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Judge Rejects RIAA 'Making Available' Theory

Posted by ScuttleMonkey on Mon Feb 25, 2008 06:26 PM
from the need-a-new-revenue-strategy dept.
The Courts Media
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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[+] Judge OKs Challenge To RIAA's $750-Per-Song Claim 333 comments
NewYorkCountryLawyer writes "In UMG v. Lindor, in Brooklyn federal court, the presiding judge has held that Marie Lindor can try to prove that the RIAA's claim of $750-per-song statutory damages is a violation of the Due Process Clause of the Constitution, since she has evidence that the actual wholesale price of the downloads is only 70 cents. This decision activates an earlier ruling by the Magistrate in the case that the record labels must now turn over 'all relevant documents' regarding the prices at which they sell legal downloads to online retailers, and produce a witness to give a deposition by telephone on the subject. Judge Trager rejected the RIAA's claim that the defense was frivolous, pointing out that the RIAA had cited no authorities contradicting the defense, but Ms. Lindor's attorneys had cited cases and law review articles indicating that it was a valid defense. See the Decision at pp. 6-7."
[+] 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).
[+] RIAA's "Making Available" Theory Is Tested 222 comments
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."
Firehose:Judge rejects RIAA 'making available' theory by NewYorkCountryLawyer (912032)
[+] News: RIAA's Boston University Subpoena Quashed 39 comments
NewYorkCountryLawyer writes "As first reported by p2pnet, the motion to quash the RIAA's subpoena seeking identities of Boston University students has been granted, at least for the moment. In a 52-page opinion (pdf) the Judge concluded that she could not decide whether or not to quash until she had seen the college's 'Terms of Service Agreement' for internet service. It was only then she could decide what 'expectation of privacy' the students had. She quashed the subpoena calling for the student identities, and told them they could go ahead with a subpoena just for the terms of service agreement. Interestingly the decision was issued on the very same day as the judge in Elektra v. Barker came to some of the same conclusions."
[+] RIAA Lawyer Jumps Ship 173 comments
NewYorkCountryLawyer writes "The RIAA's top litigation lawyer, who has been personally leading the RIAA's litigation campaign for the past several years, Richard Gabriel, will be leaving his law practice after getting a job as a state court judge for a 2-year term in Colorado. What this will mean to the RIAA's litigation machine is anyone's guess. Mr. Gabriel has personally argued all of the RIAA's main cases, including Elektra v. Barker, Atlantic v. Howell, Atlantic v. Brennan, Capitol v. Foster, Atlantic v. Andersen, UMG v. Lindor, and London-Sire v. Doe 1, and personally tried the Capitol v. Thomas case, the only RIAA case that has ever gone to trial. He was working directly under the supervision of the RIAA's mysterious 'representative' Matthew Oppenheim."
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  • Who the hell gave them the power to just wantonly dispense fair and balanced justice like this? Judges have always been empowered to make huge decisions, but this new behavior is becoming quite alarming. Common sense has been creeping into recent rulings with alarming frequency, and many decisions seem to be based on information, not cash-backed opinions.

    I hope this behavior doesn't continue... the entire American way of life is at stake!
  • I'm taking a poll. What do you think the RIAA will do now with this case?

    (a) Walk away.
    (b) Bury the judge in paper with a 'reconsideration' motion.
    (c) Ask Mr. Brennan to "settle".
    (d) Other.

  • This may affect more than just the RIAA (Score:5, Insightful)

    by Reziac (43301) * on Monday February 25, @07:06PM (#22552020) Homepage Journal
    This is a blow not only against the RIAA legal machine, but also against "thought crime" of all sorts (such as the argument that selling guns facilitates murder). So even as significant as it is by itself, it is a FAR more important decision than it appears.

    • It's worth noting that unlike the typical NewYorkCountryLawyer story gloating about how the RIAA lost some motion on some case somewhere, this is a potentially major development.
      Thanks.

      • The RIAA also lost an uncontested case, the other day. This guy not only didn't have a lawyer, he didn't even show up. And the RIAA still lost because it neglected to include any facts, producing only a 'boilerplate' complaint that could have equally well applied to anyone the RIAA sued. I'd submit this as a story, but it's too much of a rehash now, so feel free to discuss both of the RIAA's losses here.
        It's the same case.

          • Re:Ooops... (Score:5, Interesting)

            by NewYorkCountryLawyer (912032) * on Monday February 25, @07:44PM (#22552524) Homepage Journal

            [W]hat do you think about how this ruling came about even though the defendant defaulted? As I understand it, it's NOT generally a good idea, but thanks to the oddities of RIAA litigation, those who have defaulted haven't done half bad in the cases I've seen, at least comparatively.
            Well I have no statistics, but it's clear that many, many cases in which the defendant defaulted have resulted in judgments against the defendant.

            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.

            I also liked that expert report from the other day. I really hope that information gets presented in court a lot more often.
            Yes, Prof. Pouwelse's report [blogspot.com] is a landmark event, and thoroughly exposes the RIAA's junk science as 'borderline incompetence'. (See discussion on Groklaw [groklaw.net].)

    • Re:kinda dumb (Score:5, Insightful)

      by jtroutman (121577) on Monday February 25, @06:34PM (#22551662)
      No, putting up the sign makes it "intent to distribute", which is not the same as having files in a publicly available folder. This would be like making a copy of a song on a CD, leaving that CD on your porch and having someone come along and pick it up. Then getting sued for distribution.

        • Re:kinda dumb (Score:5, Interesting)

          by vux984 (928602) on Monday February 25, @07:39PM (#22552462)
          Its neither.

          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 .10c page to use their photocopier and makes you use some sort of 'printer card' that you prepay to fill... would that make them infringe? I doubt it...most libraries -do- charge for photocopies.

          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:kinda dumb (Score:5, Insightful)

      by amosh (109566) on Monday February 25, @07:04PM (#22552008)
      Correct, someone WOULD (sue, not arrest) you. Once you burn copies, you're violating copyright, even if you didn't sell any. This ruling doesn't apply to you at all; anyone who comes to your stand can see proof of your illegal activity.

      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.

    • Re:Smart Judge (Score:5, Interesting)

      by Anonymous Coward on Monday February 25, @06:36PM (#22551686)
      Unfortunately, the people that own media creation companies also own the tv, distribution & broadcast companies. Its also not in their best interests for the public to know when its harder for the **AA to sue people. Fear of being sued is the only weapon they think they have to fight copyright infringement. Its not the only option available to them (blanket licences, more reasonable prices, producing better media etc) but when they insist on trying to fight back against copyright infringement all they can do is sue or buy more laws making it easier to sue.

    • Re:Smart Judge (Score:5, Insightful)

      by rhizome (115711) on Monday February 25, @07:26PM (#22552292) Homepage
      if only this would get more mainstream coverage.

      The problem is that the plaintiffs in this case are the companies who would report on this development.

      • Re:Smart Judge (Score:5, Interesting)

        by wealthychef (584778) * on Monday February 25, @07:31PM (#22552342) Homepage
        I think this judge did not go quite far enough. I think the RIAA should have to show not only that distribution occurred, but that the distribution was INTENTIONAL. That is, not the product of accidentally having a file in a directory that Limewire is sharing or something.

        • Re:Smart Judge (Score:5, Informative)

          by cpt kangarooski (3773) on Monday February 25, @08:01PM (#22552726) Homepage
          Well, the law is quite clear that no mental state has to be shown for civil copyright infringement. Even if you infringe purely by accident, and you always acted as reasonably and as carefully as possible, you can still wind up on the hook for infringement. So the court in this case is not going to find otherwise, but it would be a good part of a comprehensive legislative reform. (Though I think an intentional standard is somewhat high)

    • Why is making available rejected in this case but not in the Thom[as] case?
      Because the judge in the Thomas case made an error.

      How are these different?
      No difference. The judge's instructions to the jury in Capitol v. Thomas [blogspot.com] should have been precisely what Judge Arterton said:

      ""[W]ithout actual distribution of copies.... there is no violation [of] the distribution right." 4 William F. Patry, Patry on Copyright 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court's finding "that distribution requires an 'actual dissemination' of a copy")".

        • Hi Ray; You've mentioned a couple of times in this discussion that in the Capitol v. Thomas case the judge was wrong or made an error. That's strong wording, leaving me (a /.-er) with some questions. Is this "error" your opinion, or a legal fact? And if it's fact, is there an appeal in the works and/or can they appeal? Do judges bear any responsibility for making such errors? ...just trying to understand how something this basic can get two completely different rulings: it seems pretty clear to me that only one of the two rulings can be a correct interpretation of the law.
          I guess you could, theoretically, say it's an opinion, and that the RIAA has a different opinion. But the RIAA has no legal basis for its opinion, while I have a clearly worded statute, unanimity among all of the leading scholars, and decades of legal precedent to support my opinion. So when does expression of a solid opinion based on law become 'fact', and when does an opinion based on nothing become a 'lie'? You be the judge, but there is a point at which the expression of a frivolous opinion is so outlandish as to become false and misleading.

          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.

            • So are judges in any way responsible this kind of error?
              Of course the judge is responsible. Judge Arterton had no help from the defendant's side at all; the defendant probably never even got the summons and complaint. But she took it upon herself to do the research, instead of just rubber stamping the RIAA's phony presentation.

              And isn't lying something lawyers should get disbarred for?
              Yes.

      • Re:respect for law (Score:5, Interesting)

        by NewYorkCountryLawyer (912032) * on Monday February 25, @07:28PM (#22552300) Homepage Journal

        This case is legal precedent in only New York, Vermont and Connecticut. Judges will take into consideration what other circuits have decided, but they are certainly not bound by it.
        It's not binding anywhere, other than in the case in which it was rendered.

        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.

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