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Has RIAA Abandoned the 'Making Available' Defense?
NewYorkCountryLawyer writes "The RIAA's standard complaint (pdf) was thrown out last month by a federal judge in California as speculation in Interscope v. Rodriguez. Interestingly, the RIAA's amended complaint (pdf), filed six days later, abandoned altogether the RIAA's 'making available' argument. (Whereby making files available at all for download is infringement.) It first formulated that defense against a dismissal motion in Elektra v. Barker. This raises a number of questions: Is the RIAA is going to stick to this new form of complaint in future cases? Will they get into a different kind of trouble for some of its their new allegations, such as the contention that the investigator "detected an individual" (contradicting the testimony of the RIAA's own expert witness)? And finally, what tack will defendants' lawyers take (this was one lawyer's suggestion)?"
It seems Slashdot has abandoned its "making available" defense for its articles, too!
Has RIAA Abandoned the 'Making Available' Defense?
IANAL, but I can't imagine the RIAA is offering to many defenses in these court cases. Maybe they're abandoning the complaint of "making available"? That's what the article seems to indicate...
All these stories about RIAA doing this and that.. why doesn't it just get branded a terrorist organisation that is it, and the US government can actually go after something that actually exists? The army can go and blow shit up and shoot not so innocent individuals, and everyone will be happy?
Seriously, every day we have some otyher fluff piece about how record companies and ISPs and everyone that earns over minimum wage is evil, and the same as nazis, and explaining how the god old filesharing pirates should be able to save the day and stick to the man by stealing content other people worked damned hard to create. I'm sick of slashdot pretending to be some kind of grown up adult web site, when in reality, like digg, its just a publicity machine for the idiots in the pirate party.
If you want music, movies or software, fucking BUY IT, and stop leeching off the efforts of honest people.
This complaint is no better. It claims they "detected an individual" who is "distributing". But they don't actually detect any distribution. Their "download and/or distribute" language makes no sense, since they never detect anybody downloading anything.
This should be rejected summarily as well.
http://www.slyck.com/forums/viewtopic.php?f=30&t=37857&st=0&sk=t&sd=a&start=50
I don't see either the RIAA or the MPAA turning down any chance to turn a buck their way- even soliciting BJ's in rest area bathrooms.
;-)
Remember, this is the same crew that established 'payola' in the late 1950's and refined it in the decades since despite several court cases decided against them for this.
Reminds me of a Pennsylvania farmer I once knew. He made his living by poaching deer and selling the meat to some fancy, high dollar Maryland and D.C. restaurants. He would get caught poaching, pay the stiff fines out of a roll in his pocket and claim that it was only 3 days profits, and only got caught several times a year. Just a small operating expense...no big deal. He just laughed it off and even bragged about it.
I see the same mentality with the RIAA and MPAA, just throw crap against the walls as fast as you can...surely some of it will stick!
Remember: IP means Internet Protocol.
Down With Slashdot BETA!!! I've been around the corner and seen the oliphant; you can only abuse me from your perspecti
It felt appropriate to say
You wouldn't steal a handbag... You wouldn't steal a car... You wouldn't steal a baby... You wouldn't shoot a policeman, and then steal his helmet... You wouldn't go to the toilet in his helmet, and then send it to the policeman's grieving widow, and then steal it again! Downloading films is stealing!
GAAH! MY PRINTER IS ON FIRE!!! PUT IT OUT! PUT IT OUT!
What happened?
-The RIAA claimed that simply making copyright material available online,
was proof of intention to commit copyright infringement (We got proof!)
-Defense Lawyers challenged that claim as insufficient evidence (No you don't!)
-A Judge agreed with the Defense Lawyers (Ya, that isn't enough proof, begone RIAA!)
-RIAA returns, but drops the 'making available' argument (Is this better?)
What could happen now?
-The RIAA would stop bringing cases based solely upon the 'making availble' argument (If it wasn't for those darn Slashdoters)
Wonder whether that defense would work?
Engineering is the art of compromise.
Is it safe to SEED again?
Look to past history.
Any technology which allows the end-user to produce their own media (and some which didn't) has scared the entertainment industry.
First there were records - "But who will pay to see live performances if they can just play the record?". Then they realised that they could make a roaring trade selling records themselves.
Then came analogue tapes: "But who will buy records if they can just tape from a friend?" - then they established a business in selling tapes as they're smaller and it's very hard to play a record in a car.
Then came videos: "But who will go to the cinema if they can record movies from the TV?" - then they established a business in selling pre-recorded videos.
Then came affordable CD burners: "But who will buy CDs if they can copy from a friend?" - well, actually rather a lot of people. Though that didn't stop a lot of countries being pressured to establish taxes on blank media and passing these taxes back to the recording studios.
Now audio and movies can be easily shared over the Internet: "But we must stop this, lest nobody buy music, movies or visit the cinema!". What they really mean is "We're not sure that this sits well with our business model and we haven't yet figured out how best to exploit it so it does. While we're in the process of doing that, please talk quietly amongst yourselves AND STOP SHARING MUSIC, DAMMIT!".
I'm sorry, while I'd even agree with the privacy slant, and I don't really have much love for the RIAA... excuse me? Entrapment?
Let's have look at dictionary.reference.com, shall we. The only definitions that fit in a legal context, seem to be the likes of "the luring by a law-enforcement agent of a person into committing a crime" (Random House Unabridged Dictionary) and "To lure into performing a previously or otherwise uncontemplated illegal act. (The American Heritage Dictionary of the English Language, Fourth Edition)
Also note the following note from Merriam-Webster's Dictionary of Law: "Entrapment is available as a defense only when an agent of the state or federal government has provided the encouragement or inducement. This defense is sometimes allowed in administrative proceedings (as for the revocation of a license to practice medicine) as well as criminal proceedings. In order to establish entrapment, the defendant has the burden of proving either that he or she would not have committed the crime but for the undue persuasion or fraud of the government agent, or that the encouragement was such that it created a risk that persons not inclined to commit the crime would commit it, depending on the jurisdiction. When entrapment is pleaded, evidence (as character evidence) regarding the defendant that might otherwise have been excluded is allowed to be admitted."
I.e., pay attention: Entrapment is when some government agent (e.g., an undercover cop) persuades you to do something illegal that you wouldn't have even considered otherwise. Just getting caught when doing something on your own is _not_ entrapment, much as it seems to be a popular mis-conception on Slashdot.
E.g., if you're some random Joe minding your own business and some undercover cop comes and coaxes you and promises you big bucks if you'll grow hemp for him in your basement, that's entrapment. It can be argued that you wouldn't have considered doing it on your own. Maybe you're just gullible, not a crook. On the other hand, if you're selling dope anyway and an undercover cop comes and buys some hemp from you, that's not entrapment.
E.g., I seem to vaguely remember a terrorism-related case where it was argued that the cop had pretty much manufactured the whole cell. He wasn't (supposedly) recruited into a cell, he recruited a bunch of disgruntled muslim immigrants and persuaded them that it's Allah's will to blow shit up and punish the infidels, and promised them money, weapons and fake papers. It may show that they were not morally above that, given the right persuasion and incentive, but they weren't doing it until that cop coaxed them.
On the other hand, had the cell existed and planned that shit on its own, then an undercover cop infiltrating it would _not_ count as entrapment.
E.g., to further illustrate the delimitation, IIRC there was this case of a woman trying to hire a hitman to kill some neighbours. The undercover cop posing as a hardened hitman, precisely to avoid any possibility of entrapment, actually tried to talk her _out_ of it, and asked several times if she's completely sure she wants to go ahead with it. Just being an undercover agent may be a lie, but it's not entrapment. It would be entrapment if he went and convinced a neighbour how much easier things would be if she killed everyone she doesn't like.
So pray tell, how did the RIAA entrap these poor people? Did some undercover RIAA agent go to their house, befriend them, and beg them to share some songs online? Or what?
In most cases the RIAA didn't even know who the fuck was at that IP address until the ISP told them. They even got some awfully bad info in some cases, resulting in some PR screw-ups of epic
A polar bear is a cartesian bear after a coordinate transform.
They replaced the "and/or making available" language with language claiming that they "detected an individual". Aside from what the attorney linked to in the article says about the dropping of the old language being a defense, there is also a more positive defense now, from their claim:
Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your computer at the time (and it only has to be theoretical), then then cannot pin this on an individual, so they have no case.
Other cases have been won on the basis that the person who allegedly did the downloading had an open wifi access point on their internet connection, so the "crime" could actually have been committed by an unknown party, half a block away.
they are dropping this kind of defense. If you out something available on the internet they 1. Have to prove it was actually you who made the file available 2. The content of the file is actually what the filename indicates (If you put a empty text file online with the name Pirates_3_DVDRip you are not acting illegally) 3. They have to prove that the evidence in court (The actually downloaded file) was downloaded from your computer. It cant be a DVD that was created at the riaa main office. Since this is impossible no one can be charged.
The AC appears to be complaining about the daily story selections, and not neccessary regular posters like you and I. To be fair, there are only 14 authors total, and they decide what goes on the front page.
While I consider Slashdot worthy enough to read and post to, I wouldn't recommend believing in your portrayal of an unbiased and fair democracy either.
I disagree that the stakes are substantially higher.
The entertainment industry has always had a business based on flogging what's New! Shiny! Entertaining! And Not Identical To The Last One, Honest! (singles, latest Britney Spears clone, latest song by established artist) - and another side to the business based on flogging you what was New! Shiny! Entertaining! in the past (albums, DVDs).
It goes without saying that the part of the business which is likely to suffer from private media sharing is the latter part - the next Britney Spears isn't going to be discovered or sold as a result of filesharing. Don't get me wrong, I realise that's a significant part. But the entertainment industry has access to a heck of a lot of material that piracy doesn't - pristine copies of the original (rather than "transcoded from CD at who knows what quality"), original artwork and lyrics sheets which are actually correct.
The only significant problem is "how to bundle this up and sell it in such a way that it is easier for a buyer to do this than it is for them to pirate it?". Now, that is a very hard part - much harder than "let's produce and sell our own tapes" ever was because now everyone has a digital media copier which produces copies with 100% fidelity compared with the original. But I think it's doable - see iTunes and the iTunes music store for an excellent example.
That defense can work, but only if you can convince a judge that you're "too dumb to know". I.e. if you happen to work in the IT field, he'll probably not believe you that you don't know what "your computer" means when he asks you to share c:\.
And forget it altogether if you run Linux. After all, every judge knows that Linux users are geeks, and they are by default criminal hackers and suspicious, and if not guilty of this crime then certainly for something else.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
That guy is a blooming idiot! The defense lawyer knew more about IP addresses, routers, networks, and MAC addresses than they guy with an PhD in computer engineering! It was pretty entertaining reading.
Setting his threshold to 5, Sparky eliminated most of the trolls on /.
There might have been a window for the same corporations monetizing p2p and resting on their laurels a few years back, but it's shutting rapidly. People are getting used to the idea of user-generated content, long-tail artists, music discovery sites, etc - all of which spells the end for Big Media as we know it. Old-style p2p is losing its allure to many becuause there are now so many places you can hear that song/watch that movie RIGHT NOW.
Their problem this time is that it's not so easy to cash in on "empty media" as it was in the past. In some countries you pay an "RIAA tax" on every blank tape, CDR and now even hard drive you buy.
... well, why bother burning content to a CDR that you will most likely delete after half a year anyway?
For tapes and CDRs this didn't bother businesses so much. Hard drives do. Furthermore, unlike tapes and CDRs, Hard drives are by magnitudes bigger and can be used more often than just once or a handful of times. Not to mention that businesses are running rampart against this kind of "tax", because, well, just because you CAN store copyrighted content on it doesn't mean you DO. It's a given that a tape was mostly used to store just that. I give you that a large amount of CDRs are rather used for copyrighted content than backups. Hard drives, though...
Also, how much should you pay? A hard drive of today can store up to a TB of data. Or, in CDRs, about 1500 times the storage of a CDR. Now, let's assume about 10 cents RIAA tax on a CDR and extrapolate it to the TB of a hard drive. Should we have to pay 150 bucks extra for the media industry for every HD? Actually, more because of the forementioned reusability of HDs.
How should this keep businesses (who don't care about content, they need their HDs to store their own products, databases, customer data and so on) competitive on the global market, when you're supposed to pay actually twice the price for your storage? Worse, the first thing many people would do is to buy abroad (funny enough, the RIAA tax has to be paid by "the first person who makes the item commercially available in the country", i.e. the hardware seller. Not the buyer. Do the math). Which in turn would certainly make the local computer companies go berserk.
The problem they're facing today is that they don't know how to react. P2P has become a problem for them, and people don't burn the content to CDRs anymore, they store it on their HDs, on servers, on USB HDs, simply because
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Well, my two thoughts are:
1) Good for the farmer... the deer population in the northeast is so ridiculous that with the ticks these animals have, they're as bad as rats in the city. The states ought to up the bag limit to 3 or 4 buck per season and allow anybody who wants to get a doe license.
2) If a farmer is shooting deer on his own property, is that really poaching? It's screwy that the law could protect the deer on his property, since it could be argued the deer are his. But I don't know anything about the law in this area.
You were mistaken. Which is odd, since memory shouldn't be a problem for you
They can also explain to me why we have hundreds of legitimate movies in our collection, including five recent purchases (four DVD's and a VHS tape) of stuff we had originally recorded from television. The price was fair, the quality was good enough, and our budget allowed for it. Same holds true for the copied movies we still have. A third of our collection consists of downloads or were borrowed from the library and copied. Most will be replaced with legal copies when price vs. budget allows for it, and not any sooner. Some probably won't ever be replaced because they won't be worth the cost, or simply won't be available anymore.
These people. There were more, but it was these two who led them.</flush>
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
IANAL so those linked PDFs won't do me much more good than a schematic wiring diagram would do for a plumber.
1. I thought "making available" was what was against the law, that it was "broadcasting?"
2. If unauthorized downloading itself is illegal, how do I know the download is unauthorized? If I see the file available, why should I assume the file is illegal? If I want to download The Station's The Fog, which is an authorized download, how do I keep from downloading Radiohead's song of the same name?
3. If they're abandoning the "making available" thing, what are they doing now?
To be clear, I use P2P, but don't want to doanload unauthorized stuff. P2P and intternet radio are the only way to find good new music, since the RIAA labels' fare has turned to complete and utter drek. How can I defend myself against this organization that doesn't want me to hear indie music?
-mcgrew (not the mcgrew from "McGrew Security", I'm the "Paxil Diaries" mcgrew, aka sm62704 at slashdot.
PS- do you want the entire top forty, free, legal, and at better quality than iTunes or P2P? Plug your radio into your PC, tune to a top 40 station, and sample for a couple of hours. (mirror is here
If Bambi is a boy deer (a "buck"), then why is the name only given to girls?
a) Code can be used without anyone knowing it, unlike music, when you can HEAR YOURSELF the similarities.
b) GPL violation are almost 100% solved by not doing it any more. RIAA violations are solved by threatening trillions of dollars damage in total and a complete change in the law.
c) RIAA says stealing, we say abusing copyright
for all three reasons, among many others, there is no analogue between the two scenarios.
> And finally, what tack will defendants' lawyers take? Yes, indeed. What tack could they possibly take? Maybe a thumb-tack or horse tack or they might even use some Blu-Tack(tm)? ...or maybe they'll go in a completely different direction and use a TACT.
True. A corporation is a person when it's convenient, and a non-person when it's convenient.
Weaselmancer
rediculous.
No, the stakes ARE higher. See, nobody needs the majors any more!
The old Napster was the RIAA's wakeup call - that is, Napster and Roger McGuinn (of the '60s band "The Byrds"), who was playing in bars for peanuts, all his albums long out of print, when P2P introduced a new generation to his music. McGuinn credited P2P for the resurgence of his career.
Just as it could reintroduce a long-forgotten artist, it could introduce a new one. You can "download" the entire top-40 from your radio, legal and for free. The RIAA doesn't mind a bit, since they know good and damned well that if you like it, you're most likely going to buy it (or McGuinn would still be playing bars for peanuts). That is why they killed internet radio and are trying to kill P2P - they can't control it. You might hear an indie you like. If you buy two indie CDs, that's an RIAA CD you can no longer afford (since the RIAA CDs generally cost twice as much).
The "pirates" they're really after is their legitimate, legal competetion.
Star Wreck: In the Pirkinning was the MPAA's wakeup calll. If you haven't seen this flick, do so, it's as funny and well made as any MPAA fare. And it was done by amateurs for a pittance. I'm sure there are yellow stains on every major film executive's chair!
The majors are no longer needed, not by the artists or the audience. So it is indeed a life or death situation. Either they kill the internet or die trying.
R.I.P., M.A.F.I.A.A.
-mcgrew
It will. But it can't happen until they look at the problem the right way.
- Right now there's the absurdity that you actually get a *better* product by not paying for it. How stupid is that?
- They expect to be able to charge a lot of money.
I don't think there's much doubt that, at the right price, the large majority of people would gladly pay to download a high-quality, unencumbered recording.
- $1.49 is not the right price. It's not even close. I don't know what the right price is, but I'll bet it's about an order of magnitude less. But for that price to work the whole current "star" system has to be thrown out, and they won't do it. The reason they won't is because they (the recording industry) have to disguise the fact that they are not nearly as necessary as before. You no longer need a multi-million dollar studio to make high quality recordings. You no longer need someone to manufacture physical copies of those records. And you no longer need to distribute recordings to every mom and pop record store. So their main function is to create and promote "stars."
And he'd seemed like such a nice judge right up to that point too.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
My car was broken into and some of my CDs were stolen. was I liable for making the CDs available? and that it wasn't the fault what so ever of the Junky that stole them?
It's not one schmuck.
It's a series of noobs.
Bury me in mashed potatoes.
Lets see how many flaws there is to the court cases...
Let us assume that the plaintiff claims that ip 64.233.183.104 has "made available" a torrent.
a)The plaintiff has no evidence that they have scanned ip 64.233.183.104. Indeed, they don't even have any evidence that they conducted an investigation at all. They may say that ip 64.233.183.104 was used, but they can't provide evidence for it.
b)An ip doesn't correspond to an individual, it corresponds to a client or server. The client or server in question may or may not be a single computer.
c)The network does not attempt to enforce that the sender IP is accurate. It is perfectly possible to transmit packets which contain incorrect IP information.
d)Even if one can link an IP to a computer, it does not tell you what program on the computer ( let alone what user ) sent it. It could be a p2p client operated by the user, but if the machine has been compromised by a hacker, worm, trojan or virus then it could be used by another person not even physically at the machine to send arbitrary information. E-mail spams are usually sent by botnets in this way because it hides the identity and origin of the spammers while simultaneously making it difficult to blacklist spammers based on IP. This is not just a theoretical possibility, there are various viruses and trojans out there that use an innocent victim's computer to carry out illegal activities.
e)Even if one can establish that the computer was under the users control, it does not identify the user, it identifies a computer. It does not establish who were using the computer.
f)There are various ways for a single IP to correspond to more than one computer. An open wireless router using NAT is a common example, but because WEP encryption is rather weak it is also fully possible for a third party to use a WEP encrypted router. While WPA-PSK is stronger, it is at least theoretically possible to compromise it. As an example, if the user has picked a weak pass phrase it could be vulnerable to dictionary attacks.
g)Even if one can establish that the user has "made available" a file it does not prove intent. Many p2p clients' default configuration is to share everything, and depending on experience the suer may not be aware his files are being shared.
h)Even if it can be proven that the user has intentionally made a file available this does not prove that it has in fact ever been downloaded by that user. At best it proves that it "could" have been downloaded.
I'm sure there are more problems with the RIAA's approach that I have forgotten or am not aware of, but that ought to be a start at debunking the ip = evidence nonsense. Oh, and btw, how many of you looked up the IP in the start of this post, or better yet, knew that it was Google without doing so? ; )
You forgot one. Even before records there were player piano rolls, and you guessed it. Same thing then.
If he grants the motion, then he's still a nice judge.
Ray Beckerman +5 Insightful
... including suing a 7-year old girl [this has dragged on over a year, and they still won't relent], and a person with MS who doesn't even have power of attorney [and according to that person's legal counsel, neither knows nor understands what the charges are about].
Few people are as greedy and evil as the members of the RIAA and their legal counsel.