RIAA "Making Available" Theory Rejected

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."

Re:Not today...

[AioKits]

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:Can anyone explain

[jonnythan]

Think of it like this:

I place a pair of gloves on a park bench and walk away.

versus:

I walk up to someone sitting on a park bench and offer them a pair of gloves.

Re:Chalk up another loss, RIAA

[Atlantis-Rising]

You do realize precedent is only downward (and to some extent sideways).

Precedent set in one circuit does not hold for another circuit and only the Supreme Court can set precedent for all courts, and trial courts can't set precedent at all.

Re:Haha this is pretty much a win

[DigitalisAkujin]

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:Haha this is pretty much a win

[NewYorkCountryLawyer]

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

Re:What Files?

[bzipitidoo]

Short answer: no.

The problem is the audio CD. With 2 CDs, you don't have a chance. They won't have the same collection of scratches, dust motes, and errors. Even if you rip the same CD in the same drive again, you won't get the same data because the drive won't read those occasional scratches the same, and the dust motes may shift. The audio format does not have error correction like the data format. It doesn't need to nor does it preserve every last bit. Only if you encode the same rip twice with identical parameters and software versions should you get identical results.

Re:RIAA's argument

[Todd Knarr]

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 what the judge's words about "offer" are aimed at. In fact, his ruling eliminates the need for the RIAA to prove actual downloading, it hinges the entire ability to sue on showing either intent or willful recklessness. The RIAA now has to prove that either the defendants put the files there with the intent that others download them or that, at the very least, the defendants knew or reasonably should have known those files would be available to others and failed to take any steps to prevent that. The first is a real tough nut absent a confession from the defendants, and the second, well, it's really easy to argue that the defendants never were exposed to any hint that this software even could make the files available and had no reason to believe it'd allow others to download from them and it'll be real hard for the RIAA to prove these people are tech-savvy enough that they had to have known all about how P2P works.

Re:Haha this is pretty much a win

[Atlantis-Rising]

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?