Has RIAA Abandoned the 'Making Available' Defense?

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)?"

Re:Defense?

[GwaihirBW]

"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.

Re:This complaint is no better

[Mathinker]

> 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.

Entrapment?

[Moraelin]

If you don't think that invading someone's privacy is wrong, or entrapping people into squeezing money out of them is wrong, there is something wrong with you.

I'm sorry, while I'd even agree with the privacy slant, and I don't really have much love for the RIAA... excuse me? Entrapment?

Let's have look at dictionary.reference.com [reference.com], shall we. The only definitions that fit in a legal context, seem to be the likes of "the luring by a law-enforcement agent of a person into committing a crime" (Random House Unabridged Dictionary) and "To lure into performing a previously or otherwise uncontemplated illegal act. (The American Heritage Dictionary of the English Language, Fourth Edition)

Also note the following note from Merriam-Webster's Dictionary of Law: "Entrapment is available as a defense only when an agent of the state or federal government has provided the encouragement or inducement. This defense is sometimes allowed in administrative proceedings (as for the revocation of a license to practice medicine) as well as criminal proceedings. In order to establish entrapment, the defendant has the burden of proving either that he or she would not have committed the crime but for the undue persuasion or fraud of the government agent, or that the encouragement was such that it created a risk that persons not inclined to commit the crime would commit it, depending on the jurisdiction. When entrapment is pleaded, evidence (as character evidence) regarding the defendant that might otherwise have been excluded is allowed to be admitted."

I.e., pay attention: Entrapment is when some government agent (e.g., an undercover cop) persuades you to do something illegal that you wouldn't have even considered otherwise. Just getting caught when doing something on your own is _not_ entrapment, much as it seems to be a popular mis-conception on Slashdot.

E.g., if you're some random Joe minding your own business and some undercover cop comes and coaxes you and promises you big bucks if you'll grow hemp for him in your basement, that's entrapment. It can be argued that you wouldn't have considered doing it on your own. Maybe you're just gullible, not a crook. On the other hand, if you're selling dope anyway and an undercover cop comes and buys some hemp from you, that's not entrapment.

E.g., I seem to vaguely remember a terrorism-related case where it was argued that the cop had pretty much manufactured the whole cell. He wasn't (supposedly) recruited into a cell, he recruited a bunch of disgruntled muslim immigrants and persuaded them that it's Allah's will to blow shit up and punish the infidels, and promised them money, weapons and fake papers. It may show that they were not morally above that, given the right persuasion and incentive, but they weren't doing it until that cop coaxed them.

On the other hand, had the cell existed and planned that shit on its own, then an undercover cop infiltrating it would _not_ count as entrapment.

E.g., to further illustrate the delimitation, IIRC there was this case of a woman trying to hire a hitman to kill some neighbours. The undercover cop posing as a hardened hitman, precisely to avoid any possibility of entrapment, actually tried to talk her _out_ of it, and asked several times if she's completely sure she wants to go ahead with it. Just being an undercover agent may be a lie, but it's not entrapment. It would be entrapment if he went and convinced a neighbour how much easier things would be if she killed everyone she doesn't like.

So pray tell, how did the RIAA entrap these poor people? Did some undercover RIAA agent go to their house, befriend them, and beg them to share some songs online? Or what?

In most cases the RIAA didn't even know who the fuck was at that IP address until the ISP told them. They even got some awfully bad info in some cases, resulting in some PR screw-ups of epic

Re:Defense?

[fenderized]

That's rubbish. Let's look at the examples from "American Heritage Dictionary" (it was handy, use another if you want).

1. In addition; also: He's coming along too.
2. More than enough; excessively: She worries too much.
3. To a regrettable degree: My error was all too apparent.
4. Very; extremely; immensely: He's only too willing to be of service.
5. Informal Indeed; so: You will too do it!

You could replace the first example and it would work. The next three would be meaningless and it would completely change the meaning of the last example. So the OP was right about being wrong.

Re:There is more to it than that.

[NewYorkCountryLawyer]

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.

Re:Safe yet?

[NewYorkCountryLawyer]

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.