Judge Rejects RIAA 'Making Available' Theory 353
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."
Smart Judge (Score:3, Insightful)
Re:Smart Judge (Score:4, Funny)
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But that's hoping for too much I'm afraid.
P.S. To Newyorkcountrylawyer, great work you're doing, please keep it up
Re:Smart Judge (Score:4, Insightful)
What makes you think anywhere close to a majority of us would vote for Ron Paul? Seems like a poor indication of how mainstream Slashdot is.
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**I did, but I'm just one in, uh, a million and change...
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How'd the old quote go? (attrib. Churchill but may be older.) Something like: "If you're not a liberal at 20, you have no heart. If you're not a conservative at 40, you have no brain."
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It wasn't Churchill; it was a Frenchman, François Guisot (1787-1874).
My favorite quote along these lines:
In the end, conservatives always lose. If they didn't, we would still be living in caves.
Re:Smart Judge (Score:4, Insightful)
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But hey, rationalization is more important than sex. Think not? Every try to go a day without three really juicy rationalizations?
Re:What about Obama? (Score:4, Insightful)
The focus of the poster is to say "you dont matter". Not only that, but to say thathe is being RATIONAL in making that claim. An individual absolutely does matter in National Politics. Anyone who says otherwise needs to learn some math, and some basic economic theory.
Basically, the value of your vote is the total value of all votes, divided by the total number of all votes.
So to say your vote has a tiny Percentage of effect, so small as to be ALMOST un-noticable, is true. There are, in a national election, some 90 million voters. So your individual vote has a worth (and it actually is a little different than this because it does vary state by state) of ~ 1/90,000,000.
However, the Federal Budget is roughly (depending on what you take into account) some 3 TRILLION dollars. How that money get allocated is decided by the people you do or don't vote for.
So, just a rough number to think about, your vote is worth 3 TRILLION/ 90 MILLION. Roughly 33 THOUSAND dollars.
Now, you can argue about different things in that number, and whittle it up and down depending on how you look at it (entitlements, not being able to choose a canidate who exactly matches you, etc.). But to claim that it is RATIONAL to say your vote is worthless is just stupid.
Anyone making such a claim is being stupid (or simply trying to discourage voters, which the republican party does a lot of, actually), and certainly shouldn't be modded anything other than troll (the effect of people encouraging others not to vote is that there is a disproportinate representation of wealthy people voting. The wealthy, tend to believe that their vote counts. And they turn out. And Vote. And it does. This is one of the reasons that while the country tends to identify as Democrats (by close to a 60/40 margin) The VOTING population breaks about even. This is one of the reasons that we have an embargo on Cuba (they Cuban Ex-Pats almost all vote).
Re:Clueless. (Score:4, Informative)
Are you kidding?
You can keep stating that all you want, but it doesn't make it any more true.
His philosophies were not heard and the only ones rejecting it were the main stream media outlets making the decision for you. The public was never given the opportunity to reject his philosophies. For that matter, the public was never given the opportunity to reject a handful of the other candidates philosophies either.
And do you really believe that the majority of voters travel to stump speeches to make up their minds about the candidate? This isn't the 1800s anymore - the vast majority form their opinion based on what they hear from TV, radio and print.
It's popular to blame the media because THEY are the entity that uses their power to shape public opinion. And they have, almost 100% of the time since day 1 of campaign coverage, excluded Ron Paul when listing/talking about the candidates. The have, since the beginning, called him and his supporters names and stated he has no chance.
Yet you think I'm unjustified in saying that these actions don't have any impact on popular opinion?
You are naive:
Re:Smart Judge (Score:4, Interesting)
The only angle under which this is "news" is that file sharing just became a lot more reasonable, and that's not something that IP-based conglomerates (aka the mainstream media) are going to be pushing. It just sounds dirty to them, and I don't think it's even a conscious decision. There's just no reason that a modern news reporter would think this was of general interest.
Re:Smart Judge (Score:4, Interesting)
Re:Smart Judge (Score:5, Interesting)
Re:Smart Judge (Score:5, Informative)
Re:Smart Judge (Score:4, Insightful)
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Were the RIAA to be dissolved in a fit of legal briefs, that might make the business pages--but it would take something fairly spectacular to get into the 'real' news.
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.
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It's mostly due to the perception of the american public that anything that doesn't directly affect them is not terribly important--hence, the American Idol winner, the winner of the presidential election, and the price of gas are 'news' while most legal decisions are merely trivia, unless you're a lawyer or directly involved as one of the parties.
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Not to split hairs, but how does American Idol directly impact the public, especially those of us that refuse to watch it?
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Thus, we're not in the mainstream--and hence, not the folks that the mainstream 'news' is targeting.
Those that do watch it are impacted directly with watercooler gossip or somesuch, I suppose. I'm not exactly certain why it's news, to be honest--I don't watch the thing myself--but that's my best guess.
Re:Smart Judge (Score:5, Interesting)
Re:Smart Judge (Score:4, Interesting)
Re:Smart Judge (Score:5, Insightful)
The problem is that the plaintiffs in this case are the companies who would report on this development.
ouch... (Score:4, Funny)
Re:ouch... (Score:5, Funny)
Re:ouch... (Score:5, Funny)
Geez... (Score:2)
respect for law (Score:3, Interesting)
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There isn't an "attempted copyright infringement" law, or at least I don't believe there is. (Is there a conspiracy charge that can be used?) So it's not illegal until copying actually happens. That, however, is not what the RIAA has been arguing, to various degrees of success.
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So this form of copyright infringement is illegal, but the law impossible to enforce? Not a good situation. Congress will be forced to give IP rights holders increased power to police infringement.
Connecticut is in the 2nd District [wikimedia.org]
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.
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.
Re:Non-mutuial Collateral Estoppel (Score:5, Funny)
Your big words must be a bitch.
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This is actually important... (Score:4, Insightful)
Re:This is actually important... (Score:5, Funny)
Re:This is actually important... (Score:4, Funny)
Re:This is actually important... (Score:5, Funny)
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Seriously though, thanks for what you do.
Re:This is actually important... (Score:4, Funny)
Don't fret Ray. Otter will probably need some legal help sooner-or-later. Then you can reply, "Otter who?"
Re:This is actually important... (Score:5, Informative)
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.
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.
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Also, b. I'm hoping to seem something wacky in d, but I think b.
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e) Attack Mr Brennan's kneecaps with a ballpeen hammer.
f) Hire some guy named innie to hit the judge over the head with a shovel
g) Go the Miskatonic University and do research on resurrecting CowboyNeal.
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But if B works, then C, accompanied by much media fanfare, geared toward intimidating other judges into NOT thwarting the RIAA's will. ("See? you don't want to be the next fool who gets forced to reconsider, or worse overturned, when you bucked us, do you??")
One can hope this will continue to backfire, as more judges become aware that the RIAA's cases are generally just so much horseshit.
Re:Poll: What will the RIAA do now? (Score:5, Funny)
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(a) Walk away.
(b) Bury the judge in paper with a 'reconsideration' motion.
(c) Ask Mr. Brennan to "settle".
(d) Send in CowboyNeal
(e) Breasts
There, I fixed it for you.
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i'm betting b + c for some reason.
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(e) Continue to live a life of disgusting filthy rich luxury
Re:Poll: What will the RIAA do now? (Score:5, Informative)
Re:Poll: What will the RIAA do now? (Score:5, Informative)
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Or perhaps they're filing more suits than they can reasonably expect to fight, banking on having most of 'em settle out of court, so a few slip through the cracks from time to time?
If that's the case, and it could be proven that such a load is an unreasonable hinderance on the court system, then perhaps a class action suit on behalf of all the people being delayed by the RIAA's nonsense might be....profitable.
if only (Score:2)
w00t
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No. Common sense says the stock market is going to stay down for a LONG time yet, until the economy gets its act together. Wanting it to be way up is not common sense, it's "wishful thinking". Wait for tomorrow, you'll see. We bears will have our way, but first we need buyers for our shorts
This may affect more than just the RIAA (Score:5, Insightful)
Re:This may affect more than just the RIAA (Score:5, Interesting)
Where to now for the RI, "after the Gold Rush"? (Score:4, Insightful)
So what about claims that the MI (music industry) is dead by association? This seems to be another illogical grab for air in a bid by the RI to survive. The MI has existed since the first huddle of cavemen got together, beat drums in time, and feasted with a dancing tribe. Music and the MI preceeded the RI gold rush and did quite well about it thank you very much. Musicians are artists and art is most often a matter of the heart searching for and finding expression. Cash is all well and good, but at the end of the day if payment for music is extinguished altogether, music will prevail irrespective. Art is not extinguished by poverty, so neither is music. Only greedy troughing is extinguished by poverty.
Here's a tip: I play in a band. We're not too bad at what we do. We put smiles on faces every show and most of the time we cover our up front costs. We never cover our "hours" put in, and we don't care, because it's Art, and we all have day jobs anyway. And guess what? There's no greedy corporation troughing from *our* Art.
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In all of these, ther
Devil's Advocate (Score:3, Insightful)
The argument is that the RIAA needs to prove *actual* harm (copying) took place, rather than just creating a significant potential for harm. However, there are many instances in law where creating the potential for harm is punishable, without actual harm.
Here are some examples. Speeding is illegal because excessive speed creates a much higher chance of damage, injury and death. It is not necessary to show actual damage, injury or death was caused by a speeding motorist to charge them. Releasing carcinogens into the environment is (should be?) illegal, even though we can't prove whether a specific case of cancer in an exposed individual would or would not have occured without the exposure. Distribution of child pornography is illegal because of the harm done to children in producing it, and because it may prompt "consumers" to harm children. In a given case of C.P. distribution, it is not necessary to demonstrate that a child was harmed in the production, that the production would not have occured without this instance of distribution, or that a user of the material harmed a child in response to viewing it.
It seems to me that punishing "potential harm" is justifiable under certain circumstances:
* If the harm is large but rare, and if the harm does occur, the at-fault person is not able to make full restitution. (Speeding would fit into this category.)
* If the harm is real, but it is very difficult to connect any instance of actual harm to a specific instance of increased-chance-of-causing-harm behaviour. (Releasing carcinogens fits into this category, as does any 'many small polluters' situation.)
The 'making available' theory clearly does not fall into the first justifiable category. Whether it falls into the second category is open to argument. There is at least a case to be made that it does - showing that a work was made available *and* that somebody took advantage of that availability is technically challenging, and would probably require allowing a level of snooping which we don't wish to allow anyone except police with a search warrent.
Having said that, I think that the decision on whether a "potential harm" should be punishable is in the domain of politics. Generally, it shouldn't be punishable unless a law specifically says it is. The RIAA may be legally wrong here, but that is not the same as saying a law which made them right would be a bad law.
IANAL.
Not So Fast (Score:3, Interesting)
I've been saying this for years - even pre-Napster - that you can't be liable for distributing if you aren't actually distributing, but I think in this instance file-sharers might hold off popping the champagne corks. The judge's concern seems to be more about facts than philosophy, i.e. whether or not distribution can take place in a passive sense isn't directly at issue here. What is instead is can a record company successfully sue a defendant for offering files merely by presenting screen shots of titles in a share folder? That other judges have missed this speaks volumes, but unless I'm mistaken, my careful Connecticut neighbor isn't saying a transfer has to be actively sent by the defendant, she's saying that in this particular case, the plaintiff hadn't met the burden that a transfer occurred at all.
- js.
Mod New York Country Lawyer Up (Score:3, Insightful)
Re:kinda dumb (Score:5, Insightful)
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Actually it's like the GP's example with a much more effective marketing budget.
I do agree in a literal sense that "merely making available" should not be enough to get a judgement; but I don't agree if you're saying that putting a track on kazaa is "merely making it available
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...
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Now, a shared folder is there only to share copies of what's put in it. In fact, there are probably many other things that could be copied that aren't neccessarily under copyright- but if they're not in that folder- they're not going to get copied. You can show express intent with a fol
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2) The library analogy is seriously flawed. Let's say you decide to copy an entire book using library photocopiers, at $0.10 per page. You'll typically pay more than a new copy woul
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I would argue that no transfer of ownership takes place, because the original copy that the sharer has remains in place.
Another weakness is that all that is transferr
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It's not? Come on now, I'm firmly anti-copyright, I believe that restricting the supply of an infinte resource is theft, but this argument is silly. MP3s don't share themselves.
Re:kinda dumb (Score:4, Insightful)
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Check your facts. The primary differences between civil and criminal infringement in the U.S. are commercial intent and scale:
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Back to TFA, it seems that putting large numbers of copyrighted works on a server falls under the same logic. ( I don't necessarily agree with the law, I'm just d
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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.
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Personally I'm curious what proof that a file has been downloaded the judge would like to see in future cases.
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Personally I'm curious what proof that a file has been downloaded the judge would like to see in future cases.
The judge would need more than that: Proof that a file was _illegally_ downloaded. There is another problem here for the RIAA. If they send out a private investigator to find evidence of illegal copying, and the private investigator copies a song from your hard drive using Kazaa or whatever, then this is _not_ an illegal copy. He was doing this on behalf of and with the permission of the copyright owner, so there was no copyright infringement.
Prosecution: "Your honour, the defendant repeatedly said in pu
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No, but they can arrest the "John" for soliciting, and no money has to change hands. Which is why cops often pose as prostitutes - it's great to get the statistical # of arrests up on a slow month.
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But in that case, the crime itself is "soliciting", from wikipedia:
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Re:kinda dumb (Score:4, Insightful)
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(Ie. "you're online, so you must be making files available!")
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Amen. I for one welcome our new Connecticutian overlords...
Makes me proud to be from CT.
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Re:So uhm... why is this different? (Score:5, Informative)
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.
Re:So uhm... why is this different? (Score:5, Insightful)
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It's not a factor of them being upmodded because of who they are, but rather being upmodded because their experti
Re:Spread those mod points wider! (Score:4, Insightful)
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What can I tell you? I'm weak. I'm really too busy to be doing this stuff, but the dialogue on Slashdot is just something I really enjoy and look forward to. It's fun for me.