RIAA "Making Available" Theory Rejected 168
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."
Haha this is pretty much a win (Score:4, Insightful)
Re:Not today... (Score:5, Insightful)
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:Haha this is pretty much a win (Score:5, Insightful)
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.
RIAA's argument (Score:4, Insightful)
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).
Possibe Win? Maybe, Probable Win? (Score:4, Insightful)
The RIAA can still paint the defendants as Anarchist wife-beating child-hating petty thieves and win the case.
Re:Haha this is pretty much a win (Score:5, Insightful)
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:Haha this is pretty much a win (Score:3, Insightful)
wow... yawn (Score:2, Insightful)
Thankfully there are people watching these guys so that the rest of us don't have to read the parts when groups like this try to redfine terms like "distribution." Virtual toast to you. I need a nap.
What Files? (Score:5, Insightful)
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:Haha this is pretty much a win (Score:3, Insightful)
If it was reasonable for this person to know it distributed "shared" music, then she would be at fault. And should be.
Re:RIAA's argument- WOA WOA WOA (Score:3, Insightful)
Re:What Files? (Score:3, Insightful)
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. Therefore unless you have a convincing argument as to why you had dozens of files that matched song titles/sizes you might not have the 51% argument required to win civil cases.
If it were a murder trial, this would be plenty. But in civil cases, if jury thinks you're just making far-fetched excuses I think you're going to lose. (Disclamer: IANAL, this is layman understanding of the situation).
Re:RIAA's argument- WOA WOA WOA (Score:3, Insightful)
Re:Not today... (Score:5, Insightful)
Good lord man, treat every day like "April Fools" on the Internet
Re:RIAA's argument- WOA WOA WOA (Score:3, Insightful)
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.
Re:OT: On the subject of warnings... (Score:5, Insightful)
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."
Re:RIAA's argument (Score:3, Insightful)
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 router because they don't know there's anything to change and, after all, it works just fine so they've no reason to think there's anything more needed. And other users take the default behavior of their wireless card and drivers, and when those drivers connect somewhere and don't give any indication there's any problem the user has no reason to think he's not allowed to connect there. After all, in his view, if whatever he connected to wasn't intended to be open to the public surely it'd've prompted for login information or something, no? The confluence of two naive users results in something happening that neither intended to happen, that neither realized was going to happen. Neither's required to know enough to know better, and until they are required to know enough they can't really be held responsible for not knowing.
Were it me, I'd simply make the manufacturers liable for the default settings on their devices, since they certainly know enough to know what the implications of any settings are. They can set them however they want, but they're on the hook for the consequences. My prediction is that instantly all new wireless gear would default to "no access without a key" and require the user to select a key before the device would work, and you've have to dig around to find the setting to allow access without authentication. End of problem.
Re:Chalk up another loss, RIAA (Score:5, Insightful)
The most common mistake around precedent is confusing it with law. Just because something is a precedent, it does not mean that it is hard and fast law. Its an interpretation of law, at a specific time and place. As such, it carries no official weight.
Virtually any level of court can set a legal precedent that can (and will) be referenced by an arguing attorney. Certainly some precedents carry more weight than others (supreme court vs. a trial court), but lawyers will often cite trial law precedents in their arguments. The idea being that there is an established line of reasoning in the precedent that should be carried forward to whatever they are arguing. Thus, the only difference is that a supreme court precedent carries with it tremendous legal weight, particularly since that court has the right to overturn or amend decisions of the lower courts. Its hard to argue against a supreme court precedent when they will just turn around and shove it right back in your face after all.
However, at the end of the day, almost any court preceding can be referenced as a precedent for further argument.
Re:Chalk up another loss, RIAA (Score:4, Insightful)
The difference between the two is simple. If the Supreme Court says something and a trial court contradicts that finding, the trial court judgment can be thrown out on that basis. Trial courts can contradict each other all the time. The same happens with appeals courts in a specific circuit; if a trial court contradicts an appeals court of the same circuit, the appeals court as a matter of principle will just throw out the trial court finding (most of the time; there are of course exceptions that prove every rule.)
However, there is something to what you say that other, non-binding precedents can and are referenced; they often are. In fact, it's not really rare that references will be made to courts in other countries to support a specific line of reasoning, especially in matters of international law and so on.
But do not make the mistake of arguing that there is no substantive difference between stare decisis binding precedent and other binding precedent. Circuit courts disagree with each other on basic points of law all the time, regardless of non-binding precedent.
In this case, this is a trial court judgment in a specific circuit. It may be referenced by defendants or plaintiffs in another circuit. But there is no reason to assume it will be accepted by those circuits, or even in other courts in the same circuit at this point. In other words, if it is a victory, it is a hollow one in that respect.
Re:RIAA's argument (Score:3, Insightful)
Re:RIAA's argument (Score:3, Insightful)
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, doesn't deal with this software every day, what would give them any reason to believe the software would upload what was downloaded? That's the question the court would (or should) ask. If you go through everything the user would've had available and nothing anywhere would hint at the upload functionality, and they don't have contacts in circles where that sort of thing would be regularly discussed, then how would they reasonably be expected to find out about it?
And most P2P software doesn't necessarily require positive action by the user to share downloaded files again. Much of it defaults to sharing unless and until the user turns sharing off. And if the user doesn't know there is a sharing function, why should they know to turn it off?
It's kind of like trespassing. If there's a solid fence with lots of "No trespassing" signs on it, you'll have an easy time nailing anyone you find on the wrong side of the fence. But if there's no fence, no signs, no indication whatsoever of a boundary, and this is the first time that person's been caught on the property, you'll have a hard time getting them convicted of trespassing. And if for the last 50 years everybody's been going across that property with no problems and no objections from the owner, the new owner's going to find it all but impossible to get trespassing charges upheld until after he puts up a fence and posts the property.
Re:Haha this is pretty much a win (Score:3, Insightful)
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 get wrong if in a rush or just not on their game
Re:Haha this is pretty much a win (Score:3, Insightful)
Now, for you or I, we know it's wrong to connect to wireless without being invited. But we also know how to pick our router out of many that might be accessable from our house. We also know that we should't just connect to the internet wherever we are...