain uploaded the entire movie is the original seeder. But those guys are too smart to get caught. Most everyone else only uploads a portion of the movie, even though they download the entire movie themselves. What the MPAA really wants is to sue for attempted infringement on the part of the user. In the criminal realm that’s any step towards the commission of the crime, along with a specific intent to commit it. But there really is no analogy in the civil realm. You can’t sue someone for attempted negligence, e.g., an attempted slip and fall?! An attempted the coffee is too hot at McDonalds?! It doesn’t even make any sense. In the civil realm you cannot sue unless you suffered damages. There simply are no such damages in a attempted claim because the damaging event never occurred. My guess is that the government will make attempted infringing a crime and the crack down on that will become our new drug war. When that happens, anyone with a P2P program such as bittorrent installed on their computer could be arrested under the attempt statute, as downloading and installing the program is a step towards a commission of the crime and is evidence of an intent to use it. You’ll claim you only use bittorrent for legal downloads, but that’s a question of fact for the jury. |
|
0
Support the Blog — Buy This Book!
For Kindle and with free ePub version. Only $9.49 Great reading.
Here is what Gary Shapiro CEO of the Consumer Electronics Association (CEA) said: Dvorak's writing sings with insight and clarity. Whether or not you agree with John's views, he will get you thinking and is never boring. These essays are worth the read!
Put this ad on your blog!
Syndicate
Subscribe to Main Blog feed here:
Subscribe to Comments too (below):
Junk Email Filter
You know, I think my neighbor stole my car. I’m sure glad I don’t have to prove it now. I can just take him to court and get tens of thousands of dollars from him, no evidence required! PUUULEASE!!! Would someone please put the MPAA and RIAA out of our misery!
You should be able to sue for attempted. If someone finds some water on the floor, goes over and slips on it, and claims to be hurt. I should be able to sue him for trying to get a windfall out of a lawsuit.
I would think the real hammer is to use the new relaxed standards to go back and sue ISP’s for “aiding and abetting.”
Good example of every issue containing pro’s and con’s and unintended consequences AND the refusal of middle men to get out of the way.
You don’t find leaches only in the bottom of a scumpond.
Hey, you’re on the internet, you’re probably attempting to pirate movies! Time to pay a hundred thousand dollars!
Once this law is passed, any program which could allow copying of copyrighted work is fair game.
Photoshop? If you have it installed on your computer, then you can get nailed. Own a scanner? See you in Club Fed!
Don’t even think about Divx.
I guess the theory here is, if you pretty well automatically make everyone a criminal, later you can just choose those you wish to send to jail and avoid a lot of pesky legal hassles.
That doesn’t sound much like a Republic or a Democracy.
“My guess is that the government will make attempted infringing a crime and the crack down on that will become our new drug war.”
That is possible, given the current crop, but if our govm’t adds another “War on Noun” to our growing list of them (poverty, terror, drugs, ect.) they will only hasten the banruptcy of the country. The FBI can’t even pay their phone tap bills anymore!
“I guess the theory here is, if you pretty well automatically make everyone a criminal, later you can just choose those you wish to send to jail and avoid a lot of pesky legal hassles.
That doesn’t sound much like a Republic or a Democracy.”
Indeed.
Isn’t there something like attempted theft already? If an asshat grabs at a woman’s handbag but fails to dislodge it and runs away, what is the charge if he is caught? Just curious.
“Isn’t there something like attempted theft already? If an asshat grabs at a woman’s handbag but fails to dislodge it and runs away, what is the charge if he is caught? Just curious.”
Yes, but a charge of attempted theft requires evidence of some sort (a witness, security camera footage ect.), whereas the MPAA/RIAA pigs want to get rid of that pesky requirement.
I’m still having a hard time on how MPAA/RIAA is being “damaged” by piracy when they are still making zillions of dollars on legitimate sales of DVDs, CDs, and online legitimate downloads from iTunes, and the like. Plus the artists don’t get jack shit from those sales anyway, yet these organizations claim to protect the artists content? Yeah right. Only the MPAA/RIAA lawyers are the ones truly stealing from everyone.
The MPAA is writing a judge saying, “Hey! Cut us some slack here and let us bullshit with impunity!”
Of course, if the judge doesn’t see things “properly”, there’s always next year’s election to “change” things.
#8 “Isn’t there something like attempted theft already? If an asshat grabs at a woman’s handbag but fails to dislodge it and runs away, what is the charge if he is caught?”
Yes, there is. However you can’t be charged just because you have a hand & fingers…
FOR instance…
I have noted something interesting…
Iv seen a few of these letter posted out, as well as an ISP closing the connection, until they signed a letter of NOT EVER DOING IT AGAIN..
What was funny, is that what was Downloaded WASNT what the letters Named.
You could DL a picture of BATMAN…the Name on the file is BATMAN:THE MOVIE.. its the poster.
You could receive a letter to STOP DOING THAT…meaning to STOP Downloading the MOVIE..
Problem..
You DIDNT..
You cant PROVE you didnt..
They can SHOW, that you have run P2P.
They can show you Downloaded DATA listed as BATMAN:The MOVIE..
Unless you wish to loose your computer for 1 year as they run diagnostics on it(WHEN they get to it) you are going to sign a letter that infers: THAT YOU DID DOWNLOAD A MOVIE..
Yeah well the golden age of milking the public like a cash cow is over. Unless they’ve been asleep a decade they got to realize that p2p is nearly indestructable – knock one down 3 pop up in their place, and that digital media is unprotectable. Sooner or later they’ll figure it out. I can save the motion picture / television industry, using a formula they’re already familiar with. Commercials. Yeah, the other day I wanted to find some episodes of the original Addams family series. And it occured to me that if I could dl them from a free server that has the content with publicity already included well, I guess I’d just have to see the commercials (I’m used to it). It’s not a question of protecting intellectual property rights. They can no longer be protected. It’s a question of waking up and smelling the money. They have a product that’s in demand they just need to find a lucrative distribution formula. But it seems they’d rather spend endlessly on lawyers trying to get laws passed and jailing zit faced kids with too much drive space.
What is scaring me is the precedent this law creates if passed. If ownership of something becomes tantamount to the commission of a crime it is capable of, then that can be extended to all sorts of other things.
Since ownership of a p2p client is viewed as tantamount to stealing copyrighted content because it is presumed that most of the time it is used for stealing, then why not:
Make owners of a handgun instantly guilty of armed robbery or murder because someone believes that this is the primary use of a handgun, and therefore it is the intent of the owner of the gun to commit serious crimes. Etc…
#6: It actually sounds like France. Napoleonic Code, anyone? Where guilt is presumed rather than innocence?
It’s really a shame that the RIAA keeps forgetting that they’re a non-profit organization!
What bothers me is the degree to which people are OK with illegal downloading. That they can’t prove it doesn’t change the fact that it is illegal.
DVD and CD sales are down considerably. And now with all the illegal downloading, they are pushing more and more advertising in the movies themselves. Selling $1 per track makes sense financially. But $1 per movie is not viable.
The new motto for the RIAA “Innocence proves nothing”
F the MPAA.
Unfortunately the MPAA may have a precedent.
POSSESSION FOR THE PURPOSE OF TRAFFICKING
Possession for the purpose of trafficking is an attempt by the prosecution to prove an intention beyond “personal use” of drugs.
Proof of the intent to traffic typically involves evidence such as the quantity of drugs, the type of packaging and observed transactions. It is important to note that the prosecution does not need to prove that the accused person intended to profit, but only that he or she intended to transfer the drugs to another person.
To Everyone.
If you got it the first time, OK, if not, then pay attention.
There are two types of law in this (and most) country; there is criminal law where you can go to jail and civil law where a court determines if a party has been hurt and what the damages are.
This deals with civil law. The MPAA has to prove first to the court that they have been harmed. Then they have to prove that a certain person did it. Then they have to prove their damages. Here, the MPAA is asking the court to limit the amount of proof they need to show that they have been harmed and to prove the person who harmed them.
Criminal laws such as “Possession for the purpose of trafficking” are not even remotely similar.
I don’t think this will pass muster as there is sufficient jurisprudence about what evidence is required to present a case and prove damages. It would take legislation to change this law, not a Judge.
So with the continuing “War on Drugs”, and the “War on Terrorism”, and the new (yet to be named officially)”War Against Conscious Copyright Objection” (WACCO), our military and police forces will be spread increasingly thin.
We will simply have to make Law Enforcement the new national industury. Don’t worry though, this need for new soldiers, police, and prison gaurds will be funded and controled completely by the corporate sector.
Aren’t all public libraries guilty of “making available” copyrighted material?
They let me take a book (and in many cases audio and video recordings) home with me where I may copy them on my handy all-in-one printer/scanner at my leisure.
Will the fact that I have a library card automatically make me guilty of copying protected material?
More of the same…
(From a link in the Wired article linked to in this article:)
http://
techdirt.com/articles/20080324/152810634.shtml
Congress may have backdoored in this “attempted” clause late last year through the Orwellianly-titled Criminal Code Modernization and Simplification Act. In that act, it notes that: “Unless otherwise provided by law, whoever attempts to commit an offense shall be punished as is provided for the completed offense.”
So say I’m going to try to jump so high that when I land the building will collapse, killing everyone in it — will I then be arrested and tried for mass murder? If I try to jump up and grab the moon? If I hold my fingers to my temples and try to make everyone’s heads explode like in the movie Trancers?
This is absurd, filled with absurdities and closely approaching insanity! What’s in the water in the MPAA and RIAA offices? This is rapidly approaching the classical clinical signs of paranoia.
Many of you are confusing civil law with criminal law.
The following is not legal advice, it’s an opinion at most, treat it as a work of fiction, designed to entertain, not to fuel any anger, but to bring peace and content: Seems to me that it’s not so much an attempted theft, rather the assisting of theft. See, the MPAA goon squads monitor torrents, they record IP addresses of people that share a part of a file, as that’s all they can do. So it is part of a theft, not whole, but enough to bust you. And yes, we do have laws against such things. Doing this is being an accessory to a crime. It’s like, your friend robbed the bank, but you drove the car. One of the key things in such cases is did you know what you were doing. “Knowingly” is key here. Receiving stolen property is one thing, but “knowingly Receiving stolen property is a felony”. So how can they know what you know? And that’s just one of the battles we see in court. And it’s not so much they can’t prove such an act, they can, they are not dumb. What they want is to make such crimes have harsher penalties, bigger fines, and have it easier to prosecute. But the thing is, that you should all know is: They can’t prove who is downloading any part of a file, all they have is a record of the file chunk shared with the IP address and time/date. The accused (us) are loosing such cases because they often give up and settle out of court and pay a fine. Thing is, if you have a smart lawyer, and your defense is the fact that you don’t know who used your IP address to share such a file, then you have a very good defense and can fight them with that. In fact, most often when the prosecution finds out you have such a defense, that you have a public wireless network, so it could be anyone, then they drop the case. Just a simple letter from a lawyer explaining how you have no idea who the suspected criminal could be, because you had a public wireless network, that it is not you, and you no longer have any computers or anything like that, you gave it all away or whatever, and beyond that you do not remember anything. Keep it simple, play dumb when need be, if they try to press you for more details best to say you can’t remember, that you smoke a lot of pot, stress or whatever.