Slashdot Mirror
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."
The only angle under which this is "news" is that file sharing just became a lot more reasonable, and that's not something that IP-based conglomerates (aka the mainstream media) are going to be pushing. It just sounds dirty to them, and I don't think it's even a conscious decision. There's just no reason that a modern news reporter would think this was of general interest.
Unfortunately, the people that own media creation companies also own the tv, distribution & broadcast companies. Its also not in their best interests for the public to know when its harder for the **AA to sue people. Fear of being sued is the only weapon they think they have to fight copyright infringement. Its not the only option available to them (blanket licences, more reasonable prices, producing better media etc) but when they insist on trying to fight back against copyright infringement all they can do is sue or buy more laws making it easier to sue.
News related to P2P has been getting quite a bit of coverage in Canada lately. Not yet front-page coverage, but 2nd page coverage in some cases. Of course, our mainstream media isn't in bed with the IP-based conglomerates to the same degree as yours are.
Ray Beckerman +5 Insightful
This is a pretty big deal. A lot of countries fall back on the US in order to use as a basis for their law (australia) and some use it as an example of what not to do in most instances (EU). So definitely a total gain on a worldwide level if precedents are set.
But where a judge has done his or her homework, and is right.... other judges will follow. This judge has done her homework, and is right. Other judges will follow.
And when these issues get to an appeals court, there is no other possible answer than the one she gave: (a) the complaint doesn't satisfy the federal pleading standards for the alleged violations of the right of reproduction (uploading and downloading), (b) there is no such thing as a claim for 'making files available for distribution', (c) there is a meritorious defense of copyright misuse, and (d) there is a meritorious defense of unconstitutionality of the plaintiffs' statutory damages theory.
Ray Beckerman +5 Insightful
I think this judge did not go quite far enough. I think the RIAA should have to show not only that distribution occurred, but that the distribution was INTENTIONAL. That is, not the product of accidentally having a file in a directory that Limewire is sharing or something.
Currently hooked on AMP
Its neither.
.10c page to use their photocopier and makes you use some sort of 'printer card' that you prepay to fill... would that make them infringe? I doubt it...most libraries -do- charge for photocopies.
1) You don't 'index and share your songs via Kazaa', Kazaa et al, do tha all by themselves, without user intervention, in their default course of action. Many users aren't even aware 'they did it'.
2) I've always liked the library analagy. Its a public building, open to the public, and full of books. Photocopiers are placed conveniently often even marked with signs --> photocopiers this way. The books are carefully organized to make them easy to find. And there are computers scattered around so you can look them up that way too.
They've set everything up they possibly could to let you make copies. Yet if you do so, YOU are liable for infringement, not them.
By analagy, if I set up a computer, put it in a public place (like the internet), with songs available on it, and also set it up with tools that will make copies of those songs for you if you send it the right commands.
Now if you send my computer a command to transmit you a copy of the song... shouldn't YOU be liable for infringement? My computer isn't making copies and sending them out... YOU asked my computer to do it. All I did was set it up to listen to requests.
How is that fundamentally different from a library? If I could somehow operate the library photocopier by remote from my computer, would that suddenly shift the blame for making copies to them? I should think not. Its still YOU who have (remotely) operated the copier to make an infringing copy.
Finally, as a side note... if YOU own the CD in question, and feel its easier to download a copy using my publicly available computer to send you one, rather than ripping your own CD. Shouldn't that be legal. I as the computer owner have done nothing illegal by making it available. You have done nothing illegal because you have the right to make personal use copies of that song by virtue of the fact that you own a copy.
Why or Why not does this 'theory' work?
Finally if I charge you for access to my system that allows you to make copies am I a pirate then? Good question... interestingly, I still think not. If a library charges you
So its only infringement if they start making the actual copies themselves. Setting up the equipment and letting you operate it, even if they charge you for access, doesn't make them liable for infringement.
Although at some point you might argue that their is a conspiracy to commit infringement...
However, you're absolutely right that some of the best rulings have come in default cases, which of course really has to make you wonder. Examples are Interscope v. Rodriguez, this case, and Atlantic v. Dangler.
Thing is, in Dangler they came back with a reconsideration motion, there was still no one fighting back, and the judge was hoodwinked by the RIAA's mountain of phony papers, and went ahead and entered the judgment. I also liked that expert report from the other day. I really hope that information gets presented in court a lot more often. Yes, Prof. Pouwelse's report is a landmark event, and thoroughly exposes the RIAA's junk science as 'borderline incompetence'. (See discussion on Groklaw.)
Ray Beckerman +5 Insightful
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.