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RIAA v. Barker Showdown Slated for January
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."
Best of luck to those intrepid souls who are doing their best to defend our interests though. Who knows, maybe we'll get lucky. There's always an outside chance that the judge will be an honest one who actually understands technology.
attempted murder requires both intent and an action, just daying your going to kill someone (without making a threat to that person) isn't attempted murder.
In the UK I'm sure you could only be found guilty of conspiricy if a 'crime' had actually happened, now adays just talking about something is enough to get a conspiricy charge.
thank God the internet isn't a human right.
That is, of course, one of the main jobs of a jury. The law has spent a few thousand years (as long as there has been law) making determinations as to whether the actions of an individual were on purpose or not. It's not a new problem.
There's no need to rely on any one person for the penalties for or definition of copyright infringement -- go to the source (or Cornell's helpful pseudo-mirror). I agree with you that there may be penalties for unintended infringement.
I also believe that making available copyrighted materials for distribution probably isn't illegal since there is no law that I know of that makes attempting to infringe a civil or criminal offense.
"Attempt" is not a civil wrong. That is, you can't sue in civil court for "attempted assault" -- you either have an assault, or some other theory. On the flip side, "attempt" can attach to any crime (well, there are probably exceptions that don't immediately jump to mind). There's no need for a statute against "attempted assault" because there's a general definition for "attempt" and another for "assault." In theory, there could be a prosecution "attempted copyright infringement" though I can't immediately think of any set of facts where it would happen in practice.
So saying you'll make a copy for someone isn't illegal. It becomes illegal when you actually make the copy.
I think that statement is true, in the same way that saying you're going to murder someone isn't illegal; you actually have to make a significant step towards the comission of the crime.
It is extremely weird that the US government would intervene in a private copyright dispute.
But take comfort in this:
The DOJ did NOT support the "making available" argument at all; it expressly distanced itself from that argument on page 5, in footnote 3, indicating that it has NEVER prosecuted someone for "making available".
Ray Beckerman +5 Insightful
In a "statement of interest" the US has to say why it has "an interest" in the case. DOJ said the reason it had an interest in the argument EFF was making -- that ephemeral transmissions could never implicate the "distribution" right as opposed to reproduction and performance rights -- was that it if accepted it could jeopardize ~100 former prosecutions and ~100 pending prosecutions of "pirates". The argument EFF was making was not related to the "making available" claim advanced by the RIAA, and the US was just making it clear that the only issue they were addressing or "interested" in was EFF's argument, an argument which the defendant -- Ms. Barker -- had not made and did not feel was necessary for the Court to reach.
Ray Beckerman +5 Insightful
1. Yes I do, but I'm actually a practicing lawyer defending these cases: it would be foolish of me to publicly post my arguments before I've put them in play in actual litigations. There's nothing to be gained by tipping my hand.
2. You can assume, if you like, which of the multitude of possibilities he was talking about, but I was clarifying an error in the logic of the statement. He was speaking as though there were one kind of file sharing behavior, when in fact there are a multiplicity. I predict that the distinctions among them will be quite important as these cases wind their way through the courts.
Ray Beckerman +5 Insightful
Please check out my response to honkycat. I'm not really talking about affirmative defenses, now, such as fair use, waiver, estoppel, unconstitutional damages, etc. I'm talking about plaintiff's prima facie case of copyright infringement. Some types of 'sharing' might be copyright infringement. Other types definitely are not. When we get into trials, and post-discovery summary judgment motions, I am predicting the distinctions among the different types of sharing behavior will be very important.
Ray Beckerman +5 Insightful