RIAA "Making Available" Theory Rejected 168
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."
Not today... (Score:5, Funny)
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Re:Not today... (Score:4, Funny)
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That's because I have no sense of humor.
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.
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.
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.
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."
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Palpatine: But this "amenity" isn't important! What's an amenity anyway? It's a bathroom! Life is not just about bathrooms! So it's not a _significant_ loss of amenity!
Chewbacca: Groooowl(**)
Palpatine: Strike this accused down and your jury duty will be complete!
---
(*) Look at this dictionary! Does it contain the word "amenity"? No, it doesn't! If it doesn't contain the word "amenity", it's a loss of amenity!
(**) If it doesn't contain "amenity", you must acquit!
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Is it so much to ask for a pink pony style website one day of the year?
Re:Not today... (Score:5, Insightful)
Good lord man, treat every day like "April Fools" on the Internet
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.
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.
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If it was reasonable for this person to know it distributed "shared" music, then she would be at fault. And should be.
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?
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?
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I find it perhaps ironic that this is what you're saying, when I was arguing very similarly in another thread- unsecured WAPs, where I argued that the software's authorization was not necessarily the person's authorization.
Some people can think logically; they will _either_ conclude that a machine can give authorization, _or_ they will conclude that only a person can do so, and then they will stick to it. If the outcome is sometimes desirable and sometimes undesirable, that is just tough. Others change their thinking in order to support the conclusion that they want to arrive at.
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Granted this implies an awful lot, but in either case there's:
1) Lack of physical harm
2) debate on how much financial harm is actually caused
3) Little to no effort made to inform users of the consequences of various configurations
4) Really complicated configurations that professionals often ge
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Now, for you or I, we know it's wrong to connect to wireless without being invited. But
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IANAL, but first let's change the scenario to remove the usual theft: someone makes a photocopy of a book that you left on that table while getting a drink.
In this case, do you have any obligation to anyone (such as the publisher) to protect the book from copying, while not explicitly facil
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Firstly, civil entities cannot entrap.
Secondly, I think you are misinterpreting 'making available' here, and your examples are in no small part responsible for dramatically confusing the issue. Moreover, you then go on to misinterpret the 'equal protection' doctrine fairly drastically.
Really, that's actually three issues, I suppose.
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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!!!
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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".
I don't have the ruling in front of me, but I'm not sure that a third party would be necessary (though the P2P search function may qualify). The files in the shared folder could be seen as an offer to distribute (much like a list of dishes on a menu are an offer to serve same) and the P2P network itself upon which it was offered may be enough to convince that the one offering to serve "should have known" that further distribution would have taken place (something that wouldn't be true of a web- or FTP serv
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A functioning network is of course implied. If the defendant is to suggest they had additional devices similar to Comcast's "bandwidth shaping" technology to prevent actual transfer, they'd better be able to produce
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Except that that happening by default would undermine the argument. If the software's always discussed in terms of downloading, there's no obvious mention of it uploading and the upload function is enabled by default and doesn't require user intervention to turn it on, then why should a naive, non-technically-savvy user expect that his download software is actually uploading behind his back?
Re:Haha this is pretty much a win (Score:4, Informative)
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I think the judge would require the plaintiffs to prove that defendant did something affirmatively to "offer" the files.
I'd need to know more about the P2P software in question to know how reasonable it would be to use it in a manner (ripper or player) unaware of and incompatible with its function of sharing its fruits as opposed to what other applications were present that do not share, or that what was downloaded with it was or was not clearly unauthorized by rights holders. I.e. an argument seeking to transfer the liability to the software maker rather than its operator. I'd also be expecting the defendants to already be
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Are your case judgments decided by a jury or a sole judge? In your experience, which do you think is better?
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Exactly, unless she's a ratio cheat. It should be easy to argue in court that an advertisement to a tracker was not an offer one intended to follow up on. No?
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If the system defaults to such behavior and was not explicitly set to it by the user, one might make a case that the intent belonged to the packager of the client.
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.
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I'm hoping I'm wrong.
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.
So are files on a Web site now safe? (Score:2)
Can I now put a link on my blog "Archive of my iTunes folder" to remind me where my backups are without getting in trouble? So long as I don't exceed my ISP's bandwidth cap I couldn't care less if strangers (the lazy copyright-infringing bastards!) download the bits.
Let's hope. (Score:3, Funny)
In a word (Score:4, Funny)
REEEJECTED!
</voice>
Re:In a word (Score:4, Funny)
DENIED!
</voice>
Re:In a word (Score:4, Funny)
Humiliation!
</voice>
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Fatality!
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No Fatality.
</you_failed_it>
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Chocolate Rain! The RIAA got bitchslapped today! Chocolate Rain!
<voice>
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).
Re:RIAA's argument- WOA WOA WOA (Score:2, Funny)
Here, let me fix it for you.
"takes the book, the book's arguably been distributed but I clearly haven't made any offer to distribute, the book was merely stolen^W^W^W^W^W^Wcopyright infringed"
There, much better.
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Of course, there are fewer and fewer sane places in this world.
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It could happen...
I suspect the *IAA would argue it's more like leaving the book and a copy machine on the front stoop while you go inside, however that still doesn't constitute an offer to let other people use the copy machine to copy the book.
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.
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It is my impression that these are all civil cases, meaning that RIAA does not have to
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the mp3 is never introduced as evidence simply because those cases are settled out of court.
in criminal law the standard is proof beyond a "reasonable" doubt. absolute certainty is not possible and absolute certainty is not demanded.
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If you take two copies of a particular music single (i.e. two externally identical retail CDs), run them through the same version of an MP3 encoder (say LAME) on two different computers at the same bitrate (say 128kbps), having got the track information from the same database, and with identical filenames, will you get the same checksum or hash or whatever?
i.e., al
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Short answer: no.
The problem is the audio CD. With 2 CDs, you don't have a chance. They won't have the same collection of scratches, dust motes, and errors. Even if you rip the same CD in the same drive again, you won't get the same data because the drive won't read those occasional scratches the same, and the dust motes may shift. The audio format does not have error correction like the data format. It doesn't need to nor does it preserve every last bit. Only if you encode the same rip twice with
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...They don't have to have a copy downloaded directly from the defendant. I would have to think another copy of the same checksum'd (and verified) file from one of their other many defendants would probably pass muster in court. Then you'd just need to show the logs....
But that would go against their argument about what "Fair Use" is. To them, a song copied from CD using the same bit rate, having the same checksum, etc as another already ripped file is not "the same" because the bits are not the same bits. Its the argument they make about how downloading a song that you already own on CD is not fair use, and thus they can sue you for doing so. Thus they have already undermined that route of prosecution.
Tm
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All that's needed is to acknowledge a distinction between what should be and what is. People should know what their equipment's doing, and set it to only do what they want it doing. So in a perfect world, people would secure their wireless routers unless they intended anyone to access them, and people would configure their file-sharing software to not share any files unless they intended to share those files.
But we don't live in a perfect world. Users take the default settings on their shiny-new wireless r
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Not neccesarily. The key phrase is "knew or reasonably should have known". If there's a warning about something in the manual, a reasonable user's expected to have read the manual and so reasonably should have known about the danger. But when there's no apparent mention of something, things become more subjective. The question is usually "What would a reasonable ordinary person know about this?". Now, as a techie I'll know about the upload function of P2P software. But someone who's not an IT professional,
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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.
Well I think (and IANAL and I only skimmed the decision) that the ruling is mostly saying that the RIAA has to allege a specific act or event took place. I *don't* think it's saying that unlicensed distribution is acceptable as long as the distributor can claim distribution occurred unintentionally.
So I'll try to adapt your example, even though it doesn't wo
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Actually in both the third and fourth cases they'll have a hard time coming after you. If the table's out next to the sidewalk they may have an easier time, but if the table's up on your porch and you keep books on it to read then even if people come onto your property and take the books the RIAA would have to show that you intended people to take those books, as opposed to intending to have them there for your own use and outsiders abused that while you were gone and didn't know about it happening. That's
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So I'll try to adapt your example, even though it doesn't work very well for the point I'm trying to make. *Imagine* I need a license to distribute books, even if I'm giving legal copies away for free:
If I set up a table with a sign that says "free books", and I give books away, then according to this decision, they can still come after me.
If I set up a table with a sign that says "free books" but nobody can prove anyone took a book, then according to this decision, they can probably come after me.
If I set up a table with a bunch of books on it, with no sign, and they can prove someone took some books, then according to this decision, they can still come after me.
If I have a table with a bunch of books, with no "free books" sign, and nobody can prove anyone took a book, then according to this decision, they can't come after me.
I had a look at the actual decision, which was linked on theinquirer, and what you say seems to be too pessimistic.
The court decision was about a motion to dismiss. The RIAA has claimed that songs were copied, and that they were "made available". In a motion to dismiss, the judge will assume that everything the plaintiff says is true, so it is assumed at this point that songs were actually copied. The defendant argued that the RIAA hadn't specifically said which songs were copied, but the RIAA said "the
Can anyone explain (Score:2)
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.
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.
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Notoriously possessing apples?
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.
wow... yawn (Score:2, Insightful)
Thankfully there are people watching these guys so that the rest of us don't have to read the parts when groups like
P2P != Bittorrent (Score:2, Interesting)
Most cases that get to court are about Kazaa and the Gnutella network because with Bittorrent the evidence brought to court is usually very vague and not enough to get a good ruling for the RIAA.
What makes the Gnutella network different is that a user shares files inside of a "Shared" directory therefore making it much easier to prove that
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The RIAA must prove that she not only made the files public but also announced to some 3rd party that they can take them.
My "shared" directory is entitled "Private_Property_Dont_Download"
I'd love to see them take me on in court.
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Kazaa is the older example, and rendered that sharing by the program is NOT "making available".
So explain why BT is not the case?
How does a non-techie know it also uploads?
What if a non-techie knows it does upload, but sets upload to 0kb/s. Is he "making it available"?
Does being in the IP-map on the BT server account for "making available", even if they are not?
If the user is sharing, but no chunks pass checksum, is that "making available
"Making it available" is sort of missing the point (Score:2)
The question to really be asking is since the defendant undoubtedly made copies of the files, and since they were made available, it is not unreasonable to deduce that the copies were made for that purpose (unless that was done without his knowledge or consent), so is making copies for such a purpose actually supposed to be exempt from copyright infringement? Fair an
Re:"Making it available" is sort of missing the po (Score:2)
Well, it's well-known that cars are used by criminals to flee the scene of a crime. It's also well-known that if I leave a car on the street it could be stolen, especially if I don't lock it. So if I park my car on the street in front of my house and forget to lock the passenger-side door, and someone steals it and uses it to get away after robbing a bank, did I buy that car for the sole purpose of robbing a bank? It's theoretically possible, if I can be shown to be in cahoots with the robber, but the polic
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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.
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.
Re:Chalk up another loss, RIAA (Score:4, Insightful)
The difference between the two is simple. If the Supreme Court says something and a trial court contradicts that finding, the trial court judgment can be thrown out on that basis. Trial courts can contradict each other all the time. The same happens with appeals courts in a specific circuit; if a trial court contradicts an appeals court of the same circuit, the appeals court as a matter of principle will just throw out the trial court finding (most of the time; there are of course exceptions that prove every rule.)
However, there is something to what you say that other, non-binding precedents can and are referenced; they often are. In fact, it's not really rare that references will be made to courts in other countries to support a specific line of reasoning, especially in matters of international law and so on.
But do not make the mistake of arguing that there is no substantive difference between stare decisis binding precedent and other binding precedent. Circuit courts disagree with each other on basic points of law all the time, regardless of non-binding precedent.
In this case, this is a trial court judgment in a specific circuit. It may be referenced by defendants or plaintiffs in another circuit. But there is no reason to assume it will be accepted by those circuits, or even in other courts in the same circuit at this point. In other words, if it is a victory, it is a hollow one in that respect.
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> 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.
Yes and no.
The parent refers to the concept of stare decisis [wikipedia.org]. However, courts also recognize the power of pursuasive precedent. [wikipedia.org] That is, a court may recognize that another court has ruled on an issue in a certain way, and the fact (and ration
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The RIAA is welcome to try prosecuting people for the copies they 'downloaded to their computer unlawfully'. However, so far they haven't.
Probably because it would be about is sucessful as a Walmart employee looking in your windows and then charging you with stealing anything they saw
Re:But you MUST admit, they are STEALING (Score:4, Funny)
Riiiight. A lawyer. Sure. And I'm the CEO of Sony BMG.
In any event, I NEED admit nothing of the kind. Furthermore, I seriously doubt you're a lawyer, because if you were, you'd know the difference between committing an act of copyright infringement and stealing anything. Of course, you could be an RIAA attorney, in which case I would understand how such subtleties might escape you.
For some people, willful ignorance must truly be bliss.
Re:But you MUST admit, they are STEALING (Score:5, Funny)
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Hmm... let's parse this...
"But you MUST admit" - Why?
"they are STEALING the music." - If they've stolen it, how come I can still hear it?
"If the law provides for retribution," - Please name a country that provides for retribution in the law... must countries either provide for restitu
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But you MUST admit, they are STEALING the music.
I don't know that:
... the files they were downloading were the actual songs. ... they didn't have the CDs (or some other license to the songs in question) already to begin with. ... they even heard the songs they downloaded.
a.)
b.)
c.)
You're not using the term 'stealing' properly here, so I'll just assume you mean: They downloaded music and listened to it without paying for a license to it. I can suspect it, but no, I cannot 'admit' that they are breaking the law at all. Perhaps if you took another stab a