Journalism, or irresponsible rumour-mongering?

TechCrunch, one of the Web’s top tech blogs, sparked a firestorm of criticism with a recent story about — the popular music-sharing network that CBS acquired last year — by reporting that the service had turned over a pile of user information to the Recording Industry Association of America. The story turned out not to be true, and co-founder Richard Jones responded with a blistering denial, in which he said that TechCrunch was “full of shit.” Plenty of people on Twitter and elsewhere have been using the piece as a stick with which to beat TechCrunch, arguing that the report was irresponsible and the blog has lost all (or most) of its credibility as a result, etc. (some good perspective from MG Siegler here).

Pretty open and shut, right? After all, Erick Schonfeld relied on an unidentified and third-hand source (someone with a friend at CBS, who said they were upset by the handing over of data). The more I thought about this story, however, the less comfortable I felt joining the crowd with torches and pitchforks outside TechCrunch’s door. Was the story clearly wrong? Yes. How closely did Erick check the source? We don’t know. But what we do know is that Erick tried repeatedly to get a comment from the company, and got a one-liner dismissal (which he included).

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RIAA switches to “three strikes” approach

The Recording Industry Association of America, which has spent the past five years suing tens of thousands of individual file-sharers for copyright infringement, has apparently decided to change tactics, according to a report in the Wall Street Journal (hopefully this one is a little more reliable than the recent story about Google’s views on net neutrality). The good news is that they are going to stop suing 13-year-olds and retired war veterans and single mothers for downloading music. The bad news is that their new plan involves cutting sneaky backroom deals with Internet service providers to take a so-called “three strikes” approach: They let the ISP know when they think you’ve been sharing copyrighted material, and the provider agrees to send you an email warning; the second time, you get a letter; do it again and your Internet access gets cut off.

(read the rest of this post at GigaOm)

This is big: Judge orders new RIAA trial

In a decision that could have far-reaching implications for future lawsuits by the record industry involving peer-to-peer networks, the judge who was hearing the Jammie Thomas case has thrown out the decision in that case, effectively declaring a mistrial, saying he now believes he was wrong to have instructed the jury that simply “making available” copyrighted files was enough to find Thomas guilty of copyright infringement. In the original case, the judge said that it was not necessary to show that anyone had actually download the files, but he now believes that this was wrong, and that actual distribution must be shown, not just that the files were available:

The Court’s examination of the use of the term “distribution” in other provisions of the Copyright Act, as well as the evolution of liability for offers to sell in the analogous Patent Act, lead to the conclusion that the plain meaning of the term “distribution” does not including making available and, instead, requires actual dissemination.

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When all else fails, declare victory

Remember that lawsuit the RIAA launched against the Russian file-sharing site AllofMp3 awhile back? And remember how the site shut down, and then started up again under another name (Mp3Sparks) with the same look and all the same millions of music files? And remember how the Russian courts found the company not guilty of all charges (at least according to Russian copyright law)? Well, Torrentfreak says the RIAA has responded to all of that — by declaring victory.

The music industry and “making available”

I know I’m kind of late with this one — a day or two being almost an eternity in the blogosphere — but I wanted to take note of the recent decision by a U.S. District Court judge in one of the RIAA’s high-profile copyright cases. the Atlantic v. Howell case involves a husband and wife and about 4,000 music files. The RIAA’s argument last year — an argument that was initially accepted by the court — was that even though the agency couldn’t prove anyone actually downloaded copies of the music from the Howell’s PC (other than a company working for the RIAA), the simple fact that their files were kept in a “shared” folder available to the Kazaa P2P software was enough to breach the law.

That decision was struck down this week, however: Judge Wake of the District Court of Arizona ruled that while section 106 (3) of the U.S. Copyright Act gives the owner of copyrighted works the exclusive right to “distribute copies” of those works, the law doesn’t define the term “distribute,” and so the courts have had to do so. The general rule, Judge Wake said in his decision, was that “infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.” The decision (PDF link) goes on to quote copyright experts William Patry (“without actual distribution of copies of the [work], there is no violation of the distribution right”) and William Goldstein (“an actual transfer must take place; a mere offer for sale will not infringe the right”).

The court also rejected the RIAA’s motion on another point: the agency argued that the Howells were guilty of primary copyright infringement for sharing the music through Kazaa — but the court decision said that even if someone had downloaded a copy of the music from them, because of the way that a peer-to-peer network functions, that would still only be a case of secondary copyright infringement, since the downloader would not be taking the Howells’ file, but merely making a copy of their copy.

The decision ends with this statement: “The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights. Even so, it is not the position of this court to respond to new technological innovations by expanding the protections received by copyright holders beyond those found in the Copyright Act.” The decision doesn’t mean the Howell case is over, however — it now proceeds to a regular trial. The RIAA had been pushing for what’s called “summary judgment,” which is a much faster process.

The U.S. decision is very similar to one that Canadian judge Konrad von Finckenstein (now the head of the CRTC, the federal broadcast regulator) delivered in 2004 when he was a judge with the Federal Court, in a case involving the CRIA’s attempt to get the names of file-sharers in Canada. In addition to accepting an earlier Copyright Board opinion that downloading was effectively permitted by Canada’s “private copying levy,” the judge ruled that simply putting files in a shared folder did not constitute evidence of infringement.