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Now MPAA want the burden of proof removed in litigation!

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Carol Haynes:
Alarming argument - seems one judge thinks they may have a point!


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See the full article at http://www.vnunet.com/vnunet/news/2219836/proof-piracy-needed-mpaa

CWuestefeld:
After reading the article, it appears that the headline is rather sensationalist. The MPAA lawyer does not claim that they "do not need proof". They are claiming that they don't need "such direct proof".

There does exist circumstantial evidence that is apparently not contested by the defendant. It's not that they're completely fabricating stuff from whole cloth. It's just that he wasn't caught red-handed.

That said, the MPAA are still scumbags.

On another level, the article doesn't seem to make sense. The defendant is accused of offering songs for download. Yet he's not being sued by the RIAA -- he's being sued by the MPAA. In other words, it's not the music industry that's suing him for music, it's the movie industry that's suing him for music.

Carol Haynes:
From the lawyers brief cited in the text:


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Which seems to suggest that if you use a P2P network at all and you have material on your system that could have been shared then you should be deemed guilty of distribution !!

He is suggesting that they shouldn't have to provide any evidence that you did actually distribute !!

Sorry I was under the impression that the US and UK courts are supposed to presume innocence unless guilt is proved - therefore if they can't prove you actually did distribute stuff they shouldn't be able to get a judgement!

CWuestefeld:
Even in a murder case, there's not necessarily a need to provide a witness that watched the crime. If you'd been heard to threaten the victim, and you're found with the knife in your hand, that may be enough to convict you (unless you're a sports star, but that's a different conversation).

Likewise, if you're running P2P software, and you've got the allegedly-infringed files sitting in its Shared directory, this might be enough (in some circumstances) to fairly convict someone.

Note that I'm not saying that the way copyright law is slanted is a good thing ('cause it ain't). I'm just saying that, contra the article's tenor, this is not a repudiation of "innocent until proven guilty".

app103:
Actually, this may be a bit misleading. The proof they don't want to submit as evidence against people is files.

They want to be able to use a browse list as evidence alone, without having to attempt to download any files from the person that seems to be making files available. They want the fact someone has a list showing as all the evidence needed to prove distribution of whatever the list contains.

Now while some people may think that isn't that big of a deal, it is...it's a very big deal.

I run a programming chat on a P2P network. We help people that are trying to learn programming, and often times help others clean malware off their PC's, configure their router, troubleshoot linux issues, proofread their English homework, etc. So I am pretty familiar with what is available, how things work, and in most cases know the people that made the extra goodies that are available for use on the network.

I could give 5 scenerios in which the RIAA/MPAA or their flunkies could get a list of "shared files" from someone and no actual sharing is taking place, or in some cases, can take place.


1. Misconfigured router and the proper ports are not forwarded and therefore no uploading of files can take place, even though you can still browse the person's shared files folder and see the names of the files within it. We can throw a misconfigured firewall in this scenerio, as well.

2. CD swap out. In some P2P applications, you can share files right off of a data CD (or a USB thumb drive), as long as the CD is in the drive. So inserting the CD, sharing it just long enough for the list to be created and file hashes to be calculated and then removing the CD from the drive would create a list of files that are supposedly shared but can't be downloaded. Some P2P applications will not detect that the CD has been removed and will not update the file list unless the user manually clicks a button to refresh the list or restarts the software. One can do this before connecting to the network to ensure that no sharing can take place during the hashing process.

3. Software hack. There are some "plugins" available that will stop automatic uploading in some P2P applications by stopping the queue from being processed, changing the available upload slots to always be 0. No files will be uploaded and all people that try will just wait in the queue forever. 0of0 was developed by a member of my chatroom, just for this purpose.

4. Chat only client with a mock shared list. Some P2P networks have chat and there are 3rd party chat clients available that will allow someone to enjoy the chatrooms without having any upload/download capabilities on the network. Some of these contain a way to appear to be sharing files or to show a custom message when someone browses you from the chatroom. But if you try to download anything from that list, it will always fail because it does not exist. These "files" only show on a browse from within a chatroom and never show on a general search on the network.

I have used RoboMX and Metis before, with a text file of a list of about 100 of the craziest book titles on earth, things nobody in their right mind would think were real and try to download. It was good for a lot of laughs, usually poking fun at people in the chatroom with the titles. All of the files I appeared to be sharing were just individual lines in a text file and not real files.

The same goes for AC177, but the fake list is stored in the registry instead of in a text file. AC177 was developed by a member of my chatroom.

5. Ghost files. On at least 1 P2P network there is a phenomenom known as "ghost files" that can occur if you have been connected to the same primary for a very long time. Someone else's files will show in the list when someone browses you. (for some reason it's always porn or something with a title in japanese) It is some sort of glitch in the software that is well known among users. If anyone tries to download a ghosted file, it will fail because the user that they are trying to get it from doesn't have it. The remedy for the user that has ghosted files showing in their shared files list, is to disconnect and reconnect to the network, which breaks the connection to the "tired" primary that is causing the ghosting.

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In each of these scenerios there is a list that can be viewed by anyone, but no way to actually transfer those files. So in essence, even though they appear to be shared, they actually are not, and in some cases may not even exist.

So, since there is at least 1 way in which someone could appear to be sharing copyrighted files but not actually making them available to anyone, and at least 1 way to appear to be sharing files that don't even exist, evidence that they do in fact exist and are available and downloadable is still needed, in order to protect the rights of the accused.

This doesn't even take into account that files could appear to be something that they are not. Maybe someone is sharing files of themselves singing in the shower. Or home-made movie re-enactment parodies of the latest film releases created with Barbie dolls or action figures. (parody falls under "fair use" and is perfectly legal)

You can't know what the case is unless you can (and do) download the file and verify the contents.

Since the judge in the Jamie Thomas case wants to hear from the public on this issue, which is why the MPAA sent their opinion to him, I mailed the judge a letter yesterday explaining in much more detail the 5 scnerios I just stated.

There was no way I could sit back and let a judge decide on July 1, that a list is all that is needed to prove files were made available, not when I can name these 5 off the top of my head so easily.

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