Possible Do-Over For Infringement Suit

Remember the Minnesota woman who was ordered to pay $222,000 in damages in the nation’s first P2P copyright infringement trial? The judge in that trial says he might have made a mistake that could lead to a new trial.

During that trial, Jammie Thomas argued that even though she made songs available for downloading by placing them in the directory she shared with other P2P users, the only people who actually downloaded songs from her computer were investigators hired by the major labels.

However, U.S. District Court Judge Michael Davis instructed jurors that making the recordings available to other P2P users infringed on record company copyrights "regardless of whether actual distribution has been shown."

But that was last fall. Now the judge says he might have erred in his instructions to the jury.

Davis recently wrote that he found a 1993 8th Court Of Appeals ruling that said an infringement requires "an actual dissemination of either copies or phonorecords."

The judge also wrote that neither side presented the 1993 decision to him.

Davis also referenced an infringement case in Arizona where U.S. District Judge Neil Wake denied an RIAA summary judgment motion, saying the labels must actually prove illicit downloading, and that proving a person kept copyrighted music in a shared folder wasn’t conclusive proof of infringing activities.

Oral arguments on whether Thomas should get a new trial are scheduled for July 1st.

The record labels don’t seem all that worried about a new trial, saying investigators downloading songs from Thomas’ computer is proof enough that she was illicitly distributing copyrighted material. The labels also point out that many of the songs on Thomas’ computer contained the digital signatures of other P2P users, thereby proving that she illicitly downloaded the songs from others. Thomas had claimed that all the songs came from her own CDs.

"If we have to retry the case, we will do so without hesitation," said record company attorney Richard Gabriel.

So far, the labels have sued no fewer than 30,000 people for illicit P2P-related infringements, and most people facing such lawsuits have chosen to settle with the labels for a few thousand dollars instead of going the costly trial route. However, Thomas, who reportedly makes $36,000 annually working for the Mille Lacs Band of Ojibwe, hired a lawyer, went to court and lost.

Despite the consumer-friendly developments in Arizona and Minnesota, other judges have ruled otherwise. As the individual decisions are not nationally binding, the question of whether actual infringement occurs when a person places copyrighted material in a shared directory, or when people download from that shared directory, may not receive a final answer in the immediate future.


Watching The Detectives

How does the RIAA conduct peer-to-peer infringement investigations? Pretty much as you would expect. They go looking for their songs on P2P networks, and then zero in on the folks trading them.

The Chronicle of Higher Education, citing an anonymous RIAA employee, detailed the steps the trade organization’s investigators take to target college students suspected of pirating music.

For the most part, the RIAA supplies online security firm Media Sentry with a list of songs its members own. According to the Chronicle, Media Sentry conducts its searches with the Limewire P2P application, which connects with the Gnutella noncentralized P2P network.

Once Media Sentry investigators find someone offering one of the songs on the list, right-clicking on the listing shows all the other songs offered by that particular person.

But that doesn’t mean the Media Sentry investigators immediately start downloading songs for evidence. There are other ways to target suspected copyright thieves.

First, Media Sentry compares the "hash mark," or sonic fingerprint, of a song against a master list of hash marks. If there’s a match, then it’s off to the lawyers.

If there isn’t a match, then investigators download the song and use a program offered by Audible Magic to compare the sound waves between the official copy of the song and the version a person is offering through a shared directory. If the Audio Magic program can’t determine a match, then a real live set of ears is tasked with listening to the song.

However, the RIAA doesn’t send a batch of prelitigation letters unless the Media Sentry investigators actually download songs from suspected pirates’ computers. In those cases, investigators listen to the songs to confirm infringing activity.

The Chronicle of Higher Education also reports that before those prelitigation letters are sent out, an RIAA employee reviews each case, and confirms that each letter’s intended recipient lives in the U.S. The same article quotes RIAA spokeswoman Cara Duckworth acknowledging that investigators can only confirm that someone is offering a song, and have no way of detecting when someone is actually downloading the tune.

also reports that before those prelitigation letters are sent out, an RIAA employee reviews each case, and confirms that each letter’s intended recipient lives in the U.S. The same article quotes RIAA spokeswoman Cara Duckworth acknowledging that investigators can only confirm that someone is offering a song, and have no way of detecting when someone is actually downloading the tune.


Napster Goes DRM-Free

It took only seven years, but MP3s are back on Napster. Albeit legally this time.

Of course, it’s a different world and a different Napster this time around. Back in 1999 when Shawn Fanning launched Napster, the service was the first peer-to-peer file-sharing application dedicated to trading music. For nearly two years, Napster facilitated the trading of music, both unauthorized and authorized, until a court injunction effectively shut down the original operation in July of 2001.

Eventually the Napster brand, along with whatever technology was deemed salvageable, was acquired for fire-sale prices by software company Roxio, which relaunched the service as a legal, digital rights management-protected music download store.

Now the circle is almost complete, as Napster joins Amazon MP3 as one of the few services offering major label, non-protected MP3s. Boasting a catalog of 6 million tracks, Napster is selling the tunes for 99 cents each and most CDs for $9.95. Most of Napster’s MP3 inventory, including all major label tracks, is encoded at 256kbps bitrate.

But more importantly, because the tracks are encoded as MP3s with no copy protection, Napster tracks will play on iPods, the best-selling personal players in the world.

The non-protected MP3s offered by Napster apply to purchased downloads only, and do not apply to Napster’s all-you-can-eat subscription service. Those tracks are still copy-protected, meaning the songs stop playing when a user cancels the subscription.

"It’s great that we have finally gotten here," said Napster Chairman and CEO Chris Gorog. "It is really the beginning of a level playing field, which I think is essential for Napster, but also for the health of the digital music business in general."


For Whom Rhasody’s Blog Tolls

What do Keith Richards, Pete Doherty, Michael Jackson, Amy Winehouse and 50 Cent all have in common? They’re all featured on a blogger’s "Death Pool" list at music service Rhapsody.

Death pool lists are often a source of office amusement with workers picking the celebrities they feel are most likely to buy the farm. However, a Real Player alert leading us to "The Death Pool" posted on Rhapsody.com made us scratch our own collective heads.

"The Death Pool – A Rhapsody Photo Gallery" depicts the usual suspects for such a list, like drug-troubled singers and heavily wrinkled guitar players. But this death watch list also featurs artists we’d never think of including.

Such as Kanye West, who appears on the list with a caption reading, "It’s only a matter of time before Kanye convinces himself that he’s faster than a speeding bullet and is able to leap tall buildings in a single bound."

But the big surprise is the inclusion of Jack Johnson on the list. Yes, that’s right. Clean-living, wholesome Jack Johnson appears as the 10th and last selection on Rhapsody’s Death Pool, along with the caption, "Jack Johnson surfs in his free time, eats banana pancakes and has zero enemies. But we can dream, right?"

You gotta admit that’s a pretty nasty statement to include on a music service’s blog posting. Especially for a music service that lists that same artist as one of its audience’s top 10 favorites.