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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.'"
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".
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.
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.
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.
"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.
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
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