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RIAA's "Making Available" Theory Is Tested
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."
PDF's up the wazoo. Sue 'em!
Table-ized A.I.
Open to public? Public? Want to stop by? Check this out: http://maps.google.com/maps?daddr=Quarropas+St,+Wh ite+Plains,+NY&geocode=&saddr=&f=d&hl=en&sll=41.02 9449,-73.768966&sspn=0.00968,0.020084&ie=UTF8&ll=4 1.027248,-73.765168&spn=0.01936,0.040169&z=15&om=1
If you are about to mod me down, keep in mind that this post was most likely sarcastic.
.. I believe they are correct here - enabling someone else to commit a crime is a crime in itself. And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.
If you mod me down, I will become more powerful than you can imagine....
Is the entire basis of the RIAA claims in all of these cases striking anyone else as being entirely based on "it may have been" scenarios being used as proof?
I think that all corporations which sue individuals should have to adhere to criminal court standards instead of needing just a "whiff" of possibility. Individual vs. Individual of course would still be run as a Civil matter. They should be required to obtain warrants if they want a "Discovery" into any non-public records of the individual. IMHO, they should absolutely NOT be able to get any records from any organization whatsoever about an individual without a warrant (consider ISP's releasing IP address / account information to a corporation for a shady example).
This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations).
There seems to be a serious disadvantage for an individual in almost ALL cases involving a company suing an individual (specifically the depth of their pocket books and ability to pay a lawyer).
Thanks for your efforts NewYorkCountryLawyer
- Toast
Much of this post may be conjecture, ranting, etc. I apologize if I got OT, but I would like clarification if any of my views are out of whack, and I wouldn't mind alternate viewpoints so long as they aren't in troll fashion.
P.S. To all grammar Nazi's; I don't really care if I missed anything when I glanced over this post. Don't waste your breath or potentially cause yourself carpal-tunnel by trying to fix it.
What if I have media in a shared folder while I am using my own unsecured wireless network which I believe nobody else is using?
Really.
The last few days he has put in a ton of work with a big spread of news. I could be wrong, but it seems like this year the RIAA monolith is starting to crack, just a little.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
This kind of thing highlights the fact that so many of these cases may be implemented with improper defense strategy.
The defendants are vaguely accused and therefore are stripped of the capability to offer a real defense. How many of these cases get dragged into technical arguments about the merits of the case instead of real defenses regarding whether or not the law was actually broken.
For instance - you say that there is "ongoing copyright infringement..." did you try to successfully download a copy of the song today? If it's not currently available, there is not ongoing infringement.
Let's take a look at the royalty checks given to the artists in the 2 years prior to the alleged infringement, the year during, and the year after. Do they indicate the possibility of infringement?
Did the plaintiff actually make any effort to do anything to stop this infringement?
Is there any proof that anybody illegally downloaded the songs from the defendant's computers?
How many downloads of the songs were made? How many people had them available? Is there a possibility that the song was made available for download, but never actually downloaded?
Did the defendant promote his shared songs to the public at large?
If there is a defined date for the alleged infringement or a date range, you can offer proof that it was not possible for the infringement to have occurred during that time frame (i.e. on vacation with computer during that time frame, power outage during the time frame in the local area, computer never on long enough during the time frame for a download to occur. Computer in the repair shop during that time frame, etc.)
We all know the suits are based on flimsy technical merits. OK... so moving forward past the technical aspects - is there reasonable suspicion that infringement did occur within a defined time frame?
The time frame is key to actually being able to defend yourself. Having a defined time frame to work with could save the courts, the plaintiffs, and the defendants plenty of time and energy because the technical merits may not need to be argued if a defense other than "this is a bunch of horsecrap and here is why" is available.
Well, fair use would be downloading a whole file (since it is impossible to download a partial file) then using one paragraph of it in a research paper, with attribution to the original author.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
I hope this judge won't punt on this issue, as it appears several other judges already have.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Okay, then where is KaZaZ in this suit? And Microsoft? And Dell? And the ISP she subscribed to? Everyone of them enabled her -- or somebody -- to commit this crime. Why aren't all of them part of this, and every other case?
Excuse me, but your silence is deafening.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
no.. i'm just busy responding to the other 20 retarded comments posted. out of all of you only one person has made any kind of decent comment. read previous posts. otherwise.. your own silence is deafening?
If you mod me down, I will become more powerful than you can imagine....
Does a library "making available" books constitute copy violation too?
1 .html
The RIAA and MPAA regularly steal from the IP creators anyway: http://www.ornery.org/essays/warwatch/2003-09-07-
They really don't have a leg to stand on.
Oh shoot, then I better pull my car into the garage, otherwise a Toyota might see it and make their own F-150 leaving me open to Ford's copyright infringement suit...
Sorry, but I disagree with you. These cases are important to read about, and to discuss. Tens of thousands of people are being sued, and everybody on /. at least knows what a P2P system is. The most downloaded free open source application is a Bittorrent client. This is one of the biggest YRO issues of the moment, and worth following, and discussing, in detail. It's the reason we have DRM, and Vista, and Sony supplied rootkits, and it affects everybody!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Why do I have to keep repeating myself?
In the United States, you have every right to get together with friends and make copies of music on analog tape, or digital copies of music using digital audio recording equipment. This is per the Audio Home Recording Act of 1992.
I'm not sure what this means about copying a CD someone else bought to a tape, but copying a CD for a friend using digital audio equipment and audio cds is perfectly legal, and copying an audio tape to another audio tape is also legal. We pay a "tax" to the RIAA on every piece of digital audio equipment, audio CD, and audio tape to allow this.
The plural of Nazi is Nazis.
you are innocent until proven guilty. In order to convict someone of unauthorized distribution of copyrighted content, the RIAA must prove that a distribution of their copyright owners' intellectual property(IP) did in fact occur. To this day, the RIAA has failed to charge anyone, who has made their copyright owners' IP available for download, with unauthorized distribution of copyrighted content due to the mere lack of evidence. To further complicate the matter, the RIAA has been known to download a copy of the IP for inspection from the individual that has made it available. This however does NOT constitute unauthorized distribution since the RIAA has been granted permission by the copyright owners they represent to obtain their IP in this manner. In this situation, since the distribution of the content was authorized by the copyright holders, the individual from which they have downloaded the IP from has not yet committed a crime. In order to show that an individual has committed unauthorized distribution of copyrighted content, the RIAA would have to catch the individual in the act of transferring the copyrighted content to another individual who has not been authorized, by fair use or otherwise, to obtain a copy of the IP. The DMCA, on the other hand, explicitly states that in the event an individual has made copyrighted content available without authorization from the copyright owner, the copyright owner is to contact the individual's ISP and request that the content be made unavailable or removed. In the event that the ISP does not comply, then and only then may the copyright owner pursue other measures to have the content forcibly removed. The RIAA has failed, in almost every known case, to follow the procedures detailed by the DMCA for handling possible copyright infringement cases. They are therefore violating US federal law by suing John Doe for copyright infringement before requesting that John Doe's ISP remove the copyrighted content. The truth behind why organizations like the RIAA have been target individuals who have made their copyright owners' IP available is not to charge them with unauthorized distribution of the content, but to charge them for unauthorized possession of their copyright owners' IP. In other words those who are providing the content are also more likely to have obtained the content illegally. However, the assumption that by making the copyrighted content available without authorization is guilty of unauthorized distribution is completely unfounded. While IANAL, this is my understanding of copyright law.
Does this mean if I steal my neighbours car he's guilty of theft, because he made it available?
lets see, the public library has books available and copy machines available so does that mean they are violating the law also, what about women, they have parts that can be used for prostitution, so....males have parts available that can rape...so does this mean every human on planet earth and beyond the stargate should be prosecuted for violating some law because they are available.
Now it's true that distributing copyrighted material without the permission of the copyright holder is a crime (note the key distinction between what I said and what you said, you left out that important bit). I also happen to lean towards the sentiment that making those files available, even if no one actually downloads them, would also be illegal... but you still did make one hell of a stupid statement in saying that it's a crime to enable crime. Not to mention the trollish responses you've made since then, which really aren't helping your case here.
"16MB (fuck off, MiB fascists)" - The Mighty Buzzard
This is very interesting. Independent of the RIAA case, it seems to open a whole can of worms for copyright holders generally.
Example: I wonder why this wasn't brought up in the case of Share a News Story With Coworkers, Pay a Fine where a company settled for $300,000 for distributing news articles internally to employees.
Another (hypothetical) example: internally distributing copies of Microsoft Office to employees is certainly making them available to a limited group and not to the public at large. What is the catch? The EULA wouldn't seem to apply since it is only agreed to after the program is run, not when it is distributed before ever running it.
I sure would like to read the supporting documents linked to in the summary (you know, to protect my liberties and, um, stuff like that), but they seem to be slow or absent. Anyone have a .torrent?
Fortunately for the pirating community, the RIAA's member companies "make available" the music already in digital form through their extensive network of music stores. Thus only a comparative small investment needs to be made by a would-be pirate.
I have some songs on my HD. Ok. I may have bought them, or ripped them (which is still legal in some countries), or whatever other means there are to get them legally and on a HD.
Now, I'm a computer moron and have no idea what I'm doing. They are being shared through Windows' own system of making files available, SMB. They are incidentally "available" because they reside in a subfolder of "my folder", which is trivial to "share" in the network. Maybe there was even a good reason to do that for me, because there are other files in there, too, which I may share and I couldn't figure out how to share only those files and not the ones copyrighted.
"Making available"? When you go by the logic usually applied to carelessness concerning computers (i.e. "You're not liable for anything dumb you do with your computer when you're too stupid to know it"), it's not. Still, the difference to "making available" on a P2P network is a matter of protocol, it's not something different in a legal or factual sense. Sharing those files on P2P instead of SMB only means that a different application is responsible for the "making available" part, the rest is essentially the same. I grant access to the files to parties who I'm not allowed to share those files with.
What about trojans? Imagine I had a "P2P trojan" (and, bluntly, I'm surprised that something like this doesn't exist yet in wide spread). Said trojan would act as a relay for people who want to share certain content. Am I making it available? More important, is this suddenly the first trojan whose actions are blamed on the person infected by it?
What about insecure FTP servers? There are literally thousands if not millions of machines on the net that run a copy of some Windows Server version with IIS enabled that allow anonymous up- and download. I checked it once, it usually takes about 10 minutes before you become the drop point for someone who needs to spread files. Again the question, are you liable for it? Yes, common sense says you should be, but generally the creed stands that, if you're too stupid to know, you are off the hook.
So what is "making available"? Where is that line between "too dumb to know that you're sharing" and "knowing what you're doing and thus being liable"?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
I notice that the trolls are out in force on this one, so let me point out something. There is nothing in the Copyright Act that prohibits "sharing" of copyrighted material, or "making available". We do it all the time, every day, when we play music for a friend, have a party, have someone over to watch our DVD, etc.
The RIAA is relying on an alleged infringement of the "distribution" right.
But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief (pdf), esp. pages 3-4.
Ray Beckerman +5 Insightful
sorry if redundant esp in view of TFA or pleadings/briefs that I haven't read but, I think the making available thing is easy to argue as contributory infringement.
The law is not an ass. No really.
Googling the Judge, he seems to be well liked. He gives lectures at Law Schools and he vacated a $35,000 judgement against a defendant in another RIAA case (Santangelo) so the case could continue. If anything he seems to be "for the little guy". His average rating is 9.2 out of 10. Here's one comment:
Civil Litigation - Private
Comment #: 4118
Rating:8.6
Comments: A real pleasure. A smart, funny man who treats everyone with respect. If anything, a little too tolerant of pro se civil litigants. Straight shooter.
One the surface he appears to be a Judge who respects the public, has a passion for Law who doesn't automatically default to corporations. And, most importantly, he hasn't called the Internet a bunch of Tubes.
This may prove helpful.
-[d]-
the RIAA has failed to charge anyone
If you can't make the most elementary distinctions between civil and criminal law then anything you say about the law is worthless.
All the rights agencies have to do as a plaintiff in a civil case is to persuade the finder of fact that it is reasonable to believe that you infringed on the copyright of one of its members. Nothing more than that.
In order to show that an individual has committed unauthorized distribution of copyrighted content, the RIAA would have to catch the individual in the act of transferring the copyrighted content to another individual who has not been authorized, by fair use or otherwise, to obtain a copy of the IP
This is like saying you can't take the pirate broadcaster into court because you don't know and can't know who - if anyone - was listening to his station. Judges and juries don't think this way. It is precisely the reckless and indiscriminate nature of distribution through the P2P nets that destroys any defense of "fair use."
Reading all the posts here, it made me wonder something.
If I could devise some system where I could connect to the kazaa/limewire/etc. network, and appear to have 10,000 songs available for downloading all of high-quality, but my client would not permit the files to be uploaded. What would happen?
I don't have the money to try this out, but I imagine that if somebody did, and was willing to bait the RIAA like this, that we could a) force a change in the way they run their "Investigations" and b) Potentially get some previous verdicts or settlements vacated.
1) Display list of songs alledgedly available for download
2) Make it impossible to actually download the songs
3) wait to be sued for distribution
4) ???
5) Counter-sue for something (Is being terminally stupid a crime?)
6) profit
I will not give in to the terrorists. I will not become fearful.
What if I turn up my stereo so you can hear it?
... does that make me guilty of "distribution"?
In theory you could record the sound
No sig today...
If the only files on P2P were copyrighted music files then that might be a remedy... ...but they're not. There's all manner of files on there.
No sig today...
I usually use text based torrent clients to download distro isos, but occasionally I'll be using a system where the configuration and setup would be more trouble than firing up a limewire or frostwire app. When asked to scan the drive I always choose 'No' but what if I missed that click one time? What then of all my legally stored music? If I leave my car unlocked with a case of beer, it doesn't mean I'm contributing to the delinquency of minors. Sharing would seem to indicate that there must be demonstrated intent. To say otherwise is to say that you are responsible for locking up well enough to meet someone else's standards or else you're a thief yourself.
I think that is what bothers me most about this debate. You have people arguing that breaking the law should be okay and you have people saying that everyone who doesn't like the system is a lawbreaker. I think that there is a middle ground on this. Don't steal. Don't accuse people of stealing unless you can actually prove they are stealing, and no, accidentally sharing isn't stealing.
Back in my day when we chiseled our bits into stone and sent them by mule train from village to village...
Has anyone really ever thought of the bigger picture here.... Once you connect to the internet or network (internal or external), in reality you are potentially sharing everything that is copyrighted. You do not necessiarily need to share things through a p2p service to copy a file from one computer to the next. Hell what about copying files via VPN and RDP??? This broad law really does more harm than good for internet or network users. Hell does that mean if I copy a file from one computer to the next in my home network that I have violated this law, if so.... watch out.
Sorry to nit-pick, but it would appear that Firefox is the most downloaded open source application.
Just my $.02
Now this is primarily just an academic exercise, but isn't a rip of a CD to MP3 files really just an approximation or translation, not an exact duplicate? Much of the hubbub I've read is the claim that the danger to the recording industry presented by digital music is that the possibility of "perfect" digital copies exists. That's why there's far less resistance to the act of recording something from the radio in an analog fashion -- the inherent flaws present in an analog recording.
So, at what point do we consider the degradation of recording to be sufficient to be tolerable? As a lossy method, MP3's are an inherently imperfect copy of the original, differentiated only by degree from an analog recording.
I know we're splitting hairs here, but I wanted to hear anybody else's thoughts along these lines.
Just because Your mom makes herself available doesn't mean that everyone is having sex with her
There are a lot of bizarre statements about the "law" being made here by people who don't know anything about copyright law but are pretending they do. Don't be misled by them. Just read the statute, 17 USC 106(3).
Ray Beckerman +5 Insightful
Just my $/50, however my reference for most popular open source application comes from a Slashdot I can't find at the moment back around April or May that listed the Azureus Bittorrent client as the top open source application, with Stellarium coming in second.
Also, according to this source, Wikipedia comes in ahead of Firefox.
It depends on the list one consults, I suppose.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Where'd you get that rating from?
In any event, I hope he's as good a judge as your post indicates, because that gives me hope for a reasonable precedent. Otherwise, that crazy pet theory of the RIAA's could cause a lot of net mischief.
Not that there's nothing to fear even if reason prevails in that court: I have no doubt that the RIAA will look for ways to lobby Congress for laws that make it easier to persecute alleged file sharers. I mean, didn't they already get someone to introduce a bill that would've criminalized attempted copyright infringement?
Then again, if they ever get too successful, there might be a counter-strategy: use their own laws to target them individually. I don't doubt that more than a few of them are hypocrites. And if they ever download your files while checking for their own, couldn't they be liable? Of course there's nothing of mine to pirate; I give it all away for free...
Copyrights, Patents, Trademarks: temporary loans from the Public Domain, not real property ("intellectual" or otherwise)
from wikipedia - http://en.wikipedia.org/wiki/The_Communist_Manifes to
10 Planks of the Communist Manifesto
1 Abolition of property in land and application of all rents of land to public purposes.
-- my neighbors covet my property (immoral)
2. A heavy progressive or graduated income tax.
-- I dunno, is it immoral to levy "heavy" taxes?
3. Abolition of all right of inheritance.
-- abolition of inheritance is seriously immoral.
4. Confiscation of the property of all emigrants and rebels.
-- If you can't take it with you, you can't have it back. Also, no mention of due process here.
5. Centralisation of credit in the hands of the State, by means of a national bank with State capital and an exclusive monopoly.
-- no comment
6. Centralization of the means of communication and transport in the hands of the State.
-- no slashdot for the commies
-- your means of travel is totally in the hands of the State
7. Extension of factories and instruments of production owned by the State; the bringing into cultivation of waste-lands, and the improvement of the soil generally in accordance with a common plan.
8. Equal liability of all to labour. Establishment of industrial armies, especially for agriculture.
9. Combination of agriculture with manufacturing industries; gradual abolition of the distinction between town and country, by a more equable distribution of the population over the country.
-- Strictly against freedom of assembly
10. Free education for all children in public schools. Abolition of children's factory labour in its present form. Combination of education with industrial production, &c., &c.[3]
-- this means no private schools and no choice of how to educate your child.
There does happen to be a reason why the people of the United States abhor communism. There are a lot of learned people who feel that it is immoral. That being said, there are also learned people who actually believe this to be proper.
Would this also mean that the companies which manufacture Weapons of Mass Distruction would be prosecuted, because they are also manufacturing, and therefore "Making Available" something which can be, rather is, dangerous to the entire humankind? If I have bought something and I have the license to it, do i not have the right to flaunt and show off? This is like buying a Ferrari and keeping it in the garage because if I take it out and park it in the street, I am making it available for car-thiefs. Why is there a different law for the digital world?
two cents..
shashank
http://www.techspeak.in/