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

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.

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:Not today...

[BigJClark]

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