Judge Rejects RIAA 'Making Available' Theory 353
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."
Smart Judge (Score:3, Insightful)
This is actually important... (Score:4, Insightful)
Re:kinda dumb (Score:5, Insightful)
Re:kinda dumb (Score:4, Insightful)
Re:So uhm... why is this different? (Score:3, Insightful)
Poll: What will the RIAA do now? (Score:5, Insightful)
(a) Walk away.
(b) Bury the judge in paper with a 'reconsideration' motion.
(c) Ask Mr. Brennan to "settle".
(d) Other.
Re:Smart Judge (Score:4, Insightful)
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:5, Insightful)
'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:Smart Judge (Score:3, Insightful)
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.
Re:Poll: What will the RIAA do now? (Score:1, Insightful)
Re:kinda dumb (Score:5, Insightful)
It does, however, apply to the defendant in this case. The reason the RIAA needed the "making available" theory is because they did not have any actual proof that their copyright had been violated. If I've got an MP3 in a public folder, what have I done? Have I illegally copied anything? Doesn't seem like it. Have I created a derivative work? Arguably, if I ripped the MP3, but maybe I downloaded it, and ripping a CD I own is almost certainly fair use anyway. Have I distributed it? Well, if the RIAA has proof of me distributing it to someone, they've got me. Obviously, in this case, they don't have proof of that. All they see is that MP3, so the "making available" theory says that, even in the absence of proof that their rights have been violated, they should be able to sue people.
What happens if you leave a DVD on your front lawn, I come along with my laptop, rip and burn it? THAT is what this case is talking about. Have you broken the law by leaving that DVD on the lawn? I clearly have, by copying it... the RIAA thinks that you have, too. The judge, luckily, knows the law a little bit better. You have proof, or you have nothing.
This may affect more than just the RIAA (Score:5, Insightful)
Re:kinda dumb (Score:3, Insightful)
Actually it's like the GP's example with a much more effective marketing budget.
I do agree in a literal sense that "merely making available" should not be enough to get a judgement; but I don't agree if you're saying that putting a track on kazaa is "merely making it available".
Re:respect for law (Score:1, Insightful)
Re:Smart Judge (Score:5, Insightful)
The problem is that the plaintiffs in this case are the companies who would report on this development.
Re:Smart Judge (Score:1, Insightful)
Re:Smart Judge (Score:2, Insightful)
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.
What about Obama? (Score:2, Insightful)
We're not all Libertarians around here, and the pollsters always mention that Obama gets most of the educated Democratic voters. It's true that Obama supporters aren't as
Re:kinda dumb (Score:4, Insightful)
Re:kinda dumb (Score:3, Insightful)
It's not? Come on now, I'm firmly anti-copyright, I believe that restricting the supply of an infinte resource is theft, but this argument is silly. MP3s don't share themselves.
Re:kinda dumb (Score:3, Insightful)
Now, a shared folder is there only to share copies of what's put in it. In fact, there are probably many other things that could be copied that aren't neccessarily under copyright- but if they're not in that folder- they're not going to get copied. You can show express intent with a folder with a single use VS a library copy machine that has many legit uses.
And if you do set up limewire to send a friend who owns the CD the files, that's technically not against the law (I think..) but since you're using limewire, you aren't controlling who else may get access, so that'd be where the grey area starts..
Anyway, good points. Mod parent up.
Re:kinda dumb (Score:3, Insightful)
Prosecution: "Your honour, the defendant repeatedly said in public that he was going to kill his wife, shoot her, cut her throat, poison her. What more evidence do you want that he murdered her?" Judge: "Maybe something like a dead body? His wife is sitting besides him, breathing quite normally, and I heard her snoring, so I won't find the defendant guilty".
Where to now for the RI, "after the Gold Rush"? (Score:4, Insightful)
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:So uhm... why is this different? (Score:5, Insightful)
Meanwhile, on the facts, the RIAA is always lying.
As to how the judge made the error in the Thomas case, it's obvious:
the RIAA lawyer was willing to say misleading things to the judge,
Ms. Thomas's lawyer wasn't sufficientlyl prepared to rebut them, and
the judge made the mistake of changing his mind in the heat of battle, instead of sticking with the decision he'd made beforehand when he and his staff had had enough time to do the requisite legal reading.
Re:So uhm... why is this different? (Score:5, Insightful)
Re:Spread those mod points wider! (Score:3, Insightful)
It's not a factor of them being upmodded because of who they are, but rather being upmodded because their expertise and commentary is relevant and benefits the community of readers as a whole. It's perfectly possible to have this phenomenon arise because of a person's situation as opposed to position or reputation, such as if a person was on Slashdot in the middle of a major event like a terrorist attack and offering a crucial and unique perspective.
Re:kinda dumb (Score:2, Insightful)
You could argue that there's a good reason for that. When copyright law was developed, it was impossible to make large numbers of copies of something for negligible cost. Therefore, it was a reasonable assumption that anyone making multiple copies of a book or vinyl album or even a CD was doing so to sell them. Copyright law is all about stopping that from happening, which is why it appears to some to be so unjust when applied to free distribution.
Re:Smart Judge (Score:4, Insightful)
Re:Smart Judge (Score:3, Insightful)
Devil's Advocate (Score:3, Insightful)
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.
Re:So uhm... why is this different? (Score:3, Insightful)
Re:Spread those mod points wider! (Score:4, Insightful)
Re:Where to now for the RI, "after the Gold Rush"? (Score:2, Insightful)
During the last depression, short-of-work/out-of-work men formed bands to suppliment their income. You played live, and got paid. Recorded music was nascent, and esentially used as advertising.
Enter, the meddlemen. The meddlemen began to see the popularity of recorded music, and devised business models around it. These "wedgies" posited themselves between the listener and the artist, while taking a cut for themselves. The economy improved, and this masked decades of greed and villiany.
Since recorded music did not require the physical presence of the meddlemen, they became rich and comfortable, staying at home while artists ran ragged all over the country and the world in an attempt to satiate the sudden explosion of music-fan hunger for all-natural auditory SSRIs.
But like sound waves, there are peaks and troughs. New depressions. The wedgies have been exposed, and no longer are artists willing to tithe their blood and sweat to the meddlemen in such a disproportionate way. The pendulum swings back.
Balance.
Re:Smart Judge (Score:4, Insightful)
Re:kinda dumb (Score:3, Insightful)
(Ie. "you're online, so you must be making files available!")
Mod New York Country Lawyer Up (Score:3, Insightful)
Re:What about Obama? (Score:4, Insightful)
The focus of the poster is to say "you dont matter". Not only that, but to say thathe is being RATIONAL in making that claim. An individual absolutely does matter in National Politics. Anyone who says otherwise needs to learn some math, and some basic economic theory.
Basically, the value of your vote is the total value of all votes, divided by the total number of all votes.
So to say your vote has a tiny Percentage of effect, so small as to be ALMOST un-noticable, is true. There are, in a national election, some 90 million voters. So your individual vote has a worth (and it actually is a little different than this because it does vary state by state) of ~ 1/90,000,000.
However, the Federal Budget is roughly (depending on what you take into account) some 3 TRILLION dollars. How that money get allocated is decided by the people you do or don't vote for.
So, just a rough number to think about, your vote is worth 3 TRILLION/ 90 MILLION. Roughly 33 THOUSAND dollars.
Now, you can argue about different things in that number, and whittle it up and down depending on how you look at it (entitlements, not being able to choose a canidate who exactly matches you, etc.). But to claim that it is RATIONAL to say your vote is worthless is just stupid.
Anyone making such a claim is being stupid (or simply trying to discourage voters, which the republican party does a lot of, actually), and certainly shouldn't be modded anything other than troll (the effect of people encouraging others not to vote is that there is a disproportinate representation of wealthy people voting. The wealthy, tend to believe that their vote counts. And they turn out. And Vote. And it does. This is one of the reasons that while the country tends to identify as Democrats (by close to a 60/40 margin) The VOTING population breaks about even. This is one of the reasons that we have an embargo on Cuba (they Cuban Ex-Pats almost all vote).