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."

Comments

"Making available"

[splutty]

I wonder..

If I leave a stack of copied CDs (ones I own myself) that I made for backup purposes (since my CDs quite easilly scratch) accidentily on a table in a foodcourt and someone takes them with them, would I be sueable for infringement of copyright?

And if I did it on purpose?

And how do we decide whether it's on purpose or not?

Splut.

Re:"Making available"

[oliverthered]

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.

Re:"Making available"

[radarjd]

And how do we decide whether it's on purpose or not?

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.

Re:"Making available"

[radarjd]

Having kept an eye on cpt kangarooski's posts, I believe I can correctly say that there are still civil penalties for unintended copyright infringement

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.

Re:"Making available"

[hey!]

If I leave a stack of copied CDs (ones I own myself) that I made for backup purposes (since my CDs quite easilly scratch) accidentily on a table in a foodcourt and someone takes them with them, would I be sueable for infringement of copyright?

The short answer: probably not.

Using this as an analogy for P2P sharing ignores two important ethical and legal factors: (i) what you intent was, and (ii) what results are reasonably foreseeable consequences of your actions.

If somebody picks up your backup CDs that you have accidentally left on the food court table, you clearly have no intent to enable copyright infringement. But if you leave the backup CD's at a kiosk somebody has labelled "CD Swap", a reasonable person might infer you intended to give a third party access.

As for forseeability and its relationship to responsibility, let me give you a true example. My nephew leant his college roommate his laptop to do a last minute paper. The roommate left the laptop open on the floor and went to bed. My nephew came in late at night, and very considerately did not turn on the light. As a result he stumbled over his laptop and broke the screen. The roommtate contended he wasn't at fault, because it was my nephew who stepped on his own laptop.

This story illustrates several valuable points, not the least of which is "neither a borrower nor a lender be." But the key one for us is that we are responsible for the reasonably forseeable cosequences of our actions. A reasonable person would predict that a laptop left open on the floor in a darkened room probably would come to harm. This means that the roommate has a duty not to put it there, and by breaching that duty makes himself responsible for the consequences.

Applying this principle to your analogy, a reasonable person does not expect that carrying backups around will lead to their being stolen; it might happen, but it is not likely. The degree of probability matters; people carry things that are valuable to them around all the time, and sometimes lose them. But I think you're in good shape if you can show that the care you took with the copies is no different from the care a reasonable person takes with property that is his own and in which he places considerable value.

Personally, I'm pro music sharing. But there's no consistent way to argue that copying music on P2P is a copyright infringement but that sharing music on P2P is not. Every right, whether fundamental or statutory, imposes corresponding duties on others to respect that right. The duties aren't limited to direct violations of the right, but extend to taking reasonable care that the right not be violated as a predictable result of our actions.

A good example of the duty of reasonable care is the recent spate of stories about databases of personal information being stolen because they were on laptops or removable media. The argument that absolves P2P sharers from responsiblity for forseeable copying would also absolve the agencies in these cases from responsibility for forseeable identity theft.

There are only three logically possible ways to argue that P2P sharing is not a copyright violation. The first and best would be to argue that P2P downloading is not a copyright violation at all, but somehow falls under the heading of fair use. The second would be to show that the kinds of copying done as a result of sharing would not reasonably forseeably include copyright violations. The last way would be to show that you took reasonable steps to guard against improper copying.

The last two arguments are not as attractive as they might seem. A mistaken belief that an act is legal doesn't absolve you of your duty not to aid it, any more than believing that the person who steps on the laptop is responsible makes it OK to leave the laptop on the floor. It's the forseeability of the act that matters, not the foreeability of the act's legality.

Re:"Making available"

[NewYorkCountryLawyer]

That's about it. The RIAA argues yes. You made them available. That makes you a distributor.

If they would read the statute (copyright Act section 106) they'd feel differently, but they don't feel they have to do stuff like that.

Re:"Making available"

[NewYorkCountryLawyer]

hey! writes: "There are only three logically possible ways to argue that P2P sharing is not a copyright violation. The first and best would be to argue that P2P downloading is not a copyright violation at all, but somehow falls under the heading of fair use."

1. I disagree that there are only 3 logical arguments.

2. Additionally, your statement fails to take into account the fact that there are a great multiplicity of different kinds of "P2P sharing" behaviors involving copyrighted recordings, just as there are a great multiplicity of different kinds of song and record sharing behaviors involving physical copies of phonorecords, cd's, dvd's, cassette tapes, and the like.... some of which might be copyright violations, some of which certainly aren't.

3. If you are arguing that downloading a copy of a copyrighted work through p2p sharing, without a license to do so, for the purpose of obtaining a copy of your own, is a "fair use", I should tell you that I am aware of one case where I think it is fair to say that a similar argument was rejected. BMG v. Gonzalez.

Re:"Making available"

[honkycat]

1. I disagree that there are only 3 logical arguments.

Do you have examples of other arguments that don't fall in his categories? Note that he's not talking about arguments about whether copyright law is just in this regard, merely that it is, in fact, illegal to violate copyright law as it stands. Perhaps you could claim that copyright law would not withstand a constitutional challenge if it blocked P2P sharing, but that seems pretty unlikely.

2. Additionally, your statement fails to take into account the fact that there are a great multiplicity of different kinds of "P2P sharing" behaviors [...]

I think it's safe to assume he's referring to the most common behavior which is placing a full, high-quality copy of a song for permanent download and unrestricted replaying of that download.

Re:"Making available"

[NewYorkCountryLawyer]

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.

Re:"Making available"

[NewYorkCountryLawyer]

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.

Re:Bah!

[Suzumushi]

I believe the term is "justice to the highest bidder." And I have to agree, sadly...

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.

Re:Feh!

[Anonymous Coward]

Not to mention that the U.S. Department of Justice has decided to get involved on the plaintiff's (The MPAA's) side. What. The. Fuck.

If you are a U.S. citizen, your Federal tax dollars are being used to help the MPAA wage its civil lawsuit here. You knowm, if I filed a civil lawsuit against someone, it sure would be nice if the Federal government decided to get involved and backed up my postion. But it sure would not be fair.

"Making Available"..

[aero2600-5]

She's in trouble for "Making available"? FUCK! Quickly! Close down all those public libraries! They're "making available" all those copyrighted books! Anyone could take one home and photocopy it, scan it, or even copy it by hand.

This argument is full of holes.

Aero

Re:Feh!

[NewYorkCountryLawyer]

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".

Not just books

[tpjunkie]

You can borrow Audio CDs and DVDs from most libraries too!

Interesting. Then why...

[Opportunist]

Then why are you liable for "making available" content when using a filesharing tool without knowing jack about it, while you're not liable for having a spambot on your computer? The damage is at the very least the same, and in both cases the intent is missing. You didn't want to (and you didn't know) that you're spreading spam or content.

No intent. Why are you liable for one while you're not for the other?

Re:Feh!

[NewYorkCountryLawyer]

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.

Distribution vs. Reproduction/Performance?

[DeadCatX2]

That's a very neat question right there.

Is YouTube distributing the videos, or reproducing/performing them for the public?

In a way, the only real difference is scale. Public performance is limited by the size of the arena, which largest venues are still orders of magnitude smaller than YouTube's possible audience. YouTube can be used by anyone in the world with a connection to the Internet and a reasonable PC.

So, YouTube could potentially target more people more easily than a public performance. But a public performance is guaranteed to impact a number of people (all those within hearing or seeing distance), whereas a YouTube video might never be watched by anyone.