Judge says that "attempted copyright infringement" is bogus

The Electronic Frontier Foundation's Corynne McSherry sez, "Judge Davis issued an order today rejecting the RIAA's effort to rewrite copyright law to include a form of 'attempted infringement.' Based on this order, the first p2p case ever to make it to a jury verdict is now headed for a *second* trial. Even more interesting, the Court devotes several paragraphs to a plea to Congress to lower penalties for noncommercial, individual infringers."

Joining the ranks of federal district judges in Arizona and Massachusetts, District of Minnesota Chief Judge Michael Davis today concluded [44-page PDF] that simply making a music file available in a shared file does not violate copyright law, and ordered a new trial in Capitol Records v. Jammie Thomas.

The case made headlines last year as the first peer-to-peer file-sharing case to go all the way to trial. In October 2007, a jury held Thomas liable and awarded $222,000 in damages to the record companies, based in whole or in part (it wasn't clear) on an instruction that merely making a file available violates a copyright owner's distribution right. Earlier this year, Chief Judge Davis said he was concerned that he might have made a mistake with that instruction and asked for more briefing on whether Thomas deserved a new trial. EFF, joined by Public Knowledge, the United States Internet Industry Association, and the Computer and Communications Industry Association filed an amicus brief urging the Court to reject the RIAA's making available theory.

Capitol v. Thomas: Judge Orders New Trial, Implores Congress to Lower Statutory Penalties for P2P (Thanks, Corynne!)

• [liveMike]

  So if I put my music CDs in a box, then put the box in front of my house and someone takes the CDs, can RIAA sue me?

• [sabik]

  @RadioGuy, for one thing, if she’d stolen the CDs, she wouldn’t be up for a quarter of a million in damages.

  @WorthlessComment, if you read back, you’ll find several substantive responses to shmengie’s comment, including mine at #10. You may also wish to read the comments preceding his and, indeed, the article, to better understand the context in which he (or she) made the comment.

• [WorthlessComment]

  Sorry I didn’t want to create an account so I have to make this anonymous, but since everyone is using a handle I guess we’re all anonymous.
  I agree with Shmengie. If you’re downloading something that you would otherwise have to pay for, then you are stealing it. Simple. Should people have to pay a quarter of a million dollars for stealing 24 songs? Hell no. But once again I see people doing exactly what Shmengie was talking about, skirting the issue. Instead of confronting the facts some of the comments here talked about Shmengie’s grammar and asked him to talk about something else. You have no argument therefore you attack your opponent–seems like there are liberal people on this board so remember that’s exactly what Bill O’Reilly and the rest of Fox News does.
  There’s got to be a solution that doesn’t involve bankrupting people but also protects copy write. We should focus on the enormous fines that make downloading copy-writed material more expensive than driving drunk.
  Also, LiveMike, RIAA cannot sue you for putting purchased music out on the curb because you have not copied it. You are giving out a gift which has already been paid for. If you burned a bunch of CDs illegally, and placed those copies out in front of your house then they could sue you for copy-write infringement because you copied it. I wouldn’t worry about it though unless you are in the habit of replicating material under copy write and then haphazardly tossing them across your lawn. What we need is common sense, not bankrupting fines. Make it like a parking ticket and increase the amounts each time the person is caught. We all hate parking tickets, but they don’t put us out of our homes and destroy our futures.

• [Jake0748]

  “Judge says that “attempted copyright infringement” is bogus”

  - Judge exhibits common sense.

• [RadioGuy]

  It’s already been said in this thread and many others, but my obsessive/compulsive tendencies compel me to reiterate:

  Stealing is not copyright infringement.
  Copyright infringement is not theft.
  They are two different things.

  Regardless of your feelings on the [im]morality of file sharing, can we please use the proper terminology to discuss this matter?

• [shmengie]

  look, i hate the riaa and their thugs and tactics as much as anyone here. the dmca sucks (thx a mil, bill clinton!) should be tossed, with prejudice. but…

  i hear, here and elsewhere (i’m looking at you, techdirt), many people i would normally consider ‘cool’ and knowledgeable positing that the ‘making available’ of copyrighted material is not infringement. IANAL, but how is that any different from me saying, “hey, i have these drugs. come and get ‘em if you want ‘em.” i know that’s a crime. is not the simple act of offering something you have no legal right to offer (or is otherwise illegal) a crime?

  what we have, IMO, is a bunch of people rationalizing their behavior. i’m not sure how, in their heads’, they all wiggle out of the i’m-offering-it-for-anyone-who-wants-it-even-though-i’m-not-the-copyright-holder part of it, but they do. i find that disconnect kinda scary.

  man up. admit that what you’re doing is stealing music, cuz that’s what it is.

  and, again, if every lawyer from the riaa and mpaa were thrown in a tank of sharks, i’d laugh as they died. they’re scum-suckers and deserve no less. but let’s stop lying about what we’re doing. (yes, i include myself. i am a thief of copyrighted music. a lot of it).

  let the flaming begin…

• [Brainspore]

  Worthlesscomment, what is in question here isn’t whether downloading songs you haven’t paid for is illegal. It’s whether making them available for OTHER people to steal is illegal. The downloaders weren’t the ones being charged here, it was the guy who had the original file on his computer.

• [sabik]

  Hmm, I had a packet of troll biscuits here somewhere…

  η

• [dmatos]

  @shmengie

  Here in Canada, at least, the “making available” argument was struck down by a judge with the following analogy:

  Putting files in a shared folder on a computer network is akin to a library putting a photocopier next to their books.

  Granted, here in Canada, downloading of music files is legal, thanks to our outrageous blank media levies.

  Simply making available is not the same as advertising that items are available for copying.

• [sabik]

  @shmengie, for the record:

  1) Copyright infringement is not theft. It’s different at law, and it’s different in reality (non-rivalrous). For instance, the statutory damages that apply to copyright infringement do not apply to stealing.

  2) If you’re offering illegal drugs, they can get you for possession, so a question of “attempted dealing” doesn’t really arise. Also, illegal drugs are a criminal matter, not civil.

  3) There are attempt crimes and there are strict liability crimes, but most crimes require both a successful actus reus and mens rea. Even for most crimes, trying and failing doesn’t count. Much less so for a civil matter.

  Finally, sir, you are no e e cummings.

  η

• [OM]

  “Hmm, I had a packet of troll biscuits here somewhere…”

  …Look behind the Milk Bonez. I think there’s still some with those nice DDT sprinkles they love so much.

• [gabu]

  “Attempted murder, really, what is that? Do they give a Nobel Prize for attempted chemistry?” — Sideshow Bob

• [Brainspore]

  How much leeway does the law give for charging people with “attempting” (but not committing) crimes? I’m familiar with “attempted murder,” but haven’t heard of others.

• [Jake0748]

  Good question, Brainspore. But if I’m not mistaken, copyright infringement is a civil crime and not criminal. So I could sue someone for negligence, but I’ve never heard of anyone being taken to court for attempted negligence.

• [WorthlessComment]

  I wasn’t talking about everyone on the comment page, but I do find that when reading any comment page–on any website–that there is a huge tendency to try and prove people wrong by correcting spelling and grammar mistakes. This debate can become particularly heated because many of us were doing just what she did back in the heyday of Napster, and many more are still doing it.
  As for making it available, I understand the bogusness of that argument, but the question is “Who has Kazaa installed on their computer in order to do anything other than share files?” That’s what Kazaa is, a p2p system. Had someone hacked into her PC to steal the files, or use some other method than sure that’s not her fault.

  Earlier in this post someone asked if they could be sued by the RIAA for leaving a box of CD’s out in the front of their house, assuming it was taken by someone else. I answered no, assuming that the content of the box was original and had been purchased at some point. But I can’t go making copies of copywritten material and start tossing it anywhere I want because it’s not mine to manufacture and disburse. What is disbursement? If you replicate something, and make it available on a website/program whose sole purpose is to distribute that content to other members then yes you are distributing material. Every store you have ever been to, anything you have ever bought online operates on the same premise, making something available in an environment in which people have a reasonable expectation of acquiring goods/services. Kazaa is just that, the online equivalent of iTunes except the vendors/members don’t own the material they’re distributing. That’s why you won’t find used book stores, used music outlets, and ebay on the firing line of the RIAA and other infringement suits, because they’re not copying anything.
  Does p2p copywrite infringement require a 220,000 fine, hell no! But if you’re a member of Kazaa you know what you’er doing and you know why your files are up there, to be copied. I’m not worried about rich guys getting some music stolen, but the reality is that they’re going to keep fighting this with all their rich guy money. So I feel that the best response is to lower the fines for p2p specific crimes, make it like a parking ticket, and take the offenders out of the line of fire from the RIAA and lawsuits. If the RIAA wants to monitor and report offenders, then fine, but 220,000 dollars is just insane.

• [sweetcraspy]

  Along with #1, what I’m most impressed by is the judge saying “Hey, I may have made a mistake, let’s investigate my potential mistake… Yep it was a mistake that I made, let’s figure out how to make it better.” Huzzah, for taking responsibility!

• [Avram]

  Shmengie @7, we actually do try to discourage flaming here, so how about we don’t’ let the flaming begin.

  If you disagree with the position a blogger has taken on a matter, and you really want to start a useful discussion of the matter, what you ought to do is formulate the best possible question or statement of your side of the issue. If there’s a part of the issue that you don’t understand, be honest, and admit that you don’t understand it.

  Don’t type up an all-lower-case comment accusing the people you disagree with of being dishonest. That’s just flamebait.

• [Ugly Canuck]

  De-elect Congress…looks like they’re the problem, not your Courts.

• [oasisob1]

  “#4 posted by Jake0748 , September 24, 2008 10:16 PM

  Good question, Brainspore. But if I’m not mistaken, copyright infringement is a civil crime and not criminal. So I could sue someone for negligence, but I’ve never heard of anyone being taken to court for attempted negligence.”

  ‘Attempted negligence’? Oxymoron!