The Legal Aspect Of File-Sharing
 

There is a raging debate over the legal aspects of file-sharing. I hope to spread some light on this issue.

I am starting this thread because I've been asked this question quite often.

A. The Concept Of File-sharing in itself is NOT illegal.

B. Contrary to Popular Belief (downloading certain material unfortunately is stealing-based-on-the-law) - I'll attempt to explain the controversy.

b1. Stealing means to take the property of another without permission. So the argument goes: (if x -->y and y-->z)

If x owns/produces a product and sells it to y and y in turn shares-it with z (did z commit theft?)

The answer is a matter of perspective:
z did not commit an act of theft against y (this is where most people stop in their arguments)

BUT z did commit an act of theft against x (by law because z did not obtain permission from x to acquire the product and or resource).

Now y did not commit theft but did infringe on the rights of x because when y purchased a product from x one of the conditions of that sale was to abide by the conditions of using the product those rights are clearly spelled out in the fine print on most material.

If you go to court this is what's going to be at issue, so the judge does not care about how you perceived this agreement and the issue will be decided on the fact presented.

C. What about fair use?

Again the consumers rights are explained in legal verbage of the material. However people are not getting in trouble for using their products fairly they are getting in trouble for violating the terms of the agreements they made when purchasing certain digital media.

Nobody has gone to jail for converting their media to another format (MP3/AVI etc) for their personal use. (however this can sometimes be a violation of an agreement (read the fine print.))

What has drawn attention to this issue is that people take those digital copies and share them in a public place (the Internet) where people (anonymous users) can obtain this material. This issue would not exist if people did not do this.

Finally, there is a process for obtaining permission for certain types of additional uses.

hope this helps

http://www.leeware.com

Informative....
 

Thanks LeeWare... for taking the time to offer such a well written, informative clarification!

It was an interesting read on this very touchy subject. ;)

Re: Informative....
 

Your welcome...I'm glad you enjoyed it. I hope that others find it useful as well.

LeeWare, I have a couple of issues with this summary. The first is your use of the term "theft." It's an inaccurate word, and it's only used because that's the term that the RIAA keeps using over and over to try to alter the debate about copyrights. It's an inaccurate word, and using it plays right into the hands of the RIAA.

The basic problem with the word is that when I steal something the person that I stole from no longer has that item. The term that should be used is copyright infringement. If I download a copyrighted song using LimeWire, I have infringed on that songwriters/performers/record companys right to that song. I have not stolen that song from them, because you can't "steal" a song.

This may seem trivial, but it really does affect the debate. Anybody can say "stealing is wrong" and it's impossible to say that they are wrong. On the other hand copyrights have always been a balance between content producers and content users. When the balance has been upset and skewed towards content producers (and the recording companys that make money from them) then is copyright infringement is wrong (even if you call it stealing)?

For instance, the RIAA has argued in the past that it is infringement to copy a CD and give it to a friend (this was about two years ago, they've since abandoned this insane arguement) If they call it stealing and call me a thief then how am I supposed to defend myself. I'm left trying to say that some stealing is okay, which is a bad position to take. Instead, we have to challenge the RIAA's choice of words. If the RIAA wants to argue that copying CD's to mp3 players is wrong, that's fine, but at least call it what it is, copyright infringement, and then work to change the laws to strengthen the consumers right to use copyrighted materials.

-CM

Clarification of Terms
 

Technically they are using the word appropriately in respect to the laws protecting their
products and the context in which it is used.

Now, what I think people tend to react to is the connotations of the word "theft" (The set of associations implied by a word in addition to its literal meaning.)

(Stealing means to take the property of another without (permission).


"The basic problem with the word is that when I steal something the person that I stole from no longer has that item. The term that should be used is copyright infringement."

Again, for the record (pay attention)

If x owns/produces a product and sells it to y and y in turn shares-it with z (did z commit theft?)

The answer is a matter of perspective:

z did not commit an act of theft against y (!!!this is where most people stop in their arguments!!!)

BUT z did commit an act of theft against x (Important---->by law because z did not obtain permission from x to acquire the product and or resource).

Now y did not commit theft but did infringe on the rights of x because when y purchased a product from x one of the conditions of that sale was to abide by the conditions of using the product those rights are clearly spelled out in the fine print on most material.

If you go to court this is what's going to be at issue, so the judge does not care about how you perceived this agreement and the issue will be decided on the fact presented.

Perhaps I confused some people with all of the (x y & z associations so here we go.)

I loan my car to a friend (Larry) for (his exclusive use.)
My friend (Larry) loans my car to his girl friend (Jane).
She (Jane) gets stopped by the police, I'm notified that this person is driving my car (Can I press charges? Can I make the charges stick?) = yes and yes.

Why?

Fact: Jane did not steal the car from Larry.
Fact: Jane did not receive my permission to drive my car. (This action technically constitutes theft regardless of the intent)
Fact: Larry did not steal my car BUT he did violate an agreement we had.

I promise you that I can win this case hands down in a court of law any day.

What I think people are reacting to subconsciously is this:

The death of the free-Internet has been disappearing since the early 1990s, this is when commercialization by businesses began to take root. This was the best and the worse thing that ever happened to the Internet -- it was the best thing -- because it brought the Internet to millions. It was the worse thing--because using the Internet is now largely a commercial endeavor. With the focus shifting from How can we use this (the Internet.) to save money to how can we use the Internet to make money. The formula being:


The Formula:

{

1. Develop a service.

2. Push it as a more cost-effective business model to traditional method of doing business
or free (the intention here is to create a need.)

3. When the subscriptions are high begin charging small fees (to avoid mass-flight.)

4. Acquire a solid legal foundation to protect your model. (This step most effectively eliminates anyone who might threaten your model.)

5. Raise rates of providing the service due to increased cost of providing consumers with the convenience. (see number 2. for irony.)

6. Find things that people are largely interested in and begin at 1. = develop a service

}


Hope this helps to clarify things.

http://www.leeware.com

actually, leeware, this is the definition of theft, from dictionary.com :

---
\Theft\, n. [OE. thefte, AS. [thorn]i['e]f[eth]e, [thorn][=y]f[eth]e, [thorn]e['o]f[eth]e. See Thief.] 1. (Law) The act of stealing; specifically, the felonious taking and removing of personal property, with an intent to deprive the rightful owner of the same; larceny.

Note: To constitute theft there must be a taking without the owner's consent, and it must be unlawful or felonious; every part of the property stolen must be removed, however slightly, from its former position; and it must be, at least momentarily, in the complete possession of the thief. See Larceny, and the Note under Robbery.
---

note that theft requires "every part of the property stolen must be removed." when a song (or anything else that has a copyright) is copied, nothing is removed, it is simply duplicated. that is why copyrights exist: to prevent unauthorized duplication.

people cannot steal or thieve a copyrighted piece unless they physically remove the media from the store it's being sold at, which is a crime in the sense that you're depriving the store of its ability to sell something it purchased.

the digitalization of media has simply enabled people to spread information without having to worry about the initial creation being depleted. it's a way of providing never-ending resources.

copyrights are artificial limits on resources, a way of maintaining a capitalistic view on resources, where the ruling class can limit what the peasants can use. now, this is done under the auspices of 'allowing greater innovation and invention', but this use is patently absurd in the current context of copyrights.

no one is stealing when they are copying. to say that someone is stealing is insane, because they are actually creating. to use a quote i once heard somewhere, "if i have an apple and you have an apple, and we exchange apples, we each have one apple. if i have an idea and you have an idea, and we exchange ideas, we each have two ideas." this is the same with digital media, we can copy the apple so we both have two apples -- no one is losing.

the RIAA and associates are simply using a business model that cannot survive in the current world. they need to use true innovation and invention to come up with a better plan, instead of simply trying to change the definition of words and make everyone thieves.

in 1991 the Supreme Court ruled, in Feist vs Rural Telephone Co., that collections of facts cannot be copyrighted. now how is it that collections of facts, such as a definitive proof that 'using X will achieve Y in the fastest possible way' can now be copyrighted so that people can be put in jail for using that fact without permission from the copyright holder? through a *******ization of law -- allowing loopholes for those that show 'business models depend on it'.

it's as if we're allowing companies and theories to take on the importance of an actual life. killing a business model or using a theory without consent has taken the same kind of ire as killing a person or enslaving an individual. why can't the distinction be seen anymore?

just my thoughts. feel free to copy, theorize on, mutate, individualize, or do whatever you want with them. i won't sue you.

Further Clarifications
 

http://www.dictionary.com search term = theft


theft

\Theft\, n. [OE. thefte, AS. [thorn]i['e]f[eth]e, [thorn][=y]f[eth]e, [thorn]e['o]f[eth]e. See Thief.] 1. (Law) The act of stealing; specifically, the felonious taking and removing of personal property, with an intent to deprive the rightful owner of the same; larceny.

Technically accurate but you left out the parts highlighted by my original comments.

You can argue the remaining aspects of the notes however I'm sure many of these cases are decided on the the first to conditions being true.

Note: ((To constitute theft there must be a taking without the owner's consent, and it must be unlawful or felonious;)) every part of the property stolen must be removed, however slightly, from its former position; and it must be, at least momentarily, in the complete possession of the thief. See Larceny, and the Note under Robbery.

Hope this helps.

yes, leeware -- but the entire definition must be fulfilled, not simply a part of it.

a square is not a square if the polygon just has 4 sides. all 4 of the sides must also be of equal length.

in the same sense, someone is not stealing when a felony is commited. to fulfill the definition of theft, the original property must be removed.

Exactly My Point
 

That's exactly my point! You see the owner of the property gets to make the call in conjuction with the laws.

For example, if every night after I park my car on a public street someone comes and takes my car and drives it around and when they finish they bring it back and park it where I left it.

Then based on your suggestion that every aspect of theft must be fulfilled. (When I go to get my car, it's there and there is not any physical damage then your suggesting that this does not constitute an act of theft?)

Now,

what if I'm aware of this nightly activity and I call the police and inform them that someone is taking my car every night.

The person gets busted with my car.

I cry theft = I did not give my permission for them to use my car.

The guys lawyer argues:

1. It (the car) was there every morning when I needed to use it.
2. They didn't damage it.
3. They were going to bring it back.

The judge scratches his head and says...well based on the facts presented in this case, I don't see where you were wronged. The court has decided to ignore your claim of theft because technically they did'nt steal your car they just used it and you didn't suffer any consequences as a result of this so called "unauthorized use" so have a nice day!

I only wish it was that simple -- and I'm sure the people who have ended up in court over this issue probably wished the same thing.

All propaganda aside--

There are several industries who are having problems with their traditional business models and they are looking for ways to survive.

These types of issues can be discussed passionately between peers such as ourselves. However the real battles are taking place in courtrooms. All though people might not like it. These industries did their homework and they do have valid legal protection for their products and anyone who thinks otherwise is wasting his or her time throwing stones at an iron tank.

Re: Exactly My Point
 

I don't think it qualifies as "theft" under that theory. It would mean that the person stealing your car nightly wasn't taking your car but making a copy of it and driving it around. If the police came over to investigate your car would still be there and the "thief" would be driving a copy.
Which is where the problem comes in right?

It's not so much stealling property but intellectual property. That's what business (and consequently lawyers) have issue with.

That's also what my ISP sent me an email about this morning stating that they would suspend my service if I didn't stop giving away Tony Hawk N64 ROM's.