RIAA's "Making Available" Theory Is Tested 222
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."
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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I wonder if a disclaimer to the effect that you must own a copy of said recordings to download them would hold up
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When you're doing that, possibility is all that matters.
"Is it possible?" Yes. "Then it's (insert ruling)."
"It is possible?" No. "Then it's (insert opposite ruling)."
IANAL, but I have lied and gotten away with it. This is not a lie.
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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Any th
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I hadn't considered this previously, but since distribution is the copyright holders right and no one else's, does that make the resale of CD's a civil (or even criminal) offence? After all its distribution. The answer is no (I'm sure the record companies would prefer it otherwise) but I am unclear as to why that is, and how that principal (which clearly violates the rights of the copyright owner in fact if not in spirit) can be applied to downloading music, films or books you already own a copy of.
17 USC 109(a) [cornell.edu]:
(a) Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
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If that's legal, what about this:
Is the copy now legal? At every point, you owned the source material, as well as the copy. Your copy is no longer a copy of the version you own, but they are bitwise equivalent. Now, how about this:
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followed by:
A library makes books available for checkout. Most also contain copying machines.
This would consititute making available to be shared without at the same time involving the library in infringing copyright
If the RIAA wins this motion, it could theoretically mean that al
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One person copying a song to MP3 format and giving it to someone who owns a CD that already has that song is illegal. You have infringed on the copyright owner's exclusive right to reproduce the copyrighted work in copies or phonorecords (unless you've received special permission because the author released it under the GPL, creative commons, or licensed you specifically).
http://www.copyright.gov/title17/92chap1.html#106 [copyright.gov]
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Per TFA... it refers to mere *possession of a shared folder* that is internet-accessable (per my analogy, possession of a car with a full gas tank) as an infringing act -- even if at no time were any files shared (at no time were any banks robbed).
I'm not promoting copyright infringement, but this "MIGHT be shared" qualifica
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To be shown guilty the RIAA would need to prove they could download the files from you without breaking the law themselfs. My point was that there is no situation where sharing infringing files can be legal. your car in front of the bank might not be used for a robbery, so of course you shouldn't be arrested (thank you captain obvious).
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Just cuz I parked in front of the bank doesn't mean the bank got robbed!
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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Or to continue your rather flawed analogy: you've just exited your idling car and are about to enter the bank, masked and gun in hand. True, you haven't robbed the bank yet... but I doubt that a passing police officer is going to stand around and wait until you actually do so.
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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What if I tell you that that word 31552 in the new Harry Potter book is "below"? I've just shared material that is clearly copyrighted, have I infringed the copyright? What if I expand this out to a whole sentence - quoting passages is considered fair use. I've shared copyrighted material but there has been no infringement. It's easy to see that 20000 of us could each quote a single sentence in the book, if you reassemble all the quotes together then you could reconstruct the entire book.
Nobody
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With respect, that's not a fair comparison. If you take food from your store you're depriving other people of it. The comparison would hold if you could be satisfied by merely looking at food, and you strolled through the 7-11 without buying anything when you were hungry. You would be satisfied and the store would not have lost stock, but the producer would n
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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Do you even know what you are talking about?
Copyright,is talking about a right. Something may take a tremendous amount of effort to orginally create. Learning how to mix iron with coke to create steel. Or writing "War and Peace". Or writing a piano sonotta. Or telling a joke. But it is the very nature of things, that once something is made, it can be copied. Maybe it is human nature. Once someone figured out how
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or libraries, or sporting good stores, or the ever popular analogy, auto dealerships, etc etc.
Where does one draw the line?
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One draws the line where the money is no longer available. Gun dealers are not held accountable for the crimes of their clients because the NRA is a huge lobby with plenty of the money. Auto dealers and manufacturers are not held accountable because again they're huge lobbyists with lots of money. Do you know who does get held accountable? Bars that overserver people and then let them drive drunk. Why? Because the restaurant industry is too fragmented to effectively lobby
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just seems a rather stupid argument that "enabling" a crime is a crime in and of itself. christ I could stab someone to death with a sharpened candy cane given to me by some kid, should the kid be arrested for making it into a point?
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And also, what law is having an open share breaking? is it also illegal to not lock your doors in the states?
Last i checked it was the process of COPYING the IP that you do not have a license for that is illegal in the US. If you copy an MP3 from someone that is identical in every way to an mp3 you paid for using an online service, I'm pretty sure that would be entirely legal, let alone making it av
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But the files haven't been downloaded, or at least there is no evidence to prove that they were. The RIAA are arguing that they could be downloaded. Its not so cut and dried now, is it?
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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That is the claim you have made.
I could say "It's illegal to enter someone's house and eat their food." to which you could reply "So eating the dinner my friend cooked for me last night at his house was a crime?" and it'd make just as little sense because then you have the owner's permission, just like with Ubuntu you have the copyright holders' permission. Distributing copyrighted material is illegal, that'
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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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-uso.
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That makes you a fan of a freak.
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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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"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) [cornell.edu].
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Making available of copyrighted material is an interpretation of that code that still has yet to be tested with an actual case.
Now, if its upheld in this and becomes referrable case law, then you are entirely correct.
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To me, that is more associated with the act of copying and outputting the file from its digital form to the "content" form.
Now, if this case ends up in the courts upholding the RIAAs interpretation of performance, which parallels what you're saying, only THEN will that truely be what the law means.
Intent and Interpretation are at
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Do you think you wouldn't be breaking an NDA if you published confidential PDFs on a website absent proof that anyone downloaded? Would you think that your right to privacy was violated if someone posted your home address, social security number, mother's maiden name, and date of birth in a file even though there was no proof it was downloaded either?
Do you realize just how insanely great it would be for corps if trade secrets covered by NDA's had copyright protection too? And what a major boon for personal privacy if all those personal facts were subject to copyright law. Too bad it doesn't work that way, eh?
Ask yourself why people use P2P and not webservers. If they aren't breaking the law they should be happy to post these files on their home pages next to their names and email addresses, right?
Because most people cant figure out how to put a 5MB file, or really a file of any size, on a webserver, but they can download and install napster/edonkey/utorrent/etc with minimal hassle?
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The way i would see it as a judge, a file is not a performance nor display, a filename is not a performance nor display, a digitally encoded file is not a performance nor display.
A work is only displayed or performed when said file is converted to the audible or visible form, which requires a player not just the file in question.
Since the file on its own bears no relation to the work without a player, why would the supplier of the file be considered in breach of crap all when
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Re:As much as i hate the RIAA....WRONG TARGETS (Score:2)
Okay, then where is KaZaZ in this suit? And Microsoft? And Dell? And the ISP she subscribed to? Everyone of them enabled her -- or somebody -- to commit this crime. Why aren't all of them part of this, and every other case?
Excuse me, but your silence is deafening.
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Now it's true that distributing copyrighted material without the permission of the copyright holder is a crime (note the key distinction between what I sa
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Sorry, but isn't this a CIVIL case. If it was a crime, wouldn't this be a CRIMINAL case??
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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.
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Copyright becoming a criminal matter would be absolutely disastrous. You can be sure the RIAA and MPAA would be writing and purchasing the laws, and they'd probably even push for federal laws, where due process is largely absent.
Do you really want a country where someone's entire life can be destroyed, with jail sentences and a criminal record
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Re: Kudos to the NY Country Lawyer! (Score:2)
The last few days he has put in a ton of work with a big spread of news. I could be wrong, but it seems like this year the RIAA monolith is starting to crack, just a little.
Re:But wait... (Score:5, Interesting)
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We can all dream right?
- Toast
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No, that doesn't work.
I can already hear you saying 'just corporations'... So what about the small ones? It would mean the small companies would be unable to defend their rights, unless they could fi
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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But wait, there's more! Corp X says 'I have $50,000' and you get $25k for court fees up front... You spend them, then have NO money. How are they to get their fees back? People would be suing corporations just to have a party on the money using scam lawyers. (If y
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http://en.wikipedia.org/wiki/Amicus_curiae [wikipedia.org]
Offers a good explanation, but basically, they're asking for _your_ argument. This means, if you have a good, coherent, laid out argument for exactly why "making available" does or does not constitute infringement you may be able to influence the decision of the judge. That's right, despite just how bad we (Americans) think w
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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.
Fair use? (Score:2)
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HTTP, FTP, and virtually every P2P app on the planet allow you to download parts of a file.
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It's not like any specific part is needed here -- All the RIAA needs to do is request a small portion of the file (say, 15 seconds worth -- Trivial to determine if you pull the headers first, not much harder if you pull the middle of an MP3)
No Punt Zone (Score:2)
Ban Libraries while you're at it (Score:3, Interesting)
The RIAA and MPAA regularly steal from the IP creators anyway: http://www.ornery.org/essays/warwatch/2003-09-07-
They really don't have a leg to stand on.
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Nope. Then again, libraries pay fees to the copyright owners in proportion with the loaning rates, at least in the part of the world where I live.
In the USA... (Score:2, Insightful)
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That said, that the music company being represented by the RIAA has to demonstrate that infringement actually occurred is a fair point, which is an avenue being
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."
Distribution to the public? (Score:3, Insightful)
This is very interesting. Independent of the RIAA case, it seems to open a whole can of worms for copyright holders generally.
Example: I wonder why this wasn't brought up in the case of Share a News Story With Coworkers, Pay a Fine [slashdot.org] where a company settled for $300,000 for distributing news articles internally to employees.
Another (hypothetical) example: internally distributing copies of Microsoft Office to employees is certainly making them available to a limited group and not to the public at large. What is the catch? The EULA wouldn't seem to apply since it is only agreed to after the program is run, not when it is distributed before ever running it.
Anyone have a .torrent? (Score:3, Funny)
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"?
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You click on a trojan installer, you're liable. You open your network, you're liable. You install a program that does what it should do according to its creator (i.e. share files), you're liable.
The system has a backdoor which was used to infect you, you're not. The system is remotely exploited, you're not. A program has a buffer overflow problem that allowed malware
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I hope you aren't insinuating that it's not legal in the United States because regardless of what the RIAA's media machine campaign has been trying to say, it is legal.
Please don't muddy the waters. They are doing a good enough job of that themselves.
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.
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I expect that much of the
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]-
another Gendanken Experiment (Score:2)
If I could devise some system where I could connect to the kazaa/limewire/etc. network, and appear to have 10,000 songs available for downloading all of high-quality, but my client would not permit the files to be uploaded. What would happen?
I don't have the money to try this out, but I imagine that if somebody did, and was willing to bait the RIAA like this, that we could a) force a change in the way they run their "Investigations" and b) Potentially
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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No. Theft and copyright infringement are very different things.
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Of course, this does not apply to the internet. Car analogies are rarely really good.