P2P Defendant: RIAA’s Own Downloads Can’t Prove Infringement
Keith Irwin, in a comment, points out that lawyers for RIAA lawsuit defendant Patricia Santangelo appear to be basing her defense in part on the theory I outlined in this post. I noted that it could be difficult for the RIAA to show infringement without proof that someone other than the RIAA had downloaded one of the songs in question. Irwin sends a link to an MTV News story quoting Santangelo’s attorney:
“As an exhibit in the complaint, they typed up a list of six songs that RIAA investigators downloaded from a shared account that was supposedly on my client’s computer,” Rogers said. “The complaint said those files were there for sharing, but they have no evidence that anyone did share them. For them to prove copyright infringement, they have to show that there was unauthorized distribution of a copyrighted file to the public. If they knew some 16-year-old who downloaded those songs from my client’s drive, that would be copyright infringement, but if their own investigators did it, it’s not distribution to the public. A copyright owner cannot infringe on their own copyright.”
I almost certainly wasn’t the first to think of it, but it’s nice to see other minds thinking alike. It will be interesting to see whether this theory works in the real world. Santangelo’s lawyers’ blog, including links to case documents, is here.
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So, they can’t show actual infringement without showing that a copy was made. I’m assuming that they can show onwership of the cd’s the music came from, so there’s not infringement that way. And I imagine evidence that these particular songs were downloaded from that particular computer doesn’t exist. That’s ingenious. I suppose a packet sniffer might show traffic, but would it show what the file was being transferred? What about contributory infringement, by making the songs available on a shared account? And will the judge go with this theory?
Comment by Zach — September 3, 2005 @ 11:57 am
Patricia Santangelo Speaks
A terrific interview with Patricia Santangelo, the mom who is standing up to the RIAA in court after being accused of copyright intringement through filesharing. Also worth the read: a post by Joe Gratz on strategy in the case: P2P…
Trackback by Copyfight — September 6, 2005 @ 9:18 am
You’re not the first to think of it since it was used in the following cases (from defendants reply):
U.S. Naval Institute v. Charter Communications, Inc., 936 F.2d 692, 695 (2d Cir. 1991) and RSO Records v. Peri, 79 Civ. 5098, 1980 WL 1164 at *3 (S.D.N.Y. Sep. 5, 1980) etc.
I’m sure it would be illegal to use a packet sniffer (wiretap law?) even if the ISP allowed them to.
Also, if they had proof that someone else downloaded the file from you (not sure how they’d get this, but suppose they did) wouldn’t they need to also show that this person didn’t own the music on a CD or tape?
It would be good if someone else stands up to the RIAA, where they were the actual file sharer. If it was me I would argue that I owned all the music anyway. (If they need proof I’ll just buy a CD of whatever they ask for.)
Emil
Comment by Emil — September 6, 2005 @ 1:44 pm
Sorry to post again, not meaning to troll or anything, just thinking about defences (to downloading not sharing)
1. I already owned the music on CD. (surely downloading in this case is ok, as you’re allowed to rip CDs.)
2. I already owned the music on cassette. (is this different since you’re downloading higher quality audio?)
3. I listened to half of the track on the radio so I downloaded the song to listen to the rest.
4. fair use. (copy for personal use, is lower quality than CD)
Just wondering if any of these have been tested, i guess not but just wondering. Personally I would like to see non-profit sharing of music and video in binary form to be ruled fair use.
Emil
Comment by Emil — September 6, 2005 @ 1:50 pm
While I agree that the RIAA is the Vice-Anitchrist (to Messr. Rove of course), isn’t the ‘can’t infringe their own copywrite’ argument a bit, well, formalistic. The RIAA can’t show that the files are available for download by downloading them themselves? Also, is relying on legal-weenie arguments really the way ‘fair use’ people want to go? It smacks slightly of desperation to this amateur observer…
Comment by Pooh — October 5, 2005 @ 1:25 pm