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RIAA "Making Available" Theory Rejected
Posted by
kdawson
on Tue Apr 01, 2008 03:56 PM
from the complaint-without-a-complaint dept.
from the complaint-without-a-complaint dept.
NewYorkCountryLawyer writes "In a 25-page decision (PDF) which has been awaited for two years in Elektra v. Barker, Judge Kenneth M. Karas has rejected the RIAA's 'making available' theory and its 'authorization' theory, but sustained the sufficiency of the complaint's allegations of 'distribution' and 'downloading,' and also gave the RIAA 30 days to cure the defects in its complaint by filing a new complaint. The judge left it open for the RIAA to allege that defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,' which, the judge held, would be actionable."
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Not today... (Score:5, Funny)
Re:Not today... (Score:5, Insightful)
From what I'm seeing it appears that the RIAA is going to have to try again in this case, but with the bar much higher this time. It doesn't mean that the case is over, but this time they'll have to have more than just a shared folder or a case where a p2p program might have accidentally added files that weren't meant for distribution.
It is also a decision which is available for other attorneys to cite in their own cases.
But, IANAL, YMMV, beware of dog, slippery when wet, etc.
Parent
Re:Not today... (Score:5, Funny)
I think that's likely the important part. It made me think.
But, IANAL, YMMV, beware of dog, slippery when wet, etc.
Close cover before striking (saw that on a book of AFL-CIO matches), Keep away from children, do not expose to fire or flame, and my favorite "do not eat"
I was at the eye doctor getting YAGed [wikipedia.org] yesterday so the old slashdot favorite "do not look into the laser with your remaining eye" seems appropriate here.
Parent
OT: On the subject of warnings... (Score:5, Funny)
I developed a newfound respect for Australians and their legal system last summer.
I was in my pool, and I happened to notice the warnings on the inflatables. It had three sections:
US: Do not leave children unsupervised. Not a life-saving device. Etc etc etc, about 5 or 6 lines worth.
UK: Not substantially different from US. Phrased differently, but effectively the same amount of material with the same meaning.
AU: Use only under competent supervision. That was it. All of it.
Parent
Re:OT: On the subject of warnings... (Score:5, Insightful)
To quote Humpy: "Almost anything can be attacked as a loss of amenity, while anything can be defended as not a significant loss of amenity."
Parent
Re:Not today... (Score:5, Insightful)
Good lord man, treat every day like "April Fools" on the Internet
Parent
Haha this is pretty much a win (Score:4, Insightful)
Re:Haha this is pretty much a win (Score:5, Insightful)
Er... what? Connecting to a torrent tracker and advertising what chunks of the data you have is an offer to distribute those chunks to anybody else on the tracker who asks. And on the balance of probabilities, that offer is genuine - unless she's a ratio cheat.
Same goes for other P2P systems. Listing a file as shared when a search request comes through is an offer to distribute that file, and unless you're one of those virus nodes that offers the same stupid VBS file to every search, the balance of probabilities is that you intend to honour that offer.
Parent
Re:Haha this is pretty much a win (Score:5, Insightful)
The days were you could assume that the end user was aware of and understood everything
that their computer is doing are long gone. Whether you consider that a good or bad thing,
justice should still reflect the new reality.
Parent
Re:Haha this is pretty much a win (Score:4, Interesting)
That depends. That's the default behavior unless you go and deliberately modify the client's settings. So if I go to a tracker to get say a Linux distribution, treating a BitTorrent client like a fancy FTP program purely for download, I'm going to offer up chunks of what I'm downloading unless I'm technically savvy enough to know this is happening and change the default behavior. If I'm not technically savvy, I probably won't even realize this is happening. And there's the trick of it: if I put something down on a table in my front yard while I go inside and get a drink, not realizing someone will come along and take it, have I made an offer to that someone to distribute what I've left laying there?
Parent
Re:Haha this is pretty much a win (Score:5, Interesting)
It seems like Slashdot (if it could be described as one homogeneous entity, of course) believes that to be sufficient authorization to immunize one from liability but this to not be sufficient authorization to incur it, despite the scenarios being very similar.
Any ideas why?
Parent
Re:Haha this is pretty much a win (Score:5, Informative)
Check out
Exhibit B Part 1: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1 [ilrweb.com]
Exhibit B Part 2: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1 [ilrweb.com]
It's a bunch of screenshots of Kazaa showing a listing of files that was in her shared folder. Essentially the RIAA lawyers argued that by simply having the files in that directory she was inciting others to infringe on their copyrights. This concept is called the "make available" theory. The judge threw it out.
She gave the RIAA thirty days to make a new argument against this lady but to do so they have to show that she communicated with a 3rd party to 'offer to distribute' and that the intent in doing so was for "the purpose of further distribution".
Clearly, they have no way of obtaining this information because it most likely doesn't exist and because this is a civil case they have no way to obtain more evidence short of her giving them an instant messaging, E-mail, or phone transcript / recording with her saying "Hey, go on Kazaa, look up my name and download X, Y, and Z songs". In other words, they're screwed.
Now next time how about reading the god damn article!!!
Parent
Re:Haha this is pretty much a win (Score:4, Informative)
Parent
Possibe Win? Maybe, Probable Win? (Score:4, Insightful)
The RIAA can still paint the defendants as Anarchist wife-beating child-hating petty thieves and win the case.
Parent
Re:Haha this is pretty much a win (Score:4, Interesting)
I've never heard anything about the RIAA or MPAA going after a user using a torrent client. Going after a tracker is a different thing.
Seeding would be analogous to a P2P of the former.
Being a client or leeching is no more distributing content than sending emails to a friend or coworkers using normal language and calling that copyright infringement on normal language in published books.
Parent
In a word (Score:4, Funny)
REEEJECTED!
</voice>
Re:In a word (Score:4, Funny)
DENIED!
</voice>
Parent
RIAA's argument (Score:4, Insightful)
The RIAA's undoubtably going to argue that the defendant's P2P software made the file available and that that constitutes the offer of distribution. The trick will be to neuter this argument, and that's going to have to turn on intent. If, for example, I have a table of books in my front yard with a sign saying "Take some", that's clearly an offer to distribute. But if I put a book down on the table on my front porch while I go inside to get something to drink, and while I'm gone someone comes along and takes the book, the book's arguably been distributed but I clearly haven't made any offer to distribute, the book was merely stolen. The argument's going to have to be that the defendant didn't know files in the shared folder would be offered for sharing, that they didn't have any reason to suspect that (non-technical people probably wouldn't, if all they did was use the software to download and never got into the technicalities (I do the same thing all the time, I use BitTorrent to download Linux ISO images with no intention of sharing them out again)), and that if they had known they would've done something to block the sharing (since they had no intention of doing it in the first place). You won't ever be able to win the argument that the files can always unconditionally be available without incurring any liability under any circumstances, but you can win the argument that merely unwittingly and unintentionally putting something down where someone else can take it doesn't incur liability (at least not until you've been told it's happening and have a chance to do something about it).
What Files? (Score:5, Insightful)
The RIAA has no real evidence of copyright infringement to submit into any civil court. If I were a defense attorney I would make that extremely clear to the Judge and Jury. Explicitly, I would ask the RIAA "expert witness":
"Where is the actual song with content you copied from the defendant?"
"You said you didn't download any actual song with from the defendant?"
"How do you know the actual contents were not personal commentary about a song rather than copyright infringement distribution?"
"You don't *know* what the actual contents of the files you claim are copyright infringements actually are?"
"Motion to dismiss, with prejudice, attorneys fees, malicious prosecution, fraud, extortion, unlicensed spying, stalking, harassment."
Then, once the RIAA is forced to have to download/upload files in P2P streams, in order to substantiate evidence, they will be guaranteed to be on the hook for $150,000 per "accidental" infringement. And we can subpoena all records and files the RIAA and Media Sentry have downloaded and forward to the appropriate parties and authorities, not to mention grow the list of criminal RICO racketeering charges against the RIAA.
The RIAA "evidence" of file titles constituting copyright infringement is as absurd as writing dollar amounts on an internet thread constitutes counterfeiting.
$100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 --- This is not "evidence" of counterfeiting, just as BritneySpearsToxic.mp3 is not evidence of copyright infringement.
Parent
Re:Can anyone explain (Score:5, Informative)
I place a pair of gloves on a park bench and walk away.
versus:
I walk up to someone sitting on a park bench and offer them a pair of gloves.
Parent
Re:Can anyone explain (Score:5, Funny)
Here, cars work better
Think of it like this:
I place a pair of cars on a park bench and walk away.
versus:
I walk up to someone sitting on a park bench and offer them a pair of cars.
Parent
Re:Can anyone explain (Score:4, Funny)
Making Available:
I see your car in your drive way on a walk and decide I like it. I look inside, I see the keys and the door is unlocked. I steal it. You made the car available unintentionally.
Offer to Distribute:
I am looking for a car like yours. Fortunately I see your advertisement in the newspaper, and follow the big signs to your house. You meet me in the lawn and hand me the keys.
Parent
Re:Chalk up another loss, RIAA (Score:5, Informative)
Precedent set in one circuit does not hold for another circuit and only the Supreme Court can set precedent for all courts, and trial courts can't set precedent at all.
Parent
Re:Chalk up another loss, RIAA (Score:5, Insightful)
The most common mistake around precedent is confusing it with law. Just because something is a precedent, it does not mean that it is hard and fast law. Its an interpretation of law, at a specific time and place. As such, it carries no official weight.
Virtually any level of court can set a legal precedent that can (and will) be referenced by an arguing attorney. Certainly some precedents carry more weight than others (supreme court vs. a trial court), but lawyers will often cite trial law precedents in their arguments. The idea being that there is an established line of reasoning in the precedent that should be carried forward to whatever they are arguing. Thus, the only difference is that a supreme court precedent carries with it tremendous legal weight, particularly since that court has the right to overturn or amend decisions of the lower courts. Its hard to argue against a supreme court precedent when they will just turn around and shove it right back in your face after all.
However, at the end of the day, almost any court preceding can be referenced as a precedent for further argument.
Parent
Re:But you MUST admit, they are STEALING (Score:5, Funny)
Parent