p2pnet news | RIAA News:- Slightly more than a year ago former social worker Tenise Barker asked a court to dismiss a claim made against her by Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA.

It was trying to hang her as a massive, and illegal, online distributor of copyrighted music and in response, “the RIAA made its most shocking and outlandish arguments to date, claiming that merely having a ’shared files folder’ on one’s computer, and thereby ‘making files available for distribution’, is in and of itself a ‘distribution’ and a copyright infringement,” said Ray Beckerman, who was defending her.

He said that would be so, “even if the recordings were legally obtained, and even if no illegal copies were ever made of them, the defendant is still guilty of copyright infringement”.

The EFF (Electronic Frontier Foundation), Computer & Communications Industry Association and US Internet Industry Association said, collectively, if this ‘absurd argument’ was accepted, the entire Net, “nothing more than a giant network of hyperlinks making files ‘available’,” might be forced offline in the US.

The Barker case is still pending and the argument came up again in Warner v Cassin.

Says Recording Industry vs The People’s Beckerman:

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.

And in Ars Technica, Eric Bangeman posts:

A number of defendants have pointed out the weakness of the RIAA’s argument. First, the RIAA’s complaints do not allege any actual acts of infringement, which the Copyright Act says must take place in order for a case for infringement to be made. The only downloading that the RIAA can actually prove occurred was done by its authorized agent, MediaSentry. Since the RIAA cannot demonstrate that someone other than MediaSentry downloaded the file – or that the defendant ever illegally downloaded any of the tracks in the shared folder – it therefore cannot show that infringement actually took place. Looking at it from another angle, there are no allegations that the defendants actually engaged in a specific act of distribution at any point in time—which is why the RIAA’s boilerplate complaints refer to “ongoing” and “continuous” infringement.

Or, as Beckerman notes in his motion, “the complaint fails to set forth… any instance or example of ‘downloading’ a recording; any instance or example of ‘distributing’ a recording; any instance or example of ‘making [a recording] available’;… or what law would support a claim for ‘making [a recording] available.’”

Beckerman also argues that if making available is found to be the same as distributing, it could have broader implications than just sharing files over a P2P network. “Under such an elastic interpretation and ill-defined standards, almost all participants in the Internet would become vulnerable to accusations that they ‘make available’ a variety of content, including copyrighted materials, to users,” he argues in the reply. Think about hyperlinks, which make available other content on the Internet. Providing a hyperlink could be construed as distribution under the RIAA’s definition, argues Beckerman.

There have been seven cases in which the making available argument has been tested. In six of those cases, the judges did not actually rule on the issue of whether making a file available is the same as distribution. Instead, the judges said that the cases could go ahead based on the allegations of continuing infringement. The judge in Elektra v. Perez also considered the argument after the RIAA decided to dismiss the case and the defendant argued that the case should be dismissed with prejudice. The judge presiding over the seventh case, Elektra v. Barker, has yet to issue a decision but has promised to rule on the making available argument.

The Cassin case is scheduled for a conference on September 14 at 10 AM, at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson, Beckerman points out, also noting the conference is open to the public.

.Slashdot it!

Also See:
Tenise Barker – MPAA backs RIAA in p2p case, March 18, 2006
shocking and outlandish – RIAA and Top Cop in p2p case, April 18, 2006
Recording Industry vs The People – “Making Available” Theory to be Tested Again, August 17, 2007
Ars Technica – Foundation on which RIAA builds cases in danger of being undermined, August 20, 2007

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