The piracy trial is getting interesting. Vivendi SA’s Universal Music Group won a $222,000.00 verdict against defendant Jammie Thomas for making songs available via Kazaa. The problem is that no one downloaded the songs; they were only discovered by MediaSentry. The entire case hangs what constitutes “making available”, and how it differs from distribution. The judge in the case actually stated he may have committed a “manifest error of law” by instructing the jury that making files available is the same as distribution. Oops.

What happens if I leave partition open on my computer accidently, and that partition has music on it? Accidentally or otherwise, does this fall under Torts? I forget the exact statistic, but if memory serves, it is a matter of minutes on average before unprotected computers on the Internet are discovered and infected with viruses, so there is no reason to suspect that content could not be located just as quickly. If partitions were made available to a file sharing virus, are you making it available? Kazaa offers some facilities for locating content and makes it easier to discover shared content, which may be the only way to “demonstrate” intent to distribute, making it fairly weak argument IMO. Many office and home computers are shared. And the security is poor. So whose music is it, and is there a willful act of distribution or just bad security?

We already know that we can fool MediaSentry, either by masking content it is looking for, or by poisoning the content is collects with bogus information. Now all we need to render this totally useless is a Trojan variant of music sharing programs, both taking and delivering content. It might actually be good for the security industry at large, as Vivendi might put real pressure on the makers of AV to actually detect trojans and spyware, but I digress.

Don’t get me wrong, I do think UMG’s intellectual property needs to be protected. But this is a really tricky problem. There is no way to keep data confidential if the person who has access to it wants to make it public. There are simply too many ways, digital and analog, to leak this information (music). But my feeling is that public lawsuits designed to frighten the general public are not the most economically efficient way to accomplish this goal. Perhaps they have decided this is their best course of action, but I am left scratching my head as to why lowering the price and increasing availability is not their answer.