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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.'"
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
I know this is slashdot and all, and most people don't RTFA, but did you even RTFS (Summary) ?
The defendant filed a motion to dismiss, before the judge ruled on it, the plaintiff (RIAA) filed a voluntary motion to dismiss the case.
This means the case is over.
Just because you're paranoid, it doesn't mean that they're not out to get you.
Not to mention that in order to get the name of the defendant the RIAA had to file a "John Doe" criminal suit, which was dropped after finding the name of the defendant. In other words, a fishing expedition all the way around.
FTA:
The notice states that the dismissal is "without prejudice". However, Fed. R. Civ. P. 41 (B) states "if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." It is believed that the plaintiffs learned of the defendant's identity through a prior, "John Doe", proceeding, which it also voluntarily dismissed, so that the dismissal in this case "operates as an adjudication on the merits".
No, both broke the law, just Denise was impossible to track (legally). Now, so is Charlie.
First, I'm an attorney who concentrated in IP law.
Second, there will never be any law that holds that a bit of data could constitute copyright infringement anymore than copying one note could constitute copyright infringement. Neither bits nor notes are copyrightable because neither could be considered an original work.
If someone says he and his monkey have nothing to hide, they almost certainly do.
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.
No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.
Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers. Charlie rips a song from a CD and makes an MP3 of it (perfectly legal, though the RIAA would like for it not to be).
Contrary to popular opinion, the legality of ripping files is not a given. I don't have the text in front of me, but I recall the legality being hinged on judicial interpretation of several seemingly obvious, but legally fuzzy terms (such as "home audio recording device," and whether or not said term includes computers).
Charlie then places that song in his "Shared Files" folder (still perfectly legal).
Still questionably legal. This is the (untested as far as I know) act that the RIAA is trying to get labeled as inducement or contributory infringement. The idea is that, but for Charlie making it available for Denise to download, no infringement could have occurred.
Denise downloads the song--it's only at that moment that anything illegal was done, but it is Charlie, not Denise, who has broken the law.
Nope, they both have. Charlie and Denise have both infringed the reproduction and distribution rights of both the song writer and the recording artist. The RIAA has been choosing to sue only those who are making the tracks available (probably either because they think it's the cheapest way to get their message across, or because they haven't figured out a way to nail the downloaders without stirring up entrapment charges), but could go after both.Note: this doesn't mean that I think the RIAA is right, this is just my take on the system as it stands today. Personally, I think a major overhaul is in order. One that doesn't include all of the stupid special interests that bought their way into the current system.
That's right, I read at +2 and post at +1. Not even I care what I have to say.
> they throw in the towel to avoid precedent being established.
Exactly right.
By throwing in the towel here they think they are free to play this hand at another table. Avoiding a ruling was more important to them than simply losing this round.
TFA implies this may not be the case, and the dismissal may attach prejudice on any subsequent (or concurrent) claims against other defendants that are substantially similar.
IANAL, but would like to see one weigh in here with some professional observations.
Sig Battery depleted. Reverting to safe mode.
Yeah, sorry but that's not right. Copying copyrighted material is a violation of U.S. law (without a license).
The rights of a copyright holder are listed in 17 USC 16:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(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
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Being a computer scientist means you tell people how computers should work, not that you know how they actually work.
There is another organisation that employs similar tactics against copyright infringement: scientology.
They were about to lose a(nother) case against a dutch ISP (xs4all.nl) that was hosting Karin Spaink's website and were denied to withdraw. And lost.
See http://www.xs4all.nl/~kspaink/ for more information.
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.
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?
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Between the now Pro IP Act and the Anti-Counterfit Agreement, they wont need to care about lawsuits anymore.
"You are not an attorney, and you do not concentrate on copyright law. I am calling absolute shenanigans, since you are flat out lying."
I am, I did, I never said I do, I don't care what you call it, and I'm not.
"you just happaned to distribute some tiny portion... this could be seen as copyright infringement."
I think the problem you have is that you don't understand how systems such as bittorrent work. When you share data on bittorrent, you're not sharing sequential data. Thus, unless a lot of data was shared, it would be impossible to prove that the nearly random data you've shared was a part of an actual song.
When you download from bittorrent, you're immediately sharing. However, since you're downloading from many computers you're downloading faster than you're uploading. Combined with the fact that you cannot share what you do not have, when the download is complete, you're necessarily going to have shared less than what you've downloaded. 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.
Let's take a real world example, Let's say you download one 4MB MP3 from bittorrent. You download it from 100s people and some of those people start sharing from you. Let's say during that download you uploaded one forth of it, thus you've uploaded one non-sequential megabyte. However, because you shared it across 100 or more people, that one non-sequential megabyte has to be divided into at least 100 non-sequential parts. That means that each person you shared with got about 10KBs of data each. Do you really think that someone could determine a song based on 10KBs of non-sequential data? Really? The answer is "no," you cannot. And that's why the RIAA is making this ludicrous "making available" argument.
If someone says he and his monkey have nothing to hide, they almost certainly do.
First, the United State Supreme Court held in DOWLING v. UNITED STATES, 473 U.S. 207 (1985) that copyright infringement is not stealing and is not even analogous to stealing. That does not mean infringement is legal, it only means it is not theft.
Second, I think sharing a part of a song without permission of the copyright holder could be infringement, ignoring any fair use arguments or the like. I've not seen any case law to support that, however.
My point is that the "making available" argument is infinitely easier to prove than the actual infringement argument. And furthermore, that under the current P2P systems available, that actual infringement will be nearly impossible to prove.
If someone says he and his monkey have nothing to hide, they almost certainly do.
Ray Beckerman +5 Insightful
The most recent caselaw is that copyright defendants are presumptively entitled to attorneys fees where the case got dismissed by the plaintiffs who "threw in the towel".
Ray Beckerman +5 Insightful
Secondly, how does it hurt the defendant for the case to go away? Answer, it doesn't.
The only question is whether or not attorneys fees will be sought. But that is a totally separate issue.
Ray Beckerman +5 Insightful
The RIAA has been choosing to sue only those who are making the tracks available (probably either because they think it's the cheapest way to get their message across, or because they haven't figured out a way to nail the downloaders without stirring up entrapment charges), but could go after both.
A private entity acting in its own interest can not stir up entrapment charges. That is a charge that is specifically limited to government operators and crimes. As for downloaders, the fact that no one has ever gone after a single downloader, nor any uploader with huge numbers of illegally downloaded songs for downloading means it is allowed. They may change their minds later, but for now, they lie in commercials (downloading is illegal and we will get you) to scare people, but don't want to test the waters to see if anyone could possibly beat the charge. Hitting only uploaders and trying to keep all settlements out of court is a much safer practice. If they ever hit a downloader like me (having downloaded to get a new copy of a broken CD being the only downloading I've done of music since long before the lawsuits started), chances are they could lose the suit (I have the right to a single copy of the work and am attempting to regain that which I've already paid for). Lose one suit, and they all fail, that's why they are doing what they are doing here, sue to get settlements, harass to get payment, and drop all suits that make it to court.
Learn to love Alaska
You don't know what it means. All music in the USA falls under a compulsory license of some kind or another. That is a license system set up by law where you don't have to get individual permission for a work, but you have permission for all works if you follow the rules. Want to sell covered songs of someone else's work for profit? Then follow the steps outlined in http://cdbaby.net/dd-covers and you can. Yes, that's right, for an explicit fee that they don't get to negotiate, you can buy rights. It's essentially coded into law. Almost every country has it. It just happens that the broadcast rights in Russia include point-to-point Internet copies. And those rates are low. That the Russian law isn't what an American company would like doesn't matter. It is legal.
It is also 100% legal for an American in Russia to buy all they wanted under this fully licensed and legal process, and cary it back home in their cary on. However, one point that is not settled is whether an American can, while sitting in the USA, download a song. It is legal for the Russian to sell it and transfer it, but if the transaction happens in the US, then the US resident is breaking the law because the compulsory license they are going through only applies in Russia. However, if the point of sale is determined to be in Russia, then anyone in the US buying from those servers is 100% legal in all senses of the law, American, Russian, and international laws. It would take a Constitutional Amendment to change the US law because of current rulings on importing something to the US that was previously exported. But don't let the truth get in the way of your wife-rape fantasies.
Learn to love Alaska
Ray Beckerman +5 Insightful
adjudication on the merits = with prejudice = case cannot be brought against her again no judge can't stop them from withdrawing the case before an answer has been filed
Ray Beckerman +5 Insightful
let me do that again, this time with line breaks:
adjudication on the merits = with prejudice = case cannot be brought against her again
no judge can't stop them from withdrawing the case before an answer has been filed
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
Make that 5 judges now, as Judges Wake and Davis have come into the fold. It was especially difficult for Judge Davis, who now realizes the Duluth jury trial he presided over has to be done over, because of his having been hoodwinked by the RIAA's lawyers.
Ray Beckerman +5 Insightful
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'
The judge instructs the jury on what legal principles they are to follow. The judge gave this jury wildly incorrect instructions. The verdict has to be set aside.
How did he get the wildly incorrect instructions? From the RIAA lawyers.
How did they get him to accept the wildly incorrect instructions? By deceiving him. They (a) failed to call his attention to contrary controlling authority, and (b) calling to his attention a case which they knew had been vacated, without telling the judge that it had been vacated.
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful