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."
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.
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?
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.
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?
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
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.
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.
if you steal from one source, that is plagiarism, if you steal from many, well, that's just research.
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.
"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.
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.