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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."
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. ;)
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.
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).
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.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
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.
"From DNA to P2P, we are all Copycats now. Go Go Copycat Power! Copycat Powers activate! Form of, a Copycat." --monxrtr
Good lord man, treat every day like "April Fools" on the Internet
Hi, I Boris. Hear fix bear, yes?
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."
FGD 135
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.
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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.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance