RIAA's "Making Available" Theory Is Tested 222
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."
But wait... (Score:5, Insightful)
I think that all corporations which sue individuals should have to adhere to criminal court standards instead of needing just a "whiff" of possibility. Individual vs. Individual of course would still be run as a Civil matter. They should be required to obtain warrants if they want a "Discovery" into any non-public records of the individual. IMHO, they should absolutely NOT be able to get any records from any organization whatsoever about an individual without a warrant (consider ISP's releasing IP address / account information to a corporation for a shady example).
This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations).
There seems to be a serious disadvantage for an individual in almost ALL cases involving a company suing an individual (specifically the depth of their pocket books and ability to pay a lawyer).
Thanks for your efforts NewYorkCountryLawyer
- Toast
Much of this post may be conjecture, ranting, etc. I apologize if I got OT, but I would like clarification if any of my views are out of whack, and I wouldn't mind alternate viewpoints so long as they aren't in troll fashion.
P.S. To all grammar Nazi's; I don't really care if I missed anything when I glanced over this post. Don't waste your breath or potentially cause yourself carpal-tunnel by trying to fix it.
Re:As much as i hate the RIAA.... (Score:3, Insightful)
or libraries, or sporting good stores, or the ever popular analogy, auto dealerships, etc etc.
Where does one draw the line?
Re:As much as i hate the RIAA.... (Score:5, Insightful)
The general statement of saying "enabling someone else to commit a crime is a crime itself" is just nonsense.
With that general statement you could in theory hold a man who drove drunk and killed someone accountable, the manufacturer of the automobile, the designers of the automobile, the assembly line workers(if any) that put the car together, the store or individual who sold that man the liquor all accountable. Because you know, all of those in "theory" enabled that man to drive the automobile while intoxicated. Hell, why not involve the local government for putting those damn roads in that enabled that man to drive his automobile around.
Re:As much as i hate the RIAA.... (Score:2, Insightful)
One draws the line where the money is no longer available. Gun dealers are not held accountable for the crimes of their clients because the NRA is a huge lobby with plenty of the money. Auto dealers and manufacturers are not held accountable because again they're huge lobbyists with lots of money. Do you know who does get held accountable? Bars that overserver people and then let them drive drunk. Why? Because the restaurant industry is too fragmented to effectively lobby against such legistlation, but the tee-totaller prohibitionists like MADD are big enough to get such terrible legislation pushed through.
Lobbyists are neither good or bad. They're just using the system to further their own interests. If you don't like it, either work to change the system (ha!) or build your own lobby (that's what the MADD folk did). For what it's worth, I like the NRA, I hate MADD, and I'm indifferent to Big Auto.
Improper Defense Strategy (Score:3, Insightful)
The defendants are vaguely accused and therefore are stripped of the capability to offer a real defense. How many of these cases get dragged into technical arguments about the merits of the case instead of real defenses regarding whether or not the law was actually broken.
For instance - you say that there is "ongoing copyright infringement..." did you try to successfully download a copy of the song today? If it's not currently available, there is not ongoing infringement.
Let's take a look at the royalty checks given to the artists in the 2 years prior to the alleged infringement, the year during, and the year after. Do they indicate the possibility of infringement?
Did the plaintiff actually make any effort to do anything to stop this infringement?
Is there any proof that anybody illegally downloaded the songs from the defendant's computers?
How many downloads of the songs were made? How many people had them available? Is there a possibility that the song was made available for download, but never actually downloaded?
Did the defendant promote his shared songs to the public at large?
If there is a defined date for the alleged infringement or a date range, you can offer proof that it was not possible for the infringement to have occurred during that time frame (i.e. on vacation with computer during that time frame, power outage during the time frame in the local area, computer never on long enough during the time frame for a download to occur. Computer in the repair shop during that time frame, etc.)
We all know the suits are based on flimsy technical merits. OK... so moving forward past the technical aspects - is there reasonable suspicion that infringement did occur within a defined time frame?
The time frame is key to actually being able to defend yourself. Having a defined time frame to work with could save the courts, the plaintiffs, and the defendants plenty of time and energy because the technical merits may not need to be argued if a defense other than "this is a bunch of horsecrap and here is why" is available.
Re:As much as i hate the RIAA.... (Score:1, Insightful)
Re:Attn: slashdot editors (Score:5, Insightful)
Sorry, but I disagree with you. These cases are important to read about, and to discuss. Tens of thousands of people are being sued, and everybody on /. at least knows what a P2P system is. The most downloaded free open source application is a Bittorrent client. This is one of the biggest YRO issues of the moment, and worth following, and discussing, in detail. It's the reason we have DRM, and Vista, and Sony supplied rootkits, and it affects everybody!
Re:As much as i hate the RIAA.... (Score:5, Insightful)
Oh, and make sure to never play your music too loud, someone might be out there with some good recording equipment.
Re:As much as i hate the RIAA.... (Score:2, Insightful)
When you're doing that, possibility is all that matters.
"Is it possible?" Yes. "Then it's (insert ruling)."
"It is possible?" No. "Then it's (insert opposite ruling)."
IANAL, but I have lied and gotten away with it. This is not a lie.
In the USA... (Score:2, Insightful)
Re:As much as i hate the RIAA....WRONG TARGETS (Score:3, Insightful)
Now it's true that distributing copyrighted material without the permission of the copyright holder is a crime (note the key distinction between what I said and what you said, you left out that important bit). I also happen to lean towards the sentiment that making those files available, even if no one actually downloads them, would also be illegal... but you still did make one hell of a stupid statement in saying that it's a crime to enable crime. Not to mention the trollish responses you've made since then, which really aren't helping your case here.
Re:Does this mean.... (Score:3, Insightful)
No. Theft and copyright infringement are very different things.
Distribution to the public? (Score:3, Insightful)
This is very interesting. Independent of the RIAA case, it seems to open a whole can of worms for copyright holders generally.
Example: I wonder why this wasn't brought up in the case of Share a News Story With Coworkers, Pay a Fine [slashdot.org] where a company settled for $300,000 for distributing news articles internally to employees.
Another (hypothetical) example: internally distributing copies of Microsoft Office to employees is certainly making them available to a limited group and not to the public at large. What is the catch? The EULA wouldn't seem to apply since it is only agreed to after the program is run, not when it is distributed before ever running it.
Re:Sharing *is* legal (Score:3, Insightful)
Re:As much as i hate the RIAA.... (Score:2, Insightful)
Sorry, but isn't this a CIVIL case. If it was a crime, wouldn't this be a CRIMINAL case??
just so much hot air (Score:5, Insightful)
the RIAA has failed to charge anyone
If you can't make the most elementary distinctions between civil and criminal law then anything you say about the law is worthless.
All the rights agencies have to do as a plaintiff in a civil case is to persuade the finder of fact that it is reasonable to believe that you infringed on the copyright of one of its members. Nothing more than that.
In order to show that an individual has committed unauthorized distribution of copyrighted content, the RIAA would have to catch the individual in the act of transferring the copyrighted content to another individual who has not been authorized, by fair use or otherwise, to obtain a copy of the IP
This is like saying you can't take the pirate broadcaster into court because you don't know and can't know who - if anyone - was listening to his station. Judges and juries don't think this way. It is precisely the reckless and indiscriminate nature of distribution through the P2P nets that destroys any defense of "fair use."
Re:But wait... (Score:5, Insightful)
I think you've found the basic bug. If we just fix that one, a lot of these other ones will quietly disappear.
Re:As much as i hate the RIAA.... (Score:3, Insightful)
What if I tell you that that word 31552 in the new Harry Potter book is "below"? I've just shared material that is clearly copyrighted, have I infringed the copyright? What if I expand this out to a whole sentence - quoting passages is considered fair use. I've shared copyrighted material but there has been no infringement. It's easy to see that 20000 of us could each quote a single sentence in the book, if you reassemble all the quotes together then you could reconstruct the entire book.
Nobody has pushed this question in court AFAIK, and yet that is the basis of a p2p network. Every person being slapped with damages for distributing to 100000 people couldn't have uploaded enough material to have performed that distribution. They may have uploaded several small chunks to individual people - but at what stage does that become illegal?
What if we take this to a logical extreme and consider a p2p network where each connection serves to indicate a single bit in the source file? What if I don't tell you explicitly but tell you to "guess high". Good luck trying to legislate over that, it will never work.
Re:As much as i hate the RIAA.... (Score:3, Insightful)
Any thoughts?
Re:As much as i hate the RIAA.... (Score:3, Insightful)
Re:As much as i hate the RIAA.... (Score:3, Insightful)
Do you even know what you are talking about?
Copyright,is talking about a right. Something may take a tremendous amount of effort to orginally create. Learning how to mix iron with coke to create steel. Or writing "War and Peace". Or writing a piano sonotta. Or telling a joke. But it is the very nature of things, that once something is made, it can be copied. Maybe it is human nature. Once someone figured out how to fly. It was not long till others were doing it.
If you hear a song on the radio, can you wistle the tune? Can you think it in your head? Everytime you think remember your fifth birthday, and you hear "Happy Birthday", is someone entitled to money? Are you using their copyrighted work? It is the nature of things that it is easier to copy. It may be exact, or inexact. It may be deritive. It may cost a lot to produce, but it is more often than not cheeper than producing the original.
It is for the public good, that sciences and arts are advanced. So we give up the "right" by nature to copy. The ability that it is cheaper and easier to remake something that already exists than to create something that has never existed. We give up this "right" for a temporary time. So that the creator from a work has enough of a benefit as an inducement to create a new work. We give up for a limited period of time our right to take advantage of the fact that it is easier to copy than to create something from scratch.
In our society we have fair use, and the term of a copyright.
On the fair use side of the issue. One of the rights that is extend to us, the non-copyright holder is fair use. When you purchase a copyrighted work. You own something. You get bits, or something you can hold and feel. Should the creator of an item you have purchased have total control over something you paid for? The answer is no. In exchange for purcahsing (not necessiarly with money) an item, you have some rights that come with it.
Rights such as the ability to loan that material to someone. The right to tuck a copy of that data away in your brain. Be it what a song sounds like. How a story goes. Or how to hang a door. You have a right to make a copy of music (but not a book). You can even copy music and give that copy to somone. You can resell an item. Which by the way, is the test of weather you own something or not. If you own it, you can legally sell it. If you don't own it, you can't legally sell it.
These are rights you had by nature, and you are allowed to keep, even during the copyrgight period of a work.
On the copyright side. Copyright was for a short period of time. You were not entitled to have exclusive benefit for life. It is a scale. The people, via government, is to weigh their right to reproduce works against benefit of encourging someone to create a work, by allowing them an exclusive right to distribute that work.
The problem is the corporate nazi's. Those who often put very little or no work into creating a copyrighted work but profit from it. They want to extend the copyright period. They want to remove as many fair use rights as possible. They don't care that there are non-infringing uses of p2p. They want it shut down. It is an avenue they do not have total control of. Like they did not want cassette recorders, CD recorders, used record stores. In the perfect world. To them. You would have to pay for physical media, every time it wears out, even better to have a copy at home, and a copy in your car. They would then like to be paid everytime a work is played. In your house, at the grocery store, someone performs it, at chruch, in the park. It does not matter if a some performs it for free. Or someone wants to share something they like. They want a cut everytime you sing, play or in any form, use a copyrighted work. Hell, you create something and want to give it away for free. They don't care. It is still a work. They should be allowed to collect the to