Has RIAA Abandoned the 'Making Available' Defense? 125
NewYorkCountryLawyer writes "The RIAA's standard complaint (pdf) was thrown out last month by a federal judge in California as speculation in Interscope v. Rodriguez. Interestingly, the RIAA's amended complaint (pdf), filed six days later, abandoned altogether the RIAA's 'making available' argument. (Whereby making files available at all for download is infringement.) It first formulated that defense against a dismissal motion in Elektra v. Barker. This raises a number of questions: Is the RIAA is going to stick to this new form of complaint in future cases? Will they get into a different kind of trouble for some of its their new allegations, such as the contention that the investigator "detected an individual" (contradicting the testimony of the RIAA's own expert witness)? And finally, what tack will defendants' lawyers take (this was one lawyer's suggestion)?"
Re:Nothing for you to see here. Please move along. (Score:4, Funny)
Defense? (Score:5, Insightful)
IANAL, but I can't imagine the RIAA is offering to many defenses in these court cases. Maybe they're abandoning the complaint of "making available"? That's what the article seems to indicate...
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There are cases when you can use too in the way you describe, but many others where you cannot.
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You could replace the first example and it would work. The next three would be meaningless and it would completely change the mea
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(Actually, I avidly follow the grammar and spelling posts. As an avid reader (of BOOKS, not just the intartubes) I find the general level of communication among supposedly educated people appalling.)
How about a complaint? (Score:1, Interesting)
http://www.slyck.com/forums/viewtopic.php?f=30&t=37857&st=0&sk=t&sd=a&start=50 [slyck.com]
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Entrapment? (Score:2, Informative)
I'm sorry, while I'd even agree with the privacy slant, and I don't really have much love for the RIAA... excuse me? Entrapment?
Let's have look at dictionary.reference.com [reference.com], shall we. The only definitions that fit in a legal context, seem to be the likes of "the luring by a law-enforcement agent of a person into committing a crime" (Random House Unabri
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Re:Slashdot is just a pro-piracy site (Score:4, Funny)
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its only RIAA and MPAA that claims that copying 0's and 1's is stealing.
Re:Slashdot is just a pro-piracy site (Score:5, Insightful)
That's not quite true (Score:3, Insightful)
While I consider Slashdot worthy enough to read and post to, I wouldn't recommend believing in your portrayal of an unbiased and fair democracy either.
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So says the great state of Alaska. (Score:1)
It's a series of noobs.
Re:Slashdot is just a pro-piracy site (Score:5, Interesting)
It doesn't bother us (well, me, at the very least) so much that someone who illegally copies content gets busted and has to pay for it. What bothers me is the blanket/boilerplate way this is tried. The content industry usually has little to no evidence and abuses the court system for practices that smell a lot like extortion. "Pay or we drag you to court and your expenses are insanely higher" is the message.
Interesting enough, every single case is dropped as soon as the defendent has the guts (and money) to stand up against the threat.
So far they failed to present a single solid case. They rely on judges who don't know jack about the matter, on people who cannot afford to actually go to court against them and on scaremongering.
And yes, that's what I'm against. I can rather live with a pirate in freedom than with a corporation having the right to extort money from whoever they please.
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Incidentally, it does bother me. Why? Because we all know that a huge number of people infringe copyright on a daily basis. In fact, among the Internet-using population, I would be willing to bet that most people (>90%) have infringed copyright at some point. (During a talk at Google, Cory Doctorow asked the audience, by show of hands, how many had infringed copyright in
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If it's impossible to work within the limits of the law, people start ignoring the law. Basically, you could imprison anyone with a computer on grounds of copyright violation. I'm fairly sure you'
Re:Slashdot is just a pro-piracy site (Score:4, Interesting)
I'm getting REALLY royally pissed at "nothing to hide" bullcrap. Sorry, but my privacy is the only thing I will defend with my life. It's neither your, nor any country's, nor the RIAA's business what's on my PC, in my apartment or on my mind.
Yes, I have something to hide. It's called my private life. You want it? Over my dead body.
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Just because the RIAA has chosen to burden someone with the costs of defending themselves
in the courts, it doesn't necessarily mean that the individual has done anything wrong wrt
to the RIAA.
Regardless, the indivdiual with very limited resources will be forced to pay big bucks to
either defend their reputation or cave in to the extortion in order to risk some future
judgement based on fantasy damages.
The RIAA shouldn't get an advantage that is not available to someone that's su
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This complaint is no better (Score:5, Interesting)
This should be rejected summarily as well.
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> But they don't actually detect any distribution.
Nor do they detect an "individual". An IP address isn't an individual. If you're lucky, you might be able to connect it to a particular computer at a particular time.
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They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.
Re:This complaint is no better (Score:5, Insightful)
They say stuff like that based on the assumption, correct in some cases, that the judge doesn't have any understanding of computer technology.
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If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. T
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If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. That's incorrect, however. Given the ease with which the correct simplification could be made, provided that the RIAA lawyers or their technical advisors do understand the concepts of an IP address and uploading and difference between a person and computer and the meaning of the word potential, the only remaining possible purpose of their simplification is not to inform, but to mislead the judge.
It's clear that the only purpose is to mislead the judge. It's not a simplification to say you detected "an individual" when you didn't. It's a lie.
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Ah, I misunderstood the position of your previous post, I thought you were trying to offer that as a justification for their statement. Then you go and flip it all around on me and say yourself what I didn't want to say in order to avoid an argument I didn't want to have that I thought you'd make ... bravo. And yeah, it is a lie, but I'll bet you anything that if they really get pinned down on it they'll try to call it a simplification. It's the only out for them I can see.
Oh wait, you really are a lawyer.
I'm not intentionally distributing... (Score:3, Interesting)
Wonder whether that defense would work?
Only if you can claim to be "dumb" (Score:2)
And forget it altogether if you run Linux. After all, every judge knows that Linux users are geeks, and they are by default criminal hackers and suspicious, and if not guilty of this crime then certainly for something else.
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Not necessarily. You could say you only intended to share the files with yourself in another location. IANAL, but I don't believe the law requires an individual to take any special security precautions when dealing with copyrighted materials.
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Of course, faciliating a crime is rarely if ever called upon when it comes to computers, as malware has shown, you can be as ignorant and gullible as you want in the vicinity of a computer and you're impossibly liable for any damages. Unless, of course, you should have known better (read: you're in IT). And I g
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I've never ever heard of anybody getting prosecuted, or even arrested, for facilitating a crime by having their car stolen.
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Some of our laws are that way...
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At this point.... (Score:5, Interesting)
Remember, this is the same crew that established 'payola' in the late 1950's and refined it in the decades since despite several court cases decided against them for this.
Reminds me of a Pennsylvania farmer I once knew. He made his living by poaching deer and selling the meat to some fancy, high dollar Maryland and D.C. restaurants. He would get caught poaching, pay the stiff fines out of a roll in his pocket and claim that it was only 3 days profits, and only got caught several times a year. Just a small operating expense...no big deal. He just laughed it off and even bragged about it.
I see the same mentality with the RIAA and MPAA, just throw crap against the walls as fast as you can...surely some of it will stick!
Remember: IP means Internet Protocol.
Re:At this point.... (Score:5, Insightful)
The only unusual thing is an individual being able to use this kind of business model. Corporations have the advantage that they cannot be arrested.
Juristic person (Score:2)
True. A corporation is a person when it's convenient, and a non-person when it's convenient. [wikipedia.org]
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Still... (Score:2)
1) Good for the farmer... the deer population in the northeast is so ridiculous that with the ticks these animals have, they're as bad as rats in the city. The states ought to up the bag limit to 3 or 4 buck per season and allow anybody who wants to get a doe license.
2) If a farmer is shooting deer on his own property, is that really poaching? It's screwy that the law could protect the deer on his property, since it could be argued the deer are his. But I don't know anything abou
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Not disagreeing with the main point of your post, but, and I think they're the only animal I can say this about, somebody caught poaching deer should be given a fucking medal.
Deer are nowhere near even being endangered. Their population is not falling. If things continue exactly as they are, society is certainly no worse off because of this man's actions. The punishment is too stiff. It should be lightened until the deer population reaches the point when I almost hit them only as often as other highly succ
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Great idea! Let's give the government another excuse to take people's property and force them into submission! You should run for senate.
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Oblig. IT crowd reference (Score:5, Funny)
You wouldn't steal a handbag... You wouldn't steal a car... You wouldn't steal a baby... You wouldn't shoot a policeman, and then steal his helmet... You wouldn't go to the toilet in his helmet, and then send it to the policeman's grieving widow, and then steal it again! Downloading films is stealing!
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Oh, you mean legally, not morally. My fault, sorry.
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Oh c'mon, I hate sitcoms that are not authentic.
But then, the "old" IT crowd was certainly mostly funny for geeks. I remember showing it to a fellow student and he was laughing throughout the first episode. Another friend of mine, notoriously NON-IT'ish, sat there like it was a French movie or something similar interesting. I honestly though he'd go ahead and pick up the newspaper 'til we're do
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Handbag has 100 billion dollars in it? Oh, I killed the old lady too, and hired johnny Cochrane.
Redundant Breakdown (Score:5, Insightful)
-The RIAA claimed that simply making copyright material available online,
was proof of intention to commit copyright infringement (We got proof!)
-Defense Lawyers challenged that claim as insufficient evidence (No you don't!)
-A Judge agreed with the Defense Lawyers (Ya, that isn't enough proof, begone RIAA!)
-RIAA returns, but drops the 'making available' argument (Is this better?)
What could happen now?
-The RIAA would stop bringing cases based solely upon the 'making availble' argument (If it wasn't for those darn Slashdoters)
They've lost the battle. Not the war. (Score:4, Insightful)
Any technology which allows the end-user to produce their own media (and some which didn't) has scared the entertainment industry.
First there were records - "But who will pay to see live performances if they can just play the record?". Then they realised that they could make a roaring trade selling records themselves.
Then came analogue tapes: "But who will buy records if they can just tape from a friend?" - then they established a business in selling tapes as they're smaller and it's very hard to play a record in a car.
Then came videos: "But who will go to the cinema if they can record movies from the TV?" - then they established a business in selling pre-recorded videos.
Then came affordable CD burners: "But who will buy CDs if they can copy from a friend?" - well, actually rather a lot of people. Though that didn't stop a lot of countries being pressured to establish taxes on blank media and passing these taxes back to the recording studios.
Now audio and movies can be easily shared over the Internet: "But we must stop this, lest nobody buy music, movies or visit the cinema!". What they really mean is "We're not sure that this sits well with our business model and we haven't yet figured out how best to exploit it so it does. While we're in the process of doing that, please talk quietly amongst yourselves AND STOP SHARING MUSIC, DAMMIT!".
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The entertainment industry has always had a business based on flogging what's New! Shiny! Entertaining! And Not Identical To The Last One, Honest! (singles, latest Britney Spears clone, latest song by established artist) - and another side to the business based on flogging you what was New! Shiny! Entertaining! in the past (albums, DVDs).
It goes without saying that the part of the business which is likely to suffer from private media sharing is the latter
They've Pretty Much Lost The War (Score:1)
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For tapes and CDRs this didn't bother businesses so much. Hard drives do. Furthermore, unlike tapes and CDRs, Hard drives are by magnitudes bigger and can be used more often than just once or a handful of times. Not to mention that businesses are running rampart against this kind of "tax", because, well, just beca
There is more to it than that. (Score:2)
Regardless of whether a computer downloaded or served certain files, they did NOT "detect an individual" at all! What they detected was an IP. If your sister or cousin or the neighbor had theoretical access to your compute
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While I agree that detecting an IP address isn't proof that someone is responsible, isn't it enough suspision to obtain a warrant to search any computers on that address, a
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But to answer your question, I think whether it is sufficient to justify a warrant is a matter for a judge to decide. If I were a judge, I would probably say "no", because IP addresses can be spoofed, and because, as I mentioned, there is the possibility of oth
Re:There is more to it than that. (Score:5, Informative)
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He just seemed to think it was bad form for me to have brought up Rule 11.
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Re:There is more to it than that. NICE JUDGE (Score:2)
And he'd seemed like such a nice judge right up to that point too.
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Similarly if you are (or could be) running TOR.
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As an analogy, imagine that a liquor store had been robbed, and police caught you hiding in a dumpster in an alley nearby. You might claim (even honestly) that you had only been dumpster diving, but it still looks pretty suspicious. Probably not the best example, but it makes the point.
On the other hand, there
Safe yet? (Score:1)
Re:Safe yet? (Score:5, Interesting)
Not yet. The RIAA didn't drop the complaint. They just amended it.
In the meantime, fly under the radar. Swap USB drives.
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Is this actually allowed after a judge has tossed the case.
At best they should have to grovell humiliatingly to the judge, at worst start a whole new case from scratch.
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I can see the judge correcting you if you were to take umbrage on the court's behalf (something like "*I* will decide whether plaintiff's counsel is wasting this court's time, Mr. Beckerman") but your client
Re:Safe yet? (Score:4, Funny)
Re:Safe yet? (Score:4, Funny)
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Sorry, I'm just an expression of the slashdot group-think mind-fuck that goes for "copryright reform" discourse here.
The whole point of what NYCL is doing is almost a public service in pushing the final dregs of the the entertainment industry into the 21st Century. They should be fricking _paying_ him for the good this will do them once the pain is over and they come out the other side.
-P
(Moderators, bring it on. Karma-protection suite: Acti
But ofcource (Score:2, Interesting)
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But if I've got a file called "Heroes.rar" on my drive, should I be sued by Bowie, Philip Glass, NBC or NCSoft? Or maybe it's just my essay on Joseph Campbell. I remember one site getting into trouble for distributing Open Office, because the second word there matched a search for pirate copies of Microsoft's suite.
Just read the "expert" testimony... (Score:2)
what tack? (Score:1)
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2 a: the direction of a ship with respect to the trim of her sails b: [...] c: [...] d: [...] e: a course or method of action; especially : one sharply divergent from that previously followed
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You live and you learn.
making available (Score:1)
Many flaws (Score:2)
Let us assume that the plaintiff claims that ip 64.233.183.104 has "made available" a torrent.
a)The plaintiff has no evidence that they have scanned ip 64.233.183.104. Indeed, they don't even have any evidence that they conducted an investigation at all. They may say that ip 64.233.183.104 was used, but they can't provide evidence for it.
b)An ip doesn't correspond to an individual, it corresponds to a client or server. The client or server in question ma
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Downloading isn't illegal. It's de facto public domain.
Uploading is illegal.
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Illegal downloading isn't detectable.
If they set up a sting site and get you to download copyrighted content from it, it's "authorized".
If they tap your telephone line, cable connection, or spyware in your computer, that's illegal on their part.
Legally proving that you ever downloaded anything (as opposed to getting it from somewhere else) is so virtually impossible that it should have been stricken from everyone of these complaints long ago. I