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RIAA's "Making Available" Theory Is Tested
Posted by
kdawson
on Sat Aug 18, 2007 01:17 AM
from the cutting-more-legs-out dept.
from the cutting-more-legs-out dept.
NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."
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Is "Making Available" Copyright Infringement? 320 comments
NewYorkCountryLawyer updates us now that the legal issue — is it copyright infringement merely to "make available" a copyrighted work? — has been argued by the attorneys in Elektra v. Barker (on January 26). Whichever way the ruling goes it will have a large impact across the Internet. Appeal seems likely either way. No ruling has issued yet but "a friend" has made the 58-page transcript "available" (PDF here).
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Judge — "Making Available" Is Stealing Music 489 comments
JonathanF writes "If you were hoping judges would see reason and realize that just using a program that could violate copyright law is about as illegal as leaving your back door unlocked, think again. An Arizona district judge has ruled that a couple who hosted files in KaZaA is liable for over $40K in damages just because they 'made available' songs that could have been pirated by someone, somewhere. There's legal precedent, but how long do we have before the BitTorrent crew is sued?" The New York case testing the same theory is still pending.
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RIAA Complaint Dismissed as "Boilerplate" 197 comments
NewYorkCountryLawyer writes "The decision many lawyers had been expecting — that the RIAA's 'boilerplate' complaint fails to state a claim for relief under the Copyright Act — has indeed come down, but from an unlikely source. While the legal community has been looking towards a Manhattan case (Elektra v. Barker) for guidance, the decision instead came from Senior District Court Judge Rudi M. Brewster of the US District Court for the Southern District of California. The decision handed down denied a default judgment (i.e. the defendant had not even appeared in the action). Judge Brewster not only denied the default judgment motion but dismissed the complaint for failure to state a claim. Echoing the words of Judge Karas at the oral argument in Barker , Judge Brewster held (pdf) that 'Plaintiff here must present at least some facts to show the plausibility of their allegations of copyright infringement against the Defendant. However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation.'"
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Judge Rejects RIAA 'Making Available' Theory 353 comments
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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News: RIAA Throws In Towel On "Making Available" Case 203 comments
NewYorkCountryLawyer writes "The RIAA has thrown in the towel on one of the leading cases challenging its 'making available' theory, Warner v. Cassin, in which the defendant had moved to dismiss the RIAA's complaint. We have just learned that the RIAA submitted a voluntary notice of dismissal before the judge got to decide the defendant's motion to dismiss the complaint. It will be of interest to see if Ms. Cassin pursues a claim for attorneys' fees in view of recent court rulings that successful copyright defendants are presumptively entitled to an attorneys fee award, even if the dismissal came about from the plaintiffs' having 'thrown in the towel.'"
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you want to stop by (Score:4, Informative)
As much as i hate the RIAA.... (Score:4, Informative)
Re:As much as i hate the RIAA.... (Score:5, Funny)
Oh, wait....
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Re:As much as i hate the RIAA.... (Score:5, Informative)
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Re:As much as i hate the RIAA.... (Score:4, Informative)
Distribution is an exclusive right of the copyright holder. Distribution to someone who already has a copy is still distribution, and their possession of a copy or not has no relevance on that. Nobody's contesting that illegal distribution happens when an illegal copy is made. The only two arguments have been 1) sharing does not imply that anyone actually copied it, so it doesn't implicate infringement and 2) distribution happens at the client's request, thus the client is liable not the sharer. That disclaimer would have just as much effect as the Internet Privacy Act [snopes.com].
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Re:As much as i hate the RIAA.... (Score:4, Interesting)
Just how do you think the RIAA would react to THAT?
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Sharing *is* legal (Score:5, Informative)
In the United States, you have every right [cornell.edu] to get together with friends and make copies of music on analog tape, or digital copies of music using digital audio recording equipment. This is per the Audio Home Recording Act of 1992 [wikipedia.org].
I'm not sure what this means about copying a CD someone else bought to a tape, but copying a CD for a friend using digital audio equipment and audio cds is perfectly legal, and copying an audio tape to another audio tape is also legal. We pay a "tax" to the RIAA on every piece of digital audio equipment, audio CD, and audio tape to allow this.
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Re: (Score:3, Informative)
To be shown guilty the RIAA would need to prove they could download the files from you without breaking the law
Re:As much as i hate the RIAA.... (Score:5, Interesting)
I have a mp3 file in my shared folder called rehab.mp3. This file is a copyrighted audio recording of my friend talking about rehab. RIAA using false pretext (and possibly violating the terms of use of the network) download this song. They check it and realize it is not the file they thought.
RIAA downloaded copyrighted material without the creator's permission.
I think I just figured out step 3.
1. Make audio recording
2. Put in shared folder
3. ????
4. Profit!
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Re:As much as i hate the RIAA.... (Score:5, Interesting)
Cliffski, seriously, one of the definitions of "stealing" is "taking someone else's property". I don't happen to believe that copying a CD is taking someone's property, because the owner still has it. That's your own description isn't it?
Now the question is "who has the permission of who created it originally"? And what does "permission" mean in this case. I just copied the library's lovely recording of Georg Solti's performance of the opera Parsifal. Richard Wagner created Parsifal originally, and he's not around to give any permission, and I guarantee that he didn't give the Sony Conglomerate permission to make money off of his work.
The library still has their 4-CD set and I've got the music on my mp3 player.
The entire system of "intellectual property" is based on a fantasy designed to make people who have never created anything a way to get rich. As someone who "believes in such things", I say "fuck them". Let 'em work for a living like the rest of us.
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Re: (Score:3, Insightful)
or libraries, or sporting good stores, or the ever popular analogy, auto dealerships, etc etc.
Where does one draw the line?
Re:As much as i hate the RIAA.... (Score:5, Interesting)
So my torrent seed of Ubuntu (which is comprised almost entirely of copyrighted material) is illegal?
That is the claim you have made.
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Re:As much as i hate the RIAA.... (Score:5, Insightful)
The general statement of saying "enabling someone else to commit a crime is a crime itself" is just nonsense.
With that general statement you could in theory hold a man who drove drunk and killed someone accountable, the manufacturer of the automobile, the designers of the automobile, the assembly line workers(if any) that put the car together, the store or individual who sold that man the liquor all accountable. Because you know, all of those in "theory" enabled that man to drive the automobile while intoxicated. Hell, why not involve the local government for putting those damn roads in that enabled that man to drive his automobile around.
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Re:As much as i hate the RIAA.... (Score:5, Insightful)
Oh, and make sure to never play your music too loud, someone might be out there with some good recording equipment.
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But wait... (Score:5, Insightful)
I think that all corporations which sue individuals should have to adhere to criminal court standards instead of needing just a "whiff" of possibility. Individual vs. Individual of course would still be run as a Civil matter. They should be required to obtain warrants if they want a "Discovery" into any non-public records of the individual. IMHO, they should absolutely NOT be able to get any records from any organization whatsoever about an individual without a warrant (consider ISP's releasing IP address / account information to a corporation for a shady example).
This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations).
There seems to be a serious disadvantage for an individual in almost ALL cases involving a company suing an individual (specifically the depth of their pocket books and ability to pay a lawyer).
Thanks for your efforts NewYorkCountryLawyer
- Toast
Much of this post may be conjecture, ranting, etc. I apologize if I got OT, but I would like clarification if any of my views are out of whack, and I wouldn't mind alternate viewpoints so long as they aren't in troll fashion.
P.S. To all grammar Nazi's; I don't really care if I missed anything when I glanced over this post. Don't waste your breath or potentially cause yourself carpal-tunnel by trying to fix it.
Re:But wait... (Score:5, Interesting)
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Re:But wait... (Score:5, Insightful)
I think you've found the basic bug. If we just fix that one, a lot of these other ones will quietly disappear.
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Unsecured wireless (Score:3, Informative)
Improper Defense Strategy (Score:3, Insightful)
The defendants are vaguely accused and therefore are stripped of the capability to offer a real defense. How many of these cases get dragged into technical arguments about the merits of the case instead of real defenses regarding whether or not the law was actually broken.
For instance - you say that there is "ongoing copyright infringement..." did you try to successfully download a copy of the song today? If it's not currently available, there is not ongoing infringement.
Let's take a look at the royalty checks given to the artists in the 2 years prior to the alleged infringement, the year during, and the year after. Do they indicate the possibility of infringement?
Did the plaintiff actually make any effort to do anything to stop this infringement?
Is there any proof that anybody illegally downloaded the songs from the defendant's computers?
How many downloads of the songs were made? How many people had them available? Is there a possibility that the song was made available for download, but never actually downloaded?
Did the defendant promote his shared songs to the public at large?
If there is a defined date for the alleged infringement or a date range, you can offer proof that it was not possible for the infringement to have occurred during that time frame (i.e. on vacation with computer during that time frame, power outage during the time frame in the local area, computer never on long enough during the time frame for a download to occur. Computer in the repair shop during that time frame, etc.)
We all know the suits are based on flimsy technical merits. OK... so moving forward past the technical aspects - is there reasonable suspicion that infringement did occur within a defined time frame?
The time frame is key to actually being able to defend yourself. Having a defined time frame to work with could save the courts, the plaintiffs, and the defendants plenty of time and energy because the technical merits may not need to be argued if a defense other than "this is a bunch of horsecrap and here is why" is available.
What is "making available"? (Score:4, Interesting)
Now, I'm a computer moron and have no idea what I'm doing. They are being shared through Windows' own system of making files available, SMB. They are incidentally "available" because they reside in a subfolder of "my folder", which is trivial to "share" in the network. Maybe there was even a good reason to do that for me, because there are other files in there, too, which I may share and I couldn't figure out how to share only those files and not the ones copyrighted.
"Making available"? When you go by the logic usually applied to carelessness concerning computers (i.e. "You're not liable for anything dumb you do with your computer when you're too stupid to know it"), it's not. Still, the difference to "making available" on a P2P network is a matter of protocol, it's not something different in a legal or factual sense. Sharing those files on P2P instead of SMB only means that a different application is responsible for the "making available" part, the rest is essentially the same. I grant access to the files to parties who I'm not allowed to share those files with.
What about trojans? Imagine I had a "P2P trojan" (and, bluntly, I'm surprised that something like this doesn't exist yet in wide spread). Said trojan would act as a relay for people who want to share certain content. Am I making it available? More important, is this suddenly the first trojan whose actions are blamed on the person infected by it?
What about insecure FTP servers? There are literally thousands if not millions of machines on the net that run a copy of some Windows Server version with IIS enabled that allow anonymous up- and download. I checked it once, it usually takes about 10 minutes before you become the drop point for someone who needs to spread files. Again the question, are you liable for it? Yes, common sense says you should be, but generally the creed stands that, if you're too stupid to know, you are off the hook.
So what is "making available"? Where is that line between "too dumb to know that you're sharing" and "knowing what you're doing and thus being liable"?
What is "distribution" under the Copyright Act? (Score:5, Informative)
The RIAA is relying on an alleged infringement of the "distribution" right.
But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief [ilrweb.com] (pdf), esp. pages 3-4.
Ultimately it comes down to the Judge (Score:4, Informative)
Googling the Judge, he seems to be well liked. He gives lectures at Law Schools and he vacated a $35,000 judgement against a defendant in another RIAA case (Santangelo) so the case could continue. If anything he seems to be "for the little guy". His average rating is 9.2 out of 10. Here's one comment:
Civil Litigation - Private
Comment #: 4118
Rating:8.6
Comments: A real pleasure. A smart, funny man who treats everyone with respect. If anything, a little too tolerant of pro se civil litigants. Straight shooter.
One the surface he appears to be a Judge who respects the public, has a passion for Law who doesn't automatically default to corporations. And, most importantly, he hasn't called the Internet a bunch of Tubes.
This may prove helpful.
-[d]-
Read the Law (Score:5, Informative)
Re:Attn: slashdot editors (Score:5, Insightful)
Sorry, but I disagree with you. These cases are important to read about, and to discuss. Tens of thousands of people are being sued, and everybody on /. at least knows what a P2P system is. The most downloaded free open source application is a Bittorrent client. This is one of the biggest YRO issues of the moment, and worth following, and discussing, in detail. It's the reason we have DRM, and Vista, and Sony supplied rootkits, and it affects everybody!
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just so much hot air (Score:5, Insightful)
the RIAA has failed to charge anyone
If you can't make the most elementary distinctions between civil and criminal law then anything you say about the law is worthless.
All the rights agencies have to do as a plaintiff in a civil case is to persuade the finder of fact that it is reasonable to believe that you infringed on the copyright of one of its members. Nothing more than that.
In order to show that an individual has committed unauthorized distribution of copyrighted content, the RIAA would have to catch the individual in the act of transferring the copyrighted content to another individual who has not been authorized, by fair use or otherwise, to obtain a copy of the IP
This is like saying you can't take the pirate broadcaster into court because you don't know and can't know who - if anyone - was listening to his station. Judges and juries don't think this way. It is precisely the reckless and indiscriminate nature of distribution through the P2P nets that destroys any defense of "fair use."
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