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Judge Rejects RIAA 'Making Available' Theory
NewYorkCountryLawyer writes "A federal judge in Connecticut has rejected the RIAA's 'making available' theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion [PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 'actual distribution of copies', and cannot rely — as it was permitted to do in Capitol v. Thomas — upon the mere fact that there are song files on the defendant's computer and that they were 'available'. This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior."
This really makes me smile, I'm not in the US, but I follow the news on these kinds of cases (mostly on Slashdot), if only this would get more mainstream coverage.
This is the sig that says NI (again)
Was that the sky falling that hit me on the head or just a smart-stick!
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
It is about... damn... time.
This is actually pretty stupid. If I set up a stand outside my house with a sign that says "pirated movies: $5" and didn't sell any, I bet someone would still arrest/sue me. Just because I burned copies of it and set up shop doesn't mean I distributed any so nothing can happen to me under that ruling.
Google's Super Secret Search Algorithm: SELECT @search_results FROM internet WHERE @search_results = 'good'
So this form of copyright infringement is illegal, but the law impossible to enforce? Not a good situation. Congress will be forced to give IP rights holders increased power to police infringement.
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
It's worth noting that unlike the typical NewYorkCountryLawyer story gloating about how the RIAA lost some motion on some case somewhere, this is a potentially major development.
What I'm listening to now on Pandora...
Who the hell gave them the power to just wantonly dispense fair and balanced justice like this? Judges have always been empowered to make huge decisions, but this new behavior is becoming quite alarming. Common sense has been creeping into recent rulings with alarming frequency, and many decisions seem to be based on information, not cash-backed opinions.
I hope this behavior doesn't continue... the entire American way of life is at stake!
I like to place meaningful quotes in my sig, so people will know that I know what meaningful quotes are.
FUCK YEAH CT
I blame geof's speakers.
I can see the merits in both arguments. Why is making available rejected in this case but not in the Thompson case? How are these different?
It's about time one of these cases went before a judge that didn't subscribe to the "series of tubes" mentality. Woo hoo!
I'm taking a poll. What do you think the RIAA will do now with this case?
(a) Walk away.
(b) Bury the judge in paper with a 'reconsideration' motion.
(c) Ask Mr. Brennan to "settle".
(d) Other.
Ray Beckerman +5 Insightful
common sense and decency were on the stock market they'd be way up today.... thats the most refreshing legal thing ive read since amazon had some 1 click patents overturned (albeit partially) several months ago
w00t
"Jazz isn't dead, it just smells funny" ~Frank Zappa
EdelFactor
This is a blow not only against the RIAA legal machine, but also against "thought crime" of all sorts (such as the argument that selling guns facilitates murder). So even as significant as it is by itself, it is a FAR more important decision than it appears.
~REZ~ #43301. Who'd fake being me anyway?
Didn't pay enough attention to your submission to see that case among the others you listed and I didn't see any mention of the defendant defaulting. Good thing I didn't submit it, then, we might have had another dupe
Anyhow, I might as well ask, what do you think about how this ruling came about even though the defendant defaulted? As I understand it, it's NOT generally a good idea, but thanks to the oddities of RIAA litigation, those who have defaulted haven't done half bad in the cases I've seen, at least comparatively.
I also liked that expert report from the other day. I really hope that information gets presented in court a lot more often.
Wouldn't you do better to look at Obama's numbers before he became popular as a baseline for Slashdot's influence? That poll we had showed Obama with several times Ron Paul's support.
... talkative ... as Dr. Paul's supporters, though, so maybe that's why people don't notice them as much.
We're not all Libertarians around here, and the pollsters always mention that Obama gets most of the educated Democratic voters. It's true that Obama supporters aren't as
Isn't this "making available" approach like trying to sue someone for simply having a stack of books piled up next to a public photocopier? I guess book publishers should try to sue libraries...
It must have been something you assimilated. . . .
This is rather rare in todays court system. Lets hope it spreads like a virus.
---- Booth was a patriot ----
You are correct. The following are listed as forms of reproduction that are protected and exempt from copyright.
Criticism
Comment
News Reporting
Teaching(including multiple classroom copies)
Scholarship
Research
Ref: Circular92: Copyright Law of the United States and Related laws contained in title 17 of the United States code.
Circular92 Chapter 1 Section 107
Guys, time to toss those mod points a little further afield. Browsing at (3), I'm currently getting 17 (3+) comments, and 6 of those are from the submitter NewYorkCountryLawyer! Now I'm as interested as the rest of you in his comments, but my spidey sense tells me people are modding his comments up because of who he is, and less because of the content of any one of his comments. He's a conversational guy, and makes frequent small comments like the rest of us - we can't just mod up every one of em! Keep the conversation broad and varied - spread those points around!
Does this decision in of itself have any real significance in terms of the RIAA's plethora of lawsuits? I'm not entirely sure how this works. Does this set precedent, or is the judge in question not high up enough in the hierarchy for this decision to become case law?
I realize that every victory counts, but what I want to know is whether this will affect similar cases in the future.
Forgetting the RIAA for a moment, step back a few light years and think about the long history of music. In terms of centuries, this desparate troughing that the RI (recording industry) has managed over the last half century is like a burst of activity in the gold fields, then something fundamental changes and for some reason the Gold Rush ends. If the RI wants to stand in the middle of the deserted gold fields screaming "poor me", then so be it, but if a fundamental aspect of "gold production" has changed, then, sorry, but it's *over*. You (RI, RIAA et al) have to look for something else to do "after the Gold Rush", rather than try to sue the consumers for not buying *your* Gold anymore.
So what about claims that the MI (music industry) is dead by association? This seems to be another illogical grab for air in a bid by the RI to survive. The MI has existed since the first huddle of cavemen got together, beat drums in time, and feasted with a dancing tribe. Music and the MI preceeded the RI gold rush and did quite well about it thank you very much. Musicians are artists and art is most often a matter of the heart searching for and finding expression. Cash is all well and good, but at the end of the day if payment for music is extinguished altogether, music will prevail irrespective. Art is not extinguished by poverty, so neither is music. Only greedy troughing is extinguished by poverty.
Here's a tip: I play in a band. We're not too bad at what we do. We put smiles on faces every show and most of the time we cover our up front costs. We never cover our "hours" put in, and we don't care, because it's Art, and we all have day jobs anyway. And guess what? There's no greedy corporation troughing from *our* Art.
> Now, a shared folder is there only to share copies of what's put in it. In fact, there are probably many other things that could be copied that aren't necessarily under copyright- but if they're not in that folder- they're not going to get copied. You can show express intent with a folder with a single use VS a library copy machine that has many legit uses.
I understood that you could accidentally share your entire C: drive or at least My Documents, given all the people searching for *.xls or *.pwl and such in hopes of finding people's banking details, passwords, or other private information. More than one security and AV company has opined on that.
I confess to not having used Kazaa, though, so I admit that I don't quite know just how easy it is to misconfigure, but it's certainly not a given that they truly intended to share everything.
Probably an unpopular opinion, but my basis for thinking so is that it's not just an issue of making something copyrighte available, but making a *COPY* of it available... the catch here is that other than for certain specific exemptions, copying a copyrighted work without permission is copyright infringement in the first place. I'd dare say that choosing to make the copy that one makes publicly available doesn't fall within any of the exempt categories.
Three little words: Non-mutuial Collateral Estoppel.
Expect them to try to settle/dismiss with a vacatur.
I have seen this kind of pattern before.
this type of case represents a precedent and may be used by all previous litigants to have their cases appeals.
This begins to look like the beginning of the end for the RIAA.
Understanding is much like a 3-edged-sword. in this: there are always 2 sides and the truth.
First off I'll start with the point at hand. It's glad to see a judge rule in favor of the consumers for once, but this is certainly only a minor battle that is a part of a larger war. Just remember the precedent set here could involve further detriment down the line whereas since the *AA's cannot get users on "making available", they'll just lobby for changes to the law that allow them to prove that you were doing what they thought you were doing. That said, of course we all know it is stupid, but there is a legitimate place for "recording companies" as distribution companies as well. While arguably they have abused their position, they are certainly helpful in their actual form. Face it, not every music star out there is also a lawyer nor are they a computer technology junky. You need a spot for them to distribute music, and preferably they'll want someone else to manage the business side of their work. It's easy, it's safe, and they generally made some good pay off of it. Not too many artists cared because what do they mind as long as they get to do what they enjoy and not have to deal with any of the fluff? It's like saying we all could just build our houses ourselves and save tons of money but instead ask a builder to do it because they specialize in doing that sort of thing. Now, to the specific case at hand. "Making Available" really depends. I do not enjoy the comments that proclaim ignorance on behalf of the end user as a valid defense. People are not "ignorant" to what Kazaa, Bearshare, Napster, and all of those tools do. The reality is that people do not use Kazaa to legitimately share linux ISOs. It's not known in the community for open source software distribution either. Exercise a little common sense here. When someone hears Kazaa, you immediately think pirated music and movies. That said, Kazaa and said applications also include wizards that walk you through sharing your files. The fact of the matter is there is a deeper fundamental "problem" in the sense that people don't want to pay for a specific form of entertainment. Music is something we take for granted. It's sound, it's recordable, sharable, and something we hear every day. We have a favorite song and we want to find it. The real question is how do you get people to pay for it? The fact is that not everyone who wants said song is willing to pay for it. I don't care if the cost is $0.50. If you give them the choice between FREE and $0.50 per song from the author directly, there is still a vast majority of people out there that will take the free option. What we need are better distribution methods, cultural education to help people become more accustomed to wanting to help others out. Right now we're in a culture of "Screw you I need to get where I am and I'll step over you to get there." Until that changes, authors have full rights to use technology to make sure that they are getting just compensated for their work. If you're willing to take something for free from them, why aren't they able to take something from you in return? Just some food for thought...
I'll play Devils Advocate here.
The argument is that the RIAA needs to prove *actual* harm (copying) took place, rather than just creating a significant potential for harm. However, there are many instances in law where creating the potential for harm is punishable, without actual harm.
Here are some examples. Speeding is illegal because excessive speed creates a much higher chance of damage, injury and death. It is not necessary to show actual damage, injury or death was caused by a speeding motorist to charge them. Releasing carcinogens into the environment is (should be?) illegal, even though we can't prove whether a specific case of cancer in an exposed individual would or would not have occured without the exposure. Distribution of child pornography is illegal because of the harm done to children in producing it, and because it may prompt "consumers" to harm children. In a given case of C.P. distribution, it is not necessary to demonstrate that a child was harmed in the production, that the production would not have occured without this instance of distribution, or that a user of the material harmed a child in response to viewing it.
It seems to me that punishing "potential harm" is justifiable under certain circumstances:
* If the harm is large but rare, and if the harm does occur, the at-fault person is not able to make full restitution. (Speeding would fit into this category.)
* If the harm is real, but it is very difficult to connect any instance of actual harm to a specific instance of increased-chance-of-causing-harm behaviour. (Releasing carcinogens fits into this category, as does any 'many small polluters' situation.)
The 'making available' theory clearly does not fall into the first justifiable category. Whether it falls into the second category is open to argument. There is at least a case to be made that it does - showing that a work was made available *and* that somebody took advantage of that availability is technically challenging, and would probably require allowing a level of snooping which we don't wish to allow anyone except police with a search warrent.
Having said that, I think that the decision on whether a "potential harm" should be punishable is in the domain of politics. Generally, it shouldn't be punishable unless a law specifically says it is. The RIAA may be legally wrong here, but that is not the same as saying a law which made them right would be a bad law.
IANAL.
Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
Wow, I've never seen so many replies to an article by its own poster. It's like what would happen if Doc Ruby went to law school and then figured out how to get one of his submissions picked. Oh well, I guess he'll have to stay buddies with Roland for now...
Strange things are afoot at the Circle-K.
The making available argument is like blaming shop keepers for having goods available in their stores that could be readily stolen. It's not the theifs fault, look the store just had them sitting there!
I base this on my assumption that hubris will be the RIAA's Archilles, and they'll maintain a brute force via bullying stance up until the bitter end. Bullies only increase aggressiveness when threatened. Just my $0.02, take it with a grain of salt.
If I mod you up, it doesn't necessarily mean I agree with what you've said, sorry.
I've been saying this for years - even pre-Napster - that you can't be liable for distributing if you aren't actually distributing, but I think in this instance file-sharers might hold off popping the champagne corks. The judge's concern seems to be more about facts than philosophy, i.e. whether or not distribution can take place in a passive sense isn't directly at issue here. What is instead is can a record company successfully sue a defendant for offering files merely by presenting screen shots of titles in a share folder? That other judges have missed this speaks volumes, but unless I'm mistaken, my careful Connecticut neighbor isn't saying a transfer has to be actively sent by the defendant, she's saying that in this particular case, the plaintiff hadn't met the burden that a transfer occurred at all.
- js.
As is common for Slashdot, the summarizer fails to discover the main argument in the article, or in this case, the ruling. The main point is not the defeat of the theory that making copies of a copyrighted work available constitutes copyright infringement. The judge merely remarks that there is a possible defense to this theory. Nothing more.
In the ruling, the judge concludes that Plaintiffs must do more than state that they "believe" that Defendant has infringed on copyright. That is all this ruling amounts to.
Of course I could argue that the Slashdot editors should do some actual editing, but I know this will fall on deaf ears.
DieBold!
BlackBoard, DieBold, DMCA, RIAA... check your facts kids!
http://web.textfiles.com/phreak/wp101.txt
Right.
Show me any third-party candidate who has received a proportional amount of media attention as compared to the two leading parties, and who had any chance at winning the general election.
Running under the Libertarian ticket would have gotten Ron *LESS* coverage than he has gotten as a Republican candidate.
Ron himself has cited that running Republican gives him a better chance at being on the ballot and involved in the debates, something he wouldn't likely have gotten as a third-party candidate. Regardless, the parties are really meaningless labels and your implication that Republicans can't be against illegal wars or ineffective drug policy seems to communicate that you're just playing into the "team" mentality.
For the record, Ron HAS gotten quite a bit of support (like the thousands that showed up at the Austin Rally a couple of days ago or the activities happening in many local government GOP groups). But if you only pay attention to the big picture presented by the media, you'll never hear about it.
The only reason Ron hasn't gotten more support is because FOX, CNN, CBS, MSNBC, et al. have all spent the last YEAR keeping him and his message out of circulation or distorting it and marginalizing him -- even going so far as to actually say or imply that he had dropped out of the race for many many months now.
Anyone who doesn't realize this hasn't been paying attention and is being manipulated. For an eye-opener, check out some of the blackout events noted on The Ron Paul Timeline, which has been chronicalling it for some time.
It appears sanity is slowly starting to prevail, but it took a unacceptable amount of victims along the way to get there. Who is going to help those people who were abused in court before some intellligence started to appear?
Insert
Just take speeding here for a minute:
The offense is "speeding" not "being able to speed".
Because my car CAN to a ton, doesn't mean every time I start the enging I'm speeding.
Now if the RIAA want "making available" a law, they'll have to do what everyone else has to do to get their laws: py money.
Did anybody actually read the ruling?
The ruling did not find that merely making copyrighted material available does not constitute copyright infringement. It found that RIAA has to argue the matter in court. Therefore, the court refused to issue a default judgment, even though the defendant failed to respond.
I'm not trying to be funny, really, but I thought that lying was just what lawyers do.
I've spent many hours at the courthouse being passed over for jury duty and listened to a number of lawyers. I look at the defendant sitting there. I look at the lawyers. I know that they all know what actually happened and whether or not this guy should be found guilty.
Yet I also know that at the end of the trial, the prosecutor is going to tell the jury "You should find this guy guilty." The defense attorney is going to say "You should find this guy not guilty." It's my opinion that it's extremely rare for the circumstances of a case to be sufficiently fuzzy that these contradictory statements arise from a genuine, intellectually honest disagreement. Rather, one of them is lying and everyone in the courtroom knows it.
My local District Attorney office (Harris County, Texas) has been caught in so much misconduct going back so far that I can't trust a thing they say. Defense attorneys openly admit that most of their clients are guilty. Generally, I wouldn't want to have dinner with either side.
Is there anything left to believe in? Do you seriously believe that lawyers should be disbarred for lying? Or are you just parroting an ossified, nay, *dead* principle as a way of playing to this virtual audience?
No, I don't mean to be rude. I'm sorry if I come off that way. But something just struck a nerve, thus this little rant.
Cut the guy some slack. His posts are usually interesting and informative, and he's an expert in a subject that many of us here have a bit of an interest in (copyright law etc). It's not exactly comparable to a blogwhore like Roland.
...the ruling mainly just says that a defendent in this case could theoretically mount a reasonable defense, so the plaintiff cannot simply receive a default judgement. basically, this doesn't say that the defendent isn't guilty of infringment against the **AA, but rather that he isn't so clearly guilty that the **AA can just demand a judgement without having to prove it.
in other words: the "making availible" line of attack still might be good enough in an actual trial. it just isn't so good that the **AA can use it without a trail...
it is a rather small point to be celebrating.
Ray should be replying. He actually is a lawyer, and has gotten quite an education on this previously rather obscure dark corner of the law. He's the expert on this subject (the legal aspects), and we're not.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Every New York Country Lawyer post should be marked INFORMATIVE +1, because they are.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
All of the examples you mention are criminal offenses. Some are felonies, some misdemeanors, but they are such fundamental principles that they don't necessarily have to have evidence of actual damages...you are committing offenses "against the dignity of the people of (fill in local, state, or federal government)." The standards of proof are higher in criminal cases, but the simple attempt to commit a crime can be sufficient grounds for conviction, even if law enforcement manages to foil the plot before actual harm takes place.
In a tort (civil) case, as the RIAA's cases all are, the plaintiff theoretically has to provide evidence of damages (I say theoretically, since the RIAA has had cases decided in its favor without doing so, pursuing statutory damages on claims of "making available" without providing any evidence of actual infringement is their way of avoiding this). Once damages have been established, there may be a punitive element added to just smack the perpetrator down more and teach him/her a lesson, or other solutions to remedy the situation.
IANAL, but I'm a bit disgusted by the whole mess-- you're apparently not the only one who confuses tort wrongs with criminal ones. The RIAA is apparently able to fool a lot of people, including judges, into not forcing them to provide evidence of actual, specific infringement actions that would warrant a judgement for statutory damages in their favor, saying the intent is sufficient as it would be in a criminal case. Kudos to judges who are competent enough to see through it.
One thing I wonder about are the RIAA stormtroopers who raid homes and seize hard drives...are they simply PIs who convince the accused to cooperate, or do judges actually sign search warrants that allow police to seize evidence on behalf of a tort plaintiff? I know under some circumstances, when a tort type of wrong is egregious enough to become a criminal offense, the government will step in; but in these cases, there don't appear to be government prosecutors involved, and the RIAA seeks only monetary damages as far as I've heard, not fines that are to be paid to the government. That situation just seems wrong.
Cuz therz know way 2 cuntrol it, U stoopid fuk'r. U siriusly kant b that dum, kan yoo!! Izint that the root of the problim we have rite now??
Itz amayzing how evrebudy duz it, butt nobudyz gilty.
Actually, I found it amusing, not annoying. I enjoy NYCL's stuff, and was just taking a cheap shot at Doc and Roland. I thought I showed up too late for anybody to even read it, what with the Karma snipers around here...
Strange things are afoot at the Circle-K.