RIAA "Making Available" Theory Rejected

NewYorkCountryLawyer writes "In a 25-page decision (PDF) which has been awaited for two years in Elektra v. Barker, Judge Kenneth M. Karas has rejected the RIAA's 'making available' theory and its 'authorization' theory, but sustained the sufficiency of the complaint's allegations of 'distribution' and 'downloading,' and also gave the RIAA 30 days to cure the defects in its complaint by filing a new complaint. The judge left it open for the RIAA to allege that defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,' which, the judge held, would be actionable."

Comments

Not today...

[the.Ceph]

Come on people, save these announcements for days that I can trust the internet...

Re:Not today...

[AioKits]

Come on people, save these announcements for days that I can trust the internet... But you can always trust NewYorkCountyLawyer! Him and Judge Fudge.

Re:Not today...

[hedwards]

NYCL wouldn't do that on this issue.

From what I'm seeing it appears that the RIAA is going to have to try again in this case, but with the bar much higher this time. It doesn't mean that the case is over, but this time they'll have to have more than just a shared folder or a case where a p2p program might have accidentally added files that weren't meant for distribution.

It is also a decision which is available for other attorneys to cite in their own cases.

But, IANAL, YMMV, beware of dog, slippery when wet, etc.

Re:Not today...

[LordEd]

It looks like Slashdot is not participating the April-1 celebrations. I'm disappointed.

Is it so much to ask for a pink pony style website one day of the year?

Re:Not today...

[sm62704]

It is also a decision which is available for other attorneys to cite in their own cases.

I think that's likely the important part. It made me think.

But, IANAL, YMMV, beware of dog, slippery when wet, etc.

Close cover before striking (saw that on a book of AFL-CIO matches), Keep away from children, do not expose to fire or flame, and my favorite "do not eat"

I was at the eye doctor getting YAGed yesterday so the old slashdot favorite "do not look into the laser with your remaining eye" seems appropriate here.

Re:Not today...

[Anonymous Coward]

If you notice, most of the articles for today are dated in March

I think the April fool's is that the /. editors saved up some quality stories to make this an extraordinarily great news day.

Seriously, on an average day, I hit the F5 button multiple times a day, always thinking "this is a slow news day". But today, everytime I hit the refresh button, a "newsworthy, stuff that matters" type article appears.

Re:Not today...

[BigJClark]

Good lord man, treat every day like "April Fools" on the Internet

Re:Not today...

[noidentity]

Come on people, save these announcements for days that I can trust the internet...

Do those days fall within the month of Smarch by any chance?

Re:Not today...

[billcopc]

Ever heard of RSS feeds ? :P

Maybe I'm a traitor, but I typically hit Slashdot twice a day... once in the morning before my brain reaches its useful RPMs, and once in the evening when I'm tired of working.

If my day consisted of repeatedly reloading a site, I'd sign up for an MMO instead.

Re:Not today...

[cyberstealth1024]

Come on people, save these announcements for days that I can trust the internet... You trust the internet? (I know, I know, this is an April Fools Day reference, but..)

Re:Not today...

[ari_j]

Come on people, save these announcements for days that I can trust the internet... But you can always trust NewYorkCountyLawyer! Him and Judge Fudge. You heard it here, first, everyone! You can always trust a lawyer! ... just so long as it's the right lawyer. ;)

Re:Not today...

[NewYorkCountryLawyer]

Well I can be trusted not to be doing an April Fool's joke.

That's because I have no sense of humor.

April Fools!

[esp_ex]

oh wait...

Haha this is pretty much a win

[DigitalisAkujin]

There's no way they can prove that the "defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,'". Nail in the coffin. ;)

Re:Haha this is pretty much a win

[meringuoid]

There's no way they can prove that the "defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,'".

Er... what? Connecting to a torrent tracker and advertising what chunks of the data you have is an offer to distribute those chunks to anybody else on the tracker who asks. And on the balance of probabilities, that offer is genuine - unless she's a ratio cheat.

Same goes for other P2P systems. Listing a file as shared when a search request comes through is an offer to distribute that file, and unless you're one of those virus nodes that offers the same stupid VBS file to every search, the balance of probabilities is that you intend to honour that offer.

Re:Haha this is pretty much a win

[calebt3]

What is bittorrent for, except "further distribution"? And by announcing yourself to the tracker, your system is telling it what pieces of the file you have to distribute.

Re:Haha this is pretty much a win

[sm62704]

As much as I hope so, I'm still doubtful. They have 30 days to pull a rabbit out of their hat, and it looks from the summary ("sustained the sufficiency of the complaint's allegations of 'distribution' and 'downloading,'") that there's a loophole left here big enough to drive a truck through.

I'm hoping I'm wrong.

Re:Haha this is pretty much a win

[jedidiah]

As always, it matters who is doing the connecting and how automated the process is.

The days were you could assume that the end user was aware of and understood everything
that their computer is doing are long gone. Whether you consider that a good or bad thing,
justice should still reflect the new reality.

Re:Haha this is pretty much a win

[Todd Knarr]

That depends. That's the default behavior unless you go and deliberately modify the client's settings. So if I go to a tracker to get say a Linux distribution, treating a BitTorrent client like a fancy FTP program purely for download, I'm going to offer up chunks of what I'm downloading unless I'm technically savvy enough to know this is happening and change the default behavior. If I'm not technically savvy, I probably won't even realize this is happening. And there's the trick of it: if I put something down on a table in my front yard while I go inside and get a drink, not realizing someone will come along and take it, have I made an offer to that someone to distribute what I've left laying there?

Re:Haha this is pretty much a win

[zappepcs]

Not specifically related to your comment, but some p2p clients default to sharing mode without the knowledge of the user. Intent to distribute etc. gets a bit murky on that part for me. I'm not sure how it would apply to this case, but I know it happens so intent might be hard to prove if my thinking is correct.

Re:Haha this is pretty much a win

[geminidomino]

What is bittorrent for, except "further distribution"? And by announcing yourself to the tracker, your system is telling it what pieces of the file you have to distribute. "Your system" being a seperate, non-sentient entity from "the defendant" being the point.

If the system defaults to such behavior and was not explicitly set to it by the user, one might make a case that the intent belonged to the packager of the client.

Re:Haha this is pretty much a win

[Atlantis-Rising]

I find it perhaps ironic that this is what you're saying, when I was arguing very similarly in another thread- unsecured WAPs, where I argued that the software's authorization was not necessarily the person's authorization.

It seems like Slashdot (if it could be described as one homogeneous entity, of course) believes that to be sufficient authorization to immunize one from liability but this to not be sufficient authorization to incur it, despite the scenarios being very similar.

  Any ideas why?

Re:Haha this is pretty much a win

[DigitalisAkujin]

Rtfa!!!!! This is Kazaa, not bittorrent.

Check out
Exhibit B Part 1: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1
Exhibit B Part 2: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1

It's a bunch of screenshots of Kazaa showing a listing of files that was in her shared folder. Essentially the RIAA lawyers argued that by simply having the files in that directory she was inciting others to infringe on their copyrights. This concept is called the "make available" theory. The judge threw it out.

She gave the RIAA thirty days to make a new argument against this lady but to do so they have to show that she communicated with a 3rd party to 'offer to distribute' and that the intent in doing so was for "the purpose of further distribution".

Clearly, they have no way of obtaining this information because it most likely doesn't exist and because this is a civil case they have no way to obtain more evidence short of her giving them an instant messaging, E-mail, or phone transcript / recording with her saying "Hey, go on Kazaa, look up my name and download X, Y, and Z songs". In other words, they're screwed.

Now next time how about reading the god damn article!!!

Re:Haha this is pretty much a win

[geekoid]

And it will.

If it was reasonable for this person to know it distributed "shared" music, then she would be at fault. And should be.

Re:Haha this is pretty much a win

[Artuir]

By extension, couldn't you apply this same idea to the people who go around and steal unsecured (by default) wireless to download kiddy porn? I don't disagree with you but it's just this whole muddy area. It should prove interesting to see how it all pans out.

Re:Haha this is pretty much a win

[Sancho]

Why? Because Slashdot can't be described as one homogeneous entity. I can't believe that you asked the question.

Re:Haha this is pretty much a win

[Atlantis-Rising]

Perhaps it can't. But you have to start somewhere.

Re:Haha this is pretty much a win

[Ucklak]

First of all, all these **AA vs. Common Grandma are all about a P2P that uses complete files like Kazaa, Napster (in the old days), Morpheus, etc...
I've never heard anything about the RIAA or MPAA going after a user using a torrent client. Going after a tracker is a different thing.
Seeding would be analogous to a P2P of the former.
Being a client or leeching is no more distributing content than sending emails to a friend or coworkers using normal language and calling that copyright infringement on normal language in published books.

Re:Haha this is pretty much a win

[Sancho]

Then "with intent to redistribute" is obviously bull, but in the legal profession, you basically try to throw as much stuff at your opponent as possible, and you see what sticks.

Re:Haha this is pretty much a win

[mrbluze]

I know this will spark yet another flame war, but has anyone considered that the RIAA is making things unavailable by jacking prices to unreasonable levels? I mean, the market for music is HUGE, absolutely massive, and the costs of distribution are falling. It probably costs more to fart these days. If music was cheap like water, as it should be then nobody would spend their bandwidth stealing it.

Re:Haha this is pretty much a win

[ehrichweiss]

This is the exact same reasoning that needs to be considered when people start referring to "wifi theft" since a huge portion of it is completely automated for the user.

Re:Haha this is pretty much a win

[Anonymous Coward]

Looks like a lot of it splashes back onto the RIAA lawyers

Re:Haha this is pretty much a win

[HTH NE1]

She gave the RIAA thirty days to make a new argument against this lady but to do so they have to show that she communicated with a 3rd party to 'offer to distribute' and that the intent in doing so was for "the purpose of further distribution". I don't have the ruling in front of me, but I'm not sure that a third party would be necessary (though the P2P search function may qualify). The files in the shared folder could be seen as an offer to distribute (much like a list of dishes on a menu are an offer to serve same) and the P2P network itself upon which it was offered may be enough to convince that the one offering to serve "should have known" that further distribution would have taken place (something that wouldn't be true of a web- or FTP server for counterexamples, and posting to Usenet would be actual distribution).

The only thing remaining is proving that the shared folder "offer to serve" was in fact genuine, i.e. if the files were actually available for download. Access via discovery to the software to determine if files would be served on demand would cinch that.

The judge has given the RIAA a workable argument which appears to this layman to stand up.

Re:Haha this is pretty much a win

[DigitalisAkujin]

If the logic you provided was deemed legitimate in the eyes of the judge then the RIAA would have to provide evidence as such. I don't think, however, that the RIAA has this evidence nor can they get it because I highly doubt the conditions of that time are still in place.

Re:Haha this is pretty much a win

[NewYorkCountryLawyer]

I think the judge would require the plaintiffs to prove that defendant did something affirmatively to "offer" the files.

Re:Haha this is pretty much a win

[HTH NE1]

If they have the images of the defendant's hard drive acquired from discovery--which they surely do--they can prove that the modus operandi of the standard software package both on the defendant's system and typical default installations is to create a chain of offers and on-demand distributions.

A functioning network is of course implied. If the defendant is to suggest they had additional devices similar to Comcast's "bandwidth shaping" technology to prevent actual transfer, they'd better be able to produce said devices to the court and their reasoning for deploying them.

Re:Haha this is pretty much a win

[Zone-MR]

Er... what? Connecting to a torrent tracker and advertising what chunks of the data you have is an offer to distribute those chunks to anybody else on the tracker who asks. And on the balance of probabilities, that offer is genuine - unless she's a ratio cheat.

Exactly, unless she's a ratio cheat. It should be easy to argue in court that an advertisement to a tracker was not an offer one intended to follow up on. No?

Re:Haha this is pretty much a win

[HTH NE1]

I think the judge would require the plaintiffs to prove that defendant did something affirmatively to "offer" the files. I'd need to know more about the P2P software in question to know how reasonable it would be to use it in a manner (ripper or player) unaware of and incompatible with its function of sharing its fruits as opposed to what other applications were present that do not share, or that what was downloaded with it was or was not clearly unauthorized by rights holders. I.e. an argument seeking to transfer the liability to the software maker rather than its operator. I'd also be expecting the defendants to already be suing the software's maker by now for recklessly exposing them to legal liability.

The plaintiffs may also use this theory to go after the software makers for creating a network designed to offer, distribute, re-offer, and redistribute.

Re:Haha this is pretty much a win

[tftp]

if I put something down on a table in my front yard while I go inside and get a drink, not realizing someone will come along and take it, have I made an offer to that someone to distribute what I've left laying there?

IANAL, but first let's change the scenario to remove the usual theft: someone makes a photocopy of a book that you left on that table while getting a drink.

In this case, do you have any obligation to anyone (such as the publisher) to protect the book from copying, while not explicitly facilitating the copying? (there is no copier nearby, and there is no sticker that says "Copy me!")

I don't believe there is any such requirement. The legal piece in a book says "No part of this book may be reproduced..." but does not place any obligations on someone who is not copying. If you copy you may be liable; however if you do not prevent copying there is not much they can do to you, short of tagging you as an co-conspirator. For example, if you borrow a book from a library there is absolutely no way the library can know ahead of time (or at any time, actually) that you intend to scan the book and upload the e-text somewhere.

Re:Haha this is pretty much a win

[ArikTheRed]

Well, sort of. You must have a single overarching legal theory - and then you see what laws/rules/agreements/etc. were broken by the defendant in line with the theory presented. But you can't just "see what sticks" with multiple theories, or all you're going to get is an angry judge, who at best tells you to try again. This is essentially what's going on here: a "do-over".

Re:Haha this is pretty much a win

[monxrtr]

Are the Yellow Pages copyrighted? Can I make free copies of any and all the content included in the Yellow Pages and distribute it on my own for commercial profit or for non-commercial non-profit? Does the company which produces the Yellow Pages dropping off copies outside of residences (they don't tend to fit into mailboxes), public sidewalks, semi-public apartment spaces constitute "making available" consent? If no, then neither does uploading any copyrighted song or any copyrighted content whatsoever.

How about copyrighted and patented car parts? Does selling cars for the purpose of public display while moving through public streets constitute "making available" consent from the car manufacturers? If no, then neither does uploading any copyrighted song or any copyrighted content whatsoever.

If "making publicly available" constitutes *consent*, then all parties and legal entities must be held to the same standard under Equal Protection of the Law. And that means any and all products which are produced for public consumption have by default received "making available" consent to violate any claimed copyrights or patents.

The RIAA itself is guilty of "making available". Every company with copyrighted or patented stuff for sale is guilty of "making available". So they are all minimally liable for entrapment, or maximally liable for total forfeiture of the government monopoly grants of copyright and patent. Otherwise, nobody who makes anything whatsoever "available" has given *consent* to the actions of a second party, who may act "illegally" by violating copyrights or patents, unless explicitly otherwise noted and established by the case law precedents regarding consent for second party actions.

Re:Haha this is pretty much a win

[mrbluze]

That's stupid. And you're stupid for suggesting it. Would you like a little bit more sand on your head?

Re:Haha this is pretty much a win

[invader_vim]

If you're not technically savvy, what the hell are you doing downloading a Linux distribution?

Re:Haha this is pretty much a win

[Todd Knarr]

Except that that happening by default would undermine the argument. If the software's always discussed in terms of downloading, there's no obvious mention of it uploading and the upload function is enabled by default and doesn't require user intervention to turn it on, then why should a naive, non-technically-savvy user expect that his download software is actually uploading behind his back?

Re:Haha this is pretty much a win

[Creepy Crawler]

Just a personal question about your specific cases:

Are your case judgments decided by a jury or a sole judge? In your experience, which do you think is better?

Re:Haha this is pretty much a win

[NewYorkCountryLawyer]

Just a personal question about your specific cases: Are your case judgments decided by a jury or a sole judge? In your experience, which do you think is better? We haven't gotten anywhere near a trial yet. When and if we do, it would be a jury trial.

Re:Haha this is pretty much a win

[opus]

The similarity is the belief that these ambiguous situations should not be grounds for legal prosecution. The ambiguity in both cases is the intent of the parties involved, which although they may not constitute a legal defense, makes the laws themselves ridiculous in some cases.

Another thing they have in common is that analogies are usually inadequate to describe either dilemma.

I don't subscribe to both causes, but I understand the public sentiment.

Re:Haha this is pretty much a win

[xbytor]

> I've never heard anything about the RIAA or MPAA going after a user using a torrent client.

However, the MPAA does monitor torrents and will send a nasty-gram to a torrent client's ISP (Comcast, in my case) who will in turn let you know about the nasty-gram with the usual implied threats.

Re:Haha this is pretty much a win

[Atlantis-Rising]

I must say, I am somewhat bemused at your comment, however I will pick out two specific items:

Firstly, civil entities cannot entrap.

Secondly, I think you are misinterpreting 'making available' here, and your examples are in no small part responsible for dramatically confusing the issue. Moreover, you then go on to misinterpret the 'equal protection' doctrine fairly drastically.

Really, that's actually three issues, I suppose.

Re:Haha this is pretty much a win

[Anonymous Coward]

of course it can't. starting at a known faulty assumption, you might as well not bother starting at all.

Re:Haha this is pretty much a win

[monxrtr]

Firstly, civil entities cannot entrap. A corporation is not a civil entity. Neither is an individual acting in a "private detective" capacity a civil entity. See Hewlitt Packard and the Carly Fiorina investigations of HP Executives. In so far as the RIAA is hiring a detective agency, let alone an unlicensed in some States agency, they certainly can entrap. And any unlicensed individual acting in "police capacity" can certainly entrap someone. You can't set up a hidden camera on a street corner and then try to bribe or coerce people to buy drugs or copyright infringed cds as a personal vendetta sting operation. You can do investigative reporting, ala Dateline sexual predators, but you are certainly subject to legal standards and legal risk (Dateline has plenty of legal and police advisement precisely to avoid being guilty of entrapment). If civil entities couldn't entrap there would never be any possible feasible example of any entrapment whatsoever, as all entrapment involves *individuals* acting in a certain capacity, such as a "police capacity".

Secondly, I think you are misinterpreting 'making available' here No, my interpretation is multiply *dependent* upon the RIAA interpretation, especially regarding to whether any form of consent or permission is given to second parties. I'll just argue the same standard be applied universally, and the RIAA's interpretation logically applied would argue that all businesses give consent (or be *assigned* responsibility) to illegal activity by second parties merely by "making available" any product. This would, of course, instantly destroy any and all legal recourse to patent and copyright infringement, as the first government protected party "made available" according to the RIAA standard and interpretation.

Moreover, you then go on to misinterpret the 'equal protection' doctrine fairly drastically. Excellent. So that means I'm in elite legal company, from the Supreme Court throughout the most brilliant legal scholars in history. And of course Equal Protection under the Law could *never* mean the Law is applied the same to all persons and entities. /sarcasm

Re:Haha this is pretty much a win

[gnasher719]

I find it perhaps ironic that this is what you're saying, when I was arguing very similarly in another thread- unsecured WAPs, where I argued that the software's authorization was not necessarily the person's authorization. Some people can think logically; they will _either_ conclude that a machine can give authorization, _or_ they will conclude that only a person can do so, and then they will stick to it. If the outcome is sometimes desirable and sometimes undesirable, that is just tough. Others change their thinking in order to support the conclusion that they want to arrive at.

Re:Haha this is pretty much a win

[gnasher719]

If you're not technically savvy, what the hell are you doing downloading a Linux distribution? Are you saying Linux is only suitable for people who are "technically savvy"?

Re:Haha this is pretty much a win

[Anonymous Coward]

User id's are in the million range now, with around 1000 posts as maximum on a thread one could believe that there might be people around with different opinions, submitting comments on the threads the are interested in, and thus the whole ends up pointing in either directions.

Re:Haha this is pretty much a win

[jedidiah]

No it won't.

The fact that the RIAA can act as a legal bully will tend to
make really bad precedents likely. The party with the bigger
pot of gold tends to get to buy their justice. This is
especially true when there is a gross imbalance of resources
(as is the case here).

Lawyers are expensive and the music industry has money to burn.

You might want to audit your systems and network now...

Re:Haha this is pretty much a win

[jp10558]

Personally I think it's because many /.ers think you can't fairly hold someone responsible for something they don't know is going on. It seems unfair for there to be strict liability without some licensing requirement.

Granted this implies an awful lot, but in either case there's:
1) Lack of physical harm
2) debate on how much financial harm is actually caused
3) Little to no effort made to inform users of the consequences of various configurations
4) Really complicated configurations that professionals often get wrong if in a rush or just not on their game

Re:Haha this is pretty much a win

[Atlantis-Rising]

And that's sort of my point- if we expect that here, someone is not responsible for their computer doing something because they didn't know what was going on, how can you then turn around and say that wireless access you haven't been explicitly granted access to should be legally acceptable to use?

Re:Haha this is pretty much a win

[jp10558]

Well, again it depends, but if your laptop software just connects you, neither party necessarily was aware they were doing anything "wrong" either technically or legally. I've seen users who think they are connected to their router but actually connected to a neighbors because they didn't understand either what the computer did automatically, or what the prompts meant beyond that clicking connect got them to the internet.

Now, for you or I, we know it's wrong to connect to wireless without being invited. But we also know how to pick our router out of many that might be accessable from our house. We also know that we should't just connect to the internet wherever we are...

Re:Haha this is pretty much a win

[MidnightBrewer]

There's a reason we invented the term, "leech". There are enough people out there who intend to download whatever they can while giving as little as possible back to justify the argument that a significant number of people have no intention of sharing at all.

Also, assuming that an "offer to distribute" requires a conscious decision, there are plenty of people who have no idea how P2P or Bittorrent work and therefore don't understand that they're giving anything to anybody.

Re:Haha this is pretty much a win

[Shagg]

Most P2P software will automatically share files in your download directory as well as sharing the chunks of files that are currently being downloaded. The average user is often unaware that it is doing so, and in most cases can not turn off this functionality even if they wanted to. They can choose whether or not to include additional directories for sharing, but the two examples above will be shared whether or not the user gives their consent.

Is the P2P software legally able to make an "offer to distribute" on behalf of the user, to the extent that the user is liable even if they never gave their consent or were even aware that it was doing so?

Re:Haha this is pretty much a win

[Anonymous Coward]

Innocent until proven guilty concept. I can't as a person who understands the notion of innocent until proven guilty assume that YOU are guilty just because YOUR computer was used to do something illegal, because their exists a real possibility that someone else could have used it. If software authorizes itself to do something like upload content, I think it's very easy to not assign blame to the individual (because as I've alluded to above, even if they authorized the software to do that, you still have the issue of assigning guilt without knowing if they are even the ones who put the software on). The fundamental question isn't whether someone authorized something or not on a computer, but can you prove who authorized it. If I was a juror, I would never convict anyone of any computer crime without overwhelming videographic/biometric/and IT evidence, and I mean I'd need all three, because it's too easy to fake things now. I live with a dude, that I could do anything on his computer that I want, cause he doesn't know what's going on with it. Would he not have a good argument that just because software was authorized on his computer, he might not have known what it was/what it was doing. I think the whole immunize from liability vs. incurring it is really two sides of the same coin, isn't it?

Chalk up another loss, RIAA

[TripMaster Monkey]

It looks like the RIAA's "making available" theory, with this latest decision against, has been pretty much shot down. Any court who wants to support this argument will now have to justify going against significant precedent.

Re:Chalk up another loss, RIAA

[Atlantis-Rising]

You do realize precedent is only downward (and to some extent sideways).

Precedent set in one circuit does not hold for another circuit and only the Supreme Court can set precedent for all courts, and trial courts can't set precedent at all.

Re:Chalk up another loss, RIAA

[Anonymous Coward]

That's all true, but when there isn't precedent by from that appeals court, they are frequently very happy to borrow reasoning from the sister circuits. This goes a long way to set the terms for any debates and legal battles that follow.

Re:Chalk up another loss, RIAA

[enjo13]

That's just.. wrong.

The most common mistake around precedent is confusing it with law. Just because something is a precedent, it does not mean that it is hard and fast law. Its an interpretation of law, at a specific time and place. As such, it carries no official weight.

Virtually any level of court can set a legal precedent that can (and will) be referenced by an arguing attorney. Certainly some precedents carry more weight than others (supreme court vs. a trial court), but lawyers will often cite trial law precedents in their arguments. The idea being that there is an established line of reasoning in the precedent that should be carried forward to whatever they are arguing. Thus, the only difference is that a supreme court precedent carries with it tremendous legal weight, particularly since that court has the right to overturn or amend decisions of the lower courts. Its hard to argue against a supreme court precedent when they will just turn around and shove it right back in your face after all.

However, at the end of the day, almost any court preceding can be referenced as a precedent for further argument.

Re:Chalk up another loss, RIAA

[Anonymous Coward]

The parent poster missed law school the day they talked about how precedent works.

In the US precedent is "binding precedent" only when it comes from a higher court in the appeals process that the lower court is subject to. These are decisions that a lower court has no choice but to follow.

Binding precedent, however, is not the only type of precedent in the US. "Persuasive precedent", while not mandatory for a court to follow, is still precedent that other courts can and often will look to. In a case of first impression (which this arguably is) a judge will often be *persuaded* to look to and adopt what is presumably a well reasoned decision handed down by another, non-binding judge.

So while no other court in the US may be "bound" by this decision, it is most certainly precedent and will be looked to by any other court who has to decide a similar case.

Re:Chalk up another loss, RIAA

[Atlantis-Rising]

No, the problem is not people confusing precedent with law; the problem is people confusing precedent with stare decisis. Stare Decisis is the binding legal principle that lower courts must obey a higher court on holding. Precedent just means that it's happened before and, as a result, can be referenced.

The difference between the two is simple. If the Supreme Court says something and a trial court contradicts that finding, the trial court judgment can be thrown out on that basis. Trial courts can contradict each other all the time. The same happens with appeals courts in a specific circuit; if a trial court contradicts an appeals court of the same circuit, the appeals court as a matter of principle will just throw out the trial court finding (most of the time; there are of course exceptions that prove every rule.)

However, there is something to what you say that other, non-binding precedents can and are referenced; they often are. In fact, it's not really rare that references will be made to courts in other countries to support a specific line of reasoning, especially in matters of international law and so on.

But do not make the mistake of arguing that there is no substantive difference between stare decisis binding precedent and other binding precedent. Circuit courts disagree with each other on basic points of law all the time, regardless of non-binding precedent.

In this case, this is a trial court judgment in a specific circuit. It may be referenced by defendants or plaintiffs in another circuit. But there is no reason to assume it will be accepted by those circuits, or even in other courts in the same circuit at this point. In other words, if it is a victory, it is a hollow one in that respect.

Re:Chalk up another loss, RIAA

[Atlantis-Rising]

I think it was quite obvious from the "down and somewhat sideways" part onward that I was referring only to binding precedent. International legal cases can be used as persuasive precedent, and I've seen people use law textbooks, too. That's not really relevant, though.

Re:Chalk up another loss, RIAA

[RWarrior(fobw)]

> You do realize precedent is only downward (and to some extent sideways).
> Precedent set in one circuit does not hold for another circuit and only
> the Supreme Court can set precedent for all courts, and trial courts
> can't set precedent at all.

Yes and no.

The parent refers to the concept of stare decisis . However, courts also recognize the power of pursuasive precedent. That is, a court may recognize that another court has ruled on an issue in a certain way, and the fact (and rationale) of that ruling gives weight to a litigant's argument. While in this situation a court is not required to follow such a precedent, such precedents are relevant and are considered by judges when weighing case law in a given matter. It is always appropriate for a litigant to cite supporting precedents of horizontal or lower courts when no binding precedent from a higher court exists. There is also a corresponding responsibility to cite persuasive precedent that opposes your own position, but then you're allowed to argue why that ruling was incorrect or somehow doesn't apply to the facts of your case.

Courts generally try to resolve questions of law surrounding identical facts in the same way, to provide continuity in the legal system, which is the whole point of stare decisis. However, it's certainly common for horizontal (that is, same-level) courts to enter differing rulings on a given subject, and when this happens the courts (especially the one issuing the later ruling) will explain why it reached a different conclusion. When it happens at the Circuit Court of Appeals level in the United States, this is called a circuit split. A circuit split is one factor the Supreme Court may weigh when deciding whether or not to hear a given case; if a case is the subject of a split, the Supreme Court may step in and issue a ruling to resolve the circuit split and provide continuity throughout the legal system.

Let's hope.

[Anonymous Coward]

We can only hope that the RIAA captures all the dastardly pirates.

In a word

[GameboyRMH]

<voice class="male UT announcer">
REEEJECTED!
</voice>

Re:In a word

[SanityInAnarchy]

DENIED!
</voice>

Re:In a word

[Creepy Crawler]

Humiliation!
</voice>

Re:In a word

[kindbud]

Chocolate Rain! The RIAA got bitchslapped today! Chocolate Rain!
<voice>

Re:In a word

[MobileTatsu-NJG]

Fatality!

Re:In a word

[Creepy Crawler]

No Fatality.
</you_failed_it>

Re:In a word

[DKlineburg]

PWND

Can someone kick the MAFIAA in the nuts?

[Anonymous Coward]

It is beyond time this cartel/criminal syndicate be taken to task. Illegal investigations, non-existent defendants, children removed from their schools at test time, the list goes on and on of the crap they pull.

Re:Can someone kick the MAFIAA in the nuts?

[Anonymous Coward]

I'll roshambo you for the privilege/firsties.

Re:Can someone kick the MAFIAA in the nuts?

[Anonymous Coward]

#1) It's spelled "Rochambeau".

#2) It has nothing to do with kicking in the testicles, contrary to the wisdom of Eric Cartman. It's just another (French) name for "Paper/Rock/Scissors".

Re:Can someone kick the MAFIAA in the nuts?

[Anonymous Coward]

Etymology aside, both spellings are equally valid. Unless, of course, you also spell "fetus" "foetus".

Makes sense...

[Anonymous Coward]

I make plenty of music available over HTTP.

OMG PONIES!

[Deathdonut]

Where be they?

RIAA's argument

[Todd Knarr]

The RIAA's undoubtably going to argue that the defendant's P2P software made the file available and that that constitutes the offer of distribution. The trick will be to neuter this argument, and that's going to have to turn on intent. If, for example, I have a table of books in my front yard with a sign saying "Take some", that's clearly an offer to distribute. But if I put a book down on the table on my front porch while I go inside to get something to drink, and while I'm gone someone comes along and takes the book, the book's arguably been distributed but I clearly haven't made any offer to distribute, the book was merely stolen. The argument's going to have to be that the defendant didn't know files in the shared folder would be offered for sharing, that they didn't have any reason to suspect that (non-technical people probably wouldn't, if all they did was use the software to download and never got into the technicalities (I do the same thing all the time, I use BitTorrent to download Linux ISO images with no intention of sharing them out again)), and that if they had known they would've done something to block the sharing (since they had no intention of doing it in the first place). You won't ever be able to win the argument that the files can always unconditionally be available without incurring any liability under any circumstances, but you can win the argument that merely unwittingly and unintentionally putting something down where someone else can take it doesn't incur liability (at least not until you've been told it's happening and have a chance to do something about it).

Re:RIAA's argument

[QuantumRiff]

I'm torn on this. I would like to think that the software could not "decide" to make something available for you, but on the other hand, Those silly "trespassing on wireless" stories are usually counteracted by the someone stating that their laptop asking the router for permission, and the router granting that permission is okay. Is it possible to be in favor of one, without being in favor of the other?

Re:RIAA's argument

[Todd Knarr]

All that's needed is to acknowledge a distinction between what should be and what is. People should know what their equipment's doing, and set it to only do what they want it doing. So in a perfect world, people would secure their wireless routers unless they intended anyone to access them, and people would configure their file-sharing software to not share any files unless they intended to share those files.

But we don't live in a perfect world. Users take the default settings on their shiny-new wireless router because they don't know there's anything to change and, after all, it works just fine so they've no reason to think there's anything more needed. And other users take the default behavior of their wireless card and drivers, and when those drivers connect somewhere and don't give any indication there's any problem the user has no reason to think he's not allowed to connect there. After all, in his view, if whatever he connected to wasn't intended to be open to the public surely it'd've prompted for login information or something, no? The confluence of two naive users results in something happening that neither intended to happen, that neither realized was going to happen. Neither's required to know enough to know better, and until they are required to know enough they can't really be held responsible for not knowing.

Were it me, I'd simply make the manufacturers liable for the default settings on their devices, since they certainly know enough to know what the implications of any settings are. They can set them however they want, but they're on the hook for the consequences. My prediction is that instantly all new wireless gear would default to "no access without a key" and require the user to select a key before the device would work, and you've have to dig around to find the setting to allow access without authentication. End of problem.

Re:RIAA's argument

[CodeBuster]

You're argument appears to be sound, but generally speaking, don't courts take a rather dim view of "it happened because I was ignorant" and particularly so when installing P2P software, presumably, involved some positive action on the part of the user with consent to at least install the program in the first place? If you chose to use a product and through ignorance, not reading the warnings in the manual, or negligence harm others then shouldn't the bar for a successful "it is not my fault because..." argument be pretty high? Just playing devil's advocate here.

Re:RIAA's argument

[nine-times]

The RIAA's undoubtably going to argue that the defendant's P2P software made the file available and that that constitutes the offer of distribution.

Well I think (and IANAL and I only skimmed the decision) that the ruling is mostly saying that the RIAA has to allege a specific act or event took place. I *don't* think it's saying that unlicensed distribution is acceptable as long as the distributor can claim distribution occurred unintentionally.

So I'll try to adapt your example, even though it doesn't work very well for the point I'm trying to make. *Imagine* I need a license to distribute books, even if I'm giving legal copies away for free:

• If I set up a table with a sign that says "free books", and I give books away, then according to this decision, they can still come after me.
• If I set up a table with a sign that says "free books" but nobody can prove anyone took a book, then according to this decision, they can probably come after me.
• If I set up a table with a bunch of books on it, with no sign, and they can prove someone took some books, then according to this decision, they can still come after me.
• If I have a table with a bunch of books, with no "free books" sign, and nobody can prove anyone took a book, then according to this decision, they can't come after me.

Why can't they come after me in the last instance? Because no one is offering any evidence that anything happened. All they can prove is that I had books, and those books were available, so distribution was possible. But there's no evidence that I distributed them or even intended to distribute them.

The RIAA only offered evidence that the copyrighted materials were available, which means that copyright infringement could have taken place, hypothetically. But they didn't offer any evidence that any kind of copyright infringement had taken place.

The RIAA lawyers apparently tried to argue that someone most likely had downloaded the content, but that was rejected because they offered no evidence. So then they tried to argue that setting up a situation where copyright infringement could theoretically have taken place was enough. They judge said, "Sorry guys, you have to actually prove that copyright infringement occurred."

So it sounds to me like the RIAA can still come after you if they can offer proof of an actual download, or even if they can successfully argue that making something available on a P2P network constitutes an "offer of distribution". But again, IANAL, so I apologize if I got it wrong. Feel free to correct me.

Re:RIAA's argument

[Todd Knarr]

Not neccesarily. The key phrase is "knew or reasonably should have known". If there's a warning about something in the manual, a reasonable user's expected to have read the manual and so reasonably should have known about the danger. But when there's no apparent mention of something, things become more subjective. The question is usually "What would a reasonable ordinary person know about this?". Now, as a techie I'll know about the upload function of P2P software. But someone who's not an IT professional, doesn't deal with this software every day, what would give them any reason to believe the software would upload what was downloaded? That's the question the court would (or should) ask. If you go through everything the user would've had available and nothing anywhere would hint at the upload functionality, and they don't have contacts in circles where that sort of thing would be regularly discussed, then how would they reasonably be expected to find out about it?

And most P2P software doesn't necessarily require positive action by the user to share downloaded files again. Much of it defaults to sharing unless and until the user turns sharing off. And if the user doesn't know there is a sharing function, why should they know to turn it off?

It's kind of like trespassing. If there's a solid fence with lots of "No trespassing" signs on it, you'll have an easy time nailing anyone you find on the wrong side of the fence. But if there's no fence, no signs, no indication whatsoever of a boundary, and this is the first time that person's been caught on the property, you'll have a hard time getting them convicted of trespassing. And if for the last 50 years everybody's been going across that property with no problems and no objections from the owner, the new owner's going to find it all but impossible to get trespassing charges upheld until after he puts up a fence and posts the property.

Re:RIAA's argument

[Todd Knarr]

Actually in both the third and fourth cases they'll have a hard time coming after you. If the table's out next to the sidewalk they may have an easier time, but if the table's up on your porch and you keep books on it to read then even if people come onto your property and take the books the RIAA would have to show that you intended people to take those books, as opposed to intending to have them there for your own use and outsiders abused that while you were gone and didn't know about it happening. That's what the judge's words about "offer" are aimed at. In fact, his ruling eliminates the need for the RIAA to prove actual downloading, it hinges the entire ability to sue on showing either intent or willful recklessness. The RIAA now has to prove that either the defendants put the files there with the intent that others download them or that, at the very least, the defendants knew or reasonably should have known those files would be available to others and failed to take any steps to prevent that. The first is a real tough nut absent a confession from the defendants, and the second, well, it's really easy to argue that the defendants never were exposed to any hint that this software even could make the files available and had no reason to believe it'd allow others to download from them and it'll be real hard for the RIAA to prove these people are tech-savvy enough that they had to have known all about how P2P works.

Re:RIAA's argument

[herbierobinson]

You are forgetting that all the file sharing software comes with EULAs that one has to agree to when installing it. At a minimum, the EULAs would have to inform the user that files will be shared, because if the EULAs don't mention that, the software suppliers could be prosecuted for violating the Computer Fraud and Abuse act and that can involve real jail time.

Re:RIAA's argument

[nine-times]

Actually in both the third and fourth cases they'll have a hard time coming after you.

Well I can't speak about the reality of that, but I'm just talking about the decision this judge made. He indicates in the decision that the RIAA might have a case if they could prove that distribution occurred, or if they could prove that the defendants had offered the content for distribution.

The judge does not say, in my reading of it, that the defendants would definitely be guilty if distribution had occurred or if an offer of distribution had been made, but seemed more to be saying that, since the plaintiffs offered no evidence that either had occurred, there wasn't even a case to be made.

Re:RIAA's argument

[gnasher719]

The RIAA's undoubtably going to argue that the defendant's P2P software made the file available and that that constitutes the offer of distribution. That is exactly the argument that has been used by bandwidth thieves to justify their misdeeds ("the router made it available! That was an offer of bandwidth!") and has failed miserably. There is legal precedence; people have been convicted because that argument failed. It will fail in exactly the same way for the RIAA.

Re:RIAA's argument

[gnasher719]

So I'll try to adapt your example, even though it doesn't work very well for the point I'm trying to make. *Imagine* I need a license to distribute books, even if I'm giving legal copies away for free:

If I set up a table with a sign that says "free books", and I give books away, then according to this decision, they can still come after me.
If I set up a table with a sign that says "free books" but nobody can prove anyone took a book, then according to this decision, they can probably come after me.
If I set up a table with a bunch of books on it, with no sign, and they can prove someone took some books, then according to this decision, they can still come after me.
If I have a table with a bunch of books, with no "free books" sign, and nobody can prove anyone took a book, then according to this decision, they can't come after me.
I had a look at the actual decision, which was linked on theinquirer, and what you say seems to be too pessimistic.

The court decision was about a motion to dismiss. The RIAA has claimed that songs were copied, and that they were "made available". In a motion to dismiss, the judge will assume that everything the plaintiff says is true, so it is assumed at this point that songs were actually copied. The defendant argued that the RIAA hadn't specifically said which songs were copied, but the RIAA said "the files in your shared folder were copied", and that is enough at this stage. However, the "making available" argument didn't fly. "Making available" apparently doesn't infringe on the rights of the copyright holder. Instead, the RIAA has to claim (and later, they have to prove) that "distribution" took place. And "distribution" in the sense of copyright law is offering copies to others for (1) further distribution, (2) public performance or (3) something else I forgot.

So lets say Microsoft offers 100 copies of Microsoft Office to a software dealer who then is supposed to sell them on. That is "distribution" in the sense of the copyright law, even if the offer is not accepted. If Microsoft offers 100 copies to a company to use for their own work, that is not distribution. Basically the RIAA wanted to catch the defendant with a very liberal term of the word "distribution", and the judge said: If you want to claim distribution, then claim what the law says, not what you think it says.

So if you make an offer to a bookstore that they can copy your books to which you don't own the copyrights, and then sell the copies, that is "distribution" even if it is only an offer. If you make an offer to an actor, allowing him to make a copy of the book and then read that copy to an audience in public, that is distribution (public performance involved). If you offer to let me make a copy for my own use, that is not distribution.

I think it will be very hard to claim and prove distribution.

Re:RIAA's argument

[nine-times]

In a motion to dismiss, the judge will assume that everything the plaintiff says is true, so it is assumed at this point that songs were actually copied.

Are you sure? I think not having evidence is sufficient to dismiss a case. He notes in the decision that the RIAA offered no evidence of distribution, right?

Possibe Win? Maybe, Probable Win?

[mpapet]

This is a civil matter. There is no overwhelming amount of evidence required.

The RIAA can still paint the defendants as Anarchist wife-beating child-hating petty thieves and win the case.

Re:Possibe Win? Maybe, Probable Win?

[Kierthos]

Exactly. In a civil case, you're found liable or not liable by a preponderance of evidence. Basically, if, based on the evidence and testimony, the jury believes that it's more likely than not that you committed the act, you're liable. If they believe that it's more likely than not that you didn't commit the act, you're not liable.

Criminal cases use a stricter standard... beyond a reasonable doubt.

Can anyone explain

[Shagg]

the difference between "making available" and "offer to distribute"? They basically sound like the same thing to me.

Re:Can anyone explain

[jonnythan]

Think of it like this:

I place a pair of gloves on a park bench and walk away.

versus:

I walk up to someone sitting on a park bench and offer them a pair of gloves.

Re:Can anyone explain

[wattrlz]

One is implied and the other is explicit. It's the difference between notoriously possessing apples and running around screaming, " I have apples. take some!"

Re:Can anyone explain

[shellster_dude]

I think it was made pretty clear a bit up.
Making Available:
I see your car in your drive way on a walk and decide I like it. I look inside, I see the keys and the door is unlocked. I steal it. You made the car available unintentionally.

Offer to Distribute:
I am looking for a car like yours. Fortunately I see your advertisement in the newspaper, and follow the big signs to your house. You meet me in the lawn and hand me the keys.

Re:Can anyone explain

[mea37]

...?

Notoriously possessing apples?

Re:Can anyone explain

[stuporglue]

Here, cars work better

Think of it like this:

I place a pair of cars on a park bench and walk away.

versus:

I walk up to someone sitting on a park bench and offer them a pair of cars.

Re:Can anyone explain

[hypergreatthing]

Easy:
Lets take for example placing a basket of candies near your front door (outside your house). You have to imagine in this case that the candies can be duplicated without any cost to you, and have no value to you, but may be valuable to others.

In one scenario you are broadcasting, come take one. This would be defined as offering to distribute.

The other, your simply putting a basket of candies by your house with no sign or advertisement what or who their for. This would be defined as making available.

In both cases at the end of the day you may have less candies than you started with, but in one you were expecting some to be taken and in the other your sorta guessing. It's the intent which matters.

Usually you can't equate value in a digital sense since giving away mp3s or programs is at 0 cost to you and 0 cost to the other person who recieves it. However it has an extreme ammount of value to the copyright holder.

I find these lawsuits rediculous. If a person is found distributing without prior consent, tell them to stop. If they don't or they're making money out of it, then take them to court based on reasonable damages.

Right now it's only extortion with hugely inflated values. No one can stand and fight without losing their house or livelyhood. The RIAA doesn't care about intent or actual damages, they just want to scare people into using an outdated buisness model.

Re:Can anyone explain

[Digestromath]

This is no place for a discussion using clear logical points. This is about legal proceedings involving copyright, therefore we must obfuscate the facts.

Making Available:

I see your car in your drive way, and want to sample it with full intention of buying one later. So I walk up, and see that your computer has the left the keys in the ignition and the door unlocked, without your direct but none the less tacit approval. I therefore proceed to make a direct copy of your car. You've unintentionally allowed me to make a copy of your car.

Offer to distribute:

I am looking for a car like yours. Fortunately I see that that you have advertised your car on a website based in foriegn country. The process is automated. Your computer decides whether or not I qualify to have a copy of your car based on whether or not our hand shake is up to its standards. I therefore proceed to make a direct copy of your car. You've intentionally allowed me to make a copy of your car.

The real question is, does this hurt anyone? Are the highway owners allowed to throttle traffic because of the increase in copied cars? What about the rising cost of digital fuel? What happens if we do have a car question on slashdot, what sort of analogy do we make for it?

Re:Can anyone explain

[Riachu_11]

As opposed to keeping them hidden, I believe the parent means.

So, as for bittorrent . . .

[Anonymous Coward]

Bittorrent is more or less the one P2P protocol where every file you download is also uploaded for more or less the explicit purpose of further redistribution. If I hop onto usenet or an ftp server, when I get things, they are for consumption. Ostensibly, when things are posted to those, they are intended for consumption by end users, not for further redistribution.

Re:RIAA's argument- WOA WOA WOA

[Umuri]

WOA! Slow down there. Are you sure you want to make such an obviously inflamatory statement here on slashdot?

Here, let me fix it for you.

"takes the book, the book's arguably been distributed but I clearly haven't made any offer to distribute, the book was merely stolen^W^W^W^W^W^Wcopyright infringed"

There, much better.

Re:Twofo Donkey Shitcocks

[cthulu_mt]

Unfortunately this is problem an April Fool's Day joke, we could only be so lucky.

Offer to distribute?

[Anonymous Coward]

In the case of torrents, I would argue that the only person that actually fits that criteria is the torrent maker, as they clearly have made an offer (torrent), with an intent for further distribution (the nature of torrents). Anybody arguing that they don't understand the basic nature of Bittorrent is going to be in for a rough time.

I think what will trip this up in the case of standard P2P software is the intent for further distribution. Wouldn't that mean that they would have to get the entire file from just your PC to qualify as further distribution? I don't think that anybody can argue that 1/20 of an MP3 constitutes a usable set of data. There is too much intent to prove of the person behind the PC to manage with just usage logs and IP addresses.

As always, the devil is in the details, and legal battles are full of them. :P

wow... yawn

[ohzero]

I know this is about my rights, authoritarian regimes, digital music and all sorts of interesting stuff, but at the end of the day... I am convinced that the RIAA's position is that if they bore the shit out of the majority of the population with excessively long legal arguments that try to define and redefine the distribution of music, that people will probably stop caring. I know I have.

Thankfully there are people watching these guys so that the rest of us don't have to read the parts when groups like this try to redfine terms like "distribution." Virtual toast to you. I need a nap.

Sharing

[Badbone]

Defendant used a file sharing program. Smoking gun.

Re:Sharing

[RemyBR]

Defendant used a file sharing program. Smoking gun.

... not necessarily to share the files owned(?) by the plaintiff.

Re:Sharing

[nbucking]

So I guess if you have email or ftp you are a criminal? I like the analogy of placing a book in your yard. If you are using P2P, you are just placing it there. If you are using ftp it is like putting a sign out saying free book. If you are using a secure means such as encrypted email it is like throwing the book over a fence at your neighbor. So by your opinion we should just get rid of the internet all together? Case in point, no smoking gun.

What Files?

[monxrtr]

A file title is not evidence of actual copyrighted infringement. I haven't heard a copyrighted single song the RIAA downloaded from a defendant played as evidence in a court of law. If I write BritneySpearsToxic.mp3 in this post, that is *not* evidence of copyright infringement no matter how many people link to this post from other sites, no matter how many screenshots the RIAA makes of files with any titles whatsoever.

The RIAA has no real evidence of copyright infringement to submit into any civil court. If I were a defense attorney I would make that extremely clear to the Judge and Jury. Explicitly, I would ask the RIAA "expert witness":

"Where is the actual song with content you copied from the defendant?"
"You said you didn't download any actual song with from the defendant?"
"How do you know the actual contents were not personal commentary about a song rather than copyright infringement distribution?"
"You don't *know* what the actual contents of the files you claim are copyright infringements actually are?"

"Motion to dismiss, with prejudice, attorneys fees, malicious prosecution, fraud, extortion, unlicensed spying, stalking, harassment."

Then, once the RIAA is forced to have to download/upload files in P2P streams, in order to substantiate evidence, they will be guaranteed to be on the hook for $150,000 per "accidental" infringement. And we can subpoena all records and files the RIAA and Media Sentry have downloaded and forward to the appropriate parties and authorities, not to mention grow the list of criminal RICO racketeering charges against the RIAA.

The RIAA "evidence" of file titles constituting copyright infringement is as absurd as writing dollar amounts on an internet thread constitutes counterfeiting.

$100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 --- This is not "evidence" of counterfeiting, just as BritneySpearsToxic.mp3 is not evidence of copyright infringement.

Re:What Files?

[Mitreya]

A file title is not evidence of actual copyrighted infringement. I haven't heard a copyrighted single song the RIAA downloaded from a defendant played as evidence in a court of law. If I write BritneySpearsToxic.mp3 in this post, that is *not* evidence of copyright infringement no matter how many people link to this post from other sites, no matter how many screenshots the RIAA makes of files with any titles whatsoever.

It is my impression that these are all civil cases, meaning that RIAA does not have to prove their case beyond a shadow of a doubt. Therefore unless you have a convincing argument as to why you had dozens of files that matched song titles/sizes you might not have the 51% argument required to win civil cases.

If it were a murder trial, this would be plenty. But in civil cases, if jury thinks you're just making far-fetched excuses I think you're going to lose. (Disclamer: IANAL, this is layman understanding of the situation).

Re:What Files?

[DirkGently]

Modern filesharing tools don't match only based on the filename. They also match based on checksums. This is why sometimes when you go searching for pr0n on eDonkey and often get distasteful things like that Spears mp3 even though your search specified erotic results only.

They don't have to have a copy downloaded directly from the defendant. I would have to think another copy of the same checksum'd (and verified) file from one of their other many defendants would probably pass muster in court. Then you'd just need to show the logs.

(and yes, I know that my example shows how checksums can miss in a big way, but such a thing is much less likely when you're using the checksum in addition to the filename as proof)

Re:What Files?

[monxrtr]

I don't believe hearsay is admissible as *evidence*. That's why you admit real evidence, even in a Civil case. There is no way to distinguish whether BritneySpearsToxic.mp3 is actually a song, or maybe some dude on the internetz commenting on the song, or anything whatsoever. The Judge is acting criminally, and this is grounds for appeal, if you object to screenshots not being evidence of copyright infringement.

This is extremely important, not just because it will basically indemnify (or convict policing attempts like those of the RIAA/Media Sentry) all P2P exchange, but because people aren't presumed guilty, even in a Civil trial. How can you defend against a screenshot with file titles that could contain anything in the files, that could be wholly manufactured? This is nothing that utter and complete CENSORSHIP and First Amendment violations against even fair use, against even wholly non-infringing commentary.

Can real copyright infringers who are selling physical cds on streetcorners be convicted criminally, or even found liable in a civil court, by taking some pictures of some cds confiscated in a raid, and saying that's the evidence of copyright infringement? Hell no! There'd damn well better be proof of copyright infringement on those cds. Similarly, pictures of file titles are not evidence of copyright infringement. It's total and completely utter hearsay, AT BEST!

Re:What Files?

[Anonymous Cowpat]

I'm studying data compression (when I say 'studying' I mean 1/18 of my course this year is on it), but don't know this, so can someone answer:
If you take two copies of a particular music single (i.e. two externally identical retail CDs), run them through the same version of an MP3 encoder (say LAME) on two different computers at the same bitrate (say 128kbps), having got the track information from the same database, and with identical filenames, will you get the same checksum or hash or whatever?
i.e., all other things being equal will the same input track produce the same lossy-compressed output file?

Re:What Files?

[Tmack]

...They don't have to have a copy downloaded directly from the defendant. I would have to think another copy of the same checksum'd (and verified) file from one of their other many defendants would probably pass muster in court. Then you'd just need to show the logs....

But that would go against their argument about what "Fair Use" is. To them, a song copied from CD using the same bit rate, having the same checksum, etc as another already ripped file is not "the same" because the bits are not the same bits. Its the argument they make about how downloading a song that you already own on CD is not fair use, and thus they can sue you for doing so. Thus they have already undermined that route of prosecution.

Tm

Re:What Files?

[monxrtr]

Of course you won't ALWAYS get that. All you need is to download in Court two different files with the same name that have different content in those files. As the RIAA/Media Sentry etc. has attempted to fight piracy by distorting, removing, changing, obscuring the content of files in order to protect their intellectual property from being infringed, we have PROOF that screenshots, or even results listing on any and all trackers or file sharing programs does not necessarily constitute the alleged infringement of copyrights by file title alone.

And I would get that established on the witness stand as well.

"Has your company, or any companies you hired, put up files with titles of your copyrighted works with content that does not contain any of your copyright protected works?"

"So then these titles may not contain copyrighted content"?

Re:What Files?

[Anonymous Cowpat]

ok, but say that they get the hash of the file you're offering somehow (does kazaa do this? I don't use it. Bittorrent certainly does.), and they get the file name as a starter, and encode\hash the single and album releases of that track with a variety of common encoders, bitrates and popular track information databases for tagging and find a matching hash, they can know with 99.9999% (number from posterior, but you get the idea) certainty that you're offering that music track, not a poem about how that track makes you feel. Processing power is easily at the level where they could trawl like this if they wanted to.

Re:What Files?

[bzipitidoo]

Short answer: no.

The problem is the audio CD. With 2 CDs, you don't have a chance. They won't have the same collection of scratches, dust motes, and errors. Even if you rip the same CD in the same drive again, you won't get the same data because the drive won't read those occasional scratches the same, and the dust motes may shift. The audio format does not have error correction like the data format. It doesn't need to nor does it preserve every last bit. Only if you encode the same rip twice with identical parameters and software versions should you get identical results.

Re:What Files?

[westlake]

It is my impression that these are all civil cases, meaning that RIAA does not have to prove their case beyond a shadow of a doubt.

the mp3 is never introduced as evidence simply because those cases are settled out of court.

in criminal law the standard is proof beyond a "reasonable" doubt. absolute certainty is not possible and absolute certainty is not demanded.

Re:What Files?

[VanessaE]

Just a nit pick - CD's are indeed supposed to bit-for-bit identical data each time they are used. Since they don't always do so, they have an error correction mechanism that goes on underneath the CDDA file itself. Graceful degradation != no error correction.

http://en.wikipedia.org/wiki/Cross-Interleaved_Reed-Solomon_Coding

Re:What Files?

[monxrtr]

Right, you need 51% evidence. Screenshots of file titles are 0% evidence, whether they are attempted to be introduced into Criminal or Civil Court. There is no universal standard file size for any song title at any song bit rate. And even if there were, that would not preclude other files such as personal commentary or fair use parody matching the file sizes of legitimate copyright infringing files.

It's not the burden of the defense to prove anything, even in a Civil Trial. The defendant doesn't need to take the stand and make any excuses whatsoever. I can't just willy nilly file suits against everybody and roll the dice on a 50% probability verdict that the Jury dislikes the defendant to collect damages for any claims I feel like making up.

That screenshots of file names were allowed as admissible evidence even in a Civil Trial is a gross abuse of the Justice System, and likely grounds for censure and removal from the bench for all Judges who failed to not allow screenshots to be admitted as evidence. I say we collect names of Judges, and begin proceedings.

Re:What Files?

[bzipitidoo]

Maybe the drives I've been using are too cheap, or despite looking pristine the discs were dirtier and more scratched than they seemed, or perhaps the software was buggy. Could be cdparanoia, or even the Linux kernel-- don't use the 2.6.8 kernel for this. The several times I've tried to rip the same track in the same drive, I never saw the same data twice. Sometimes it wasn't even close. Where I'd expect to see an occasional flipped or missing bit, I'd instead see radically different looking data, as though there were many ways to encode the same sound. The different rips usually did sound indistinguishable. Don't know why but thought perhaps an ever so slight phase or time shift could cause that.

Re:RIAA's argument- WOA WOA WOA

[grahamd0]

I know you were joking, but there would be no copyright infringement on the part of the thief, he's not copying or distributing the "intellectual property", he's stealing the physical medium on which it was printed.

OT: On the subject of warnings...

[mooingyak]

But, IANAL, YMMV, beware of dog, slippery when wet, etc.

I developed a newfound respect for Australians and their legal system last summer.

I was in my pool, and I happened to notice the warnings on the inflatables. It had three sections:

US: Do not leave children unsupervised. Not a life-saving device. Etc etc etc, about 5 or 6 lines worth.

UK: Not substantially different from US. Phrased differently, but effectively the same amount of material with the same meaning.

AU: Use only under competent supervision. That was it. All of it.

P2P != Bittorrent

[DigitalisAkujin]

A lot of comments I'm reading assume that this case is about Bittorrent where if you guys bother to rtfa (read the f article) you would know that this case is about Kazaa.

Most cases that get to court are about Kazaa and the Gnutella network because with Bittorrent the evidence brought to court is usually very vague and not enough to get a good ruling for the RIAA.

What makes the Gnutella network different is that a user shares files inside of a "Shared" directory therefore making it much easier to prove that a person at a given IP was infringing on copyright. However, the judge today created a huge setback for the RIAA by ruling that simply having files in a publicly available directory is not "intent to distribute" in-in of itself. The RIAA must prove that she not only made the files public but also announced to some 3rd party that they can take them.

The concept is called the "make available" theory and it looks like today in the Southern District of New York that theory is no longer valid.

Re:P2P != Bittorrent

[Missing_dc]

Kazaa as it was used is no longer the same entity, and a great many of us use bit-torrent, so (IMHO) including bit-torrent in this discussion is both useful and relevant expecially since most lawyer types would not be able to explain the difference in court.

(forgive any spelling/grammar errors, its been a long day)

Re:P2P != Bittorrent

[DigitalisAkujin]

It's relevant but please don't talk about Bittorrent in the context of this case as if that was the protocol used. It's not fair and it's totally off topic.

Re:P2P != Bittorrent

[justinlee37]

The RIAA must prove that she not only made the files public but also announced to some 3rd party that they can take them.

My "shared" directory is entitled "Private_Property_Dont_Download"

I'd love to see them take me on in court.

Re:P2P != Bittorrent

[Creepy Crawler]

Law uses similar situations to render judgment for future happenings.

Kazaa is the older example, and rendered that sharing by the program is NOT "making available".

So explain why BT is not the case?

How does a non-techie know it also uploads?
What if a non-techie knows it does upload, but sets upload to 0kb/s. Is he "making it available"?
Does being in the IP-map on the BT server account for "making available", even if they are not?
If the user is sharing, but no chunks pass checksum, is that "making available"?

Re:But you MUST admit, they are STEALING

[vux984]

But you MUST admit, they are STEALING the music. If the law provides for retribution, either change the law as Sweden does and make it legal to pirate, or don't fucking break the law. Seems cut and dry to me. And I am a lawyer.

The RIAA is welcome to try prosecuting people for the copies they 'downloaded to their computer unlawfully'. However, so far they haven't.

Probably because it would be about is sucessful as a Walmart employee looking in your windows and then charging you with stealing anything they saw inside that they happen to sell.

Re:RIAA's argument- WOA WOA WOA

[AigariusDebian]

A better example here is if the 'thief' took pictures of every page of the book without taking the book itself. The 'thief' clearly commits copyright infringement, but the question is whether you commit copyright infringement by leaving the book outside where the 'thief' could easily find and access it.

Re:RIAA's argument- WOA WOA WOA

[mengel]

Yes. To be accurate, our "thief" would have to walk up to the house with a small copy machine, and copy the book page by page while you were inside and unaware, and walk away leaving the book on the front step.

It could happen...

I suspect the *IAA would argue it's more like leaving the book and a copy machine on the front stoop while you go inside, however that still doesn't constitute an offer to let other people use the copy machine to copy the book.

Re:OT: On the subject of warnings...

[Anonymous Cowpat]

yeah, because those few words are crafted as a general, catch-all, ass-covering notice. Anything goes wrong; you weren't using competent supervision. "but I was watching them"; then you're not competent - nothing can go wrong as long as competent supervision is provided. If that didn't wash, they'd write something more verbose.

To quote Humpy: "Almost anything can be attacked as a loss of amenity, while anything can be defended as not a significant loss of amenity."

Re:RIAA's argument- WOA WOA WOA

[Em Adespoton]

In most sane places, taking pictures of each page of a book is perfectly legal... distributing these pages to others is not, except for special exemptions.

Of course, there are fewer and fewer sane places in this world.

Re:But you MUST admit, they are STEALING

[ScrewMaster]

But you MUST admit, they are STEALING the music. If the law provides for retribution, either change the law as Sweden does and make it legal to pirate, or don't fucking break the law. Seems cut and dry to me. And I am a lawyer.

Riiiight. A lawyer. Sure. And I'm the CEO of Sony BMG.

In any event, I NEED admit nothing of the kind. Furthermore, I seriously doubt you're a lawyer, because if you were, you'd know the difference between committing an act of copyright infringement and stealing anything. Of course, you could be an RIAA attorney, in which case I would understand how such subtleties might escape you.

For some people, willful ignorance must truly be bliss.

Re:But you MUST admit, they are STEALING

[NewYorkCountryLawyer]

And I'm the CEO of Sony BMG. So this is where you have been playing while your company is burning.

Re:But you MUST admit, they are STEALING

[Em Adespoton]

But you MUST admit, they are STEALING the music. If the law provides for retribution, either change the law as Sweden does and make it legal to pirate, or don't fucking break the law. Seems cut and dry to me. And I am a lawyer.

Hmm... let's parse this...

"But you MUST admit" - Why?

"they are STEALING the music." - If they've stolen it, how come I can still hear it?

"If the law provides for retribution," - Please name a country that provides for retribution in the law... must countries either provide for restitution and correction or punishment, NOT retribution.

"either change the law as Sweden does and make it legal to pirate..." - Bzzt. Sweden neither makes it legal to pirate nor did it "change the law" -- Sweden holds (and has always held) that publishing where something illegal might be found is not in itself illegal. Piracy is illegal in Sweden, and is covered under hijacking and armed robbery laws. Copyright infringement is an offence that is covered under Sweden's copyright laws. Theft is covered under Sweden's theft laws. ..."don't fucking break the law." - Whoa there... you probably just broke the indecency laws of a number of countries with that statement. You don't care? Why should others care about the laws of foreign states then?

"Seems cut and dry to me." - You need to get out more.

"And I am a lawyer." - I highly doubt that. If you are, please don't post anonymously, so I can make sure not to hire you in the future. I also notice you don't say what kind of lawyer you are or what country/state/province you are allowed to practice in. Trusting the opinion of a divorce attorney from Lithuania on a copyright case in the US is just insane. Plus, in most countries, lawyers have a code by which they do not publish opinions that could be construed as legal advice in public forums unless they feel qualified to defend that advice in a court of law. You can be disbarred for posting as you just did.

Re:RIAA's argument- WOA WOA WOA

[monxrtr]

And even if you did all that, it still would not be illegal to put the cover of a copyrighted book around a bunch of non-copyrighted scribble drawings by the person's own three year old child. Thus, copying the child scribbles inside a book with The Cat in the Hat cover is not illegal. And a Cat in the Hat cover is not evidence of the pages within.

Your child's school choir performance of "JingleBells.mp3" does not establish proof of copyright violation for every RIAA song that contains the words "Jingle Bells" (although it may constitute some form of PR Disaster copyright violation, which artist's version of Jingle Bells is being infringed?) Certainly a file title is not evidence of all songs ever made regarding "Jingle Bells" being infringed, let alone any single instance of "Jingle Bells" being infringed. Thus, the RIAA can not only censor you putting up your child's school choir performance of "Jingle Bells" within a file title JingleBells.mp3 with take down notices, but sue you for $150,000 and have a screenshot of "JingleBells.mp3" be admissible as EVIDENCE?

I'm outraged that screenshots of file titles are and/or ever were admitted into any Court of Law as evidence of content. What's next, installing hidden cameras in people's homes without their consent and charging the owners of the house with child pornography and public indecency? At least then, you know, you'd actually have some *real* evidence, even if it was wholly manufactured.

Any and all Judges who allowed screenshots of file titles to be admissible evidence should be censured and permanently removed from the bench, if not face additional charges of negligence and willful wrongdoing.

Re:But you MUST admit, they are STEALING

[ScrewMaster]

My friends call me "Nero".

So are files on a Web site now safe?

[spage]

It's very useful for me to keep backups of all my legally acquired media on a "shared folder", specifically my web site. I kant talk legalese, but that behavior has substantial non-infringing uses.

Can I now put a link on my blog "Archive of my iTunes folder" to remind me where my backups are without getting in trouble? So long as I don't exceed my ISP's bandwidth cap I couldn't care less if strangers (the lazy copyright-infringing bastards!) download the bits.

Re:RIAA's argument- WOA WOA WOA

[Anonymous Coward]

It's spelled "whoa". Yes, it's in the dictionary dipshit.

"Making it available" is sort of missing the point

[mark-t]

Copyright governs the making of copies. That's it. People need to stop blathering about this "distributing" or "making available" crap.

The question to really be asking is since the defendant undoubtedly made copies of the files, and since they were made available, it is not unreasonable to deduce that the copies were made for that purpose (unless that was done without his knowledge or consent), so is making copies for such a purpose actually supposed to be exempt from copyright infringement? Fair and personal use copies are exempt from infringement... this much is clearn, but does the intention to make a copy of something publically available constitute actual fair use? It sure isn't personal use. And if it's not fair use, then the copy is infringing, even before anybody else actually downloads the file.

Re:OT: On the subject of warnings...

[martin-boundary]

Chewbacca: Grooowl(*)

Palpatine: But this "amenity" isn't important! What's an amenity anyway? It's a bathroom! Life is not just about bathrooms! So it's not a _significant_ loss of amenity!

Chewbacca: Groooowl(**)

Palpatine: Strike this accused down and your jury duty will be complete!

---

(*) Look at this dictionary! Does it contain the word "amenity"? No, it doesn't! If it doesn't contain the word "amenity", it's a loss of amenity!

(**) If it doesn't contain "amenity", you must acquit!

Re:But you MUST admit, they are STEALING

[MobileTatsu-NJG]

But you MUST admit, they are STEALING the music. I don't know that:

a.) ... the files they were downloading were the actual songs.
b.) ... they didn't have the CDs (or some other license to the songs in question) already to begin with.
c.) ... they even heard the songs they downloaded.

You're not using the term 'stealing' properly here, so I'll just assume you mean: They downloaded music and listened to it without paying for a license to it. I can suspect it, but no, I cannot 'admit' that they are breaking the law at all. Perhaps if you took another stab at your Law School homework, you'd see the shades of grey your ignorance is blinding you to right now.

Re:"Making it available" is sort of missing the po

[Todd Knarr]

Well, it's well-known that cars are used by criminals to flee the scene of a crime. It's also well-known that if I leave a car on the street it could be stolen, especially if I don't lock it. So if I park my car on the street in front of my house and forget to lock the passenger-side door, and someone steals it and uses it to get away after robbing a bank, did I buy that car for the sole purpose of robbing a bank? It's theoretically possible, if I can be shown to be in cahoots with the robber, but the police haven't shown I even knew a robbery had happened let alone that I knew the robber that well.

Re:But you MUST admit, they are STEALING

[Anonymous Coward]

Maybe he is a lawyer, because he sure sounds like a scumbag ;-)

Man, you MUST admit that the RIAA are the real criminals.

Sharing music is by far the lesser of two evils!!!!

Re:"Making it available" is sort of missing the po

[mark-t]

And that is relevant to copyright, how, exactly? Copyright infringement isn't remotely the same thing as property theft.

Correct me if I'm wrong....

[CodeShark]

..but it seems like this court case could prove definitive in terms of future lawsuits. Because I'm not a lawyer, I'm going to resort to a common analogy and let Ray & Co critique....

Let's assume that I check out a popular book from the local library, but leave it at the laundromat where other folks can read it. An unscrupulous laundry customer takes the book and makes a hundred copies and hands them out to other folks, who make copies etc. before I can retrieve it. The author and publisher then come after me for "making available" and seek a judgement, even though I never offered an illegal copy to anyone -- that was person #2 who got to the book and not only made illegal copies, they offered to distribute them. I assume that a judge would not hold me liable for copyright infringement because I never intended to break copyright, but WOULD allow the author/publisher, etc. to go after the downstream infringer(s) who knowingly made the copies and then attempted to distribute them.

It seems to me that this judge's decision makes the analogy pretty close to the legal precedent this decision would set in the realm of "electronic" distribution and cuts off the "shared folders == making available == legally actionable argument" at the knees.

Thoughts?

Re:Correct me if I'm wrong....

[NewYorkCountryLawyer]

I believe that Judge Karas would require the plaintiffs to prove that an "offer" actually took place.... which of course it never did. So yes it sets the bar higher than the RIAA's ridiculous "making available" theory.

However, the decision is problematic because it dispenses with (a) the need to make detailed factual allegations in the complaint, and (b) the requirement that there be an actual dissemination of actual copies, to the public, by a sale or other transfer of ownership or by a license, lease, or lending.

Re:Correct me if I'm wrong....

[gnasher719]

I believe that Judge Karas would require the plaintiffs to prove that an "offer" actually took place.... which of course it never did. So yes it sets the bar higher than the RIAA's ridiculous "making available" theory. Some people seem to think that the Kazaa software (or other software) can make an offer on my behalf. For the example, the RIAA probably thinks so. If that is what they think, they should ask the Kazaa software to appear as witness in court, stating its name, residence, date of birth (I guess a witness would have to do that in a US court, right), and then they can ask the software about it. If someone or something cannot legally appear in court as a witness, then that someone or something cannot make any valid offers to anyone.

Dissenting opinion from "El Reg"

[Gimble]

Andrew Orlowski seems to think that the Judge has actually rejected all the defendants claims in this piece at the Register.

Curiously his argument is made in terms of The EFF's case is "without merit", the Judge said rather than the actual defendant but he's known for his antagonism towards the EFF, linux and other anti-corporate leaning bodies it's not too surprising.

Re: the decision is problematic

[CodeShark]

Continuing the questions...

Using the analogy, the RIAA is saying that if someone posts an offer, that constitutes infringement even if the book at the laundromat is never copied?

Would it be correct to assume that on appeal the bad part of the decision could be overridden while leaving intact the "higher bar" part of the ruling?

The beginning of...

[Anonymous Coward]

...the end.

Does anybody else smell a SCO around here.

Re:OT: On the subject of warnings...

[bigpicture]

A couple or more words come to mind here, "due diligence", "responsibility", "accountability", "stupidity", "intelligence". It has been my experience that when there has been an injury, fatality, or undesirable incident, that some or all of these have been wrongly applied.

RIAA extortion company: identified & located?

[cyberscan]

p2pnet news | RIAA News:- A long-time p2pnet reader and computer programmer says he's 99.9% certain he's unearthed the name of the company that may be running the RIAA's so called 'Settlement Center'. See http://www.p2pnet.net/story/15512 for more information This is just another hole in the hull of the RIAA rat ship.