RIAA Throws In Towel On "Making Available" Case

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.'"

Interesting..

they throw in the towel to avoid precedent being established.

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..

Something tells me they stop caring about these cases the second they make it to court. Settlement money is where it's at, baby. After all, where's the fun in bullying the Little Guy once he refuses to lay down at take his lumps?

Re:Interesting..

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....

Re:Interesting..

Not to mention that in order to get the name of the defendant the RIAA had to file a "John Doe" criminal suit, which was dropped after finding the name of the defendant. In other words, a fishing expedition all the way around.

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".

More importantly...

, a towel has immense psychological value.
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.

Re:Interesting..

> they throw in the towel to avoid precedent being established.

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.

Re:Interesting..

they throw in the towel to avoid precedent being established. 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?

I agree with you. I think they are trying to avoid another disaster like this one [blogspot.com].

About time.

Of course, all this means is that they will seek another legal tack. Watch out for MediaSentry downloading files to establish "distribution."

Re:About time.

I believe this has already been tried ... the record industry can't use downloading by themselves or their agents to establish infringement because you cant infringe your own copyright - it's a legal impossibility.

This is what necessitates the "making available theory"

Re:About time.

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.

Re:About time.

I'm going to have to disagree with that analysis (IANAL, but I am a law student who is interested in practicing in copyright, so I have a little knowledge on the subject). (Before we get started, I have to say that I am not licensed to practice law anywhere, and this is not legal advice to anyone who may be reading this)

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.

Re:About time.

But that is similar to a police person taking a 'girl' out on a date, drinks, home for sex, then offering to pay for the sex and arresting her when she refuses and claims that is not why she dresses up nicely, and didn't know it would attract that kind of attention.

What?

Your Honor

Your honor, we know you're going to rule against us and set a precedent which will completely torpedo most of our other legal efforts so we'd like to respectfully withdraw our claim. Kthxbai.

sigh... Gamesmanship at its most disgusting...

I'm curious - can the judge deny their voluntary dismissal and still hand down judgment?

Re:Your Honor

There is another organisation that employs similar tactics against copyright infringement: scientology.

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.

It's because they are betting on the ACTA Treaty

This case is small potatoes compared to a treaty that will affect many nations instead of one defendant.

They figure the lawyer fees would be better used to bribe congress critters to push ACTA, instead.

The you can't fire me...

I quit attempt (if it really amounts to that) to prevent a precendent from occuring is of little usefullness in practical terms. The fact remains that the outcome of the case didn't look good based on the course of the trial. Even if the RIAA is allowed to withdraw, court documents will still exist showing the course of events of the trial and they will remain on public record for any lawyer defending a client in an upcoming case brought by the RIAA. IANAL, but it would seem to me this will just be another case thrown on a growing pile of evidence that the RIAA is trying to push through nuisance cases backed by slipshod research methodology. Sooner or later judges are going to start beating them up for it.

Be afraid, be very afraid

The RIAA is obviously afraid of losing outright on the issue of its "making available" argument. I say that because without the "making available" argument the RIAA will no longer be able to sue it fans. Let's face it, if the RIAA had actual evidence of copyright infringement, it would not need to use the "making available" argument. Thus, it's clear that the "making available" argument is the only pseudo-legal straw available for it to grasp.

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

First, I'm an attorney who concentrated in IP law.

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.

Re:Be afraid, be very afraid

"You are not an attorney, and you do not concentrate on copyright law. I am calling absolute shenanigans, since you are flat out lying."

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.

Re:Be afraid, be very afraid

First, the United State Supreme Court held in DOWLING v. UNITED STATES, 473 U.S. 207 (1985) that copyright infringement is not stealing and is not even analogous to stealing. That does not mean infringement is legal, it only means it is not theft.

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.

Re:Isn't copyright infringement when a COPY is mad

Code 17, Section 1101 (a) (2) would tend to disagree with you. You do realize that actual law exists, right? It doesn't work that way that just whatever you want to be true is the law?

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.

Re:Isn't copyright infringement when a COPY is mad

I'm certainly not the most up to date on all the RIAA's done, etc. however ... It seems to me that it's the DUPLICATION that is an infringement of copyright and not simply making something available........ but what am I missing?

You're not missing anything.

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.

Re:Case Law?

What's the case law say about judges granting the cost of defense from the plaintiffs? Is it based on their mood, or how bad the "evidence" was that the plaintiffs used to make their case, or something else?

Good question.

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".

Re:Come on..

Why wouldn't the Judge force them to present their failboat of a case after a year of pre-trial proceedings? Did the defendants not contest the motion to dismiss?

Under the federal rules, a plaintiff is absolutely entitled to dismiss its own case before the defendant has filed an answer. In this case, defendant had not filed an answer. Instead, she had filed a pre-answer motion to dismiss the complaint for legal insufficiency.

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.

Re:It will be of interest

So, what will Ms. Cassin do? Who's representing her anyway? Maybe that attorney could find out and get back to us?

I guess you've figured out that her lawyer is me.

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].