Judge Kenneth M. Karas is the one that is going to decide this one.
I was just providing the news that the 58-page transcript of the oral argument on this important issue is now available online.
If you're interested read it, if not don't read it.
The thing is, a lot of people are interested in it.
For one thing about 25,000 people have been sued by the RIAA for "making available", and hundreds more are being sued every month, so they and their lawyers are interested.
Secondly, the way the Court resolves the issue could have a major effect all across the internet. If "making available" copyrighted works on the internet constitutes a "distribution" under the Copyright Act, even though no copies have been distributed, and there has been no sale, license, or other transfer, it means web sites and blogs can't provide links to each other or to anything else on the internet which is copyrighted, which includes almost everything on the internet.
While it is true that an appeal by the RIAA is likely if Ms. Barker's motion is granted, and the case is dismissed, the converse is not also true. If the dismissal motion is denied, the order denying it would not be an appealable order in federal practice, so Ms. Barker would be stuck with it until the case is finally concluded.
1. If they get stuff they will use it; the fact that it might not be reliable evidence hasn't troubled them in the past, and won't trouble them in the future. They've brought around 25,000 cases since 2003, and they've used the same "expert" on all cases. Do you know how many times he's been deposed or crossexamined? Answer: zero.
2. Bear in mind that the kind of people who will go to this site are the most unsophisticated computer users in the business. Many of them have never heard of file sharing. Those who have heard of file sharing are those who allowed their computers to be filled with spyware, adware, and every other kind of garbage imaginable courtesy of iMesh and Kazaa. I worry about those people visiting a site which is looking to extort money from them.
I'm concerned about the relatively unsophisticated people who are the most likely targets of the RIAA's John Doe campaign. I think they could get truly messed up by a visit to that site. I've submitted an "Ask Slashdot" question about whether the RIAA could use the site as a tool to catch people; hope it gets accepted.
In Elektra v. Barker, where the RIAA was arguing that merely 'having the song files available' in a shared files folder was a copyright infringement, the Government distanced itself from that position by specifically stating in its brief that it had NEVER prosecuted anyone for "making available". See Statement of Interest of United States of America (pdf) at page 5, footnote 3.
They have never thought about restricting themselves to cases they can win, because they never let a case get that far. They never win, they never lose. They try to just wear people down. In the tough cases, like Capitol v. Foster, they torture the defendant as long as they can, then drop the case.
By the way, it occurred to me last night that the RIAA can't appeal from this order because: -it's not an appealable order; -they would have no chance of getting it reversed, since the awarding of attorneys fees to a prevailing party under the Copyright Act is discretionary; and -any further litigation will result in the attorneys fee award being increased (e.g. if the RIAA were to spend $40,000 prosecuting an appeal, and Ms. Foster's attorney were to spend $25,000 worth of time resisting the appeal, the attorneys fee award would be increased from $55,000 to $80,000, plus the RIAA would have spent an additional $40,000 in its own legal fees, thus increasing its total loss by $65,000, from the $155,000 posited in my earlier example to a new figure of $220,000).
The decision just came down yesterday afternoon, so definitely it's too early to say. But I guarantee you it will chasten them a bit. Every morning they have a telephone conference call about the nationwide cases. I have a hunch this morning's call wasn't too cheery.
I had an email exchange today with their head lawyer, and he seemed a bit confused.
Yes they're going to do things differently. For one thing, they are never going to try that stupid secondary liability argument again. For another thing, in most cases they're going to drop the case sooner. Thirdly, they're going to act real, real polite to Marilyn Barringer-Thomson, the superb Oklahoma City lawyer who made this happen.
You are so wrong. This is huge. It will encourage other people to fight back, rather than settle.... will encourage lawyers all across the country to jump into the fight... will encourage lawyers who are already handling one of these cases to take on more cases.
If Ms. Foster gets an award of $55,000, that's an expense on top of the $100,000 or so the RIAA has spent on the case. That's a net loss on this one case of, let's say, $155,000, which would wipe out all the profit from probably a hundred settlements.
Plus the decision will have a ripple effect in other cases. It makes 3 or 4 important legal points about the RIAA's typical legal attack. Judges all across the country are going to be reading it during the next 6 months. I cited it to a judge today, one day after it came down.
It is the RIAA (Recording Industry Association of America) that is running these litigations on behalf of 4 of its members, the big 4 record companies.
Slashdot Mirror
This wasn't an "Ask Slashdot".
Judge Kenneth M. Karas is the one that is going to decide this one.
I was just providing the news that the 58-page transcript of the oral argument on this important issue is now available online.
If you're interested read it, if not don't read it.
The thing is, a lot of people are interested in it.
For one thing about 25,000 people have been sued by the RIAA for "making available", and hundreds more are being sued every month, so they and their lawyers are interested.
Secondly, the way the Court resolves the issue could have a major effect all across the internet. If "making available" copyrighted works on the internet constitutes a "distribution" under the Copyright Act, even though no copies have been distributed, and there has been no sale, license, or other transfer, it means web sites and blogs can't provide links to each other or to anything else on the internet which is copyrighted, which includes almost everything on the internet.
That is in fact happening. See Creative Commons, FreeCulture, Free Software Foundation, etc.
While it is true that an appeal by the RIAA is likely if Ms. Barker's motion is granted, and the case is dismissed, the converse is not also true. If the dismissal motion is denied, the order denying it would not be an appealable order in federal practice, so Ms. Barker would be stuck with it until the case is finally concluded.
I think that from here on out they're paying their own attorneys fees + Ms. Foster's attorneys fees.
You've got that right. Exactly. That's why the ACLU, Public Citizen, the EFF, and others supported Ms. Foster's motion with their amicus curiae brief.
1. If they get stuff they will use it; the fact that it might not be reliable evidence hasn't troubled them in the past, and won't trouble them in the future. They've brought around 25,000 cases since 2003, and they've used the same "expert" on all cases. Do you know how many times he's been deposed or crossexamined? Answer: zero.
2. Bear in mind that the kind of people who will go to this site are the most unsophisticated computer users in the business. Many of them have never heard of file sharing. Those who have heard of file sharing are those who allowed their computers to be filled with spyware, adware, and every other kind of garbage imaginable courtesy of iMesh and Kazaa. I worry about those people visiting a site which is looking to extort money from them.
I'm concerned about the relatively unsophisticated people who are the most likely targets of the RIAA's John Doe campaign. I think they could get truly messed up by a visit to that site. I've submitted an "Ask Slashdot" question about whether the RIAA could use the site as a tool to catch people; hope it gets accepted.
In Elektra v. Barker, where the RIAA was arguing that merely 'having the song files available' in a shared files folder was a copyright infringement, the Government distanced itself from that position by specifically stating in its brief that it had NEVER prosecuted anyone for "making available". See Statement of Interest of United States of America (pdf) at page 5, footnote 3.
I know lots of them.
You're making a good point. What if they do use the web site as a means of trying to do some kind of surveillance?
Good one!
I seriously doubt that there has been any settlement in that amount. You're way off base.
Suits against grandmas, children, and disabled people aren't politically popular.
A Democratic majority isn't as easily purchased as a Republican one.
The Democratic majority has actually changed the rules a bit, so that corrupt lobbying is going to be much more difficult in this Congress.
They have never thought about restricting themselves to cases they can win, because they never let a case get that far. They never win, they never lose. They try to just wear people down. In the tough cases, like Capitol v. Foster, they torture the defendant as long as they can, then drop the case.
Wrong.
Capitol v. Foster scares them a lot.
By the way, it occurred to me last night that the RIAA can't appeal from this order because:
-it's not an appealable order;
-they would have no chance of getting it reversed, since the awarding of attorneys fees to a prevailing party under the Copyright Act is discretionary; and
-any further litigation will result in the attorneys fee award being increased (e.g. if the RIAA were to spend $40,000 prosecuting an appeal, and Ms. Foster's attorney were to spend $25,000 worth of time resisting the appeal, the attorneys fee award would be increased from $55,000 to $80,000, plus the RIAA would have spent an additional $40,000 in its own legal fees, thus increasing its total loss by $65,000, from the $155,000 posited in my earlier example to a new figure of $220,000).
Meanwhile, unfortunately, the fight goes on.
I had an email exchange today with their head lawyer, and he seemed a bit confused.
Yes they're going to do things differently. For one thing, they are never going to try that stupid secondary liability argument again. For another thing, in most cases they're going to drop the case sooner. Thirdly, they're going to act real, real polite to Marilyn Barringer-Thomson, the superb Oklahoma City lawyer who made this happen.
If Ms. Foster gets an award of $55,000, that's an expense on top of the $100,000 or so the RIAA has spent on the case. That's a net loss on this one case of, let's say, $155,000, which would wipe out all the profit from probably a hundred settlements.
Plus the decision will have a ripple effect in other cases. It makes 3 or 4 important legal points about the RIAA's typical legal attack. Judges all across the country are going to be reading it during the next 6 months. I cited it to a judge today, one day after it came down.
You are exactly right, Todd. This is a major precedent. In fact, I cited it in court papers today -- the day after the ruling came down.
They give a damn.
I guess the RIAA has taken over this thread to ensure that the subject of the original post is not discussed.
I can't believe how off-topic the comments are here. It's incredible. Is anybody talking about the case itself?
It is the RIAA (Recording Industry Association of America) that is running these litigations on behalf of 4 of its members, the big 4 record companies.
Just because their argument is irrational, don't assume you're missing something.
In fact you are right.
And they are the ones missing something.