p2pnet news MPAA | RIAA News:- New York judge Kenneth Karas opened the door a little wider for Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA in its continuing efforts to sue Big 4 customers into being becoming compliant consumers of corporate ‘product’.
The Big 4 are making their usual claim that Tenise Barker (right), a young former social worker living in New York’s the Bronx, is a massive online distributor of Big 4 copyrighted tunes.
On first blush, there’s nothing particularly different or unusual about it the case.
But it set loud alarm bells clanging in Hollywood and elsewhere, said p2pnet in 2006, going on >>>
The RIAA (Recording Industry Association of America), in its blind obsession with profit, has allowed greed to get in the way of intelligence, provoking a massive confrontation involving Hollywood and its MPAA, the American Association of Publishers and the George W. Bush administration in the shape of America’s self-described Top Cop, attorney general Alberto Gonzales, all of whom are lining up against not only Barker and all the other RIAA victims out there, but against the Electronic Frontier Foundation and the trade associations which represent most of the giants of the internet and computer industries, says Beckerman.
How did it come about?
Barker made a simple motion to dismiss the complaint, saying it didn’t give her adequate notice of the infringement she’s accused of.
In response, the RIAA —- getting her name wrong in its original complaint —- 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 Beckerman, ie, “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, the Computer & Communications Industry Association and the US Internet Industry Association realized 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.
“A win for the RIAA would have painful and significant repercussions for vested interests elsewhere in the world,” said our story, continuing, “It was also abundantly clear that by herself, Tenise Barker doesn’t have the financial resources to protect the Net or to wage what would amount to a full scale, single-handed war against the rapacious corporate music industry.”
Shortly after, the MPAA filed an amicus brief supporting the RIAA’s argument, the American Association of Publishers requested permission to file a similar brief, and the United States Department of Justice wrote to the Court indicating the possibility of filing a “Statement of Interest”.
All to collect about $6,000 from a young woman who’s now a nursing student ….
“Making available” and “authorization”
Connecticut district judge Janet Bond Arterton recently threw out the ‘making available’ in Atlantic v Brennan.
She ruled the RIAA had to to prove “actual distribution of copies” and couldn’t merely rely on the fact there were song files on the defendant’s computer, and that they were “available”.
Karas rejected the RIAA’s “making available” and “authorization” theories, but “sustained the sufficiency of the allegations of ‘downloading’ and ‘distributing’, and gave the RIAA an opportunity to cure its defective pleading,” says Beckerman.
The ruling “represents the most extensive and serious treatment” of the issue, Ars Technica has the EFF’s Fred von Lohmann saying.
The post continues >>>
In his decision, Judge Karas focused on the “publication” right enumerated in the Copyright Act. “However, while the statute does not define ‘distribute’ or ‘distribution,’ it does define the term ‘publication,’” wrote the judge in his decision. “The question before the Court, therefore, is whether the Court should look to the definition of the word ‘publication’ to construe the meaning of the term ‘distribute’ in Section 106(3) of the Copyright Act.”
His conclusion is that Congress considered the two terms to be synonymous when it enacted the Copyright Act. “Although Plaintiffs have not adequately alleged that Defendant ‘offer[ed] to distribute [Plaintiffs' copyrighted works]… for the purposes of further distribution,’ Defendant’s Motion still fails because Plaintiffs have adequately alleged that, in addition to making Plaintiffs’ works available, Defendant distributed Plaintiffs’ copyrighted works.”
So even if the RIAA can’t argue that making music in a shared P2P folder available is distribution, it does mean that the labels can allege that dropping songs into a KaZaA share is making an offer to distribute.
Von Lohmann called the decision well-reasoned, but unfortunate. “I understand how the court went wrong and the unfortunate result,” he told Ars. “And he admits that his decision is not without disagreement; he understands the contours of the issue. But clearly, he really engaged the subject and read all of the law.”
Definitely stay tuned.
Jon Newton – p2pnet
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