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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.'"
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.
Ray Beckerman +5 Insightful
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.)
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
CCW FTW!
I am a geek attorney, but not your geek attorney unless you've already retained me. This is not legal advice.
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?"
Ray Beckerman +5 Insightful
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.
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
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)
It was not so much that a transaction had not taken place, but rather that the RIAA had failed to prove, in point of fact, that a transaction had actually taken place (i.e. it is not enough that the law could have been broken, it must be shown that it actually was broken). I thought that the following commentary from senior EFF lawyer Fred von Lohmann was especially informative:
"If the RIAA wants to keep bringing these suits and collecting big settlements, then they have to follow the law and prove their case. It's not enough to say the law could have been broken. The RIAA must prove it actually was broken."
It has been said that "reason is the light of the law" and we certainly saw that light shine through today in this decision.
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.
They won quite a few. It's that very success that woke people up to the reality of what this group was doing.
On a side note, my wife took a look at the ruling I was reading and asked how I could understand any of that. My reply that judicial rulings are usually a far easier read than affidavits and motions got me thinking...
Has anyone else noticed, on their end, that actually reading through court documents on the web has given them a firmer grasp of legal terms and syntax than they had before? For instance, I still only have a layman's understanding of law, but what used to look like meaningless legal mumbo-jumbo is starting to look more and more like verbose (but logical) legal whitepapers and RFC's.
Well, -usually- logical. (*cough*SCO*cough)
br. Either way, do you think that the increasing availability of court papers results in at least some increase in legal literacy?
Do not confuse "Freedom of Choice" with "Free Will".
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.
commentator /kmntetr/ [kom-uhn-tey-ter]
-noun
1.a person who discusses news, sports events, weather, or the like, as on television or radio.
2. a person who makes commentaries.
[Origin: 1350-1400 Middle English. interpreter, equiv. to comment to interpret (Latin: to think about, prepare, discuss, write, perh. freq. of commin; to devise; see comment) + L -tor -tor]
--Related forms
commentatorial [kuh-men-tuh-tawr-ee-uhl, -tohr-], adjective
commentatorially, adverb
Random House Unabridged Dictionary, © Random House, Inc. 2006.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
I'm not so sure it's dismissive so much as derisive. Part of that is in the compulsory nature of law. Plumbers can't just send you a letter full of gibberish that translates to "hire a plumber or never flush again!" and make it stick. Lawyers do that all the time. While they do tend to make you miss a day of work if you hire them, you can opt to do without. Plumbers can't force you to take off for weeks even if it bankrupts you.
I'm not saying that there is a good way to fix all of the above, but I must say it doesn't appear that there's much effort to even try. I'll bet most lawyers would be pissed if I could just compell them seemingly at random to write a POS system in C or hire someone to do it for them. They would be especially ticked off if they could then potentially be forced to sell off their worldly posessions if I found a bug.
I have bothered to learn the basics of law, it's philosophy and jargon. As a result, I have gained respect for some lawyers and judgs and lost a great deal of respect for others.
Thomas Jefferson said laws should be written in plain English, because laws exist to serve the People, and need to be understood by the same.
Makes sense to me. Why insert a bunch of flowery language just to say, "It is wrong to enter another man's household."
The government is not your daddy. Its purpose is not to raid middle-class neighbors' wallets and give it to you.
I ripped mine to FLAC and stream them via my PS3 transcoded to WAV format. Works very well.
- Michael T. Babcock (Yes, I blog)