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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.
from the need-a-new-revenue-strategy dept.
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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Entertainment: 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."
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News: 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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News: 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."
[+]
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 181 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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News: RIAA Gives Up In Atlantic Recording v. Brennan 230 comments
NewYorkCountryLawyer writes "In Atlantic Recording v. Brennan, the landmark Connecticut case in which the first decision rejecting the RIAA's 'making available' theory was handed down, the RIAA has finally thrown in the towel and dismissed its own case. Mr. Brennan never appeared in the case at all. In February, 2008, the RIAA's motion for a default judgment was rejected for a number of reasons, including the Court's ruling (PDF) that there is no claim for 'making available for distribution' under the US Copyright Act. The RIAA moved for reconsideration; that motion was denied. Then, in December, the RIAA's second motion for default judgment was rejected. Finally the RIAA filed a 'notice of dismissal' ending the case."
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What the hell is with judges this year?!? (Score:5, Funny)
I hope this behavior doesn't continue... the entire American way of life is at stake!
Poll: What will the RIAA do now? (Score:5, Insightful)
(a) Walk away.
(b) Bury the judge in paper with a 'reconsideration' motion.
(c) Ask Mr. Brennan to "settle".
(d) Other.
Re:Poll: What will the RIAA do now? (Score:5, Funny)
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Re:Poll: What will the RIAA do now? (Score:5, Informative)
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Re:Poll: What will the RIAA do now? (Score:5, Informative)
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This may affect more than just the RIAA (Score:5, Insightful)
Re:This may affect more than just the RIAA (Score:5, Interesting)
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Re:ouch... (Score:5, Funny)
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Re:ouch... (Score:5, Funny)
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Re:This is actually important... (Score:5, Funny)
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Re:This is actually important... (Score:5, Funny)
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Re:This is actually important... (Score:5, Informative)
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Re:Ooops... (Score:5, Interesting)
However, you're absolutely right that some of the best rulings have come in default cases, which of course really has to make you wonder. Examples are Interscope v. Rodriguez [blogspot.com], this case, and Atlantic v. Dangler [blogspot.com].
Thing is, in Dangler they came back with a reconsideration motion, there was still no one fighting back, and the judge was hoodwinked by the RIAA's mountain of phony papers, and went ahead and entered the judgment.
Parent
Re:kinda dumb (Score:5, Insightful)
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Re:kinda dumb (Score:5, Interesting)
1) You don't 'index and share your songs via Kazaa', Kazaa et al, do tha all by themselves, without user intervention, in their default course of action. Many users aren't even aware 'they did it'.
2) I've always liked the library analagy. Its a public building, open to the public, and full of books. Photocopiers are placed conveniently often even marked with signs --> photocopiers this way. The books are carefully organized to make them easy to find. And there are computers scattered around so you can look them up that way too.
They've set everything up they possibly could to let you make copies. Yet if you do so, YOU are liable for infringement, not them.
By analagy, if I set up a computer, put it in a public place (like the internet), with songs available on it, and also set it up with tools that will make copies of those songs for you if you send it the right commands.
Now if you send my computer a command to transmit you a copy of the song... shouldn't YOU be liable for infringement? My computer isn't making copies and sending them out... YOU asked my computer to do it. All I did was set it up to listen to requests.
How is that fundamentally different from a library? If I could somehow operate the library photocopier by remote from my computer, would that suddenly shift the blame for making copies to them? I should think not. Its still YOU who have (remotely) operated the copier to make an infringing copy.
Finally, as a side note... if YOU own the CD in question, and feel its easier to download a copy using my publicly available computer to send you one, rather than ripping your own CD. Shouldn't that be legal. I as the computer owner have done nothing illegal by making it available. You have done nothing illegal because you have the right to make personal use copies of that song by virtue of the fact that you own a copy.
Why or Why not does this 'theory' work?
Finally if I charge you for access to my system that allows you to make copies am I a pirate then? Good question... interestingly, I still think not. If a library charges you
So its only infringement if they start making the actual copies themselves. Setting up the equipment and letting you operate it, even if they charge you for access, doesn't make them liable for infringement.
Although at some point you might argue that their is a conspiracy to commit infringement...
Parent
Re:kinda dumb (Score:5, Insightful)
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.
Parent
Re:Smart Judge (Score:5, Interesting)
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Re:Smart Judge (Score:5, Insightful)
The problem is that the plaintiffs in this case are the companies who would report on this development.
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Re:Smart Judge (Score:5, Insightful)
'Real' news indeed.
The standards of what's deemed newsworthy in the US are completely off. This case, a milestone in the RIAA's war against file-sharers, isn't newsworthy, but a pop-psychologist making blatantly erroneous statements [shacknews.com] out of ignorance is? Doesn't seem right.
Parent
Re:Smart Judge (Score:5, Interesting)
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Re:Smart Judge (Score:5, Informative)
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Re:So uhm... why is this different? (Score:5, Informative)
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Re:So uhm... why is this different? (Score:5, Insightful)
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.
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Re:So uhm... why is this different? (Score:5, Insightful)
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Re:respect for law (Score:5, Interesting)
But where a judge has done his or her homework, and is right.... other judges will follow. This judge has done her homework, and is right. Other judges will follow.
And when these issues get to an appeals court, there is no other possible answer than the one she gave: (a) the complaint doesn't satisfy the federal pleading standards for the alleged violations of the right of reproduction (uploading and downloading), (b) there is no such thing as a claim for 'making files available for distribution', (c) there is a meritorious defense of copyright misuse, and (d) there is a meritorious defense of unconstitutionality of the plaintiffs' statutory damages theory.
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