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”.
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.
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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