RIAA Defendant Moves For Summary Judgment 117
NewYorkCountryLawyer writes "One thing you don't see too much of in RIAA litigation is a defendant moving for summary judgment, but that is what just occurred in federal court in Westchester, in Lava Records v. Amurao II. The RIAA had brought suit against Rolando Amurao, a middle aged man who knew nothing about file sharing. After haranguing him for 2 years, they dropped the case and sued his daughter, Audrey, who had used LimeWire years ago. When the RIAA moved for summary judgment against Audrey, however, she surprised them with a summary judgment motion of her own, calling for dismissal of the complaint on the grounds that the statute of limitations had run out on the RIAA's claims. The brief filed by her attorney (PDF) also points out some of the other infirmities in the RIAA's case, such as the inadmissibility of its evidence, the legal nonexistence of a claim for 'making available,' and the unconstitutionality of its damages theory. According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge asking the Judge not to allow her to make it. Meanwhile, Audrey's father's case, Lava Records v. Rolando Amurao, is on appeal in the US Court of Appeals for the 2d Circuit over the issue of whether the RIAA should have to reimburse Mr. Amurao for his attorneys fees. Although the appeal was fully briefed and scheduled for argument May 19th, the RIAA has been asking for postponements of the argument."
And that's CHANGE we can believe in! (Score:2, Insightful)
Won't Get Fooled Again [sing365.com]
We'll be fighting in the streets
With our children at our feet
And the morals that they worship will be gone
And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song
And the world looks just the same
And history ain't changed
'Cause the banners, they all flown in the last war
I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
No, no!
I'll move myself and my family aside
If we happen to be left half alive
I'll get all my papers and smile at the sky
For I know that the hypnotized never lie
Do ya?
YAAAAAAAAAAAAAAAAAH!
There's nothing in the street
Looks any different to me
And the slogans are replaced, by-the-bye
And the parting on the left
Is now the parting on the right
And the beards have all grown longer overnight
I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
Don't get fooled again
No, no!
YAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAH!
Meet the new boss
Same as the old boss
Hope-n-change!
Prosecution (Score:5, Insightful)
Re: Thanks NYCL (Score:5, Insightful)
Thanks NewYorkCountryLawyer for your posts and followups. I for one greatly enjoy reading them.
Re:Prosecution (Score:5, Insightful)
I think you mean "persecution". I'm pretty sure the legal system is meant to be for prosecution.
Re:Grandfather clause? (Score:5, Insightful)
The way I interpret this (although IANAL) is that if you're sharing a folder online, and they don't sue you within 3 years, you're pretty much home free? This could be really good news for people who share files. Especially since you could copy them to a computer not connected to the internet, wait 3 years, then release it to the wild.
IANAL either, but I believe you're confusing two points. There are two different rights given to copyright holders - the exclusive right to create copies, and the exclusive right to distribute them to others.
The section you're reading only applies to the former. So imagine the following: You download a bunch of songs from the 'net, and have them on your hard drive for more than 3 years. Then they discover that you have those infringing copies. The statute of limitation prevents them from suing you for having copied those songs without the rights holder's permission.
But, if you then distribute them to the public, a new infringement occurs (a violation of the exclusive right to distribute). The statute of limitations on *that* runs from the date of distribution, not the date of copying.
Re:Curious interpretation of "the public" (Score:4, Insightful)
Maybe "the public" has some special meaning in Lawyer Town
I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.
Sorry Ray, but I have to call you on this one. Saying that the files are only "available to people on a particular network" *is* making them available to the public, since potentially anyone can connect to that network. If I were handing out CD's to people here in Tucson, would you say that they weren't available to the public since you'd have to fly down here to get one?
Please stick to arguments that will actually hold water, such as that the law be requires the RIAA to show that there was actual distribution to the public (rather than just to their agents). That one would put an end to the whole RIAA campaign, if you can ever get the judiciary clued in...
Re:Curious interpretation of "the public" (Score:3, Insightful)
I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.
But in fact your comment is only available on a limited network. Viewing your comment requires access to the internet, which is a subset of all networks (e.g., the old AOL network would not have sufficed, nor would a computer in North Korea, I'm guessing). Further, access must be through a system that allows HTTP traffic to and from Slashdot's servers, which is another subset (e.g., a work computer with strong filtering would not work). The client also has to have a web browser or other means of sending HTTP requests (e.g., limited cell phones would not work).
What viewing your comment does not require is a Slashdot membership or paying an access fee. Viewed this way, making files available on Kazaa, a bittorrent network, or the like is equally public. It only requires a general purpose internet connection and freely available software. It does not require a site membership or paying an access fee (members-only torrent networks excepted, of course, but I don't believe that's at issue here).
A better of definition of 'available to the public' is whether or not the party making the files available has taken any measures whatsoever to monitor, filter, or prevent access to the files according to some criteria set by the sharer. By default, most file sharing networks make files available to all comers, so long as they obey the protocol. The same is true of a public website like Slashdot (just try reading your comment by sending malformed HTTP requests; it won't work).
So, for example, if a file-sharer limits access to a whitelist of people known to the sharer (e.g., friends), that might be different, but again, I don't think that's the case here.
Re:Curious interpretation of "the public" (Score:3, Insightful)
The distribution right encompasses distribution to the public.
I can loan a DVD to a my neighbor. I can sell the disk or give it away.
What I can't do is scan it into the ultimate copy machine for the convenience of 15,000 of my closest friends on the P2P nets.
--- or the twelve on my Dark Net.
"Distribution to the Public" is a diversion, a red herring, and in NYCL's argument it has a particularly rancid smell.
Re:Curious interpretation of "the public" (Score:4, Insightful)
I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network.
But is Gnutella a "limited network"? Any person who has
1) A computer
2) Access to the Internet
3) A Gnutella "servent" (Limewire, Bearshare, etc., which can be downloaded for free from the net.)
has access to Gnet. Since pretty much anybody can obtain all of the three, I would consider that public.
(Whether the law does or not is, of course, another matter entirely)
By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove (a) dissemination of copies to the public, and (b) a sale, other transfer of ownership, rental, lease, or lending.
That was my main point. There are many different angle of attack on this problem:
1. No proof that anything was ever distributed to anyone other than MediaSentry
2. The fact that MediaSentry's methods are secret, and cannot be established as being reliable.
3. The fact that MediaSentry has extremely lax evidence handling procedures.
4. The fact that MediaSentry isn't licensed to perform investigations, though many states require this for collection of evidence to be used in a court of law.
5. The fact that their so called expert does little but regurgitate what MediaSentry tells him.
6. The fact that their expert has a vested financial interest in the success of the terror campaign.
Re:Prosecution (Score:5, Insightful)
Re:Zombie Movie (Score:5, Insightful)
Pardon me, but isn't traditional purpose of so-called zombies is supposed to obey the orders and act as a proxy of the person who raised them?
RIAA is just a bogeyman. A shadow puppet. It is the *media companies* that are suing you. It is *media companies* like Sony, Warner Bros. etc. which are harassing their own consumers. I am not aware of "RIAA" producing any songs.
Sony would not like the negative publicity of being caught suing a 84 year old grandmother. So it banded up with other companies to make a dummy face which people can hate, instead of sony itself or other such companies. Corporations hate the negative publicity. That is the only place where we can hurt them. And when you hate/attack the puppet instead of its master, you are being just the dumb person Sony and its ilk assumed you to be, and playing their game their way.
You want RIAA to die? Stop naming RIAA in these stories as the suing party. It is not that tough to find out which company in the cabal is alleging the piracy. Name *them* when you report the stories of blind homeless veteran being sued by them.
If someone sues you with malice, should you hate the lawyer they have hired, or the guy who is actually suing you and paying the lawyer to make your life hell?
Sony and its pals do these stunts because they know you will hate the "RIAA" instead of them, and they will get to keep their rosy image and be safe from any direct public-backlash. Change the rules, and attack the voodoo witchdoctor. And then see the zombies die.
Re:Prosecution (Score:3, Insightful)
I think he actually means Malicious Prosecution [wikipedia.org], which is also already covered in the legal systems of most of the world....
Re:Curious interpretation of "the public" (Score:3, Insightful)
I think his point, though, is that while the distribution is limited to people who can connect to the Limewire network (Gnutella, IIRC), the network itself is available to the public. There's dozens of programs out there which can connect to the network, and the protocols which govern the network are well documented and freely available.
Yes, it's an added step you have to take in order to access the network, but it's by no means restricted or private.
Simply making a product available, however, isn't enough for a copyright infringement case to stick in some parts of the world. Up here in Canada, for example, they have to be able to show that either there's material gain on behalf of the person doing the distributing, or that that person or party is individually responsible for material loss on behalf of the infringed party. Neither would be possible to prove in court, as she does not get paid for files that get downloaded from her computer, and because of the way the network is designed, removing any single source from the network doesn't take the files off the network. She's not the only source, so she can't be individually responsible.
Even *if* they could prove that filesharing is responsible for the dropoff in sales that they're noticing, and not their business practices or their tendency towards signing cookie-cutter crap bands (I was looking through my record collection, and 99% of the bands I listen to these days are independant because they can't get a record company to take a risk by signing them), they still wouldn't be able to tie those losses to the individual person, because that person is not an integral part of the network. They'd have to go after the designers of the network itself, which is what they have been trying to do up here.
Now, I'm not a lawyer. I did pass my LSAT up here in Canada, but my degrees are in Philosophy and Linguistics, so take it with a grain of salt. And the personal attack was inappropriate... but hopefully this will shed some light on his point.
Re:Curious interpretation of "the public" (Score:1, Insightful)
Here's an analogy to make it easier to understand. Many people call themselves Christians but don't belong to any church. Anyone can theoretically walk into a church and become a member, but the church is not the public, it is instead a limited group of people. It's not the price of entry that makes a group public or private it is whether or not the entity is available to all or not. A file put as an active download would have more legal standing than a file in a torrent or file sharing network.
Re:Zombie Movie (Score:3, Insightful)
It's already being done the way you descibe. Read any of these cases:
Lava Records v. Amurao
Capitol v. Thomas
UMG v. Lindor
Atlantic Recording v. Brennan
The RIAA is just a consortium where those big labels have deposited and combined their moneys in order to eradicate this internet thingy once and for all. The RIAA just hires a bunch of lawyers to do it and shares the information among the parties. From a laymen's perspective: it's kinda like several mob bosses outsourcing their harassing/collecting to the same company. From a legal/business perspective: It's the colluding of several large businesses in order to secure their respective monopolies and keep other smaller players away from the market. The RIAA also does other things besides lawyering like fixing prices between those large businesses - legally those businesses can't collude to fix the prices on their products (they offer products to both the artists and the artists' customers). They just all happen to have the same 'market research' agency that advices them a certain price point and specific contract outlines.
The RIAA needs to be disbanded and all of the assets returned to their owners (after the victims have been repaid) and then let each of them fight their own fights - let the recording agencies fight between each other for artists and let the market decide who to give the most business.