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..

[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..

[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

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.

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: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?

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: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: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: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.