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RIAA Defendant Moves For Summary Judgment 117

Posted by timothy
from the element-of-surprise dept.
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."
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RIAA Defendant Moves For Summary Judgment

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  • by eldavojohn (898314) * <eldavojohn@@@gmail...com> on Sunday June 28, 2009 @03:31PM (#28506285) Journal

    According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a sack of money to send the Judge asking the Judge not to allow her to make it.

    There, fixed that for you. Actually, to be fair:

    According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge reminding the Judge that he's bought and paid for just like the lawmakers and Judges up the rest of the chain [cnet.com].

    More realistic although it's a shame this lower court Judge probably won't profit personally from the case unlike those installed into prestigious positions and those accepting lobbying money for their political campaigns.

    • by anagama (611277) <obamaisaneocon@nothingchanged.org> on Sunday June 28, 2009 @03:58PM (#28506499) Homepage
      I don't really understand the "letter to the judge" part. Absent an issue with a party abusing motion practice, any motion should be considered and nobody has a right to say a party can't file a motion. The other party is totally free to argue that the motion is bogus of course, and if the motion is defective for procedural reasons, it can be denied on that basis. Nothing is stopping the RIAA from filing a response saying the motion should be denied, and I suppose the letter could be considered an informal response, but if it isn't shared with the other party, then it is unethical and improper communication with a judge.

      I wish we had more info on what this "letter to the judge" thing means.
      • I wish we had more info on what this "letter to the judge" thing means.

        1. A summary judgment motion "searches the record", which means that the Court can grant summary judgment motion AGAINST the party making the motion. I.e., the judge is supposed to search all of the papers, both for and against, and if the moving party's case should be thrown out, the Court should throw the case out.

        2. Sometimes, when a party opposing summary judgment feels the other side's case should be thrown out altogether, the party also files a "notice of cross-motion", sometimes he or she doesn't bother.

        3. In this case there had been an agreed extension of the time to file "opposition papers".

        4. When the RIAA saw that the opposition papers contained a "notice of cross-motion" they complained, saying that the extension of time did not apply to any "cross-motions", and said they would write to the Judge asking her not to consider the "cross-motion".

        5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.

        • by Rakishi (759894)

          5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.

          I'd say they're just trying all possible options in case one works by pure chance. They have money to burn so filing such things doesn't matter too much to them.

        • Re: Thanks NYCL (Score:5, Insightful)

          by jobsagoodun (669748) on Sunday June 28, 2009 @04:37PM (#28506757)

          Thanks NewYorkCountryLawyer for your posts and followups. I for one greatly enjoy reading them.

          • by Odemia (903230)

            Thanks NewYorkCountryLawyer for your posts and followups. I for one greatly enjoy reading them.

            +1 Always insightful, Thanks for the info.

          • + A million -- thanks I always look forward to reading through your posts on /. ;)
          • by CmdrGravy (645153)

            +1,000,000,000 trillion million billon. I love you NYCL and I'd love shove my tongue down your ear hole and lick just a tiny part of your incomparable brain, and then maybe have your children.

        • by beelsebob (529313)

          In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.
          Is that really the case, do lawyers not try absolutely everything they can get away with to make the opposition's case weaker? Or is my view of lawyers too influenced by the Shat and Holywood?

          • Lawyers do what they do because there are asswipes out there who will pay them. What bothers me here is that the MAFIAA keep saying they are going to discontinue their practice of going after individual downloaders and concentrating on sharers. So far, I have seen little or no evidence of this.
          • Lawyers are just like any other profession: There's a set of ethics attached, and some professionals can't sleep at night if they don't follow the spirit of those rules, whereas others don't give much of a damn and will just stick to the text of the rules if they have to.

        • 5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.

          So, what exactly is at stake here? I'd like to know more about the deathly fear part. =)

          If I'm reading it right, would the summary judgment if granted provide some sort of precedent? For instance, if this flies would other cases be able to say the RIAA's evidence is inconclusive or inadmissible, or "making available" is not proven? Something like that maybe?

  • by Jane Q. Public (1010737) on Sunday June 28, 2009 @03:39PM (#28506375)
    This reminds me so much of a zombie movie... where somebody has cut off the zombie's head, but it doesn't know it's dead yet, and stumbles around causing damage and killing people for a couple of years before it falls over for good.

    I will be soooo happy when the RIAA finally realizes it's dead.
    • I will be soooo happy when the RIAA finally realizes it's dead.

      Don't hold your breath. The current governmental regime is keeping that zombie on life support.

      • by Anonymous Coward

        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!

    • Re: (Score:1, Funny)

      by Anonymous Coward

      Clearly it's much more like JAWS... where the giant shark eats everyone for a while, then someone feeds it explosives. It then rains shark guts.

      I will be sooooo happy when it rains RIAA guts.

    • A dead undead. That'll be the day!

    • Isn't that sequence of events trademarked (or whatever) as a business method (or whatever) by Looney Tunes (or something)? It seems suspiciously similar to the sequences where laws like the law of gravitation only kicks in once the character sees he should be affected by them?
    • Re:Zombie Movie (Score:5, Insightful)

      by thej1nx (763573) on Monday June 29, 2009 @05:30AM (#28511553)
      In a way, RIAA is indeed an undead zombie.

      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: (Score:3, Insightful)

        by guruevi (827432)

        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 sam

        • Which again raises the issue: what gives the RIAA the right to represent these entities, and still be immune from RICO??
          • Re: (Score:3, Informative)

            by guruevi (827432)

            They are immune from RICO because they are not the recording companies themselves. The RIAA is similar to any consortium body like the ISO consortium or the Bluetooth consortium. It's just that their industry standard is to regulate prices and annoy/persecute their customers.

          • what gives the RIAA the right to represent these entities, and still be immune from RICO?

            Jane, in my personal opinion they're not immune from RICO. They've committed predicate crimes, it's a racketeering activity. I don't see any immunity at all.

      • 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?

        The answer to that is "Yes".

        The guy hiring the lawyer (and thus the person bringing the suit) is the moving force of the suit. But the lawyer has the option to work for the guy, or not. For a suit that is meritless, he'll get censured for bringing it to the court. You might also look up malicious prosecution [wikipedia.org] while you're at it.

    • by mpe (36238)
      This reminds me so much of a zombie movie... where somebody has cut off the zombie's head, but it doesn't know it's dead yet, and stumbles around causing damage and killing people for a couple of years before it falls over for good.

      I didn't realise this was another story about SCO :)
  • Three cheers for the lady!
  • Prosecution (Score:5, Insightful)

    by BountyX (1227176) on Sunday June 28, 2009 @04:18PM (#28506655)
    At what point does the legal system itself become a tool for prosecution? Both the father and daughter are involved, despite the outcome, it basically amounts to harassment. Sad.
    • Re:Prosecution (Score:5, Insightful)

      by Tiberius_Fel (770739) <fel.empirereborn@net> on Sunday June 28, 2009 @04:59PM (#28506919)

      I think you mean "persecution". I'm pretty sure the legal system is meant to be for prosecution.

    • Re:Prosecution (Score:5, Insightful)

      by CowboyBob500 (580695) on Monday June 29, 2009 @01:32AM (#28510227) Homepage
      Exactly. What kind of dumb legal system allows a rich person to sue a poor person, then half-way through say, "Oops, didn't mean it", without having to cover the costs of the other party?
      • +1!
      • Re:Prosecution (Score:5, Informative)

        by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Monday June 29, 2009 @03:06AM (#28510837) Homepage Journal
        In Capitol Records v. Foster the court awarded $64,000 in attorneys fees against the RIAA, and in Atlantic Recording v. Andersen the court awarded $108,000.
        • Honest question: Outside cases that settle, is getting attorney fees the rule, or were those cases exceptional?
          • Outside cases that settle, is getting attorney fees the rule, or were those cases exceptional?

            There were only a couple of cases in which the defendant prevailed and pushed for attorneys fees. I can only think of 4 offhand. In 2 the motion was granted, in 2 denied, but one of the 2 denials -- Lava v. Amurao -- is, as I noted, on appeal.

            • Well, 2 out of 4 on attorney fees (with an appeal pending) doesn't seem all that a statistic from the RIAA's point of view (given the settlement amounts elsewhere), if the fees were the 100k and 60k (-ish) amounts I read. At this point suing random people chosen by educated guess seems like a viable strategy from an economic sense. At what point does the legal system say "enough is enough, give me something solid or cut this shit out"? Given that, from the case names, the RIAA itself isn't a party in any of
              • Well, 2 out of 4 on attorney fees (with an appeal pending) doesn't seem all that a statistic from the RIAA's point of view (given the settlement amounts elsewhere), if the fees were the 100k and 60k (-ish) amounts I read. At this point suing random people chosen by educated guess seems like a viable strategy from an economic sense. At what point does the legal system say "enough is enough, give me something solid or cut this shit out"? Given that, from the case names, the RIAA itself isn't a party in any of them (the individual labels are), proving there's a RIAA-wide strategy of bringing spurious cases involves not only saying one individual entity is operating under such a strategy, but also that there is a concerted effort to make it happen. It seems a bit complex...

                It's not "RIAA-wide". Only 4 RIAA members, the big 4 record labels, are behind the litigation campaign. They use the RIAA as a front, to mask their collusion.

                • Well, you hit the nail squarely on the head. When we slashbots harp on about the evils of the RIAA, it's really mostly the Big Four (and their subsidiaries) that we're complaining about. And my point is precisely that "Only 4 RIAA members" is quite misleading when we're talking about the Big Four. Hence the question: at what point does that collusion become illegal?

  • by superdana (1211758) on Sunday June 28, 2009 @04:19PM (#28506665)
    Not sure how I feel about this bit (emphasis in original):

    The distribution right encompasses distribution to the public. But song files which reside on a computer hard drive are only accessible to someone else who has the same file-sharing software.

    Maybe "the public" has some special meaning in Lawyer Town, but the fact that file-sharing software is required to access shared files doesn't convince me personally that the files aren't available to the public. It's not as though there is some privileged minority of people who have access to file-sharing software. Anyone can download it.
    • 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.

      • this comment can be viewed by "the public" -- rather than to a limited network.

        Assuming you have a web browser. What's the difference between a web browser and file-sharing software? Why would one be considered public and the other not?
      • by Lloyd_Bryant (73136) on Sunday June 28, 2009 @05:09PM (#28506995)

        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...

        • Please stick to arguments that will actually hold water

          Sorry, but I disagree 100%. The RIAA is notorious for throwing absolutely anything on the wall and seeing if it will stick. The hope is that if you swing a bat enough times, eventually you are going to hit a ball. To me, it seems foolish/naive to argue logic and apply fairness principles in a situation like this. Every small little annoying detail should be argued to the stupidest degree. That is how the RIAA has been playing it, and I don't think it's a good idea to play chess, when your opponent is p

        • 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).

          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. Also, your analogy doesn't "hold water" for about 600 reasons.

          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.

          You obviously don't know me. I only make arguments that "hold water". I'm just a country lawyer that wound up in a big city. I don't write the law. I report it.

          • by honkycat (249849)

            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.

            I think it's more than just disagreeing with them. If that's really what they say, then the law books are just wrong. That is simply not a reasonable definition of "public." By your logic, nothing on the Internet could ever be interpreted as "public."

            • by TheLink (130905)
              Yeah to me "distribution to the public" = even strangers, people you don't know can easily get the stuff.

              Since only about 24% of the people in the world have access to the Internet is the Internet a "public" network or a limited network?
          • by nametaken (610866)

            The law books say that for a distribution to be "to the public" it can't be to a limited network.

            Huh... what you guys are talking about is interesting. It seems like it illustrates yet another gross disconnect between the law and the real world. Certainly if I put some piece of software out for download, free of charge on the internet, I'd call that kind of distribution "to the public". I mean, I guess the internet is a limited network, so not everyone has immediate access to it, but to me it's available

          • by fluxrad (125130)
            I'm just going by what the law books say.

            I would strongly advise that you begin incorporating case law into your practice and interpretation of the law. Arguing that file sharing isn't public is akin to arguing that bootlegging DVDs in Manhattan isn't public because only New Yorkers have access to the material.
          • by Lloyd_Bryant (73136) on Sunday June 28, 2009 @07:59PM (#28508143)

            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.

            • by bidule (173941)

              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)

              Fine.
              Then let the RIAA argue why it should be "to the public". Don't give it to them without a fight.

          • by d'fim (132296)

            So how do the lawbooks define a "limited network"?

            How is Limewire a "limited network" as opposed to a venue for distribution "to the public"?

            • Re: (Score:1, Insightful)

              by Anonymous Coward

              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.

          • By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove ... (b) a sale, other transfer of ownership, rental, lease, or lending.

            NYCL, you bring up what's always bugged me about this whole mess -- if you aren't distributing a copy for money, how is it any different from lending your friend a book? If you say the RIAA must prove lending, does this mean it's technically illegal for me to share my copy of Harry Potter?

            Or does it only count if I allow my friend to scan copies of every page?

            Although I've followed this stuff closely for the last decade or so, I'm still not clear on the fine points of the legal arguments. All I know is wh

            • By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove ... (b) a sale, other transfer of ownership, rental, lease, or lending.

              NYCL, you bring up what's always bugged me about this whole mess -- if you aren't distributing a copy for money, how is it any different from lending your friend a book? If you say the RIAA must prove lending, does this mean it's technically illegal for me to share my copy of Harry Potter? Or does it only count if I allow my friend to scan copies of every page? Although I've followed this stuff closely for the last decade or so, I'm still not clear on the fine points of the legal arguments. All I know is what I learn here on /. -- On the plus side, I can spout off plenty of bad analogies!

              It's easy. You just go by what the book says. It says that for there to be a distribution there has to be
              -a dissemination of copies
              -to the public
              -by sale, other transfer of ownership, rental, lease, or lending.

              All of the above have to have occurred.

              Since none of the above occurred, there is no distribution within the meaning of the Copyright Act.

              • So to answer the question of whether or not you can safely lend your book to a friend, yes you can.
                Mayhap I am misinterpreting but it sounds like you can get away with just about anything as long as you don't sell or transfer ownership of what your giving away O.o

                I can give out copies for money, as long as it's not to the public? Taking the stance that GNUtella clients/networks are private networks means everything you do with them is legal, then.
                I can give out copies to the public as long as I am not selli

                • So to recap: The friend to whom I lend the book isn't "the public," so the points aren't all met. Good to know!

                  I can see how "transfer of ownership" and "public networks" will take some wrangling. The "public dispersement" is definitely a fine line. GNUtella might be considered a private network, but the means of distribution through that network is like having songs on a store shelf where customers simply pick what they want when they find it.

                  I guess the "transfer of ownership" could be the real test,

                • by Twanfox (185252)

                  I would imagine giving copies of US Currency is not covered under copyright law, but rather law relating to counterfeit. A nit, but since you brought up money, it seems appropriate to mention that.

          • by Rogerborg (306625)

            I'm just going by what the law books say

            Citation needed.

          • Re: (Score:3, Funny)

            by L4t3r4lu5 (1216702)

            I'm just a country lawyer that wound up in a big city.

            Keanu? [imdb.com]

          • Re: (Score:3, Insightful)

            by KillerBob (217953)

            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. Also, your analogy doesn't "hold water" for about 600 reasons.

            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 g

      • Re: (Score:3, Insightful)

        by Grond (15515)

        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 traffi

    • Re: (Score:3, Insightful)

      by westlake (615356)

      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.

           

      • by jedidiah (1196)

        You don't even have to use the "ultimate copy machine" analogy.

        It's unlawful to make and old style 70's speaker in front of the mic recordings and give it to your neighbor.

        Setup a WAN with your neighbor and it's the same as being on Limewire.

      • You can't lend a DVD to your neighbour. That's "lending" which you'll see is forbidden in the same phrase as "copying, leasing, public performance, distribution..." etc when you start up your DVD.

        You know, the bit VNC Media Player allows you to skip totally,
  • This is really interesting. FTA:

    Moreover, the copying, even assuming it was an infringement, took place when the song files were first copied onto defendantâ(TM)s computer hard drive. The fact that they were still there later does not constitute a continuing infringement, regardless of when MediaSentry may have accessed the files.

    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 real

    • I don't think the law entitles you to release copyrighted material into the wild, but rather describes a statute of limitations.
    • by Lloyd_Bryant (73136) on Sunday June 28, 2009 @04:59PM (#28506923)

      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.

      • by steelfood (895457)

        IANAL as well, but I think you're misinterpreting copyright law. Copyright law these days deals with distribution. Ever since the establishment of fair use, the mere act of copying is no longer considered infringement.

        I can download an album, but if I already have the existing album in another form (CD, maybe even iTunes AAC), I'm covered by fair use. The poor sap who's uploading it to me though, is not authorized to distribute, and hence is still liable for infringement.

        Even if I didn't have said album, I

        • by Twanfox (185252)

          I can download an album, but if I already have the existing album in another form (CD, maybe even iTunes AAC), I'm covered by fair use.

          I hate to be a troll, but I have to wonder about this statement. My understanding of Fair Use, as far as the legal definition in Copyright Law, doesn't cover this aspect at all. I'm familiar with timeshifting as relating to the Sony Betamax case, but what I'm not familiar is case law or written law covering format shifting under fair use. Perhaps a reference is in order?

        • IANAL as well, but I think you're misinterpreting copyright law. Copyright law these days deals with distribution. Ever since the establishment of fair use, the mere act of copying is no longer considered infringement.

          I disagree. Here's a section from Wiki's reference on US copyright law for what it's worth:

          There are five basic rights protected by copyright, sometimes called the five "pillars" of copyright. The owner of copyright has the exclusive right to do and to authorize others to do the following:

          * To reproduce the work in copies or phonorecords;
          * To prepare derivative works based upon the work;
          * To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
          * To publicly perform the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, and sound recordings by means of digital audio transmission;
          * To publicly display the work, 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.

          A violation of any of the exclusive rights of the copyright holder is said to be a copyright infringement.

          Please note the first one.

          While the RIAA isn't actually chasing the *downloaders*, if they accuse you of uploading, and their case turns out to be garbage, if they've gotten a look at your hard drive and they've found files they can reasonably assert are illicit copies, then they can potentially sue you for those. It appears to this non-lawyer that the defense attorney is attempting to preclude them from doing so...

          • Here [cornell.edu]'s the actual statute.

            They have never been able to offer any proof that a copy on someone's computer was "illicit". They have, however, in ex parte proceedings, convinced one or more judges who were not knowledgeable about technology that that was the case.
  • This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years. Right?

    Or does this sounds like it might be in actuallity something that shouldn't quite be decided this way?

    Be very careful on which side you are cheering for. Neither side is approaching this very well, and certainly the daughter in this case is (a) clearly in the wrong and (b) hoping for a reprive. Maybe she will get it.

    Where do you think Sony goes if all

    • This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years.

      It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.

      • by aztektum (170569) on Sunday June 28, 2009 @06:35PM (#28507623)

        It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.

        Somewhere in DC a lobbyist is trying to get statute of limitations increased to "death of the uploader + 99yrs"

      • This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years.

        It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.

        Personally, given what's going on in the copyright world right now, if the term was reduced to an effective three years that wouldn't particularly bother me.

    • Re: (Score:1, Redundant)

      by bushing (20804)

      This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years. Right?

      Wrong. The defendant's lawyer (not a judge) is arguing that the statute of limitations on the alleged infringement (not the term of copyright) is three years.

      The issue is not "How long does copyright last?". It is "How long can you wait to accuse someone of a crime?"

    • by mikelieman (35628)

      Well, here's a thought...

      Does any of the material at the center of this dispute even really QUALIFY for Constitutional protection?

      If you recall, the Copyright Clause reads:

      "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

      So... I'm at a loss as to how their Entertainment Product meets the Constitutional requirement of "promot(ing) the Progress of Science and useful Arts"... AutoCAD, s

  • By Neruos (Score:3, Informative)

    by Anonymous Coward on Sunday June 28, 2009 @05:26PM (#28507101)

    They both will lose and the RIAA will win, this will continue until you get the government to cut its bond with the MPAA/RIAA and its unlawful backing of a capitalist consumer entertainment product via the FBI.

  • get a LOAD of that BULLSHIT. what kind of twisted system is american legal system that, a judge can DENY a legal move by any of the parties. hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.

    • hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.

      Don't worry. There is no way on God's green earth that the judge would even consider precluding Ms. Amurao from making a cross-motion for summary judgment. That would be the most flagrant kind of appealable order. The RIAA lawyers' request that Ms. Amurao's cross-motion not be considered by the Court will be denied.

    • by bushing (20804) on Sunday June 28, 2009 @06:13PM (#28507447) Homepage

      get a LOAD of that BULLSHIT. what kind of twisted system is american legal system that, a judge can DENY a legal move by any of the parties. hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.

      The judge made a deadline for each lawyer to submit "motions" - letters that say "this case is invalid, because [xxx]". These letters are very common, since there isn't much to lose by trying.

      The judge then extended that deadline to later. The defendant sent a letter to the judge objecting to the RIAA's motion, after the first deadline, before the second.

      The RIAA then sent a third letter to the judge, pointing out to the judge that the second letter was "too late" (because it was after the first deadline). That's silly, because there was a second deadline, but that's all the letter was. The American legal system may be twisted in other ways, but this is just some asshole lawyer writing a letter to a judge to try to confuse them. There's no "evidence" being denied, and the judge will hopefully ignore the letter.

      • That's still stupid. Anyone should be able to ask for a case to be dismissed at any point in the proceedings. Just because the lawyer and/or defendant hasn't thought of a particular reason by a certain date should still not make that reason inadmissible. Surely what are being judged are the legal arguments themselves, not how fast people can think of them?
  • by cheros (223479) on Monday June 29, 2009 @02:27AM (#28510601)

    I note that this case claims a "mere" USD 750 per infringement. This is an interesting low amount.

    Other than that, when-oh-when will we finally see sanctions for this sort of legal abuse? I can't see anyone regaining any sort of respect for the law and the legal system whilst this sort of shenanigans continue.

  • Personally I'm not going to pass comment until NewYorkCountryLawyer has said his... Oh, wait.

"The vast majority of successful major crimes against property are perpetrated by individuals abusing positions of trust." -- Lawrence Dalzell

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