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...

This complaint is no better

[JoelKatz]

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.

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:Slashdot is just a pro-piracy site

[Anonymous Coward]

Except when it comes to GPL software. Stealing 20 lines of GPL code should be punishable by death!

At this point....

[rts008]

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. ;-)

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.

Oblig. IT crowd reference

[Eudial]

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!

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)

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:Safe yet?

[Technician]

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.

Re:Safe yet?

[Jane Q. Public]

Depends on who your partner is. :o)

Re:Safe yet?

[nacturation]

Is it safe to SEED again? Naturally you mean things like various Linux distribution ISOs, works released under Creative Commons license or in the public domain, your own creative content, etc.? It's always been safe to seed those. Why do you ask?

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.

Re:Nothing for you to see here. Please move along.

[Anonymous Coward]

That's not true! They generally make the articles available at least twice.

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:Slashdot is just a pro-piracy site

[Opportunist]

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.

Re:Slashdot is just a pro-piracy site

[Opportunist]

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.