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RIAA "Making Available" Theory Rejected 168

Posted by kdawson from the complaint-without-a-complaint dept.
NewYorkCountryLawyer writes "In a 25-page decision (PDF) which has been awaited for two years in Elektra v. Barker, Judge Kenneth M. Karas has rejected the RIAA's 'making available' theory and its 'authorization' theory, but sustained the sufficiency of the complaint's allegations of 'distribution' and 'downloading,' and also gave the RIAA 30 days to cure the defects in its complaint by filing a new complaint. The judge left it open for the RIAA to allege that defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,' which, the judge held, would be actionable."
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RIAA "Making Available" Theory Rejected More

RIAA "Making Available" Theory Rejected

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  • Not today... (Score:5, Funny)

    by the.Ceph ( 863988 ) on Tuesday April 01, 2008 @03:57PM (#22933886)
    Come on people, save these announcements for days that I can trust the internet...

    • Re: (Score:3, Informative)

      by AioKits ( 1235070 )

      Come on people, save these announcements for days that I can trust the internet...
      But you can always trust NewYorkCountyLawyer! Him and Judge Fudge.

      • Re:Not today... (Score:4, Funny)

        by ari_j ( 90255 ) on Wednesday April 02, 2008 @12:10AM (#22937706)

        Come on people, save these announcements for days that I can trust the internet...
        But you can always trust NewYorkCountyLawyer! Him and Judge Fudge.
        You heard it here, first, everyone! You can always trust a lawyer! ... just so long as it's the right lawyer. ;)

    • Re:Not today... (Score:5, Insightful)

      by hedwards ( 940851 ) on Tuesday April 01, 2008 @04:02PM (#22933950)
      NYCL wouldn't do that on this issue.

      From what I'm seeing it appears that the RIAA is going to have to try again in this case, but with the bar much higher this time. It doesn't mean that the case is over, but this time they'll have to have more than just a shared folder or a case where a p2p program might have accidentally added files that weren't meant for distribution.

      It is also a decision which is available for other attorneys to cite in their own cases.

      But, IANAL, YMMV, beware of dog, slippery when wet, etc.

      • Re:Not today... (Score:5, Funny)

        by sm62704 ( 957197 ) on Tuesday April 01, 2008 @04:11PM (#22934074) Journal
        It is also a decision which is available for other attorneys to cite in their own cases.

        I think that's likely the important part. It made me think.

        But, IANAL, YMMV, beware of dog, slippery when wet, etc.

        Close cover before striking (saw that on a book of AFL-CIO matches), Keep away from children, do not expose to fire or flame, and my favorite "do not eat"

        I was at the eye doctor getting YAGed [wikipedia.org] yesterday so the old slashdot favorite "do not look into the laser with your remaining eye" seems appropriate here.

      • OT: On the subject of warnings... (Score:5, Funny)

        by mooingyak ( 720677 ) on Tuesday April 01, 2008 @04:55PM (#22934572)
        But, IANAL, YMMV, beware of dog, slippery when wet, etc.

        I developed a newfound respect for Australians and their legal system last summer.

        I was in my pool, and I happened to notice the warnings on the inflatables. It had three sections:

        US: Do not leave children unsupervised. Not a life-saving device. Etc etc etc, about 5 or 6 lines worth.

        UK: Not substantially different from US. Phrased differently, but effectively the same amount of material with the same meaning.

        AU: Use only under competent supervision. That was it. All of it.

        • Re:OT: On the subject of warnings... (Score:5, Insightful)

          by Anonymous Cowpat ( 788193 ) on Tuesday April 01, 2008 @05:35PM (#22935026) Journal
          yeah, because those few words are crafted as a general, catch-all, ass-covering notice. Anything goes wrong; you weren't using competent supervision. "but I was watching them"; then you're not competent - nothing can go wrong as long as competent supervision is provided. If that didn't wash, they'd write something more verbose.

          To quote Humpy: "Almost anything can be attacked as a loss of amenity, while anything can be defended as not a significant loss of amenity."
          • Chewbacca: Grooowl(*)

            Palpatine: But this "amenity" isn't important! What's an amenity anyway? It's a bathroom! Life is not just about bathrooms! So it's not a _significant_ loss of amenity!

            Chewbacca: Groooowl(**)

            Palpatine: Strike this accused down and your jury duty will be complete!

            ---

            (*) Look at this dictionary! Does it contain the word "amenity"? No, it doesn't! If it doesn't contain the word "amenity", it's a loss of amenity!

            (**) If it doesn't contain "amenity", you must acquit!

    • Re: (Score:2, Redundant)

      by LordEd ( 840443 )
      It looks like Slashdot is not participating the April-1 celebrations. I'm disappointed.

      Is it so much to ask for a pink pony style website one day of the year?

    • Re:Not today... (Score:5, Insightful)

      by BigJClark ( 1226554 ) on Tuesday April 01, 2008 @05:22PM (#22934896)

      Good lord man, treat every day like "April Fools" on the Internet

  • Haha this is pretty much a win (Score:4, Insightful)

    by DigitalisAkujin ( 846133 ) on Tuesday April 01, 2008 @04:01PM (#22933926) Homepage
    There's no way they can prove that the "defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,'". Nail in the coffin. ;)

    • Re:Haha this is pretty much a win (Score:5, Insightful)

      by meringuoid ( 568297 ) on Tuesday April 01, 2008 @04:06PM (#22934002)
      There's no way they can prove that the "defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,'".

      Er... what? Connecting to a torrent tracker and advertising what chunks of the data you have is an offer to distribute those chunks to anybody else on the tracker who asks. And on the balance of probabilities, that offer is genuine - unless she's a ratio cheat.

      Same goes for other P2P systems. Listing a file as shared when a search request comes through is an offer to distribute that file, and unless you're one of those virus nodes that offers the same stupid VBS file to every search, the balance of probabilities is that you intend to honour that offer.

      • Re:Haha this is pretty much a win (Score:5, Insightful)

        by jedidiah ( 1196 ) on Tuesday April 01, 2008 @04:18PM (#22934154) Homepage
        As always, it matters who is doing the connecting and how automated the process is.

        The days were you could assume that the end user was aware of and understood everything
        that their computer is doing are long gone. Whether you consider that a good or bad thing,
        justice should still reflect the new reality.

        • Re: (Score:3, Insightful)

          by geekoid ( 135745 )
          And it will.

          If it was reasonable for this person to know it distributed "shared" music, then she would be at fault. And should be.

      • Re:Haha this is pretty much a win (Score:4, Interesting)

        by Todd Knarr ( 15451 ) on Tuesday April 01, 2008 @04:19PM (#22934160) Homepage

        That depends. That's the default behavior unless you go and deliberately modify the client's settings. So if I go to a tracker to get say a Linux distribution, treating a BitTorrent client like a fancy FTP program purely for download, I'm going to offer up chunks of what I'm downloading unless I'm technically savvy enough to know this is happening and change the default behavior. If I'm not technically savvy, I probably won't even realize this is happening. And there's the trick of it: if I put something down on a table in my front yard while I go inside and get a drink, not realizing someone will come along and take it, have I made an offer to that someone to distribute what I've left laying there?

        • Re:Haha this is pretty much a win (Score:5, Interesting)

          by Atlantis-Rising ( 857278 ) on Tuesday April 01, 2008 @04:31PM (#22934320) Homepage
          I find it perhaps ironic that this is what you're saying, when I was arguing very similarly in another thread- unsecured WAPs, where I argued that the software's authorization was not necessarily the person's authorization.

          It seems like Slashdot (if it could be described as one homogeneous entity, of course) believes that to be sufficient authorization to immunize one from liability but this to not be sufficient authorization to incur it, despite the scenarios being very similar.

            Any ideas why?

          • Re: (Score:2)

            by Sancho ( 17056 )
            Why? Because Slashdot can't be described as one homogeneous entity. I can't believe that you asked the question.

          • Re: (Score:3, Interesting)

            by gnasher719 ( 869701 )

            I find it perhaps ironic that this is what you're saying, when I was arguing very similarly in another thread- unsecured WAPs, where I argued that the software's authorization was not necessarily the person's authorization.

            Some people can think logically; they will _either_ conclude that a machine can give authorization, _or_ they will conclude that only a person can do so, and then they will stick to it. If the outcome is sometimes desirable and sometimes undesirable, that is just tough. Others change their thinking in order to support the conclusion that they want to arrive at.

          • Re: (Score:3, Insightful)

            by jp10558 ( 748604 )
            Personally I think it's because many /.ers think you can't fairly hold someone responsible for something they don't know is going on. It seems unfair for there to be strict liability without some licensing requirement.

            Granted this implies an awful lot, but in either case there's:
            1) Lack of physical harm
            2) debate on how much financial harm is actually caused
            3) Little to no effort made to inform users of the consequences of various configurations
            4) Really complicated configurations that professionals often ge

            • Re: (Score:3, Informative)

              by Atlantis-Rising ( 857278 )
              And that's sort of my point- if we expect that here, someone is not responsible for their computer doing something because they didn't know what was going on, how can you then turn around and say that wireless access you haven't been explicitly granted access to should be legally acceptable to use?

              • Re: (Score:3, Insightful)

                by jp10558 ( 748604 )
                Well, again it depends, but if your laptop software just connects you, neither party necessarily was aware they were doing anything "wrong" either technically or legally. I've seen users who think they are connected to their router but actually connected to a neighbors because they didn't understand either what the computer did automatically, or what the prompts meant beyond that clicking connect got them to the internet.

                Now, for you or I, we know it's wrong to connect to wireless without being invited. But

        • Re: (Score:2)

          by tftp ( 111690 )
          if I put something down on a table in my front yard while I go inside and get a drink, not realizing someone will come along and take it, have I made an offer to that someone to distribute what I've left laying there?

          IANAL, but first let's change the scenario to remove the usual theft: someone makes a photocopy of a book that you left on that table while getting a drink.

          In this case, do you have any obligation to anyone (such as the publisher) to protect the book from copying, while not explicitly facil

      • Re: (Score:3, Insightful)

        by zappepcs ( 820751 )
        Not specifically related to your comment, but some p2p clients default to sharing mode without the knowledge of the user. Intent to distribute etc. gets a bit murky on that part for me. I'm not sure how it would apply to this case, but I know it happens so intent might be hard to prove if my thinking is correct.

      • Re:Haha this is pretty much a win (Score:5, Informative)

        by DigitalisAkujin ( 846133 ) on Tuesday April 01, 2008 @04:46PM (#22934454) Homepage
        Rtfa!!!!! This is Kazaa, not bittorrent.

        Check out
        Exhibit B Part 1: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1 [ilrweb.com]
        Exhibit B Part 2: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1 [ilrweb.com]

        It's a bunch of screenshots of Kazaa showing a listing of files that was in her shared folder. Essentially the RIAA lawyers argued that by simply having the files in that directory she was inciting others to infringe on their copyrights. This concept is called the "make available" theory. The judge threw it out.

        She gave the RIAA thirty days to make a new argument against this lady but to do so they have to show that she communicated with a 3rd party to 'offer to distribute' and that the intent in doing so was for "the purpose of further distribution".

        Clearly, they have no way of obtaining this information because it most likely doesn't exist and because this is a civil case they have no way to obtain more evidence short of her giving them an instant messaging, E-mail, or phone transcript / recording with her saying "Hey, go on Kazaa, look up my name and download X, Y, and Z songs". In other words, they're screwed.

        Now next time how about reading the god damn article!!!

        • Re: (Score:2)

          by Sancho ( 17056 ) *
          Then "with intent to redistribute" is obviously bull, but in the legal profession, you basically try to throw as much stuff at your opponent as possible, and you see what sticks.
          • Well, sort of. You must have a single overarching legal theory - and then you see what laws/rules/agreements/etc. were broken by the defendant in line with the theory presented. But you can't just "see what sticks" with multiple theories, or all you're going to get is an angry judge, who at best tells you to try again. This is essentially what's going on here: a "do-over".
        • I know this will spark yet another flame war, but has anyone considered that the RIAA is making things unavailable by jacking prices to unreasonable levels? I mean, the market for music is HUGE, absolutely massive, and the costs of distribution are falling. It probably costs more to fart these days. If music was cheap like water, as it should be then nobody would spend their bandwidth stealing it.

        • Re: (Score:2)

          by HTH NE1 ( 675604 )

          She gave the RIAA thirty days to make a new argument against this lady but to do so they have to show that she communicated with a 3rd party to 'offer to distribute' and that the intent in doing so was for "the purpose of further distribution".

          I don't have the ruling in front of me, but I'm not sure that a third party would be necessary (though the P2P search function may qualify). The files in the shared folder could be seen as an offer to distribute (much like a list of dishes on a menu are an offer to serve same) and the P2P network itself upon which it was offered may be enough to convince that the one offering to serve "should have known" that further distribution would have taken place (something that wouldn't be true of a web- or FTP serv

          • If the logic you provided was deemed legitimate in the eyes of the judge then the RIAA would have to provide evidence as such. I don't think, however, that the RIAA has this evidence nor can they get it because I highly doubt the conditions of that time are still in place.

            • Re: (Score:2)

              by HTH NE1 ( 675604 )
              If they have the images of the defendant's hard drive acquired from discovery--which they surely do--they can prove that the modus operandi of the standard software package both on the defendant's system and typical default installations is to create a chain of offers and on-demand distributions.

              A functioning network is of course implied. If the defendant is to suggest they had additional devices similar to Comcast's "bandwidth shaping" technology to prevent actual transfer, they'd better be able to produce

              • Except that that happening by default would undermine the argument. If the software's always discussed in terms of downloading, there's no obvious mention of it uploading and the upload function is enabled by default and doesn't require user intervention to turn it on, then why should a naive, non-technically-savvy user expect that his download software is actually uploading behind his back?

          • I think the judge would require the plaintiffs to prove that defendant did something affirmatively to "offer" the files.

            • Re: (Score:2)

              by HTH NE1 ( 675604 )

              I think the judge would require the plaintiffs to prove that defendant did something affirmatively to "offer" the files.

              I'd need to know more about the P2P software in question to know how reasonable it would be to use it in a manner (ripper or player) unaware of and incompatible with its function of sharing its fruits as opposed to what other applications were present that do not share, or that what was downloaded with it was or was not clearly unauthorized by rights holders. I.e. an argument seeking to transfer the liability to the software maker rather than its operator. I'd also be expecting the defendants to already be

            • Just a personal question about your specific cases:

              Are your case judgments decided by a jury or a sole judge? In your experience, which do you think is better?

              • Just a personal question about your specific cases: Are your case judgments decided by a jury or a sole judge? In your experience, which do you think is better?
                We haven't gotten anywhere near a trial yet. When and if we do, it would be a jury trial.

      • Re: (Score:2)

        by Zone-MR ( 631588 ) *

        Er... what? Connecting to a torrent tracker and advertising what chunks of the data you have is an offer to distribute those chunks to anybody else on the tracker who asks. And on the balance of probabilities, that offer is genuine - unless she's a ratio cheat.


        Exactly, unless she's a ratio cheat. It should be easy to argue in court that an advertisement to a tracker was not an offer one intended to follow up on. No?

    • Re: (Score:3, Interesting)

      by calebt3 ( 1098475 )
      What is bittorrent for, except "further distribution"? And by announcing yourself to the tracker, your system is telling it what pieces of the file you have to distribute.

      • Re: (Score:3, Interesting)

        by geminidomino ( 614729 ) *

        What is bittorrent for, except "further distribution"? And by announcing yourself to the tracker, your system is telling it what pieces of the file you have to distribute.
        "Your system" being a seperate, non-sentient entity from "the defendant" being the point.

        If the system defaults to such behavior and was not explicitly set to it by the user, one might make a case that the intent belonged to the packager of the client.

        • Re:Haha this is pretty much a win (Score:4, Interesting)

          by Ucklak ( 755284 ) on Tuesday April 01, 2008 @05:06PM (#22934726)
          First of all, all these **AA vs. Common Grandma are all about a P2P that uses complete files like Kazaa, Napster (in the old days), Morpheus, etc...
          I've never heard anything about the RIAA or MPAA going after a user using a torrent client. Going after a tracker is a different thing.
          Seeding would be analogous to a P2P of the former.
          Being a client or leeching is no more distributing content than sending emails to a friend or coworkers using normal language and calling that copyright infringement on normal language in published books.
        • This is the exact same reasoning that needs to be considered when people start referring to "wifi theft" since a huge portion of it is completely automated for the user.

    • Re: (Score:2)

      by sm62704 ( 957197 )
      As much as I hope so, I'm still doubtful. They have 30 days to pull a rabbit out of their hat, and it looks from the summary ("sustained the sufficiency of the complaint's allegations of 'distribution' and 'downloading,'") that there's a loophole left here big enough to drive a truck through.

      I'm hoping I'm wrong.

    • Possibe Win? Maybe, Probable Win? (Score:4, Insightful)

      by mpapet ( 761907 ) on Tuesday April 01, 2008 @04:16PM (#22934130) Homepage
      This is a civil matter. There is no overwhelming amount of evidence required.

      The RIAA can still paint the defendants as Anarchist wife-beating child-hating petty thieves and win the case.
    • It's very useful for me to keep backups of all my legally acquired media on a "shared folder", specifically my web site. I kant talk legalese, but that behavior has substantial non-infringing uses.

      Can I now put a link on my blog "Archive of my iTunes folder" to remind me where my backups are without getting in trouble? So long as I don't exceed my ISP's bandwidth cap I couldn't care less if strangers (the lazy copyright-infringing bastards!) download the bits.

  • Let's hope. (Score:3, Funny)

    by Anonymous Coward on Tuesday April 01, 2008 @04:01PM (#22933932)
    We can only hope that the RIAA captures all the dastardly pirates.

  • In a word (Score:4, Funny)

    by GameboyRMH ( 1153867 ) <`gameboyrmh' `at' `gmail.com'> on Tuesday April 01, 2008 @04:02PM (#22933948) Journal
    <voice class="male UT announcer">
    REEEJECTED!
    </voice>

  • RIAA's argument (Score:4, Insightful)

    by Todd Knarr ( 15451 ) on Tuesday April 01, 2008 @04:15PM (#22934110) Homepage

    The RIAA's undoubtably going to argue that the defendant's P2P software made the file available and that that constitutes the offer of distribution. The trick will be to neuter this argument, and that's going to have to turn on intent. If, for example, I have a table of books in my front yard with a sign saying "Take some", that's clearly an offer to distribute. But if I put a book down on the table on my front porch while I go inside to get something to drink, and while I'm gone someone comes along and takes the book, the book's arguably been distributed but I clearly haven't made any offer to distribute, the book was merely stolen. The argument's going to have to be that the defendant didn't know files in the shared folder would be offered for sharing, that they didn't have any reason to suspect that (non-technical people probably wouldn't, if all they did was use the software to download and never got into the technicalities (I do the same thing all the time, I use BitTorrent to download Linux ISO images with no intention of sharing them out again)), and that if they had known they would've done something to block the sharing (since they had no intention of doing it in the first place). You won't ever be able to win the argument that the files can always unconditionally be available without incurring any liability under any circumstances, but you can win the argument that merely unwittingly and unintentionally putting something down where someone else can take it doesn't incur liability (at least not until you've been told it's happening and have a chance to do something about it).

    • WOA! Slow down there. Are you sure you want to make such an obviously inflamatory statement here on slashdot?

      Here, let me fix it for you.

      "takes the book, the book's arguably been distributed but I clearly haven't made any offer to distribute, the book was merely stolen^W^W^W^W^W^Wcopyright infringed"

      There, much better.

      • Re: (Score:3, Insightful)

        by grahamd0 ( 1129971 )
        I know you were joking, but there would be no copyright infringement on the part of the thief, he's not copying or distributing the "intellectual property", he's stealing the physical medium on which it was printed.

        • Re: (Score:3, Insightful)

          by AigariusDebian ( 721386 )
          A better example here is if the 'thief' took pictures of every page of the book without taking the book itself. The 'thief' clearly commits copyright infringement, but the question is whether you commit copyright infringement by leaving the book outside where the 'thief' could easily find and access it.
          • In most sane places, taking pictures of each page of a book is perfectly legal... distributing these pages to others is not, except for special exemptions.

            Of course, there are fewer and fewer sane places in this world.

        • Re: (Score:3, Insightful)

          by mengel ( 13619 )
          Yes. To be accurate, our "thief" would have to walk up to the house with a small copy machine, and copy the book page by page while you were inside and unaware, and walk away leaving the book on the front step.

          It could happen...

          I suspect the *IAA would argue it's more like leaving the book and a copy machine on the front stoop while you go inside, however that still doesn't constitute an offer to let other people use the copy machine to copy the book.

    • What Files? (Score:5, Insightful)

      by monxrtr ( 1105563 ) on Tuesday April 01, 2008 @04:44PM (#22934440)
      A file title is not evidence of actual copyrighted infringement. I haven't heard a copyrighted single song the RIAA downloaded from a defendant played as evidence in a court of law. If I write BritneySpearsToxic.mp3 in this post, that is *not* evidence of copyright infringement no matter how many people link to this post from other sites, no matter how many screenshots the RIAA makes of files with any titles whatsoever.

      The RIAA has no real evidence of copyright infringement to submit into any civil court. If I were a defense attorney I would make that extremely clear to the Judge and Jury. Explicitly, I would ask the RIAA "expert witness":

      "Where is the actual song with content you copied from the defendant?"
      "You said you didn't download any actual song with from the defendant?"
      "How do you know the actual contents were not personal commentary about a song rather than copyright infringement distribution?"
      "You don't *know* what the actual contents of the files you claim are copyright infringements actually are?"

      "Motion to dismiss, with prejudice, attorneys fees, malicious prosecution, fraud, extortion, unlicensed spying, stalking, harassment."

      Then, once the RIAA is forced to have to download/upload files in P2P streams, in order to substantiate evidence, they will be guaranteed to be on the hook for $150,000 per "accidental" infringement. And we can subpoena all records and files the RIAA and Media Sentry have downloaded and forward to the appropriate parties and authorities, not to mention grow the list of criminal RICO racketeering charges against the RIAA.

      The RIAA "evidence" of file titles constituting copyright infringement is as absurd as writing dollar amounts on an internet thread constitutes counterfeiting.

      $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 $100 --- This is not "evidence" of counterfeiting, just as BritneySpearsToxic.mp3 is not evidence of copyright infringement.

      • Re: (Score:3, Insightful)

        by Mitreya ( 579078 )
        A file title is not evidence of actual copyrighted infringement. I haven't heard a copyrighted single song the RIAA downloaded from a defendant played as evidence in a court of law. If I write BritneySpearsToxic.mp3 in this post, that is *not* evidence of copyright infringement no matter how many people link to this post from other sites, no matter how many screenshots the RIAA makes of files with any titles whatsoever.

        It is my impression that these are all civil cases, meaning that RIAA does not have to

        • It is my impression that these are all civil cases, meaning that RIAA does not have to prove their case beyond a shadow of a doubt.

          the mp3 is never introduced as evidence simply because those cases are settled out of court.

          in criminal law the standard is proof beyond a "reasonable" doubt. absolute certainty is not possible and absolute certainty is not demanded.

    • I'm torn on this. I would like to think that the software could not "decide" to make something available for you, but on the other hand, Those silly "trespassing on wireless" stories are usually counteracted by the someone stating that their laptop asking the router for permission, and the router granting that permission is okay. Is it possible to be in favor of one, without being in favor of the other?

      • Re: (Score:3, Insightful)

        by Todd Knarr ( 15451 )

        All that's needed is to acknowledge a distinction between what should be and what is. People should know what their equipment's doing, and set it to only do what they want it doing. So in a perfect world, people would secure their wireless routers unless they intended anyone to access them, and people would configure their file-sharing software to not share any files unless they intended to share those files.

        But we don't live in a perfect world. Users take the default settings on their shiny-new wireless r

    • Re: (Score:3, Insightful)

      by CodeBuster ( 516420 )
      You're argument appears to be sound, but generally speaking, don't courts take a rather dim view of "it happened because I was ignorant" and particularly so when installing P2P software, presumably, involved some positive action on the part of the user with consent to at least install the program in the first place? If you chose to use a product and through ignorance, not reading the warnings in the manual, or negligence harm others then shouldn't the bar for a successful "it is not my fault because..." arg

      • Re: (Score:3, Insightful)

        by Todd Knarr ( 15451 )

        Not neccesarily. The key phrase is "knew or reasonably should have known". If there's a warning about something in the manual, a reasonable user's expected to have read the manual and so reasonably should have known about the danger. But when there's no apparent mention of something, things become more subjective. The question is usually "What would a reasonable ordinary person know about this?". Now, as a techie I'll know about the upload function of P2P software. But someone who's not an IT professional,

    • The RIAA's undoubtably going to argue that the defendant's P2P software made the file available and that that constitutes the offer of distribution.

      Well I think (and IANAL and I only skimmed the decision) that the ruling is mostly saying that the RIAA has to allege a specific act or event took place. I *don't* think it's saying that unlicensed distribution is acceptable as long as the distributor can claim distribution occurred unintentionally.

      So I'll try to adapt your example, even though it doesn't wo

      • Re: (Score:3, Informative)

        by Todd Knarr ( 15451 )

        Actually in both the third and fourth cases they'll have a hard time coming after you. If the table's out next to the sidewalk they may have an easier time, but if the table's up on your porch and you keep books on it to read then even if people come onto your property and take the books the RIAA would have to show that you intended people to take those books, as opposed to intending to have them there for your own use and outsiders abused that while you were gone and didn't know about it happening. That's

        • You are forgetting that all the file sharing software comes with EULAs that one has to agree to when installing it. At a minimum, the EULAs would have to inform the user that files will be shared, because if the EULAs don't mention that, the software suppliers could be prosecuted for violating the Computer Fraud and Abuse act and that can involve real jail time.

      • Re: (Score:3, Interesting)

        by gnasher719 ( 869701 )

        So I'll try to adapt your example, even though it doesn't work very well for the point I'm trying to make. *Imagine* I need a license to distribute books, even if I'm giving legal copies away for free:

        If I set up a table with a sign that says "free books", and I give books away, then according to this decision, they can still come after me.
        If I set up a table with a sign that says "free books" but nobody can prove anyone took a book, then according to this decision, they can probably come after me.
        If I set up a table with a bunch of books on it, with no sign, and they can prove someone took some books, then according to this decision, they can still come after me.
        If I have a table with a bunch of books, with no "free books" sign, and nobody can prove anyone took a book, then according to this decision, they can't come after me.

        I had a look at the actual decision, which was linked on theinquirer, and what you say seems to be too pessimistic.

        The court decision was about a motion to dismiss. The RIAA has claimed that songs were copied, and that they were "made available". In a motion to dismiss, the judge will assume that everything the plaintiff says is true, so it is assumed at this point that songs were actually copied. The defendant argued that the RIAA hadn't specifically said which songs were copied, but the RIAA said "the

  • the difference between "making available" and "offer to distribute"? They basically sound like the same thing to me.

  • wow... yawn (Score:2, Insightful)

    by ohzero ( 525786 )
    I know this is about my rights, authoritarian regimes, digital music and all sorts of interesting stuff, but at the end of the day... I am convinced that the RIAA's position is that if they bore the shit out of the majority of the population with excessively long legal arguments that try to define and redefine the distribution of music, that people will probably stop caring. I know I have.

    Thankfully there are people watching these guys so that the rest of us don't have to read the parts when groups like
  • A lot of comments I'm reading assume that this case is about Bittorrent where if you guys bother to rtfa (read the f article) you would know that this case is about Kazaa.

    Most cases that get to court are about Kazaa and the Gnutella network because with Bittorrent the evidence brought to court is usually very vague and not enough to get a good ruling for the RIAA.

    What makes the Gnutella network different is that a user shares files inside of a "Shared" directory therefore making it much easier to prove that

    • Re: (Score:3, Funny)

      by justinlee37 ( 993373 )

      The RIAA must prove that she not only made the files public but also announced to some 3rd party that they can take them.

      My "shared" directory is entitled "Private_Property_Dont_Download"

      I'd love to see them take me on in court.

  • Copyright governs the making of copies. That's it. People need to stop blathering about this "distributing" or "making available" crap.

    The question to really be asking is since the defendant undoubtedly made copies of the files, and since they were made available, it is not unreasonable to deduce that the copies were made for that purpose (unless that was done without his knowledge or consent), so is making copies for such a purpose actually supposed to be exempt from copyright infringement? Fair an

    • Well, it's well-known that cars are used by criminals to flee the scene of a crime. It's also well-known that if I leave a car on the street it could be stolen, especially if I don't lock it. So if I park my car on the street in front of my house and forget to lock the passenger-side door, and someone steals it and uses it to get away after robbing a bank, did I buy that car for the sole purpose of robbing a bank? It's theoretically possible, if I can be shown to be in cahoots with the robber, but the polic

      • Re: (Score:2)

        by mark-t ( 151149 )
        And that is relevant to copyright, how, exactly? Copyright infringement isn't remotely the same thing as property theft.

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