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RIAA Throws In Towel On "Making Available" Case
Posted by
timothy
on Wed Jun 11, 2008 03:09 PM
from the that's-sure-a-big-towel-you've-got dept.
from the that's-sure-a-big-towel-you've-got dept.
NewYorkCountryLawyer writes "The RIAA has thrown in the towel on one of the leading cases challenging its 'making available' theory, Warner v. Cassin, in which the defendant had moved to dismiss the RIAA's complaint. We have just learned that the RIAA submitted a voluntary notice of dismissal before the judge got to decide the defendant's motion to dismiss the complaint. It will be of interest to see if Ms. Cassin pursues a claim for attorneys' fees in view of recent court rulings that successful copyright defendants are presumptively entitled to an attorneys fee award, even if the dismissal came about from the plaintiffs' having 'thrown in the towel.'"
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RIAA's "Making Available" Theory Is Tested 222 comments
NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."
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RIAA's Throwing In the Towel Covered a Sucker Punch 411 comments
NewYorkCountryLawyer writes "The RIAA threw in the towel, all right, but was only doing it in preparation for throwing a sucker punch. After dropping its 'making available' case, Warner v. Cassin, before Judge Robinson could decide whether to dismiss or not, it was only trying to do an 'end run' (if I may mix my sports metaphors) around the judge's deciding the motion and freezing discovery. The RIAA immediately, and secretly, filed a new case against the family, calling this one 'Warner v. Does 1-4.' In their papers the lawyers 'forgot' to mention that the new case was related. As a result, Does 1-4 was assigned to another judge, who knew nothing about the old case. The RIAA lawyers also may have forgotten that they couldn't bring any more cases over this same claim, since they'd already dismissed it twice before. Not to worry, NYCL wrote letters to both judges, reminding them of what the RIAA lawyers had forgotten."
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Interesting.. (Score:5, Insightful)
Seems to me further evidence that they are systematically abusing the legal system with sham lawsuits. If they actually cared about this individual case wouldn't they want to see it through?
Re:Interesting.. (Score:5, Insightful)
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Re:Interesting.. (Score:5, Insightful)
If that's the case, why take it to court at all? The threat of lawsuit is only a credible threat if it is backed by a willingness to actually battle it out. Every case they give up on is further weakening their cause, both by showing people that they can fight and win and by creating animosity among judges who feel like their courtroom is being abused. In the long term, they would be much better off not taking any case to court unless they are certain they can win it....
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Re:Interesting.. (Score:4, Interesting)
I'm not a lawyer -- of course -- but it seems to me that threatening a ton of people with lawsuits in order to achieve a settlement and then never following through when the settlement is rejected would be just a bit too obvious, even for organizations like these. I doubt most courts look favorably on that sort of bluff, even ignoring the fact that only a credible threat of being sued would induce people to settle in the first place.
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Re:Interesting.. (Score:4, Interesting)
I agree that the RIAA just wants to settle; nonetheless, they must take, at least, some of the people who choose not to settle to court. Also, a very practical reason would be that no one would settle because there would be no fear of more costly retribution.
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Re:Interesting.. (Score:4, Insightful)
Add to that, they expect to be able to out-lawyer those they sue (gaining a win) or win by default judgement (the previous norm).
Sadly, they seem yet to have realized that such a scenario isnt working anymore as more people are actually fighting them, and more lawyers are willing to step up to defend them.
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Re:Interesting.. (Score:4, Interesting)
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IIRC the word is Barretry (Score:4, Informative)
Extortion via threatened litigation.
It can get a lawyer disbarred.
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Re:Interesting.. (Score:4, Interesting)
As another poster pointed out, these cases are essentially disposable, and will continue to be treated as such by the RIAA, as long as it help keep them from establishing precedent that doesn't swing in their favor.
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Re:Interesting.. (Score:5, Insightful)
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Re:Interesting.. (Score:4, Funny)
Except that they LOSE money on every settlement!
Haven't you been following along with the stories?
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Re:Interesting.. (Score:5, Interesting)
-make money on the settlements
-lose money on the default judgments, and
-lose a lot of money on contested cases. Overall I think they're losing money now, but the settlements are the money-making part of it. They get almost no revenue from anything else.
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Re:Interesting.. (Score:5, Informative)
adjudication on the merits = with prejudice = case cannot be brought against her again
no judge can't stop them from withdrawing the case before an answer has been filed
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Re:Cowards (Score:4, Informative)
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Re:Interesting.. (Score:5, Interesting)
So it has been a short term financial boon for some lawyers who (a) are not very particular about the kind of work they accept, and (b) won't have that work for much longer.
And it's been a disaster for the record company shareholders, and a disaster for the victims of the suits, and it's been a hardship -- albeit one assumed voluntarily -- for folks like me who decided to step into this mess to try to stop these bullies.
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Re:Interesting.. (Score:5, Informative)
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Re:Interesting.. (Score:5, Informative)
FTA:
The notice states that the dismissal is "without prejudice". However, Fed. R. Civ. P. 41 (B) states "if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." It is believed that the plaintiffs learned of the defendant's identity through a prior, "John Doe", proceeding, which it also voluntarily dismissed, so that the dismissal in this case "operates as an adjudication on the merits".
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Re:Interesting.. (Score:4, Interesting)
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You can't sue someone & withdraw forever! (Score:4, Insightful)
I don't know what you mean about someone "suddenly" no longer being a criminal, but one thing in civil law is that you can't keep suing someone, then drop the case. If you withdraw, you can bring the same case ONCE more. If you drop the same case twice, that's it. You don't get to keep suing them and dropping the case.
The RIAA works by suing first to get your identity from your ISP. They may or may not have the correct person, but they don't really care. You're not a part of this case, because you probably don't even find out that there WAS a case until it's over. Then they send you to their own "settlement center" unless you refuse and go to court.
But yeah, these aren't criminal lawsuits, they're civil (the RIAA can't bring a criminal lawsuit to begin with). So double jeopardy and all that doesn't apply, but civil rules about withdrawing from cases and such DO apply. Read the FRCP (Federal Rules of Civil Procedure) if you want more information.
But please note, IANAL. Get one before engaging or deciding to engage in any litigation, because I can't give you legal advice! And if NYCL comes in to correct me, listen to him. I had exactly one law class and it didn't cover this. Given how sharp the MAFIAA's practice is, I don't doubt that they will at least try to find loopholes in my line of reasoning.
- I Don't Believe in Imaginary Property [eff.org]
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More importantly... (Score:5, Funny)
Any organisation who can sue the length and breadth of the galaxy, rough it, slum it, struggle against terrible odds, win through, and still knows where it's towel is, is clearly an organisation to be reckoned with.
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Re:Interesting.. (Score:5, Informative)
Exactly right.
By throwing in the towel here they think they are free to play this hand at another table. Avoiding a ruling was more important to them than simply losing this round.
TFA implies this may not be the case, and the dismissal may attach prejudice on any subsequent (or concurrent) claims against other defendants that are substantially similar.
IANAL, but would like to see one weigh in here with some professional observations.
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Re:Interesting.. (Score:5, Informative)
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About time. (Score:5, Insightful)
Re:About time. (Score:5, Interesting)
This is what necessitates the "making available theory"
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Re:About time. (Score:4, Interesting)
...which could leave an interesting loophole...
If you require all music downloaders at your site, before downloading, to check a box that states "I hereby state that I am a MediaSentry/RIAA employee/contractor, and assume responsibility for affirming as such", could that get you off the hook?
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Re:About time. (Score:5, Informative)
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Re:About time. (Score:5, Insightful)
No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.
Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers. Charlie rips a song from a CD and makes an MP3 of it (perfectly legal, though the RIAA would like for it not to be). Charlie then places that song in his "Shared Files" folder (still perfectly legal). Denise downloads the song--it's only at that moment that anything illegal was done, but it is Charlie, not Denise, who has broken the law.
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Re:About time. (Score:5, Informative)
No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.
Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers. Charlie rips a song from a CD and makes an MP3 of it (perfectly legal, though the RIAA would like for it not to be).
Contrary to popular opinion, the legality of ripping files is not a given. I don't have the text in front of me, but I recall the legality being hinged on judicial interpretation of several seemingly obvious, but legally fuzzy terms (such as "home audio recording device," and whether or not said term includes computers).
Charlie then places that song in his "Shared Files" folder (still perfectly legal).
Still questionably legal. This is the (untested as far as I know) act that the RIAA is trying to get labeled as inducement or contributory infringement. The idea is that, but for Charlie making it available for Denise to download, no infringement could have occurred.
Denise downloads the song--it's only at that moment that anything illegal was done, but it is Charlie, not Denise, who has broken the law.
Nope, they both have. Charlie and Denise have both infringed the reproduction and distribution rights of both the song writer and the recording artist. The RIAA has been choosing to sue only those who are making the tracks available (probably either because they think it's the cheapest way to get their message across, or because they haven't figured out a way to nail the downloaders without stirring up entrapment charges), but could go after both.Note: this doesn't mean that I think the RIAA is right, this is just my take on the system as it stands today. Personally, I think a major overhaul is in order. One that doesn't include all of the stupid special interests that bought their way into the current system.
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Re:About time. (Score:4, Interesting)
No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.
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Re:About time. (Score:5, Interesting)
No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.
Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers. Charlie rips a song from a CD and makes an MP3 of it (perfectly legal, though the RIAA would like for it not to be).
Contrary to popular opinion, the legality of ripping files is not a given. I don't have the text in front of me, but I recall the legality being hinged on judicial interpretation of several seemingly obvious, but legally fuzzy terms (such as "home audio recording device," and whether or not said term includes computers).
I'm aware of the questions there, but I'm going with MGM v. Grokster. Plaintif's oral arguments included an explicit admission of the legality of ripping a purchased CD to one's hard drive, and copying it to a media device (two separate acts, in my view). While of course a statement made in oral arguments is not a legal opinion or ruling, I think it not unreasonable to assume permission.
Still questionably legal. This is the (untested as far as I know) act that the RIAA is trying to get labeled as inducement or contributory infringement. The idea is that, but for Charlie making it available for Denise to download, no infringement could have occurred.
Rejected by 9th Circuit in Atlantic v. Brennan and others, though I don't know if any of them qualify as an actual ruling of law. Nor do I know if it is a binding precedent.
Nope, they both have. Charlie and Denise have both infringed the reproduction and distribution rights of both the song writer and the recording artist. The RIAA has been choosing to sue only those who are making the tracks available (probably either because they think it's the cheapest way to get their message across, or because they haven't figured out a way to nail the downloaders without stirring up entrapment charges), but could go after both.
Hmmm ... I can't find what specific law or provision that would actually violate--if you have a citation, I'd love to see it--but it certainly makes sense the way you explain it.
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Re:About time. (Score:5, Informative)
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Re:About time. (Score:5, Informative)
How did he get the wildly incorrect instructions? From the RIAA lawyers.
How did they get him to accept the wildly incorrect instructions? By deceiving him. They (a) failed to call his attention to contrary controlling authority, and (b) calling to his attention a case which they knew had been vacated, without telling the judge that it had been vacated.
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Re:About time. (Score:4, Insightful)
Just watch how the PRO-IP Act ends up being self decapitation for the big content industry. We will elect some such "rogue" DA in a city(-ies) to be named at a future time. Fuck wasting time and money lobbying Congress. There's big fortune, fame, and political power to be had from taking down the music industry. Eliot Spitzer's career as New York City DA paved the way. The internet operates in every jurisdiction. "Hello, my name is DA Inigo Montoya. You sued my father. Prepare to be bankrupted."
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Re:About time. (Score:5, Funny)
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Your Honor (Score:5, Interesting)
sigh... Gamesmanship at its most disgusting...
I'm curious - can the judge deny their voluntary dismissal and still hand down judgment?
Re:Your Honor (Score:5, Informative)
They were about to lose a(nother) case against a dutch ISP (xs4all.nl) that was hosting Karin Spaink's website and were denied to withdraw. And lost.
See http://www.xs4all.nl/~kspaink/ for more information.
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It's because they are betting on the ACTA Treaty (Score:5, Informative)
They figure the lawyer fees would be better used to bribe congress critters to push ACTA, instead.
The you can't fire me... (Score:5, Interesting)
Be afraid, be very afraid (Score:5, Interesting)
I personally think it has something to do with the nature of P2P. In the old days if you shared music, the person would download it directly from you. Now you're only sharing bits and pieces of songs,not entire songs, spread out among many different people.
Of course the RIAA could attempt to make the argument that that sharing one even one bit of a song constitutes infringement. However, when one and zeros themselves become illegal, we're all in trouble!
Re:Be afraid, be very afraid (Score:5, Informative)
Second, there will never be any law that holds that a bit of data could constitute copyright infringement anymore than copying one note could constitute copyright infringement. Neither bits nor notes are copyrightable because neither could be considered an original work.
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Re:Be afraid, be very afraid (Score:5, Informative)
I am, I did, I never said I do, I don't care what you call it, and I'm not.
"you just happaned to distribute some tiny portion... this could be seen as copyright infringement."
I think the problem you have is that you don't understand how systems such as bittorrent work. When you share data on bittorrent, you're not sharing sequential data. Thus, unless a lot of data was shared, it would be impossible to prove that the nearly random data you've shared was a part of an actual song.
When you download from bittorrent, you're immediately sharing. However, since you're downloading from many computers you're downloading faster than you're uploading. Combined with the fact that you cannot share what you do not have, when the download is complete, you're necessarily going to have shared less than what you've downloaded. And because you're sharing with numerous people, that random non-sequential data is going to become even less recognizable as a song because it was spread out to different computers.
Let's take a real world example, Let's say you download one 4MB MP3 from bittorrent. You download it from 100s people and some of those people start sharing from you. Let's say during that download you uploaded one forth of it, thus you've uploaded one non-sequential megabyte. However, because you shared it across 100 or more people, that one non-sequential megabyte has to be divided into at least 100 non-sequential parts. That means that each person you shared with got about 10KBs of data each. Do you really think that someone could determine a song based on 10KBs of non-sequential data? Really? The answer is "no," you cannot. And that's why the RIAA is making this ludicrous "making available" argument.
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Re:Be afraid, be very afraid (Score:5, Informative)
Second, I think sharing a part of a song without permission of the copyright holder could be infringement, ignoring any fair use arguments or the like. I've not seen any case law to support that, however.
My point is that the "making available" argument is infinitely easier to prove than the actual infringement argument. And furthermore, that under the current P2P systems available, that actual infringement will be nearly impossible to prove.
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GPLv3 and making available: FSF's view (Score:4, Informative)
GPLv3 gives "making available to the public" as an example of propagation. What does this mean? Is making available a form of conveying?
One example of "making available to the public" is putting the software on a public web or FTP server. After you do this, some time may pass before anybody actually obtains the software from youâ"but because it could happen right away, you need to fulfill the GPL's obligations right away as well. Hence, we defined conveying to include this activity.
Seems Fishy... (Score:4, Informative)
Re:Isn't copyright infringement when a COPY is mad (Score:5, Informative)
http://www.copyright.gov/title17/92chap11.html#1101 [copyright.gov]
Of course, reasonable interpretation is necessary. If you put KaiserChiefs-Ruby.mp3 in your public folder of a limewire machine, is it reasonable to assume that you have put it there for your own use? Of course not. If you put it in a non-advertised publicly accessible folder that is password protected? then yes. Reasonableness matters. this is why, if you are caught in the bank with a gun in your hand, the "aliens just teleported me here and implanted false memories in the witnesses' brains to make them think that i robbed this bank" defense won't work, even if the existence of such a possibility means that your guilt is not "certain" in some mathematical sense.
Additionally, i find it very ironic that you are arguing that it's not the making available, but the downloading that's illegal, when we just had a whole different thread of idiots yesterday arguing exactly the opposite to justify their piracy.
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Re:Isn't copyright infringement when a COPY is mad (Score:5, Funny)
It's the RIAA's lawyers that are missing something. I'm not sure what they're missing, but I've got it narrowed down to 2 things: (1) brain cells, or (2) integrity. Or possibly some of each.
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Re:Case Law? (Score:5, Informative)
The most recent caselaw is that copyright defendants are presumptively entitled to attorneys fees [blogspot.com] where the case got dismissed by the plaintiffs who "threw in the towel".
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Re:Come on.. (Score:5, Informative)
Secondly, how does it hurt the defendant for the case to go away? Answer, it doesn't.
The only question is whether or not attorneys fees will be sought. But that is a totally separate issue.
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Re:It will be of interest (Score:5, Interesting)
And the answer is, she hasn't decided yet.
She clearly has a winnable attorneys fee motion ahead, if she decides to make one, with a lot of good recent precedent behind it, such as Rivera v. Jones [blogspot.com], Mostly Memories v. For Your Ease [blogspot.com], Capitol v. Foster [blogspot.com], Atlantic v. Andersen [blogspot.com], and Bridgeport Music v. WB Music [blogspot.com].
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Re:They are not illegal copies (Score:5, Informative)
It is also 100% legal for an American in Russia to buy all they wanted under this fully licensed and legal process, and cary it back home in their cary on. However, one point that is not settled is whether an American can, while sitting in the USA, download a song. It is legal for the Russian to sell it and transfer it, but if the transaction happens in the US, then the US resident is breaking the law because the compulsory license they are going through only applies in Russia. However, if the point of sale is determined to be in Russia, then anyone in the US buying from those servers is 100% legal in all senses of the law, American, Russian, and international laws. It would take a Constitutional Amendment to change the US law because of current rulings on importing something to the US that was previously exported. But don't let the truth get in the way of your wife-rape fantasies.
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