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Judge Rejects RIAA 'Making Available' Theory 353

Posted by ScuttleMonkey
from the need-a-new-revenue-strategy dept.
NewYorkCountryLawyer writes "A federal judge in Connecticut has rejected the RIAA's 'making available' theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion [PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 'actual distribution of copies', and cannot rely — as it was permitted to do in Capitol v. Thomas — upon the mere fact that there are song files on the defendant's computer and that they were 'available'. This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior."
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Judge Rejects RIAA 'Making Available' Theory

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  • Smart Judge (Score:3, Insightful)

    by Killjoy_NL (719667) <slashdot.remco@palli@nl> on Monday February 25, 2008 @06:27PM (#22551570)
    This really makes me smile, I'm not in the US, but I follow the news on these kinds of cases (mostly on Slashdot), if only this would get more mainstream coverage.
    • by jtroutman (121577) on Monday February 25, 2008 @06:32PM (#22551624)
      I would say, "How much more mainstream do you want than Slashdot?" After all, we are legion, we bring down servers across the internet merely by visiting them en masse. But then I look at Ron Paul's primary results and slink back to my basement.
      • Well, I would say (for US based news channels), CNN, NBC, etc.
        But that's hoping for too much I'm afraid.

        P.S. To Newyorkcountrylawyer, great work you're doing, please keep it up :)
      • Re:Smart Judge (Score:4, Insightful)

        by ivan256 (17499) on Monday February 25, 2008 @06:43PM (#22551774)

        I would say, "How much more mainstream do you want than Slashdot?" After all, we are legion, we bring down servers across the internet merely by visiting them en masse. But then I look at Ron Paul's primary results and slink back to my basement.


        What makes you think anywhere close to a majority of us would vote for Ron Paul? Seems like a poor indication of how mainstream Slashdot is.
    • Re:Smart Judge (Score:4, Interesting)

      by ajs (35943) <ajs@@@ajs...com> on Monday February 25, 2008 @06:34PM (#22551652) Homepage Journal

      This really makes me smile, I'm not in the US, but I follow the news on these kinds of cases (mostly on Slashdot), if only this would get more mainstream coverage.
      Not going to happen.

      The only angle under which this is "news" is that file sharing just became a lot more reasonable, and that's not something that IP-based conglomerates (aka the mainstream media) are going to be pushing. It just sounds dirty to them, and I don't think it's even a conscious decision. There's just no reason that a modern news reporter would think this was of general interest.

      • Re:Smart Judge (Score:4, Interesting)

        by phoomp (1098855) on Monday February 25, 2008 @07:08PM (#22552054)
        News related to P2P has been getting quite a bit of coverage in Canada lately. Not yet front-page coverage, but 2nd page coverage in some cases. Of course, our mainstream media isn't in bed with the IP-based conglomerates to the same degree as yours are.
      • Re:Smart Judge (Score:5, Interesting)

        by wealthychef (584778) * on Monday February 25, 2008 @07:31PM (#22552342)
        I think this judge did not go quite far enough. I think the RIAA should have to show not only that distribution occurred, but that the distribution was INTENTIONAL. That is, not the product of accidentally having a file in a directory that Limewire is sharing or something.
        • Re:Smart Judge (Score:5, Informative)

          by cpt kangarooski (3773) on Monday February 25, 2008 @08:01PM (#22552726) Homepage
          Well, the law is quite clear that no mental state has to be shown for civil copyright infringement. Even if you infringe purely by accident, and you always acted as reasonably and as carefully as possible, you can still wind up on the hook for infringement. So the court in this case is not going to find otherwise, but it would be a good part of a comprehensive legislative reform. (Though I think an intentional standard is somewhat high)
          • Re:Smart Judge (Score:4, Insightful)

            by Kjella (173770) on Tuesday February 26, 2008 @12:26AM (#22554970) Homepage

            Though I think an intentional standard is somewhat high.
            I agree, this after all liability not guilt we're talking about. If I'm out playing soccer and accidentally break your window, surely I should pay for it even though it wasn't intentional? Perhaps doing it unwittingly (not understanding shared folders) or in good faith (misinformed about copyright status) should not cause liability, but surely some level of negligence or recklessness should suffice. It would follow the main line in tort law that you're liable for harm through negligence. Now there's the other matter that the claimed damages in this case are utterly insane, but that's a different discussion than the principle of them.
    • Re: (Score:2, Interesting)

      by KublaiKhan (522918)
      Well, it's not really 'news' to most mainstream people--because, frankly, it doesn't really affect them directly.

      Were the RIAA to be dissolved in a fit of legal briefs, that might make the business pages--but it would take something fairly spectacular to get into the 'real' news.
      • Re:Smart Judge (Score:5, Insightful)

        by Mr_eX9 (800448) on Monday February 25, 2008 @06:43PM (#22551778) Homepage

        'Real' news indeed.

        The standards of what's deemed newsworthy in the US are completely off. This case, a milestone in the RIAA's war against file-sharers, isn't newsworthy, but a pop-psychologist making blatantly erroneous statements [shacknews.com] out of ignorance is? Doesn't seem right.

        • Re: (Score:3, Insightful)

          by KublaiKhan (522918)
          Thus the scare quotes.

          It's mostly due to the perception of the american public that anything that doesn't directly affect them is not terribly important--hence, the American Idol winner, the winner of the presidential election, and the price of gas are 'news' while most legal decisions are merely trivia, unless you're a lawyer or directly involved as one of the parties.
          • It's mostly due to the perception of the american public that anything that doesn't directly affect them is not terribly important--hence, the American Idol winner, the winner of the presidential election, and the price of gas are 'news'

            Not to split hairs, but how does American Idol directly impact the public, especially those of us that refuse to watch it?

            • Re: (Score:2, Insightful)

              by KublaiKhan (522918)
              Those of us who refuse to watch it are generally the demographic who are perceptive enough to realize that legal decisions can impact other than the lawyers and the parties directly involved.

              Thus, we're not in the mainstream--and hence, not the folks that the mainstream 'news' is targeting.

              Those that do watch it are impacted directly with watercooler gossip or somesuch, I suppose. I'm not exactly certain why it's news, to be honest--I don't watch the thing myself--but that's my best guess.
    • Re:Smart Judge (Score:5, Interesting)

      by Anonymous Coward on Monday February 25, 2008 @06:36PM (#22551686)
      Unfortunately, the people that own media creation companies also own the tv, distribution & broadcast companies. Its also not in their best interests for the public to know when its harder for the **AA to sue people. Fear of being sued is the only weapon they think they have to fight copyright infringement. Its not the only option available to them (blanket licences, more reasonable prices, producing better media etc) but when they insist on trying to fight back against copyright infringement all they can do is sue or buy more laws making it easier to sue.
    • Re:Smart Judge (Score:4, Interesting)

      by poetmatt (793785) on Monday February 25, 2008 @07:22PM (#22552232) Journal
      This is a pretty big deal. A lot of countries fall back on the US in order to use as a basis for their law (australia) and some use it as an example of what not to do in most instances (EU). So definitely a total gain on a worldwide level if precedents are set.
    • Re:Smart Judge (Score:5, Insightful)

      by rhizome (115711) on Monday February 25, 2008 @07:26PM (#22552292) Homepage Journal
      if only this would get more mainstream coverage.

      The problem is that the plaintiffs in this case are the companies who would report on this development.
  • ouch... (Score:4, Funny)

    by rsmoody (791160) on Monday February 25, 2008 @06:28PM (#22551586) Homepage Journal
    Was that the sky falling that hit me on the head or just a smart-stick!
  • It is about... damn... time.
  • respect for law (Score:3, Interesting)

    by Lord Ender (156273) on Monday February 25, 2008 @06:33PM (#22551638) Homepage
    So this form of copyright infringement is illegal, but the law impossible to enforce? Not a good situation. Congress will be forced to give IP rights holders increased power to police infringement.
    • Re: (Score:3, Informative)

      by kithrup (778358)

      There isn't an "attempted copyright infringement" law, or at least I don't believe there is. (Is there a conspiracy charge that can be used?) So it's not illegal until copying actually happens. That, however, is not what the RIAA has been arguing, to various degrees of success.

    • by TubeSteak (669689)

      So this form of copyright infringement is illegal, but the law impossible to enforce? Not a good situation. Congress will be forced to give IP rights holders increased power to police infringement.

      Connecticut is in the 2nd District [wikimedia.org]
      This case is legal precedent in only New York, Vermont and Connecticut.
      Judges will take into consideration what other circuits have decided, but they are certainly not bound by it.

    • Re: (Score:3, Interesting)

      by cpt kangarooski (3773)
      No, it's just not infringement at all. Bad precedent aside, the statute requires distribution, not merely making available. (Of course, if the courts were really going to pay attention to the statute, they'd see that distribution isn't possible on the Internet anyway; it would have to be public performance or display)
  • by Otter (3800) on Monday February 25, 2008 @06:33PM (#22551640) Journal
    It's worth noting that unlike the typical NewYorkCountryLawyer story gloating about how the RIAA lost some motion on some case somewhere, this is a potentially major development.
  • Who the hell gave them the power to just wantonly dispense fair and balanced justice like this? Judges have always been empowered to make huge decisions, but this new behavior is becoming quite alarming. Common sense has been creeping into recent rulings with alarming frequency, and many decisions seem to be based on information, not cash-backed opinions.

    I hope this behavior doesn't continue... the entire American way of life is at stake!
  • I'm taking a poll. What do you think the RIAA will do now with this case?

    (a) Walk away.
    (b) Bury the judge in paper with a 'reconsideration' motion.
    (c) Ask Mr. Brennan to "settle".
    (d) Other.
    • Re: (Score:3, Interesting)

      by Dr. Eggman (932300)
      Why not submit this to the official slashdot poll? With a referencial link to the case/this story, of course.

      Also, b. I'm hoping to seem something wacky in d, but I think b.
      • Why not submit this to the official slashdot poll? With a referencial link to the case/this story, of course. Also, b. I'm hoping to seem something wacky in d, but I think b.
        How?
    • by andphi (899406)
      I offer a few specific options for other:
      e) Attack Mr Brennan's kneecaps with a ballpeen hammer.
      f) Hire some guy named innie to hit the judge over the head with a shovel
      g) Go the Miskatonic University and do research on resurrecting CowboyNeal.

    • by Reziac (43301) *
      First B, then if B fails, A.

      But if B works, then C, accompanied by much media fanfare, geared toward intimidating other judges into NOT thwarting the RIAA's will. ("See? you don't want to be the next fool who gets forced to reconsider, or worse overturned, when you bucked us, do you??")

      One can hope this will continue to backfire, as more judges become aware that the RIAA's cases are generally just so much horseshit.

    • by psychicninja (1150351) on Monday February 25, 2008 @07:12PM (#22552098)

      I'm taking a poll. What do you think the RIAA will do now with this case?

      (a) Walk away.
      (b) Bury the judge in paper with a 'reconsideration' motion.
      (c) Ask Mr. Brennan to "settle".
      (d) Send in CowboyNeal
      Fixed that for ya.
      • by xtracto (837672)

        I'm taking a poll. What do you think the RIAA will do now with this case?

                (a) Walk away.
                (b) Bury the judge in paper with a 'reconsideration' motion.
                (c) Ask Mr. Brennan to "settle".
                (d) Send in CowboyNeal
                (e) Breasts


        There, I fixed it for you.
    • by Adambomb (118938)
      I'd answer if i knew how B and C were mutually exclusive heh. If the brain who gives the go-ahead to continue the process is at all rational, then a.

      i'm betting b + c for some reason.
    • I'll vote 'A' here, but over on Groklaw, I might change my mind.

    • by syousef (465911)
      I'll go for:
      (e) Continue to live a life of disgusting filthy rich luxury
  • common sense and decency were on the stock market they'd be way up today.... thats the most refreshing legal thing ive read since amazon had some 1 click patents overturned (albeit partially) several months ago

    w00t
    • by Dunbal (464142)
      common sense and decency were on the stock market they'd be way up today

      No. Common sense says the stock market is going to stay down for a LONG time yet, until the economy gets its act together. Wanting it to be way up is not common sense, it's "wishful thinking". Wait for tomorrow, you'll see. We bears will have our way, but first we need buyers for our shorts :)
  • by Reziac (43301) * on Monday February 25, 2008 @07:06PM (#22552020) Homepage Journal
    This is a blow not only against the RIAA legal machine, but also against "thought crime" of all sorts (such as the argument that selling guns facilitates murder). So even as significant as it is by itself, it is a FAR more important decision than it appears.

  • by NonCow (1159679) on Monday February 25, 2008 @08:21PM (#22552950)
    Forgetting the RIAA for a moment, step back a few light years and think about the long history of music. In terms of centuries, this desparate troughing that the RI (recording industry) has managed over the last half century is like a burst of activity in the gold fields, then something fundamental changes and for some reason the Gold Rush ends. If the RI wants to stand in the middle of the deserted gold fields screaming "poor me", then so be it, but if a fundamental aspect of "gold production" has changed, then, sorry, but it's *over*. You (RI, RIAA et al) have to look for something else to do "after the Gold Rush", rather than try to sue the consumers for not buying *your* Gold anymore.
    So what about claims that the MI (music industry) is dead by association? This seems to be another illogical grab for air in a bid by the RI to survive. The MI has existed since the first huddle of cavemen got together, beat drums in time, and feasted with a dancing tribe. Music and the MI preceeded the RI gold rush and did quite well about it thank you very much. Musicians are artists and art is most often a matter of the heart searching for and finding expression. Cash is all well and good, but at the end of the day if payment for music is extinguished altogether, music will prevail irrespective. Art is not extinguished by poverty, so neither is music. Only greedy troughing is extinguished by poverty.
    Here's a tip: I play in a band. We're not too bad at what we do. We put smiles on faces every show and most of the time we cover our up front costs. We never cover our "hours" put in, and we don't care, because it's Art, and we all have day jobs anyway. And guess what? There's no greedy corporation troughing from *our* Art.
    • Re: (Score:3, Interesting)

      by steelfood (895457)
      Before copyright, how did musicians and other artists make money? Well, they didn't make a terrible amount, but they usually got by. Around Bach's time and before, music was largely done in a religious context, as only the church had the need and the capital for musicians. In Hayden and Mozart's time, well-to-do people (nobles, wealthy merchants, etc.) commissioned works and hired composers and players. In Beethoven and Brahms' day, music was open to the general public, much like today.

      In all of these, ther
  • Devil's Advocate (Score:3, Insightful)

    by Michael Woodhams (112247) on Monday February 25, 2008 @10:12PM (#22554026) Journal
    I'll play Devils Advocate here.

    The argument is that the RIAA needs to prove *actual* harm (copying) took place, rather than just creating a significant potential for harm. However, there are many instances in law where creating the potential for harm is punishable, without actual harm.

    Here are some examples. Speeding is illegal because excessive speed creates a much higher chance of damage, injury and death. It is not necessary to show actual damage, injury or death was caused by a speeding motorist to charge them. Releasing carcinogens into the environment is (should be?) illegal, even though we can't prove whether a specific case of cancer in an exposed individual would or would not have occured without the exposure. Distribution of child pornography is illegal because of the harm done to children in producing it, and because it may prompt "consumers" to harm children. In a given case of C.P. distribution, it is not necessary to demonstrate that a child was harmed in the production, that the production would not have occured without this instance of distribution, or that a user of the material harmed a child in response to viewing it.

    It seems to me that punishing "potential harm" is justifiable under certain circumstances:
    * If the harm is large but rare, and if the harm does occur, the at-fault person is not able to make full restitution. (Speeding would fit into this category.)
    * If the harm is real, but it is very difficult to connect any instance of actual harm to a specific instance of increased-chance-of-causing-harm behaviour. (Releasing carcinogens fits into this category, as does any 'many small polluters' situation.)

    The 'making available' theory clearly does not fall into the first justifiable category. Whether it falls into the second category is open to argument. There is at least a case to be made that it does - showing that a work was made available *and* that somebody took advantage of that availability is technically challenging, and would probably require allowing a level of snooping which we don't wish to allow anyone except police with a search warrent.

    Having said that, I think that the decision on whether a "potential harm" should be punishable is in the domain of politics. Generally, it shouldn't be punishable unless a law specifically says it is. The RIAA may be legally wrong here, but that is not the same as saying a law which made them right would be a bad law.

    IANAL.
  • Not So Fast (Score:3, Interesting)

    by JackSpratts (660957) on Monday February 25, 2008 @11:07PM (#22554506) Homepage

    I've been saying this for years - even pre-Napster - that you can't be liable for distributing if you aren't actually distributing, but I think in this instance file-sharers might hold off popping the champagne corks. The judge's concern seems to be more about facts than philosophy, i.e. whether or not distribution can take place in a passive sense isn't directly at issue here. What is instead is can a record company successfully sue a defendant for offering files merely by presenting screen shots of titles in a share folder? That other judges have missed this speaks volumes, but unless I'm mistaken, my careful Connecticut neighbor isn't saying a transfer has to be actively sent by the defendant, she's saying that in this particular case, the plaintiff hadn't met the burden that a transfer occurred at all.

    - js.

  • by Nom du Keyboard (633989) on Tuesday February 26, 2008 @12:18PM (#22559312)
    Every New York Country Lawyer post should be marked INFORMATIVE +1, because they are.

He keeps differentiating, flying off on a tangent.

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