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RIAA Victims Bring Class Action Against Kazaa 288

NewYorkCountryLawyer writes "In Chicago, Illinois, a Kazaa customer has filed a class action against Kazaa, Lewan v. Sharman, U.S.Dist. Ct., N.D. Ill 06-cv-6736. The lead plaintiff, Catherine Lewan, was a Kazaa customer who was sued by the RIAA for her use of Kazaa, and paid a settlement to the RIAA, and she sues on behalf of others in her position. In her complaint(pdf) she alleges, among other things, that Kazaa deceptively marketed its product as allowing 'free downloads' (Complaint, par. 30); it designed the software in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so (Complaint, par. 36-37); and it surreptitiously installed 'spyware' on users' computers which made the shared files folder accessible to the Kazaa network even after the user had removed the Kazaa software from his or her computer (Complaint, par. 42-45)."
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RIAA Victims Bring Class Action Against Kazaa

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  • Use Your Eyes! (Score:4, Informative)

    by nbannerman ( 974715 ) on Thursday December 07, 2006 @03:26PM (#17150252)
    If I buy a house, and then don't pay the morgage, they'll repossess the house. I can't use the argument of 'I didn't read the Terms and Conditions' to get myself out of the mess I'm in.

    Last time I installed a piece of software like Kazaa, it stated what it was going to do at each step, and clearly explained what would happen, and that I shouldn't share files to which I didn't own the copyright.

    Sueing for being stupid is... well, stupid.
  • It's all there.... (Score:3, Informative)

    by emor8t ( 1033068 ) on Thursday December 07, 2006 @03:26PM (#17150254)
    Read the fine print lady, all the stuff your sueing for is painfully obvious. Had you bothered to do any research on Kazaa, you would know it's issues! You got caught, sucks to be you. But it's not Kazaa's problem, they are simply providing a service.
  • by Kelson ( 129150 ) * on Thursday December 07, 2006 @03:36PM (#17150438) Homepage Journal

    The spyware claim (keeping the shared folder shared even after uninstalling Kazaa), if valid, is the only one that might have any merit.

    Everything else, though, smacks of "Look what you made me do!" blame-deflection.

    I sued Home Depot [sing365.com]
    'Cause they sold me a hammer
    Which they knew I might drop on my toes
  • by Thansal ( 999464 ) on Thursday December 07, 2006 @03:42PM (#17150572)
    ummm, IANAL, but isn't the POINT of suing to recoup losses?

    Justice is for criminal law, civil law is for reperation of damages/lost income/etc, etc. Not for "justice". The only place "justice" comes into is paying some one for their "psycological truama" or "pain and suffering", and those I tihnk are just rediculous anyway. If some one HARMED you then what they did is almost always illegal, and thus is covered by criminal law.

    I guess that is just my oppinion on law, probably I am wrong.
  • by Jugalator ( 259273 ) on Thursday December 07, 2006 @03:58PM (#17150828) Journal
    it designed the software in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so

    If my memory doesn't fail me, Kazaa indeed guided the user through a wizard at the first run, where among other things you configured network settings, and which folders to share. And with a "shared files" folder activated by default, while showing that fact to the user as well.
  • by Anonymous Coward on Thursday December 07, 2006 @04:22PM (#17151258)
    Where I come from you are accountable for breaking the law even if you don't know you are breaking the law. You are accountable for all your actoins and obligated to find out what you can and cannot do.
  • by atomic_toaster ( 840941 ) on Thursday December 07, 2006 @05:10PM (#17152132)
    Ignorance of the law is no excuse. [wikipedia.org] Since when is not knowing you're doing something illegal enough to get you out of punishment for committing a crime? Whatever happened to presumed knowledge of the law? [wikipedia.org] If you kill, rape, steal, embezzle, falsify evidence, obstruct a police investigation, etc. and you don't know it's illegal, you still go to jail.

    KaZaA provides a tool. How you choose to use that tool is up to you. If you live in wilful ignorance by choosing not to read the instructions/disclaimer/EULA and it gets you into trouble later, that's your own problem. It's much akin to trying to sue McDonald's for you burning yourself with their coffee after they've changed all the cups to read "Caution! Contents are hot!"

    29. The Sharman Defendants deceptively marketed the KaZaA Product as a P2P service as allowing "free" downloads.

    That's not deceptive marketing, that's the truth. You don't pay a fee, either subscription or per download, to download files through their service.

    31. The Sharman Defendants deceptively marketed the use of the KaZaA Product as legal.

    KaZaA is legal; what people choose to do with it may not be legal in certain jurisdictions. There is a major difference. It's like saying that the postal service is illegal because sometimes people use it to ship illegally obtained merchandise.

    32. The Sharman Defendants knew that most users of the KaZaA Product would use the KaZaA product to catalogue and store digital copies of copyrighted sound recordings and films. 33. The Sharman Defendants encouraged, invited, and solicited such conduct from its public, its customers, and users of the KaZaA Product.

    You'll note that the claim fails to mention that items 32 and 33 aren't necessarily illegal. It may be implied, but the reality is that every piece of media created since the invention of copyright is inherently copyrighted. This does not mean that copying this material is automatically illegal; that's up to the creator to decide. There is a lot of media out there that is provided free for the sharing, so long as you follow certain terms and conditions (like not claiming the work is your own).

    [KaZaA] designed the software in such a manner as to create a shared files folder and make that folder available to anyone using KaZaA, while at the same time failing to make the user aware that it had done so (Complaint, par. 36-37)...

    Correct me if I'm wrong, since it's been a while since I used KaZaA, but when you set install and set up the program, doesn't it let you pick your shared folders? Even if it doesn't, you can change it very easily through the program's settings. Even if you don't know this when you originally install the program, KaZaA lets you see who has been downloading what files from your computer. If you don't want people to download from you, wouldn't you change your settings as soon as you see the list of people trying to copy your stuff?

    [KaZaA] surreptitiously installed 'spyware' on users' computers which made the shared files folder accessible to the KaZaA network even after the user had removed the KaZaA software from his or her computer (Complaint, par. 42-45)...

    This is the only complaint that I can see possibly holding water, if it is true. To lend verity to their case, they'd have to test every version of the software to see which ones had this "spyware," and make sure that every person who was joining the class action suit on the spyware basis used or has used the spyware-affected versions.
  • by undii ( 965381 ) on Thursday December 07, 2006 @05:11PM (#17152154)
    Hmm in my owners manual for my motorbike and car they both state to not break the speed limit and use the vehicle in a dangerous manner. My bike also has warning stickers on the fuel tank with regards to not putting the helmet on the handlebars or fuel tank as it may fall off (and break protective lining or shell) It looks like they do have (some) accountability with things like this?
  • from the front page (Score:2, Informative)

    by randallman ( 605329 ) on Thursday December 07, 2006 @05:16PM (#17152252)
    From the front page of the Kazaa website:

    Copyright: Sharman Networks Ltd does not condone activities and actions that breach the rights of copyright owners. As a Kazaa user
    you have agreed to abide by the End User License Agreement and it is your responsibility to obey all laws governing copyright in each country.

    Enough said.

  • by StrongAxe ( 713301 ) on Thursday December 07, 2006 @06:48PM (#17154050)
    but what I suggest is that many people may not realize that listening to music they haven't paid for is stealing.

    Actually, that isn't exactly what the law says (see below). In fact, there is a great deal of confusion between the verbs is and has been legislated to be (or is, according to the laws of {insert jurisdiction here}).

    is implies an absolute state of equality, while copyright laws vary widely between jurisdictions. While p2p music sharing may be illegal in the United States, it isn't in Canada, for example.

    The whole reason why society has always considered stealing to be such a heinous crime was NOT the fact that the thief acquired something of value that he wasn't entitled to, but rather that the victim LOST that thing. In previous centuries, horse theft in England carried the death penalty - because if a man made a living using his horse, and you stole it, he could starve to death. However, if you could sneak into his barn, take a skin sample, and clone the horse, the victim would not be inconvenienced.

    This is an educated (master's degree) adult who was confused on the matter.

    And with good reason. Most people do not take courses in law, and most of the nuances of such issues are discussed only in law school (not couting the FUD propaganda being spread by media companies, schools trying to indoctrine kids into a politically correct "don't share files" culture, etc.

    Consider the following two examples:

    1) I go to Wal*Mart, take a dozen CDs home (without paying for them), then leave them on my porch with a sign saying "Feel free to take home anything you want".

    2) I go to Wal*Mart, take a dozen CDs home (but in order not to inconvenience Wal*Mart, I make copies and return the originals), then leave the copies on my porch instead.

    In case 1, I can be charged with stealing for the CDs I took. However, nobody else will be charged with taking the CDs from my porch (well, they might be charged with possession of stolen property; however, since possesion of an item is usually considered as de-facto proof of ownership, especially for inexpensive items without serial numbers, nobody in their right minds would attempt to charge anyone for that).

    In case 2, I couldn't be charged with taking the music (temporary breaking and entering aside, and even that would be moot if we were talking about art or books instead and I made copies by taking a camera into the store and photographing them). However, even though I would be considered lily white under the law for TAKING the initial copy, I could be prosecuted for every single CD that somebody ELSE took from my porch. And also remember that the charges here would not be for larceny, but rather for copyright infringement. Furthermore, under current laws, the second case would be considered MUCH more serious, even though less is actually "stolen" (since the music is, but the physical media, which is the bulk of the cost of manufacturing the music, is not.)

    My point is that in the case of physical theft, act A is punishable, but act B is not. In the case of copying, act A is not punishable, but act B is. Furthermore, the victim in case 1 is Wal*Mart, while the victim in case 2 is the RIAA. So while you may think of copyright infringement as theft, and while the two may be similar in some ways (and are viewed as the same by society), under the law they are COMPLETELY different. The RIAA and MPAA never go after peoplf for downloading content - only for uploadingcontent. (Compare web sites that offer unauthorized downloads - they can shut down the web sites, but have no legal leg to stand on vs. the web site's visitors.)

    These people rightly argue "Well... I listen to it on the radio without paying for it, is that stealing? If not, how is it stealing when I listen on my computer?". What is not clear to them, however, is that if they are using a P2P network, the analogy is more like them listening to the radio, and then piping the music through to another unlicensed transmitter - something that would get them into trouble.

No extensible language will be universal. -- T. Cheatham