p2pnet news view | RIAA News:- In a milestone case centering on the RIAA’s contentious ‘making available’ claim, “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’,” p2pnet posted yesterday.

The case involves New York nursing student Tenise Barke, a personable, extremely pleasant and very unassuming young lady who’s as unlikely of being a “massive online distributor of copyrighted music” as Rae-Jay Schwartz (right), a New York mother accused by the RIAA of the same thing.

But alleged file-sharing “criminal” Schwartz is bound to a wheelchair by multiple sclerosis, the awful, incurable disease of the central nervous system.

The RIAA has made the lives of both women thoroughly miserable, but it has yet to successfully sue anyone.

Of the approximately 30,000 men, women and children who’ve received subpoenas, only one person —- First nations mother Jammie Thomas —- has actually appeared before a civil jury.

She was found guilty but the trial was a farce, the verdict is seriously open to doubt and, when the case is re-visited, the results will very probably be thrown out.

“Thomas has said that her appeal to the 8th Circuit will center on whether or not ‘making available’ copyrighted works – on the theory that they could have been downloaded – should be unlawful even if there’s no evidence any transfers took place,” says CNET News‘ Declan McCullagh.

Nor has the RIAA come anywhere near sustaining, let alone proving, its claims that files shared equal sales lost.

‘Making available’ and ‘authorization’

“Connecticut district judge Janet Bond Arterton recently threw out the ‘making available’ claim in Atlantic v Brennan,” said p2pnet recently.

Under it, the RIAA tries to make out if someone has music in file accessible to someone else online, it’s exactly the same as distributing it. And it doesn’t even matter if the files concerned were legally bought and paid for.

In Atlantic v Brennan, Arterton 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”.

In the Barker case, Karas also 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”.

McCullagh sums things up like this >>>

A federal judge in New York has dealt the Recording Industry Association of America a setback in its thousands of lawsuits over piracy on peer-to-peer networks.

In a widely anticipated decision, U.S. District Judge Kenneth Karas ruled Monday to reject the RIAA’s claim that a Kazaa user who merely “made available” copyrighted music necessarily violated the law. Rather, he said, the RIAA would have to demonstrate that unlawful copying actually took place.

“Plaintiffs’ allegations–insofar as plaintiffs wish to hold defendant liable for acts of infringement other than actual downloading and/or distribution–fail to state a claim,” Karas wrote.

This is not necessarily fatal to the RIAA’s lawsuit against Tenise Barker (referred to as Denise Barker in some court documents) that will continue in the Southern District of New York. That’s because the music labels also have alleged that she actually did distribute copyrighted works – meaning that if they can prove that happened, which is more difficult, they can still win.

But in an update, “While the judge rejected the RIAA attorneys’ ‘making available’ a argument, he did provide them with a road map showing a detour that might still allow them to arrive at their destination,” says the story, continuing:

“Specifically, he ruled that an ‘offer to distribute’ can amount to a distribution. The RIAA needs to, he wrote, ‘affirmatively plead that defendant made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display.’ Look for the RIAA’s revised complaint–it has 30 days to resubmit it–to argue just that.”

p2pnet said of the Barker case, she >>>

… made a simple motion to dismiss the complaint, saying it [the RIAA] 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 [Recording Industry versus The People's Ray] 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 ….

The battle was lost before it started

‘Curing’ the pleading is a very long way from winning the case and the RIAA must also overcome a number of other very serious problems, such as investigations into MediaSentry, the RIAA’s own investigator, and Doug Jacobson, the RIAA’s inexpert ‘expert’.

In the meanwhile, even though the lives of 30,000 or so former Big 4 customers have been seriously disrupted, to put the ongoing victimisations into their best possible light, hundreds of millions of people around the world continue to totally ignore Big 4 product being peddled by the likes of Apple’s iTunes, instead utilising the free P2P networks and online sites run by independent musicians and entrepreneurs.

File sharing and P2P are here to stay and the RIAA and Warner Music, EMI, Vivendi Universal and Sony BMG might best be described as chickens with their heads cut off, flopping aimlessly in the dust, dead on their feet but not knowing it.

Eventually, however, decapitated chickens stop running about.

The labels can survive, but to do so, they’ll have to radically revise their business models to open their catalogues, reduce wholesale prices and accept their customers as reasonable people who’ll behave reasonably if they’re treated with respect instead of being accused of being criminals out to rob the labels blind.

They’ll also have to learn how to operate honestly and openly.

Not too long ago, everything in the garden was rosy for Warner Music, EMI, Vivendi Universal and Sony BMG and their RIAA (Recording Industry Association of America) as they ploughed ahead with their bizarre sue ‘em all marketing campaign.

The mainstream media were repeating their every utterance just as though it was gospel from reputable and reliable sources. And thanks, largely, to the corporate press, the Big 4 had succeeded in a snow/blow job which had the general population believing thousands of “thieves” (as the Big 4 call their own customers) across America had been successfully sued for the heinous crime of sharing music with each other.

But things have changed.

Now the RIAA must cope with citizen journalists who don’t depend on corporate largess to survive,  who can tell the difference between bullshit and reality, and who believe truth, not lies, is the currency of the 21st digital century.

Jon Newton – p2pnet

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This entry was posted on Wednesday, April 2nd, 2008 at 10:39 am and is filed under RIAA News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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