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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)
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...
No, putting up the sign makes it "intent to distribute", which is not the same as having files in a publicly available folder. This would be like making a copy of a song on a CD, leaving that CD on your porch and having someone come along and pick it up. Then getting sued for distribution.
I stole this sig from a more creative user.
Not quite. I'm not a lawyer, but I'm guessing your tactic would constitute commercial infringement and thus fall into criminal law (or at the very least a different set of laws), whereas small-scale sharing without any money being made would fall under civil law, which is what this case is interpreting.
upon the advice of my lawyer, i have no sig at this time
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
Correct, someone WOULD (sue, not arrest) you. Once you burn copies, you're violating copyright, even if you didn't sell any. This ruling doesn't apply to you at all; anyone who comes to your stand can see proof of your illegal activity.
It does, however, apply to the defendant in this case. The reason the RIAA needed the "making available" theory is because they did not have any actual proof that their copyright had been violated. If I've got an MP3 in a public folder, what have I done? Have I illegally copied anything? Doesn't seem like it. Have I created a derivative work? Arguably, if I ripped the MP3, but maybe I downloaded it, and ripping a CD I own is almost certainly fair use anyway. Have I distributed it? Well, if the RIAA has proof of me distributing it to someone, they've got me. Obviously, in this case, they don't have proof of that. All they see is that MP3, so the "making available" theory says that, even in the absence of proof that their rights have been violated, they should be able to sue people.
What happens if you leave a DVD on your front lawn, I come along with my laptop, rip and burn it? THAT is what this case is talking about. Have you broken the law by leaving that DVD on the lawn? I clearly have, by copying it... the RIAA thinks that you have, too. The judge, luckily, knows the law a little bit better. You have proof, or you have nothing.
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?
Except that depends. If "shared folder" means "folder shared and indexed by a p2p service, such that said service's other users are made aware of the track's availability upon request", then it's more like the GP's example than yours.
Actually it's like the GP's example with a much more effective marketing budget.
I do agree in a literal sense that "merely making available" should not be enough to get a judgement; but I don't agree if you're saying that putting a track on kazaa is "merely making it available".
The person you replied to is right. Congress will now act and turn making available illegal and probably a whole laundry list of other RIAA wishes.
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
Perzac'ly... whereas the RIAA was contending that "You have a vagina; therefore you are a hooker. Hands over your head!!"
~REZ~ #43301. Who'd fake being me anyway?
No, putting up the sign makes it "intent to distribute", which is not the same as having files in a publicly available folder.
It's not? Come on now, I'm firmly anti-copyright, I believe that restricting the supply of an infinte resource is theft, but this argument is silly. MP3s don't share themselves.
Give me Classic Slashdot or give me death!
That's a good point, except that the photocopier is there for other purposes- one of which could be copying books. But it's not placed there for that. It's placed there to make copies of anything that is legal to be copied.
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 neccessarily 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.
And if you do set up limewire to send a friend who owns the CD the files, that's technically not against the law (I think..) but since you're using limewire, you aren't controlling who else may get access, so that'd be where the grey area starts..
Anyway, good points. Mod parent up.
Belief? Hope? Preference?The Existential Vortex
Prosecution: "Your honour, the defendant repeatedly said in public that he was going to kill his wife, shoot her, cut her throat, poison her. What more evidence do you want that he murdered her?" Judge: "Maybe something like a dead body? His wife is sitting besides him, breathing quite normally, and I heard her snoring, so I won't find the defendant guilty".
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.
Meanwhile, on the facts, the RIAA is always lying.
As to how the judge made the error in the Thomas case, it's obvious:
the RIAA lawyer was willing to say misleading things to the judge,
Ms. Thomas's lawyer wasn't sufficientlyl prepared to rebut them, and
the judge made the mistake of changing his mind in the heat of battle, instead of sticking with the decision he'd made beforehand when he and his staff had had enough time to do the requisite legal reading.
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
Alternatively, it's because he can speak with some authority. Many of his posts are thoughtful, insightful paragraphs that educate the average /.-er. And even the ones which are just single-word answers benefit from his experience and reputation. This is not uncommon when you have other notable people commenting in articles relevant to their expertise, people like Jimbo Wales or Bruce Perens.
It's not a factor of them being upmodded because of who they are, but rather being upmodded because their expertise and commentary is relevant and benefits the community of readers as a whole. It's perfectly possible to have this phenomenon arise because of a person's situation as opposed to position or reputation, such as if a person was on Slashdot in the middle of a major event like a terrorist attack and offering a crucial and unique perspective.
"Copyright law does not distinguish, in defining "distribute", between copies paid for vs. copies given away for free"
You could argue that there's a good reason for that. When copyright law was developed, it was impossible to make large numbers of copies of something for negligible cost. Therefore, it was a reasonable assumption that anyone making multiple copies of a book or vinyl album or even a CD was doing so to sell them. Copyright law is all about stopping that from happening, which is why it appears to some to be so unjust when applied to free distribution.
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.
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
You're wearing a miniskirt, how much more available can you get?
(Ie. "you're online, so you must be making files available!")
~REZ~ #43301. Who'd fake being me anyway?
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."