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.'"

Comments

Interesting..

[seanadams.com]

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?

Re:Interesting..

[Fx.Dr]

Something tells me they stop caring about these cases the second they make it to court. Settlement money is where it's at, baby. After all, where's the fun in bullying the Little Guy once he refuses to lay down at take his lumps?

Re:Interesting..

[TheLinuxSRC]

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".

Re:Interesting..

[dgatwood]

If that's the case, why take it to court at all? The threat of lawsuit is only a credible threat if it is backed by a willingness to actually battle it out. Every case they give up on is further weakening their cause, both by showing people that they can fight and win and by creating animosity among judges who feel like their courtroom is being abused. In the long term, they would be much better off not taking any case to court unless they are certain they can win it....

Re:Interesting..

[Kingrames]

"Settlement money is where it's at, baby."

Except that they LOSE money on every settlement!

Haven't you been following along with the stories?

Re:Interesting..

[JesseMcDonald]

I'm not a lawyer -- of course -- but it seems to me that threatening a ton of people with lawsuits in order to achieve a settlement and then never following through when the settlement is rejected would be just a bit too obvious, even for organizations like these. I doubt most courts look favorably on that sort of bluff, even ignoring the fact that only a credible threat of being sued would induce people to settle in the first place.

Re:Interesting..

[icebike]

> 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.

Re:Interesting..

[Fx.Dr]

The only incentive these guys have to take a case to its conclusion is to setup the next example in the public pillory. There's absolutely no way the legal minds (using "minds" loosely, here) leading this battle expect to receive anywhere near the amount they've been awarded. The way they see it, as long as people are settling out of court then the deterrent is doing its job. They'll continue to do so as long as a modicum of their much-eroded legal footing remains.

As another poster pointed out, these cases are essentially disposable, and will continue to be treated as such by the RIAA, as long as it help keep them from establishing precedent that doesn't swing in their favor.

Re:Interesting..

[digitrev]

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.

Re:Interesting..

[dwiget001]

Well, the judge is the final arbiter, IIRC, on *how* the case is dismissed. The RIAA is probably gonna get a bad spanking from the judge for this and other shenanigans on this particular case.

Re:Interesting..

[riceboy50]

Don't they drop the John Doe suit once they get the name so that they can open a suit against the named defendent, thus making the original suit a "fishing expedition" as the GP put it?

Re:Interesting..

[The FNP]

However, these are civil actions with different rules, i.e. whatever the MAFIAA think they can get away with.

--The FNP

Re:Interesting..

[nurb432]

And this doesn't establish a precedent in its own right?

Re:Interesting..

[digitrev]

But if they're civil actions, why are they criminal suits? Again, I could very well be wrong, but I thought that criminal and civil were two exclusive parts of the legal system.

Re:Interesting..

[Anonymous Coward]

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.

Re:Interesting..

[timon]

Not anymore when copyright or intellectual property is concerned, if certain organizations get their wishes.

Re:Interesting..

[NewYorkCountryLawyer]

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? I agree with you. I think they are trying to avoid another disaster like this one.

Re:Interesting..

[AndresCP]

But they stick it to the little guy! If you ask me, the underdog wins too much these days. Making money was never their goal. It was always to strike fear into the hearts of pirates. But since pirates are pretty good at RIAA countermeasures, they have to settle for striking fear into the hearts of children, old ladies and dead people.

Re:Interesting..

[The FNP]

True, but I am under the impression that all of the current batch of lawsuits are civil actions, not criminal charges. IANAL, but I think that is one of the reasons MediaOffender is allowed to testify, considering they are not even registered as private investigators in many of the states they are bringing suit, and they sure as hell aren't LEOs, which would mean that local AGs and DAs wouldn't have a case, since they're chain of evidence would not be solid. However, a private entity doesn't need to have a solid chain of evidence to bring a civil suit.

--The FNP

Re:Interesting..

[NewYorkCountryLawyer]

"Settlement money is where it's at, baby." Except that they LOSE money on every settlement! Haven't you been following along with the stories? Actually Kingrames, I think the GP had it right. I think they:
-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.

Re:Interesting..

[monxrtr]

That would be the quickest way to completely abolishing copyright. Once the copyright trolls are unleashed, giant media organizations, ISPs, will be bankrupted within a year, their assets confiscated, and distributed through bankruptcy courts. Nobody will be able to afford enforcement except those who have nothing to lose from putting up personal commentary copyrighted Bobby McGee .mp3 content. If you can deep packet inspect those files, you can download and analyze those file manually, on the exact same legal basis. If you can't, you've got no enforcement power.

Re:Interesting..

[Reziac]

TFA says:

'...so that the dismissal in this case "operates as an adjudication on the merits".'

Um, can we have that in English, please?

Second, can the court opt that no, "we aren't going to dismiss it just because you think you're going to lose" ??

Re:Interesting..

[NewYorkCountryLawyer]

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

Re:Interesting..

[OnlineAlias]

I'm a little surprised that you say this. Seems these lawyers work for the music industry hell bent on making sure the pressure is on file sharers, nothing more. The actual amount of money involved in the these cases is irrelevant to the attorneys or the music industry, win or lose. The attorneys fees are being paid by the members of the RIAA who have a dog in the fight much larger than this pittance, for sure. People seem to think that if they start losing money on this tactic it will stop. I can assure you, the music industry has already lost a ton of money doing this, and I am sure they don't care one bit. It is paying off in spades in their eyes.

Re:Interesting..

[NewYorkCountryLawyer]

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

Re:Interesting..

[NewYorkCountryLawyer]

I think the shareholders care.

Re:Interesting..

[somersault]

You're a great guy, NCL, and very helpful/informative (hence I'm avoiding the simple, cheeky "whoosh"), but I'm pretty sure he was kidding ;)

The claims that the RIAA make about levels of lost revenue are pretty hilarious sometimes (to those that aren't on the receiving end at least!) :)

Re:Interesting..

[CodeBuster]

The threat of lawsuit is only a credible threat if it is backed by a willingness to actually battle it out Normally that would be true. However in these cases the amount of the proposed settlement, approximately $3,000 US Dollars or so, is just low enough that simply showing up in court with an attorney would probably cost more. The settlements are rigged to be just enough to discourage court appearances, irrespective of the merits (or lack thereof) of the case, while just high enough to fund the filing of new lawsuits once an economy of scale has been achieved by the RIAA and its members. The primary purpose of these lawsuits is to generate fear through spamigation. The recovery of statutory damages is merely icing on the cake when they are able to get them.

Re:Interesting..

[OnlineAlias]

Ya, about the great job that the RIAA is doing keeping filesharing at bay. Newyorkcountrylawyer, I have enjoyed your posts on the legal details and tactics of this situation for quite some time. But if you think the actual money involved in this; win, lose, settle, "if it don't fit you must aquit" or anything else has anything to do with anything other than keeping pressure on the filesharers, you need to come to the city and realize how big these companies are. Sony BMG, a company I used to work for, could keep this pressure up for years and years, and years and years.....and years. That is, as long as the system doesn't fall apart legally, which is what the lawyers are really trying to prevent here.

Re:Interesting..

[RobertM1968]

Add to that, they expect to be able to out-lawyer those they sue (gaining a win) or win by default judgement (the previous norm).

Sadly, they seem yet to have realized that such a scenario isnt working anymore as more people are actually fighting them, and more lawyers are willing to step up to defend them.

Re:Interesting..

[Reziac]

[grin] Slashdot does have a formatting mind of its own sometimes, eh?

Thanks for the info. I gather the converse applies, that if an answer had already been filed, the RIAA could have been prevented from withdrawing -- by the judge or by the defendant?

Wouldn't THAT be entertaining...

RIAA: "No, no, we didn't really mean it! let's all be friends again!"

Judge: "No, you stand right there and let the defendant hit you, since you hit them first."

("He was going to hit me, so I hit him back first." -- Billy Martin, explaining how a fight started)

Re:Interesting..

[aurispector]

Is there a back-of-the-envelope estimate of the number of settlements and the average amount per settlement? What a racket!

It seems like they lose on crucial points whenever they go to trial. This business can't continue forever and they're probably just making money while they can. Unless the law changes (which it might) they have to reach a point of diminishing returns at which time the lawsuits will end.

IIRC one of the big four dropped support (EMI?) for the RIAA. Would that mean that the RIAA can't continue to sue over EMI (or whomever) copyright infringements?

Re:Interesting..

[Max Threshold]

Isn't barratry a crime in most jurisdictions?

Re:Interesting..

[Torvaun]

There's also a much lower bar to getting a verdict against the defendant. There's no "innocent until proven guilty" there, there's no "beyond a reasonable doubt". So, use a criminal suit to figure out who you're supposed to be suing, drop it for lack of evidence or whatever, then bring out the civil suit.

Re:Interesting..

[Gazzonyx]

Yeah, but they're trying to make it up on sheer volume :)

Re:Interesting..

[Daffy Duck]

If they kept threatening to sue but never followed through it would be extortion, which is itself a crime. So they have to go to court occasionally to keep "clean".

Re:Interesting..

[NewYorkCountryLawyer]

My back of the envelope guess is that they've gone after around 40,000 people, of whom around 10,000 have settled, at an average of $3000 per settlement, for a total of $30,000,000 over 5 years, or $6 million per year. And I'm guessing on back of the same envelope they were spending around $6 million per year to do it, for the first 2 years, and for the last 3 years have been spending more like $15 million per year.

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".

Re:Interesting..

[NewYorkCountryLawyer]

Ya, about the great job that the RIAA is doing keeping filesharing at bay. Newyorkcountrylawyer, I have enjoyed your posts on the legal details and tactics of this situation for quite some time. But if you think the actual money involved in this; win, lose, settle, "if it don't fit you must aquit" or anything else has anything to do with anything other than keeping pressure on the filesharers, you need to come to the city and realize how big these companies are. Sony BMG, a company I used to work for, could keep this pressure up for years and years, and years and years.....and years. That is, as long as the system doesn't fall apart legally, which is what the lawyers are really trying to prevent here. I'm aware they are a mighty foe. Their saving graces are that they are (a) managed by morons, (b) under a hypnotic spell induced by their lawyers, and (c) dying rapidly.

Re:Interesting..

[NewYorkCountryLawyer]

You mean I missed it again?

What kind I say? I'm slow on the uptake.

Re:Interesting..

[Mathinker]

Just curious --- were your estimates for the expenses ($6M x 2 yrs + $15M x 3 yrs) also including payments to MediaDefender and other payments over and above the cost of lawyers (and court fees)?

Re:Interesting..

[Lunarsight]

I wouldn't let them throw in the towel.

I'd toss the towel back at them and make them wait for the official ruling.

They shouldn't be allowed to escape the inevitable precedent that would likely be created.

Re:Interesting..

[aurispector]

I don't think they need a huge amount of staff to do this, but you can still burn through $6M a year pretty quickly if that's the sole source of income.

I'd still like to know about the EMI thing I mentioned previously. Any ideas?

Re:Interesting..

[ratboy666]

Ray

My understanding is that IF a case has been withdrawn that was based on the same matter as the case in question; the case then brought cannot be withdrawn without adjudication. So the judge can award costs?

Of course I don't live in the USA, so I may be totally off-base here.

Re:Interesting..

[mstahl]

Which of those steps is "PROFIT!"? Seriously I want to know why this nonsense continues.

Re:Interesting..

[sjames]

What they are threatening is a big time and energy sucking hassle. They back that by actually dragging people to court and going through the motions right up to the point that things turn against them. Then they drop it having easily cost the defendant more in personal hours invested than the settlement was worth.

To get attorney's fees out of them, they drag it out even more. The objective isn't to win in court (they probably know they can't), the objective is to use the court as a bludgeon to extort the "reasonable settlement fee" out of people without actually setting a precedent that could hurt them.

Expecting judges to not lash out at them is a matter of inflated ego and not realizing that such abuses can only be gotten away with a dozen times or so before even the imminently abusable U.S. courts start to get wise. Most abusers only do it once or twice for the same client before they move on.

About time.

[jeiler]

Of course, all this means is that they will seek another legal tack. Watch out for MediaSentry downloading files to establish "distribution."

Re:About time.

[entmike]

Wouldn't that mean that MediaSentry would be in violation of copyright itself?

Re:About time.

[TibbonZero]

I've wondered that too. Can you get a "pass" or something to say that you're just "researching" potential piracy?

Re:About time.

[terrymr]

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"

Re:About time.

[Darkness404]

But if MediaSentry is the RIAA or has been authorized wouldn't that make them have the rights to the copyrighted material? Its the same idea on how you can pay $.99 and get the rights to download a song off the web. If the RIAA says "you can download any RIAA song" then no, it wouldn't be a violation of copyright because they have a license given by the RIAA that lets them do that.

Re:About time.

[jeiler]

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). Charlie then places that song in his "Shared Files" folder (still perfectly legal). 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.

Re:About time.

[jeiler]

Ooh, that does make it interesting. So as long as Denise (in my example above) is not a MediaSentry employee, then the law was broken, but it cannot be tracked. If Denise is a MediaSentry employee, no law was broken.

I think I just had a geek legal-gasm.

Re:About time.

[s.bots]

But that is similar to a police person taking a 'girl' out on a date, drinks, home for sex, then offering to pay for the sex and arresting her when she refuses and claims that is not why she dresses up nicely, and didn't know it would attract that kind of attention. What?

Re:About time.

[Duncan Blackthorne]

I'd have to say no. If you're an author and are writing a book about the problem of child pornography, it's still illegal for you to download and/or posess child pornography, for instance.

Re:About time.

[Anonymous Coward]

No, both broke the law, just Denise was impossible to track (legally). Now, so is Charlie.

Re:About time.

[digitrev]

But what happens when they grab the first non-RIAA song that was mislabeled? Or worse (for them), what if they forget to turn off their file-sharing and end up sharing someone else's song?

Re:About time.

[seaniqua]

I'm going to have to disagree with that analysis (IANAL, but I am a law student who is interested in practicing in copyright, so I have a little knowledge on the subject). (Before we get started, I have to say that I am not licensed to practice law anywhere, and this is not legal advice to anyone who may be reading this)

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.

Re:About time.

[Darkness404]

Well, they can always plead that they didn't know that it was an RIAA song which would be really great for the rest of us because if the judge lets them it creates precedent that lets us use the same defense. If they share someone else's song... Most wouldn't care. Sure if they got caught they would sue them but really it is only the *AA that tries to keep a dictator-like hold on the songs they license.

Re:About time.

[exley]

Depending on what's being downloaded from you, you'd better keep those logs encrypted unless you want to be *helping* their case for "making available." :)

Re:About time.

[tony1343]

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.

Re:About time.

[Neeperando]

Can you get a "pass" or something... I think they have a word for that... oh, right, it's "warrant".

Re:About time.

[psxman]

BadAnalogyGuy, is that you?

Re:About time.

[TibbonZero]

And MediaDefender has one for everyone's computer in the world? A warrant has to specific property/location.

Re:About time.

[UncleTogie]

Charlie does not know if Denise is a MediaSentry employee, and therefore may not make the file available to her.

...which could leave an interesting loophole...

If you require all music downloaders at your site, before downloading, to check a box that states "I hereby state that I am a MediaSentry/RIAA employee/contractor, and assume responsibility for affirming as such", could that get you off the hook?

Re:About time.

[Cajun Hell]

Wouldn't that mean that MediaSentry would be in violation of copyright itself?

Not if they have authorization from the copyright holder.

Re:About time.

[Anonymous Coward]

What if Denise actually owned an original of the CD but she was downloading a MP3 of it instead of ripping her own copy because it was easier?

Re:About time.

[Jarjarthejedi]

Hang on a second, either you mispoke, or were just to vague. I don't think any legal system would have it be illegal to copy any copyrighted work, but then allow "reproduc[ing] the copyrighted work in copies or phonorecords". Maybe it's just two different definitions of the word copy?

Re:About time.

[Neeperando]

Well, obviously not. My point was that the idea of getting permission to do something that was previously illegal in the interest of enforcement exists. The irony is that MediaSentry (presumably) doesn't have that. It appears that, once again, what I thought was a slyly worded joke turned out to make me look stupid instead.

Re:About time.

[JeanPaulBob]

...which could leave an interesting loophole...

If you require all music downloaders at your site, before downloading, to check a box that states "I hereby state that I am a MediaSentry/RIAA employee/contractor, and assume responsibility for affirming as such", could that get you off the hook?

That depends. Do you think you can tell that story (with a straight face) to a judge, without him smacking you upside the head for being cute?

Re:About time.

[UncleTogie]

That depends. Do you think you can tell that story (with a straight face) to a judge, without him smacking you upside the head for being cute?

Considering what the RIAA has been getting away with saying in and out of court...

Why not?

Re:About time.

[Dhalka226]

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.

Do you have a court decision to back this up? It sounds completely backward to me.

Copyright protects, among other things, an entity's right to control distribution. If I download a song from you, you're the one distributing it, not me (ignoring things like bittorrent where I may be both uploading and downloading). Without permission to have distributed it, it seems to me that's copyright infringement even if I were authorized to distribute that exact same thing. In that scenario, I am not in the distribution role.

If MediaSentry was trying to do some sort of "sting" where they offered copyrighted materials and then tried to bust people who downloaded them, then the point would be more applicable--except that they'd have to make a bit of a legal stretch to get that one to court. (Not that it hasn't happened before; "a copy in RAM is a copy" has to be one of the worst decisions ever.)

Re:About time.

[AmberBlackCat]

My guess is then everybody's P2P client would identify itself as an RIAA client and get the file, but then the RIAA would start suing people for claiming to represent the RIAA and try to get awarded hundreds of thousands in damages for each case.

Re:About time.

[Crunchie Frog]

Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers.

OK... so... why not just use "Alice and Bob"? Geez. More names I have to remember. Alice and Bob have a full schedule these days doing encryption and key distribution examples. Also their rates are very high.

Re:About time.

[marnues]

But then there is no copyright infringement. The owner of the copyright can't grant permission to the downloader but not the uploader. That makes no real sense outside of trying to screw the uploader, which I hope our court system is able to see and disallow.

Re:About time.

[JeanPaulBob]

Ah, but you're just an individual. Not likely to get away with as much.

Re:About time.

[AK Marc]

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.

Re:About time.

[gnasher719]

I'm going to have to disagree with that analysis (IANAL, but I am a law student who is interested in practicing in copyright, so I have a little knowledge on the subject). (Before we get started, I have to say that I am not licensed to practice law anywhere, and this is not legal advice to anyone who may be reading this)
No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you. You should at least have read a few of the recent court decisions, and you would have noticed that while the RIAA successfully managed to bamboozle a judge into thinking this was the case, the same judge later realised that the RIAA was knowingly misrepresenting what the law says. Allowing someone else to download from you is _not_ illegal (as long as no downloading actually happened), unless you offer the downloads for distribution (for example, offering downloads to a record store) or for public performance (offering downloads to pubs playing the music in public).

Re:About time.

[geekoid]

Read the copyright law. It's the distributors that are in violation. It's very clear.
There is good reason for this. Lets say you bought a microwave, and then it was found out the the company that makes the microwave violated copyright law by not have authorization to distribute the firmware.
Should YOU be sued for their copyright violation?

Re:About time.

[monxrtr]

They are already liable for trillions of dollars in copyright infringement statutory damages from copying and uploading files in torrents that are not their copyrighted works. One "rogue" DA can destroy the RIAA and MediaSentry with ease, merely by using the bought copyright laws against those enforcing them. You can't deep packet inspect, you can't check "hashes", without by definition copying bits.

Just watch how the PRO-IP Act ends up being self decapitation for the big content industry. We will elect some such "rogue" DA in a city(-ies) to be named at a future time. Fuck wasting time and money lobbying Congress. There's big fortune, fame, and political power to be had from taking down the music industry. Eliot Spitzer's career as New York City DA paved the way. The internet operates in every jurisdiction. "Hello, my name is DA Inigo Montoya. You sued my father. Prepare to be bankrupted."

Re:About time.

[jeiler]

Snippage has occurred.

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.

Re:About time.

[gnasher719]

Copyright protects, among other things, an entity's right to control distribution. If I download a song from you, you're the one distributing it, not me (ignoring things like bittorrent where I may be both uploading and downloading). Without permission to have distributed it, it seems to me that's copyright infringement even if I were authorized to distribute that exact same thing. In that scenario, I am not in the distribution role. It is copying, it is not distribution. When a copyright holder has the right to control distribution, it means they have the right to decide for example who can sell their software or records or books and who can't. If you give or offer copies to a distributor, that is illegal. But MediaSentry is not a distributor, so that doesn't count, and they are allowed to receive copies, so the copying doesn't matter either. A record store, or a bookshop, or Amazon, they are distributors. Normal end users are not.

Re:About time.

[monxrtr]

Yes, this is exactly correct. If the RIAA thought they had a solid case against uploaders, they wouldn't have chickened out of this "making available" case. The settlements work on pure bamboozlement and fear, not solid legal foundation.

Re:About time.

[jeiler]

[0] Only one (Capitol v. Thomas), and that's come under severe criticism (Atlantic v. Brennan, among others).

[1] Because they're tired from all the encryption and decryption.

Re:About time.

[jeiler]

And copying would violate provision (1) of that list. Thanks for the correction. :)

Re:About time.

[jeiler]

GP is listing the rights of the copyright owner, rather than explicitly listing what it would be illegal to do.

Re:About time.

[UncleTogie]

...but then the RIAA would start suing people for claiming to represent the RIAA and try to get awarded hundreds of thousands in damages for each case.

...and just how would the RIAA propose to determine that someone has made such a claim without the RIAA having access to the "infringing" server? Even with, there's no legal requirement to log visitors and their preferences in the US that I'm aware of...

Re:About time.

[NewYorkCountryLawyer]

Only one (Capitol v. Thomas), and that's come under severe criticism Even from the judge who was responsible for it.

Re:About time.

[monxrtr]

It's impossible to know what the contents of a file actually are before you download the file and listen to it manually, OR EQUIVALENTLY, before you copy the bits into a hash detection or deep packet inspection program automatically.

Please check this file for copyright violations. I am not an omniscient expert on all content which has been copyrighted. You could be being ripped off! So please, check these files, before you wreck these files. Investigative purposes only. If you do not own the copyrights to this files, you must destroy it after verification. This is not an authorized distribution. This is for educational and discovery legal purposes only. All rights retained by their respective owners.

Re:About time.

[zappepcs]

No, apparently I'm REALLYBadAnalogyGuy today... Blame it on Canada!

Re:About time.

[RobertM1968]

As an agent of the RIAA, I do not believe they would be in violation of the copyright. The copyright holder can assign whatever rights they want to anyone (unless it violates a contract with the artist - which is unlikely, as I am sure their contracts give the copyright holders near exclusive control). Keep in mind, they've already apparently been given permission to seed various torrents with songs to use to later catch people distributing them.

Now, as for MediaSentry simply being able to d/l stuff to prove distribution, I dont think that would fly for a couple reasons... they are not cops (*they* cant put together a sting operation), and since they would have to have already been given permission from the RIAA so as to not violate copyrights, then there were no songs in that evidence that was downloaded by anyone who isnt allowed to download such.

And most importantly, I am neither a cop nor a lawyer, so these are all just my guesses... whether reality - or the law (or both, where they coincide) agrees, I dont know. ;-)

Re:About time.

[reidconti]

but legally fuzzy terms (such as "home audio recording device," and whether or not said term includes computers). Really? If the computer is a Device in my Home, and I am using it to Record Audio, I wonder how computers could possibly fail to qualify.

Re:About time.

[NewYorkCountryLawyer]

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.

Re:About time.

[mrchaotica]

If the RIAA says "you can download any RIAA song" then no, it wouldn't be a violation of copyright because they have a license given by the RIAA that lets them do that.

And then, by exactly the same argument, they'd be again unable to prove copyright infringement because none occurred!

Re:About time.

[mrchaotica]

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)

I'm not even a law student, but I don't think that's entrapment. Either the RIAA-affiliated entity that would be making the tracks available would be authorized to do so, or it wouldn't. In the first case, no infringement would have occurred because the downloader would have implicit permission to copy. In the second case, the RIAA-affiliated entity would be liable for copyright infringement itself, and I would hope a judge would take a dim view of a hypocritical action like that.

Re:About time.

[easyTree]

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).

Phew, it's lucky that noone gives a flying fuck what the law says otherwise people would feel as though their moral rights had been infringed-upon.

When the law differs substantially from what the majority of people feel is right (in this case that once you've bought some overpriced CD, having the right to listen to the contents using any of your audio devices) one can't help but come to the conclusion that the law is no longer something which exists to arbitrate amongst people (such as the convention that everyone drives on the same side of the road) but rather the means by which some minority exerts its will over the majority.

Under these circumstances, the appropriate and moral thing to do is for the majority to ignore the law and behave as their moral compass instructs - until the law is once again in-tune with the majority and no-longer a business tool.

Re:About time.

[easyTree]

BadAnalogyGuy, is that you?

Nope, but BadAnalogyGuy taught him everything he knows.

Dude. Use a car analogy like everyone else, ffs!

Re:About time.

[Okind]

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.

You're probably only thinking of the United States (given it's about the RIAA). But we all know who paid for the law there -- and why copyrights were extended retroactively (illegal in most countries) when the copyright on Mickey mouse was about to expire...

In other countries, downloading copyrighted material isn't necessarily illegal. Here in the Netherlands for example, downloading is perfectly legal. We even pay for it: there are levies on blank media, paid to the copyright holders via "Stichting de Thuiskopie". So for me, only Charlie has broken the (Dutch) law. Denise paid for her download via the levies on blank media.

Re:About time.

[Pranadevil2k]

Wait - does that work? If a federal judge presides over a case and comes to a ruling, then changes their mind later they get to redo the whole thing? I can't possibly be reading that right ._.

Re:About time.

[rugatero]

If I may play Devil's Advocate, it could be argued that a computer which is making one-for-one copies of the bits that make up an audio file, rather than capturing the audio in real time, should not be regarded as 'recording audio'.

Re:About time.

[NewYorkCountryLawyer]

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.

Re:About time.

[jeiler]

Start here and read until enlightened.

Re:About time.

[stinerman]

That's not likely a valid contract. That'd be like writing on a check to a creditor something along the lines of "by accepting this check you agree to reduce my APR to 0% and increase my credit limit to INF."

Re:About time.

[Crazyswedishguy]

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. Wouldn't this make any playing of copyrighted music on the street be a violation of U.S. law? Lawn parties, etc. included?

Re:About time.

[jeiler]

To the best of my understanding, it would only qualify as estoppel if:
* Plaintiff's counsel was actually in error regarding his statement.
* The court holds that, even though plaintiff's counsel was in error, the statement was authoritative enough to be a release of rights.

If those two conditions are true, and MGM attempted to sue someone for ripping files from a purchased CD to a hard drive, statements by MGM's counsel in MGM v. Grokster would probably qualify as estoppel on the new lawsuit.

Now, by that same token, no other rights have been surrendered. If I borrow a CD from my neighbor and rip the files to my hard drive, I have violated copyright law, and the statements made during MGM v. Grokster offer me no protection whatsoever.

Sorry this answer is so confused: estoppel can be a confusing topic even for a lawyer, of which profession I am not. :D

Re:About time.

[AmberBlackCat]

They could set up their own server with files only allowed to RIAA affiliates.

Oh Boy!

[Dyne09]

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!

Re:Oh Boy!

[wattrlz]

Maybe not. Since they didn't give the judge time to rule on it there's no legal precedent set and they can bring the same suit against someone else tomorrow if they so choose. They'll probably keep doing that too, until everyone's either paid settlement money or learned that they don't have to.

Re:Oh Boy!

[Dyne09]

Maybe not. Since they didn't give the judge time to rule on it there's no legal precedent set and they can bring the same suit against someone else tomorrow if they so choose. They'll probably keep doing that too, until everyone's either paid settlement money or learned that they don't have to.

You really missed the sarcasm there. I was laying it on pretty thick too.

Case Law?

[anonicon]

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?

Re:Case Law?

[NewYorkCountryLawyer]

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? Good question.

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".

Come on..

[TubeSteak]

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?

Re:Come on..

[TheSeventh]

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.

Re:Come on..

[mOdQuArK!]

Can the judge reject the plaintiff's motion to dismiss the case?

Re:Come on..

[dwiget001]

To the best of my knowledge, the judge can accept this voluntary dismissal or not, he can issue his own order regarding dismissal, like "with prejudice" and the like.

Re:Come on..

[NewYorkCountryLawyer]

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? Under the federal rules, a plaintiff is absolutely entitled to dismiss its own case before the defendant has filed an answer. In this case, defendant had not filed an answer. Instead, she had filed a pre-answer motion to dismiss the complaint for legal insufficiency.

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.

Re:Come on..

[mrchaotica]

And that's stupid; it's equivalent to being handed a pink slip and whining "you can't fire me, I quit!" No, you were fired first. In the same way, this case should have been dismissed by the defendant first, with prejudice (or whatever the legal term is).

Re:Come on..

[mrchaotica]

Under the federal rules, a plaintiff is absolutely entitled to dismiss its own case before the defendant has filed an answer. In this case, defendant had not filed an answer. Instead, she had filed a pre-answer motion to dismiss the complaint for legal insufficiency.

It seems to me that the RIAA is like an employee who's just been fired trying to say "you can't fire me, I quit!" in the interval between being told about it and being escorted off the premises. It's bullshit.

Secondly, how does it hurt the defendant for the case to go away? Answer, it doesn't.

But that's not the point, just as how the employee claiming to quit doesn't hurt the former employer. What it hurts is the next employer, because the employee is trying to weasel out of having the firing show up (and thereby count against him) on his resumé. It's unethical and should not be tolerated!

Your Honor

[whisper_jeff]

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?

Re:Your Honor

[Overzeetop]

Like most slashdotters, I have no idea what is and isn't legal when it comes to techinicalities, but since it was a motion filed with the judge, it is typically within the judges discretion to grant or deny the motion. I believe that your answer is yes, the judge may deny the motion to withdraw and grant the motion to dismiss. It may be challenged, again on technical grounds, but you'd have to find a very RIAA-sympathetic judge to review the grounds for the decision given that the final result for the case in question was nominally the same. (Of course, that takes a narrow view which ignores the precedent it sets and the possibility of awarding the defense fees).

Re:Your Honor

[Anonymous Coward]

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.

Re:Your Honor

[magus_melchior]

I'll hazard a guess that he can't unless he wants to piss off the bar association, but NYCL can probably fill you in.

It would be neat if the judge could do it, but that would mean he could do it to anyone who withdraws legitimately.

Re:Your Honor

[CodeBuster]

can the judge deny their voluntary dismissal and still hand down judgment? If it is not then that is how it should be. The original purpose of the courts (back before there was fire) was to provide people with an alternative to the field of battle, where one risked life and limb, for resolving disputes. However, even as a less lethal substitute for battle the rules had to at least approximate what happens in combat. If an army attacks but then attempts to flee the field when the battle turns against them then it is the privilege of the opponent left in command of the field to decide whether to let them go or ride them down and hack them to pieces. Similarly, if the defendant is successful in their defense then they should be entitled to pursue the losing party for damages. To the victor go the spoils.

All of my MP3s...

[Anonymous Coward]

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!

Re:All of my MP3s...

[Tanktalus]

Paying for illegal copies doesn't make them suddenly legal...

Re:All of my MP3s...

[ProfessionalHostage]

IIRC, none of Russian laws breached by AllofMP3.com.

There's a nice reading material from those `mafs`, you might want to give it a try:
http://allofmp3.ru/press/centre.shtml?s=993&d=18191974

but of course I'm not going to hold my breath on their words.

Re:All of my MP3s...

[noidentity]

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!

But then you're supporting groups who attack others unjustly, just for money! Why don't you support the RIAA instead?

It's because they are betting on the ACTA Treaty

[denis-The-menace]

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.

stand up to a bully, they back down.

[swschrad]

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.

But what does it have to do with the Bible?

[pdq332]

Compare http://recordingindustryvspeople.blogpsot.com/ (linked above) to http://recordingindustryvspeople.blogspot.com/

Re:But what does it have to do with the Bible?

[skis]

Religious typosquatters vs. technically-informed lawyer. Both are very rare.

Good news - Bad news

[Lije Baley]

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/

Re:Good news - Bad news

[monxrtr]

Not at all. The actions of uploading and the actions of downloading will always be subject to Constitutional interpretation, First Amendment protection, Eight Amendment Protection, and numerous other challenges which can overturn the laws. See gay marriage in California. The copyright laws are still going to be overturned one appellate circuit court at a time, until the Supreme Court rules whether $150,000 fines for $0.99 preponderance of the evidence property damage is Constitutional, whether limited Constitutionally means life plus 70 years. Sue every merchant that has an unconstitutional correspondent limited time sale. And there are many many others with respect to enforcement. The legal methodology which kills copyright can also likely be extended to kill the property seizure drug enforcement laws.

It's just a big game of Texas hold 'em, and the government is about to throw property seizure drug enforcement confiscation laws into the pot.

The you can't fire me...

[Bullfish]

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.

Re:The you can't fire me...

[ratboy666]

Since the RIAA has ALREADY backed down from the related John Doe filing, they are not allowed to simply throw in the towel on this case. Procedure should force adjudication on the merits. Of course the Judge can decide to simply let them go home, or can judge the case anyway. So, the RIAA could stand to lose, EVEN IF THEY DON'T PURSUE. To quote Boston Legal: "I am the decider!". And, suitable compensation for the defense can be awarded (at the Judges discretion).

Bad form to back away from a case TWICE. Once, for the John Doe, and now, again.

Obvious

[Skeet112]

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.

Re:It's because they are betting on the ACTA Treat

[Darkness404]

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.

Be afraid, be very afraid

[Anita Coney]

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!

Re:Be afraid, be very afraid

[Anita Coney]

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.

Re:Be afraid, be very afraid

[digitrev]

And then once you're suitably pissed off, go check out this amazing argument in favour of reasonable copyright terms (specifically, 42 years or until death).

Re:Be afraid, be very afraid

[gurps_npc]

That would be true except that copyright law specifically states that it IS legal to copy small amounts of data.

Worse, you stupid example confounds the issue by using additional felonies, namely brandishing a gun. Also a bit is the smallest possible bit of data, so your example should use a cent, not a dollar. If he had said Byte, then Dollar would make sense.

Try it again without your blatant errors and you get:

Person goes into a bank WITHOUT a gun. Hands the teller a note saying "Give me a penny of the banks money NOW!". Please pay attention to the fact that NO threat was made (that would be another crime, just like brandishing the gun.)

A claim that this is not a robbery would in fact hold up pretty well in court. Even if the teller gave him a penny.

The attorney that concentrates on IP Law seems to know a LOT more than you do, mublestheclown.

Re:Be afraid, be very afraid

[Anita Coney]

"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.

Re:Be afraid, be very afraid

[Evanisincontrol]

To be clear, I agree you with you, not the clown. However, I have a question. Consider this hypothetical scenario:

You begin downloading a very unpopular song via bittorrent. We'll say it's 4MB to keep up with your example. This song is so unpopular, in fact, that it has only one seed and no other leeches (downloaders). When you get to, let's say, 75% of the download, the only other seed disconnects. Now the torrent only has one person distributing information: you.

Now, say another person begins downloading from that torrent. You are the only person distributing data, and in fact you distribute all 3MB of your data to that new person. It may or may not be sequential data, but 3MB out of 4 is certainly enough to identify the information that data represents.

This brings up a couple questions. Did you steal that song, even though you only have 3/4 of it? Did you also give a copy of it to someone else, even though you only gave them 3/4 of something?

Obviously this hypothetical is not a typical situation, but it is not entirely uncommon and certainly not unfathomable. What do you make of it?

Re:Be afraid, be very afraid

[Anita Coney]

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.

Re:Be afraid, be very afraid

[NewYorkCountryLawyer]

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. Boy have you got that right, Anita.

Re:Be afraid, be very afraid

[magus_melchior]

That's okay, they bought enough time with the John Doe lawsuit to ram through the "Feds as RIAA goons seizing hardware with infringing files" legislation through the House.

Re:Be afraid, be very afraid

[Crunchie Frog]

When you download from bittorrent, you're immediately sharing. Not necessarily. I can leech without uploading at all, but we digress...

However, since you're downloading from many computers you're downloading faster than you're uploading. Maybe, maybe not. The number of computers you're downloading from bears no relevance. I could be downloading at a very slow rate but be uploading at a much higher rate. Remember i can upload the same data many times, it doesn't matter that im downloading at a slower rate.

Combined with the fact that you cannot share what you do not have, true enough....

when the download is complete, you're necessarily going to have shared less than what you've downloaded. No. I could have shared 99% of the song to each of 10 People if my upload speed was set higher than my download speed. So ive download 4Mb for example, but uploaded something just under 40Mb

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. No, all the numerous people have 99% of the song data each in my example. Maybe im the only seed now, or one of just a couple of seeds. Maybe most of these other downloaders are leechers and arent sharing an data themselves, so the result is most of that uploaded data is from me, or from me and one or two other seeds. Also those non-sequential blocks of data are assembled back into the song (or 99% of it in my case).

Let's take a real world example, Let's not.
Look, I think the guy who was arguing with you was being a bit of an ass and I also have no view on what consitutes 'making available'. However your understanding of Bittorrent is wrong. Heres an example from me. I share a song. Its available in 512Kb blocks. You download one 512Kb block from me. I think that constitutes 32 seconds of an mp3 encoded at 128kbps, which would certainly be enough to recognise a song assuming you has some tool that would allow you to play back the partial file.

Re:Be afraid, be very afraid

[Anita Coney]

"Maybe, maybe not. The number of computers you're downloading from bears no relevance. I could be downloading at a very slow rate but be uploading at a much higher rate."

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. I guess it would be possible to download and upload at nearly the same amount, but it would be unlikely. Especially considering most ISPs upload rates are significantly lower than their download rates and the fact that you're downloading from multiple sources and are only uploading from one.

"Maybe im the only seed now..."

Clearly if you have 100% of the data and you're the sole seeder, then it's pretty obvious you're be infringing. And I'm shocked that the RIAA are not going after the egregious seeders. However, the overwhelming number of users on bittorrent are not sole seeders. They're leechers.

"I think that constitutes 32 seconds of an mp3 encoded at 128kbps"

Even if you are right, and even if you did manage to share 32 seconds of sequential data (which I've never seen happen on bittorrent), would it be infringement? Show me one case that holds the sharing 32 seconds of a song constitutes infringement and I'll agree. I don't mean to be a prick, but I won't be holding my breath.

Re:Be afraid, be very afraid

[Crunchie Frog]

"Maybe, maybe not. The number of computers you're downloading from bears no relevance. I could be downloading at a very slow rate but be uploading at a much higher rate." 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. I guess it would be possible to download and upload at nearly the same amount, but it would be unlikely. Especially considering most ISPs upload rates are significantly lower than their download rates and the fact that you're downloading from multiple sources and are only uploading from one. No it's not impossible. You are misunderstanding something here. I can easily upload faster than i download simply by uploading the same part of the file many times to different people. How can i have ratios of greater than 1.0 on files I'm downloading if this is not possible?

Also the upload/download speed of your connection has no relevance. You are clearly talking about ADSL which almost always has a faster download than upload speed (the A stand for Asynchonous, Hurrah!), but my Bitorrent client doesn not use all my bandwidth. I often set my upload speed faster than my download speed on private trackers where i wish to improve (or at least maintain) my ratio.

Re:Be afraid, be very afraid

[Reziac]

Your post gave me a strange thought, and I know it's a stretch, but I'll air it anyway:

Public performance royalties are due when a work is performed in public. So far so good.

What if, in a public venue, a bunch of random people sing all the words to a given song, but each person only sings a few words, and they do so not only in no particular order, but also scattered over the course of several hours -- does this require a royalty payment?? and if so, paid by whom??

The parallel being that with P2P, the "listener" similarly receives random chunks of the material in question, from random parties, in no particular order and scattered over some extended timeframe.

Re:Be afraid, be very afraid

[monxrtr]

Keep in mind, the precedent ultimately set is lose lose for copyright enforcement. If what you say is true, private enforcers like the RIAA/Media Sentry will commit trillions of dollars of liability for being in streams where the copyright is owned by someone else. You can't know the hash, you can't know the content, before you are done analyzing it manually or automatically, both requiring full copying to prove beyond a reasonable doubt any federal offenses (I'd just love to see the PR and voter reaction to the DOJ copyright cops charging 10,000 BitTorrent citizens like they were drug dealers), or significantly infringing (in the case of mistakes) partial preponderance of the evidence civil liability. Britney_Toxic.mp3 and Britney_Sux.mp3 can have the same hash, the same content, but even computer deep packet inspection programs are not a priori omniscient, let alone artificially intelligent.

Re:Be afraid, be very afraid

[monxrtr]

Birthday ... Happy ... To ... Mister ... You ... RIAA President ... py ... Hap ... O ... Y ... U ...

Slashdot Survey says ...

Your comment violated the "postercomment" compression filter. Try less whitespace and/or less repetition.

Re:Be afraid, be very afraid

[monxrtr]

Nope, not reasonable. Copyright is a bargain which sacrifices free speech redistribution rights for the promotion of the advancement of the arts being returned to the public domain after a limited time. Since copyright is no longer contemporary limited to even anyone's lifetime, copyright owners have abused and forever forsaken their responsibility and rights. The only reasonable action is to pass a Constitutional Amendment eliminating copyrights so that such abuse and violations cannot occur in the future.

Copyright is absolutely unnecessary to the promotion of the arts. If the art is created in advance of any payment, copyright does absolutely nothing for the creation of that art (it is afforded completely with no up front payment by the surplus leisure spare time given by the division of labor and technological advancement). If the production of art is voluntarily funded in advance of the creation, copyright is completely unnecessary. Thus, it is proved that Copyright violates the Constitutional condition for its existence being "the promotion of the advancement of the arts", and is therefore forever unconstitutional except by explicit Constitutional amendment changing the wording of the copyright clause.

Also the likely intent of limited and not explicitly Constitutionally defined length limit would be so that the term time limit could be *lowered* as technological advancement made the spread of ideas faster, *not* increased, contrary to sane legal reasoning of justification for advancing and promoting the arts into the public domain. The critical mass inflection point bulk of profits from all art is made well within 5 years these days. The public domain is being held up for 165 years so that 99.9% of art can make an extra 3.3% profit, and that 0.1% of art can make 50% more profit before expiration. This needs to be an academic research paper. Average length of time where % of total likely profit is earned for average copyrighted work. Make sure you specifically credit monxrtr in the paper for the methodological basis of the paper, or else you're "stealing" my idea. Ha, j/k.

Re:Be afraid, be very afraid

[Reziac]

Hmm. Maybe next time we should pick a song that doesn't violate the lameness filter!

Of course, since this one is so repetitive, it'll be hard to determine who sang what ;)

Re:Be afraid, be very afraid

[rdebath]

I'll jump in at this point.

Firstly I think for infringment to be sure you have to have pushed out the whole (or most of) the file to one person. Giving a bit here and a bit there muddies the waters

In this way a leecher can only forward (to one other person) as much as they have downloaded. Even the first seeder doesn't give the whole file to one person; but in this case there's the chain of events that says the data must have come from seeder one originally.

Second there's details of the bittorrent protocol.

• The file is divided into chunks, these chunks are generally one of 128kB, 256kB, 512kB long. The program will normally try to fill a chunk quickly once it starts so that it can do the checksum on it.
• Each chunk is divided into blocks, these are 16 or 32k and are the data that is requested from a single peer. A client is likely to request different blocks for one chunk from different peers.

Still two seconds should be enough ... Never gonna give you up

Re:Be afraid, be very afraid

[Pranadevil2k]

Do you really think that someone could determine a song based on 10KBs of non-sequential data? Really? I think that used to be a game show actually. But yeah, there's no case.

Re:Be afraid, be very afraid

[gurps_npc]

If I were the tellers boss and she attempted to press charges over that one penny, I would fire her.

But assuming you were right and the cop did arrest them, then:

If I were the judge in the case against the man, I would order him to be examined by a psychiatrist. Then I would throw the cop and the prosecutor in jail for contempt of court and abuse of process.

YOU may be stupid enough to waste our overburdened police's courts time and money on crap like this, but I doubt any other person involved in the legal system is, unless they were out to get the man that tried to get a single penny.

Showing their true colors

[Duncan Blackthorne]

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.

It will be of interest

[DingerX]

So, what will Ms. Cassin do? Who's representing her anyway? Maybe that attorney could find out and get back to us?

Re:It will be of interest

[NewYorkCountryLawyer]

So, what will Ms. Cassin do? Who's representing her anyway? Maybe that attorney could find out and get back to us? I guess you've figured out that her lawyer is me.

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.

Re:It will be of interest

[TheGreatGraySkwid]

Ha! I was reading throught this whole thread thinking "Where is NYCL? This is totally his bag...oh, wait, maybe this actually is his bag, and it would be unprofessional to talk about certain aspects of it?"

Thanks for what you do, man.

Re:It will be of interest

[drxenos]

I don't use P2P and I don't infringe, but man-oh-man, if this ever happens to me I hope you are free (as in available, not beer).

Re:It will be of interest

[NewYorkCountryLawyer]

Ha! I was reading throught this whole thread thinking "Where is NYCL? This is totally his bag...oh, wait, maybe this actually is his bag, and it would be unprofessional to talk about certain aspects of it?" Thanks for what you do, man. Thanks for your kind words, Mr. Skwid.

Or can I call you GreatGray?

Re:It will be of interest

[TheGreatGraySkwid]

Just Skwid is fine, thanks, Ray.

Great Gray's so formal, you know.

RIAA Must Pay

[Nom du Keyboard]

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!

Re:RIAA Must Pay

[JohhnyTHM]

And not just the defences costs.

Repeatedly bringing these worthless cases, only to drop them at the last minute is bordering on contempt of court.

I am really surprised that some judge has not made them pay all the court costs as well for time wasting.

More importantly...

[MRe_nl]

, 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.

Re:More importantly...

[Maestro485]

, a person 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 person is, is clearly an organisation to be reckoned with. There, fixed that for ya. Err... wait.


...and you're a towel.

Isn't copyright infringement when a COPY is made?

[MitchInOmaha]

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?

Re:Isn't copyright infringement when a COPY is mad

[mumblestheclown]

Code 17, Section 1101 (a) (2) would tend to disagree with you. You do realize that actual law exists, right? It doesn't work that way that just whatever you want to be true is the law?

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.

Re:Isn't copyright infringement when a COPY is mad

[tony1343]

Copyright law is a pain in the ass.

Distributing copyrighted material is a violation.
Also, maybe there is could be contributory/vicarious infringement.

bribing comcast you mean

[XHIIHIIHX]

eom

Re:Isn't copyright infringement when a COPY is mad

[Tanktalus]

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 and making available: FSF's view

[john1040]

GPLv3 FAQ: http://www.gnu.org/licenses/gpl-faq.html#v3MakingAvailable

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.

Re:GPLv3 and making available: FSF's view

[gnasher719]

GPLv3 gives "making available to the public" as an example of propagation. What does this mean? Is making available a form of conveying? You see, there is a difference between "making available to the public" and "making available for distribution". The "making available for distribution" comes from a law, which is related to other laws, and to court cases setting precedent, and has a very, very specific meaning. For example, sending a CD with software to RedHat (who is one of the larger distributors of GPL'd software) might be considered "making available for distribution". Putting it on a web page might make it available to the public, but not "available for distribution" in the meaning of the law.

Defendant could keep them in

[Unixnoteunuchs]

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

Re:Defendant could keep them in

[shentino]

If so, I hope they do.

This case needs to not just go away, it needs to get turned around and fired back in the form of legal precedent that would help smack down the RIAA's other cases.

Seems Fishy...

[Dripdry]

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 are not illegal copies

[Anonymous Coward]

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.

Re:They are not illegal copies

[AK Marc]

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.

Re:They are not illegal copies

[atraintocry]

Whoa. Hold on. Compulsory licensing for covering a song is not the same as compulsory licensing for radio play. There are different terms, as they deal with different rights. Complete red herring.

When AllofMP3 sold music to US customers, they were supposed to follow US law, because they were doing business in the US. If you don't live in Russia, then the point of sale cannot possibly be in Russia. And more importantly, the Russian radio licensing doesn't apply to you. US copyright code does.

I liked AllofMP3 as well, but I'm going to call it what it was: me being stupid & lazy enough to pay for music that I hadn't acquired legally.

Re:They are not illegal copies

[AK Marc]

Whoa. Hold on. Compulsory licensing for covering a song is not the same as compulsory licensing for radio play. There are different terms, as they deal with different rights. Complete red herring.

Compulsory licensing exists in all countries that I know of. The types and version varies based on country. The USA has it for covering songs. Russia has it for radio broadcasts. It wasn't done for the US for radio broadcasts because ASCAP, BMI and such were set up for that purpose and there wasn't a need for a law to do a similar thing. In the US, the "group licensing" (the same as compulsory licensing, but with industry backing rather than government backing) does apply to Internet radio, but not individual downloads. In Russia, it applies to both. The systems are nearly identical with the government running their version of ASCAP/BMI and "Internet broadcasts" being compulsory licensing for both. The only difference is a very minor one the definition of "broadcast." That's not a red herring, that's an analogy between the US system and the Russian system showing that they are nearly identical, differing only in who runs the broadcast licensing and the definition of broadcast relating specifically to serving files over the Internet.

When AllofMP3 sold music to US customers, they were supposed to follow US law, because they were doing business in the US.

Says who? A Russian in Russia selling something on a Russian server can't reasonably assume that the transaction is Russian?

If you don't live in Russia, then the point of sale cannot possibly be in Russia. And more importantly, the Russian radio licensing doesn't apply to you. US copyright code does.

Why? Because you say so? If the sale is in Russia on a Russian server with the credit card charged and processed in Russia and the funds paid to a Russian, why again is it not a Russian transaction? And, if the transaction is Russian, then US copyright doesn't apply to the sale, but to the importation. If it applies to the importation, then it is 100% legal.

I liked AllofMP3 as well, but I'm going to call it what it was: me being stupid & lazy enough to pay for music that I hadn't acquired legally.

I have never bought anything from them. But if the transaction is Russian, an American is 100% legal in buying from them. If the American is outside the US and buys the music then comes back in, customs/copyright applies to say that if he got it legally, it is legal to re-import. It is 100% legal in Russia, the same way I can cover a song without permission from the artist in the US, they can sell the "broadcast" in Russia. That was tested in Russian court, and they won, so there is no question.

The only legal question is where the transaction takes place. That is something that has never been legally settled in the US and I have no idea about international law on that point.

Re:They are not illegal copies

[JoCat]

If a person in America connects to a server _they_ own in Russia and purchase the music through proxy, does that constitute a purchase in Russia?

Other mens

[Anonymous Coward]

Between the now Pro IP Act and the Anti-Counterfit Agreement, they wont need to care about lawsuits anymore.

Re:Isn't copyright infringement when a COPY is mad

[jedidiah]

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.

You can't sue someone & withdraw forever!

[Anonymous Coward]

> 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

Re:You can't sue someone & withdraw forever!

[NewYorkCountryLawyer]

I had exactly one law class Yeah but it was probably this one, with the cool syllabus.

Re:cow suuuuuit!!!!

[Anonymous Coward]

put it ON!!! The cow suuuuiiit!!!!

No, this thread's about the RIAA trial. The one with the four girls painted up to look like cows was this trial.

Re:Isn't copyright infringement when a COPY is mad

[NewYorkCountryLawyer]

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........ but what am I missing? You're not missing anything.

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.

Can't deny dismissal

[quandmeme]

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."

You can't display a sculpture you bought!?

[Anonymous Coward]

> (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.

Re:You can't display a sculpture you bought!?

[monxrtr]

Good case to set up. One slashdotter sells a lump of clay to another slashdotter with the express contract that it cannot be publicly displayed. Slashdotter Two challenges the validity of the contract in circuit court. Make the Court rule one way or the other. The outcome doesn't matter at all. It will be lose lose precedent for enforcing copyright. Why? Because Pop 40 songs are willingly played on the radio, and implicit revocation of rights occur. Or do you think I can walk down the main street exiling $100 bills into the air and sue anybody who picks one up with theft?

Re:You can't display a sculpture you bought!?

[stinerman]

Wait. So, if I buy a sculpture from the artist, I can't put it out in public without permission!?

Nope. You can display it privately (in your home or car or whatever) though.

The really odd thing is photographs of copyrighted sculptures. There is still some uncertainty over the law here. Is the photograph a derivative work?

Re:You can't display a sculpture you bought!?

[mstahl]

You could argue that the right to display the work publicly was ceded to you when you purchased the sculpture. Seeing as many people who buy sculptures display them outside or at least somewhere visible publicly (like a courtyard), this is probably what happens.

IANAL, though.

Re:It's because they are betting on the ACTA Treat

[monxrtr]

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".

Re:I'll have to read that information...

[NewYorkCountryLawyer]

well maybe you took this evidence course

i didn't find any flaws in your presentation

They are losing MASSIVELY.

[Jane Q. Public]

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".

Cowards

[Weaselmancer]

Second, can the court opt that no, "we aren't going to dismiss it just because you think you're going to lose" ??

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?

Re:Cowards

[Reziac]

NYCL responded to that -- apparently the plaintiff can get it dismissed if the other side hasn't answered yet, and that's what happened in this case.

I agree, this crap won't end until one of the RIAA cases comes to a proper and ignomious conclusion. And that probably won't happen until some judge insists that the trial go on, because as you say, the RIAA always bails, knowing damn well that their cases have no legal merit (even when there probably IS actual copyright infringement, their cases depend on glorified hearsay, not on genuine evidence).

But the downside of the judge refusing to dismiss is that you never really know how one of these civil cases is going to fall out, especially if a jury is involved rather than just a judge. Allowing the dismissal does protect *that* defendant, even tho it does nothing for future defendants. But the judge has to go by what's in front of him, not what might be; and allowing a bogus case to go forward, even with the probability that it'll go badly for the plaintiff, could be interpreted as irresponsible jurisprudence.

If you were the defendant, would you care to take that risk? If you had a lawyer like NYCL or Capt.Kangarooski defending you pro bono, you'd probably feel secure in the outcome, and you'd still get to eat regularly in the meantime. If you're on your own and/or scraping the attorney's fees out of your own wallet (and the RIAA cases are never brought against people who can really afford to mount a defense), probably not.

(I don't like any of these thoughts. I much prefer the thought of the RIAA being bitchslapped into bankruptcy.)

Re:Cowards

[NewYorkCountryLawyer]

If you had a lawyer like NYCL .... defending you pro bono.... Sorry to disillusion you, but I do not handle any of the cases pro bono. If I could afford to, I would, but I can't.

Re:Cowards

[Reziac]

Well, that's the thing. You've got to make a living too, which means you've got to charge for your work. But most workin' class people can't afford a lawyer for a long drawn-out case. And that's why I noted "pro bono" -- because realistically, even if everyone attacked by the RIAA's minions lived in New York, most of the victims just don't make that kind of money and couldn't afford to hire you for the duration of the case. Which means that even when good defense attorneys with the proper experience *are* available, most RIAA victims are just plain screwed.

IIRC the word is Barretry

[HornWumpus]

Extortion via threatened litigation.

It can get a lawyer disbarred.

Re:Isn't copyright infringement when a COPY is mad

[hany]

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.

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:

• you do not buy it, you license it (at least that's what the vendors are telling us so far)
• after paying and getting the product (or being allowed to use it :) you may read in the so called EULA that essentialy there is *no guarantee for the software*
• ...

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. :)

More nice things to read!

[Xenographic]

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

Re:More nice things to read!

[Xenographic]

Note to self: click "post anonymously" next time.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Backing out to save own hides

[shentino]

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.