Arizona Judge Shoots Down RIAA Theories

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.'"

Unfortunately this probably won't end here

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

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).

The reason...

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

shows that distribution is the crime, not downloading.

Re:Once again a court

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.

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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 c

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There's no "crime" involved, it's a civil matter.

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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 civi

Re:Once again a court

when you charge someone with distribution, you have to well, prove, they did in fact distribute it

Picky picky.

Not evisceration, but a major blow

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.

Make the RIAA Download/Upload

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.

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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

Not Evisceration, just careful consideration.

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.

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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. Howe

Not copyright infringement...

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...

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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

Law clerk

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.

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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.

Re:I have to say...

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.

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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 actu

Re:Judge shoots down RIAA

CCW FTW!

Re:He got by with a little help from his friends..

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.

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Needs to be lock'n'key, or there are too many syllables in the last line.

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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 a

Unauthorized != illegal

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 c