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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)?"
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...
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.
Except when it comes to GPL software. Stealing 20 lines of GPL code should be punishable by death!
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.
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!".
Is it safe to SEED again?
Not yet. The RIAA didn't drop the complaint. They just amended it.
In the meantime, fly under the radar. Swap USB drives.
The truth shall set you free!
Depends on who your partner is. :o)
Want to improve your Karma? Instead of "Post Anonymously", try the "Post Humously" option.
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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.
You must be new...no, wait...RIAA sues YOU!...I mean...PROFIT!!!
Sorry, I'm just an expression of the slashdot group-think mind-fuck that goes for "copryright reform" discourse here.
The whole point of what NYCL is doing is almost a public service in pushing the final dregs of the the entertainment industry into the 21st Century. They should be fricking _paying_ him for the good this will do them once the pain is over and they come out the other side.
-P
(Moderators, bring it on. Karma-protection suite: Activated.)
Be my friend.
That's not true! They generally make the articles available at least twice.
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.
Ray Beckerman +5 Insightful
He just seemed to think it was bad form for me to have brought up Rule 11.
Ray Beckerman +5 Insightful
Pro-piracy? More anti-extortion. Or anti-money-makes-right, pick your flavor.
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. What bothers me is the blanket/boilerplate way this is tried. The content industry usually has little to no evidence and abuses the court system for practices that smell a lot like extortion. "Pay or we drag you to court and your expenses are insanely higher" is the message.
Interesting enough, every single case is dropped as soon as the defendent has the guts (and money) to stand up against the threat.
So far they failed to present a single solid case. They rely on judges who don't know jack about the matter, on people who cannot afford to actually go to court against them and on scaremongering.
And yes, that's what I'm against. I can rather live with a pirate in freedom than with a corporation having the right to extort money from whoever they please.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Ray Beckerman +5 Insightful
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.
Exactly. They are rats with hooves. And they aren't the little mule deer from California, either, these are the big white-tailed deer. Very large animals. I can't mow the lawn without picking ticks off my ass, and I have to surround every shrub and every flower bed with deer netting (and don't tell me that coyote urine or soap or shock sticks or any of the other half-measures work, because they absolutely do not. A hungry deer is not stoppable except by physical barrier, and even then, sometimes not. They will dig under it, reach over it, push against it with their bodies, whatever it takes).
Also, don't tell me about "deer resistant" plantings. There are very few (VERY FEW) plants that deer will not attack. The deer here are so hungry they will eat holly, they will strip pine bark, they will eat rhododendron. They are desperately hungry. Want to grow a vegetable garden to help save the planet? "Thanks, a salad bar!"
Even if you can keep deer off your property, which requires a hideously ugly 10 foot (yes, 10 foot) deer fence and a driveway gate to go with it, the ticks are picked up by chipmunks, squirrels, mice, etc. and spread around regardless. Around here, Lyme disease testing is routine. You feel sick, they test you. Half my neighbors have had it (and it's no joke).
The only solution is to cull the herd to a reasonable level. Deer sightings should be rare, not "Gee, there were six of them chewing the shrubs this morning," or "wow, I passed 13 deer corpses and the 13 totaled vehicles to match on the way to work this morning." If you open the front door and hear them galloping down the driveway as loudly as a John Wayne Western, you know what I'm talking about. One idea is to form a human chain a couple miles long and march right through the woods flushing the bastards into a pre-arranged corral. Then all you bleeding heart animal lovers can pay for the tranquilizer guns and the cattle trucks to move them 600 miles north where they belong; either that, or we shoot them on the spot and give the meat to a homeless shelter.
I'm not a violent person. I don't hunt, and I don't own a gun. But this is ridiculous. They have to be culled.
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.
Of course I have something to hide. If you don't, install PCAnywhere on your PC and post IP, Port and user/pass.
I'm getting REALLY royally pissed at "nothing to hide" bullcrap. Sorry, but my privacy is the only thing I will defend with my life. It's neither your, nor any country's, nor the RIAA's business what's on my PC, in my apartment or on my mind.
Yes, I have something to hide. It's called my private life. You want it? Over my dead body.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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".
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
That defense can work, but only if you can convince a judge that you're "too dumb to know".
Not necessarily. You could say you only intended to share the files with yourself in another location. IANAL, but I don't believe the law requires an individual to take any special security precautions when dealing with copyrighted materials.
When I was a kid, we only had one Darth.