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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.
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?
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?
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
Ray Beckerman +5 Insightful
Posts like the parent REALLY piss me off. Anyone who moderated him anything other than "TROLL" should... consider themselves.
The focus of the poster is to say "you dont matter". Not only that, but to say thathe is being RATIONAL in making that claim. An individual absolutely does matter in National Politics. Anyone who says otherwise needs to learn some math, and some basic economic theory.
Basically, the value of your vote is the total value of all votes, divided by the total number of all votes.
So to say your vote has a tiny Percentage of effect, so small as to be ALMOST un-noticable, is true. There are, in a national election, some 90 million voters. So your individual vote has a worth (and it actually is a little different than this because it does vary state by state) of ~ 1/90,000,000.
However, the Federal Budget is roughly (depending on what you take into account) some 3 TRILLION dollars. How that money get allocated is decided by the people you do or don't vote for.
So, just a rough number to think about, your vote is worth 3 TRILLION/ 90 MILLION. Roughly 33 THOUSAND dollars.
Now, you can argue about different things in that number, and whittle it up and down depending on how you look at it (entitlements, not being able to choose a canidate who exactly matches you, etc.). But to claim that it is RATIONAL to say your vote is worthless is just stupid.
Anyone making such a claim is being stupid (or simply trying to discourage voters, which the republican party does a lot of, actually), and certainly shouldn't be modded anything other than troll (the effect of people encouraging others not to vote is that there is a disproportinate representation of wealthy people voting. The wealthy, tend to believe that their vote counts. And they turn out. And Vote. And it does. This is one of the reasons that while the country tends to identify as Democrats (by close to a 60/40 margin) The VOTING population breaks about even. This is one of the reasons that we have an embargo on Cuba (they Cuban Ex-Pats almost all vote).