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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.'"
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?
I believe this has already been tried ... the record industry can't use downloading by themselves or their agents to establish infringement because you cant infringe your own copyright - it's a legal impossibility.
This is what necessitates the "making available theory"
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.
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.
I remember a court case about a year ago that ruled that collection companies cannot threaten to sue (with the hopes of collecting debt without going to court) unless they actually plan to follow through with it.
I agree that the RIAA just wants to settle; nonetheless, they must take, at least, some of the people who choose not to settle to court. Also, a very practical reason would be that no one would settle because there would be no fear of more costly retribution.
And the answer is, she hasn't decided yet.
She clearly has a winnable attorneys fee motion ahead, if she decides to make one, with a lot of good recent precedent behind it, such as Rivera v. Jones, Mostly Memories v. For Your Ease, Capitol v. Foster, Atlantic v. Andersen, and Bridgeport Music v. WB Music.
Ray Beckerman +5 Insightful
-make money on the settlements
-lose money on the default judgments, and
-lose a lot of money on contested cases. Overall I think they're losing money now, but the settlements are the money-making part of it. They get almost no revenue from anything else.
Ray Beckerman +5 Insightful
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).
I'm aware of the questions there, but I'm going with MGM v. Grokster. Plaintif's oral arguments included an explicit admission of the legality of ripping a purchased CD to one's hard drive, and copying it to a media device (two separate acts, in my view). While of course a statement made in oral arguments is not a legal opinion or ruling, I think it not unreasonable to assume permission.
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.
Rejected by 9th Circuit in Atlantic v. Brennan and others, though I don't know if any of them qualify as an actual ruling of law. Nor do I know if it is a binding precedent.
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.
Hmmm ... I can't find what specific law or provision that would actually violate--if you have a citation, I'd love to see it--but it certainly makes sense the way you explain it.
If you haven't been down-modded lately, you aren't trying.
Sacred cows make the best hamburger.
So it has been a short term financial boon for some lawyers who (a) are not very particular about the kind of work they accept, and (b) won't have that work for much longer.
And it's been a disaster for the record company shareholders, and a disaster for the victims of the suits, and it's been a hardship -- albeit one assumed voluntarily -- for folks like me who decided to step into this mess to try to stop these bullies. The above "back of the envelope estimate" was from me. It didn't dawn on me that it would appear as "Anonymous Coward".
Ray Beckerman +5 Insightful