[Commons-Law] Swedish debate and Atlantic v. Howell

[Pranesh Prakash]

Dear All,
Two interesting tidbits of news.

1. Debate in Sweden over "decriminalization" of file-sharing.
2. EFF submits surprise amicus brief in *Atlantic v. Howell.*

1. In Sweden, there's a proposal that ISPs should be prevented from allowing
known copyright-infringers from accessing the internet. This is a response
from seven (now, thirteen) Swedish parliamentarians of the Moderate Party to
that proposal, calling instead for the "decriminalization" of file-sharing.
It's main argument is that of a privacy slippery-slope. It has apparently
"started a loud debate in Swedish media". This news item is interesting
because it is not the Pirates Party but the Moderate Party which is
currently leading this charge.

http://sigfrid.wordpress.com/2008/01/07/decriminalize-file-sharing/

Excerpts:
"Decriminalizing all non-commercial file sharing and forcing the market to
adapt is not just the best solution. It's the only solution, unless we want
an ever more extensive control of what citizens do on the Internet.
Politicians who play for the antipiracy team should be aware that they have
allied themselves with a special interest that is never satisfied and that
will always demand that we take additional steps toward the ultimate control
state. Today they want to transform the Internet Service Providers into an
online police force, and the Antipiracy Bureau wants the authority for
themselves to extract the identities of file sharers. Then they can drag the
15-year-old girl who downloaded a Britney Spears song to civil court and sue
her.

"Will the Antipiracy Bureau be satisfied with this? Probably not, because
even the harsher laws now proposed will not stop the file sharing. Already
there are anonymization services on the market that make the new laws
ineffective. For this reason, the Antipiracy Bureau will demand new tools
that further intensifies the surveillance of the Internet. The simple truth
is that almost all communication channels on the Internet can be used to
distribute copyrighted information. If you can use a service to send a
message you can most likely use the same service to send an mp3-song. Those
who want to prevent people from exchanging of copyrighted material must
control all electronic communication between citizens.

"In the late 1970s, the copyright industry wanted to prevent people from
recording TV-shows with then-new Video Cassette Recorders. In 1998 the
recording industry tried to get mp3 players banned. We politicians have to
make clear that we are not prepared to build the technology-hostile control
state that would be necessary to satisfy the Antipiracy Bureau and their
likes."



2. From EFF's Effector: "Attempted Distribution" Not a Crime

EFF Files Brief in Atlantic v. Howell Challenging RIAA's Bogus Theory

Last Friday, EFF filed an amicus brief in Atlantic v. Howell, an Arizona
lawsuit brought as part of the Recording Industry Association of America's
(RIAA) national campaign against individuals for file-sharing. Although the
case has received attention recently over the issue of whether CD ripping is
legal, EFF believes the most important issue in the case is about something
different: can the RIAA sue people for *attempted* copyright infringement?
EFF says no.

As in more than 20,000 other lawsuits, the recording industry claims that
Mr. and Mrs. Howell committed copyright infringement by using P2P file
sharing software. But rather than attempting to prove infringing copying or
infringing distributions, the record labels argue that simply having a song
in a shared folder, even if no one ever downloaded it from you (i.e.,
"making available"), infringes the music industry's distribution right. This
essentially amounts to suing someone for attempted distribution, something
the Copyright Act has never recognized.

Sure, it would make it quite a bit easier for the RIAA if it could go to
court and simply say, "This person had our artists' songs in her shared
folder, we win." But that's not the law. If the RIAA wants to bring tens of
thousands of lawsuits against individuals, it has to play by the rules and
prove its cases. That means proving that actual infringing copies were made
or that actual infringing distributions took place. It's not enough to prove
that they could have taken place.

For EFF's amicus brief in Atlantic v. Howell:
http://www.eff.org/files/EFF%20amicus%20brief.pdf

For the complete post by EFF Senior Staff Attorney Fred von Lohmann:
http://www.eff.org/deeplinks/2008/01/eff-files-brief-atlantic-v-howell-resisting-riaas-attempted-distribution-theory
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