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)?"

Comments

Re:Defense?

[GwaihirBW]

"It first formulated that defense against a dismissal motion" So, it's a defense of their offensive (in several ways!) cases, justifying ("defending") their acts of bringing people to court.

Re:This complaint is no better

[Mathinker]

> It claims they "detected an individual" who is "distributing".
> But they don't actually detect any distribution.

Nor do they detect an "individual". An IP address isn't an individual. If you're lucky, you might be able to connect it to a particular computer at a particular time.

Re:Defense?

[fenderized]

That's rubbish. Let's look at the examples from "American Heritage Dictionary" (it was handy, use another if you want).

1. In addition; also: He's coming along too.
2. More than enough; excessively: She worries too much.
3. To a regrettable degree: My error was all too apparent.
4. Very; extremely; immensely: He's only too willing to be of service.
5. Informal Indeed; so: You will too do it!

You could replace the first example and it would work. The next three would be meaningless and it would completely change the meaning of the last example. So the OP was right about being wrong.

Re:There is more to it than that.

[NewYorkCountryLawyer]

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. I brought this to the attention of the Judge at the June 29th conference in Warner v. Cassin, where the attorney, Timothy Reynolds, actually said to the Judge that their investigator had "detected an individual". The Judge got mad at me, though, when I indicated to him that it was a violation of Rule 11 for the attorney to have made the deliberately false statement, instead of getting mad at the attorney who'd lied to the Court.

Re:Safe yet?

[NewYorkCountryLawyer]

The RIAA didn't drop the complaint. They just amended it. Is this actually allowed after a judge has tossed the case. At best they should have to grovell humiliatingly to the judge, at worst start a whole new case from scratch. It's common to dismiss a complaint and grant leave to replead. In this case the judge expressly gave them leave to replead.