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Has RIAA Abandoned the 'Making Available' Defense? 125

Posted by Zonk
from the slippery-fish dept.
NewYorkCountryLawyer writes "The RIAA's standard complaint (pdf) was thrown out last month by a federal judge in California as speculation in Interscope v. Rodriguez. Interestingly, the RIAA's amended complaint (pdf), filed six days later, abandoned altogether the RIAA's 'making available' argument. (Whereby making files available at all for download is infringement.) It first formulated that defense against a dismissal motion in Elektra v. Barker. This raises a number of questions: Is the RIAA is going to stick to this new form of complaint in future cases? Will they get into a different kind of trouble for some of its their new allegations, such as the contention that the investigator "detected an individual" (contradicting the testimony of the RIAA's own expert witness)? And finally, what tack will defendants' lawyers take (this was one lawyer's suggestion)?"
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Has RIAA Abandoned the 'Making Available' Defense?

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  • Defense? (Score:5, Insightful)

    by hazem (472289) on Monday September 17, 2007 @03:39AM (#20633191) Journal
    Has RIAA Abandoned the 'Making Available' Defense?

    IANAL, but I can't imagine the RIAA is offering to many defenses in these court cases. Maybe they're abandoning the complaint of "making available"? That's what the article seems to indicate...
    • Re: (Score:1, Offtopic)

      by hazem (472289)
      "too" many, that is. That's what I get for trying to be cheeky.
    • by Anonymous Coward
      I wonder if he can use anything from the MediaDefender leak against them? For example, apparently the anti-P2P folks admit to making up ridiculous numbers...

      http://www.slyck.com/forums/viewtopic.php?f=30&t=37857&st=0&sk=t&sd=a&start=50 [slyck.com]

      ----- Original Message -----
      From: J*
      To: B*****; J****
      Sent: Wed Jun 06 16:22:23 2007
      Subject: p2p summit

      I'm speaking at a p2p summit next week. Usually we just blow smoke and brag about our companies for an hour or so...but this time we have a different for

    • Re: (Score:2, Informative)

      by GwaihirBW (1155487)
      "It first formulated that defense against a dismissal motion" So, it's a defense of their offensive (in several ways!) cases, justifying ("defending") their acts of bringing people to court.
  • by JoelKatz (46478) on Monday September 17, 2007 @04:02AM (#20633325)
    This complaint is no better. It claims they "detected an individual" who is "distributing". But they don't actually detect any distribution. Their "download and/or distribute" language makes no sense, since they never detect anybody downloading anything.

    This should be rejected summarily as well.
    • Re: (Score:2, Informative)

      by Mathinker (909784)
      > It claims they "detected an individual" who is "distributing".
      > But they don't actually detect any distribution.

      Nor do they detect an "individual". An IP address isn't an individual. If you're lucky, you might be able to connect it to a particular computer at a particular time.

      • > It claims they "detected an individual" who is "distributing". > But they don't actually detect any distribution.
        Precisely.

        They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.
      • It claims they "detected an individual" who is "distributing". But they don't actually detect any distribution.
        Nor do they detect an "individual". An IP address isn't an individual. If you're lucky, you might be able to connect it to a particular computer at a particular time.
        Precisely.

        They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.
        • If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. T

          • Re: (Score:3, Insightful)

            If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. That's incorrect, however. Given the ease with which the correct simplification could be made, provided that the RIAA lawyers or their technical advisors do understand the concepts of an IP address and uploading and difference between a person and computer and the meaning of the word potential, the only remaining possible purpose of their simplification is not to inform, but to mislead the judge.

            It's clear that the only purpose is to mislead the judge. It's not a simplification to say you detected "an individual" when you didn't. It's a lie.

            • Ah, I misunderstood the position of your previous post, I thought you were trying to offer that as a justification for their statement. Then you go and flip it all around on me and say yourself what I didn't want to say in order to avoid an argument I didn't want to have that I thought you'd make ... bravo. And yeah, it is a lie, but I'll bet you anything that if they really get pinned down on it they'll try to call it a simplification. It's the only out for them I can see.

              Oh wait, you really are a lawyer.

    • ... I'm just putting the files where I can access them for my own listening enjoyment while I'm on the road/at work/in Starbucks. That's just fair use since I bought the rights to listen. I don't intend for anyone else to be listening, but I guess they could if they wanted to.

      Wonder whether that defense would work?

      • That defense can work, but only if you can convince a judge that you're "too dumb to know". I.e. if you happen to work in the IT field, he'll probably not believe you that you don't know what "your computer" means when he asks you to share c:\.

        And forget it altogether if you run Linux. After all, every judge knows that Linux users are geeks, and they are by default criminal hackers and suspicious, and if not guilty of this crime then certainly for something else.
        • Re: (Score:3, Interesting)

          by rhizome (115711)
          That defense can work, but only if you can convince a judge that you're "too dumb to know".

          Not necessarily. You could say you only intended to share the files with yourself in another location. IANAL, but I don't believe the law requires an individual to take any special security precautions when dealing with copyrighted materials.
          • Well, then it could be neglect. For example it can in some country count as "faciliating a crime" if you leave your car unlocked with the keys on the seat and someone takes your car to commit a crime.

            Of course, faciliating a crime is rarely if ever called upon when it comes to computers, as malware has shown, you can be as ignorant and gullible as you want in the vicinity of a computer and you're impossibly liable for any damages. Unless, of course, you should have known better (read: you're in IT). And I g
            • by rhizome (115711)
              For example it can in some country count as "faciliating a crime" if you leave your car unlocked with the keys on the seat and someone takes your car to commit a crime.

              I've never ever heard of anybody getting prosecuted, or even arrested, for facilitating a crime by having their car stolen.

              • It has happened here. But generally it's reserved to cases where it's more likely that the person was a partner of the criminal, when you cannot really prove it but it's obvious.

                Some of our laws are that way...
            • I don't think copyright infringement is a crime. Which is to say, I'm pretty sure it's a civil matter.
  • At this point.... (Score:5, Interesting)

    by rts008 (812749) on Monday September 17, 2007 @04:18AM (#20633411) Journal
    I don't see either the RIAA or the MPAA turning down any chance to turn a buck their way- even soliciting BJ's in rest area bathrooms.

    Remember, this is the same crew that established 'payola' in the late 1950's and refined it in the decades since despite several court cases decided against them for this.
    Reminds me of a Pennsylvania farmer I once knew. He made his living by poaching deer and selling the meat to some fancy, high dollar Maryland and D.C. restaurants. He would get caught poaching, pay the stiff fines out of a roll in his pocket and claim that it was only 3 days profits, and only got caught several times a year. Just a small operating expense...no big deal. He just laughed it off and even bragged about it.

    I see the same mentality with the RIAA and MPAA, just throw crap against the walls as fast as you can...surely some of it will stick!

    Remember: IP means Internet Protocol. ;-)

    • by mpe (36238) on Monday September 17, 2007 @04:58AM (#20633609)
      Reminds me of a Pennsylvania farmer I once knew. He made his living by poaching deer and selling the meat to some fancy, high dollar Maryland and D.C. restaurants. He would get caught poaching, pay the stiff fines out of a roll in his pocket and claim that it was only 3 days profits, and only got caught several times a year. Just a small operating expense...no big deal. He just laughed it off and even bragged about it.

      The only unusual thing is an individual being able to use this kind of business model. Corporations have the advantage that they cannot be arrested.
    • Well, my two thoughts are:

      1) Good for the farmer... the deer population in the northeast is so ridiculous that with the ticks these animals have, they're as bad as rats in the city. The states ought to up the bag limit to 3 or 4 buck per season and allow anybody who wants to get a doe license.

      2) If a farmer is shooting deer on his own property, is that really poaching? It's screwy that the law could protect the deer on his property, since it could be argued the deer are his. But I don't know anything abou
      • Re: (Score:3, Interesting)

        by Bozdune (68800)
        Exactly. They are rats with hooves. And they aren't the little mule deer from California, either, these are the big white-tailed deer. Very large animals. I can't mow the lawn without picking ticks off my ass, and I have to surround every shrub and every flower bed with deer netting (and don't tell me that coyote urine or soap or shock sticks or any of the other half-measures work, because they absolutely do not. A hungry deer is not stoppable except by physical barrier, and even then, sometimes not. T
    • Not disagreeing with the main point of your post, but, and I think they're the only animal I can say this about, somebody caught poaching deer should be given a fucking medal.

      Deer are nowhere near even being endangered. Their population is not falling. If things continue exactly as they are, society is certainly no worse off because of this man's actions. The punishment is too stiff. It should be lightened until the deer population reaches the point when I almost hit them only as often as other highly succ

    • by maxume (22995)
      Pennsylvania should have just changed their laws such that a second or third offense within a given time window resulted in confiscation of poaching equipment, including things like vehicles. The fines a warning, the loss of your rifle(s) and vehicle hurts.
      • by msouth (10321)

        Pennsylvania should have just changed their laws such that a second or third offense within a given time window resulted in confiscation of poaching equipment, including things like vehicles. The fines a warning, the loss of your rifle(s) and vehicle hurts.


        Great idea! Let's give the government another excuse to take people's property and force them into submission! You should run for senate.
        • by maxume (22995)
          It's already routine treatment for people who rustle timber from public lands. There are too many assholes out there for society to pretend like the commons doesn't need to be protected from them. I'm not generally a fan of confiscation laws, but they are better than outright bans, and so on.
  • by Eudial (590661) on Monday September 17, 2007 @04:20AM (#20633421)
    It felt appropriate to say

    You wouldn't steal a handbag... You wouldn't steal a car... You wouldn't steal a baby... You wouldn't shoot a policeman, and then steal his helmet... You wouldn't go to the toilet in his helmet, and then send it to the policeman's grieving widow, and then steal it again! Downloading films is stealing!
    • by deniable (76198)
      Piracy is worse than cannibalism. :(
      • Re: (Score:3, Funny)

        by Opportunist (166417)
        Only if your diet consists of IP/copyright lawyers.

        Oh, you mean legally, not morally. My fault, sorry.
    • IT Crowd FTW!
    • Hmm... I don't know that quote. Are there episodes I didn't down... I mean see yet?
  • by Nymz (905908) on Monday September 17, 2007 @04:24AM (#20633451) Journal
    What happened?
    -The RIAA claimed that simply making copyright material available online,
    was proof of intention to commit copyright infringement (We got proof!)
    -Defense Lawyers challenged that claim as insufficient evidence (No you don't!)
    -A Judge agreed with the Defense Lawyers (Ya, that isn't enough proof, begone RIAA!)
    -RIAA returns, but drops the 'making available' argument (Is this better?)

    What could happen now?
    -The RIAA would stop bringing cases based solely upon the 'making availble' argument (If it wasn't for those darn Slashdoters)
    • by jimicus (737525) on Monday September 17, 2007 @05:14AM (#20633681)
      Look to past history.

      Any technology which allows the end-user to produce their own media (and some which didn't) has scared the entertainment industry.

      First there were records - "But who will pay to see live performances if they can just play the record?". Then they realised that they could make a roaring trade selling records themselves.

      Then came analogue tapes: "But who will buy records if they can just tape from a friend?" - then they established a business in selling tapes as they're smaller and it's very hard to play a record in a car.

      Then came videos: "But who will go to the cinema if they can record movies from the TV?" - then they established a business in selling pre-recorded videos.

      Then came affordable CD burners: "But who will buy CDs if they can copy from a friend?" - well, actually rather a lot of people. Though that didn't stop a lot of countries being pressured to establish taxes on blank media and passing these taxes back to the recording studios.

      Now audio and movies can be easily shared over the Internet: "But we must stop this, lest nobody buy music, movies or visit the cinema!". What they really mean is "We're not sure that this sits well with our business model and we haven't yet figured out how best to exploit it so it does. While we're in the process of doing that, please talk quietly amongst yourselves AND STOP SHARING MUSIC, DAMMIT!".
      • by Nymz (905908)

        Any technology which allows the end-user to produce their own media (and some which didn't) has scared the entertainment industry.
        After reading your list of different media types, and how bussinesses had to adapt over the years in order to survive, it seems reasonable to expect the same thing to happen with our current situation. But I'm not so sure, because the stakes are higher for bussinesses, and consumers are more empowered than ever to do what they want.
        • by jimicus (737525)
          I disagree that the stakes are substantially higher.

          The entertainment industry has always had a business based on flogging what's New! Shiny! Entertaining! And Not Identical To The Last One, Honest! (singles, latest Britney Spears clone, latest song by established artist) - and another side to the business based on flogging you what was New! Shiny! Entertaining! in the past (albums, DVDs).

          It goes without saying that the part of the business which is likely to suffer from private media sharing is the latter
      • There might have been a window for the same corporations monetizing p2p and resting on their laurels a few years back, but it's shutting rapidly. People are getting used to the idea of user-generated content, long-tail artists, music discovery sites, etc - all of which spells the end for Big Media as we know it. Old-style p2p is losing its allure to many becuause there are now so many places you can hear that song/watch that movie RIGHT NOW.
      • Re: (Score:3, Interesting)

        by Opportunist (166417)
        Their problem this time is that it's not so easy to cash in on "empty media" as it was in the past. In some countries you pay an "RIAA tax" on every blank tape, CDR and now even hard drive you buy.

        For tapes and CDRs this didn't bother businesses so much. Hard drives do. Furthermore, unlike tapes and CDRs, Hard drives are by magnitudes bigger and can be used more often than just once or a handful of times. Not to mention that businesses are running rampart against this kind of "tax", because, well, just beca
    • They replaced the "and/or making available" language with language claiming that they "detected an individual". Aside from what the attorney linked to in the article says about the dropping of the old language being a defense, there is also a more positive defense now, from their claim:

      Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your compute
      • by Nymz (905908)

        Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your computer at the time (and it only has to be theoretical), then then cannot pin this on an individual, so they have no case.

        While I agree that detecting an IP address isn't proof that someone is responsible, isn't it enough suspision to obtain a warrant to search any computers on that address, a

        • In a sense it doesn't matter, because that is what they are claiming in their court papers. If their claim is false (they did not "detect an individual"), there is no case. If they meant something else, then they should have claimed something else.

          But to answer your question, I think whether it is sufficient to justify a warrant is a matter for a judge to decide. If I were a judge, I would probably say "no", because IP addresses can be spoofed, and because, as I mentioned, there is the possibility of oth
      • They replaced the "and/or making available" language with language claiming that they "detected an individual". Aside from what the attorney linked to in the article says about the dropping of the old language being a defense, there is also a more positive defense now, from their claim: Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your computer at the time (and it only has to be theoretical), then then cannot pin this on an individual, so they have no case. Other cases have been won on the basis that the person who allegedly did the downloading had an open wifi access point on their internet connection, so the "crime" could actually have been committed by an unknown party, half a block away.
        I brought this to the attention of the Judge at the June 29th conference in Warner v. Cassin [blogspot.com], where the attorney, Timothy Reynolds, actually said to the Judge that their investigator had "detected an individual". The Judge got mad at me, though, when I indicated to him that it was a violation of Rule 11 for the attorney to have made the deliberately false statement, instead of getting mad at the attorney who'd lied to the Court.
        • Sorry to hear that. But I guess there is no way to force all judges to be rational. We have had some bad decisions by local judges around here, too. But that is just my opinion... while I have a smattering of legal education, I am not one of them, nor a lawyer.
          • Re: (Score:3, Insightful)

            Sorry to hear that. But I guess there is no way to force all judges to be rational. We have had some bad decisions by local judges around here, too.
            It's not as bad as that. If you read the transcript you'll see that () the Judge didn't make any decisions, and (b) he evidenced awareness that it was impossible for them to have 'detected an individual'.

            He just seemed to think it was bad form for me to have brought up Rule 11.
            • by jambarama (784670)
              Well, as you know FRCP rule 11 (esp subsection b) isn't used successfully that much. The impact it has that I see is 1 - it allows old lawyers to scare the crap out of younger ones by threatening them, and 2 - it guides the way we plead. So rather than using it to slap down others (except in the most egregious cases), it is kind of a behavior modifier. I've never really seen someone explicitly violate 11b (thus I've never threatened with it), so I can't be sure what judges think of using it, but the inf
        • The Judge got mad at me, though, when I indicated to him that it was a violation of Rule 11 for the attorney to have made the deliberately false statement, instead of getting mad at the attorney who'd lied to the Court.

          And he'd seemed like such a nice judge right up to that point too.

      • by mpe (36238)
        Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your computer at the time (and it only has to be theoretical), then then cannot pin this on an individual, so they have no case.

        Similarly if you are (or could be) running TOR.
        • Yes, but that is a bit more iffy. It could be argued that you were using Tor specifically in order to avoid getting caught. It still means that they did not catch you... but it raises questions.

          As an analogy, imagine that a liquor store had been robbed, and police caught you hiding in a dumpster in an alley nearby. You might claim (even honestly) that you had only been dumpster diving, but it still looks pretty suspicious. Probably not the best example, but it makes the point.

          On the other hand, there
  • Is it safe to SEED again?
    • Re:Safe yet? (Score:5, Interesting)

      by Technician (215283) on Monday September 17, 2007 @05:31AM (#20633743)
      Is it safe to SEED again?

      Not yet. The RIAA didn't drop the complaint. They just amended it.

      In the meantime, fly under the radar. Swap USB drives.
      • by mpe (36238)
        The RIAA didn't drop the complaint. They just amended it.

        Is this actually allowed after a judge has tossed the case.
        At best they should have to grovell humiliatingly to the judge, at worst start a whole new case from scratch.
        • Re: (Score:3, Informative)

          The RIAA didn't drop the complaint. They just amended it.
          Is this actually allowed after a judge has tossed the case. At best they should have to grovell humiliatingly to the judge, at worst start a whole new case from scratch.
          It's common to dismiss a complaint and grant leave to replead. In this case the judge expressly gave them leave to replead.
          • by brassman (112558)
            I know Perry Mason is a fictional character. I'm not suggesting anyone even breathe the words 'harassment,' 'abuse of process,' or 'barratry,' and certainly not 'disbarment;' even crooks are entitled to hire an attorney and that attorney has to be allowed to give it the old college try. But -- sheesh!

            I can see the judge correcting you if you were to take umbrage on the court's behalf (something like "*I* will decide whether plaintiff's counsel is wasting this court's time, Mr. Beckerman") but your client
    • by Jane Q. Public (1010737) on Monday September 17, 2007 @05:49AM (#20633823)
      Depends on who your partner is. :o)
    • by nacturation (646836) <nacturation@@@gmail...com> on Monday September 17, 2007 @05:54AM (#20633853) Journal

      Is it safe to SEED again?
      Naturally you mean things like various Linux distribution ISOs, works released under Creative Commons license or in the public domain, your own creative content, etc.? It's always been safe to seed those. Why do you ask?
       
      • You must be new...no, wait...RIAA sues YOU!...I mean...PROFIT!!!

        Sorry, I'm just an expression of the slashdot group-think mind-fuck that goes for "copryright reform" discourse here.

        The whole point of what NYCL is doing is almost a public service in pushing the final dregs of the the entertainment industry into the 21st Century. They should be fricking _paying_ him for the good this will do them once the pain is over and they come out the other side.

        -P

        (Moderators, bring it on. Karma-protection suite: Acti
  • But ofcource (Score:2, Interesting)

    by cybergen007 (1062390)
    they are dropping this kind of defense. If you out something available on the internet they 1. Have to prove it was actually you who made the file available 2. The content of the file is actually what the filename indicates (If you put a empty text file online with the name Pirates_3_DVDRip you are not acting illegally) 3. They have to prove that the evidence in court (The actually downloaded file) was downloaded from your computer. It cant be a DVD that was created at the riaa main office. Since this is
    • by iainl (136759)
      All true. But at least in the case of "Pirates_3_DVDRip" I could probably make a reasonable guess.

      But if I've got a file called "Heroes.rar" on my drive, should I be sued by Bowie, Philip Glass, NBC or NCSoft? Or maybe it's just my essay on Joseph Campbell. I remember one site getting into trouble for distributing Open Office, because the second word there matched a search for pirate copies of Microsoft's suite.
  • That guy is a blooming idiot! The defense lawyer knew more about IP addresses, routers, networks, and MAC addresses than they guy with an PhD in computer engineering! It was pretty entertaining reading.
  • > And finally, what tack will defendants' lawyers take? Yes, indeed. What tack could they possibly take? Maybe a thumb-tack or horse tack or they might even use some Blu-Tack(tm)? ...or maybe they'll go in a completely different direction and use a TACT.
  • My car was broken into and some of my CDs were stolen. was I liable for making the CDs available? and that it wasn't the fault what so ever of the Junky that stole them?
  • Lets see how many flaws there is to the court cases...

    Let us assume that the plaintiff claims that ip 64.233.183.104 has "made available" a torrent.

    a)The plaintiff has no evidence that they have scanned ip 64.233.183.104. Indeed, they don't even have any evidence that they conducted an investigation at all. They may say that ip 64.233.183.104 was used, but they can't provide evidence for it.

    b)An ip doesn't correspond to an individual, it corresponds to a client or server. The client or server in question ma

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