p2pnet - rss feed: Judge nails RIAA ‘making available’ claim
p2pnet news | RIAA News:- The mainstream media have already completely missed one of the most important events so far in the ongoing, and always vicious, fight between Warner Music, EMI, Vivendi Universal and Sony BMG and their own customers, whom they’ve ignominiously labelled “criminals” and “thieves”.
Last week Dutch P2P expert Johan Pouwelse deconstructed RIAA ‘expert’ Doug Jacobson’s ‘expert’ testimony, calling it “borderline incompetent” and saying allegations of copyright infringement levelled at a 57-year-old New York home health aide were “unproven”.
It went virtually unmentioned.
Will they similarly also miss what’s quite possibly the most important development so far?
Connecticut district judge Janet Bond Arterton has thrown out the RIAA’s infamous “making available” claim which comprises the bottom line for all the Big 4 P2P file sharing cases.
‘Prove it!’ - she says in effect.
Under the claim, the RIAA tries to assert merely having a shared files folder that can be accessed is copyright infringement, a specious argument already explicitly dismissed by judge Marilyn Hall Patel in her Napster decision.
In Canada, justice Konrad von Finckenstein ruled, “No evidence was presented that the alleged infringers either distributed or authorised the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user(s) via a P2P service.”
Then a year later almost to the day, New York social worker Tenise Barker came under attack with the RIAA arguing that simply making a file available in and of itself constitutes a copyright infringement.
“Were the courts to accept this misguided view of copyright law, it could mean that anyone who has had a shared files folder, even for a moment, that contained copyrighted files in it, would be guilty of copyright infringement, even though the copies in the folder were legally obtained, and even though no illegal copies had ever been made of them,” Ray Beckerman, one of the attorneys representing Barker, told p2pnet.
Matt Foster, a lawyer with Indiana Legal Services, unearthed this latest case, says Beckerman in Recording Industry vs The People.
In Atlantic v Brennan, in a 9-page opinion (pdf), district judge Janet Bond Arterton ruled the RIAA has to to prove “actual distribution of copies” and can’t rely on the mere fact there are song files on the defendant’s computer, and that they were “available”.
“This is the same issue that’s been the subject of extensive briefing in two contested cases in Elektra v. Barker and Warner v. Cassin,” says Beckerman.
Arterton also held the defendant —- who wasn’t even present at the decision —- had other possible defenses, such as whether or not the RIAA’s efforts to claim $750 for each allegedly infringed song is unconstitutional, and possible copyright misuse flowing from the record companies’ anticompetitive behavior.
Definitely stay tuned for this one.
Also See:
borderline incompetent - Johan Pouwelse vs RIAA’s Doug Jacobson, February 21, 2008
No evidence was presented - RIAA’s latest file share claim, January 26, 2006
making a file available - The RIAA vs Tenise Barker, January 29, 2007
Recording Industry vs The People - Default judgment denied in Atlantic v. Brennan, RIAA complaint insufficient, possible defenses of copyright misuse, excessive damages, February 25, 2008
possible copyright misuse - RIAA comes a cropper, May 23, 2007
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February 25th, 2008 at 5:40 pm
If “making available” is to be considered illegal, then using the sharing feature on the microsoft zune media player is opening many microsoft customers up to lawsuit. Especially when the drm can be removed by many inexpensive or freeware means.
February 25th, 2008 at 7:32 pm
yeah but microsoft pays royalties to the RIAA. I believe I read somewhere about some artists refusing to play on the Zune. (I own one)
February 26th, 2008 at 5:57 am
If one person hands another a loaded gun and that other person kills someone with it, they have “made it available”, so both are equally liable.
What’s the difference here?
February 26th, 2008 at 6:31 am
Absolutely wrong. I wouldn’t even think both are liable in your horrible analogy, either.
February 26th, 2008 at 6:50 am
” If “making available” is to be considered illegal, then using the sharing feature on the microsoft zune media player is opening many microsoft customers up to lawsuit. Especially when the drm can be removed by many inexpensive or freeware means. ”
They get around that by crippling this feature.
The transferred songs auto-delete after 3 plays.
If they eliminated DRM restrictions this feature could have made
this very stiff competition for the Ipod.
The one corporation with enough capitol to stand up to the labels,
and it would rather kiss their butts.
Ironic bhavior from a Corporation that was built on infringement.
February 26th, 2008 at 8:02 am
Thinking about it, I think you might have a point there Fassbender. Hadn’t thought of it that way.
February 26th, 2008 at 2:51 pm
@ Fassbender,
First, what you’re describing is a criminal action, not a civil one.
Second, unless the person who handed the loaded gun to the murderer specifically told the murderer to kill so and so, then the person who supplied the weapon is not liable. Otherwise, all gun stores across the nation would be liable for making the guns available and murders result because of that making available.
Third, it’s against the law to hold someone else responsible for another’s actions, unless you can prove the person acting was forced, payed or otherwise compensated for their actions by someone else.
Just my two cents.
February 26th, 2008 at 3:21 pm
Zune got rid of the 3 day delete period with the latest update.
February 26th, 2008 at 3:34 pm
Fassbender: “If one person hands another a loaded gun and that other person kills someone with it, they have “made it available”, so both are equally liable.
What’s the difference here?”
If I hand someone a loaded gun and they shoot me with it, did I just commit suicide?
February 26th, 2008 at 6:51 pm
sigh!!!
Fassbender Says:
What’s the difference here?
the difference is not that they made the gun available, but they actually supplied it for the purpose of maiming… the music ruling is only in regards to making it available for copy, not the actual copying - which is the illegal part of the equation.
February 27th, 2008 at 12:50 am
Tron rules on this one.
February 27th, 2008 at 4:55 am
Well, my 2 cents is that the RIAA should implement a different strategy to remedy file sharing in the same manner that gaming consoles have, such as the ps3 and 360. the fact that the blue ray disk has such a large file size makes it ineconomical to pirate due to reduced quality, need of blue ray burners/drives etc. for the software to actually run. The 360 on the other hand limits LiVE connectivity if it detects modification.
I know the analogy above uses technichal limitations to keep it’s userbase on track, but If the RIAA used something such as a subscription system, wherein people could pay to subscribe to their favorite artists similar to an RSS feed or bonus content (think HD music video’s) then there wouldnt be as much p2p of songs.
On topic, w00t for the judge!
February 28th, 2008 at 12:51 am
I’m glad to see this get shoved in their faces like this. I realize that piracy is out of control but they’re making people not even want to buy their products at all.