On Tuesday, in a lengthy telephone interview with Threat Level, two of the leading lawyers for the Motion Picture Association of America defined the Copyright Act as it applies to peer-to-peer file sharing networks: No actual transfer of the work is required, they said.
"You don't have to prove actual distribution. You need to prove there's works in the share folder, and that is distribution," said Joseph Geisman, MPAA's chief intellectual property attorney, as he described the so-called "making available" concept.
The discussion centered on a Threat Level story posted Friday explaining the MPAA's position about what is necessary to prove copyright infringement via peer-to-peer -- a story that was widely distributed throughout the blogosphere and parts of which were disputed by the MPAA.
The attorneys said the text of the story about the "making available" argument was accurate, but they thought the headline and the first paragraph were inaccurate.
The attorneys were Greg Goeckner, the MPAA's general counsel, and Geisman.
We had a cordial, and highly academic back-and-forth about a legal concept that stands at the heart of the file sharing world: Is merely making available music, or other copyrighted works, on a peer-to-peer network unauthorized distribution under the Copyright Act, subject to a maximum $150,000 fine for each work?
The MPAA answered that question with an emphatic yes on Tuesday and did so on Friday in a lengthy brief submitted on behalf of the Recording Industry Association of America's lawsuit against Jammie Thomas.
In October, a Duluth, Minnesota, jury dinged Thomas $222,000 for unlawfully distributing 24 copyrighted songs via the Kazaa file sharing network, in what was the nation's first and only file sharing case to go to a jury. (The RIAA has sued more than 20,000 individuals for making copyrighted music available on Kazaa, Limewire and other networks. Most defendants have settled out of court for a few thousand dollars.)
The federal judge in the Thomas case instructed the jury that the recording industry did not have to prove anybody else downloaded the songs from Thomas' share folder. (It's impossible, by the way, to prove members of the public on peer-to-peer networks have actually copied music from somebody else's share folder.)
During the Thomas trial, U.S. District Judge Michael Davis instructed jurors they could find unauthorized distribution -- copyright infringement -- if Thomas was "making available" the copyrighted works over a peer-to-peer network. The jury decided her liability in five minutes.
On Friday, the MPAA weighed in the case after judge Davis, having second thoughts on that jury instruction, invited comments from the public at large ahead of an August hearing, at which time he will consider ordering a mistrial.
The MPAA and RIAA say piracy costs them billions of dollars in lost revenue each year.
"What we're saying, by having a copy of a copyrighted work in a shared folder, you are distributing it under the copyright law," Goeckner said during the interview.
Threat Level reported that assertion on Friday. The two lawyers were unhappy with the headline, which read: "MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits."
The MPAA attorneys also did not like what in journalism jargon is called the "lede," the first paragraph of our Friday post: "The Motion Picture Association of America said Friday intellectual-property holders should have the right to collect damages, perhaps as much as $150,000 per copyright violation, without having to prove infringement."
In defense to such alleged egregiousness, Threat Level quoted directly from the MPAA's brief, which backed the "making available" argument:
"It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise…."
We naturally thought, by reading the brief, the MPAA meant no proof was required. But the lawyers, during our discussion, pointed out that "indirect proof" is necessary.
The MPAA's lawyers said the argument rests on how one defines distribution in the copyright context.
"It is a distribution by putting works in a shared folder. You can deem that copies are being made. That goes for the indirect proof," Geisman said. "Having it in a shared folder is indirect proof of actual copying of another user."
"In our view," he added, "you don't have to actually show copying happening in order to prove distribution."
A host of digital rights groups, including the Electronic Frontier Foundation and a group of professors, labeled such an assertion as attempted copyright infringement, not covered under the Copyright Act. They claim infringement occurs only when there is actual proof of distribution -- that somebody else made downloads of a defendant's share folder.
The MPAA counters, saying that was never Congress' intent.
"If the other side is right," Goeckner said, "it's kind of open season on copyrighted works on the internet."
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