Arizona Judge Shoots Down RIAA Theories 204
NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"
What is thie score now? (Score:2)
They did win one, didn't they?
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The won the battle but are losing the battle because of it. They couldn't have done anything better to get a bad PR problem.
It reminds me of the effect it had on Japan when they won Pearl Harbor in WWII. Right after they won the battle, they realised they woke the sleeping giant.
Maybe they shouldn't triffle in the affairs of dragons as thou are tasty and crunchy when well done. Write this win up as an oops...
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After Pearl Harbor, they were on the receiving end of 2 special deliveries to their home land.
The RIAA and member labels are next.. They bombed a copyright violator. The PR dammage is severe and the tables are starting to turn since it was way too heavy a stroke. I hope they don't have asbestos on cause the tide has turned.
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On a side note, my wife took a look at the ruling I was reading and asked how I could understand any of that. My reply that judicial rulings are usually a far easier read than affidavits and motions got me thinking...
Has anyone else noticed, on their end, that actually reading through court documents on the web has given them a firmer grasp of legal terms and syntax than they had before? For
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In some ways it's very interesting to me that the geek and technical crowd, who spend their lives in highly technical jargon and language that takes years to master, are so dismissive of legal stuff. You'd think that having mastered one domain that looks like mumbo jumbo to outsiders, they'd be a little l
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I'm not so sure it's dismissive so much as derisive. Part of that is in the compulsory nature of law. Plumbers can't just send you a letter full of gibberish that translates to "hire a plumber or never flush again!" and make it stick. Lawyers do that all the time. While they do tend to make you miss a day of work if you hire them, you can opt to do without. Plumbers can't force you to take off for weeks even if it bankrupts you.
I'm not saying that there is a good way to fix all of the above, but I must sa
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Makes sense to me. Why insert a bunch of flowery language just to say, "It is wrong to enter another man's household."
Unfortunately this probably won't end here (Score:5, Insightful)
However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.
Re:Unfortunately this probably won't end here (Score:5, Insightful)
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They're not treeorists. Terrorism is physical violence against civilians for political change. The MAFIAA are Extortionists, not terrorists.
I'd say the opposite is true (Score:2)
However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.
The RIAA has been going after consumers for many years now, and they've been almost completely unsuccessful in their efforts. They've also been pushing for years to get Congress to let the RIAA call the shots on P2P, again without success.
Big Media has been successful in getting copyright's duration extended to infinity and beyond, b
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it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.
That would completely shut down the internet (not to mention appearance in public of everything which is copyrighted -- better not drive a car, or read a book on a subway train) as all files are copyrighted and all files are "made available" for everything which exists on the internet. It would instantly create trillions and trillions and trillions of dollars of liability. And 13 year old downloaders will become part of tens of millions of copyright trolls collecting 6 figure sums against groups like the R
I have to say... (Score:2)
I am impressed by the judge. It is nice to see a case where the defendant was not at the mercy of expensive lawyers, and the judge actually took a look at the case law before making a decision.
It is crazy to assume a wrongdoing when no transaction has taken place. Alcohol stores are not fined when minors fail to buy alcohol, a transaction has to take place for the offense to be actionable. Good show.
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Re:I have to say... (Score:5, Informative)
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I think the conclusion says it all:
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It was not so much that a transaction had not taken place, but rather that the RIAA had failed to prove, in point of fact, that a transaction had actually taken place (i.e. it is not enough that the law could have been broken, it must be shown that it actually was broken). I thought that the following commentary from senior EFF lawyer Fred von Lohmann was especially informative:
"If the RIAA wants to keep bringing these suits and collecting big settlements, then they have to follow the law and prove their
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"Speaking of reason, I can't see how at least some of the judgement can stand. It would mean I can legally make something available on my hard drive, publish its availability, and not be infringing on the copyright."
If a copyright holder took you to court, and the court ruled the same way, and the copyright holder couldn't prove that a file was actually downloaded, then yes.
"To put that another way, if I allow free downloads and accept donations, I'm not infringing, even if I'm paying for bandwidth t
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Most jurisdictions can fine the bar or seller just for having minors on the premises that aren't employed.
Judges, in many cases (I can't say most having not done the research), seem to be interested in legitimately seeing justice done, but they are constrained by 1) the superior organization and presentation of high-priced lawyers, and 2) not pissing off the people that put them in office. In most cases bogus lawsuits end in a settlement, since even fighting the case to the end and winning is economically
I'm glad this guy got appointed..... (Score:2)
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"Pearce" and "good anything" is an oxymoron. and Pearce is a moron.
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The reason... (Score:3, Informative)
They don't.
They use their Gestapo mindset and frivolous law-suit threats until the person they are harassing into submission, and finally settle out of court. The one's you actually hear about are the ones that go to court, and those tend to be in the defendant's favor... (Aside from the legal fees that you'd have to pay.)
Once again a court (Score:3, Insightful)
Re:Once again a court (Score:4, Informative)
Actually, Howell claims he never downloaded any music. According to his testimony, the music files on his PC were ripped from CDs he owns. He used KaZaa to download porn and free e-books which he gave KaZaa the right to "share". At the heart of his defense is the idea that KaZaa searched his hard drive for media that was never intended to be shared and made that available without his knowledge or consent.
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well i was just browsing porn and then something happened and my computer was full of the internets
only the RIAA could distort reality so much that people claim to be downloading porn to explain the presence of music & films on thier computer.
shame that itll be very easy to prove that the files wernt ripped from the CDs when:
a) The files are encoded by a variety of encoders and a variety of bandwidth (like to see him explain that, he could at best make the jury not 100% sure)
b) The comm
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Just like there's civil fraud and criminal fraud, there is both civil and criminal copyright infringement.
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Haven't you been paying attention. To charge someone with a crime you will need actual evidence, so the RIAA seldom has a criminal case.
In fact, marshals will raid a company if the BSA asks.
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True but you have to charge the correct person. And when you charge someone with distribution, you have to well, prove, they did in fact distribute it.
Re:Once again a court (Score:5, Funny)
Not evisceration, but a major blow (Score:5, Insightful)
I don't think it eviscerates the RIAA's claims, but it's certainly a major blow to their theories. As I read it, the judge is saying that merely making them available isn't automatically infringement. This makes sense if you think of an analogy. If I put a book down on the table on my front porch while I go inside to get a drink, and someone comes along and takes it, I surely made it available but nobody in their right mind would claim I intended to distribute it to the thief. Compare that to the case where I put a whole bunch of books on a table out by the sidewalk with a sign "Free books, take as many as you want.". I suspect the judge here is ruling along similar lines: it's not sufficient for the RIAA to claim that the files were merely available, they have to claim the files were (reasonably) knowingly made available for the purposes of infringing distribution. OTOH, if the files were available to the public, but were put where they were for a non-infringing purpose and the defendant wouldn't reasonably (given their knowledge) expect the files to be open for the taking by anyone else, then the RIAA's claim fails. Which to me sounds reasonable, so seems more reasonable than either of the extreme positions take by the RIAA or the P2P advocates.
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Now, I have not RTF 17-page paper, so this may no
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Fairly easy: a typical consumer wants to share their own files between their own computers. KaZaa's publicized as an easy way to get and share files, so they have their local geek set them up with it. Said geek does, but doesn't disable external access and doesn't clue them in to all the technicalities. Consumer has no clue, since it's doing what he asked for it to do.
Analogous to the situation where I leave my books out on the porch table and the local kids keep coming in while I'm not there and stealing
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While this has nothing to do with the lack of expectation to distribute (since that's actually what he's hoping for.. the extra promotion does help, or so he says) it seems that the common
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Compare that to the case where I put a whole bunch of books on a table out by the sidewalk with a sign "Free books, take as many as you want."
Even that would be legal according to the doctrine of first sale [wikipedia.org]. You have the right to dispose of your legally acquired legal copy (i.e. your property) as you wish, including giving it away. However, it would probably not be lawful if you ran off Xerox copies of the books and put the copies on the table with a "free books, take as many as you want" sign. Copyright law covers the right to make and distribute copies, but it does not control what you may or may not do with your legally acquired legal copy on
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Make the RIAA Download/Upload (Score:3, Interesting)
The War will be won if the RIAA is forced to download/upload to gather evidence, and really there is no evidence whatsoever from file titles; that could reasonably be personal commentary or a fair use parody. The defendant should not be *presumed* guilty, the RIAA should *prove* infringement. File titles are 0% evidence, not even 1% "circumstantial". We don't really know, since no song has ever been played in any Court (and that alone will be worth millions in PR for the cause).
Keep a sharp eye on those RIAA IP addresses.
Screenshots of white powder is 0% evidence of cocaine. Writing $100 is 0% evidence of counterfeiting a one hundred dollar bill. And britneyspearstoxic.mp3 is 0% evidence of copyright infringement.
And imo, those paid settlements are RICO violations for precisely the reason that the RIAA has been on a 0% evidence extortion witch hunt.
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What if someone recorded a few minutes of belching and farting, named it after some song RIAA seeks, clipped it to the lenght and packed with some white noise in the background so that the file size roughly matched and put it up on BT? You see, P2P clients publish a checksum of every file and every expert appointed by the court will admit that an MD5 or SHA checksum is a sufficient proof of the file spotted by RIAA being the same as the file promptly presented to the court by the defendant, with a claim of
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Possibly. But you'd first have to find someone who's willing to put that file up, *and* pay up to defend the case, *and* risk that a judge/jury would be convinced of the above. Any volenteers?
You have to consider, which would people think more likely - that someone created a belch/fart single, made it the same size and name of a popular song, and distributed it, *or* someone who was caught infringing copyright created a file to match its c
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You have to consider, which would people think more likely - that someone created a belch/fart single, made it the same size and name of a popular song, and distributed it, *or* someone who was caught infringing copyright created a file to match its characteristics in order to get off on a technicality.
Create a valid MP3 file with 5 minutes of belching that matches this MD5 signature:
5f2380575360148589ac86572e4ca36a - I'll be really impressed, as will be every cryptography expert. I don't say it's impossible, but unless RIAA ends up suing Donald Knuth, this scenario is not very likely.
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Out of touch. (Score:2, Interesting)
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- I'm sick of paying for a media that is damaged so easily (tapes were much more resistant)
- I'm sick of paying for a 15 "musics" CDs just because of 1 music
- I'm sick of have to carry 100 CDs in my car
and the list goes on and on.
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It could be if the RIAA labels weren't run by stupid selfishness. There is no reason why a CD should cost as much as the labels charge; the cost of recording and stamping CDs has plummeted deeply since the advent of the CD, yet the price hasn't come down at all.
Five dollar Metallica CDs would sell like hotcakes, and there would be profits for all involved. The labels' greed and stupidity are the only things killing their industry.
Not Evisceration, just careful consideration. (Score:5, Informative)
While this does weaken the RIAA's case, they still have a decent shot at conviction. All that was denied here was a shot at summary judgement. At issue here is the idea that making a copy of a protected work available is not the same as copying, but may leave the defendant open to contributory liability.
Howell contends he never intended to share, nor authorized KaZaa to share his music files and it may not be possible for the RIAA to prove otherwise.
For what it's worth, he also poked holes in EFF's argument that Media Sentry - as an agent of the RIAA, cannot infringe on their own copyright. He argues that the RIAA / et all never intended to license Media Sentry to authorize distribution or reproduction and therefore the 12 copies Media Sentry downloaded stand up as "unauthorized" copies of the works. The issue remains open as to whether Howell can be held liable for these copies.
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By the way, one of the interesting things about this case: it will NOT be a jury trial. Mr. Howell never demanded a jury trial. Judge Wake, not a jury, will be the trier of the facts.
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With that in mind, I think I'd be more interested in speaking to a judge than a jury.
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Not copyright infringement... (Score:3, Interesting)
What does that mean? Assuming this argument is valid (which I can't see how it couldn't be), the plaintiffs would have to go back to square one and find someone else on Kazaa who downloaded specific files from the defendants--specifically infringing on copyright law. And for anyone who has used P2P before, how often do you know (or remember) who you're downloading from? Personally, I think that borders on impossible to prove--unless Kazaa keeps some sort of detailed log data file that MediaSentry would have to gain access to...
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What does that mean? Assuming this argument is valid (which
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Where was that evidence?
Seems to me that no matter which way the RIAA go RE mediasentry, their case is hosed...
Either they can't get the files, or it's a completely legal transaction. Superb!
a major blow to RIAA tyranny (Score:2)
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Law clerk (Score:3, Insightful)
More than likely this opinion was written by a "judicial law clerk" who graduated from law school last June (likely toward the top of his class). Judges vary widely, some write their own opinions, some collaborate with their law clerks, and some let their clerks write the memos, glance through them and mail it out. Most judges fall somewhere between the last two. The prior decision (today's decision was a reconsideration of an earlier decision in the RIAA's favor) was dated last August, which means it is very possible it was written by last year's law clerk (once again, these things vary, but most clerkships are one year long and start sometime between Late July and early September.
Just thought I'd let you think about that.
what bad English (Score:2)
the word is commentor.
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"Commentator" (in the submitter's context) refers to the author of the article at p2pnews making a comment on the ruling.
Definition of "commentator" as found by Google [google.com]
Definition of "commentor" as found by Google [google.com]
"Commentator" == Princeton definition
"Commentor" == not a word (also consulted OED, no hits)
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commentator /kmntetr/ [kom-uhn-tey-ter]
-noun
1.a person who discusses news, sports events, weather, or the like, as on television or radio.
2. a person who makes commentaries.
[Origin: 1350-1400 Middle English. interpreter, equiv. to comment to interpret (Latin: to think about, prepare, discuss, write, perh. freq. of commin; to devise; see comment) + L -tor -tor]
--Related forms
commentatorial [kuh-men-tuh-tawr-ee-uhl, -tohr-], adjective
commentatorially, adverb
Random House Unabridged Dictionar
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cul8r dood.
IRONY FTW!!! (Score:2)
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I think there is one way in which this could actually be illegal: the mp3 encoding part. Technically, you're supposed to have bought a license from Fraunhofer to make an encoding in their patented format. It's okay to decode mp3, you just can't encode to mp3. But I haven't heard of Fraunhofer trying to enforce this on users. They restrain themselves to hitting up only those who make software or devices that can encode to mp3.
The problem is easily avoided by using an unencumbered format such as Ogg Vo
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The user also has the option to use Vorbis which is patent free and outperforms MP3 at any bitrate.
As you point out, none of this affects the RIAA, they have no standing to sue for the patent infringement even if it exists. The holders of the MP3 patents have chosen not to pursue free software implementations.
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AHRA does not apply (Score:2)
Since a computer's componen
Unauthorized != illegal (Score:3, Informative)
Whe
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As this is the internationalnetwork different countries' laws are being argued as if everyone's laws are the same. In Britain iinm there is no "fair use" and MP3s ripped from your own CDs are in fact illegal.
Here in the US they are legal under "fair use" until you distribute them without the copyright holder's permission, at which point they become "illegal MP3s".
Note that I did not say "copyright owner" but "copyright holder". In the US you don't OWN a copyr
Re:Judge shoots down RIAA (Score:4, Funny)
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cops run into that problem far more often than they'd like, and research has been done into putting biometrics into handguns for police so they can't be shot with their own firearm.
so open carry isn't as safe as concealed carry, plus with concealed carry, if you need to shoot someone they don't know what's coming until it's too late.
but shooting the idiots in the music industry, won't so
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Butt off. I'll decide how to live my life; I don't need you applying a "sin tax" to my record/CD purchases.
Re:He got by with a little help from his friends.. (Score:4, Funny)
What would you do,
If the labels said they'd sue,
Would you freak out and pay them their fee?
Send me a judge,
And he'll interpret the law,
And he won't put you under lock and key.
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The key phrase here is "intent to distribute"...
ITD been made illegal for kiddy porn and drugs. Check your local statutes for details, as your area may have "blue laws" that cover more than you expect...
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Go Arizona!
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No, we thought you gave your outlaws green bologna and pink underwear [wikipedia.org].
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