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Arizona Judge Shoots Down RIAA Theories
NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"
RIAA 1, Everyone else 35920?
They did win one, didn't they?
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
The RIAA should have known better. In Arizona, you don't mess around. Everybody's packin' iron.
This decision only means that the law currently on the books can't be interpreted in the way the RIAA wants.
However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.
My only political goal is to see to it that no political party achieves its goals.
I am impressed by the judge. It is nice to see a case where the defendant was not at the mercy of expensive lawyers, and the judge actually took a look at the case law before making a decision.
It is crazy to assume a wrongdoing when no transaction has taken place. Alcohol stores are not fined when minors fail to buy alcohol, a transaction has to take place for the offense to be actionable. Good show.
Beatles, Sgt. Peppers lonely heart's club band, 1967
for the Arizona district. As an Arizonan I wish he were an elected official so that we could keep him on that bench for a good long while. This is the second major issue Wake has weighed in on, and both have been good decisions that are good for Arizona. I hope he continues to do this.
Be Safe! Sleep with a Marine. Semper Fi!
That Billy Shears was a rockin' dude.
The main reason you don't hear about the RIAA winning any case is because.....
They don't.
They use their Gestapo mindset and frivolous law-suit threats until the person they are harassing into submission, and finally settle out of court. The one's you actually hear about are the ones that go to court, and those tend to be in the defendant's favor... (Aside from the legal fees that you'd have to pay.)
Illegal MP3s copied from his CDs on his computer? Whatever happened to the whole concept of fair use? Granted the RIAA probably *always* hated the concept of fair use, but how can their whole court mafia get away with suggesting that fair-use on his computer (who wants to store all their CDs on their computers in WAV format???) is illegal? For reals, someone please come up with a good test case to bring this to the supreme court already!!!
shows that distribution is the crime, not downloading.
The Kruger Dunning explains most post on
I don't think it eviscerates the RIAA's claims, but it's certainly a major blow to their theories. As I read it, the judge is saying that merely making them available isn't automatically infringement. This makes sense if you think of an analogy. If I put a book down on the table on my front porch while I go inside to get a drink, and someone comes along and takes it, I surely made it available but nobody in their right mind would claim I intended to distribute it to the thief. Compare that to the case where I put a whole bunch of books on a table out by the sidewalk with a sign "Free books, take as many as you want.". I suspect the judge here is ruling along similar lines: it's not sufficient for the RIAA to claim that the files were merely available, they have to claim the files were (reasonably) knowingly made available for the purposes of infringing distribution. OTOH, if the files were available to the public, but were put where they were for a non-infringing purpose and the defendant wouldn't reasonably (given their knowledge) expect the files to be open for the taking by anyone else, then the RIAA's claim fails. Which to me sounds reasonable, so seems more reasonable than either of the extreme positions take by the RIAA or the P2P advocates.
The War will be won if the RIAA is forced to download/upload to gather evidence, and really there is no evidence whatsoever from file titles; that could reasonably be personal commentary or a fair use parody. The defendant should not be *presumed* guilty, the RIAA should *prove* infringement. File titles are 0% evidence, not even 1% "circumstantial". We don't really know, since no song has ever been played in any Court (and that alone will be worth millions in PR for the cause).
Keep a sharp eye on those RIAA IP addresses.
Screenshots of white powder is 0% evidence of cocaine. Writing $100 is 0% evidence of counterfeiting a one hundred dollar bill. And britneyspearstoxic.mp3 is 0% evidence of copyright infringement.
And imo, those paid settlements are RICO violations for precisely the reason that the RIAA has been on a 0% evidence extortion witch hunt.
"From DNA to P2P, we are all Copycats now. Go Go Copycat Power! Copycat Powers activate! Form of, a Copycat." --monxrtr
Let's hear it for all of us in good ol' AZ... And everyone thinks we're just a bunch of outlaws!
Hmmm..
So this judge rules that the interpretation of "distribution" requires ACTUAL distribution.
Perhaps those people picked up for "distribution" of drugs for having 2 ounces on them could call up this judge and ask what's up.
Perhaps those people picked up for "distribution" of child pornography could call up this judge for having been tossed in jail for "distributing" it by viewing it in a digital medium (and therefore "reproducing" it in memory when viewing).
hmmmmmmmmmmmmmm...
I hate arbitrary crap like that. Horrah for this judge and his sanity.
I believe that this is just another sign that the RIAA's backers is still trying to maintain a business model that is clearly failing in the face of modern technological, and perhaps social, realities. We can debate back and forth about technicalities in the law, but what it really comes down to that distributing music the way it has been done for so long is no longer viable. People want another system; a better system. Of course I am no expert, I offer no alternative.. But I do believe another system could be created, (or perhaps is already being created in many minor ways) that could benefit musicians, consumers and those that are needed in between.
At least I think that serious consideration upon that issue should be made, and I am sad to say, the current establishment seem reluctant to do it. However, sooner or later, I am sure, a new way will emerge. People want to make music, and people want to listen, it is not a very difficult concept underneath it all. What is needed is something that is viable, acceptable and fair to all parts involved.
The Long Now Foundation
What would you do,
If the labels said they'd sue,
Would you freak out and pay them their fee?
Send me a judge,
And he'll interpret the law,
And he won't put you under lock and key.
"Flag on the moon. How did it get there?"
Are you kidding me, illegal to make mp3 from a CD? Then why would I ever get a CD in the first place, the RIAA wants way too much and I'm happy that finally someone put them in their place.
I think Linux isn't better than Windows hence in the slashdot realm I'm a troll
However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.
The RIAA has been going after consumers for many years now, and they've been almost completely unsuccessful in their efforts. They've also been pushing for years to get Congress to let the RIAA call the shots on P2P, again without success.
Big Media has been successful in getting copyright's duration extended to infinity and beyond, but they have not been able to get Congress to go nearly as far beyond that as they'd like.
Basically Congress has said it's fine for the RIAA to go after consumers, but as soon as they start making life difficult for Internet content providers, they're not going to side with the RIAA. It's obvious that the music industry is the past and the Internet industry is the present, and Congress knows this.
Read the EFF's Fair Use FAQ
While this does weaken the RIAA's case, they still have a decent shot at conviction. All that was denied here was a shot at summary judgement. At issue here is the idea that making a copy of a protected work available is not the same as copying, but may leave the defendant open to contributory liability.
Howell contends he never intended to share, nor authorized KaZaa to share his music files and it may not be possible for the RIAA to prove otherwise.
For what it's worth, he also poked holes in EFF's argument that Media Sentry - as an agent of the RIAA, cannot infringe on their own copyright. He argues that the RIAA / et all never intended to license Media Sentry to authorize distribution or reproduction and therefore the 12 copies Media Sentry downloaded stand up as "unauthorized" copies of the works. The issue remains open as to whether Howell can be held liable for these copies.
Totally eviscerated! Radical! To the Max!
You never expect irony, do you?
Want to be a professional wrestler? Visit www.iyfwrestling.com
@iyfwrestling
Did this also mean that RIAA would require means to monitor/intercept traffic to prove a transfer has teken place?
15TW = 15,000 Nuclear Reactors. (Approx. one accident a month.)
please properly expand out RIAA so that we can expose the true perpetrators.
While IANAL, if you read the EFF brief & the judgement in depth, an interesting defense is being promulgated... Even if the defendants specifically allowed MediaSentry to download these files, as authorized agents of the copyright holders, no copyright infringement actually took place!!! There's case law that says that a copyright holder (or their agent) cannot infringe on their own copyright... Hence the new, stupid, "making available" claim...
What does that mean? Assuming this argument is valid (which I can't see how it couldn't be), the plaintiffs would have to go back to square one and find someone else on Kazaa who downloaded specific files from the defendants--specifically infringing on copyright law. And for anyone who has used P2P before, how often do you know (or remember) who you're downloading from? Personally, I think that borders on impossible to prove--unless Kazaa keeps some sort of detailed log data file that MediaSentry would have to gain access to...
Windows 3.1x calc: 3.11 - 3.10 = 0.00
Sheer genius, a major blow to RIAA tyranny. The judge ruled that an actual infringement needed to take place...
> Not Evisceration, just careful consideration.
:)
But careful consideration is the sort of thing that would totally eviscerate their case.
As to Mr. Beckerman's mention that this won't be a jury trial, I honestly think that's a good thing. The important parts here are matters of law, not fact, and a judge is better equipped to handle those. Were I a defendant, I know that I would not opt for a jury trial after seeing the other lawsuits play out. The 'never used the internet' juror may be unique, but I've taught computer classes, and there are more of them than one might imagine even still.
Ray Beckerman +5 Insightful
Needs to be lock'n'key, or there are too many syllables in the last line.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Just to let you know a bit more about how the courts work--
More than likely this opinion was written by a "judicial law clerk" who graduated from law school last June (likely toward the top of his class). Judges vary widely, some write their own opinions, some collaborate with their law clerks, and some let their clerks write the memos, glance through them and mail it out. Most judges fall somewhere between the last two. The prior decision (today's decision was a reconsideration of an earlier decision in the RIAA's favor) was dated last August, which means it is very possible it was written by last year's law clerk (once again, these things vary, but most clerkships are one year long and start sometime between Late July and early September.
Just thought I'd let you think about that.
Uh, I agree that it would sound better, but the number of syllables is the same:
lock|and|key (3)
lock|n|key (3)
In the second instance, the most common pronunciation would probably render "lock'n" phonetically the same as "locken", which is a double-syllable phonism whereas "lock-and" is two single-syllable words. Therefore the syllable count remains the same (3) in either case.
-AC
Foot meet Bullet.
The question I have is why the RIAA dropped cases against a bunch of UofA students recently: http://www.azstarnet.com/sn/byauthor/235178
"commentator" is no more a word than "orientate"
the word is commentor.
They're using their grammar skills there.
While the RIAA stipulated their assertion that the MP3 files are "unauthorized" copies of the music the defendant purchased on CDs, they never claim these copies are "illegal." It's a very precarious legal tightrope they're walking. If they claim those copies are illegal, that opens up a whole can of worms, and things might not go the way they'd like. So they claim those copies are "unauthorized" -- which is technically true, but doesn't address the issue of whether the defendant needed authorization.
Whether you need authorization or not depends on whether ripping those CDs into MP3 format is considered "fair use" or not. Although many geeks like to point to the Rio case against Diamond Multimedia as establishing that ripping CDs to space shift is a protected fair use, a careful reading of the decision will show that the judge in that case largely side-stepped the fair use question; rather, the judge focused on how the parts of a computer used to space-shift music were not covered by the Audio Home Recording Act, and therefore not subject to its restrictions. (The judge did say that the Rio was consistent with fair use provisions in copyright law, making an analogy to the Sony Betamax case, but that's as far as it went.) I found a pretty good article here, reprinted from Federal Communications Law Journal. (The relevant section discussing the Rio case starts at the bottom of the first page and continues into page 2 with the following quote: "Because the court had no occasion to look at the Rio case from a fair use perspective, this Note examines the case as one of fair use to reach the same conclusion as the Ninth Circuit.")
We need more case law to establish this once and for all -- or else we need a piece of legislation that explicitly balances corporate and consumer copyright interests and defines what is considered "fair use."
Standard disclaimer: I am not a lawyer, and this is not legal advice. I'm merely stating personal observations and opinions.
It is absolutely awesome that the judge quoted the "Betamax Decision" at the conclusion of his decision! What irony! Score!
Hold on there, partner... the court in the Diamond Rio case ruled that the components of a computer used in "space shifting" were not subject to the AHRA, nor was the MP3 player in question. So while the AHRA does grant the right to space shift music, it also places burdens upon the manufacturers of devices compliant with that law -- it mandates SCMS (Serial Copy Management System) to limit copying, and it mandates royalties paid by device manufacturers to the recording industry.
Since a computer's components and the MP3 players used to listen to these music files are not covered by the AHRA, that particular argument doesn't hold water. For more information on what was ruled, see here and here.
Also, see my other response in this thread -- the RIAA is claiming these MP3s are "unauthorized" and not "illegal." There is a difference, and it would really inform the discussion here better if folks would tune up a bit and read these things carefully. These MP3s are unauthorized in the sense that the defendant didn't explicitly ask for permission from the copyright holder to space shift his music. Whether authorization is required is a separate question, and one that the RIAA lawyers are hoping doesn't get answered in a way they don't like. It's in their best interests to sow confusion here, so they deliberately confuse the issue -- not unlike conflating "copyright infringement" with "theft."
Standard IANAL disclaimer applies. This is my opinion (backed by some research), not legal advice.
Orientate is a word, it means to turn towards the east.
It does not mean as commonly confused with orient, meaning to aligh or get your bearings.
-Jay
o Judge Ito
o Judge Seidlin
o Judge Judy
o JudgeNeal
Its good to see the judge question the evidence of identity. However the business about "distribution" is just a sideshow. It matters in these particular cases because the RIAA can't go back in time to collect more evidence. But in future cases they will just make sure they do a sample download. If punitive measures require evidence of 10 downloads, they will do 10 downloads. From their point of view its just another legal hoop to jump through.
You are lost in a twisty maze of little standards, all different.
For a second when I clicked to expand your comment I was sure you'd end up claiming to be a (cut-and-pasted, or perhaps broken-) record store owner...
I'm right with you. We need to outlaw offering to distribute copyrighted works. That would be an interesting new world!
Oh, sorry, wrong **IA... (AFAIK)