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."
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'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.
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
Ray Beckerman +5 Insightful
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.
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?
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
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?
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
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
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:
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).