[Infowarrior] - MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits

[Richard Forno]

What a crock......rf

MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits
By David Kravets EmailJune 20, 2008 | 3:24:09 PMCategories: RIAA  
Litigation

http://blog.wired.com/27bstroke6/2008/06/mpaa-says-no-pr.html

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.

A Duluth, Minnesota, jury in October dinged Thomas $222,000 for  
"making available" 24 songs on the Kazaa network in the nation's first  
and only RIAA case to go to trial. United States District Court Judge  
Michael Davis instructed the 12 panelists that they need only find  
Thomas had an open share folder, not that anyone from the public  
actually copied her files.

(It is technologically infeasible to determine whether the public is  
copying an open share folder, although the RIAA makes its own  
downloads from defendants' share folders, produces screen shots and,  
among other things, captures an IP address. An Arizona judge ruled  
last month in a different case that those downloads count against a  
defendant, a one-of-a-kind decision being appealed on grounds that the  
RIAA was authorized to download its own music.)

Judge Davis suggested last month that he might have erred in giving  
that "making available" jury instruction, and invited briefing from  
the community at large. A hearing is set for August, and the judge is  
mulling whether to order a mistrial.

The deadline to submit briefs to the judge was Friday. Among the  
briefs, the Electronic Frontier Foundation, Public Knowledge, the  
United States Internet Industry Association and the Computer and  
Communications Industry Association all jointly filed a brief, saying  
the law did not allow damages for "attempted" copyright infringement.

"Given the serious consequences that flow from copyright’s strict  
liability regime, the court should resist plaintiffs imprecations to  
expand that regime absent an unequivocal expression of Congressional  
intent," the groups wrote, noting that the language in the Copyright  
Act demands actual distribution to the public of protected works.

It was a similar brief in tone to the one that a group of 10  
intellectual property scholars lodged earlier in the week.

But the MPAA, long an ally to the RIAA, which has sued more than  
20,000 individuals for file sharing of copyrighted music, told Judge  
Davis that peer-to-peer users automatically should be liable for  
infringement.

"The only purpose for placing copyrighted works in the shared folder  
is, of course, to 'share,' by making those works available to  
countless other P2P networks," the MPAA wrote.

(Click here for Threat Level's in-depth look at the Thomas case, its  
implications and Judge Davis' decision to rethink his jury instruction.)

Other groups meeting Davis' deadline include the Intellectual Property  
Institute at William Mitchell College of Law and the Progress &  
Freedom Foundation.