RIAA Throws In Towel On "Making Available" Case 252
NewYorkCountryLawyer writes "The RIAA has thrown in the towel on one of the leading cases challenging its 'making available' theory, Warner v. Cassin, in which the defendant had moved to dismiss the RIAA's complaint. We have just learned that the RIAA submitted a voluntary notice of dismissal before the judge got to decide the defendant's motion to dismiss the complaint. It will be of interest to see if Ms. Cassin pursues a claim for attorneys' fees in view of recent court rulings that successful copyright defendants are presumptively entitled to an attorneys fee award, even if the dismissal came about from the plaintiffs' having 'thrown in the towel.'"
It's because they are betting on the ACTA Treaty (Score:5, Informative)
They figure the lawyer fees would be better used to bribe congress critters to push ACTA, instead.
Re:Come on.. (Score:3, Informative)
The defendant filed a motion to dismiss, before the judge ruled on it, the plaintiff (RIAA) filed a voluntary motion to dismiss the case.
This means the case is over.
Re:Interesting.. (Score:5, Informative)
FTA:
The notice states that the dismissal is "without prejudice". However, Fed. R. Civ. P. 41 (B) states "if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." It is believed that the plaintiffs learned of the defendant's identity through a prior, "John Doe", proceeding, which it also voluntarily dismissed, so that the dismissal in this case "operates as an adjudication on the merits".
Re:About time. (Score:1, Informative)
Re:Be afraid, be very afraid (Score:5, Informative)
Second, there will never be any law that holds that a bit of data could constitute copyright infringement anymore than copying one note could constitute copyright infringement. Neither bits nor notes are copyrightable because neither could be considered an original work.
Re:Isn't copyright infringement when a COPY is mad (Score:5, Informative)
http://www.copyright.gov/title17/92chap11.html#1101 [copyright.gov]
Of course, reasonable interpretation is necessary. If you put KaiserChiefs-Ruby.mp3 in your public folder of a limewire machine, is it reasonable to assume that you have put it there for your own use? Of course not. If you put it in a non-advertised publicly accessible folder that is password protected? then yes. Reasonableness matters. this is why, if you are caught in the bank with a gun in your hand, the "aliens just teleported me here and implanted false memories in the witnesses' brains to make them think that i robbed this bank" defense won't work, even if the existence of such a possibility means that your guilt is not "certain" in some mathematical sense.
Additionally, i find it very ironic that you are arguing that it's not the making available, but the downloading that's illegal, when we just had a whole different thread of idiots yesterday arguing exactly the opposite to justify their piracy.
Re:About time. (Score:5, Informative)
No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.
Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers. Charlie rips a song from a CD and makes an MP3 of it (perfectly legal, though the RIAA would like for it not to be).
Contrary to popular opinion, the legality of ripping files is not a given. I don't have the text in front of me, but I recall the legality being hinged on judicial interpretation of several seemingly obvious, but legally fuzzy terms (such as "home audio recording device," and whether or not said term includes computers).
Charlie then places that song in his "Shared Files" folder (still perfectly legal).
Still questionably legal. This is the (untested as far as I know) act that the RIAA is trying to get labeled as inducement or contributory infringement. The idea is that, but for Charlie making it available for Denise to download, no infringement could have occurred.
Denise downloads the song--it's only at that moment that anything illegal was done, but it is Charlie, not Denise, who has broken the law.
Nope, they both have. Charlie and Denise have both infringed the reproduction and distribution rights of both the song writer and the recording artist. The RIAA has been choosing to sue only those who are making the tracks available (probably either because they think it's the cheapest way to get their message across, or because they haven't figured out a way to nail the downloaders without stirring up entrapment charges), but could go after both.Note: this doesn't mean that I think the RIAA is right, this is just my take on the system as it stands today. Personally, I think a major overhaul is in order. One that doesn't include all of the stupid special interests that bought their way into the current system.
Re:Interesting.. (Score:5, Informative)
Exactly right.
By throwing in the towel here they think they are free to play this hand at another table. Avoiding a ruling was more important to them than simply losing this round.
TFA implies this may not be the case, and the dismissal may attach prejudice on any subsequent (or concurrent) claims against other defendants that are substantially similar.
IANAL, but would like to see one weigh in here with some professional observations.
Re:About time. (Score:3, Informative)
The rights of a copyright holder are listed in 17 USC 16:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Re:About time. (Score:2, Informative)
Re:Your Honor (Score:5, Informative)
They were about to lose a(nother) case against a dutch ISP (xs4all.nl) that was hosting Karin Spaink's website and were denied to withdraw. And lost.
See http://www.xs4all.nl/~kspaink/ for more information.
GPLv3 and making available: FSF's view (Score:4, Informative)
GPLv3 gives "making available to the public" as an example of propagation. What does this mean? Is making available a form of conveying?
One example of "making available to the public" is putting the software on a public web or FTP server. After you do this, some time may pass before anybody actually obtains the software from youâ"but because it could happen right away, you need to fulfill the GPL's obligations right away as well. Hence, we defined conveying to include this activity.
Seems Fishy... (Score:4, Informative)
Other mens (Score:1, Informative)
Re:Be afraid, be very afraid (Score:5, Informative)
I am, I did, I never said I do, I don't care what you call it, and I'm not.
"you just happaned to distribute some tiny portion... this could be seen as copyright infringement."
I think the problem you have is that you don't understand how systems such as bittorrent work. When you share data on bittorrent, you're not sharing sequential data. Thus, unless a lot of data was shared, it would be impossible to prove that the nearly random data you've shared was a part of an actual song.
When you download from bittorrent, you're immediately sharing. However, since you're downloading from many computers you're downloading faster than you're uploading. Combined with the fact that you cannot share what you do not have, when the download is complete, you're necessarily going to have shared less than what you've downloaded. And because you're sharing with numerous people, that random non-sequential data is going to become even less recognizable as a song because it was spread out to different computers.
Let's take a real world example, Let's say you download one 4MB MP3 from bittorrent. You download it from 100s people and some of those people start sharing from you. Let's say during that download you uploaded one forth of it, thus you've uploaded one non-sequential megabyte. However, because you shared it across 100 or more people, that one non-sequential megabyte has to be divided into at least 100 non-sequential parts. That means that each person you shared with got about 10KBs of data each. Do you really think that someone could determine a song based on 10KBs of non-sequential data? Really? The answer is "no," you cannot. And that's why the RIAA is making this ludicrous "making available" argument.
Re:Be afraid, be very afraid (Score:5, Informative)
Second, I think sharing a part of a song without permission of the copyright holder could be infringement, ignoring any fair use arguments or the like. I've not seen any case law to support that, however.
My point is that the "making available" argument is infinitely easier to prove than the actual infringement argument. And furthermore, that under the current P2P systems available, that actual infringement will be nearly impossible to prove.
Re:Interesting.. (Score:5, Informative)
Re:Case Law? (Score:5, Informative)
The most recent caselaw is that copyright defendants are presumptively entitled to attorneys fees [blogspot.com] where the case got dismissed by the plaintiffs who "threw in the towel".
Re:Come on.. (Score:5, Informative)
Secondly, how does it hurt the defendant for the case to go away? Answer, it doesn't.
The only question is whether or not attorneys fees will be sought. But that is a totally separate issue.
Re:About time. (Score:3, Informative)
A private entity acting in its own interest can not stir up entrapment charges. That is a charge that is specifically limited to government operators and crimes. As for downloaders, the fact that no one has ever gone after a single downloader, nor any uploader with huge numbers of illegally downloaded songs for downloading means it is allowed. They may change their minds later, but for now, they lie in commercials (downloading is illegal and we will get you) to scare people, but don't want to test the waters to see if anyone could possibly beat the charge. Hitting only uploaders and trying to keep all settlements out of court is a much safer practice. If they ever hit a downloader like me (having downloaded to get a new copy of a broken CD being the only downloading I've done of music since long before the lawsuits started), chances are they could lose the suit (I have the right to a single copy of the work and am attempting to regain that which I've already paid for). Lose one suit, and they all fail, that's why they are doing what they are doing here, sue to get settlements, harass to get payment, and drop all suits that make it to court.
Re:They are not illegal copies (Score:5, Informative)
It is also 100% legal for an American in Russia to buy all they wanted under this fully licensed and legal process, and cary it back home in their cary on. However, one point that is not settled is whether an American can, while sitting in the USA, download a song. It is legal for the Russian to sell it and transfer it, but if the transaction happens in the US, then the US resident is breaking the law because the compulsory license they are going through only applies in Russia. However, if the point of sale is determined to be in Russia, then anyone in the US buying from those servers is 100% legal in all senses of the law, American, Russian, and international laws. It would take a Constitutional Amendment to change the US law because of current rulings on importing something to the US that was previously exported. But don't let the truth get in the way of your wife-rape fantasies.
Re:About time. (Score:5, Informative)
Re:Interesting.. (Score:3, Informative)
Re:Interesting.. (Score:5, Informative)
adjudication on the merits = with prejudice = case cannot be brought against her again
no judge can't stop them from withdrawing the case before an answer has been filed
Re:Interesting.. (Score:5, Informative)
Re:About time. (Score:5, Informative)
IIRC the word is Barretry (Score:4, Informative)
Extortion via threatened litigation.
It can get a lawyer disbarred.
Re:About time. (Score:5, Informative)
How did he get the wildly incorrect instructions? From the RIAA lawyers.
How did they get him to accept the wildly incorrect instructions? By deceiving him. They (a) failed to call his attention to contrary controlling authority, and (b) calling to his attention a case which they knew had been vacated, without telling the judge that it had been vacated.
Re:Cowards (Score:4, Informative)