The RIAA gets a break
p2pnet news | RIAA News:- “Thought the principle of liability was well settled?” – posts John Paczkowski on Digital Daily, going on:
“Think again.”
He’s talking about Atlantic v Howell of which Recording Industry vs The People’s says the judge, “ruled in favor the RIAA and concluded that ‘making available’ is in and of itself a copyright infringement.”
He continues:
“This is the second time of which we are aware in which, in the context of a summary judgment motion against a pro se litigant, a judge has stated that merely “making available” is in and of itself a copyright infringement.
“The first was Motown v. DePietro in Philadelphia, where the RIAA’s summary judgment motion was nevertheless denied.”
Says Paczkowski, setting the scene:
In 2006 the RIAA sued Pamela and Jeffrey Howell for copyright infringement, accusing the pair of “making copyrighted works available” over a peer-to-peer network. The RIAA had no evidence that the Howells ever transferred content to a third party. It did, however, have screen shots of their Kazaa account. And that was proof enough for the court to grant its motion for summary judgment against them. “It is no defense that a Kazaa user did not directly oversee the unauthorized distribution of copyrighted material,” the judge wrote, noting that “the mere presence of copyrighted works in a shared folder is enough to trigger liability.”
He then nails it:
Essentially, the Howells have been found criminally liable for what they might have done. Which is an unsettling thought in a Dick-ensian (Philip K.) sort of way.
But not for the RIAA which, thanks to this ruling, no longer has to work quite so hard to provide proof of violation in these cases.
Philip K. is a master of sci-fi.
So is the RIAA.
Stay tuned.
Also See:
Digital Daily – RIAA Announces Department of Precrime, August 28, 2007
Atlantic v Howell – RIAA ‘batting 1.000′, August 28, 2007
Recording Industry vs The People – Pro Se Defendant Loses to RIAA in Atlantic v. Howell in Arizona, Judge Holds “Making Available” is a “Distribution”, August 24, 2007
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August 30th, 2007 at 7:52 am
Disturbing in many ways – a screeny of files called stuff like “LatestPopCrap.mp3″ shouldn’t prove anything as after all there is zero to say that the files tagged as such were in any way, shape or form, what their name suggested them to be. They could all have been viruses masquerading as pirated files – kazaa is famous for those lol.
Also, quite besides whether the files were real or not, a screenshot is one of the easiest things in the world to fake – not that I’m suggesting the MPAA/RIAA would do this of course – but such a ruling does open the doors to future unscrupulous (ab)use.
Even more disturbing is making it a crime to make available, or to be potentially about to commit what has been deemed a crime. What’s a shared folder under law? On my network there are PCs that I have full access to, so if one of the users copied some legit music files to their system on the network, is it making available because I could access them, copy them to my own personal system etc? Have I made available because I ftp some copyrighted material to a remote server for backup purposes and other people have access there (or gain access illicitly)? After all, when all is said and done, what’s a kazaa shared folder other than a bit of a hard drive to which others are granted access – just remove the name kazaa from there and it could be extended to cover a whole load of scenarios.
To make potentially committing a crime into a crime in itself defies all that the wests justice systems have (well, should) have been about – it’s the slippery slope into totalitarianism where the mere suggestion that someone might be about to do something against the status quo is enough to send the thought police around.
August 30th, 2007 at 8:24 am
1. It was NOT a criminal case.
2. The key to the Howell case is that Howell had NO LEGAL REPRESENTATION. Of course there are going to be wrong decisions when there is no one there to point out to the judge what is wrong with what the plaintiffs are saying.
August 30th, 2007 at 8:37 am
True Ray, I used the word ‘crime’ loosely – my bad there. “potentially committing an infringement into an infringement in itself” would perhaps have been far better wording.
As for totalitarianism, whether this is achieved by criminal courts which can imprison you, or civil courts/litigation which can potentially ruin you financially and tarnish your future, the end result can still be much the same imo. I’m UK based and have little familiarity with the US system, but from all I see and read it seems to me that, for the defendant, either road can end in ruin and even the mere threat of it is enough to make many people rightfully scared.
Going into a case like this without representation is also, imo, madness. Joe Public on the street isn’t going to know the intricacies and formalities of the court workings. It’s asking for disaster.
August 31st, 2007 at 1:39 am
“for the defendant, either road can end in ruin and even the mere threat of it is enough to make many people rightfully scared”
This is the scary part.
If the US governement persist in no defending the constitution and let few parasitic corporations devastate the society it could all end up with guns. 90% of houshold have gun in the US. Tha’s a lot more serious that financial stuff.
August 31st, 2007 at 4:06 pm
MAKING AVAILABLE CLARIFICATION
Recently, on August 16, 2007 a federal appeals court, in Latin American Company case, in reversing a previous lower court decision, decided that merely making available in a situation in which the making available included the licensing of the made available songs for money (PROFIT). This last fact, the licensing for profit was misteriously not mentioned by the appeals court decision.
On a previous case, in which I was plaintiff, the same appeals court had decided that making available without proof of actual copying or performnace was not infringement, even though the making available included the illegal licensing of songs for money (PROFIT). This last fact, the licensing for profit was misteriously not mentioned by the appeals court decision.
Anyway, as it turned out our lawyers defended an infringement acusation instead of the appropiation of our hundreds of songs. A secong mistake was that we had ample proof (even radio recordings) that could have been presented as proof of actual performance but that proof was never presented by our lawyers.our lawyers. A big mistake we paid for dearly. Had we done that, sued for appropiation and presented the proof og actual performance on radio, we would have been paid damages for sure. Defendants were also Latin American Music.
Incredibly a RIAA lawyer, Richard L. Gabriel, has on August 29, 2007, just claimed in a letter to the Judge in Electra Entertainment Group et al. v Baker that (in a letter posted at Recording Industry vs The People) that the making available of songs by Latin American Music was not infringement because the alleged violation was only the placing of songs in a list (a son catalog) whereas the alleged p2p infrigers made avaialble for copying. He forgets to mention that in Latin American Music also registered many of the songs in their name at the Copyright Office (and that is not infringement per the courts, incredibly) and the making available was actual licensing for performance of somelse’s songs.
It seems that RIAA thinks that stealing songs and successfully licensing them for public performace is not as bad as unproven sharing of files. Hard to beleive.