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RIAA's "Making Available" Theory Is Tested 222

NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."
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RIAA's "Making Available" Theory Is Tested

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  • by timmarhy ( 659436 ) on Saturday August 18, 2007 @01:45AM (#20273223)
    .. I believe they are correct here - enabling someone else to commit a crime is a crime in itself. And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.
    • by jonatha ( 204526 ) on Saturday August 18, 2007 @01:47AM (#20273235)
      That explains why the man who sold the Virginia Tech shooter his guns is currently in jail.

      Oh, wait....
    • Re: (Score:3, Insightful)

      by Adambomb ( 118938 )
      That will be sad news to gun shop owners.

      or libraries, or sporting good stores, or the ever popular analogy, auto dealerships, etc etc.

      Where does one draw the line?
      • Re: (Score:2, Insightful)

        by Osty ( 16825 )

        Where does one draw the line?

        One draws the line where the money is no longer available. Gun dealers are not held accountable for the crimes of their clients because the NRA is a huge lobby with plenty of the money. Auto dealers and manufacturers are not held accountable because again they're huge lobbyists with lots of money. Do you know who does get held accountable? Bars that overserver people and then let them drive drunk. Why? Because the restaurant industry is too fragmented to effectively lobby

        • Actually, i'll just be canadian thanks.

          just seems a rather stupid argument that "enabling" a crime is a crime in and of itself. christ I could stab someone to death with a sharpened candy cane given to me by some kid, should the kid be arrested for making it into a point?
    • by fishbowl ( 7759 ) on Saturday August 18, 2007 @01:50AM (#20273253)
      >And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

      So my torrent seed of Ubuntu (which is comprised almost entirely of copyrighted material) is illegal?

      That is the claim you have made.
      • by Kjella ( 173770 )
        So my torrent seed of Ubuntu (which is comprised almost entirely of copyrighted material) is illegal?

        That is the claim you have made.

        I could say "It's illegal to enter someone's house and eat their food." to which you could reply "So eating the dinner my friend cooked for me last night at his house was a crime?" and it'd make just as little sense because then you have the owner's permission, just like with Ubuntu you have the copyright holders' permission. Distributing copyrighted material is illegal, that'
    • by dunezone ( 899268 ) on Saturday August 18, 2007 @01:59AM (#20273315) Journal
      No wonder you're a foe of a friend.

      The general statement of saying "enabling someone else to commit a crime is a crime itself" is just nonsense.

      With that general statement you could in theory hold a man who drove drunk and killed someone accountable, the manufacturer of the automobile, the designers of the automobile, the assembly line workers(if any) that put the car together, the store or individual who sold that man the liquor all accountable. Because you know, all of those in "theory" enabled that man to drive the automobile while intoxicated. Hell, why not involve the local government for putting those damn roads in that enabled that man to drive his automobile around.
      • The thing that I find most disturbing is that they're not trying to get them for sharing, it's for making it available. Why didn't the RIAA get a copy of the song they were making available and then charge them for distributing? If they're going to go by filename alone, then I've got a whole bunch of pictures of faith hill, shania twain, and Melinda Gates that they ought to take a look at.
      • by houghi ( 78078 )

        the store or individual who sold that man the liquor
        In Belgium the pub owner is accountable. If the person is clearly intoxicated and he gives hime more and then the person has an accident, he might be held accountable.

        Yes, this an extremely slippery slope.

        Also please stop giving lawers ideas.
        • by dosius ( 230542 )
          In New York State, it is illegal to serve alcohol to someone who is obviously intoxicated. I think it's the same thing you just mentioned, and they could theoretically lose their license to sell alcohol over it.

      • No wonder you're a foe of a friend.

        That makes you a fan of a freak.
      • by gkhan1 ( 886823 )
        You're actually not too far off target. People who serve alcohol to visibly intoxicated people that later causes accidents are liable for those accidents. These laws are called Dram Shop laws [wikipedia.org] and are perfectly constitutional.
    • by pembo13 ( 770295 )
      Since when? Has that ever been a rule in recent human history?
    • I believe they are correct here - enabling someone else to commit a crime is a crime in itself. And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

      Okay, then where is KaZaZ in this suit? And Microsoft? And Dell? And the ISP she subscribed to? Everyone of them enabled her -- or somebody -- to commit this crime. Why aren't all of them part of this, and every other case?

      Excuse me, but your silence is deafening.

    • Re: (Score:2, Insightful)

      by baileydau ( 1037622 )

      And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

      Sorry, but isn't this a CIVIL case. If it was a crime, wouldn't this be a CRIMINAL case??
    • If no one has downloaded the file, how does the RIAA know that it's copyrighted music? Maybe it's a parody. Maybe it's an original work that just happens to share a name with some other song. Happens all the time. Maybe it's some horrible person renaming files to gain the maximum number of downloads, and it's actually goatse.jpg. Once the RIAA downloads the file itself, then the file has been shared, and if you were not a legitimate distributor of the file in question, lawsuits can occur. Anything els
  • But wait... (Score:5, Insightful)

    by burning-toast ( 925667 ) on Saturday August 18, 2007 @01:47AM (#20273229)
    Is the entire basis of the RIAA claims in all of these cases striking anyone else as being entirely based on "it may have been" scenarios being used as proof?

    I think that all corporations which sue individuals should have to adhere to criminal court standards instead of needing just a "whiff" of possibility. Individual vs. Individual of course would still be run as a Civil matter. They should be required to obtain warrants if they want a "Discovery" into any non-public records of the individual. IMHO, they should absolutely NOT be able to get any records from any organization whatsoever about an individual without a warrant (consider ISP's releasing IP address / account information to a corporation for a shady example).

    This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations).

    There seems to be a serious disadvantage for an individual in almost ALL cases involving a company suing an individual (specifically the depth of their pocket books and ability to pay a lawyer).

    Thanks for your efforts NewYorkCountryLawyer

    - Toast

    Much of this post may be conjecture, ranting, etc. I apologize if I got OT, but I would like clarification if any of my views are out of whack, and I wouldn't mind alternate viewpoints so long as they aren't in troll fashion.

    P.S. To all grammar Nazi's; I don't really care if I missed anything when I glanced over this post. Don't waste your breath or potentially cause yourself carpal-tunnel by trying to fix it.
    • "This is why I think copyright infringement should be up to the courts to investigate and prove or disprove as a criminal matter and NOT the plaintiff (corporations)."

      Copyright becoming a criminal matter would be absolutely disastrous. You can be sure the RIAA and MPAA would be writing and purchasing the laws, and they'd probably even push for federal laws, where due process is largely absent.

      Do you really want a country where someone's entire life can be destroyed, with jail sentences and a criminal record
    • Really.

      The last few days he has put in a ton of work with a big spread of news. I could be wrong, but it seems like this year the RIAA monolith is starting to crack, just a little.
    • Re:But wait... (Score:5, Interesting)

      by teslatug ( 543527 ) on Saturday August 18, 2007 @02:18AM (#20273447)
      As long as we're wishing, I'll go one better. The corporations should be forced to pay upfront for the plaintiff's defense if he can't afford a good one. If the corp wins, they win the court costs too. That way people can't be intimidated into folding even when they haven't done anything wrong.
      • Re: (Score:3, Interesting)

        I like this idea! And while we are at it, they have to match expenditures with the defendant's legal defence (I.E. both sides are allowed a maximum amount of legal funds on a scale which goes according to the damages being sought.)

        We can all dream right?

        - Toast
      • I'm not an American but why aren't you out there lobbying for just such a change to the US legal system? You are pretty much preaching to the converted by telling fellow /.ers about it. The problem, from my half blind observation point thousands of miles away, is that there is very little chance of anyone being able to persuade those who have the power to change the system to do so. RIAA is simply taking advantage of this fact. Of course I hate what they are doing but within the legal system that they a
      • by Aladrin ( 926209 )
        A corporation is a legal entity just like any citizen. Under your idea, if they sue someone, they have to pay all the court costs up front. (I assume you're including lawyer's fees in this as well.) So if someone sues the corporation, they then have to be rich enough to cover all the court costs themselves.

        No, that doesn't work.

        I can already hear you saying 'just corporations'... So what about the small ones? It would mean the small companies would be unable to defend their rights, unless they could fi
        • Re:But wait... (Score:5, Insightful)

          by Chandon Seldon ( 43083 ) on Saturday August 18, 2007 @10:08AM (#20275705) Homepage

          A corporation is a legal entity just like any citizen.

          I think you've found the basic bug. If we just fix that one, a lot of these other ones will quietly disappear.

    • For those who RTFS, you may be wondering, 'what exactly is open to the public?', the court has opened a door for what is called "amici curiae":

      http://en.wikipedia.org/wiki/Amicus_curiae [wikipedia.org]

      Offers a good explanation, but basically, they're asking for _your_ argument. This means, if you have a good, coherent, laid out argument for exactly why "making available" does or does not constitute infringement you may be able to influence the decision of the judge. That's right, despite just how bad we (Americans) think w
    • Is the entire basis of the RIAA claims in all of these cases striking anyone else as being entirely based on "it may have been" scenarios being used as proof?
  • by Ethanol-fueled ( 1125189 ) on Saturday August 18, 2007 @02:07AM (#20273365) Homepage Journal
    What if I have media in a shared folder while I am using my own unsecured wireless network which I believe nobody else is using?
  • by Evets ( 629327 ) * on Saturday August 18, 2007 @02:10AM (#20273381) Homepage Journal
    This kind of thing highlights the fact that so many of these cases may be implemented with improper defense strategy.

    The defendants are vaguely accused and therefore are stripped of the capability to offer a real defense. How many of these cases get dragged into technical arguments about the merits of the case instead of real defenses regarding whether or not the law was actually broken.

    For instance - you say that there is "ongoing copyright infringement..." did you try to successfully download a copy of the song today? If it's not currently available, there is not ongoing infringement.

    Let's take a look at the royalty checks given to the artists in the 2 years prior to the alleged infringement, the year during, and the year after. Do they indicate the possibility of infringement?

    Did the plaintiff actually make any effort to do anything to stop this infringement?

    Is there any proof that anybody illegally downloaded the songs from the defendant's computers?

    How many downloads of the songs were made? How many people had them available? Is there a possibility that the song was made available for download, but never actually downloaded?

    Did the defendant promote his shared songs to the public at large?

    If there is a defined date for the alleged infringement or a date range, you can offer proof that it was not possible for the infringement to have occurred during that time frame (i.e. on vacation with computer during that time frame, power outage during the time frame in the local area, computer never on long enough during the time frame for a download to occur. Computer in the repair shop during that time frame, etc.)

    We all know the suits are based on flimsy technical merits. OK... so moving forward past the technical aspects - is there reasonable suspicion that infringement did occur within a defined time frame?

    The time frame is key to actually being able to defend yourself. Having a defined time frame to work with could save the courts, the plaintiffs, and the defendants plenty of time and energy because the technical merits may not need to be argued if a defense other than "this is a bunch of horsecrap and here is why" is available.
  • Well, fair use would be downloading a whole file (since it is impossible to download a partial file) then using one paragraph of it in a research paper, with attribution to the original author.
    • Impossible to download a partial file?

      HTTP, FTP, and virtually every P2P app on the planet allow you to download parts of a file.
  • I hope this judge won't punt on this issue, as it appears several other judges already have.
  • by BillGatesLoveChild ( 1046184 ) on Saturday August 18, 2007 @02:25AM (#20273513) Journal
    Does a library "making available" books constitute copy violation too?

    The RIAA and MPAA regularly steal from the IP creators anyway: http://www.ornery.org/essays/warwatch/2003-09-07-1 .html [ornery.org]

    They really don't have a leg to stand on.
    • by Lorkki ( 863577 )

      Does a library "making available" books constitute copy violation too?

      Nope. Then again, libraries pay fees to the copyright owners in proportion with the loaning rates, at least in the part of the world where I live.

  • In the USA... (Score:2, Insightful)

    by deAtog ( 987710 )
    you are innocent until proven guilty. In order to convict someone of unauthorized distribution of copyrighted content, the RIAA must prove that a distribution of their copyright owners' intellectual property(IP) did in fact occur. To this day, the RIAA has failed to charge anyone, who has made their copyright owners' IP available for download, with unauthorized distribution of copyrighted content due to the mere lack of evidence. To further complicate the matter, the RIAA has been known to download a copy o
    • Man if you could clean that up and simplify it a little bit, maybe a few more /.s would understand your (insightful post) and given a more complete understanding of exactly what is going on.
    • "innocent until proven guilty" applies to criminal trials, where the state presents the evidence. Civil cases, where an individual or company sues another have a different burden of proof - the preponderance of evidence. It's based on which party is most likely to be correct in their interpretation of the facts than proof beyond all reasonable doubt.

      That said, that the music company being represented by the RIAA has to demonstrate that infringement actually occurred is a fair point, which is an avenue being
    • by westlake ( 615356 ) on Saturday August 18, 2007 @08:24AM (#20275063)
      you are innocent until proven guilty.
      the RIAA has failed to charge anyone

      If you can't make the most elementary distinctions between civil and criminal law then anything you say about the law is worthless.

      All the rights agencies have to do as a plaintiff in a civil case is to persuade the finder of fact that it is reasonable to believe that you infringed on the copyright of one of its members. Nothing more than that.

      In order to show that an individual has committed unauthorized distribution of copyrighted content, the RIAA would have to catch the individual in the act of transferring the copyrighted content to another individual who has not been authorized, by fair use or otherwise, to obtain a copy of the IP

      This is like saying you can't take the pirate broadcaster into court because you don't know and can't know who - if anyone - was listening to his station. Judges and juries don't think this way. It is precisely the reckless and indiscriminate nature of distribution through the P2P nets that destroys any defense of "fair use."

  • by ortholattice ( 175065 ) on Saturday August 18, 2007 @05:24AM (#20274317)
    From p. 7-8 of 25 of Defendant's Reply Memorandum of Law in Support of Motion to Dismiss Complaint [ilrweb.com], referring to 17 USC 106(3): "distribution...to the public" [See, e.g., 2 Nimmer on Copyright 8.11[A], at 81-148. "[I]t is not any distribution of copies or phonorecords that falls within this right, but only such distributions as are made available 'to the public'...[A] limited publication, i.e., a distribution made to a limited group for a limited purpose and not made to the public at large, should not infringe this right."

    This is very interesting. Independent of the RIAA case, it seems to open a whole can of worms for copyright holders generally.

    Example: I wonder why this wasn't brought up in the case of Share a News Story With Coworkers, Pay a Fine [slashdot.org] where a company settled for $300,000 for distributing news articles internally to employees.

    Another (hypothetical) example: internally distributing copies of Microsoft Office to employees is certainly making them available to a limited group and not to the public at large. What is the catch? The EULA wouldn't seem to apply since it is only agreed to after the program is run, not when it is distributed before ever running it.

  • by gardyloo ( 512791 ) on Saturday August 18, 2007 @05:32AM (#20274357)
    I sure would like to read the supporting documents linked to in the summary (you know, to protect my liberties and, um, stuff like that), but they seem to be slow or absent. Anyone have a .torrent?
  • by Opportunist ( 166417 ) on Saturday August 18, 2007 @05:54AM (#20274443)
    I have some songs on my HD. Ok. I may have bought them, or ripped them (which is still legal in some countries), or whatever other means there are to get them legally and on a HD.

    Now, I'm a computer moron and have no idea what I'm doing. They are being shared through Windows' own system of making files available, SMB. They are incidentally "available" because they reside in a subfolder of "my folder", which is trivial to "share" in the network. Maybe there was even a good reason to do that for me, because there are other files in there, too, which I may share and I couldn't figure out how to share only those files and not the ones copyrighted.

    "Making available"? When you go by the logic usually applied to carelessness concerning computers (i.e. "You're not liable for anything dumb you do with your computer when you're too stupid to know it"), it's not. Still, the difference to "making available" on a P2P network is a matter of protocol, it's not something different in a legal or factual sense. Sharing those files on P2P instead of SMB only means that a different application is responsible for the "making available" part, the rest is essentially the same. I grant access to the files to parties who I'm not allowed to share those files with.

    What about trojans? Imagine I had a "P2P trojan" (and, bluntly, I'm surprised that something like this doesn't exist yet in wide spread). Said trojan would act as a relay for people who want to share certain content. Am I making it available? More important, is this suddenly the first trojan whose actions are blamed on the person infected by it?

    What about insecure FTP servers? There are literally thousands if not millions of machines on the net that run a copy of some Windows Server version with IIS enabled that allow anonymous up- and download. I checked it once, it usually takes about 10 minutes before you become the drop point for someone who needs to spread files. Again the question, are you liable for it? Yes, common sense says you should be, but generally the creed stands that, if you're too stupid to know, you are off the hook.

    So what is "making available"? Where is that line between "too dumb to know that you're sharing" and "knowing what you're doing and thus being liable"?
    • by Jack9 ( 11421 )
      By putting the IP on a media which is copyable, hasn't the RIAA engaged in the same activity? What about radio? What about my beloved YAHOO MUSIC :(
      • The RIAA never put (afaik) anything on any medium. The record company does, and they have the right to.
        • by Jack9 ( 11421 )
          Isnt that still "making available" a recording under the same premise? The fact that I have a right to own a copy or them to sell a copy doesnt change the fact that others can copy the recordings if either of us make them "available" to others via a public channel. Selling a CD that is going to be played to an audience and possibly be played on a CDburner combo drive has effectively made the recording digitally available as if it had been put on a torrent.
    • That plays right in with the "how much effort do you have to take to secure your network before you aren't liable for misuse" talk. There are quite a few windows machines on this network I'm on right now. I've got a feeling that a wardriver could theoretically park his/her car across the street, airsnort his/her way into my wireless network, and pop open an explorer window and type \\\c$ and breeze right into administrator shares. There are only 26 letters, it wouldn't take long to find my media
      • My personal position on this one is quite simple: You're liable for your actions, you're not liable for the system's or program's shortcomings.

        You click on a trojan installer, you're liable. You open your network, you're liable. You install a program that does what it should do according to its creator (i.e. share files), you're liable.

        The system has a backdoor which was used to infect you, you're not. The system is remotely exploited, you're not. A program has a buffer overflow problem that allowed malware
    • by garcia ( 6573 )
      or ripped them (which is still legal in some countries)

      I hope you aren't insinuating that it's not legal in the United States because regardless of what the RIAA's media machine campaign has been trying to say, it is legal.

      Please don't muddy the waters. They are doing a good enough job of that themselves.
  • I notice that the trolls are out in force on this one, so let me point out something. There is nothing in the Copyright Act that prohibits "sharing" of copyrighted material, or "making available". We do it all the time, every day, when we play music for a friend, have a party, have someone over to watch our DVD, etc.

    The RIAA is relying on an alleged infringement of the "distribution" right.

    But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief [ilrweb.com] (pdf), esp. pages 3-4.
  • by DeanFox ( 729620 ) * <spam@myname.gmail@com> on Saturday August 18, 2007 @08:00AM (#20274943)

    Googling the Judge, he seems to be well liked. He gives lectures at Law Schools and he vacated a $35,000 judgement against a defendant in another RIAA case (Santangelo) so the case could continue. If anything he seems to be "for the little guy". His average rating is 9.2 out of 10. Here's one comment:

    Civil Litigation - Private
    Comment #: 4118
    Comments: A real pleasure. A smart, funny man who treats everyone with respect. If anything, a little too tolerant of pro se civil litigants. Straight shooter.

    One the surface he appears to be a Judge who respects the public, has a passion for Law who doesn't automatically default to corporations. And, most importantly, he hasn't called the Internet a bunch of Tubes.

    This may prove helpful.

  • Reading all the posts here, it made me wonder something.

    If I could devise some system where I could connect to the kazaa/limewire/etc. network, and appear to have 10,000 songs available for downloading all of high-quality, but my client would not permit the files to be uploaded. What would happen?

    I don't have the money to try this out, but I imagine that if somebody did, and was willing to bait the RIAA like this, that we could a) force a change in the way they run their "Investigations" and b) Potentially
  • Read the Law (Score:5, Informative)

    There are a lot of bizarre statements about the "law" being made here by people who don't know anything about copyright law but are pretending they do. Don't be misled by them. Just read the statute, 17 USC 106(3) [cornell.edu].

Nothing is finished until the paperwork is done.