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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."
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?
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.
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
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."
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