I wasn't aware that you are a lawyer; I apologize if I insulted you.
I agree with you that this will ultimately have to be "settled by the appellate courts", a possibility which the RIAA has been energetically trying to forestall, for good reason.
Frankly, if the EFF's brief was a fair, objective view of the law one could argue that such a lawyer was committing malpractice. Not so.
The way it actually works out in the real world of litigation is that fair, objective, brief writing, which is balanced and completely candid, is far more effective than mere advocacy which will go to any lengths to persuade. The judge doesn't want to get reversed and wants to make a correct decision. The brief which assists the court in that is much more likely to be taken seriously and to be believed.
This particular brief was extremely conservative, and says nothing that is not completely grounded in the statute, the caselaw, and the leading treatises.
It is the RIAA lawyers who are the flaming radicals here, who make arguments that do not pass the 'straight face test'. If you don't believe me, read the dialogue between the RIAA lawyer (Richard Gabriel) and Judge Karas in the transcript of the January 26, 2007, oral argument on these issues in Elektra v. Barker, and observe how quickly the judge shot down, and Gabriel then backed down from, basically every argument that had been advanced in his papers.
Were Fred Von Lohmann similarly called on the statements he's made in this amicus brief, not only could he stand firm, he could absolutely prove to the judge that each argument is correct.
In view of your healthy skepticism and appreciation of intellectual integrity, I don't expect you to accept what I just said at face value, and only time will tell. But I would challenge you to look at the brief and find a single statement of law that you think is wrong.
If they know its clearly bogus, then why don't they, in fairness, also drop all the previous cases where they argued this in the first place? Because that would be the honorable thing to do.
Is this wise? Making available is a significant precedent and it's going to be decided in a case where the defendant has no representation? Yes it's unfortunate that Mr. Howell does not have representation, but it's a blessing that the EFF came in and submitted this amicus brief.
Sometimes I wonder if judges ever even read these things. Yes, but not with this particular judge. This judge -- although he has an unrepresented defendant here -- and a gang of bullies on the other side, is nevertheless asking all the right questions, and struggling to make a proper decision. Which is why it is so excellent that the EFF came in and presented him with a good brief that explains what the law really is.
NY Country Lawyer, does the brief imply that the person who has to be sued is not the one who makes available, but the one who actually downloads what is made available? No, the brief doesn't say that there couldn't be a violation of the distribution right, by actually distributing within the meaning of the statute. It just says that merely 'making available' doesn't cut it.
In the words of the First Circuit, Mere authorization of an infringing act is an insufficient basis for copyright
infringement. Infringement depends upon whether an infringing act, such as copying
or performing, has occurred. Therefore, to prove infringement, a claimant must
show "an infringing act after the authorization." Thank you. I like to see people going right to the text.
The courts have repeatedly made it clear that 'authorizing' is not copyright infringement, that there has to be an underlying infringement of one of the rights.
So by making a file 'available' to the public, I am then violating copyright law?
Well, by this same logic, if I leave my car window open and have a CD sitting on the passenger seat, I am then "making it available to the public". If I buy a DVD online and it is sent to my letterbox outside my house, and I don't have a lock on my letterbox, I am then "making it available to the public".
Where is the flaw in my logic? Or am I actually making a valid point? I would say you're making a valid point. Certainly Judge Kenneth Karas would say so, since he made exactly the same point to the RIAA's lawyer at the January 26, 2007, oral argument (pdf) of Elektra v. Barker. (See, e.g. page 28 of transcript.)
Oh, I think NewYorkCountryLawyer knows what he's talking about. Thank you, Morgan. Of course I wasn't saying that the EFF has the power to make law.... I was saying that in my opinion the RIAA's creation of the 'making available' theory is not copyright law, and that in my opinion the EFF brief correctly states the law. (Of course anyone who's ever read the statute, or the caselaw, or the treatises... would agree with me.).
The issue isn't copyright infringement generally, such as 'reproduction', 'performance', etc. See the 6 sections of 17 USC 106. It's only a discussion of subsection (3), the distribution right, which the courts have held for many decades does require dissemination to the public of physical copies by sale or other transfer of ownership, or by license, lease, or lending.
As the article explains, the law says quite clearly that there is no such thing as "attempted copyright infringement". Either the music was distributed or it was not. If it was not distributed, and if there is no evidence of distribution, then there is no case. Intention doesn't count. Correct. The issue being discussed is whether there can be a "distribution" under subsection 3 of 17 USC 106 where there is NO evidence of ANY of the requisite elements of a "distribution": -dissemination -to the public -of physical copies -by a sale or other transfer of ownership, or by a lease, license, or lending. The RIAA had evidence of NONE of the above, let alone of all 4 required elements.
This looks to be open and shut, so, does anyone know- If the judge is sane, and applies the law as he should, what sort of legal precedent will be set? A very good one.
Infringement is the infringement of the rights of the copyright holder. Fair use is a limitation on the rights of a copyright holder. This, from the web site of the US Copyright Office:
"It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the 1976 Copyright Act." I.e., a fair use is NOT an infringement of the rights of the copyright holder, and is therefore NOT a copyright infringement.
I'm willing to don my aluminum foil conspiracy theory hat for a moment and make the following supposition:
The RIAA is attempting to get testimony introduced into a case involving file sharing that equates CD ripping with sharing. Once a judge is conned into issuing a decision that implies ripping itself is illegal, the RIAA will extend its enforcement based upon this new precedent. That's pretty much the idea. But to refine it just a bit:
1. The RIAA's leading precedent for its "making available" theory is the Hotaling case. Hotaling has been distinguished on the ground that the copies being 'made available' were concededly unlawful copies. If the RIAA can establish that copies ripped from cd are 'unlawful', then Hotaling case can't be distinguished on that ground.
2. If in their filesharing cases they can argue, as they did in Capitol v. Thomas, that the mere fact that a defendant has song files on his computer which he copied from his cd's is in itself unlawful conduct, it helps to make the defendant look bad. This was the tactic they used in Capitol v. Thomas. Jennifer Pariser testified that it is unlawful to make copies from cd's onto one's computer. And then Richard Gabriel roasted Ms. Thomas during her crossexamination over the fact that she'd copied cd's to her hard drive without his clients' permission. I haven't seen the transcript yet, but apparently neither the judge nor Ms. Thomas's lawyer picked up on the fact that the jury was being misled. This is the RIAA's game : taking advantage of unknowledgeable judges and overmatched, underpaid attorneys.
I'm a little ignorant in the land of copyright law, but where does copying songs from a CD to one's iPod fit into all this? I was under the distinct impression that doing so was decidedly legal. Is it actually possible to do that without first ripping them to your computer?
Putting your files out for share under any program such as Kazza or another distribution program removes this protection from you. That's not the topic of the article. Its about ripping your own (legally purchased) CDs and records. In spite of the RIAAs (and your) attempts to link these two activities in the eyes of the courts, they are separate. You're right PPH. The judge asked several questions and one of them was whether the copies on the guy's computer were "unlawful". The RIAA said "yes". For some reason, a lot of people seem bent on doing what the RIAA wants them to do, which is confuse the separate issues. Here is the question and answer. Whatever other issues that are in the case have nothing to do with this answer to this question.
when I started imagining what's going on over there in RIAA-land right now between Jennifer Pariser, the head of litigation at SONY BMG, and Cary Sherman, who has publicly gone on record as saying that Ms. Pariser "misspoke" under oath.
RIAA's out of court comments aside, is this not something that could be cited in a future case? I mean, RIAA did prevail in the case, all testimony is kept on record, and unless the verdict is overturned, the lawyers comments will be a future quotable. I am dubious of RIAA's intentions and it is not out of this realm to imagine some exploratory litigation. Good question. Actually, the RIAA companies will NOT be able to use the transcript of Jennifer Pariser's testimony -- it is just out of court hearsay -- but WE, the defendant's lawyers, can use it, to show that Jennifer Pariser and SONY BMG are dishonest, do not take seriously the sanctity of an oath, will stop at nothing, and are ignorant of copyright law.
Now somebody gets it. That's the whole point of this debacle. If the RIAA misspeaks something often enough, and it gets into the record, it will make it easier to go after ALL iPod owners and anyone else walking down the street with an MP3 player and headphones. You're exactly right. And that is their strategy. And their strength is in the economic imbalance. The defendants can't afford to hire the type of legal representation they need, while the RIAA can spend hundreds upon hundreds of thousands of dollars in any given case. In Atlantic v. Howell they slipped in the language about ripping cd's to mp3's because Howell doesn't even have a lawyer, and they're hoping to get the judge to make a mistake.
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I wasn't aware that you are a lawyer; I apologize if I insulted you.
I agree with you that this will ultimately have to be "settled by the appellate courts", a possibility which the RIAA has been energetically trying to forestall, for good reason.
The way it actually works out in the real world of litigation is that fair, objective, brief writing, which is balanced and completely candid, is far more effective than mere advocacy which will go to any lengths to persuade. The judge doesn't want to get reversed and wants to make a correct decision. The brief which assists the court in that is much more likely to be taken seriously and to be believed.
This particular brief was extremely conservative, and says nothing that is not completely grounded in the statute, the caselaw, and the leading treatises.
It is the RIAA lawyers who are the flaming radicals here, who make arguments that do not pass the 'straight face test'. If you don't believe me, read the dialogue between the RIAA lawyer (Richard Gabriel) and Judge Karas in the transcript of the January 26, 2007, oral argument on these issues in Elektra v. Barker, and observe how quickly the judge shot down, and Gabriel then backed down from, basically every argument that had been advanced in his papers.
Were Fred Von Lohmann similarly called on the statements he's made in this amicus brief, not only could he stand firm, he could absolutely prove to the judge that each argument is correct.
In view of your healthy skepticism and appreciation of intellectual integrity, I don't expect you to accept what I just said at face value, and only time will tell. But I would challenge you to look at the brief and find a single statement of law that you think is wrong.
Well, the statute's pretty clear, too... and they can't change that.
:)
I'm not very knowledgeable about Star Trek lore, but I have a hunch these folks are worse than the Romulans.
The courts have repeatedly made it clear that 'authorizing' is not copyright infringement, that there has to be an underlying infringement of one of the rights.
By the way, the proof that even the RIAA lawyers know that their theory is baseless is that they have abandoned it and omitted it from all of the complaints they've filed during the past 5 months or so. See "RIAA Abandons "Making Available" in Amended Complaint in Rodriguez case" and "RIAA Abandons "Making Available" in New Complaints Being Filed"
The issue isn't copyright infringement generally, such as 'reproduction', 'performance', etc. See the 6 sections of 17 USC 106. It's only a discussion of subsection (3), the distribution right, which the courts have held for many decades does require dissemination to the public of physical copies by sale or other transfer of ownership, or by license, lease, or lending.
-dissemination
-to the public
-of physical copies
-by a sale or other transfer of ownership, or by a lease, license, or lending.
The RIAA had evidence of NONE of the above, let alone of all 4 required elements.
I am aware of the 'controversy' but I disagree with you. You might want to read Wired.com's well researched discussion or my statement that Mr. Fisher was right and the Washington Post "correction" was wrong.
I.e., a fair use is NOT an infringement of the rights of the copyright holder, and is therefore NOT a copyright infringement.
Just because fair use is an affirmative defense doesn't mean that a fair use is a copyright infringement.
By analogy, it is an essential element of a defamation claim that the defamatory statement be false, and yet truth is an affirmative defense.
A use of copyrighted material which is a fair use is NOT a copyright infringement.
1. The RIAA's leading precedent for its "making available" theory is the Hotaling case. Hotaling has been distinguished on the ground that the copies being 'made available' were concededly unlawful copies. If the RIAA can establish that copies ripped from cd are 'unlawful', then Hotaling case can't be distinguished on that ground.
2. If in their filesharing cases they can argue, as they did in Capitol v. Thomas, that the mere fact that a defendant has song files on his computer which he copied from his cd's is in itself unlawful conduct, it helps to make the defendant look bad. This was the tactic they used in Capitol v. Thomas. Jennifer Pariser testified that it is unlawful to make copies from cd's onto one's computer. And then Richard Gabriel roasted Ms. Thomas during her crossexamination over the fact that she'd copied cd's to her hard drive without his clients' permission. I haven't seen the transcript yet, but apparently neither the judge nor Ms. Thomas's lawyer picked up on the fact that the jury was being misled. This is the RIAA's game : taking advantage of unknowledgeable judges and overmatched, underpaid attorneys.
when I started imagining what's going on over there in RIAA-land right now between Jennifer Pariser, the head of litigation at SONY BMG, and Cary Sherman, who has publicly gone on record as saying that Ms. Pariser "misspoke" under oath.