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"

[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.

"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]

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.