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..

[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..

[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..

[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..

[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..

[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..

[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..

[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.

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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

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

[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.

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.

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.

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

[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

[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.

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: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.

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.

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?

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: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".

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: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: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.

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.