p2pnet - rss feed: Another bad day for the RIAA
p2pnet news | RIAA News:- It’s another bad day for the RIAA.
The case it and its masters, Vivendi Universal, EMI, Warner Music and Sony BMG, have been trying to build against a husband and wife accused of being illegal online distributors of copyrighted digital music has taken another nasty turn —- for Vivendi Universal, EMI, Warner Music and Sony BMG and the RIAA.
RIAA lawyer Ira Schwartz had tried to argue MP3s made from legally bought CDs and stored on Pamela and Jeffery Howell’s PC were “unauthorized copies” of copyrighted recordings.
“I couldn’t believe it when I read that,” said Recording Industry vs The People’s Ray Beckerman.
“The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation.”
In a case centering on New York social worker Tenise Barker, Connecticut district judge Janet Bond Arterton threw out out the RIAA’s infamous ‘making available claim which, “comprises the bottom line for all the Big 4 P2P file sharing cases,” p2pnet posted in February.
“Prove it!” - she said in effect.
This time around, the RIAA was demanding a summary judgement against the Howells, claiming they’d infringed Big 4 copyrights.
But, “Prove it,” said judge Neil V. Wake, in effect.
As Beckerman puts it, “the judge has totally eviscerated the RIAA’s theories of ‘making available’ and ‘offering to distribute’.”
In a court document, “the record in this case does not conclusively indicate that Howell was responsible for making the 12 downloaded recordings publicly available,” he ruled, going on >>>
A reasonable trier of fact could conclude that it was Howell who placed the copyrighted files into his shared file folder; Howell admitted that he downloaded KaZaA onto the
computer, that he created the KaZaA user account through which the files were made available to the public, and that he authorized sharing other types of files. On the other hand, Howell has sworn that he did not place the copyrighted sound recordings in the shared folder, has testified that other users of the computer could be responsible, and has identified evidence purportedly showing that the Kazaa program was, without his authorization, making files not in the shared folder available for download. Viewing all the evidence in the light most favorable to Howell, there exists a disputed issue of fact regarding Howell’s responsibility for sharing the files. Accordingly, the recording companies’ motion for summary judgment is also denied with respect to the 12 copies downloaded by MediaSentry.
The recording companies motion for summary judgment also fails because they have not proved that a KaZaA user who places a copyrighted work into the shared folder distributes a copy of that work when a third-party downloads it. Under their theory, a KaZaA user transfers a copy of the work to a third party and is therefore liable as a primary infringer of the distribution right. However, in the KaZaA system the owner of the shared folder does not necessarily ever make or distribute an unauthorized copy of the work. The owner certainly does not distribute the copy that resides in the shared folder, for that copy never leaves its location on the owner’s hard drive. Rather, a copy of the copy in the shared folder is made.
The EFF (Electronic Frontier Foundation ) added its voice, “to those speaking out against the RIAA’s efforts to tar and feather” the Howells, said p2pnet in March, going on:
“Instead of proving the Howells actually distributed music files, the RIAA claims only that they had songs in the Kazaa ’shared’ folder of peer-to-peer file-sharing software Kazaa, “without any proof that anyone other than their own investigators actually downloaded the songs from them,” said the EFF.
“If the RIAA wants to keep bringing these suits and collecting big settlements, then they have to follow the law and prove their case,” said senior EFF lawyer Fred von Lohmann, adding:
“It’s not enough to say the law could have been broken. The RIAA must prove it actually was broken.”
Says Beckerman of this latest ruling >>>
The 17-page decision:
- rejected the RIAA’s “making available” theory (in agreement with Atlantic v. Brennan, Elektra v Brennan, and London-Sire v Doe 1), noting that “Unless a copy of the work changes hands in one of the designated ways, a “distribution” under [sec.] 106(3) has not taken place”;
- rejected the “offer to distribute” theory suggested to the RIAA by Judge Karas in Elektra v Barker; -rejected the RIAA’s theory, accepted by Judge Karas, that “distribution” and “publication” are simply synonyms under the Copyright Act (in agreement with London-Sire v. Doe 1 and disagreement with Elektra v Barker);
- held the RIAA’s evidence inconclusive as to whether the defendant was the person who actually put the files in a ’shared files folder’; and -held the RIAA’s evidence inconclusive as to whether the defendant could be held liable under a “secondary liability” theory.
This is the Arizona case in which:
(a) the Court initially ruled in the RIAA’s favor,
(b) after receiving a “reconsideration” motion from the self-represented defendant, the Court recalled and vacated its earlier decision,
(c) the Court asked for supplemental briefs, responding to - among other things - the question of whether Mr. Howell’s mp3 files, copied from his cd’s, were “unlawful”, and the RIAA responded “yes”,
(d) the Electronic Frontier Foundation filed an amicus curiae brief on Mr. Howell’s behalf, and
(e) Fred Von Lohmann of the EFF participated in the oral argument.
Stay tuned.
.
.Stumble It!
p2pnet - Judge nails RIAA ‘making available claim, February 25th, 2008
p2pnet - EFF wades in on RIAA Howell case, March 4, 2008
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April 29th, 2008 at 12:47 pm
I hope Cary likes the taste of the humble pie he just got served.
I wonder if Mr Gabriel will fly out of his hideout in Denver to make another face saving appeal ?
April 29th, 2008 at 1:12 pm
Vivendi Universal: The original instigator of the illegal and unconstitutional extorsion campain agaisnt the people.
Sony BMG: Enthusiatic supporters.
EMI: Ok with the plot.
Time/Warner: Food draging but went along with it.
All of them are guilty or corrupting governements, judges and cops.
So now there is two possibilities:
1) Justice is done, all the executives and participant to these crimes in the major labels and of course at the RIAA go to jail, and pay heavy fines and some of or all of their properties is repossessed in order to compensate the victims.
Or
2). . . . !!!
April 29th, 2008 at 5:31 pm
How is the RIAA even still suing people when the only “evidence” they have against them is gathered by Media Sentry who have been ruled an unlicensed private investigator? Shouldn’t anything they recorded be excluded and the case dismissed for lack of evidence?
April 29th, 2008 at 5:40 pm
“RIAA lawyer Ira Schwartz had tried to argue MP3s made from legally bought CDs and stored on Pamela and Jeffery Howell’s PC were “unauthorized copies” of copyrighted recordings.”
Hang on a minute! Jon, help me out here - I’m sure I saw a quote on these very pages that some RIAA rep had just *recently* said that making these personal copies was ok? Now they’re deciding it’s not ok?! WTF?
They must think that the whole legal system is run by morons that they keep making this extortion racket ever more obvious. It’s not run by morons and it’s not totally corrupt, either. No wonder their cases don’t fly as often and with each passing day, official resistance, like we see here, from the courts grows stronger.
Keep on reporting, Jon. Every little bit adds to the pressure against these c*nts.
April 29th, 2008 at 5:41 pm
@Rekrul
Duh, exactly.
April 29th, 2008 at 7:56 pm
“I hope Cary likes the taste of the humble pie he just got served.”
It can’t taste much worse than the bullshit he’s been spewing his whole life.
Now that the courts are finally sticking up for the rights of the consumers, and exposing the shady tactics gathered by the cartel’s “legal team”, it’s just a matter of time before they all jump ship. I really hope Jammie Thomas appeals her case soon. As soon as she wins, the parasites won’t have a leg to stand on.
April 30th, 2008 at 7:40 am
Would putting a few RIAA/KGB executives on the “Wrong side of the lawn” convince them to back off?
April 30th, 2008 at 1:09 pm
[quote]The owner certainly does not distribute the copy that resides in the shared folder, for that copy never leaves its location on the owner’s hard drive. Rather, a copy of the copy in the shared folder is made.[/quote]
Not only is the above true … BUT … the resultant file downloaded by Media Sentry was not “In its entirety” downloaded from Mr. Howell.
The P2P program in question downloads files from many different places at the same time and Mr. Howell never really downloads a whole copy of that file unless he is the only seeder that the downloader uses.
April 30th, 2008 at 2:30 pm
“Another bad day for the RIAA”
I love headlines like these.
April 30th, 2008 at 2:41 pm
Well everybody and his mothers had copy VHS or audio cassette in the past.
Everybody, share those copy for their own enjoyement. It is stricly illegal to make money with copy, but everybody can copy and share it without doing money with it.
Copyright, is made for the right to do money with a copy.
So, what the hell are they doing?
Johnny Hughes got it right, a file download, is not the copy of a copy. Its a lot of bit and bites from different source to make a new source.
Here is my take:
People should sue the RIAA because :
Eletricity in my house, is my property and I can do what I want with my paid eletricity.
Bandwith is a form of electricity on which I put 1 and 0 (digital information) on it. I share those 1 and 0 to people, because I am not greedy, and it’s my bandwith, my computer, my modem and I pay for all that.
Taking any media, audio or video and digitalize it, transform the material purchased in something different, something new that is represent with 1 and 0. Those representations are different from which one to the other, you can compress the data with different option and parameters. Each program get mathematical algorithm to create the digital files.
So, the digital files is not “the object of the copyright”.
So, the RIAA are abusing my private property on spying my activities.
The RIAA are abusing my right to uses different technology (electricity, bandwith, digitalizer, my computer) that I had pay for, so the right to use my property.
The RIAA chargin 27000$ for a song, when the market ask not even 1$ for a digital song can be compare to a thug that want to sell something of disproportionate value. In that regard, the RIAA abuse the citizen about something that worth 1$, in asking 27000x it’s value. (extortion)
The big problem of the RIAA is not file sharing, it’s the price they ask for their media. A media they create at a cost of half a dollard, is sold 20$ for music and 50$ for movie. Those prices are ridiculously high. So, people boycott them with technology. If The RIAA or their founders, just tried to sell those “song” on the digital market, they would had a better share of the consummer money than trying to bullying them, extorted them, castrate them.
If you hate your consummer, your consummer hate you.
FUCK YOU RIAA.
May 1st, 2008 at 5:17 am
“The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright.”
That the way it has always been, since magnetic tape was invented.
But a problem remains in that DVD show a warning that says that personal copies are illegal and can lead to a 5 year jail sentence (which I suspect has never happened).
this is rather confusing. Can someone please make clear what the rules were (when everyone copied into cassettes) and what the rules are (when everyone copies to blank cd and dvd disks)?
May 1st, 2008 at 6:37 am
The world is a VERY big wheel and its just come full circle on these parasites the infamous R.I.A.Assholes
May 1st, 2008 at 6:42 am
“personal copies are illegal[…]”
this is because of the DMCA with it’s provision about copyprotection. It’s not the personal copy that is flat out illegal, it’s the circumventing of the same.
If you have a DVD without copyprotection (good luck to find one, even the stupid Content scrambling system (CSS) which seems to be on even the lamest DVD is “copyprotection” in view of DMCA) you can make that fair use copy like you could in that days before DMCA and “copyprotection” with compact cassettes for example
May 1st, 2008 at 6:44 am
Stop these parasites not do not buy music simply listen to the radio do not go to cinemas do not hire dvds watch tv instead which in turn will stop the cashflow and stop the parasites in there tracks
May 1st, 2008 at 11:45 pm
“this is rather confusing. Can someone please make clear what the rules were (when everyone copied into cassettes) and what the rules are (when everyone copies to blank cd and dvd disks)?”
Courts don’t really like to come out and say “This is legal”. They usually duck the issue by saying that it’s not illegal and leave it at that. For example, the content industry and others have asked judges to rule on the act of “librarying”, which is building a library of recorded content. To date, no judge has ruled one way or the other. None of them want to make enemies out of either side, so it remains a grey area.
“The world is a VERY big wheel and its just come full circle on these parasites the infamous R.I.A.Assholes”
You’ve inspired me to come up with a proper definition for RIAA; Really Ignorant Arrogant A**holes.
“If you have a DVD without copyprotection (good luck to find one, even the stupid Content scrambling system (CSS)”
The cheap ones you find in dollar stores don’t seem to have any protection on them.
May 2nd, 2008 at 1:37 pm
“this is because of the DMCA with it’s provision about copyprotection. It’s not the personal copy that is flat out illegal, it’s the of the same.”
What if if a pc user has no idea what the word “circumventing” or “copyright” or “infringement” means? All the jails together are not big enough to imprision these.
And by the way, no two lawyers will aver agree on what “circumventing” or “copyright” or “infringement” means. The meaning depends on who pays the lawyer.
May 2nd, 2008 at 9:42 pm
Bottom Line:
We need a reapprasial of copyright laws in their entirety. These laws were originally created to “protect” writers and artists. (Read: grant them a socialistic welfare right at the expense of the greater society.) This is at odds to what society should be about. Writers should write and artists should create because that is what they NEED to do. Nobody “Owes” them a guaranteed living. Why is it that the greats of history, Sophicles, Shakesphere, et al managed to survive without copyright? I am not being “anti-writer” or anti-artist; I am both myself. But I am one because I cannot imagine doing anything else, not because I have an expectation of residuals, royalties or any other such sinicures. People who do are little better than parasites. And that is exactly what has happened. An entire industry of bloodsuckers have fastened themselves to the money generated by truely creative people. All of this has been made possible by the copyright. It is time to bring the whole stinking edifice down. Creative people will continue to create. We don’t have a choice. It is what we do. I would rather rely on my efforts, paid up front than the unearned welfare that Copyright creates. Disagree if you wish. But I contend that copyright has done far more harm than good to the essence of creativity.