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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."
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.
No wonder you're a foe of a friend.
The general statement of saying "enabling someone else to commit a crime is a crime itself" is just nonsense.
With that general statement you could in theory hold a man who drove drunk and killed someone accountable, the manufacturer of the automobile, the designers of the automobile, the assembly line workers(if any) that put the car together, the store or individual who sold that man the liquor all accountable. Because you know, all of those in "theory" enabled that man to drive the automobile while intoxicated. Hell, why not involve the local government for putting those damn roads in that enabled that man to drive his automobile around.
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."
If you're so sure, please point the to law that is being broken by making copyrighted material available to be copied.
Oh, and make sure to never play your music too loud, someone might be out there with some good recording equipment.
Ice Cream has no bones.
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."