Tuesday, 1 April 2008

Downloading infringements

“How is a BitTorrent downloader an infringer?”

Take the simple (?) case of music files (where most case law lies). Access to the copyright material without license is illegal in itself. It is analogous to receiving stolen property. Receiving stolen intellectual property is no different. A simple example is friend-net. This is where a friend burns a cd and hands it to you. This is still illegal for both parties (being caught is another issue).

You “may” have a defence if you can validly prove (and this is for you to prove) that you where under the belief that the file was for public distribution. Being in the IT security field, any such claim for credit card details, banking info etc has about a snowflakes chance in hell.

RIAA for instance has determined that it is effective to charge the downloaders. You do not get access to all files on a P2P network. You have to select access and as such you make the decision to access the file.

“So far, the *AAs have only targeted sharing not downloading.”
Actually there have been over 100 suits filed for this. So the truth is that downloaders are also targeted.

Making files available for download = distribution. The case, Elektra v. Perez (Elektra v. Perez, D. Or. 6:05-cv-00931-AA) set this into US law.

In a copyright infringement case, the plaintiff needs to both:

  • demonstrate ownership of the material,
  • and show that the party accused of infringement "violated at least one exclusive right granted to copyright holders under 17 U.S.C. § 106."

It was determined in Elektra v. Perez that the making available of a file for download fulfills the second requirement.

"[P]laintiffs' Amended Complaint refers to 'Exhibit B' attached to the complaint, which allegedly represents music files being shared by user 'perez@KaZaA' at the time plaintiffs' investigator conducted the investigation... I find that Exhibit B, in the context of the allegations in the Complaint, supports plaintiffs' allegation that defendant made copyrighted materials available for distribution. In sum, plaintiffs' amended complaint alleges the necessary elements of a copyright infringement action pursuant to the Copyright Act"

For a selection of cases see the following cases:

Andersen v. Atlantic (Oregon)
Arista v. Does 1-9 (Denver, CO)
Arista v. Does 1-9 (Columbus, OH)
Arista v. Does 1-11 (Cleveland) (Cleveland, OH)
Arista v. Does 1-11 (Oklahoma City) (Oklahoma City, OK)
Arista v. Does 1-15 (Columbus, OH)
Arista v. Does 1-17 (Portland, OR)
Arista v. Does 1-19 (District of Columbia)
Arista v. Does 1-21 (D. Mass.)
Arista v. Does 1-22 (Providence, RI)
Arista v. Does 1-27 (Portland, ME)
Arista v. Does 1-34 (Raleigh, NC)
Arista v. Finkelstein (Brooklyn, NY)
Arista v. Greubel (Fort Worth, TX)
Arista v. LimeWire (New York, NY)(RIAA case against LimeWire)
Arista v. Tschirhart (San Antonio, TX)
Arista v. Usenet (New York, NY)
Atlantic v. Andersen(Portland, OR)
Atlantic v. Anderson (Houston, TX)
Atlantic v. Boggs (Corpus Christi, Texas)
Atlantic v. Brennan (New Haven, CT)
Atlantic v. Dangler (Rochester, NY)
Atlantic v. DeMassi (Houston, TX)
Atlantic v. Does 1-25(New York, NY)
Atlantic v. Howell (Arizona)(pro se)
Atlantic v. Huggins(Brooklyn, NY)
Atlantic v. Lenentine (Portland, ME)
Atlantic v. Myers (Jackson, MS)
Atlantic v. Njuguna (Charleston, SC)
Atlantic v. Serrano (San Diego, CA)
Atlantic v. Shutovsky (New York, NY)
Atlantic v. Zuleta (Atlanta, GA)
BMG v. Conklin (Pro se case in Houston, TX)
BMG v. Doe (Canada)
BMG v. Does (E. D. Pa. CV 04-650)
BMG v. Gonzalez (USCA 7th Cir.)
BMG v. Thao (Chicago, IL)
Capitol v. Does 1-16 (D. New Mexico)
Capitol v. Fanguiaire (Boston, MA)
Capitol v. Foster (Oklahoma)
Capitol v. Frye (Winston Salem, NC)
Capitol v. Laude (Portland, ME)
Capitol v. Sitaras (Brooklyn, NY)
Capitol v. Thomas (formerly Virgin v. Thomas)(Duluth, MN)
Capitol v. Weed (Phoenix, AZ)
Elektra v. Barker (New York, NY)
Elektra v. Dennis (Jackson, MS)
Elektra v. Does 1-9
Elektra v. Harless (Detroit, MI)
Elektra v. Licata, Cincinnati, OH
Elektra v. McCall (Minnesota)
Elektra v. McDowell (Columbus, GA)
Elektra v. O'Brien (C.D. CA)
Elektra v. Perez (Oregon)
Elektra v. Santangelo (White Plains, NY)
Elektra v. Santangelo II (White Plains, NY)
Elektra v. Schwartz (Brooklyn, NY)
Elektra v. Torres (Brooklyn, NY)
Elektra v. Werry (Providence, Rhode Island)
Elektra v. Wilke (Chicago, IL)
Fonovisa v. Alvarez (Abilene, TX)
Fonovisa v. Does 1-41 (Austin, TX)
Foundation v. UPC Nederland (Netherlands, District Court of Utrecht)
Greenbaum v. Google (New York, NY)
Interscope v. Does (New York, NY)
Interscope v. Does 1-7 (Newport News, VA)
Interscope v. Does 1-40 (Tampa FL)
Interscope v. Duty (Arizona)
Interscope v. Kimmel (NDNY Binghamton Divis.)
Interscope v. Korb (Charleston, SC)
Interscope v. Leadbetter (Seattle, WA)
Interscope v. Rodriguez (San Diego, CA)
LaFace v. Does 1-5 (Kalamazoo, MI, and Marquette, MI)
LaFace v. Does 1-38 (Raleigh, NC)
Lava v. Amurao (White Plains, NY)
Lewan v. Sharman (Chicago, IL)(class action, Kazaa)
Loud v. Does (New York, NY)
Loud v. Sanchez (Tucson, AZ)
Maverick v. Becker (Brooklyn, NY)
Maverick v. Chowdhury (Brooklyn, NY)
Maverick v. Goldshteyn (Brooklyn, NY)
MGM v. Grokster (C.D. California)
Motown v. DePietro (Pro Se Case) (Philadelphia, PA)
Motown v. Does 1-99 (New York, NY)
Motown v. Liggins (M.D. Alabama)
Motown v. Lisberg, (Los Angeles, CA
Motown v. Nelson (Detroit, MI)
Priority v. Beer (Columbus, GA)
Priority v. Chan (Detroit, MI)
Priority v. Chan II (Detroit, MI)
Priority v. Vines (Indianapolis, IN)
SONY v. Arellanes (Sherman, TX)
SONY v. Crain (Beaumont, TX)
SONY v. DeMaria (Charleston, SC)
SONY v. Does 1-5 (Los Angeles, CA)
SONY v. Does 1-10 (Fresno, CA)
SONY v. Does 1-40(New York, NY) SDNY 04cv473
SONY v. Merchant (California)
SONY V. Reese (Houston, TX)
SONY v. Scimeca (Newark, NJ)
UMG v. Del Cid (Tampa, FL)
UMG v. Guin (Brooklyn, NY)
UMG v. Heard (Birmingham, Alabama)
UMG v. Hernandez (Brooklyn, NY)
UMG v. Hightower (Houston, TX)
UMG v. Hummer Winblad (San Francisco, CA)
UMG v. Landau (Utica, NY)
UMG v. Lindor (Brooklyn, NY)
Universal v. Hogan (San Diego, CA)(MPAA case)
Virgin v. Does 1-33 (Knoxville, TN)
Virgin v. Marson (Central Dist. California, Western Divis.)
Virgin v. Morgan (Pensacola, FL)
Virgin v. Thomas (Duluth, MN)
Virgin v. Thompson (W.D. TX)
Warner v. Attal (Brooklyn, NY)
Warner v. Cassin (White Plains, NY)
Warner v. DeWitt (N.D. Ill. Eastern Div.)
Warner v. Does 1-149 (New York, NY)
Warner v. Lewis (Lafayette, LA)
Warner v. Maravilla (C.D. California)
Warner v. Paladuk (E. D. Michigan)
Warner v. Payne (Waco, TX)
Warner v. Pidgeon (E. D. Michigan, Southern Div.)
Warner v. Scantlebury E.D. Michigan, Southern Division)
Warner v. Stubbs (Oklahoma City, OK)

An up to date list is maintained by Ray Beckerson.

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