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District Judge rules "publishing" the same as "distributing" in copyright infringement case, continues lawsuit

There are many different arguments as to how copyrights can be infringed and many laws in place are still up for interpretation.  Studies show how broad the standards copyright infringement can be, so its no surprise the case Electra vs. Barker has taken the better part of three years to approach resolve. 

A District Judge brought down the gavel on Monday, ruling that simply making songs available in a Kazaa shared folder is not an act of copyright infringement but did give merit to the claim.

The trial began in 2005 after record labels took legal action on the availability of filesharing as copyright infringement. Naturally, the RIAA decided to step in and join the action.

The lawsuit was brought forward after a record label had a Kazaa user shared 611 files on her computer. The company then hired investigators to locate her internet protocol address. The record company was able to identify the defendant with that IP address with the assistance of Verizon internet service.

The defendant, Denise Barker, motioned to dismiss the lawsuit, claiming that making files available in a Kazaa shred folder did not prove the files have been shared.  Barker argued the lawsuit using Rule 8, which requires that a plaintiff in a copyright lawsuit must point out a specific song involved, at what time the illegal act occurred, the company owns the rights to the song and copyright registration information.

Barker says the case must be dismissed because it does not describe specific acts of infringement or the dates and times on which the infringement allegedly occurred. But, according to the RIAA, making files available is enough to constitute as copyright infringement and does not need to be proved any further.

The argument boils down to the distribution and publication. "The question before the Court, therefore, is whether the Court should look to the definition of the word 'publication' to construe the meaning of the term 'distribute' in Section 106(3) of the Copyright Act," Judge Karas claimed.  The conclusion was that “publication” and “distribution” is the same in regards to the Copyright Act.

The importance of this particular case is the judge’s decision. This is the first time a judge a ruled so strongly and created a new standard in interpreting the Copyright Act.

Judge Karas dropped the motion to dismiss, continuing the case. This is not necessarily a victory for the record labels or the RIAA in regards to this case, but it definitely has set a new precedent on the standards of situations and material qualifying copyright infringement, giving the pleased RIAA more ammo in its already large stockpile.

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legislating from the bench
By Screwballl on 4/2/2008 3:46:02 PM , Rating: 1
The judges are there to uphold the laws as they stand, not interpret or change them to fit a case.

The argument boils down to the distribution and publication. "The question before the Court, therefore, is whether the Court should look to the definition of the word 'publication' to construe the meaning of the term 'distribute' in Section 106(3) of the Copyright Act," Judge Karas claimed.

This is when it needs to go to the proper legislative branch and have them look the law over to make the needed changes. It is not the judges job to "interpret" or legislate what it means. Throw the book at the judge and any other that trys this again.

If I were to legislate, I would look at the exact wording:

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Combine this with the Fair Use act:

At the moment of purchase, the media becomes property of the owner at which time it is their free will to do what they wish to do with it. They can create personal copies, put them on a file sharing program as they wish. The ones that are doing the illegal thing are the downloaders, not the sharers.

RE: legislating from the bench
By masher2 on 4/2/08, Rating: -1
RE: legislating from the bench
By King of Heroes on 4/2/2008 4:14:11 PM , Rating: 5
Hm, in this case, wouldn't a better comparison be: make 100 copies than leave them out on the street for anyone to pick up.

The file sharing in this case does not require you to pay anything to download the file.

RE: legislating from the bench
By Screwballl on 4/2/2008 4:53:55 PM , Rating: 2
Yes King that is a better comparison. You make copies and put them on a table saying "copied movies free for the taking". People know copied movies are illegal so by them taking possession of them, they are illegally taking ownership of the media.
Or lending the movie to a friend to watch... or inviting friends over to watch movies... RIAA says that is illegal too, yet it is the same as putting the files for share on a campus LAN or Kazaa or Limewire or whatever.
The key is in getting caught, they need to determine exactly what media was shared, the titles, artists, dates, indisputable evidence that these files were on a computer in this persons possession, indisputable evidence that this person had this IP address at the time of the shared files and so on.

RE: legislating from the bench
By tmouse on 4/3/2008 11:36:35 AM , Rating: 2
The problem is "fair use" does NOT allow the duplication of an entire copyrighted work or even a "significant portion". So it would be illegal to make the 100 copies whether you sold them or gave them away. Also "fair use" only authorizes a SINGLE copy to be made so teachers should not make multiple copies for a class but they could (and do) make one master "available" for each student to make their copy under "fair use". Again a chapter may be ok (that’s a judgment call as only a part of a chapter is technically allowable under the “scholarly research provision”, but all of the chapters would definitely not be ok.

RE: legislating from the bench
By tmouse on 4/3/2008 11:59:47 AM , Rating: 2
Ok I'll correct my statement since I was unaware they now allow multiple copies from teachers. This was not allowed originally but the "substantial" part is still in effect (i.e. teachers cannot get around buying a text by making it available as chapters under "fair use"

RE: legislating from the bench
By smitty3268 on 4/2/2008 5:52:39 PM , Rating: 2
So what if I throw my CD in the trash, and somebody passing by on the street notices and picks it up? Am I guilty of pirating?

Not quite the same situation that we have here, of course, but it's interesting how easily grey lines can get blurred.

RE: legislating from the bench
By seekerofknowledge on 4/2/2008 6:03:29 PM , Rating: 3
No - Whether you sell or give your 'CD's' away, you are not pirating; you are simply giving up your rights to the copyrighted material.

RE: legislating from the bench
By smitty3268 on 4/2/2008 6:10:24 PM , Rating: 2
But I made a copy first and put in on my iPod. I'm only getting rid of the extra physical copy.

RE: legislating from the bench
By tmouse on 4/3/2008 11:48:11 AM , Rating: 2
Then you have pirated the material since once you release your original to anyone else (be given or surrendered) you MUST destroy all "copies". The grey line is when you make multiple copies on different devices. Most of us feel this is ok and if you never listen to them as the same time it is, however you cannot "lend" your iPod to a friend then listen to the music on your home theater system. If you want to confuse things more playing the music for friends WOULD be ok (if you do not charge) so its kind of thinking about it as the music is a performance so you can allow others to hear it but if the two are far enough away to require 2 devices then its 2 simultaneous performances which is not ok. Confusing enough?

RE: legislating from the bench
By walk2k on 4/2/08, Rating: -1
RE: legislating from the bench
By AlterBridge86 on 4/2/2008 4:24:06 PM , Rating: 5
The judges are there to uphold the laws as they stand, not interpret or change them to fit a case.

The interpretation of laws is constantly changed by judges - ok, maybe not constantly, but it has happened many many times in the history of our court system. Its part of the system of checks and balances. When someone decides to get technical, as the lawyer for this individual did in this case, the judge needs to make a call. This isn't just for this case though, this call is for this case and all future cases. THe only way this can change (and probably will) is if they appeal after the completion of this trial. That will elevate it to the next level of court and the judge there can reverse the decision to have "distribute" and "publication" be one in the same.

At the moment of purchase, the media becomes property of the owner at which time it is their free will to do what they wish to do with it.

The physical media certainly does become the property of the purchaser upon completing the transaction, but they still do not own the copyright...all they've done essentially is pay a "licensing fee" to have a copy of the actual copyrighted work. The owner of the copyright (the band or record label in this case) is truly the only one who can reproduce the material and give it to someone else.

By seekerofknowledge on 4/2/2008 5:16:04 PM , Rating: 5
Well said. I have been considering, for some time now, filing a class-action suit against the RIAA and major labels using the very point you made in your last paragraph

..all they've done essentially is pay a "licensing fee" to have a copy of the actual copyrighted work.

The notion that I have paid a fee to have the right to watch, read, or listen to a copyrighted piece of work should enable me to enjoy that piece of work from now until the day I die. However, if I should lose my DVD, book, or CD through either my own fault or not, I should not be required to pay full price for that copyrighted piece of work a second time. I believe by breaking down the costs of the media into manufacturing and royalties, I should only be required to pay the manufacturing cost of the media.

Basically, if I break a DVD, I should be able to walk into a store and present my DVD box with a proof-of-purchase seal and receive a new DVD; I have already paid for the right to view the movie. The crux of the case, I believe, will revolve around this argument:

Someone who purchases a DVD, Book, or CD has the right to watch, read, or listen to the material (under the stated licensing agreement) without limit and without paying additional royalties. Therefore, by the licensing agents own admission of these rights, the purchaser has bought the rights to enjoy said copyrighted material for life – minus any reproduction costs.

RE: legislating from the bench
By noirsoft on 4/2/2008 4:33:20 PM , Rating: 2
That is not only not what the fair use section of the current copyright law says, it is so blatantly opposite of what Fair Use is as to be laughable. Here is what the actual law says

§ 107. Limitations on exclusive rights: Fair use40
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


Fair Use is nothing about "you own the media" (even if it did, this is the physical disc, therefore you own nothing if there is no physical medium, such as with adigital download) and all about "you are allowed to make copies _only_ for certain educational purposes or to archive a physical copy to prevent damage."

RE: legislating from the bench
By wookie1 on 4/2/2008 5:05:27 PM , Rating: 3
What do you mean that the judges are not there to intepret the law? That is the purpose of the judicial branch! The legislative branch writes the law, the executive branch enforces it, and the judicial branch interprets it. Look at all of the cases before the Supreme Court, they are all about ruling on the interpratation of laws. Sure, the courts also determine guilt and penalties as well.

RE: legislating from the bench
By Steve Guilliot on 4/2/2008 5:42:30 PM , Rating: 1
I think the poster's title "legislating from the bench" says it all. It's a cliche used by the right to criticize disagreeable judicial rulings. No thought necessarily goes into its application, as your post points out.

RE: legislating from the bench
By AmyM on 4/2/2008 9:57:30 PM , Rating: 4
Wow! - there's no gray in your portrait of the world is there?

While you may want to attribute the coining of the term ‘legislating from the bench’ to the right due to the comments made by the current administration, remarks about courts making legislation has been used by both parties for longer than you and I have been alive.

By sphyder on 4/2/2008 3:48:40 PM , Rating: 4
So since publishing is the same now, I guess they will sue sites that list lyrics now.
So lets say, you have a file you wish to share with someone in a legit fashion using Kazaa. Note this would be a file such as a document. You enable sharing just for the time you are transferring the file to a friend. You just so happen to have some music in the same folder but monitor you connections to keep anyone from download music from you. According to the judges interpretation, you have just stolen from the music industry. This isn't a stretch, as I have exchanged many files this way with family to save writing to a cd for 20mb.

What I'm curious about is when the music industry shows that their profits have dipped as justification for the witch hunts, do they show how much they have spent on lawsuits against 12 year olds.

Now before I get flamed for supporting this so called "theft", how many of you have ever borrowed a cd from someone, or made a mixtape for a boyfriend/girlfriend back in the day? Ever record a tv show or movie on a VHS tape? They are their own worst enemy (the music industry). They were late to the internet age and they want to sue everyone for not waiting for them. They should use the money going to the lawyers to innovate and get with the times.(itunes anyone) They days of paying 17dollars for a cd with 2 songs you want to hear are over.

RE: huh
By noirsoft on 4/2/2008 4:46:13 PM , Rating: 2
So since publishing is the same now, I guess they will sue sites that list lyrics now.

Posting lyrics _is_ copyright infringement and always has been. Whether or not there is a good case to sue depends on several factors.

Does the lyric site post complete lyrics?
Is the lyric site for business purposes or educational purposes?
Does the presence of the lyric site contribute to someone not purchasing the original work?

RE: huh
By niravsanghani on 4/2/2008 5:15:29 PM , Rating: 2
Lyrics would be in the same field as guitar and bass sheet music and tablature. Several websites were forced to remove these from their pages by the Music Publisher's Association (MPA) because of copyright infringement.

Their claim is that they do not want people to use copyrighted works to build off of for their own music. They say its mainly to see more "new and exciting music".


RE: huh
By noirsoft on 4/2/2008 5:49:24 PM , Rating: 2

I would think that posting tablature of a "50 cent" song would be in violation of good musical taste, not just copyright law.

RE: huh
By sphyder on 4/2/2008 6:21:33 PM , Rating: 2
So next time I go some place that has kareoke(spelling?) on a big screen with scrolling lyrics I should call my DA? Lyrics and literature differ in this aspect? I can quote from a book if I list it as a reference, but not lyrics? I think we are getting too used to paying for every little thing. We already pay for water. How much longer before you pay for some air to breathe?

RE: huh
By Varun on 4/2/2008 6:39:21 PM , Rating: 2
Maybe but most DJs pay a yearly fee to allow them to play music in public so don't bother calling the DA unless they are unlicensed.

RE: huh
By ElFenix on 4/2/2008 6:59:37 PM , Rating: 2
assuming the karaoke songs are properly licensed then no, there isn't a problem.

The best way to win against the RIAA...
By MrBlastman on 4/2/2008 3:25:17 PM , Rating: 5
Is to not buy any of their products, nor utilize them in any other ways as well.

Cut them off, completely.

They'll have no choice but to... drift away like mosquitos in a drought ridden breeze, only to die off swiftly as there is nowhere left to plant their seeds of destruction.

The bloodsuckers will run dry.

No legal battle required - they can't sue us for not using their products.

By Spuke on 4/2/2008 3:29:49 PM , Rating: 5
they can't sue us for not using their products.
Not yet.

By Staples on 4/2/2008 3:51:27 PM , Rating: 1
This is one of the few anti RIAA posts I have ever read that did not condone piracy. Still mixes up facts but at least we are making progress albeit very small.

The RIAA has been suing people for stealing their stuff, not buying their stuff. I want to hear this case where the RIAA sues people for buying their stuff.

By desertvet on 4/8/2008 7:49:35 AM , Rating: 2
What did the RIAA ever do other than try to protect what is theirs? I can't understand why people think stealing is OK, until it happens to them.

Am I misreading?
By AToZKillin on 4/2/2008 3:13:36 PM , Rating: 2
So was "publication" and "distribution" ruled to be the same under copyright law, or different? The intro blurb seems to contradict the contents, if I'm not mistaken.

RE: Am I misreading?
By DigitalFreak on 4/2/2008 3:19:19 PM , Rating: 2
"In a widely anticipated decision, U.S. District Judge Kenneth Karas ruled Monday to reject the RIAA's claim that a Kazaa user who merely "made available" copyrighted music necessarily violated the law. Rather, he said, the RIAA would have to demonstrate that unlawful copying actually took place."

Gotta love the proofreading @ Dailytech.

RE: Am I misreading?
By walk2k on 4/2/2008 4:07:09 PM , Rating: 2
that's pretty dumb really

first of all, if it's in your kazza shared folder you probably downloaded it anyway. secondly, putting stolen property up for sale is still illegal even if nobody buys it...

RE: Am I misreading?
By Sulphademus on 4/2/2008 4:21:47 PM , Rating: 2
But its not up for sale. Its up for grabs.

RE: Am I misreading?
By walk2k on 4/2/2008 4:30:18 PM , Rating: 2
that changes nothing.

selling it, giving it away, or trading it for sexual favors.... all are still equally illegal.

Guilty until prooven guilty ?
By Reclaimer77 on 4/2/2008 8:04:02 PM , Rating: 2
As a conservative the crux of this issue is setting a dangerous precedence that, no matter what, anyone putting files in the " shared " folder is guilty of piracy or presumed guilty of "distribution". I have a problem with this on principle. It is not the governments business how we organize our files on our PC. Simply using a certain folder is NOT breaking the law. This is just assinine, forgive the term.

Yes, we all know what the Shared folder is used for. And what the intent is of most people who have files in that folder. That still does not matter. That should not be used to convict someone with no proof at all except for what folder was used. In fact that wasn't enough until this judge decided to CHANGE THE LAW !

Am I the only one that sees this ?? I feel like I'm taking crazy pills ! Its innocent until proven guilty !!!

By Reclaimer77 on 4/2/2008 8:19:16 PM , Rating: 2
And what about those who use versions of Kazaa where you can check the " Do not allow others to browse my shared folder " box ? If they use the Shared folder, but its not browsable, are they also breaking the law ?

I mean c'mon, where does it all end ?

Holy crap!
By TITAN1080 on 4/3/08, Rating: 0
RE: Holy crap!
By superguru on 4/3/2008 8:55:05 PM , Rating: 2
You are driving on the internet super highway. Drive with caution, navigate carefully. If possible get an internet driving license.
Else face the risk of internet traffic ticket. Sad, but this appears to be our future.

stare decisis
By Mike Acker on 4/3/2008 7:56:45 AM , Rating: 1
the principle of stare decisis requires decisions to be consistent with the rulings of a higher court where the material facts are the same

from what I've read on this the courts have consistently ruled that to show a copyright violation the plaintiff must show that an actual transfer occurred

there are other issues that the plaintiffs might have better pursued

first, making a derivative is ipso facto a violation and a service assembled by presenting a collection of other copyright material might well be ruled to be a derivative

second it is a violation of DMCA to rip the copyright protection off media and so if the songs offered on the share were rip copies then the share has advertised and presented in public all that is needed for the plaintiffs to bring action for that offense

third, collaborating with any parties involved in a crime is also generally a crime. So if party "A" is offering rip music copies, party "A" is involved in violating DMCA. Then if party "B" provides indexing and advertising to party "A" party "B" is now collaborating with an illegal activity and can be prosecuted in that manner.

until the copyright law is updated to cover file sharing i don't see how the plaintiffs can succeed with their current proceedings.

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