Acid-Lounge.com

MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits
By David Kravets EmailJune 20, 2008

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.

"Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances," MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

"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; understandably, copyright infringers typically do not keep records of infringement," van Uitert wrote on behalf of the movie studios, a position shared with the Recording Industry Association of America, which sued Thomas, the single mother of two.

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.

2. CD swap out. In some P2P applications, you can share files right off of a CD, 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.

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 this before with a text file with 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. All of the files I appeared to be sharing were just individual lines in a text file and not real files.

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 japanese title) 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.

On the heels of the RIAA's recent decision to criminalize consumers who rip songs from albums they've purchased to their computers (or iPods), the association has now gone one step further and declared that "remembering songs" using your brain is criminal copyright infringement. "The brain is a recording device," explained RIAA president Cary Sherman. "The act of listening is an unauthorized act of copying music to that recording device, and the act of recalling or remembering a song is unauthorized playback."

The RIAA also said it would begin sending letters to tens of millions of consumers thought to be illegally remembering songs, threatening them with lawsuits if they don't settle with the RIAA by paying monetary damages. "We will aggressively pursue all copyright infringement in order to protect our industry," said Sherman.

In order to avoid engaging in unauthorized copyright infringement, consumers will now be required to immediately forget everything they've just heard -- a skill already mastered by U.S. President George Bush. To aid in these memory wiping efforts, the RIAA is teaming up with Big Pharma to include free psychotropic prescription drugs with the purchase of new music albums. Consumers are advised to swallow the pills before listening to the music. The pills -- similar to the amphetamines now prescribed for ADHD -- block normal cognitive function, allowing consumers to enjoy the music in a more detached state without the risk of accidentally remembering any songs (and thereby violating copyright law).

Consumers caught humming their favorite songs will be charged with a more serious crime: The public performance of a copyrighted song, for which the fines can reach over $250,000 per incident. "Humming, singing and whistling songs will not be tolerated," said Sherman. "Only listening and forgetting songs is allowed."