RIAA Throws In Towel On "Making Available" Case

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.'"

Re:About time.

[entmike]

Wouldn't that mean that MediaSentry would be in violation of copyright itself?

Your Honor

[whisper_jeff]

Your honor, we know you're going to rule against us and set a precedent which will completely torpedo most of our other legal efforts so we'd like to respectfully withdraw our claim. Kthxbai.

sigh... Gamesmanship at its most disgusting...

I'm curious - can the judge deny their voluntary dismissal and still hand down judgment?

All of my MP3s...

[Anonymous Coward]

While I actually own the CD to most of my OGGs, I gotta say that Allofmp3.com, now MP3sparks.com, have the best business model:

Let's see, reasonably-price music whose price depends upon the bit rate chosen. I can't wait to get home and send more money to the Russian mafia!

Re:About time.

[terrymr]

I believe this has already been tried ... the record industry can't use downloading by themselves or their agents to establish infringement because you cant infringe your own copyright - it's a legal impossibility.

This is what necessitates the "making available theory"

The you can't fire me...

[Bullfish]

I quit attempt (if it really amounts to that) to prevent a precendent from occuring is of little usefullness in practical terms. The fact remains that the outcome of the case didn't look good based on the course of the trial. Even if the RIAA is allowed to withdraw, court documents will still exist showing the course of events of the trial and they will remain on public record for any lawyer defending a client in an upcoming case brought by the RIAA. IANAL, but it would seem to me this will just be another case thrown on a growing pile of evidence that the RIAA is trying to push through nuisance cases backed by slipshod research methodology. Sooner or later judges are going to start beating them up for it.

Re:About time.

[Darkness404]

But if MediaSentry is the RIAA or has been authorized wouldn't that make them have the rights to the copyrighted material? Its the same idea on how you can pay $.99 and get the rights to download a song off the web. If the RIAA says "you can download any RIAA song" then no, it wouldn't be a violation of copyright because they have a license given by the RIAA that lets them do that.

Be afraid, be very afraid

[Anita Coney]

The RIAA is obviously afraid of losing outright on the issue of its "making available" argument. I say that because without the "making available" argument the RIAA will no longer be able to sue it fans. Let's face it, if the RIAA had actual evidence of copyright infringement, it would not need to use the "making available" argument. Thus, it's clear that the "making available" argument is the only pseudo-legal straw available for it to grasp.

I personally think it has something to do with the nature of P2P. In the old days if you shared music, the person would download it directly from you. Now you're only sharing bits and pieces of songs,not entire songs, spread out among many different people.

Of course the RIAA could attempt to make the argument that that sharing one even one bit of a song constitutes infringement. However, when one and zeros themselves become illegal, we're all in trouble!

Re:Interesting..

[JesseMcDonald]

I'm not a lawyer -- of course -- but it seems to me that threatening a ton of people with lawsuits in order to achieve a settlement and then never following through when the settlement is rejected would be just a bit too obvious, even for organizations like these. I doubt most courts look favorably on that sort of bluff, even ignoring the fact that only a credible threat of being sued would induce people to settle in the first place.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Interesting..

[digitrev]

How is that even possible? Is someone suddenly not a criminal when you find out who they are? I'm terribly ignorant of the law, but I was always under the impression that criminal suits had to be brought by a DA, and even then it was rare for a case to be suddenly dropped unless new information was brought to light.

Re:About time.

[UncleTogie]

Charlie does not know if Denise is a MediaSentry employee, and therefore may not make the file available to her.

...which could leave an interesting loophole...

If you require all music downloaders at your site, before downloading, to check a box that states "I hereby state that I am a MediaSentry/RIAA employee/contractor, and assume responsibility for affirming as such", could that get you off the hook?

Re:About time.

[Anonymous Coward]

What if Denise actually owned an original of the CD but she was downloading a MP3 of it instead of ripping her own copy because it was easier?

Re:Interesting..

[Anonymous Coward]

I remember a court case about a year ago that ruled that collection companies cannot threaten to sue (with the hopes of collecting debt without going to court) unless they actually plan to follow through with it.
I agree that the RIAA just wants to settle; nonetheless, they must take, at least, some of the people who choose not to settle to court. Also, a very practical reason would be that no one would settle because there would be no fear of more costly retribution.

Re:It will be of interest

[NewYorkCountryLawyer]

So, what will Ms. Cassin do? Who's representing her anyway? Maybe that attorney could find out and get back to us?

I guess you've figured out that her lawyer is me.

And the answer is, she hasn't decided yet.

She clearly has a winnable attorneys fee motion ahead, if she decides to make one, with a lot of good recent precedent behind it, such as Rivera v. Jones [blogspot.com], Mostly Memories v. For Your Ease [blogspot.com], Capitol v. Foster [blogspot.com], Atlantic v. Andersen [blogspot.com], and Bridgeport Music v. WB Music [blogspot.com].

Re:Interesting..

[NewYorkCountryLawyer]

"Settlement money is where it's at, baby."

Except that they LOSE money on every settlement! Haven't you been following along with the stories?

Actually Kingrames, I think the GP had it right. I think they:
-make money on the settlements
-lose money on the default judgments, and
-lose a lot of money on contested cases. Overall I think they're losing money now, but the settlements are the money-making part of it. They get almost no revenue from anything else.

Re:You can't sue someone & withdraw forever!

[NewYorkCountryLawyer]

I had exactly one law class

Yeah but it was probably this one [jeremydebeer.ca], with the cool syllabus [jeremydebeer.ca].

Re:About time.

[gnasher719]

I'm going to have to disagree with that analysis (IANAL, but I am a law student who is interested in practicing in copyright, so I have a little knowledge on the subject). (Before we get started, I have to say that I am not licensed to practice law anywhere, and this is not legal advice to anyone who may be reading this)
No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.

You should at least have read a few of the recent court decisions, and you would have noticed that while the RIAA successfully managed to bamboozle a judge into thinking this was the case, the same judge later realised that the RIAA was knowingly misrepresenting what the law says. Allowing someone else to download from you is _not_ illegal (as long as no downloading actually happened), unless you offer the downloads for distribution (for example, offering downloads to a record store) or for public performance (offering downloads to pubs playing the music in public).

Re:About time.

[jeiler]

Snippage has occurred.

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).

I'm aware of the questions there, but I'm going with MGM v. Grokster. Plaintif's oral arguments included an explicit admission of the legality of ripping a purchased CD to one's hard drive, and copying it to a media device (two separate acts, in my view). While of course a statement made in oral arguments is not a legal opinion or ruling, I think it not unreasonable to assume permission.

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.

Rejected by 9th Circuit in Atlantic v. Brennan and others, though I don't know if any of them qualify as an actual ruling of law. Nor do I know if it is a binding precedent.

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.

Hmmm ... I can't find what specific law or provision that would actually violate--if you have a citation, I'd love to see it--but it certainly makes sense the way you explain it.

Re:Interesting..

[OnlineAlias]

I'm a little surprised that you say this. Seems these lawyers work for the music industry hell bent on making sure the pressure is on file sharers, nothing more. The actual amount of money involved in the these cases is irrelevant to the attorneys or the music industry, win or lose. The attorneys fees are being paid by the members of the RIAA who have a dog in the fight much larger than this pittance, for sure. People seem to think that if they start losing money on this tactic it will stop. I can assure you, the music industry has already lost a ton of money doing this, and I am sure they don't care one bit. It is paying off in spades in their eyes.

Re:I'll have to read that information...

[NewYorkCountryLawyer]

well maybe you took this evidence course [blogspot.com]

i didn't find any flaws in your presentation

Re:Interesting..

[Daffy Duck]

If they kept threatening to sue but never followed through it would be extortion, which is itself a crime. So they have to go to court occasionally to keep "clean".

Re:Interesting..

[NewYorkCountryLawyer]

My back of the envelope guess is that they've gone after around 40,000 people, of whom around 10,000 have settled, at an average of $3000 per settlement, for a total of $30,000,000 over 5 years, or $6 million per year. And I'm guessing on back of the same envelope they were spending around $6 million per year to do it, for the first 2 years, and for the last 3 years have been spending more like $15 million per year.

So it has been a short term financial boon for some lawyers who (a) are not very particular about the kind of work they accept, and (b) won't have that work for much longer.

And it's been a disaster for the record company shareholders, and a disaster for the victims of the suits, and it's been a hardship -- albeit one assumed voluntarily -- for folks like me who decided to step into this mess to try to stop these bullies.

The above "back of the envelope estimate" was from me. It didn't dawn on me that it would appear as "Anonymous Coward".