Slashdot Log In
Has RIAA Abandoned the 'Making Available' Defense?
Posted by
Zonk
on Mon Sep 17, 2007 02:21 AM
from the slippery-fish dept.
from the slippery-fish dept.
NewYorkCountryLawyer writes "The RIAA's standard complaint (pdf) was thrown out last month by a federal judge in California as speculation in Interscope v. Rodriguez. Interestingly, the RIAA's amended complaint (pdf), filed six days later, abandoned altogether the RIAA's 'making available' argument. (Whereby making files available at all for download is infringement.) It first formulated that defense against a dismissal motion in Elektra v. Barker. This raises a number of questions: Is the RIAA is going to stick to this new form of complaint in future cases? Will they get into a different kind of trouble for some of its their new allegations, such as the contention that the investigator "detected an individual" (contradicting the testimony of the RIAA's own expert witness)? And finally, what tack will defendants' lawyers take (this was one lawyer's suggestion)?"
Related Stories
[+]
RIAA v. Barker Showdown Slated for January 76 comments
NewYorkCountryLawyer writes "Judge Kenneth M. Karas has set Friday, January 26, 2007, at 2:15 P.M., as the oral argument date for Tenise Barker's motion to dismiss complaint, in Elektra v. Barker, in federal court in Manhattan. The argument will take place at the newer federal court house, located at 500 Pearl Street, New York, New York, in courtroom 21D on the 21st Floor. Proceedings are open to the public. This is the case in which amicus briefs were filed by the Motion Picture Association of America (MPAA), the Electronic Frontier Foundation (EFF), the U.S. Internet Industry Association (USIIA) and the Computer & Communications Industry Association (CCIA), and a Statement of Interest was filed by the U.S. Department of Justice (USDJ). Defendant Tenise Barker moved to dismiss the complaint on the ground that neither downloading nor uploading had been alleged sufficiently to give her notice of what she was being accused of, and on the further ground that merely "making available for distribution" was not a copyright infringement at all. The RIAA and MPAA argued that merely "making available" was indeed a copyright infringement. Defendant, CCIA, and USIIA argued that it was not. EFF argued that intangible computer network transmissions cannot be "distributions" within the meaning of the Copyright Act. USDJ argued that they can be. Defendant refrained from taking a position on that issue here and here. The DOJ refrained from taking a position on the "making available" argument, indicating that it had never prosecuted anyone for "making available". See page 5, footnote 3."
[+]
Technology: RIAA's 'Expert' Witness Testimony Now Online 512 comments
NewYorkCountryLawyer writes "The online community now has an opportunity to see the fruits of its labor. Back in December, the Slashdot ('What Questions Would You Ask an RIAA Expert?') and Groklaw ('Another Lawyer Would Like to Pick Your Brain, Please') communities were asked for their input on possible questions to pose to the RIAA's 'expert'. Dr. Doug Jacobson of Iowa State University, was scheduled to be deposed in February in UMG v. Lindor, for the first time in any RIAA case. Ms. Lindor's lawyers were flooded with about 1400 responses. The deposition of Dr. Jacobson went forward on February 23, 2007, and the transcript is now available online (pdf) (ascii). Ray Beckerman, one of Ms. Lindor's attorneys, had this comment: 'We are deeply grateful to the community for reviewing our request, for giving us thoughts and ideas, and for reviewing other readers' responses. Now I ask the tech community to review this all-important transcript, and bear witness to the shoddy investigation and junk science upon which the RIAA has based its litigation war against the people. The computer scientists among you will be astounded that the RIAA has been permitted to burden our court system with cases based upon such arrant and careless nonsense.'"
[+]
RIAA Complaint Dismissed as "Boilerplate" 197 comments
NewYorkCountryLawyer writes "The decision many lawyers had been expecting — that the RIAA's 'boilerplate' complaint fails to state a claim for relief under the Copyright Act — has indeed come down, but from an unlikely source. While the legal community has been looking towards a Manhattan case (Elektra v. Barker) for guidance, the decision instead came from Senior District Court Judge Rudi M. Brewster of the US District Court for the Southern District of California. The decision handed down denied a default judgment (i.e. the defendant had not even appeared in the action). Judge Brewster not only denied the default judgment motion but dismissed the complaint for failure to state a claim. Echoing the words of Judge Karas at the oral argument in Barker , Judge Brewster held (pdf) that 'Plaintiff here must present at least some facts to show the plausibility of their allegations of copyright infringement against the Defendant. However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation.'"
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
Defense? (Score:5, Insightful)
IANAL, but I can't imagine the RIAA is offering to many defenses in these court cases. Maybe they're abandoning the complaint of "making available"? That's what the article seems to indicate...
Re: (Score:2, Informative)
Re: (Score:2, Informative)
You could replace the first example and it would work. The next three would be meaningless and it would completely change the mea
This complaint is no better (Score:5, Interesting)
This should be rejected summarily as well.
Re: (Score:2, Informative)
> But they don't actually detect any distribution.
Nor do they detect an "individual". An IP address isn't an individual. If you're lucky, you might be able to connect it to a particular computer at a particular time.
Re: (Score:2)
They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.
Re:This complaint is no better (Score:5, Insightful)
They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.
Parent
Re: (Score:2)
If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. T
Re: (Score:3, Insightful)
If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. That's incorrect, however. Given the ease with which the correct simplification could be made, provided that the RIAA lawyers or their technical advisors do understand the concepts of an IP address and uploading and difference between a person and computer and the meaning of the word potential, the only remaining possible purpose of their simplification is not to inform, but to mislead the judge.
It's clear that the only purpose is to mislead the judge. It's not a simplification to say you detected "an individual" when you didn't. It's a lie.
I'm not intentionally distributing... (Score:3, Interesting)
Wonder whether that defense would work?
Only if you can claim to be "dumb" (Score:2)
And forget it altogether if you run Linux. After all, every judge knows that Linux users are geeks, and they are by default criminal hackers and suspicious, and if not guilty of this crime then certainly for something else.
Re: (Score:3, Interesting)
Not necessarily. You could say you only intended to share the files with yourself in another location. IANAL, but I don't believe the law requires an individual to take any special security precautions when dealing with copyrighted materials.
At this point.... (Score:5, Interesting)
Remember, this is the same crew that established 'payola' in the late 1950's and refined it in the decades since despite several court cases decided against them for this.
Reminds me of a Pennsylvania farmer I once knew. He made his living by poaching deer and selling the meat to some fancy, high dollar Maryland and D.C. restaurants. He would get caught poaching, pay the stiff fines out of a roll in his pocket and claim that it was only 3 days profits, and only got caught several times a year. Just a small operating expense...no big deal. He just laughed it off and even bragged about it.
I see the same mentality with the RIAA and MPAA, just throw crap against the walls as fast as you can...surely some of it will stick!
Remember: IP means Internet Protocol.
Re:At this point.... (Score:5, Insightful)
The only unusual thing is an individual being able to use this kind of business model. Corporations have the advantage that they cannot be arrested.
Parent
Still... (Score:2)
1) Good for the farmer... the deer population in the northeast is so ridiculous that with the ticks these animals have, they're as bad as rats in the city. The states ought to up the bag limit to 3 or 4 buck per season and allow anybody who wants to get a doe license.
2) If a farmer is shooting deer on his own property, is that really poaching? It's screwy that the law could protect the deer on his property, since it could be argued the deer are his. But I don't know anything abou
Re: (Score:3, Interesting)
Re: (Score:2)
Not disagreeing with the main point of your post, but, and I think they're the only animal I can say this about, somebody caught poaching deer should be given a fucking medal.
Deer are nowhere near even being endangered. Their population is not falling. If things continue exactly as they are, society is certainly no worse off because of this man's actions. The punishment is too stiff. It should be lightened until the deer population reaches the point when I almost hit them only as often as other highly succ
Oblig. IT crowd reference (Score:5, Funny)
You wouldn't steal a handbag... You wouldn't steal a car... You wouldn't steal a baby... You wouldn't shoot a policeman, and then steal his helmet... You wouldn't go to the toilet in his helmet, and then send it to the policeman's grieving widow, and then steal it again! Downloading films is stealing!
Re: (Score:2)
Re: (Score:3, Funny)
Oh, you mean legally, not morally. My fault, sorry.
Redundant Breakdown (Score:5, Insightful)
-The RIAA claimed that simply making copyright material available online,
was proof of intention to commit copyright infringement (We got proof!)
-Defense Lawyers challenged that claim as insufficient evidence (No you don't!)
-A Judge agreed with the Defense Lawyers (Ya, that isn't enough proof, begone RIAA!)
-RIAA returns, but drops the 'making available' argument (Is this better?)
What could happen now?
-The RIAA would stop bringing cases based solely upon the 'making availble' argument (If it wasn't for those darn Slashdoters)
They've lost the battle. Not the war. (Score:4, Insightful)
Any technology which allows the end-user to produce their own media (and some which didn't) has scared the entertainment industry.
First there were records - "But who will pay to see live performances if they can just play the record?". Then they realised that they could make a roaring trade selling records themselves.
Then came analogue tapes: "But who will buy records if they can just tape from a friend?" - then they established a business in selling tapes as they're smaller and it's very hard to play a record in a car.
Then came videos: "But who will go to the cinema if they can record movies from the TV?" - then they established a business in selling pre-recorded videos.
Then came affordable CD burners: "But who will buy CDs if they can copy from a friend?" - well, actually rather a lot of people. Though that didn't stop a lot of countries being pressured to establish taxes on blank media and passing these taxes back to the recording studios.
Now audio and movies can be easily shared over the Internet: "But we must stop this, lest nobody buy music, movies or visit the cinema!". What they really mean is "We're not sure that this sits well with our business model and we haven't yet figured out how best to exploit it so it does. While we're in the process of doing that, please talk quietly amongst yourselves AND STOP SHARING MUSIC, DAMMIT!".
Parent
Re: (Score:2)
Re: (Score:2)
The entertainment industry has always had a business based on flogging what's New! Shiny! Entertaining! And Not Identical To The Last One, Honest! (singles, latest Britney Spears clone, latest song by established artist) - and another side to the business based on flogging you what was New! Shiny! Entertaining! in the past (albums, DVDs).
It goes without saying that the part of the business which is likely to suffer from private media sharing is the latter
Re: (Score:3, Interesting)
For tapes and CDRs this didn't bother businesses so much. Hard drives do. Furthermore, unlike tapes and CDRs, Hard drives are by magnitudes bigger and can be used more often than just once or a handful of times. Not to mention that businesses are running rampart against this kind of "tax", because, well, just beca
There is more to it than that. (Score:2)
Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your compute
Re: (Score:2)
While I agree that detecting an IP address isn't proof that someone is responsible, isn't it enough suspision to obtain a warrant to search any computers on that address, a
Re: (Score:2)
But to answer your question, I think whether it is sufficient to justify a warrant is a matter for a judge to decide. If I were a judge, I would probably say "no", because IP addresses can be spoofed, and because, as I mentioned, there is the possibility of oth
Re:There is more to it than that. (Score:5, Informative)
Parent
Re: (Score:2)
Re: (Score:3, Insightful)
He just seemed to think it was bad form for me to have brought up Rule 11.
Re: (Score:2)
Similarly if you are (or could be) running TOR.
But ofcource (Score:2, Interesting)
Just read the "expert" testimony... (Score:2)
Re:Slashdot is just a pro-piracy site (Score:4, Funny)
Parent
Re:Slashdot is just a pro-piracy site (Score:5, Insightful)
Parent
That's not quite true (Score:3, Insightful)
While I consider Slashdot worthy enough to read and post to, I wouldn't recommend believing in your portrayal of an unbiased and fair democracy either.
Re:Slashdot is just a pro-piracy site (Score:5, Interesting)
It doesn't bother us (well, me, at the very least) so much that someone who illegally copies content gets busted and has to pay for it. What bothers me is the blanket/boilerplate way this is tried. The content industry usually has little to no evidence and abuses the court system for practices that smell a lot like extortion. "Pay or we drag you to court and your expenses are insanely higher" is the message.
Interesting enough, every single case is dropped as soon as the defendent has the guts (and money) to stand up against the threat.
So far they failed to present a single solid case. They rely on judges who don't know jack about the matter, on people who cannot afford to actually go to court against them and on scaremongering.
And yes, that's what I'm against. I can rather live with a pirate in freedom than with a corporation having the right to extort money from whoever they please.
Parent
Re: (Score:3, Insightful)
Incidentally, it does bother me. Why? Because we all know that a huge number of people infringe copyright on a daily basis. In fact, among the Internet-using population, I would be willing to bet that most people (>90%) have infringed copyright at some point. (During a talk at Google, Cory Doctorow asked the audience, by show of hands, how many had infringed copyright in
Re: (Score:3, Insightful)
If it's impossible to work within the limits of the law, people start ignoring the law. Basically, you could imprison anyone with a computer on grounds of copyright violation. I'm fairly sure you'
Re:Slashdot is just a pro-piracy site (Score:4, Interesting)
I'm getting REALLY royally pissed at "nothing to hide" bullcrap. Sorry, but my privacy is the only thing I will defend with my life. It's neither your, nor any country's, nor the RIAA's business what's on my PC, in my apartment or on my mind.
Yes, I have something to hide. It's called my private life. You want it? Over my dead body.
Parent
Entrapment? (Score:2, Informative)
I'm sorry, while I'd even agree with the privacy slant, and I don't really have much love for the RIAA... excuse me? Entrapment?
Let's have look at dictionary.reference.com [reference.com], shall we. The only definitions that fit in a legal context, seem to be the likes of "the luring by a law-enforcement agent of a person into committing a crime" (Random House Unabri
Re:Safe yet? (Score:5, Interesting)
Not yet. The RIAA didn't drop the complaint. They just amended it.
In the meantime, fly under the radar. Swap USB drives.
Parent
Re: (Score:2)
Is this actually allowed after a judge has tossed the case.
At best they should have to grovell humiliatingly to the judge, at worst start a whole new case from scratch.
Re: (Score:3, Informative)
Re:Safe yet? (Score:4, Funny)
Parent
Re:Safe yet? (Score:4, Funny)
Parent
Re: (Score:2)
Sorry, I'm just an expression of the slashdot group-think mind-fuck that goes for "copryright reform" discourse here.
The whole point of what NYCL is doing is almost a public service in pushing the final dregs of the the entertainment industry into the 21st Century. They should be fricking _paying_ him for the good this will do them once the pain is over and they come out the other side.
-P
(Moderators, bring it on. Karma-protection suite: Acti
Re:Nothing for you to see here. Please move along. (Score:4, Funny)
Parent
Re: (Score:2, Interesting)