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."

Comments

Re:kinda dumb

[Anonymous Coward]

The situation you describe is akin to when police bust drug dealers in undercover operations - they have to wait for the sale to be completed (money to change hands) before they can arrest and charge the individual with dealing.

Re:So uhm... why is this different?

[NewYorkCountryLawyer]

Why is making available rejected in this case but not in the Thom[as] case? Because the judge in the Thomas case made an error.

How are these different? No difference. The judge's instructions to the jury in Capitol v. Thomas should have been precisely what Judge Arterton said:

""[W]ithout actual distribution of copies.... there is no violation [of] the distribution right." 4 William F. Patry, Patry on Copyright 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court's finding "that distribution requires an 'actual dissemination' of a copy")".

Re:This is actually important...

[NewYorkCountryLawyer]

The RIAA also lost an uncontested case, the other day. This guy not only didn't have a lawyer, he didn't even show up. And the RIAA still lost because it neglected to include any facts, producing only a 'boilerplate' complaint that could have equally well applied to anyone the RIAA sued. I'd submit this as a story, but it's too much of a rehash now, so feel free to discuss both of the RIAA's losses here. It's the same case.

Re:respect for law

[kithrup]

There isn't an "attempted copyright infringement" law, or at least I don't believe there is. (Is there a conspiracy charge that can be used?) So it's not illegal until copying actually happens. That, however, is not what the RIAA has been arguing, to various degrees of success.

Re:Poll: What will the RIAA do now?

[NewYorkCountryLawyer]

I'm going with choice "b" b) Bury the judge in paper with a 'reconsideration' motion. I think I remember reading that they've tended to use this tactic in other cases and non-court situations too. They did indeed use that tactic in Atlantic v. Dangler and Interscope v. Does 1-y.

Re:Poll: What will the RIAA do now?

[NewYorkCountryLawyer]

D) Slightly change the wording of their argument and keep on truckin' They did indeed do that in Interscope v. Rodriguez, but for some reason they skipped out on actually serving the amended "argument".

Re:Poll: What will the RIAA do now?

[NewYorkCountryLawyer]

If the brain who gives the go-ahead to continue the process is at all rational, then a. That's a big 'if'. This is the clone-in-charge.

Re:Poll: What will the RIAA do now?

[NewYorkCountryLawyer]

And these are their spokespersons.

Fair Use

[TwilightXaos]

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

Re:Smart Judge

[cpt kangarooski]

Well, the law is quite clear that no mental state has to be shown for civil copyright infringement. Even if you infringe purely by accident, and you always acted as reasonably and as carefully as possible, you can still wind up on the hook for infringement. So the court in this case is not going to find otherwise, but it would be a good part of a comprehensive legislative reform. (Though I think an intentional standard is somewhat high)

Re:Smart Judge

[TheThiefMaster]

That's actually an interesting question -- how many of us here WOULD vote for Ron Paul?** I'm guessing no more than about half, since there are a fair number of left-wing liberals in the slashdot mix.

**I did, but I'm just one in, uh, a million and change... 17%

Re:kinda dumb

[JesseMcDonald]

I'm pretty sure that the scale and (lack of) money involved doesn't make a difference - copyright infringement is a criminal offense.

Check your facts. The primary differences between civil and criminal infringement in the U.S. are commercial intent and scale:

Section 506 (a) Criminal Infringement. --

(1) In general. -- Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed --

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

...

Not that I support the law -- I'm fully anti-copyright -- but your assertion was nonetheless in error.

P.S. I also found it interesting that there's also a statute of limitations on copyright infringement, three years for civil proceeding and five for criminal: Section 507.

Re:Clueless.

[kiddailey]

Maybe because that "quite a bit of support" has translated into zero electoral success? You can't blame the media for the voters rejecting Ron Paul in small elections (read: Iowa and New Hampshire) where he had the ability to campaign on an individual and town-hall level. I know it's popular in the Ron Paul camp to blame the media for all your woes but has it ever occurred to you that the voting public rejected his philosophy?

Are you kidding?

You can keep stating that all you want, but it doesn't make it any more true.

His philosophies were not heard and the only ones rejecting it were the main stream media outlets making the decision for you. The public was never given the opportunity to reject his philosophies. For that matter, the public was never given the opportunity to reject a handful of the other candidates philosophies either.

And do you really believe that the majority of voters travel to stump speeches to make up their minds about the candidate? This isn't the 1800s anymore - the vast majority form their opinion based on what they hear from TV, radio and print.

It's popular to blame the media because THEY are the entity that uses their power to shape public opinion. And they have, almost 100% of the time since day 1 of campaign coverage, excluded Ron Paul when listing/talking about the candidates. The have, since the beginning, called him and his supporters names and stated he has no chance.

Yet you think I'm unjustified in saying that these actions don't have any impact on popular opinion?

You are naive:

• In July 2007, George Stephanopoulos began the trend of telling Ron and his supporters that he had no chance This has been repeated almost every time Ron has received mention since.
• In July of 2007, the PEW Research Center published a report on "candidates heard about in the media" and Ron hadn't been mentioned enough in the media to even register outside the 4% Other cantegory. Journalism.org has done numerous studies since then showing Ron has recived 0% or <0.5% of media coverage.
• In August 2007, ABC manipulates preception of numbers of Ron Paul street supporters as compared to Romney suppoters outside the GOP debate (a debate which he was almost excluded from until public outcry)
• In August 2007, Ron received 9.1% of the vote in the Iowa Ames staw poll, yet FOX broadcast the results excluding Ron and listing candidates who scored LESS. Thankfully, the New York Times got it right ... at least on the internet, where you're at least likely to find SOME poisitive (albiet buried) positive coverage. Such as the "internet only" interviews with Ron that ABC published as opposed to on broadcast television alongside their other candidate interviews
• In December 2007, MSNBC regularly listed the candidates and excluded Ron Paul. This trend continues amongst all media outlets to this day.
• In January 2008, Ron was excluded from the FOX Forum before the New Hampshire primary because "there was not enough room at the table" despite the fact that Ron had garnered THREE TIMES as many votes as Guiliani in Iowa and later went on to score more than NINE TIMES the number of votes of Fred in New Hampshire -- both of which were invited.
• Before Super Tuesday, there was literally no coverage of Ron Paul and when he did win 2nd place in Montana it was largely ignored (just like his 2nd place wins in Nevada and Louisiana)
• On February 4th, papers around the country ran a