Arizona Judge Shoots Down RIAA Theories

NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"

Make the RIAA Download/Upload

[monxrtr]

The War will be won if the RIAA is forced to download/upload to gather evidence, and really there is no evidence whatsoever from file titles; that could reasonably be personal commentary or a fair use parody. The defendant should not be *presumed* guilty, the RIAA should *prove* infringement. File titles are 0% evidence, not even 1% "circumstantial". We don't really know, since no song has ever been played in any Court (and that alone will be worth millions in PR for the cause).

Keep a sharp eye on those RIAA IP addresses.

Screenshots of white powder is 0% evidence of cocaine. Writing $100 is 0% evidence of counterfeiting a one hundred dollar bill. And britneyspearstoxic.mp3 is 0% evidence of copyright infringement.

And imo, those paid settlements are RICO violations for precisely the reason that the RIAA has been on a 0% evidence extortion witch hunt.

Out of touch.

[Narpak]

I believe that this is just another sign that the RIAA's backers is still trying to maintain a business model that is clearly failing in the face of modern technological, and perhaps social, realities. We can debate back and forth about technicalities in the law, but what it really comes down to that distributing music the way it has been done for so long is no longer viable. People want another system; a better system. Of course I am no expert, I offer no alternative.. But I do believe another system could be created, (or perhaps is already being created in many minor ways) that could benefit musicians, consumers and those that are needed in between.

At least I think that serious consideration upon that issue should be made, and I am sad to say, the current establishment seem reluctant to do it. However, sooner or later, I am sure, a new way will emerge. People want to make music, and people want to listen, it is not a very difficult concept underneath it all. What is needed is something that is viable, acceptable and fair to all parts involved.

Re:Not Evisceration, just careful consideration.

[NewYorkCountryLawyer]

All that was denied here was a shot at summary judgement.

Yes the case will turn on its particular facts. But at least we can take comfort that the correct legal standards will be applied in determining those facts.

By the way, one of the interesting things about this case: it will NOT be a jury trial. Mr. Howell never demanded a jury trial. Judge Wake, not a jury, will be the trier of the facts.

Not copyright infringement...

[BUL2294]

While IANAL, if you read the EFF brief & the judgement in depth, an interesting defense is being promulgated... Even if the defendants specifically allowed MediaSentry to download these files, as authorized agents of the copyright holders, no copyright infringement actually took place!!! There's case law that says that a copyright holder (or their agent) cannot infringe on their own copyright... Hence the new, stupid, "making available" claim...

What does that mean? Assuming this argument is valid (which I can't see how it couldn't be), the plaintiffs would have to go back to square one and find someone else on Kazaa who downloaded specific files from the defendants--specifically infringing on copyright law. And for anyone who has used P2P before, how often do you know (or remember) who you're downloading from? Personally, I think that borders on impossible to prove--unless Kazaa keeps some sort of detailed log data file that MediaSentry would have to gain access to...

Re:What is thie score now?

[sjames]

I'm not so sure it's dismissive so much as derisive. Part of that is in the compulsory nature of law. Plumbers can't just send you a letter full of gibberish that translates to "hire a plumber or never flush again!" and make it stick. Lawyers do that all the time. While they do tend to make you miss a day of work if you hire them, you can opt to do without. Plumbers can't force you to take off for weeks even if it bankrupts you.

I'm not saying that there is a good way to fix all of the above, but I must say it doesn't appear that there's much effort to even try. I'll bet most lawyers would be pissed if I could just compell them seemingly at random to write a POS system in C or hire someone to do it for them. They would be especially ticked off if they could then potentially be forced to sell off their worldly posessions if I found a bug.

I have bothered to learn the basics of law, it's philosophy and jargon. As a result, I have gained respect for some lawyers and judgs and lost a great deal of respect for others.

Re:Fair use laws, wherefore art thou?

[MikeBabcock]

I ripped mine to FLAC and stream them via my PS3 transcoded to WAV format. Works very well.