Slashdot Mirror
RIAA Throws In Towel On "Making Available" Case
NewYorkCountryLawyer writes "The RIAA has thrown in the towel on one of the leading cases challenging its 'making available' theory, Warner v. Cassin, in which the defendant had moved to dismiss the RIAA's complaint. We have just learned that the RIAA submitted a voluntary notice of dismissal before the judge got to decide the defendant's motion to dismiss the complaint. It will be of interest to see if Ms. Cassin pursues a claim for attorneys' fees in view of recent court rulings that successful copyright defendants are presumptively entitled to an attorneys fee award, even if the dismissal came about from the plaintiffs' having 'thrown in the towel.'"
they throw in the towel to avoid precedent being established.
Seems to me further evidence that they are systematically abusing the legal system with sham lawsuits. If they actually cared about this individual case wouldn't they want to see it through?
Of course, all this means is that they will seek another legal tack. Watch out for MediaSentry downloading files to establish "distribution."
If you haven't been down-modded lately, you aren't trying.
Sacred cows make the best hamburger.
Now I am sure RIAA P2P copyright infringement lawsuits will come to an end once and for all! Some one wake up pa, there's a big goin's on!
What's the case law say about judges granting the cost of defense from the plaintiffs? Is it based on their mood, or how bad the "evidence" was that the plaintiffs used to make their case, or something else?
Why wouldn't the Judge force them to present their failboat of a case after a year of pre-trial proceedings?
Did the defendants not contest the motion to dismiss?
[Fuck Beta]
o0t!
Your honor, we know you're going to rule against us and set a precedent which will completely torpedo most of our other legal efforts so we'd like to respectfully withdraw our claim. Kthxbai.
sigh... Gamesmanship at its most disgusting...
I'm curious - can the judge deny their voluntary dismissal and still hand down judgment?
While I actually own the CD to most of my OGGs, I gotta say that Allofmp3.com, now MP3sparks.com, have the best business model:
Let's see, reasonably-price music whose price depends upon the bit rate chosen. I can't wait to get home and send more money to the Russian mafia!
This case is small potatoes compared to a treaty that will affect many nations instead of one defendant.
They figure the lawyer fees would be better used to bribe congress critters to push ACTA, instead.
Obama's legacy: (N)othing (S)ecure (A)nywhere and (T)error (S)imulation (A)dministration
actually, the judge should refuse to accept the petition and decide the motion on facts, it is in their purvey to reject a "sorry, shoot me" petition if they don't believe it was a full and meaningful declaration of the parties' intent, made with full knowledge of the law.
RIAA is always giving up just as a case gets to the core of their behavior, and whether is is privileged, or whether it is illegal.
that should suggest strongly which case it is, and some judge who is read in more than the law has eventually to stick the fork in these guys and say they're done.
if this is supposed to be a new economy, how come they still want my old fashioned money?
Compare http://recordingindustryvspeople.blogpsot.com/ (linked above) to http://recordingindustryvspeople.blogspot.com/
Meanwhile, in Congress, new laws (H.R. 4729)are being forged right now which may make a good judge's interpretation of these issues moot in the near future.
http://news.slashdot.org/article.pl?sid=08/06/11/0213244/
Strange things are afoot at the Circle-K.
I quit attempt (if it really amounts to that) to prevent a precendent from occuring is of little usefullness in practical terms. The fact remains that the outcome of the case didn't look good based on the course of the trial. Even if the RIAA is allowed to withdraw, court documents will still exist showing the course of events of the trial and they will remain on public record for any lawyer defending a client in an upcoming case brought by the RIAA. IANAL, but it would seem to me this will just be another case thrown on a growing pile of evidence that the RIAA is trying to push through nuisance cases backed by slipshod research methodology. Sooner or later judges are going to start beating them up for it.
Avoiding the truth by withdrawal from court proceedings seems pretty precedent setting. It's pretty obvious that this case has shady and probably illegal litigation tactics written all over it. All the MAFIAA are doing is reaffirming what we all already knew.
Not really, the RIAA wants to set legal precedent, if they do set precedent in their favor then the "making available" theory will be accepted. If they lose enough cases on the "making available" theory then it will be thrown out by precedent.
Taxation is legalized theft, no more, no less.
The RIAA is obviously afraid of losing outright on the issue of its "making available" argument. I say that because without the "making available" argument the RIAA will no longer be able to sue it fans. Let's face it, if the RIAA had actual evidence of copyright infringement, it would not need to use the "making available" argument. Thus, it's clear that the "making available" argument is the only pseudo-legal straw available for it to grasp.
I personally think it has something to do with the nature of P2P. In the old days if you shared music, the person would download it directly from you. Now you're only sharing bits and pieces of songs,not entire songs, spread out among many different people.
Of course the RIAA could attempt to make the argument that that sharing one even one bit of a song constitutes infringement. However, when one and zeros themselves become illegal, we're all in trouble!
If someone says he and his monkey have nothing to hide, they almost certainly do.
The RIAA are just a bunch of opportunistic scavengers, and like that ilk, they're complete and utter cowards.
I'd call them vultures, but that would give vultures all over the world a bad rap.
So, what will Ms. Cassin do? Who's representing her anyway? Maybe that attorney could find out and get back to us?
The RIAA should be required to pay every cent of the Defense's costs, as well as for pain, suffering, and time lost defending this truly meritless case! For them to say that each party must bear their own costs is beyond the Height of Arrogance, and a poke in the eye of Justice itself!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
, a towel has immense psychological value.
Any organisation who can sue the length and breadth of the galaxy, rough it, slum it, struggle against terrible odds, win through, and still knows where it's towel is, is clearly an organisation to be reckoned with.
"Kill 'em all and let Root sort 'em out"
I'm certainly not the most up to date on all the RIAA's done, etc. however ...
It seems to me that it's the DUPLICATION that is an infringement of copyright and not simply making something available.
Putting my MP3s in my shared music folder so I can listen to them at work is not necessarily a copyright infringement. When my neighbor copies them, however, so he can listen to them for his enjoyment and not pay for the license to do that, well then, THAT is the infringement.
Just like photocopier days ... if I forgot my musical score on the photocopier after legally making copies for my music students, and someone else makes a copy, THEY are the ones that have infringed, not me. I suppose it could be argued that I was negligent in protecting their IP, but that wasn't really part of the agreement when I purchased the score for classroom use (and presumably paid for that level of use).
I'm sure it's all been hashed about before, but what am I missing?
http://www.copyright.gov/title17/92chap11.html#1101
Of course, reasonable interpretation is necessary. If you put KaiserChiefs-Ruby.mp3 in your public folder of a limewire machine, is it reasonable to assume that you have put it there for your own use? Of course not. If you put it in a non-advertised publicly accessible folder that is password protected? then yes. Reasonableness matters. this is why, if you are caught in the bank with a gun in your hand, the "aliens just teleported me here and implanted false memories in the witnesses' brains to make them think that i robbed this bank" defense won't work, even if the existence of such a possibility means that your guilt is not "certain" in some mathematical sense.
Additionally, i find it very ironic that you are arguing that it's not the making available, but the downloading that's illegal, when we just had a whole different thread of idiots yesterday arguing exactly the opposite to justify their piracy.
Copyright law is a pain in the ass.
Distributing copyrighted material is a violation.
Also, maybe there is could be contributory/vicarious infringement.
eom
Arguing both sides are fine is no different than identical twins pointing the finger at each other to get out of a murder rap where the sole evidence is DNA. It's up to the plaintiff to prove the infringement/prosecution to prove the crime, not the defendant to prove innocence. Since we are talking about two defendants/cases, one defendant/case can argue that downloading is fine (whereas I thought the problem was lack of proof) while the other can argue that sharing is fine. There is no problem here because we're dealing with independent cases.
GPLv3 gives "making available to the public" as an example of propagation. What does this mean? Is making available a form of conveying?
One example of "making available to the public" is putting the software on a public web or FTP server. After you do this, some time may pass before anybody actually obtains the software from youâ"but because it could happen right away, you need to fulfill the GPL's obligations right away as well. Hence, we defined conveying to include this activity.
And thanks to all of the documents of the case being in public now, the government has "made available" to us the counter arguments that were good enough to get this case dismissed. Awesome.
The game.
If the defendant had already filed an answer, they could refuse to consent to the dismissal and force the RIAA to trial regardless of the RIAA's motion to dismiss. FRCP 41a
What if they know that H.R. 4279 (PRO-IP), that article a couple clicks down on the main /. page, is going to fix all this for them? Sort of a "Hey look at this hand!" while they pound civil rights into the ground with the other?
-
They have been licensed properly in exactly the same way as websites and radio in the US and much of the rest of the world requires. The license fees are paid to the Russian equivalent of the APA and the royalties are available for collection by the artists and/or their agents.
The RIAA doesn't ask for the royalties because they can't, the APA would have to get the money. Even if RIAA can, they don't want to because that blows their lie that the music is unlicensed.
This does not stop the music from being licensed and copying music with a license (as AllOfMP3 has, and, as "making available" is the bad part, this is licensed making available) is not illegal.
Between the now Pro IP Act and the Anti-Counterfit Agreement, they wont need to care about lawsuits anymore.
The only problem with all of this snark is the fact that
software is often installed without the knowledge or full
understanding of the end user. The computer is capable of
doing all manner of things on it's own. It is often not
at all clear that the owner of the machine is in control
of it.
Many if not most end users are barely able to use these
machines and have no hope of fully understanding what
the computer is doing or the full implications thereof.
A Pirate and a Puritan look the same on a balance sheet.
> How is that even possible? Is someone suddenly not a criminal when you find out who they are? I'm terribly ignorant of the law, but I was always under the impression that criminal suits had to be brought by a DA, and even then it was rare for a case to be suddenly dropped unless new information was brought to light.
I don't know what you mean about someone "suddenly" no longer being a criminal, but one thing in civil law is that you can't keep suing someone, then drop the case. If you withdraw, you can bring the same case ONCE more. If you drop the same case twice, that's it. You don't get to keep suing them and dropping the case.
The RIAA works by suing first to get your identity from your ISP. They may or may not have the correct person, but they don't really care. You're not a part of this case, because you probably don't even find out that there WAS a case until it's over. Then they send you to their own "settlement center" unless you refuse and go to court.
But yeah, these aren't criminal lawsuits, they're civil (the RIAA can't bring a criminal lawsuit to begin with). So double jeopardy and all that doesn't apply, but civil rules about withdrawing from cases and such DO apply. Read the FRCP (Federal Rules of Civil Procedure) if you want more information.
But please note, IANAL. Get one before engaging or deciding to engage in any litigation, because I can't give you legal advice! And if NYCL comes in to correct me, listen to him. I had exactly one law class and it didn't cover this. Given how sharp the MAFIAA's practice is, I don't doubt that they will at least try to find loopholes in my line of reasoning.
- I Don't Believe in Imaginary Property
No, this thread's about the RIAA trial. The one with the four girls painted up to look like cows was this trial.
It's the RIAA's lawyers that are missing something. I'm not sure what they're missing, but I've got it narrowed down to 2 things: (1) brain cells, or (2) integrity. Or possibly some of each.
Ray Beckerman +5 Insightful
The US Constitution allows the judicial system to decide cases and controversies. So, unless otherwise enabled by a state constitution, my understanding is that no court can issue advisory decisions. There has to be two parties who have a controversy. Once the plaintiff wants to end it, then the ruling is of no value.
That's why, as quoted above, FRCP 41(a)(1) provides that voluntary dismissal by the plaintiff or by stipulation is accomplished "without order of the court."
> (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
Wait. So, if I buy a sculpture from the artist, I can't put it out in public without permission!?
Copyright law is even more screwball than I thought.
> Yeah but it was probably this one, with the cool syllabus.
:) Nice links, though. I read through that information and it's interesting. Probably shows why they want IP cops now, though. Frankly, that scares me.
Alas, it was nothing that useful
But I did learn the difference between "void" and "voidable" contracts (which might be more useful to know if I was one of those emancipated minors used in almost every example), the meaning of original jurisdiction, writ of certiorari, and how to figure out who you can appeal a case to.
Whatever I know about copyright law I pieced together from reading USC 17, case law, Groklaw, and what you and other lawyers have written. Speaking of which, I take it that I got the explanation mostly right that time? I didn't notice any corrections.
- I Don't Believe in Imaginary Property
We need to "set up" the precedent ourselves. Need two slashdot volunteers to mimic an RIAA lawsuit. Balancing the RIAA strategy calls for elite highly paid representation to represent the defendant. Need a scapegoat pro se plaintiff to register some 3 minute shit .mp3 and then file suit against "the ringer".
"From DNA to P2P, we are all Copycats now. Go Go Copycat Power! Copycat Powers activate! Form of, a Copycat." --monxrtr
> And because you're sharing with numerous people, that random non-sequential data is going to become even less recognizable as a song because it was spread out to different computers.
Torrents have hashes. They're split into 256 KiB pieces, by default, each one of which has its own hash.
Unless you never share a whole block with someone, you can easily prove it wasn't just random data that someone sent you. Instead, there are hashes of each block (typically 256KiB, I've never seen one using 10KiB blocks), as well as a hash for the whole thing.
Given the mathematics of hash collisions, if you can prove that you got the entire block from a single source and you can prove what the contents of the entire torrent are (e.g. you've downloaded the whole thing), you can be sure that they were sharing pieces of a given work.
And even if you don't share a whole block, I can get that block from someone else, then I can prove that you sent me X bits out of that block and that they match the one in the torrent's hash (e.g. they're not random bits from nowhere). And outsider to the torrent might not be able to figure that out (especially for encrypted torrents), but if you're uploading to my machine I damn well know what you just sent!
After all, there's a reason for this! The RIAA & MPAA hire people to 'poison' torrents by seeding random, bad data. Their fake seeds get banned by clients who are smart enough to kick out everyone who has too many hash failures. Because torrent users need to be able to tell fake data from real data for integrity purposes, the MAFIAA will be able to figure out that they actually downloaded real data from some random person in the torrent.
Given a limited pool of seeds and peers in most real world cases, you're not going to see people transfer just a few bytes to each other, either. A 3 MiB song will only get split into 12 pieces by default. You'll have a hard time finding a torrent with 3,145,728 seeds so that you can download a single byte from each one (and I don't know if you can even convince the seeds that you only want one byte). There aren't that many torrents with even 10,000+ seeds, after all, though such things do exist.
That said, I think you're right that we have to worry about RIAA shenanigans. But I don't think that any court which understand BitTorrent is going to say that it's not infringement to share copyrighted works over the protocol simply because you only transmit bits and pieces. I don't know how the courts will justify it, mind you, but I'm sure they'll make one up if they have to. If I had to guess, they'd use civil conspiracy laws or something crazy like that, because the Feds like to use criminal conspiracy charges against pirates. But that's just this non-lawyer's guess.
Mind you, I wish we'd find a more sensible way to deal with piracy, but I don't expect too much sense out of the courts when our laws are this far out of whack. The judges are right not to want to make law, even though Congress is far too incompetent to make IP laws properly.
- I Don't Believe in Imaginary Property
> Thank you for the additional info on bittorrent - i just note that in some P2P systems, such as emule, it is certainly possible to get provable small chunks from a user - even as small as a few bytes in theory - much smaller than the bittorrent effective minimum.
Well, I think it's true that if you got something small enough, it might be difficult to prosecute. Though I believe that you'd have to offer some kind of alternate explanation for why your computer transmitted those bytes to satisfy the jury, given what we saw in that $222k judgment case (which the judge is wisely reconsidering).
But I don't think it will matter too much in practice, because they don't usually bother to download anything at all (!?!) before sending DMCA notices over BitTorrented material. That's right, they just DMCA all the IPs they get from the tracker, as was proven in a recent story.
I don't know that they take those cases to court, however, so they might not bother because they have no intention of going to court on those cases. Who knows? I do know that we won't really know anything unless their processes are examined during discovery, though. I don't trust their code even one tiny bit.
That said, if you can get a jury to rule against someone with no copyrighted information on their HD, just based on the reports of a secret program that may or may not be more complex than perl -e "print 'Infringement detected!\n';" I don't have much confidence that they can't prosecute BitTorrent users. Especially not when the protocol ensures the integrity of the data like BitTorrent does.
Mind you, I say this as someone who is not a lawyer and who strongly believes that our laws need to be made more sensible. I just don't want people thinking that they can get away with infringement via some clever scheme, when I'm reasonably sure that most judges would use any such scheme as evidence that you intentionally infringed upon copyrights and throw the book at you.
If a jury found an innocent woman responsible for infringement, what hope do the guilty have? This is why we need to reform the law.
- I Don't Believe in Imaginary Property
The RIAA and MPAA admitted publicly a couple of months ago that their lawsuits are losing them many millions every year. They have always lost a lot of money, on average. So money directly from lawsuits cannot be their actual intent, even though they have also stated publicly that they are suing over the issue of "lost revenue".
> Nope, that's impossible. If you're uploading at a faster rate than you're downloading, you would be uploading data you have not yet downloaded.
Wrong. I'd be sending the same bits of the file to more than one computer.
If you have one lone, slow, seed with lots of peers trying to download from it and you have a decent connection, you can easily have a ratio greater than one while waiting for the seed to finish seeding a complete copy. This scenario is common enough, in fact, is the entire reason for the "initial seeding" mode found in some torrent clients.
While you're correct that many lines are asymmetric, that still doesn't come into play unless you're downloading faster than you're uploading. You may be used to large torrents where you can peg your connection (and those certainly do exist), but with small ones, you won't be able to download anything all that fast. It's perfectly possible to get stuck with a slow download when there's just one seed. If there are enough peers, your upload should be more than enough to outmatch whatever pathetic connection the lone, slow seed has.
In other words, I know that you are incorrect from experience, because I have done this.
Finally, I should point out that while you download random, comparatively rare blocks with BitTorrent, your computer is very capable of knowing where the pieces fit together. You often get the entire block from just one source, and blocks are contiguous. That is, the bits inside them are one solid piece, rather than being randomly distributed throughout the file. If they weren't, it would take a lot more data to know where to put those bits and nobody wants to add overhead like that.
> Show me one case that holds the sharing 32 seconds of a song constitutes infringement and I'll agree
I can do better. Here's a finding of infringement for a few notes:
Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177 (1976)
Silence has also been copyrighted. You can't make this stuff up. The laws are so bad, I don't put anything past the courts these days.
- I Don't Believe in Imaginary Property
Seriously.
Every time one of these cases gets close to actually reaching a decision - the RIAA bails. Everyone knows why.
When is a judge going to know why and force the RIAA to lie in the bed they've made?
When will "making available" actually be tested to its conclusion in a court of law?
We all know why the RIAA doesn't want to - it's obviously bogus. I'm sure there are judges out there that know it too. Is there anything a judge can do to force the issue and demand the RIAA keep playing?
If it is essential that the threat to sue must be "in good faith" or else its extortion - isn't bailing every time you get near a decision a clear determinant of them not operating in good faith?
Can a judge do more than simply dismiss with prejudice?
Weaselmancer
rediculous.
Extortion via threatened litigation.
It can get a lawyer disbarred.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
forget where they threw their towel...
That's why users should buy something which is sufficiently secure and dumbed down so that they DO understand what's going on and how to use and control it. Or they should require more guarantees from the supplier of the software.
I get it that you are responsible for your property. Not only in a sense "I'm protecting it against damage so that I do not have to spend effort on repairs or replacement" but also in a sense "if they malfunction and damage something or someone I'm responsible".
Example: If I have a driver license in Slovakia and I have a car at my disposal (presumably for driving it) I'm obliged to make sure that no inappropriate person can get the car from me and drive it (inappropriate = without a drivers license, under age, drunk, ...). That ussualy means I'm not leaving a car unattended, open and with key in ignition.
So yes, I can try to argue that "I did not know that he would be able to drive away when I leave key in ignition - I closed the door, that should be enough". I think that wont help me.
But if I do close that car and take the keys and somebody break into it - that's quite sure not my fault. It's the fault of bulglar along with all the subsequent damage.
Or if the door and ignition is incorrectly designed or manufactured and allow some uninvited guest in even if I lock the car and take the keys. Then I can use a guarantee and "shift" the blame and responsibility where it belongs - to the manufacturer.
That means, I'm trying to avoid any car whose for example locks and doors do not work properly. Yes, it may be cheap or great atherwise but it would pose quite a big risk to me. :)
Sad thing is, software is not like "real" (tangible) stuff:
So I would like to repeat...
People who use computers should not buy the software just because of ussual justifications (I want to write an email, Because everybody has Windows, ...) but should demand also that it is of sufficient quality (performance, security, ...) and that guarantee is provided if the quality criteria are not met. So as to protect themselves when their computer cause some damage to something or somebody because of faulty or inappropriate software.
So that's all for another car analogy. :)
hany
I'm afraid that one course wasn't so... electronic, nor was it part of my major. In fact, we didn't discuss copyright law or the RIAA at all (it was taken before all that). Heck, I should be glad to remember anything given how long ago I took it...
:)
:-)
I learned plenty about how the appeals process works, though! Most of the class was focused on how a case could get shuffled around the court system, if there were some hypothetical case in state court that was appealed to the state court of appeals, then the state supreme court. Or maybe it was removed to federal court, went through the federal appeals court and then to the Supreme Court.
Or maybe it was one of those rare types of cases listed in the Constitution where the Supreme Court has original jurisdiction because it had to do with a treaty or something.
And of course, there are all the special courts, like divorce court, or patent courts or tax courts and that.
So it won't be too useful vs. the RIAA unless they actually appeal cases instead of fleeing from them
Well, okay, I guess I know that the federal courts have original jurisdiction over copyright claims, so you can't sue for those in state court. And I know a little bit about how you decide if someone has enough contacts with a state to be sued there (though cases over things done online seem nearly to offer the plaintiff their choice of venue under some current case law I've seen!).
And I guess I know the difference between a ruling being vacated and reversed...
This means I'm overqualified to play lawyer on Slashdot, though, right? I think I need more +5, Funnys for that...
- I Don't Believe in Imaginary Property
Of course, reasonable interpretation is necessary. If you put KaiserChiefs-Ruby.mp3 in your public folder of a limewire machine, is it reasonable to assume that you have put it there for your own use? Of course not. If you put it in a non-advertised publicly accessible folder that is password protected? then yes. Reasonableness matters.
That argument assumes that it is reasonable to expect anyone who owns a computer to know: 1. How to set a password on a folder, and 2. That the folder was public in the first place.
You only need to look at wireless accesspoints to see that this assumption is invalid.
Comment removed based on user account deletion
I think the RIAA is pulling a fed.
Remember how the EFF and the NSL case got pulled before the court could make a "case law definitive" ruling on the matter? Thanks to withdrawal of complaint, the legality of the NSL itself was never actually challenged in court, sparing the federal government a most likely embarrasing defeat in the form of legal precedent.
I see parallels here...maybe the RIAA is scared the judge will hand their ass back to them after sharing it with the uptillion other judges who would use such a precedent to smack the RIAA in other cases.
This is hardly throwing in the towel...things are going south and the RIAA is just pulling the plug themselves before it gets its ass kicked even harder from the judge pulling it for them.
The analog hole must be plugged. Reality is analog. Therefore, reality must be plugged.
Actually, according to quantum theory and other branches of Physics, reality is digital. Even space and time have minimum, discrete sizes.
What is with all the snarky comments? Why are you being such a jerk to everyone here. You are acting like a five year old.
If we were talking about, say, history or science instead of matters of law, how would you treat somebody who entered a conversation and wrote "germany won world war 2" or "gold is a gas at room temperature" and then proceed to make all sorts of conclusions based on this and actually try to TEACH people this bad info? You'd get pissed off at them for not doing the most basic research and simply pulling things out of their ass. So many posteres here do the same thing. Just like there are, within reason, historical and scientific facts, the law actually does exist and has meaning. It's one thing to say "I don't understand how it works." It's another to just be plain wrong to the point where it is clear that you haven't done ANY basic reading on concepts such as "fair use." It's no more "snarky" to point out the absolute ignorance of such people than it would be to point out that creationist "science" is nonsense.