The dirty little secret behind music file-sharing suits
The music industry has found an amazing formula for making money from file-sharing, the Louisville Courier-Journal reports: Threaten parents with lawsuits over their children's music downloads. But is the practice legal? No one knows. A spokeswoman for the Recording Industry Association of America tells the newspaper that it has never actually gone to trial, because the targets of its lawsuits usually settle.
The RIAA would have a tough time making its charges stick in a court of law, says attorney Ray Beckerman on his blog, because of the process by which it identifies so-called downloaders. "No investigation is made to ascertain that the defendant is actually someone who engaged in peer to peer file sharing of copyrighted music without authorization," notes Beckerman, and "defendants have included people who have never even used a computer." That may sound kind of wild, but it's true: The record labels get traffic records from Internet service providers and attempt to match up people with Internet addresses, in a notoriously unreliable process. All the same, targets of the RIAA lawsuits readily pay thousands of dollars in damage because they feel they can't afford a lawyer to contest the charges. Another reason the RIAA has never actually had to defend its practices at trial since it's so willing to drop a case at the first sign of a legal challenge. But for anyone worried about becoming an RIAA target, Techdirt notes an easy out: Since the lawsuits identify Internet connections, not people, a simple way to avoid charges is to create a Wi-Fi network that's open to anyone. The record labels won't be able to prove that it wasn't some perfect stranger using your wireless Internet connection who downloaded those files. You're still liable.
A better defense would be to argue that your computer has been infected with trojan malware.
Internet providers often state in their terms and conditions that using their network for such activities is illegal and will result in your account being closed. By allowing anyone to access your broadband connection via an open wifi connection means that you allowing anyone to use your connection for whatever purpose they choose to use it for. You don't even have the defense that you've asked anonymous users to refrain from illegal activity, in fact you could be said to have deliberately aided such activity by providing them proxy access, via your connection, to the internet. However having claiming to have had trojan malware infecting your computer - for which you have now bought uptodate antivirus and antispyware software that has conveniently removed evidence of such malware - you are saying that your computer's internet connection was illegally hijacked, and that by removing the malware you acted in a responsible manner by preventing further illegal activity. The RIAA would not be able to prove your computer was not infected in such a way, and because such infection are common place, with entire networks of home owner's computers used for everything from spam distribution to hiding the activities of hackers or downloaders, your defense is plausible. As a defendant you are not legally obliged to prove you were infected, the RIAA would have to prove you weren't. Victims of such exploits go months or even years without becoming aware of these infections, and with the use of root kits and other tactics that make it difficult (sometimes impossible) for antivirus or antispyware software to remove an infection, even computer professionals can become victims of malware. What is your point? Why are you telling people how to avoid getting caught for stealing music? Got any suggestions for shoplifting without getting caught? Did you work at Enron?
The digital millinium act gutted fair use for us citizens sue the us gov. thanks bill clinton!
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