MPAA on Jammie Thomas Case – What Do You Mean we Need Evidence?

It may have been an idea on the backs of the minds of many file-sharers who watch p2p on trial in the United States, but when it’s just about an admission from the copyright lobby, it’s a whole different story.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

In their brief, the MPAA has suggested that the burden of proof in file-sharing cases is too great and, therefore, shouldn’t be mandated by law.

There are many eyes on the Jammie Thomas trial. Yesterday, we reported that the EFF has submitted an amicus brief (PDF – Hosted by Wired) on the case saying that the “making available” theory was bogus and that copyright law requires actual distribution – a shared point is not distribution.

Wired’s ‘Threat Level’ has also been covering the trials and reported on the MPAA’s (Motion Picture Association of America) amicus brief. From the Brief:

2. MPAA urges the Court not to impose any requirement of actual distribution because the Copyright Act imposes no such requirement. Section 106(3) of the Act, 17 U.S.C. § 106(3), provides copyright owners with a broad right of distribution, not simply “actual distribution;” and the act of making copyrighted works available over a P2P network or otherwise is included within that broad right. For several reasons, MPAA believes the only proper reading of Section 106(3) is that it encompasses, and always has encompassed, the act of making available.

II. (…) Article 6(1) of WTC, entitled “Rights of Distribution,” provides that copyright owners “shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.” See also WPPT Art. 12(1) & Art. 14. The concept of “making available,” although it has particular relevance to the digital age, was not new to international copyright treaties, having first appeared nearly a century earlier in the Berne Convention’s definition of a “published work.” See. Dr. Mihaly Fiscor, The Law of Copyright and the Internet: The 1996 WIPO Treaties, Their Interpretation and Implementation 166-67 (2002).

A violation of the making available right does not require proof that copies were actually transferred to particular individuals. The essence of the right is that the copyright owner determines the manner and means for offering his or her work to the public. See WIPO, Guide to the Copyright and Related Rights Treaties Administered by WIPO at 208 (2003)

From Threat Levels report:

“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.

So, in short, the MPAA argues that, because WIPO said so, there shouldn’t be proof required to convict someone of copyright infringement over a file-sharing network for reasons that the burden of proof is too difficult. So why is the MPAA trying to resort to arguing that proof is not required? Ernesto of TorrentFreak shows that it’s possible for printers to be sued for downloading movies.

It is also interesting to note that the core arguments made by the MPAA say that it’s “international obligations”, not necessarily the Copyright Act that suggests that proof is not required. It’s revealed that the “international obligations” is mainly WIPO, and organization that has been long seen as the US copyright industries international copyright enforcement arm. Knowing this important fact alone makes the amicus brief of the MPAA even more absurd because, by extension, the MPAA is saying that we don’t need proof because we said so and our word overrides the copyright act when we want it to.

Is it some form of obligation? Maybe. In the mean time, the United States also has a history of flaunting these so-called “international obligations” when it doesn’t suit their interest. For instance, the Fairness in Music Licensing Act of 1998 in the United States that the Irish Music Right Organization (IMRO) did not like because royalties were not being paid to Irish music rights holders (this is also known as the “bars and grills” exception). While a settlement was agreed on, the law has remained the same (reference)

So while the MPAA is arguing that there should be no burden of proof because of “international obligations”, the international obligations have a history of simply going along with US interest organizations in the first place. Because of the “bars and grills” exception, it’s a wonder that the US has to listen to some “international obligations” and not others. Since these “international obligations” are either flimsy at best or simply the word of the major American copyright industry (which the MPAA is a part of in the first place), their premise of international obligations seems to fail flat on its face. Then again, few would be surprised about the suggestion that corporate America owns the United States in the first place.

See also: Ray Beckerman

Drew Wilson on Twitter: @icecube85 and Google+.

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