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

Defense?

[hazem]

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...

Redundant Breakdown

[Nymz]

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)

Re:At this point....

[mpe]

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.

The only unusual thing is an individual being able to use this kind of business model. Corporations have the advantage that they cannot be arrested.

They've lost the battle. Not the war.

[jimicus]

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!".

Re:Slashdot is just a pro-piracy site

[digitig]

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. You seem to be a little confused. /. is not a person. /. is a collection of lots of different people, including you, with different views, including yours. /. does not pretend or claim to be anything beyond "News for nerds. Stuff that matters", although individuals may pretend or claim that it is something else. /. cannot be a publicity machine for any interest group (except, perhaps, nerds) because although individuals may act as publicity machines for particular groups it's an open forum and so contrary opinion can always be expressed with equal weight (and the holder of that contrary opinion is just as liable to get mod points). Do try to remember that a couple of guys you happen to disagree with do not comprise the whole of /., and if you have a counter-argument to what they say then present it.

That's not quite true

[Nymz]

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.

Re:This complaint is no better

[NewYorkCountryLawyer]

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. Precisely.

They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.

Re:There is more to it than that.

[NewYorkCountryLawyer]

Sorry to hear that. But I guess there is no way to force all judges to be rational. We have had some bad decisions by local judges around here, too. It's not as bad as that. If you read the transcript you'll see that () the Judge didn't make any decisions, and (b) he evidenced awareness that it was impossible for them to have 'detected an individual'.

He just seemed to think it was bad form for me to have brought up Rule 11.

Re:Slashdot is just a pro-piracy site

[kebes]

It doesn't bother us (well, me, at the very least) so much that someone who illegally copies content gets busted and has to pay for it.

Incidentally, it does bother me. Why? Because we all know that a huge number of people infringe copyright on a daily basis. In fact, among the Internet-using population, I would be willing to bet that most people (>90%) have infringed copyright at some point. (During a talk at Google, Cory Doctorow asked the audience, by show of hands, how many had infringed copyright in some way... every single hand went up.)

This bothers me because the few who get caught, tried, and convicted (or settle) for copyright infringement thereby represent a randomly-selected sub-group out of a larger population. This kind of selective enforcement is the antithesis of justice. This kind of inequality and randomized punishment should not be tolerated in a free country.

So, the solution is either to make detection and enforcement so robust that every single infringer gets caught and punished. Or, to change the laws so that we are no longer automatically turning most citizens into criminals. Personally, I find the fact that society at large disregards the current (strict) version of copyright law to be indicative of fundamental problems with said laws.

But regardless of the solution, I am very much bothered by the lack of justice we see today as a result of copyright law. Frankly we should all be bothered.

Re:Slashdot is just a pro-piracy site

[Opportunist]

The sad fact is that with the increasing insanity spreading throughout copyright law, it's quite possible that everyone who ever touched a machine capable of reproducing copyrighted content infringed in a way or another. Often without even trying or knowing. And the logic reaction is of course "why bother trying?".

If it's impossible to work within the limits of the law, people start ignoring the law. Basically, you could imprison anyone with a computer on grounds of copyright violation. I'm fairly sure you'll find some file or another on any computer. A CD borrowed from a friend and copied, a video downloaded and carelessly kept past the grace period, even a shareware program that's still unregistered on your computer... all infringements, often accidently.

I think copyright might become what tax laws was for a long time. Remember, they didn't catch Al Capone for murder, gambling or protection money extortion. I wouldn't deem it impossible that copyright will be used that way too. Unfortunately, not against criminals but against people whose opinion (and voicing thereof) is "unfavorable".

Re:This complaint is no better

[NewYorkCountryLawyer]

If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. That's incorrect, however. Given the ease with which the correct simplification could be made, provided that the RIAA lawyers or their technical advisors do understand the concepts of an IP address and uploading and difference between a person and computer and the meaning of the word potential, the only remaining possible purpose of their simplification is not to inform, but to mislead the judge. It's clear that the only purpose is to mislead the judge. It's not a simplification to say you detected "an individual" when you didn't. It's a lie.