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Arizona Judge Shoots Down RIAA Theories

Posted by kdawson on Tue Apr 29, 2008 04:33 PM
from the schmaking-available dept.
Government The Courts United States News
NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"
+ -
story

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[+] RIAA Argues That MP3s From CDs Are Unauthorized 668 comments
NewYorkCountryLawyer writes "In an Arizona case against a defendant who has no legal representation, Atlantic v. Howell, the RIAA is now arguing — contrary to its lawyers' statements to the United States Supreme Court in 2005 MGM v. Grokster — that the defendant's ripping of personal MP3 copies onto his computer is a copyright infringement. At page 15 of its brief (PDF) it states the following: 'It is undisputed that Defendant possessed unauthorized copies... Virtually all of the sound recordings... are in the ".mp3" format for his and his wife's use... Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies...'"
[+] EFF Takes On RIAA "Making Available" Theory 366 comments
NewYorkCountryLawyer writes "In Atlantic v. Howell, the Phoenix, Arizona, case in which a defendant who has no legal representation has been battling the RIAA over its theory that merely 'making files available for distribution' is in and of itself a copyright infringement, Mr. Howell has received some help from an outside source. On the last day allowed for the filing of supplemental briefs, the Electronic Frontier Foundation filed an amicus curiae brief agreeing with Mr. Howell, and refuting the RIAA's motion for summary judgment. The brief (PDF), which is recommended reading for anyone who wants to know what US copyright law really says, points out that 'contrary to Plaintiffs' arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work.' This is the same case in which the RIAA claimed that Mr. Howell's MP3s, copied from his CDs, were themselves unlawful."
Submission: RIAA theories shot down in Arizona case by NewYorkCountryLawyer (912032)
[+] Your Rights Online: NewYorkCountryLawyer Debates RIAA VP 291 comments
NewYorkCountryLawyer writes "At Fordham Law School's annual IP Law Conference this year, Slashdot member NewYorkCountryLawyer had a chance to square off with Kenneth Doroshow, a Senior Vice President of the RIAA, over the subject of copyright statutory damages. Doroshow thought the Jammie Thomas verdict of $222,000 was okay, he said, since Ms. Thomas might have distributed 10 million unauthorized copies. NYCL, on the other hand, who has previously derided the $9,250-per-song file verdict as 'one of the most irrational things [he has] ever seen in [his] life in the law', stated at the Fordham conference that the verdict had made the United States 'a laughingstock throughout the world.' An Australian professor on the panel said, 'The comment has been made a few times that America is out of whack and you are a laughingstock in the rest of the world. As the only non-American on the panel, that's true. We do see the cases like Thomas in our newspapers, and we think: "Wow, those crazy Americans, what are they up to now?" This whole notion of statutory damages is not something that we have within our Copyright Act. You actually have to be able to prove damage for you to be able to be compensated for that.' NYCL also got to debate the 'making available' issue, saying that there was no 'making available' right in US copyright law, despite the insistence of the program's moderator, the 'keynote' speaker, and a 'majority vote' of the audience that there was such a right. The next day, two decisions came down, and a month later yet another decision came down, all rejecting the 'making available' theory."
[+] Your Rights Online: RIAA Lawyer Jumps Ship 181 comments
NewYorkCountryLawyer writes "The RIAA's top litigation lawyer, who has been personally leading the RIAA's litigation campaign for the past several years, Richard Gabriel, will be leaving his law practice after getting a job as a state court judge for a 2-year term in Colorado. What this will mean to the RIAA's litigation machine is anyone's guess. Mr. Gabriel has personally argued all of the RIAA's main cases, including Elektra v. Barker, Atlantic v. Howell, Atlantic v. Brennan, Capitol v. Foster, Atlantic v. Andersen, UMG v. Lindor, and London-Sire v. Doe 1, and personally tried the Capitol v. Thomas case, the only RIAA case that has ever gone to trial. He was working directly under the supervision of the RIAA's mysterious 'representative' Matthew Oppenheim."
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  • RIAA 1, Everyone else 35920?

    They did win one, didn't they?
    • They won plenty, all the people that paid up and didn't try to take it to court. And yes, they did win one for 220,000$ of those too. You'll be hearing about these cases for many years to come...

    • Re: (Score:3, Insightful)

      by LithiumX (717017)
      They won quite a few. It's that very success that woke people up to the reality of what this group was doing.

      On a side note, my wife took a look at the ruling I was reading and asked how I could understand any of that. My reply that judicial rulings are usually a far easier read than affidavits and motions got me thinking...

      Has anyone else noticed, on their end, that actually reading through court documents on the web has given them a firmer grasp of legal terms and syntax than they had before? For

        • Re: (Score:3, Interesting)

          by sjames (1099)

          I'm not so sure it's dismissive so much as derisive. Part of that is in the compulsory nature of law. Plumbers can't just send you a letter full of gibberish that translates to "hire a plumber or never flush again!" and make it stick. Lawyers do that all the time. While they do tend to make you miss a day of work if you hire them, you can opt to do without. Plumbers can't force you to take off for weeks even if it bankrupts you.

          I'm not saying that there is a good way to fix all of the above, but I must sa

          • Re: (Score:3, Insightful)

            by electrictroy (912290)
            Thomas Jefferson said laws should be written in plain English, because laws exist to serve the People, and need to be understood by the same.

            Makes sense to me. Why insert a bunch of flowery language just to say, "It is wrong to enter another man's household."

  • Unfortunately this probably won't end here (Score:5, Insightful)

    by NonSequor (230139) on Tuesday April 29 2008, @04:45PM (#23244752) Journal
    This decision only means that the law currently on the books can't be interpreted in the way the RIAA wants.

    However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.

    • Re:Unfortunately this probably won't end here (Score:5, Insightful)

      by 91degrees (207121) on Tuesday April 29 2008, @04:59PM (#23244964) Journal
      Yes, but there are anti-RIAA forces that are a lot more organised than they were in pre-DMCA days. I don't think many people on Slashdot really cared about copyright laws until the MPAA sued over DeCSS. These days, the EFF has quite substantial support, politicians realise that there are actually quite a lot of people who think current levels of copyright are too strong, and we're actually pretty organised (albeit in an ad-hoc chaotic way).

    • However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.

      The RIAA has been going after consumers for many years now, and they've been almost completely unsuccessful in their efforts. They've also been pushing for years to get Congress to let the RIAA call the shots on P2P, again without success.

      Big Media has been successful in getting copyright's duration extended to infinity and beyond, b

  • I am impressed by the judge. It is nice to see a case where the defendant was not at the mercy of expensive lawyers, and the judge actually took a look at the case law before making a decision.

    It is crazy to assume a wrongdoing when no transaction has taken place. Alcohol stores are not fined when minors fail to buy alcohol, a transaction has to take place for the offense to be actionable. Good show.

    • I am impressed by the judge. It is nice to see a case where the defendant was not at the mercy of expensive lawyers, and the judge actually took a look at the case law before making a decision.
      Me too. This was a good day for the rule of law.

      • I am impressed by the judge. It is nice to see a case where the defendant was not at the mercy of expensive lawyers, and the judge actually took a look at the case law before making a decision.
        Me too. This was a good day for the rule of law.
        If the defendant is found to be innocent does the Judge's decision today set a decent precedent?

        • Re:I have to say... (Score:5, Informative)

          by NewYorkCountryLawyer (912032) * on Tuesday April 29 2008, @05:23PM (#23245230) Homepage Journal

          If the defendant is found to be innocent does the Judge's decision today set a decent precedent?
          Today's decision is an important precedent no matter what happens at the trial. It is the clearest and most comprehensive decision to date on the RIAA's campaign to enlarge the 17 USC 106(3) distribution right. This decision, unlike Judge Karas's decision [blogspot.com] in Barker [blogspot.com], is mainstream. It takes the statute, the caselaw, and the legal scholarship, and brings it all home.
        • Yes. Everything that happens in court can be seen as setting a precedent, even the cases where RIAA dropped out because it looked like they were going to lose. The difference is that this ruling, like several others that've been passed against them recently, is actually useful to reference in a case. :)

    • I think the conclusion says it all:

      The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights. Even so, it is not the position of this court to respond to new technological innovations by expanding the protections received by copyright holders beyond those found in the Copyright Act.

    • Re: (Score:3, Insightful)

      by CodeBuster (516420)

      It was not so much that a transaction had not taken place, but rather that the RIAA had failed to prove, in point of fact, that a transaction had actually taken place (i.e. it is not enough that the law could have been broken, it must be shown that it actually was broken). I thought that the following commentary from senior EFF lawyer Fred von Lohmann was especially informative:

      "If the RIAA wants to keep bringing these suits and collecting big settlements, then they have to follow the law and prove their

  • for the Arizona district. As an Arizonan I wish he were an elected official so that we could keep him on that bench for a good long while. This is the second major issue Wake has weighed in on, and both have been good decisions that are good for Arizona. I hope he continues to do this.
    • Judge Wake is a good guy, he knows when a law is bad, when a law is good and when it is just marginal. He and Rep. Russell Pearce [mesa18.com] have worked together to enact some of the best laws we have here in Arizona.
    • Judge Wake isn't going anywhere. He's an Article III judge (part of that Constitution thing)--meaning that he's got his bench for life.

  • The reason... (Score:3, Informative)

    by Skeet112 (1088203) on Tuesday April 29 2008, @04:54PM (#23244898)
    The main reason you don't hear about the RIAA winning any case is because.....

    They don't.

    They use their Gestapo mindset and frivolous law-suit threats until the person they are harassing into submission, and finally settle out of court. The one's you actually hear about are the ones that go to court, and those tend to be in the defendant's favor... (Aside from the legal fees that you'd have to pay.)

  • Once again a court (Score:3, Insightful)

    by geekoid (135745) <dadinportlandNO@SPAMyahoo.com> on Tuesday April 29 2008, @04:58PM (#23244940) Homepage Journal
    shows that distribution is the crime, not downloading.

    • Re:Once again a court (Score:4, Informative)

      by nixNscratches (957550) on Tuesday April 29 2008, @05:28PM (#23245280)

      Actually, Howell claims he never downloaded any music. According to his testimony, the music files on his PC were ripped from CDs he owns. He used KaZaa to download porn and free e-books which he gave KaZaa the right to "share". At the heart of his defense is the idea that KaZaa searched his hard drive for media that was never intended to be shared and made that available without his knowledge or consent.

      • the porn defence,
        well i was just browsing porn and then something happened and my computer was full of the internets

        only the RIAA could distort reality so much that people claim to be downloading porn to explain the presence of music & films on thier computer.

        shame that itll be very easy to prove that the files wernt ripped from the CDs when:
        a) The files are encoded by a variety of encoders and a variety of bandwidth (like to see him explain that, he could at best make the jury not 100% sure)
        b) The comm

    • Re: (Score:3, Insightful)

      by QuantumG (50515) *
      There's no "crime" involved, it's a civil matter.

      • Re: (Score:3, Informative)

        by mr_matticus (928346)
        This case is a civil matter, yes. Distribution absolutely can be a crime, though. Atlantic had very little hope of proving their civil case here, so obviously they weren't even going to try for even harder-to-prove criminal charges.

        Just like there's civil fraud and criminal fraud, there is both civil and criminal copyright infringement.

  • Not evisceration, but a major blow (Score:5, Insightful)

    by Todd Knarr (15451) on Tuesday April 29 2008, @05:00PM (#23244976) Homepage

    I don't think it eviscerates the RIAA's claims, but it's certainly a major blow to their theories. As I read it, the judge is saying that merely making them available isn't automatically infringement. This makes sense if you think of an analogy. If I put a book down on the table on my front porch while I go inside to get a drink, and someone comes along and takes it, I surely made it available but nobody in their right mind would claim I intended to distribute it to the thief. Compare that to the case where I put a whole bunch of books on a table out by the sidewalk with a sign "Free books, take as many as you want.". I suspect the judge here is ruling along similar lines: it's not sufficient for the RIAA to claim that the files were merely available, they have to claim the files were (reasonably) knowingly made available for the purposes of infringing distribution. OTOH, if the files were available to the public, but were put where they were for a non-infringing purpose and the defendant wouldn't reasonably (given their knowledge) expect the files to be open for the taking by anyone else, then the RIAA's claim fails. Which to me sounds reasonable, so seems more reasonable than either of the extreme positions take by the RIAA or the P2P advocates.

    • Re: (Score:2, Insightful)

      by tattood (855883)
      Regarding your analogy, that does not apply to P2P. When you load a P2P client on your computer, the 2 purposes of the software are to download software from other people running similar software, and to then upload those files to other people running the similar software. So essentially running P2P is like saying "Free music, take as many as you want". Can you give an example of "making music files available" without expecting them to be distributed?

      Now, I have not RTF 17-page paper, so this may no

      • Re: (Score:3, Insightful)

        by ricree (969643)
        In this case, the defendant claimed that he was using Kazaa to legally distribute non music files, and that due to some unknown cause the music became available. Perhaps not the most likely scenario in the world, but this was a ruling on a motion by the RIAA for summary judgment. In order for the motion to be granted, the RIAA has to show that they would win the case even if all allegations in dispute were interpreted in the light most favorable to the defendant. Since that was not the case here, the mot

  • Make the RIAA Download/Upload (Score:3, Interesting)

    by monxrtr (1105563) on Tuesday April 29 2008, @05:00PM (#23244980)

    The War will be won if the RIAA is forced to download/upload to gather evidence, and really there is no evidence whatsoever from file titles; that could reasonably be personal commentary or a fair use parody. The defendant should not be *presumed* guilty, the RIAA should *prove* infringement. File titles are 0% evidence, not even 1% "circumstantial". We don't really know, since no song has ever been played in any Court (and that alone will be worth millions in PR for the cause).

    Keep a sharp eye on those RIAA IP addresses.

    Screenshots of white powder is 0% evidence of cocaine. Writing $100 is 0% evidence of counterfeiting a one hundred dollar bill. And britneyspearstoxic.mp3 is 0% evidence of copyright infringement.

    And imo, those paid settlements are RICO violations for precisely the reason that the RIAA has been on a 0% evidence extortion witch hunt.
    • but britneyspearstoxic.mp3 is 100% evident of bad musical taste. :D:D that alone deserves a lawsuit or 2 ;) lol

    • Re: (Score:3, Insightful)

      by Enleth (947766)
      That gave me an idea... What if someone recorded a few minutes of belching and farting, named it after some song RIAA seeks, clipped it to the lenght and packed with some white noise in the background so that the file size roughly matched and put it up on BT? You see, P2P clients publish a checksum of every file and every expert appointed by the court will admit that an MD5 or SHA checksum is a sufficient proof of the file spotted by RIAA being the same as the file promptly presented to the court by the def
  • I believe that this is just another sign that the RIAA's backers is still trying to maintain a business model that is clearly failing in the face of modern technological, and perhaps social, realities. We can debate back and forth about technicalities in the law, but what it really comes down to that distributing music the way it has been done for so long is no longer viable. People want another system; a better system. Of course I am no expert, I offer no alternative.. But I do believe another system could
    • Yes, we are sick of the current system. I for one didn't buy a CD for about 8 years, maybe more:

      - I'm sick of paying for a media that is damaged so easily (tapes were much more resistant)
      - I'm sick of paying for a 15 "musics" CDs just because of 1 music
      - I'm sick of have to carry 100 CDs in my car

      and the list goes on and on.

  • Not Evisceration, just careful consideration. (Score:5, Informative)

    by nixNscratches (957550) on Tuesday April 29 2008, @05:25PM (#23245258)

    While this does weaken the RIAA's case, they still have a decent shot at conviction. All that was denied here was a shot at summary judgement. At issue here is the idea that making a copy of a protected work available is not the same as copying, but may leave the defendant open to contributory liability.

    Howell contends he never intended to share, nor authorized KaZaa to share his music files and it may not be possible for the RIAA to prove otherwise.

    For what it's worth, he also poked holes in EFF's argument that Media Sentry - as an agent of the RIAA, cannot infringe on their own copyright. He argues that the RIAA / et all never intended to license Media Sentry to authorize distribution or reproduction and therefore the 12 copies Media Sentry downloaded stand up as "unauthorized" copies of the works. The issue remains open as to whether Howell can be held liable for these copies.

    • All that was denied here was a shot at summary judgement.
      Yes the case will turn on its particular facts. But at least we can take comfort that the correct legal standards will be applied in determining those facts.

      By the way, one of the interesting things about this case: it will NOT be a jury trial. Mr. Howell never demanded a jury trial. Judge Wake, not a jury, will be the trier of the facts.

  • Not copyright infringement... (Score:3, Interesting)

    by BUL2294 (1081735) on Tuesday April 29 2008, @06:04PM (#23245658)
    While IANAL, if you read the EFF brief & the judgement in depth, an interesting defense is being promulgated... Even if the defendants specifically allowed MediaSentry to download these files, as authorized agents of the copyright holders, no copyright infringement actually took place!!! There's case law that says that a copyright holder (or their agent) cannot infringe on their own copyright... Hence the new, stupid, "making available" claim...

    What does that mean? Assuming this argument is valid (which I can't see how it couldn't be), the plaintiffs would have to go back to square one and find someone else on Kazaa who downloaded specific files from the defendants--specifically infringing on copyright law. And for anyone who has used P2P before, how often do you know (or remember) who you're downloading from? Personally, I think that borders on impossible to prove--unless Kazaa keeps some sort of detailed log data file that MediaSentry would have to gain access to...

    • Re: (Score:3, Informative)

      by Ravensfire (209905)
      While IANAL, if you read the EFF brief & the judgement in depth, an interesting defense is being promulgated... Even if the defendants specifically allowed MediaSentry to download these files, as authorized agents of the copyright holders, no copyright infringement actually took place!!! There's case law that says that a copyright holder (or their agent) cannot infringe on their own copyright... Hence the new, stupid, "making available" claim...

      What does that mean? Assuming this argument is valid (which

  • Law clerk (Score:3, Insightful)

    by wile_e_wonka (934864) on Tuesday April 29 2008, @06:36PM (#23246026)
    Just to let you know a bit more about how the courts work--
    More than likely this opinion was written by a "judicial law clerk" who graduated from law school last June (likely toward the top of his class). Judges vary widely, some write their own opinions, some collaborate with their law clerks, and some let their clerks write the memos, glance through them and mail it out. Most judges fall somewhere between the last two. The prior decision (today's decision was a reconsideration of an earlier decision in the RIAA's favor) was dated last August, which means it is very possible it was written by last year's law clerk (once again, these things vary, but most clerkships are one year long and start sometime between Late July and early September.
    Just thought I'd let you think about that.

    • who wants to store all their CDs on their computers in WAV format???

      Few, but lossless is only becoming more popular as the cost of storage space goes down. I ripped my entire CD collection to my hard drive and encoded it in FLAC. I have digital audio-out, so I can connect my computer directly to my stereo and never have to take my CDs down from the shelf again.

    • While the RIAA stipulated their assertion that the MP3 files are "unauthorized" copies of the music the defendant purchased on CDs, they never claim these copies are "illegal." It's a very precarious legal tightrope they're walking. If they claim those copies are illegal, that opens up a whole can of worms, and things might not go the way they'd like. So they claim those copies are "unauthorized" -- which is technically true, but doesn't address the issue of whether the defendant needed authorization.

      Whe

      • I guess that you could say that "he got by with a little help from his friends".

        That Billy Shears was a rockin' dude.


        What would you do,
        If the labels said they'd sue,
        Would you freak out and pay them their fee?

        Send me a judge,
        And he'll interpret the law,
        And he won't put you under lock and key.

        • Re: (Score:3, Insightful)

          by jd (1658)
          Needs to be lock'n'key, or there are too many syllables in the last line.

    • The key phrase here is "intent to distribute"...

      ITD been made illegal for kiddy porn and drugs. Check your local statutes for details, as your area may have "blue laws" that cover more than you expect...

    • Why don't you do it yourself instead of making extra work for others? Look at the court papers, jot down the names of the plaintiff record companies, and list them here.

    • Re: (Score:3, Informative)

      by hyades1 (1149581)

      commentator /kmntetr/ [kom-uhn-tey-ter]

      -noun

      1.a person who discusses news, sports events, weather, or the like, as on television or radio.

      2. a person who makes commentaries.

      [Origin: 1350-1400 Middle English. interpreter, equiv. to comment to interpret (Latin: to think about, prepare, discuss, write, perh. freq. of commin; to devise; see comment) + L -tor -tor]

      --Related forms

      commentatorial [kuh-men-tuh-tawr-ee-uhl, -tohr-], adjective

      commentatorially, adverb

      Random House Unabridged Dictionar

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