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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.
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...
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.
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.
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
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.
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".
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
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
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!
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
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
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.
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
1) I don't really buy the "user doesn't know" argument; it doesn't take a 4-year degree to know what kazaa is doing with the files you put in its share folders, and at some level a user is responsible for knowing something about the tools he or she employs. At best, I'd say that would come down to a case-by-case jury decision.
2) The library analogy is seriously flawed. Let's say you decide to copy an entire book using library photocopiers, at $0.10 per page. You'll typically pay more than a new copy would cost, and the copy you get will be pretty low quality; so I don't really see how the library has given you "everything you need" to get illegal copies of their books.
You'll also need quite a bit of time for this project, and may be told to stop and/or kicked out of the library before you can complete it. Oh, the staff might not bother -- librarians don't always feel like they're paid enough for that kind of confrontation -- but if you check the library's policy, you'll probably find that they're supposed to. (You might also notice signs around the copier that put you on notice that you're supposed to obey copyright law, though that detail depends on the library.)
See, unlike kazaa shares, the purpose of library photocopiers isn't copyright violation. The purpose of library copiers includes things like "fair use", which is legal (though the RIAA would love for you to forget that fact). For example, copying a few pages of a reference book for academic purposes is legal. The copiers are well suited to this purpose (in much the way that they are not well suited to wholesale copyright violation).
Check your facts. The primary differences between civil and criminal infringement in the U.S. are commercial intent and scale:
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.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
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.
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!
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.
Ray Beckerman +5 Insightful
What can I tell you? I'm weak. I'm really too busy to be doing this stuff, but the dialogue on Slashdot is just something I really enjoy and look forward to. It's fun for me.
Ray Beckerman +5 Insightful
Your big words must be a bitch.
Dewey, what part of this looks like authorities should be involved?
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:
I would argue that no transfer of ownership takes place, because the original copy that the sharer has remains in place.
Another weakness is that all that is transferred is a copy of the file, which in the case of most P2P transactions isn't a copy of the original CD file anyway but a compressed version of that file, so it is a moot point as to whether the copyrighted work itself is being shared.
Keep up the good work, Ray - I'm in the UK but follow your progress with great interest, especially with the ludicrous proposal over here that ISPs should disconnect users accused of file sharing merely on the recording industry's say-so.
One swallow does not a fellatrix make
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."