Now MPAA want the burden of proof removed in litigation!

[Carol Haynes]

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

See the full article at http://www.vnunet.co...f-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:

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.

-----
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.

[Carol Haynes]

Good for you April - and great comment. 

[CWuestefeld]

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.

-app103 (June 24, 2008, 12:16 PM)

Sure, no argument there. Except for #1, where the defendant still had the mens rea (mental state). In some cases, depending on the specifics of the law in question, the intent to commit the crime is sufficient, even if the defendant wasn't successful. I don't know what the law says about this in copyright cases, though.

But I had said:

this might be enough (in some circumstances) to fairly convict someone

I didn't say that the circumstantial stuff is definitely enough to convict someone. Every case depends on its own unique facts. That's why we bother to have trials at all.

At least 4 of your 5 scenarios might be legitimate defense, plus enumerable others. But a crucial part of this is the defendant's ability to get onto the witness stand and truthfully assert that one of these scenarios was actually what happened. Just because one of these innocent explanations could explain the circumstantial evidence doesn't mean that, in point of fact, it does.

If the defendant is innocent, I would hope that he or she could provide this explanation. But the fact that such hypotheticals exist shouldn't in itself lead to the release of the guilty. The defendant has to get up, take an oath, and assert his explanation.

Call me naive, but I would like to think that justice isn't just about being able to get off if you can. I'd like to think that we've still got some ideal of honesty.

[Deozaan]

This is somewhat off topic, but that site also had a link to this story:

Pirate Bay Turns Tables on Media Giants. Basically, The Pirate Bay supposedly has proof of media corporations using illegal tactics to sabotage TPB.

The charges include "infrastructural sabotage, denial of service attacks, hacking and spamming all on a commercial level".

The Pirate Bay said in a blog posting that the company now has "proof of the things we've been suspecting for a long time; the big record and movie labels are paying professional hackers, saboteurs and ddosers to destroy our trackers".

...

It emerged in July that MediaDefender, hired by the Motion Picture Association of America, attempted to lure file sharers to a fake download site called MiiVi.com.

The site installed spyware which checked hard drives for copyrighted material and reported back to MediaDefender.

...

The Pirate Bay named the following companies in its complaint:

Twentieth Century Fox, Sweden AB
EMI Music Sweden AB
Universal Music Group Sweden AB
Universal Pictures Nordic AB
Paramount Home Entertainment Sweden AB
Atari Nordic AB
Activision Nordic Filial Till Activision (UK) Ltd
Ubisoft Sweden AB
Sony BMG Music Entertainment Sweden AB
Sony Pictures Home Entertainment Nordic AB

-http://www.vnunet.com/vnunet/news/2199427/pirate-bay-fires-shot-across

[CodeTRUCKER]

Given the magnitude of the effort and resources required to apprehend the desperados, it would appear that what the MPAA, etc. is really after is the threat of a very big stick.

Given the costs associated and the miniscule damages that could be extorted from the average individual, ROI would be veritably non-existent.  To be sure, the MPAA, etc. will make some examples of the unfortunates that get targeted in multi-million dollar suits, but the primary objective is sensational intimidation to scare away any would-be criminals since actual litigatorial actions against every offender is untenable, if not impossible.

[Carol Haynes]

Call me naive, but I would like to think that justice isn't just about being able to get off if you can. I'd like to think that we've still got some ideal of honesty.

-CWuestefeld (June 24, 2008, 12:56 PM)

Is it about justice at all when the rules of evidence get changed to say 'no evidence is needed' ???

Effectively the MPAA lawyer is saying it is the defendants responsibility to prove they didn't do it - which is impossible and doesn't conform to common law which says a defendant does not even need to open his mouth: the legal onus is on the company bringing forward a charge to prove that the defendant did what they claim.

Take as an example - I think you have slandered me and I get a lawyer to take you to court to claim damages. How would you defend yourself if the judge says I win my case unless you can prove that you have never said anything bad about me ?

[app103]

Sure, no argument there. Except for #1, where the defendant still had the mens rea (mental state). In some cases, depending on the specifics of the law in question, the intent to commit the crime is sufficient, even if the defendant wasn't successful. I don't know what the law says about this in copyright cases, though.

-CWuestefeld (June 24, 2008, 12:56 PM)

That possibly could be the case if the misconfiguring was accidental and due to ignorance. It wouldn't be the case if the misconfiguring was deliberate, in order to NOT share files, which is more common than you may think.

Additionally, a great many people are ignorant of how p2p software works and don't know that some of these applications will share a specific folder by default, and they don't know how to stop it even if they do know it does this. This is how people end up sharing their tax returns and other sensitive documents on p2p networks by accident. They don't even know they are doing it. But that is a whole different situation.

The idea that a defendant can get on a witness stand and refute the evidence of the list by explaining, isn't going to be a valid one if a list alone is considered indisputable evidence of making files available by a judge's decision on July 1.

The actual copyright law does not leave room for intent. Actual distribution must take place, and if the files can't be uploaded then no distribution can take place. This is why I say a list alone can not be used as as proof of distribution. This is the issue that the judge will be deciding.

If he decides that a list alone is valid proof, then a list is no longer circumstantial evidence. It will be considered valid proof of distribution. And if that happens, anyone in one of the 5 scenarios I provided will not be able to defend themselves with an explanation. Innocent people can and will get nailed by the blood suckers that the RIAA/MPAA are.

I could end up sued and losing, for using a chat client that can not upload, download, or share files. This would be the same as suing me for chatting. You don't see this as a way to infringe on someone's right to free speech? You don't see this as a way to extort money from innocent people? Since when is having a text file containing a list of song or movie titles illegal? If it's illegal, then every letter to Santa written by a child that wants a CD or DVD for Christmas is illegal and all our children are criminals.

All I am trying to say is that a list alone doesn't mean anything. Lists lie. You still have to have other evidence to go with it, like a file. And that file has to be something that infringes, so the content of that file must be analyzed and proven to be what the RIAA/MPAA claim it to be. If they can't get a file, then nobody else can either...and no crime could have been committed. The RIAA/MPAA don't want to go through the trouble and expense to get those files and analyze their contents. They want a decision that will enable them to have a guaranteed easy way to win, even if they are wrong.

What is next? Automatic murder convictions for anyone that owns a gun license, even if they don't own a gun, and no murder weapon can be produced?

[CWuestefeld]

Is it about justice at all when the rules of evidence get changed to say 'no evidence is needed' ???

-Carol Haynes (June 24, 2008, 02:00 PM)

Aargh. That's not what was said at all. The only one in the whole story who said "no evidence" was the stupid reporter who was trying to be sensational.

What they were saying was that the amount of circumstantial evidence they'd gathered ought to be sufficient. I agree to an extent: if the defendant can't say "actually, these circumstances aren't because I was doing X; I was really doing Y", then it the circumstances might be sufficiently damning.

Take as an example - I think you have slandered me and I get a lawyer to take you to court to claim damages. How would you defend yourself if the judge says I win my case unless you can prove that you have never said anything bad about me ?

-Carol Haynes (June 24, 2008, 02:00 PM)

Slander laws work counterintuitively, and are a bad example.

The burden of proof is on the party bringing suit: in a criminal trial that's the State; in a civil case such as slander, it's the plaintiff. In your hypothetical slander case, when you claim "Chris said that I wear army boots!", you must prove that my claim is false -- that you do not wear army boots. So here you must prove a negative, which is logically difficult, and this is why we don't see very many such cases.

BTW, Do you wear army boots? 

If he decides that a list alone is valid proof, then a list is no longer circumstantial evidence. It will be considered valid proof of distribution.

-app103 (June 24, 2008, 02:11 PM)

Aargh yet again.

I think that we're better off sticking to technical discussions, because it's clear that the understanding of law here is simple, and we're not all familiar with concepts like an affirmative defense (http://en.wikipedia..../Affirmative_defense).

It may be that the circumstantial evidence would be sufficient to convict (note that I say circumstantial, not "an absence of any evidence", contra Carol). Even so, it may be that an explanation of the circumstances (e.g., my ISP cuts off P2P traffic anyway, so I couldn't be sharing) constitutes a valid affirmative defense, so the defendant is found innocent anyway.


This whole argument is really the result of shoddy reporting. The so-called journalist (or his editor) made incorrect, sensationalist claims in the headline. This get everyone riled up, and since the article doesn't say anything about what the law says is a valid defense, we really don't know anything more than we did before reading the crappy article.

[app103]

The MPAA wants to be able to win any case in which a 16 year old boy is sharing a bunch of video files that show their names to be that of various Disney movies without downloading those files, analyzing them and providing those files as evidence. They want a screenshot of the list alone to be the only proof needed to get a conviction.

This means that a 16 year old boy who thought he was a smart one by renaming his porn collection to match Disney movies*, in order to hide them from his mom, will end up convicted for infringing on Disney's copyrights for distributing Disney movies, even though he has no Disney movies on his hard drive. He will not be able to prove they are not, were not, and never were Disney movies.

Do you see how this works now?

^{*We have all heard stories of people downloading Disney movies on P2P that turned out to be porn films. This is just one of many ways this ends up happening.}

[CWuestefeld]

They want a screenshot of the list alone to be the only proof needed to get a conviction.

-app103 (June 24, 2008, 02:50 PM)

Sigh. That's not what is going on. No on ever said anything about such a list being a trump card that can't be countered. I challenge you: show me one thing that says "the existence of a filename suggesting a copyrighted work shall be considered incontrovertible evidence of infringement, and no defense against this may be offered."

I agree that if a defendant can take the stand and state, under oath, what the alternative explanation for that list is, then it should suffice to counter the circumstantial evidence.

But (a) you seem to be taking the odd view, completely made from your own imagination so far as I can tell, that this one hypothetical list is to be ironclad irrefutable evidence; and (b) you seem to believe that trials work like Perry Mason, with everything hinging on a single piece of evidence, when in fact there are many other factors that are relevant even if all the evidence is unequivocally damning (e.g., standing and jurisdiction, off the top of my head).

I don't see that anyone has offered an answer to my earlier claim. If (and only if!) a defendant is unable to take the stand and explain his particular circumstance, why should the skin-deep evidence not be assumed to go deeper?

[Carol Haynes]

If you read the lawyers brief in full he does seem to be assuming that just having files and a P2P client is SUFFICIENT to PROVE distribution.

[CWuestefeld]

If you read the lawyers brief in full he does seem to be assuming that just having files and a P2P client is SUFFICIENT to PROVE distribution.

-Carol Haynes (June 24, 2008, 04:09 PM)

No. The lawyer says virtually nothing about proof. The only reference that I can see is the top of page 2, ""The only purpose for placing copyrighted works in the shared folder is, of course, to 'share' ".

The document is not about what constitutes proof. It's about what would constitute infringment (should that act be proven). The lawyer is asserting that the act of making a file available, whether or not it is actually downloaded, constitutes infringement. He does not in any way other than the oblique (and stupid) assertion on page 2 address what might constitute proof of making the file available.

In other words, the document says "if we could prove that the defendant made the file available, then that would constitute a violation of the plaintiff's copyright". That's it. You can certainly criticize this statement, but the author of the article is criticizing some other, made-up strawman of an assertion.

[jgpaiva]

  This discussion shows why millions are spent in courts with stuff that apparently seems so simple: Each person understands what they see in a different way than the next person...
Please, do continue, though.. I'm enjoying the talk

[J-Mac]

First, if the story is accurate at all this is a disgrace.  Some here say it is misreported - I don't know how that was determined.

But my big question is.......

Why is the MPAA going after a person for downloading "songs"??  I thought the RIAA did that and the MPAA went after movie downloaders.  Weird!

Jim

[J-Mac]

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.

-CWuestefeld (June 24, 2008, 11:45 AM)

I just commented on this in the previous post - I had missed this part of a post altogether.  But it IS a valid question.

Jim

[J-Mac]

I just read the brief and the MPAA attorney is indeed saying that making it available in a shared folder with a P2P application installed should be considered as evidence.  Sounds like they are wanting what is known as "circumstantial evidence" to be recognized as hard evidence. Which will never pass a constitutionality test, IMO.

And as for the arguments here about murderers and a presumption of guilt based only on intent & means, I think that is tragically flawed.

Jim