Slashdot Mirror
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."
"Quote me as saying I was mis-quoted." -Groucho Marx
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.
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.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
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!!!
I think the judge would require the plaintiffs to prove that defendant did something affirmatively to "offer" the files.
Ray Beckerman +5 Insightful