Every other day a different court makes a different decision on these types of issues. On the contrary, Bonewalker. The courts> have yet to weigh in on the issue at all. It is just the RIAA that has been exhibiting schizophrenia, or perhaps a more apt phrase would be 'pathological lying'.
In fact, why are they even bothering with the "making available" argument when they can easily prove actual infringement? It's because they never have evidence of actual infringement, except in those rare instances where they get lucky and (a) the defendant actually is a copyright infringement and (b) the defendant admits copyright infringement.
But going into every single case.... they have absolutely nothing.
This isn't a "knee-jerk reaction". It's a carefully tuned message from the RIAA designed to confuse people and that's exactly what it has done.
Notice that the RIAA is very clear about what it would like "unauthorized" copies to mean on their site:
"If you make unauthorized copies of copyrighted music recordings, you're stealing." [http://www.riaa.com/physicalpiracy.php?content_selector=piracy_online_the_law]
They don't say "you may be stealing" depending on whether Fair Use applies or not, they clearly assert "you are stealing". To date, this unqualified assertion has not been made in a court of law, however they would like you to believe it has.
They are very clever in using the terminology "unauthorized" vs. "illegal". That way they can make the indirect argument: ripping -> unauthorized -> stealing -> illegal, rather than the more direct claim: ripping -> illegal.
The first part of this argument is entirely factual and legal "ripping -> unauthorized" as you point out. However, the other parts that they promote on their site are not, as nowhere do they mention Fair Use exclusions.
I think most people will simply assume that the entire argument is being decided on -- this is exactly what the RIAA wants people to believe and they certainly won't "correct" you if it means you'll buy the same music over and over again because of this FUD. Well spoken indeed. I can see you are an observant student of RIAA tactics.
It is fascinating, is it not, that since I first made this issue public on December 11th, the RIAA has remained silent?
I agree with you about the difference between 'authorized' and 'legal'. I still think the point of the lawsuit - and the part that's dropped in all the many stories on this topic - is the 'making available' portion, not the 'unauthorized copying'. You are correct that the primary issue is the 'making available' theory of the RIAA, which it first induced the judge to buy into.
It is just a new kicker that the they tried to sneak in this new theory, that converting files from one's personal cd to an mp3 on one's computer is "unauthorized". The judge, when he asked them whether they were unauthorized, was asking them whether they were "illegal". Their "yes" response is chilling. It is also newsworthy because they have never formally made that argument in court papers before; it is exactly the opposite of what they said to the United States Supreme Court in MGM v. Grokster. They are trying to take advantage of the fact that Mr. Howell has no lawyer.
Thing is you have to know the context in which the question was being asked. In the Hotaling case the copies were illegal copies. The court used the term "unauthorized" as synonymous with "illegal". In Howell the judge was asking the question in light of the Hotaling case. When he asked if they were unauthorized, he meant "were they illegal?".
The following has been removed from the RIAA's website, but the Internet Archive remembers [archive.org]: If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail. Good catch.
The cases aren't really the RIAA. They're really run by 4 record companies, 1 American, 3 Foreign. They only use the RIAA as a front to shield their obviously illegal collusion.
The right to waive U.S. copyright isn't even as significant as, say, a letter of marque. God damn them all, I was told we'd leech the seeds for american gold
we'd fire no guns, shed no teeeaaars
Now i'm an embargoed shell of an antiguan peer, the last of beckermans priivaateeers I never get moderation points, but if I had one it would be "+1 Funny".
The RIAA is constantly citing its 'victories' in district court ex parte cases (cases where the other side doesn't even know there's a case), default cases (cases where the other side either didn't know there was a case or failed to defend it), and pro se cases (cases where the other side couldn't afford a lawyer). When we had motion practice in an appeals court, they cited their lower court ex parte 'victories' as though they were binding (although as you and I know, they were not).
Even when dealing with normal -- as opposed to moronic -- lawyers, district court precedents are extremely important where, as here, there are no appellate precedents.
The public good appears to be his motive, not a financial one. You mean I can't get rich defending poor and working class people being sued by multibillion dollar cartels? Why didn't you tell me that sooner? Dammit. Why couldn't I figure that out?
Ya know, when I read it I wasn't sure myself... my first reaction was that it was an RIAA shill.... then I thought it was a joke.... and then I couldn't make up my mind.
I'm a little slow on the uptake, but now that I take a second look.....
I have to say, Anonymous Coward, that you might work for the sarcastic joke reinforcers and the humorless Slashdotter prodders, based on your comment.
Now my question is why didn't Yale do the same thing as the Maine university? My guess is that there are some folks at Yale raising that question themselves. And maybe next time they will.
Slashdot Mirror
He's a good editor. So he made a typo. Big deal.
It was the editing that changed it around. I submitted it this way.
if Cary Sherman and Jennifer Pariser have told the judge that Ms. Pariser "misspoke".
Dear yeremein, I've mentioned your catch on my blog.
The judge, upon reconsideration, vacated his prior order granting summary judgment.
Left out the word "committing" after the word "is". Sorry about that.
But going into every single case.... they have absolutely nothing.
It is fascinating, is it not, that since I first made this issue public on December 11th, the RIAA has remained silent?
You certainly should not buy any cd's from these companies.
Also
La Face
Atlantic
Warner Bros
The judge was referring to the Hotaling case, where the term 'unauthorized' was used to signify 'infringing'.
It is just a new kicker that the they tried to sneak in this new theory, that converting files from one's personal cd to an mp3 on one's computer is "unauthorized". The judge, when he asked them whether they were unauthorized, was asking them whether they were "illegal". Their "yes" response is chilling. It is also newsworthy because they have never formally made that argument in court papers before; it is exactly the opposite of what they said to the United States Supreme Court in MGM v. Grokster. They are trying to take advantage of the fact that Mr. Howell has no lawyer.
Thing is you have to know the context in which the question was being asked. In the Hotaling case the copies were illegal copies. The court used the term "unauthorized" as synonymous with "illegal". In Howell the judge was asking the question in light of the Hotaling case. When he asked if they were unauthorized, he meant "were they illegal?".
Yes, this was discussed in an earlier Slashdot story, " RIAA Argues That MP3s From CDs Are Unauthorized", and in a bunch of other places:
* Boing Boing p2pnet reddit Heise Online (German) Truemors BlogRunner/Digital Rights Hugh Casey IDG (Polish) Geek News Central CE Pro Gizmodo TechDirt Read/Write Web Thomas Hawk's Digital Connection TDPRI WhatReallyHappened.com Slyck Root.cz (Czech) Craigslist Forums Hard OCP Wired.com Uneasy Silence Overclock.net Wake World SpaceBattles.com Hydrogen Audio BrickFilms.com Hockey Zombie iLounge Zune Scene AllmanBrothersBand.com Golem (German) PC Magazin (German) Tweakers (Dutch) Mackauf (German) Wake Space Kino-eye.com Digital Copyright Canada Northwest Progressive Institute Louisville Music News Frant
The cases aren't really the RIAA. They're really run by 4 record companies, 1 American, 3 Foreign. They only use the RIAA as a front to shield their obviously illegal collusion.
:)
Sounding just a little bit grumpy, and quite a bit paranoid, there, my friend.
I'm a poor business man.
What would you expect from a country lawyer who winds up in Manhattan?
I don't consider every law school professor an eminent lawyer. I consider this particular law school professor to be an eminent lawyer.
Parenthetically, I disagree with every single thing you said in your post.
The RIAA is constantly citing its 'victories' in district court ex parte cases (cases where the other side doesn't even know there's a case), default cases (cases where the other side either didn't know there was a case or failed to defend it), and pro se cases (cases where the other side couldn't afford a lawyer). When we had motion practice in an appeals court, they cited their lower court ex parte 'victories' as though they were binding (although as you and I know, they were not).
Even when dealing with normal -- as opposed to moronic -- lawyers, district court precedents are extremely important where, as here, there are no appellate precedents.
Ya know, when I read it I wasn't sure myself... my first reaction was that it was an RIAA shill.... then I thought it was a joke.... and then I couldn't make up my mind.
I'm a little slow on the uptake, but now that I take a second look.....
I have to say, Anonymous Coward, that you might work for the sarcastic joke reinforcers and the humorless Slashdotter prodders, based on your comment.