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Has RIAA Abandoned the 'Making Available' Defense?

Posted by Zonk on Mon Sep 17, 2007 02:21 AM
from the slippery-fish dept.
The Courts Music
NewYorkCountryLawyer writes "The RIAA's standard complaint (pdf) was thrown out last month by a federal judge in California as speculation in Interscope v. Rodriguez. Interestingly, the RIAA's amended complaint (pdf), filed six days later, abandoned altogether the RIAA's 'making available' argument. (Whereby making files available at all for download is infringement.) It first formulated that defense against a dismissal motion in Elektra v. Barker. This raises a number of questions: Is the RIAA is going to stick to this new form of complaint in future cases? Will they get into a different kind of trouble for some of its their new allegations, such as the contention that the investigator "detected an individual" (contradicting the testimony of the RIAA's own expert witness)? And finally, what tack will defendants' lawyers take (this was one lawyer's suggestion)?"

Related Stories

[+] RIAA v. Barker Showdown Slated for January 76 comments
NewYorkCountryLawyer writes "Judge Kenneth M. Karas has set Friday, January 26, 2007, at 2:15 P.M., as the oral argument date for Tenise Barker's motion to dismiss complaint, in Elektra v. Barker, in federal court in Manhattan. The argument will take place at the newer federal court house, located at 500 Pearl Street, New York, New York, in courtroom 21D on the 21st Floor. Proceedings are open to the public. This is the case in which amicus briefs were filed by the Motion Picture Association of America (MPAA), the Electronic Frontier Foundation (EFF), the U.S. Internet Industry Association (USIIA) and the Computer & Communications Industry Association (CCIA), and a Statement of Interest was filed by the U.S. Department of Justice (USDJ). Defendant Tenise Barker moved to dismiss the complaint on the ground that neither downloading nor uploading had been alleged sufficiently to give her notice of what she was being accused of, and on the further ground that merely "making available for distribution" was not a copyright infringement at all. The RIAA and MPAA argued that merely "making available" was indeed a copyright infringement. Defendant, CCIA, and USIIA argued that it was not. EFF argued that intangible computer network transmissions cannot be "distributions" within the meaning of the Copyright Act. USDJ argued that they can be. Defendant refrained from taking a position on that issue here and here. The DOJ refrained from taking a position on the "making available" argument, indicating that it had never prosecuted anyone for "making available". See page 5, footnote 3."
[+] RIAA's 'Expert' Witness Testimony Now Online 512 comments
NewYorkCountryLawyer writes "The online community now has an opportunity to see the fruits of its labor. Back in December, the Slashdot ('What Questions Would You Ask an RIAA Expert?') and Groklaw ('Another Lawyer Would Like to Pick Your Brain, Please') communities were asked for their input on possible questions to pose to the RIAA's 'expert'. Dr. Doug Jacobson of Iowa State University, was scheduled to be deposed in February in UMG v. Lindor, for the first time in any RIAA case. Ms. Lindor's lawyers were flooded with about 1400 responses. The deposition of Dr. Jacobson went forward on February 23, 2007, and the transcript is now available online (pdf) (ascii). Ray Beckerman, one of Ms. Lindor's attorneys, had this comment: 'We are deeply grateful to the community for reviewing our request, for giving us thoughts and ideas, and for reviewing other readers' responses. Now I ask the tech community to review this all-important transcript, and bear witness to the shoddy investigation and junk science upon which the RIAA has based its litigation war against the people. The computer scientists among you will be astounded that the RIAA has been permitted to burden our court system with cases based upon such arrant and careless nonsense.'"
[+] 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.'"
Firehose:Has RIAA Abandoned "Making Available"? by NewYorkCountryLawyer (912032)
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  • Defense? (Score:5, Insightful)

    by hazem (472289) on Monday September 17, @02:39AM (#20633191) Journal
    Has RIAA Abandoned the 'Making Available' Defense?

    IANAL, but I can't imagine the RIAA is offering to many defenses in these court cases. Maybe they're abandoning the complaint of "making available"? That's what the article seems to indicate...

    • Re: (Score:2, Informative)

      by GwaihirBW (1155487)
      "It first formulated that defense against a dismissal motion" So, it's a defense of their offensive (in several ways!) cases, justifying ("defending") their acts of bringing people to court.

        • Re: (Score:2, Informative)

          by fenderized (976906)
          That's rubbish. Let's look at the examples from "American Heritage Dictionary" (it was handy, use another if you want).
          1. In addition; also: He's coming along too.
          2. More than enough; excessively: She worries too much.
          3. To a regrettable degree: My error was al

  • This complaint is no better (Score:5, Interesting)

    by JoelKatz (46478) on Monday September 17, @03:02AM (#20633325)
    This complaint is no better. It claims they "detected an individual" who is "distributing". But they don't actually detect any distribution. Their "download and/or distribute" language makes no sense, since they never detect anybody downloading anything.

    This should be rejected summarily as well.

    • Re: (Score:2, Informative)

      by Mathinker (909784)
      > It claims they "detected an individual" who is "distributing".
      > But they don't actually detect any distribution.

      Nor do they detect an "individual". An IP address isn't an individual. If you're lucky, you might be able to connect it to a particular

      • > It claims they "detected an individual" who is "distributing". > But they don't actually detect any distribution.
        Precisely.

        They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.

      • Re:This complaint is no better (Score:5, Insightful)

        by NewYorkCountryLawyer (912032) * on Monday September 17, @06:00AM (#20634143) Homepage Journal

        It claims they "detected an individual" who is "distributing". But they don't actually detect any distribution.
        Nor do they detect an "individual". An IP address isn't an individual. If you're lucky, you might be able to connect it to a particular computer at a particular time.
        Precisely.

        They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.
        [ Parent ]

        • If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both

          • Re: (Score:3, Insightful)

            by NewYorkCountryLawyer (912032) *

            If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. That's incorrect, however. Given the ease with which the correct simplification could be made, provided that the RIAA lawyers or their technical advisors do understand the concepts of an IP address and uploading and difference between a person and computer and the meaning of the word potential, the only remaining possible purpose of their simplification is not to inform, but to mislead the judge.
            It's clear that the only purpose is to mislead the judge. It's not a simplification to say you detected "an individual" when you didn't. It's a lie.
    • ... I'm just putting the files where I can access them for my own listening enjoyment while I'm on the road/at work/in Starbucks. That's just fair use since I bought the rights to listen. I don't intend for anyone else to be listening, but I guess they cou
      • That defense can work, but only if you can convince a judge that you're "too dumb to know". I.e. if you happen to work in the IT field, he'll probably not believe you that you don't know what "your computer" means when he asks you to share c:\.

        And forget i

        • Re: (Score:3, Interesting)

          by rhizome (115711)
          That defense can work, but only if you can convince a judge that you're "too dumb to know".

          Not necessarily. You could say you only intended to share the files with yourself in another location. IANAL, but I don't believe the law requires an individual to t

  • At this point.... (Score:5, Interesting)

    by rts008 (812749) <rts008 @ h o tmail.com> on Monday September 17, @03:18AM (#20633411) Homepage Journal
    I don't see either the RIAA or the MPAA turning down any chance to turn a buck their way- even soliciting BJ's in rest area bathrooms.

    Remember, this is the same crew that established 'payola' in the late 1950's and refined it in the decades since despite several court cases decided against them for this.
    Reminds me of a Pennsylvania farmer I once knew. He made his living by poaching deer and selling the meat to some fancy, high dollar Maryland and D.C. restaurants. He would get caught poaching, pay the stiff fines out of a roll in his pocket and claim that it was only 3 days profits, and only got caught several times a year. Just a small operating expense...no big deal. He just laughed it off and even bragged about it.

    I see the same mentality with the RIAA and MPAA, just throw crap against the walls as fast as you can...surely some of it will stick!

    Remember: IP means Internet Protocol. ;-)

    • Re:At this point.... (Score:5, Insightful)

      by mpe (36238) on Monday September 17, @03:58AM (#20633609)
      Reminds me of a Pennsylvania farmer I once knew. He made his living by poaching deer and selling the meat to some fancy, high dollar Maryland and D.C. restaurants. He would get caught poaching, pay the stiff fines out of a roll in his pocket and claim that it was only 3 days profits, and only got caught several times a year. Just a small operating expense...no big deal. He just laughed it off and even bragged about it.

      The only unusual thing is an individual being able to use this kind of business model. Corporations have the advantage that they cannot be arrested.
      [ Parent ]
    • Well, my two thoughts are:

      1) Good for the farmer... the deer population in the northeast is so ridiculous that with the ticks these animals have, they're as bad as rats in the city. The states ought to up the bag limit to 3 or 4 buck per season and allow

      • Re: (Score:3, Interesting)

        by Bozdune (68800)
        Exactly. They are rats with hooves. And they aren't the little mule deer from California, either, these are the big white-tailed deer. Very large animals. I can't mow the lawn without picking ticks off my ass, and I have to surround every shrub and eve

    • Not disagreeing with the main point of your post, but, and I think they're the only animal I can say this about, somebody caught poaching deer should be given a fucking medal.

      Deer are nowhere near even being endangered. Their population is not falling. If

  • Oblig. IT crowd reference (Score:5, Funny)

    by Eudial (590661) on Monday September 17, @03:20AM (#20633421)
    It felt appropriate to say

    You wouldn't steal a handbag... You wouldn't steal a car... You wouldn't steal a baby... You wouldn't shoot a policeman, and then steal his helmet... You wouldn't go to the toilet in his helmet, and then send it to the policeman's grieving widow, and then steal it again! Downloading films is stealing!

    • Re: (Score:2)

      by deniable (76198)
      Piracy is worse than cannibalism. :(

      • Re: (Score:3, Funny)

        by Opportunist (166417)
        Only if your diet consists of IP/copyright lawyers.

        Oh, you mean legally, not morally. My fault, sorry.

  • Redundant Breakdown (Score:5, Insightful)

    by Nymz (905908) on Monday September 17, @03:24AM (#20633451) Journal
    What happened?
    -The RIAA claimed that simply making copyright material available online,
    was proof of intention to commit copyright infringement (We got proof!)
    -Defense Lawyers challenged that claim as insufficient evidence (No you don't!)
    -A Judge agreed with the Defense Lawyers (Ya, that isn't enough proof, begone RIAA!)
    -RIAA returns, but drops the 'making available' argument (Is this better?)

    What could happen now?
    -The RIAA would stop bringing cases based solely upon the 'making availble' argument (If it wasn't for those darn Slashdoters)

    • They've lost the battle. Not the war. (Score:4, Insightful)

      by jimicus (737525) on Monday September 17, @04:14AM (#20633681) Homepage
      Look to past history.

      Any technology which allows the end-user to produce their own media (and some which didn't) has scared the entertainment industry.

      First there were records - "But who will pay to see live performances if they can just play the record?". Then they realised that they could make a roaring trade selling records themselves.

      Then came analogue tapes: "But who will buy records if they can just tape from a friend?" - then they established a business in selling tapes as they're smaller and it's very hard to play a record in a car.

      Then came videos: "But who will go to the cinema if they can record movies from the TV?" - then they established a business in selling pre-recorded videos.

      Then came affordable CD burners: "But who will buy CDs if they can copy from a friend?" - well, actually rather a lot of people. Though that didn't stop a lot of countries being pressured to establish taxes on blank media and passing these taxes back to the recording studios.

      Now audio and movies can be easily shared over the Internet: "But we must stop this, lest nobody buy music, movies or visit the cinema!". What they really mean is "We're not sure that this sits well with our business model and we haven't yet figured out how best to exploit it so it does. While we're in the process of doing that, please talk quietly amongst yourselves AND STOP SHARING MUSIC, DAMMIT!".
      [ Parent ]

      • Re: (Score:2)

        by Nymz (905908)

        Any technology which allows the end-user to produce their own media (and some which didn't) has scared the entertainment industry.
        After reading your list of different media types, and how bussinesses had to adapt over the years in order to survive, it se

        • Re: (Score:2)

          by jimicus (737525)
          I disagree that the stakes are substantially higher.

          The entertainment industry has always had a business based on flogging what's New! Shiny! Entertaining! And Not Identical To The Last One, Honest! (singles, latest Britney Spears clone, latest song by est

      • Re: (Score:3, Interesting)

        by Opportunist (166417)
        Their problem this time is that it's not so easy to cash in on "empty media" as it was in the past. In some countries you pay an "RIAA tax" on every blank tape, CDR and now even hard drive you buy.

        For tapes and CDRs this didn't bother businesses so much. H
    • They replaced the "and/or making available" language with language claiming that they "detected an individual". Aside from what the attorney linked to in the article says about the dropping of the old language being a defense, there is also a more positive

      • Re: (Score:2)

        by Nymz (905908)

        Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your computer at the time (and it only has to
        • In a sense it doesn't matter, because that is what they are claiming in their court papers. If their claim is false (they did not "detect an individual"), there is no case. If they meant something else, then they should have claimed something else.

          But t

      • Re:There is more to it than that. (Score:5, Informative)

        by NewYorkCountryLawyer (912032) * on Monday September 17, @06:08AM (#20634169) Homepage Journal

        They replaced the "and/or making available" language with language claiming that they "detected an individual". Aside from what the attorney linked to in the article says about the dropping of the old language being a defense, there is also a more positive defense now, from their claim: Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your computer at the time (and it only has to be theoretical), then then cannot pin this on an individual, so they have no case. Other cases have been won on the basis that the person who allegedly did the downloading had an open wifi access point on their internet connection, so the "crime" could actually have been committed by an unknown party, half a block away.
        I brought this to the attention of the Judge at the June 29th conference in Warner v. Cassin [blogspot.com], where the attorney, Timothy Reynolds, actually said to the Judge that their investigator had "detected an individual". The Judge got mad at me, though, when I indicated to him that it was a violation of Rule 11 for the attorney to have made the deliberately false statement, instead of getting mad at the attorney who'd lied to the Court.
        [ Parent ]
        • Sorry to hear that. But I guess there is no way to force all judges to be rational. We have had some bad decisions by local judges around here, too. But that is just my opinion... while I have a smattering of legal education, I am not one of them, nor a la

          • Re: (Score:3, Insightful)

            by NewYorkCountryLawyer (912032) *

            Sorry to hear that. But I guess there is no way to force all judges to be rational. We have had some bad decisions by local judges around here, too.
            It's not as bad as that. If you read the transcript you'll see that () the Judge didn't make any decisions, and (b) he evidenced awareness that it was impossible for them to have 'detected an individual'.

            He just seemed to think it was bad form for me to

      • Re: (Score:2)

        by mpe (36238)
        Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your computer at the time (and it only has to

  • But ofcource (Score:2, Interesting)

    by cybergen007 (1062390)
    they are dropping this kind of defense. If you out something available on the internet they 1. Have to prove it was actually you who made the file available 2. The content of the file is actually what the filename indicates (If you put a empty text file o
  • That guy is a blooming idiot! The defense lawyer knew more about IP addresses, routers, networks, and MAC addresses than they guy with an PhD in computer engineering! It was pretty entertaining reading.

    • Re:Slashdot is just a pro-piracy site (Score:4, Funny)

      by Anonymous Coward on Monday September 17, @03:07AM (#20633353)
      Except when it comes to GPL software. Stealing 20 lines of GPL code should be punishable by death!
      [ Parent ]

    • Re:Slashdot is just a pro-piracy site (Score:5, Insightful)

      by digitig (1056110) on Monday September 17, @04:57AM (#20633865)

      I'm sick of slashdot pretending to be some kind of grown up adult web site, when in reality, like digg, its just a publicity machine for the idiots in the pirate party.
      You seem to be a little confused. /. is not a person. /. is a collection of lots of different people, including you, with different views, including yours. /. does not pretend or claim to be anything beyond "News for nerds. Stuff that matters", although individuals may pretend or claim that it is something else. /. cannot be a publicity machine for any interest group (except, perhaps, nerds) because although individuals may act as publicity machines for particular groups it's an open forum and so contrary opinion can always be expressed with equal weight (and the holder of that contrary opinion is just as liable to get mod points). Do try to remember that a couple of guys you happen to disagree with do not comprise the whole of /., and if you have a counter-argument to what they say then present it.
      [ Parent ]

      • That's not quite true (Score:3, Insightful)

        by Nymz (905908)
        The AC appears to be complaining about the daily story selections, and not neccessary regular posters like you and I. To be fair, there are only 14 authors total, and they decide what goes on the front page.

        While I consider Slashdot worthy enough to rea

    • Re:Slashdot is just a pro-piracy site (Score:5, Interesting)

      by Opportunist (166417) on Monday September 17, @06:31AM (#20634277)
      Pro-piracy? More anti-extortion. Or anti-money-makes-right, pick your flavor.

      It doesn't bother us (well, me, at the very least) so much that someone who illegally copies content gets busted and has to pay for it. What bothers me is the blanket/boilerplate way this is tried. The content industry usually has little to no evidence and abuses the court system for practices that smell a lot like extortion. "Pay or we drag you to court and your expenses are insanely higher" is the message.

      Interesting enough, every single case is dropped as soon as the defendent has the guts (and money) to stand up against the threat.

      So far they failed to present a single solid case. They rely on judges who don't know jack about the matter, on people who cannot afford to actually go to court against them and on scaremongering.

      And yes, that's what I'm against. I can rather live with a pirate in freedom than with a corporation having the right to extort money from whoever they please.
      [ Parent ]

      • Re: (Score:3, Insightful)

        by kebes (861706)

        It doesn't bother us (well, me, at the very least) so much that someone who illegally copies content gets busted and has to pay for it.
        Incidentally, it does bother me. Why? Because we all know that a huge number of people infringe copyright on a daily bas

        • Re: (Score:3, Insightful)

          by Opportunist (166417)
          The sad fact is that with the increasing insanity spreading throughout copyright law, it's quite possible that everyone who ever touched a machine capable of reproducing copyrighted content infringed in a way or another. Often without even trying or knowin

        • Re:Slashdot is just a pro-piracy site (Score:4, Interesting)

          by Opportunist (166417) on Monday September 17, @08:54AM (#20635599)
          Of course I have something to hide. If you don't, install PCAnywhere on your PC and post IP, Port and user/pass.

          I'm getting REALLY royally pissed at "nothing to hide" bullcrap. Sorry, but my privacy is the only thing I will defend with my life. It's neither your, nor any country's, nor the RIAA's business what's on my PC, in my apartment or on my mind.

          Yes, I have something to hide. It's called my private life. You want it? Over my dead body.
          [ Parent ]

      • Entrapment? (Score:2, Informative)

        by Moraelin (679338)

        If you don't think that invading someone's privacy is wrong, or entrapping people into squeezing money out of them is wrong, there is something wrong with you.


        I'm sorry, while I'd even agree with the privacy slant, and I don't really have much love for the

    • Re:Safe yet? (Score:5, Interesting)

      by Technician (215283) on Monday September 17, @04:31AM (#20633743)
      Is it safe to SEED again?

      Not yet. The RIAA didn't drop the complaint. They just amended it.

      In the meantime, fly under the radar. Swap USB drives.
      [ Parent ]

      • Re: (Score:2)

        by mpe (36238)
        The RIAA didn't drop the complaint. They just amended it.

        Is this actually allowed after a judge has tossed the case.
        At best they should have to grovell humiliatingly to the judge, at worst start a whole new case from scratch.

        • Re: (Score:3, Informative)

          by NewYorkCountryLawyer (912032) *

          The RIAA didn't drop the complaint. They just amended it.
          Is this actually allowed after a judge has tossed the case. At best they should have to grovell humiliatingly to the judge, at worst start a whole new case from scratch.
          It's common to dismiss a complaint and grant leave to replead. In this case the judge expressly gave them leave to replead.

    • Re:Safe yet? (Score:4, Funny)

      by Jane Q. Public (1010737) on Monday September 17, @04:49AM (#20633823)
      Depends on who your partner is. :o)
      [ Parent ]

    • Re:Safe yet? (Score:4, Funny)

      by nacturation (646836) on Monday September 17, @04:54AM (#20633853) Journal

      Is it safe to SEED again?
      Naturally you mean things like various Linux distribution ISOs, works released under Creative Commons license or in the public domain, your own creative content, etc.? It's always been safe to seed those. Why do you ask?
       
      [ Parent ]

      • Re: (Score:2)

        by Podcaster (1098781) *
        You must be new...no, wait...RIAA sues YOU!...I mean...PROFIT!!!

        Sorry, I'm just an expression of the slashdot group-think mind-fuck that goes for "copryright reform" discourse here.

        The whole point of what NYCL is doing is almost a public service in pushing

    • Re: (Score:2, Interesting)

      by somersault (912633)
      I'd vote you for president (if I were an American, lived in America, and had registered to vote at least).
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