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."
respect for law (Score:3, Interesting)
Re:Smart Judge (Score:4, Interesting)
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:2, Interesting)
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, Interesting)
Re:Poll: What will the RIAA do now? (Score:3, Interesting)
Also, b. I'm hoping to seem something wacky in d, but I think b.
Re:Smart Judge (Score:4, Interesting)
Re:This may affect more than just the RIAA (Score:5, Interesting)
Re:Poll: What will the RIAA do now? (Score:2, Interesting)
Or perhaps they're filing more suits than they can reasonably expect to fight, banking on having most of 'em settle out of court, so a few slip through the cracks from time to time?
If that's the case, and it could be proven that such a load is an unreasonable hinderance on the court system, then perhaps a class action suit on behalf of all the people being delayed by the RIAA's nonsense might be....profitable.
Re:Smart Judge (Score:4, Interesting)
Re:respect for law (Score:5, Interesting)
But where a judge has done his or her homework, and is right.... other judges will follow. This judge has done her homework, and is right. Other judges will follow.
And when these issues get to an appeals court, there is no other possible answer than the one she gave: (a) the complaint doesn't satisfy the federal pleading standards for the alleged violations of the right of reproduction (uploading and downloading), (b) there is no such thing as a claim for 'making files available for distribution', (c) there is a meritorious defense of copyright misuse, and (d) there is a meritorious defense of unconstitutionality of the plaintiffs' statutory damages theory.
Re:Smart Judge (Score:5, Interesting)
Re:kinda dumb (Score:5, Interesting)
1) You don't 'index and share your songs via Kazaa', Kazaa et al, do tha all by themselves, without user intervention, in their default course of action. Many users aren't even aware 'they did it'.
2) I've always liked the library analagy. Its a public building, open to the public, and full of books. Photocopiers are placed conveniently often even marked with signs --> photocopiers this way. The books are carefully organized to make them easy to find. And there are computers scattered around so you can look them up that way too.
They've set everything up they possibly could to let you make copies. Yet if you do so, YOU are liable for infringement, not them.
By analagy, if I set up a computer, put it in a public place (like the internet), with songs available on it, and also set it up with tools that will make copies of those songs for you if you send it the right commands.
Now if you send my computer a command to transmit you a copy of the song... shouldn't YOU be liable for infringement? My computer isn't making copies and sending them out... YOU asked my computer to do it. All I did was set it up to listen to requests.
How is that fundamentally different from a library? If I could somehow operate the library photocopier by remote from my computer, would that suddenly shift the blame for making copies to them? I should think not. Its still YOU who have (remotely) operated the copier to make an infringing copy.
Finally, as a side note... if YOU own the CD in question, and feel its easier to download a copy using my publicly available computer to send you one, rather than ripping your own CD. Shouldn't that be legal. I as the computer owner have done nothing illegal by making it available. You have done nothing illegal because you have the right to make personal use copies of that song by virtue of the fact that you own a copy.
Why or Why not does this 'theory' work?
Finally if I charge you for access to my system that allows you to make copies am I a pirate then? Good question... interestingly, I still think not. If a library charges you
So its only infringement if they start making the actual copies themselves. Setting up the equipment and letting you operate it, even if they charge you for access, doesn't make them liable for infringement.
Although at some point you might argue that their is a conspiracy to commit infringement...
Re:Ooops... (Score:5, Interesting)
However, you're absolutely right that some of the best rulings have come in default cases, which of course really has to make you wonder. Examples are Interscope v. Rodriguez [blogspot.com], this case, and Atlantic v. Dangler [blogspot.com].
Thing is, in Dangler they came back with a reconsideration motion, there was still no one fighting back, and the judge was hoodwinked by the RIAA's mountain of phony papers, and went ahead and entered the judgment.
Re:respect for law (Score:3, Interesting)
Re:Smart Judge (Score:3, Interesting)
How'd the old quote go? (attrib. Churchill but may be older.) Something like: "If you're not a liberal at 20, you have no heart. If you're not a conservative at 40, you have no brain."
Wrong decision (Score:1, Interesting)
Re:Smart Judge (Score:3, Interesting)
Re:So now what? (Score:3, Interesting)
Not So Fast (Score:3, Interesting)
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.
Re:Doc INAL (Score:3, Interesting)
What can I tell you? I'm weak. I'm really too busy to be doing this stuff, but the dialogue on Slashdot is just something I really enjoy and look forward to. It's fun for me.
Re:Where to now for the RI, "after the Gold Rush"? (Score:3, Interesting)
In all of these, there's one particular common theme that runs through the whole music "industry" since the renaissance: the people who made money were the ones who actually had unique talent that could not be reproduced. People went to see these performers because nobody else could do it quite like them. And, the music offered infinite variations, so that each concert may have been of the same piece, by the same players, but was a little different, perhaps more mature, perhaps more geared towards the audience. After all, allegro is not necessary 120 bpm, and there's no exact number to forte.
And this is how classical music works today. Nobody owns the copyright to Beethoven's 5th or Mozart's Serenade in G. The interpretation, and the skill of the musician, is what makes the people money.
So one could say, there's no reason why copyright is necessary for musicians to earn a living. It's a boon for them, and I think they deserve copyright over their works, but copyright infringement for non-commercial purposes does not take food off an artists' table. At least, not the ones who are truly skilled and hence truly deserve their fame and fortune.
Re:kinda dumb (Score:3, Interesting)
I would argue that no transfer of ownership takes place, because the original copy that the sharer has remains in place.
Another weakness is that all that is transferred is a copy of the file, which in the case of most P2P transactions isn't a copy of the original CD file anyway but a compressed version of that file, so it is a moot point as to whether the copyrighted work itself is being shared.
Keep up the good work, Ray - I'm in the UK but follow your progress with great interest, especially with the ludicrous proposal over here that ISPs should disconnect users accused of file sharing merely on the recording industry's say-so.
Re:Smart Judge (Score:3, Interesting)
It wasn't Churchill; it was a Frenchman, François Guisot (1787-1874).
My favorite quote along these lines:
In the end, conservatives always lose. If they didn't, we would still be living in caves.