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Arizona Judge Shoots Down RIAA Theories

kdawson posted more than 6 years ago | from the schmaking-available dept.

The Courts 204

NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded 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.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"

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Heh.. (0, Troll)

Lunix Nutcase (1092239) | more than 6 years ago | (#23244596)

This post is brought to you by Hans Reiser's shredded anus, which is by now no doubt being passed around the jail house like a pack of smokes. His poor anus probably now resembles a pastrami sandwich that fell apart. I wonder if he'll describe that experience in the passive voice...

What is thie score now? (1)

Archangel Michael (180766) | more than 6 years ago | (#23244642)

RIAA 1, Everyone else 35920?

They did win one, didn't they?

Re:What is thie score now? (1)

Kjella (173770) | more than 6 years ago | (#23244708)

They won plenty, all the people that paid up and didn't try to take it to court. And yes, they did win one for 220,000$ of those too. You'll be hearing about these cases for many years to come...

Re:What is thie score now? (1)

Technician (215283) | more than 6 years ago | (#23246462)

They did win one, didn't they?

The won the battle but are losing the battle because of it. They couldn't have done anything better to get a bad PR problem.

It reminds me of the effect it had on Japan when they won Pearl Harbor in WWII. Right after they won the battle, they realised they woke the sleeping giant.

Maybe they shouldn't triffle in the affairs of dragons as thou are tasty and crunchy when well done. Write this win up as an oops...

Re:What is thie score now? (2, Insightful)

LithiumX (717017) | more than 6 years ago | (#23246692)

They won quite a few. It's that very success that woke people up to the reality of what this group was doing.

On a side note, my wife took a look at the ruling I was reading and asked how I could understand any of that. My reply that judicial rulings are usually a far easier read than affidavits and motions got me thinking...

Has anyone else noticed, on their end, that actually reading through court documents on the web has given them a firmer grasp of legal terms and syntax than they had before? For instance, I still only have a layman's understanding of law, but what used to look like meaningless legal mumbo-jumbo is starting to look more and more like verbose (but logical) legal whitepapers and RFC's.

Well, -usually- logical. (*cough*SCO*cough)
br. Either way, do you think that the increasing availability of court papers results in at least some increase in legal literacy?

Re:What is thie score now? (1)

rakzor (1198165) | more than 6 years ago | (#23246766)

That's OVER 9000!

Judge shoots down RIAA (0)

flaming error (1041742) | more than 6 years ago | (#23244738)

The RIAA should have known better. In Arizona, you don't mess around. Everybody's packin' iron.

Re:Judge shoots down RIAA (3, Funny)

mpoulton (689851) | more than 6 years ago | (#23245046)

CCW FTW!

Re:Judge shoots down RIAA (1)

MBGMorden (803437) | more than 6 years ago | (#23246466)

Actually I'm pretty sure Arizona is an open carry state. You don't even need to conceal it (and you don't need a permit or anything if you go open instead of concealed). Just strap your six shooter on your hip and you're good to go ;).

Unfortunately this probably won't end here (4, Insightful)

NonSequor (230139) | more than 6 years ago | (#23244752)

This decision only means that the law currently on the books can't be interpreted in the way the RIAA wants.

However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.

Re:Unfortunately this probably won't end here (5, Insightful)

91degrees (207121) | more than 6 years ago | (#23244964)

Yes, but there are anti-RIAA forces that are a lot more organised than they were in pre-DMCA days. I don't think many people on Slashdot really cared about copyright laws until the MPAA sued over DeCSS. These days, the EFF has quite substantial support, politicians realise that there are actually quite a lot of people who think current levels of copyright are too strong, and we're actually pretty organised (albeit in an ad-hoc chaotic way).

Re:Unfortunately this probably won't end here (1, Insightful)

Anonymous Coward | more than 6 years ago | (#23246442)

So the kicker to get it to end here?

And I quote: "we're actually pretty organized (albeit in an ad-hoc chaotic way)"

This quote sums it up perfectly for the first amendment! We have the freedom to gather peacefully. This is an unalienable right. As such, to target the groups with lawsuits, and criminal proceedings should be looked at as an attempt by these organizations to circumvent the government. Alas, I say, the actions of the RIAA, and MPAA amount to nothing more than terrorism.

For my justification, I will point out, in the patriot act, that hacking is terrorism when its use is to somehow alter a political situation. Thus, it can be seen that those who have been targeted are in the same category as any other victim of terrorism. Time then, that we wake up, and defeat this enemy of freedom, this subverter of America? I'm as serious as the AIDS epidemic. Try me.

I'd say the opposite is true (1)

Infonaut (96956) | more than 6 years ago | (#23245254)

However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.

The RIAA has been going after consumers for many years now, and they've been almost completely unsuccessful in their efforts. They've also been pushing for years to get Congress to let the RIAA call the shots on P2P, again without success.

Big Media has been successful in getting copyright's duration extended to infinity and beyond, but they have not been able to get Congress to go nearly as far beyond that as they'd like.

Basically Congress has said it's fine for the RIAA to go after consumers, but as soon as they start making life difficult for Internet content providers, they're not going to side with the RIAA. It's obvious that the music industry is the past and the Internet industry is the present, and Congress knows this.

Re:Unfortunately this probably won't end here (2, Insightful)

Anonymous Coward | more than 6 years ago | (#23245750)

it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.
That would completely shut down the internet (not to mention appearance in public of everything which is copyrighted -- better not drive a car, or read a book on a subway train) as all files are copyrighted and all files are "made available" for everything which exists on the internet. It would instantly create trillions and trillions and trillions of dollars of liability. And 13 year old downloaders will become part of tens of millions of copyright trolls collecting 6 figure sums against groups like the RIAA. It would be a total legal systemic meltdown. Hooray, the copyright abolitionists win!

If you can access and see the file anywhere on the internet (either legally or illegally) you can make that file "available" merely by being connected to the internet through no fault of your own. And businesses would definitely be infected with viruses and worms that made files "available".

But I guess it would also be nice to see businesses sued for $150,000 per identity stolen from lost laptops making data "available".

I have to say... (1)

Raineer (1002750) | more than 6 years ago | (#23244786)

I am impressed by the judge. It is nice to see a case where the defendant was not at the mercy of expensive lawyers, and the judge actually took a look at the case law before making a decision.

It is crazy to assume a wrongdoing when no transaction has taken place. Alcohol stores are not fined when minors fail to buy alcohol, a transaction has to take place for the offense to be actionable. Good show.

Re:I have to say... (2)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23244860)

I am impressed by the judge. It is nice to see a case where the defendant was not at the mercy of expensive lawyers, and the judge actually took a look at the case law before making a decision.
Me too. This was a good day for the rule of law.

Re:I have to say... (1)

oahazmatt (868057) | more than 6 years ago | (#23244926)

I am impressed by the judge. It is nice to see a case where the defendant was not at the mercy of expensive lawyers, and the judge actually took a look at the case law before making a decision.
Me too. This was a good day for the rule of law.
If the defendant is found to be innocent does the Judge's decision today set a decent precedent?

Re:I have to say... (5, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23245230)

If the defendant is found to be innocent does the Judge's decision today set a decent precedent?
Today's decision is an important precedent no matter what happens at the trial. It is the clearest and most comprehensive decision to date on the RIAA's campaign to enlarge the 17 USC 106(3) distribution right. This decision, unlike Judge Karas's decision [blogspot.com] in Barker [blogspot.com] , is mainstream. It takes the statute, the caselaw, and the legal scholarship, and brings it all home.

Re:I have to say... (1)

KillerBob (217953) | more than 6 years ago | (#23245272)

Yes. Everything that happens in court can be seen as setting a precedent, even the cases where RIAA dropped out because it looked like they were going to lose. The difference is that this ruling, like several others that've been passed against them recently, is actually useful to reference in a case. :)

Re:I have to say... (0)

Anonymous Coward | more than 6 years ago | (#23245294)

No. District courts are trial courts and cannot set binding precedent.

A slew of cases that hold similarly though do influence appellate courts though, and those decisions do create binding law.

Innocence (technically a lack of liability) will have zero effect though because each case will be fact based. Much more important are legal issues, such as the one addressed here.

Re:I have to say... (1)

UnknowingFool (672806) | more than 6 years ago | (#23245384)

I think the conclusion says it all:

The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights. Even so, it is not the position of this court to respond to new technological innovations by expanding the protections received by copyright holders beyond those found in the Copyright Act.

Re:I have to say... (2, Insightful)

CodeBuster (516420) | more than 6 years ago | (#23246024)

It was not so much that a transaction had not taken place, but rather that the RIAA had failed to prove, in point of fact, that a transaction had actually taken place (i.e. it is not enough that the law could have been broken, it must be shown that it actually was broken). I thought that the following commentary from senior EFF lawyer Fred von Lohmann was especially informative:

"If the RIAA wants to keep bringing these suits and collecting big settlements, then they have to follow the law and prove their case. It's not enough to say the law could have been broken. The RIAA must prove it actually was broken."

It has been said that "reason is the light of the law" and we certainly saw that light shine through today in this decision.

Re:I have to say... (1)

budgenator (254554) | more than 6 years ago | (#23246534)

That's what always bothered me, I could place 4 MB of random noise into a file and name it as if it were a copyrighted RIAA work and I'd get a letter. Now at least their toadies have to actually down load the file made "available" and then would have to comfirm it's what the title of the file purports it to be. Magic 8 ball says a lot of decoy file are going to appear on P2P networks now!

He got by with a little help from his friends... (1)

Steve1952 (651150) | more than 6 years ago | (#23244800)

I guess that you could say that "he got by with a little help from his friends".

Beatles, Sgt. Peppers lonely heart's club band, 1967

Re:He got by with a little help from his friends.. (1)

zegota (1105649) | more than 6 years ago | (#23244896)

That Billy Shears was a rockin' dude.

Re:He got by with a little help from his friends.. (3, Funny)

amccaf1 (813772) | more than 6 years ago | (#23245082)

I guess that you could say that "he got by with a little help from his friends".

That Billy Shears was a rockin' dude.


What would you do,
If the labels said they'd sue,
Would you freak out and pay them their fee?

Send me a judge,
And he'll interpret the law,
And he won't put you under lock and key.

Re:He got by with a little help from his friends.. (2, Insightful)

jd (1658) | more than 6 years ago | (#23245866)

Needs to be lock'n'key, or there are too many syllables in the last line.

Re:He got by with a little help from his friends.. (0)

Anonymous Coward | more than 6 years ago | (#23246330)

Uh, I agree that it would sound better, but the number of syllables is the same:

lock|and|key (3)
lock|n|key (3)

In the second instance, the most common pronunciation would probably render "lock'n" phonetically the same as "locken", which is a double-syllable phonism whereas "lock-and" is two single-syllable words. Therefore the syllable count remains the same (3) in either case.

-AC

I'm glad this guy got appointed..... (1)

john_anderson_ii (786633) | more than 6 years ago | (#23244884)

for the Arizona district. As an Arizonan I wish he were an elected official so that we could keep him on that bench for a good long while. This is the second major issue Wake has weighed in on, and both have been good decisions that are good for Arizona. I hope he continues to do this.

Re:I'm glad this guy got appointed..... (1)

pilsner.urquell (734632) | more than 6 years ago | (#23245124)

Judge Wake is a good guy, he knows when a law is bad, when a law is good and when it is just marginal. He and Rep. Russell Pearce [mesa18.com] have worked together to enact some of the best laws we have here in Arizona.

Re:I'm glad this guy got appointed..... (1)

Bassman59 (519820) | more than 6 years ago | (#23245602)

Judge Wake is a good guy, he knows when a law is bad, when a law is good and when it is just marginal. He and Rep. Russell Pearce [mesa18.com] have worked together to enact some of the best laws we have here in Arizona.

"Pearce" and "good anything" is an oxymoron. and Pearce is a moron.

Re:I'm glad this guy got appointed..... (1)

Whatsthiswhatsthis (466781) | more than 6 years ago | (#23245468)

Judge Wake isn't going anywhere. He's an Article III judge (part of that Constitution thing)--meaning that he's got his bench for life.

Re:I'm glad this guy got appointed..... (1)

TheoMurpse (729043) | more than 6 years ago | (#23246020)

I wish he were an elected official so that we could keep him on that bench for a good long while
Federal judges are appointed for life. The only ways he'd leave the bench are if (1) he were impeached (I doubt Arizonians would want to keep him if this were the case), (2) he moved up to a higher court (elections wouldn't prevent this from happening), or (3) he retired (elections wouldn't prevent this from happening).

The reason... (3, Informative)

Skeet112 (1088203) | more than 6 years ago | (#23244898)

The main reason you don't hear about the RIAA winning any case is because.....

They don't.

They use their Gestapo mindset and frivolous law-suit threats until the person they are harassing into submission, and finally settle out of court. The one's you actually hear about are the ones that go to court, and those tend to be in the defendant's favor... (Aside from the legal fees that you'd have to pay.)

Fair use laws, wherefore art thou? (1)

Grendel_Prime (178874) | more than 6 years ago | (#23244932)

Illegal MP3s copied from his CDs on his computer? Whatever happened to the whole concept of fair use? Granted the RIAA probably *always* hated the concept of fair use, but how can their whole court mafia get away with suggesting that fair-use on his computer (who wants to store all their CDs on their computers in WAV format???) is illegal? For reals, someone please come up with a good test case to bring this to the supreme court already!!!

Re:Fair use laws, wherefore art thou? (1)

CRCulver (715279) | more than 6 years ago | (#23244996)

who wants to store all their CDs on their computers in WAV format???

Few, but lossless is only becoming more popular as the cost of storage space goes down. I ripped my entire CD collection to my hard drive and encoded it in FLAC. I have digital audio-out, so I can connect my computer directly to my stereo and never have to take my CDs down from the shelf again.

Re:Fair use laws, wherefore art thou? (0)

Anonymous Coward | more than 6 years ago | (#23245234)

The RIAA suggested that the Diamond Rio MP3 player violated the AHRA, too -- even though they should have known better, and even though the AHRA had been sold as a law to prevent frivolous anti-technology lawsuits.

One of the things the judge pointed out (in ruling against the RIAA) was that copying music from a CD to a portable MP3 player (space-shifting) was paradigmic Fair Use: completely legal!

That's NOT a finding that offering MP3s to random strangers over the Net is legal -- but it does raise the question of how the RIAA could possibly claim that making MP3s from your own CDs is illegal, when they LOST previously, in part, on that very point!

Re:Fair use laws, wherefore art thou? (1)

bzipitidoo (647217) | more than 6 years ago | (#23246574)

I think there is one way in which this could actually be illegal: the mp3 encoding part. Technically, you're supposed to have bought a license from Fraunhofer to make an encoding in their patented format. It's okay to decode mp3, you just can't encode to mp3. But I haven't heard of Fraunhofer trying to enforce this on users. They restrain themselves to hitting up only those who make software or devices that can encode to mp3.

The problem is easily avoided by using an unencumbered format such as Ogg Vorbis or FLAC.

Re:Fair use laws, wherefore art thou? (1)

nsayer (86181) | more than 6 years ago | (#23246612)

Illegal MP3s copied from his CDs on his computer? Whatever happened to the whole concept of fair use?
Well, nothing, but you have a non-sequitur there. The law that grants you the ability to rip CDs is actually the AHRA - the grandfather of the DMCA. One of the few things it did that were good for consumers was make media-shifting explicitly legal.

Once again a court (2, Insightful)

geekoid (135745) | more than 6 years ago | (#23244940)

shows that distribution is the crime, not downloading.

Re:Once again a court (1)

tattood (855883) | more than 6 years ago | (#23245210)

Aren't those related? In order for one person to download music, someone else has to distribute it.

Re:Once again a court (1)

vux984 (928602) | more than 6 years ago | (#23245292)

Aren't those related? In order for one person to download music, someone else has to distribute it.

True but you have to charge the correct person. And when you charge someone with distribution, you have to well, prove, they did in fact distribute it.

Re:Once again a court (4, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23245334)

when you charge someone with distribution, you have to well, prove, they did in fact distribute it
Picky picky.

Re:Once again a court (4, Informative)

nixNscratches (957550) | more than 6 years ago | (#23245280)

Actually, Howell claims he never downloaded any music. According to his testimony, the music files on his PC were ripped from CDs he owns. He used KaZaa to download porn and free e-books which he gave KaZaa the right to "share". At the heart of his defense is the idea that KaZaa searched his hard drive for media that was never intended to be shared and made that available without his knowledge or consent.

Re:Once again a court (2, Insightful)

QuantumG (50515) | more than 6 years ago | (#23245352)

There's no "crime" involved, it's a civil matter.

Re:Once again a court (2, Informative)

mr_matticus (928346) | more than 6 years ago | (#23246228)

This case is a civil matter, yes. Distribution absolutely can be a crime, though. Atlantic had very little hope of proving their civil case here, so obviously they weren't even going to try for even harder-to-prove criminal charges.

Just like there's civil fraud and criminal fraud, there is both civil and criminal copyright infringement.

Re:Once again a court (1)

geekoid (135745) | more than 6 years ago | (#23246378)

No, distribution is also a crime now.

Haven't you been paying attention. To charge someone with a crime you will need actual evidence, so the RIAA seldom has a criminal case.

In fact, marshals will raid a company if the BSA asks.

Not evisceration, but a major blow (4, Insightful)

Todd Knarr (15451) | more than 6 years ago | (#23244976)

I don't think it eviscerates the RIAA's claims, but it's certainly a major blow to their theories. As I read it, the judge is saying that merely making them available isn't automatically infringement. This makes sense if you think of an analogy. If I put a book down on the table on my front porch while I go inside to get a drink, and someone comes along and takes it, I surely made it available but nobody in their right mind would claim I intended to distribute it to the thief. Compare that to the case where I put a whole bunch of books on a table out by the sidewalk with a sign "Free books, take as many as you want.". I suspect the judge here is ruling along similar lines: it's not sufficient for the RIAA to claim that the files were merely available, they have to claim the files were (reasonably) knowingly made available for the purposes of infringing distribution. OTOH, if the files were available to the public, but were put where they were for a non-infringing purpose and the defendant wouldn't reasonably (given their knowledge) expect the files to be open for the taking by anyone else, then the RIAA's claim fails. Which to me sounds reasonable, so seems more reasonable than either of the extreme positions take by the RIAA or the P2P advocates.

Re:Not evisceration, but a major blow (2, Insightful)

tattood (855883) | more than 6 years ago | (#23245354)

Regarding your analogy, that does not apply to P2P. When you load a P2P client on your computer, the 2 purposes of the software are to download software from other people running similar software, and to then upload those files to other people running the similar software. So essentially running P2P is like saying "Free music, take as many as you want". Can you give an example of "making music files available" without expecting them to be distributed?

Now, I have not RTF 17-page paper, so this may not be related to this case...

Re:Not evisceration, but a major blow (1)

Todd Knarr (15451) | more than 6 years ago | (#23245554)

Fairly easy: a typical consumer wants to share their own files between their own computers. KaZaa's publicized as an easy way to get and share files, so they have their local geek set them up with it. Said geek does, but doesn't disable external access and doesn't clue them in to all the technicalities. Consumer has no clue, since it's doing what he asked for it to do.

Analogous to the situation where I leave my books out on the porch table and the local kids keep coming in while I'm not there and stealing copies (imagine for a moment that it's as easy to copy a physical book as it is to copy a computer file). I never considered that, since I've got a locked gate. My friend who brought over the chairs and table didn't bother to tell me that he had to unlock the gate to get them in and never bothered locking it again afterwards, and since I don't use that gate I never thought to check it. And since making copies doesn't leave me wondering where my books are, I've no clue copies are going walkabout on me. I'm certainly making the books available, if I hadn't left them outside the kids couldn't have made their copies. But by the same token I'm hardly intending to distribute those copies. I own my copies, I've got them on the porch for my own use that's perfectly legitimate, and I've no reasonable expectation that people will be breaking into my yard.

Re:Not evisceration, but a major blow (0)

Anonymous Coward | more than 6 years ago | (#23245592)

So, only non-geeks can 'legally' use P2P? :(

Re:Not evisceration, but a major blow (1)

jd (1658) | more than 6 years ago | (#23246108)

Ok, a few ways:

  1. You have your music on a central server at a fixed location, and you want to have files copied opportunistically onto your laptop via a wireless connection, regardless of where you happen to be in the world. You've set up bittorrent to handle the transfers. You can't use tcpwrappers or something similar, as your laptop's IP address will frequently change, since it's opportunistic, you won't be watching to enter in any passwords, so you leave the bittorrent system on the server open but unadvertised and rely on obscurity.
  2. You have your music on a disk shared via a wide-area networked filesystem and again have a mobile laptop and want to do opportunistic copying. Much the same situation as above.
  3. You have the most secure setup in the world between the server and laptop, but you forgot to set your laptop's bittorrent client to not also act as a server.
  4. You are running an MP3 verification service. Your server has the original raw files, from which it generates MP3s at different compression levels, which it then generates cryptographic hashes and statistics for. Users can obtain, via bittorrent or some other P2P software, the data files and use them to examine any MP3 they get from their CD to see if the rip was successful and at the quality they want. However, your music is in the same directory as the data, so users can obtain the music as well. An easy thing to miss, but you've made all you music available via P2P, without any intent for anyone to copy it.

These aren't great examples, they're only intended to be good enough to give an idea that there could be cases where availability and intent are not the least bit the same.

Re:Not evisceration, but a major blow (1)

Gideon Fubar (833343) | more than 6 years ago | (#23246686)

I have a friend who promotes his own band solely online, and (as well as the regular Myspace and streaming audio from his page) he deliberately runs multiple filesharing clients, sharing only his own music. As an unsigned, self promoting artist who makes more money from live shows than album sales, that's his legal right.

While this has nothing to do with the lack of expectation to distribute (since that's actually what he's hoping for.. the extra promotion does help, or so he says) it seems that the common perception is that non-authorized music is inevitably the only stuff that is shared, and that's not the case.

tl;dr The RIAA don't make or own all the music in the world, and shouldn't litigate as if they do.

Re:Not evisceration, but a major blow (1)

CodeBuster (516420) | more than 6 years ago | (#23246102)

Compare that to the case where I put a whole bunch of books on a table out by the sidewalk with a sign "Free books, take as many as you want."
Even that would be legal according to the doctrine of first sale [wikipedia.org] . You have the right to dispose of your legally acquired legal copy (i.e. your property) as you wish, including giving it away. However, it would probably not be lawful if you ran off Xerox copies of the books and put the copies on the table with a "free books, take as many as you want" sign. Copyright law covers the right to make and distribute copies, but it does not control what you may or may not do with your legally acquired legal copy once it is in your possession.

Re:Not evisceration, but a major blow (1)

Whatsthiswhatsthis (466781) | more than 6 years ago | (#23246350)

But see moral rights [wikipedia.org] .

Re:Not evisceration, but a major blow (0)

Anonymous Coward | more than 6 years ago | (#23246782)

I wouldn't really care if the thief took it if it didn't deprive me of my copy.

Make the RIAA Download/Upload (3, Interesting)

monxrtr (1105563) | more than 6 years ago | (#23244980)


The War will be won if the RIAA is forced to download/upload to gather evidence, and really there is no evidence whatsoever from file titles; that could reasonably be personal commentary or a fair use parody. The defendant should not be *presumed* guilty, the RIAA should *prove* infringement. File titles are 0% evidence, not even 1% "circumstantial". We don't really know, since no song has ever been played in any Court (and that alone will be worth millions in PR for the cause).

Keep a sharp eye on those RIAA IP addresses.

Screenshots of white powder is 0% evidence of cocaine. Writing $100 is 0% evidence of counterfeiting a one hundred dollar bill. And britneyspearstoxic.mp3 is 0% evidence of copyright infringement.

And imo, those paid settlements are RICO violations for precisely the reason that the RIAA has been on a 0% evidence extortion witch hunt.

Re:Make the RIAA Download/Upload (1, Funny)

Anonymous Coward | more than 6 years ago | (#23245034)

And britneyspearstoxic.mp3 is 0% evidence of copyright infringement.

No, its just 100% evidence of bad taste.

Re:Make the RIAA Download/Upload (2, Funny)

s0litaire (1205168) | more than 6 years ago | (#23245042)

but britneyspearstoxic.mp3 is 100% evident of bad musical taste. :D:D that alone deserves a lawsuit or 2 ;) lol

Re:Make the RIAA Download/Upload (2, Insightful)

Enleth (947766) | more than 6 years ago | (#23245240)

That gave me an idea... What if someone recorded a few minutes of belching and farting, named it after some song RIAA seeks, clipped it to the lenght and packed with some white noise in the background so that the file size roughly matched and put it up on BT? You see, P2P clients publish a checksum of every file and every expert appointed by the court will admit that an MD5 or SHA checksum is a sufficient proof of the file spotted by RIAA being the same as the file promptly presented to the court by the defendant, with a claim of copyright over it as well (that is, if a few minutes of belching and farting can be deemed creative to be copyrighted at all). Wouldn't that show quite well, how baseless RIAA's "evidence" is?

Re:Make the RIAA Download/Upload (0)

Anonymous Coward | more than 6 years ago | (#23245604)

Good idea, but here's a nifty expansion on that - Put a message up that says "RIAA is not licensed to download these files, all others are given permission." - Then, because you have recorded your own composition (which is copyrightable), file a countersuit against the RIAA seeking statutory damages for violation of YOUR COPYRIGHT when they downloaded the file as a result of their "investigation."

Re:Make the RIAA Download/Upload (1)

Stanislav_J (947290) | more than 6 years ago | (#23245718)

What if someone recorded a few minutes of belching and farting, named it after some song RIAA seeks, clipped it to the lenght and packed with some white noise in the background so that the file size roughly matched and put it up on BT? You see, P2P clients publish a checksum of every file and every expert appointed by the court will admit that an MD5 or SHA checksum is a sufficient proof of the file spotted by RIAA being the same as the file promptly presented to the court by the defendant, with a claim of copyright over it as well (that is, if a few minutes of belching and farting can be deemed creative to be copyrighted at all). Wouldn't that show quite well, how baseless RIAA's "evidence" is?

At the very least, I'd like to be a fly on the wall when the file is played in court.....

Re:Make the RIAA Download/Upload (1)

IIH (33751) | more than 6 years ago | (#23246144)

Wouldn't that show quite well, how baseless RIAA's "evidence" is?

Possibly. But you'd first have to find someone who's willing to put that file up, *and* pay up to defend the case, *and* risk that a judge/jury would be convinced of the above. Any volenteers?

You have to consider, which would people think more likely - that someone created a belch/fart single, made it the same size and name of a popular song, and distributed it, *or* someone who was caught infringing copyright created a file to match its characteristics in order to get off on a technicality.

Or, in an more obscure idea, what's to stop a person making different belching/farting sound that matches the md5/sha/length/etc/etc of a popular track, non of which infringe individually, but if you combine them all, you can get the original infringing track back?

Re:Make the RIAA Download/Upload (1)

Enleth (947766) | more than 6 years ago | (#23246360)

You have to consider, which would people think more likely - that someone created a belch/fart single, made it the same size and name of a popular song, and distributed it, *or* someone who was caught infringing copyright created a file to match its characteristics in order to get off on a technicality.

Create a valid MP3 file with 5 minutes of belching that matches this MD5 signature:
5f2380575360148589ac86572e4ca36a - I'll be really impressed, as will be every cryptography expert. I don't say it's impossible, but unless RIAA ends up suing Donald Knuth, this scenario is not very likely.

Re:Make the RIAA Download/Upload (0)

Anonymous Coward | more than 6 years ago | (#23245286)

The War will be won if the RIAA is forced to download/upload to gather evidence, and really there is no evidence whatsoever from file titles; that could reasonably be personal commentary or a fair use parody.
Time to copy and rename those Linux distribution ISOs to an appropriate location, particularly if your using Comcast, let the RIAA have fun with the resets. Of course some might come up with some more appropriate packages for them,,,wonder what OS the RIAA uses?

The Wild, Wild West (1)

quantum kev (1215670) | more than 6 years ago | (#23245018)

Let's hear it for all of us in good ol' AZ... And everyone thinks we're just a bunch of outlaws!

Re:The Wild, Wild West (1)

toiletsalmon (309546) | more than 6 years ago | (#23245220)

No, we just thought you didn't really like Black People. [wikipedia.org]

Go Arizona! ;)

Re:The Wild, Wild West (1)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23245262)

Let's hear it for all of us in good ol' AZ... And everyone thinks we're just a bunch of outlaws!
Arizona had a real good day. Thank you, Phoenix.

Maybe this should apply to other laws (0)

Anonymous Coward | more than 6 years ago | (#23245028)

Hmmm..

So this judge rules that the interpretation of "distribution" requires ACTUAL distribution.

Perhaps those people picked up for "distribution" of drugs for having 2 ounces on them could call up this judge and ask what's up.

Perhaps those people picked up for "distribution" of child pornography could call up this judge for having been tossed in jail for "distributing" it by viewing it in a digital medium (and therefore "reproducing" it in memory when viewing).

hmmmmmmmmmmmmmm...

I hate arbitrary crap like that. Horrah for this judge and his sanity.

Re:Maybe this should apply to other laws (1)

UncleTogie (1004853) | more than 6 years ago | (#23245206)

The key phrase here is "intent to distribute"...

ITD been made illegal for kiddy porn and drugs. Check your local statutes for details, as your area may have "blue laws" that cover more than you expect...

Out of touch. (2, Interesting)

Narpak (961733) | more than 6 years ago | (#23245068)

I believe that this is just another sign that the RIAA's backers is still trying to maintain a business model that is clearly failing in the face of modern technological, and perhaps social, realities. We can debate back and forth about technicalities in the law, but what it really comes down to that distributing music the way it has been done for so long is no longer viable. People want another system; a better system. Of course I am no expert, I offer no alternative.. But I do believe another system could be created, (or perhaps is already being created in many minor ways) that could benefit musicians, consumers and those that are needed in between.

At least I think that serious consideration upon that issue should be made, and I am sad to say, the current establishment seem reluctant to do it. However, sooner or later, I am sure, a new way will emerge. People want to make music, and people want to listen, it is not a very difficult concept underneath it all. What is needed is something that is viable, acceptable and fair to all parts involved.

Re:Out of touch. (1)

morcego (260031) | more than 6 years ago | (#23245432)

Yes, we are sick of the current system. I for one didn't buy a CD for about 8 years, maybe more:

- I'm sick of paying for a media that is damaged so easily (tapes were much more resistant)
- I'm sick of paying for a 15 "musics" CDs just because of 1 music
- I'm sick of have to carry 100 CDs in my car

and the list goes on and on.

Re:Out of touch. (1)

Narpak (961733) | more than 6 years ago | (#23245864)

I guess some independently run online database could be made where every piece of music you buy is registered; so you can download a new copy whenever you want, or need one. However, I do not feel it is right to keep such registers as they could far too easily be abused by persons or entities with malicious intent.

Whatever is to be done I am sure that a total re-evaluation of the rules, regulations and concepts that form the basis of the current music industry is necessary. The technological advances of the last years and decades have moved us into territory not foreseen when many of the laws in effect where drafted.

Re:Out of touch. (1)

Maxo-Texas (864189) | more than 6 years ago | (#23246486)

They've done this a few times now with various content (Divx, Fairplay, etc.) -- and every time the company eventually takes down the central registry.

Members. (-1, Flamebait)

headkase (533448) | more than 6 years ago | (#23245078)

If the RIAA members weren't such scummy pricks ripping off what they hold up as protecting then I would actually be on their side. Infringement is infringement. But when an artist gets pennies on the dollar people hate the RIAA members and the artists are unfortunately not going digital fast enough to escape collateral damage. For now. Someday the RIAA (and hopefully their members) will be dead and artists will sell direct and that is exactly the day I uninstall Limewire.

Illegal to make mp3s from cds? (1)

Prikolist (1260608) | more than 6 years ago | (#23245184)

Are you kidding me, illegal to make mp3 from a CD? Then why would I ever get a CD in the first place, the RIAA wants way too much and I'm happy that finally someone put them in their place.

Not Evisceration, just careful consideration. (5, Informative)

nixNscratches (957550) | more than 6 years ago | (#23245258)

While this does weaken the RIAA's case, they still have a decent shot at conviction. All that was denied here was a shot at summary judgement. At issue here is the idea that making a copy of a protected work available is not the same as copying, but may leave the defendant open to contributory liability.

Howell contends he never intended to share, nor authorized KaZaa to share his music files and it may not be possible for the RIAA to prove otherwise.

For what it's worth, he also poked holes in EFF's argument that Media Sentry - as an agent of the RIAA, cannot infringe on their own copyright. He argues that the RIAA / et all never intended to license Media Sentry to authorize distribution or reproduction and therefore the 12 copies Media Sentry downloaded stand up as "unauthorized" copies of the works. The issue remains open as to whether Howell can be held liable for these copies.

Re:Not Evisceration, just careful consideration. (2, Interesting)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23245308)

All that was denied here was a shot at summary judgement.
Yes the case will turn on its particular facts. But at least we can take comfort that the correct legal standards will be applied in determining those facts.

By the way, one of the interesting things about this case: it will NOT be a jury trial. Mr. Howell never demanded a jury trial. Judge Wake, not a jury, will be the trier of the facts.

Re:Not Evisceration, just careful consideration. (0)

Anonymous Coward | more than 6 years ago | (#23245634)

By the way, one of the interesting things about this case: it will NOT be a jury trial. Mr. Howell never demanded a jury trial. Judge Wake, not a jury, will be the trier of the facts.
Not only interesting but informative as well. It also brings up new questions. It is a shame in a way that no jury trial was asked for as it would have been great if this judge also shoot down "suggested jury instructions" from the RIAA lawyers like were presented and used in the Thomas case. This decision alone is of course a rejection of the key element of those instructions and hopefully will be cited by Thomas's lawyer and/or amicus curiae in the appeal.

Two sides of the same coin. (0)

Anonymous Coward | more than 6 years ago | (#23245772)

> Not Evisceration, just careful consideration.

But careful consideration is the sort of thing that would totally eviscerate their case. :)

As to Mr. Beckerman's mention that this won't be a jury trial, I honestly think that's a good thing. The important parts here are matters of law, not fact, and a judge is better equipped to handle those. Were I a defendant, I know that I would not opt for a jury trial after seeing the other lawsuits play out. The 'never used the internet' juror may be unique, but I've taught computer classes, and there are more of them than one might imagine even still.

Re:Two sides of the same coin. (1)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23245804)

Were I a defendant, I know that I would not opt for a jury trial after seeing the other lawsuits play out.
There's only been one trial.

Re:Not Evisceration, just careful consideration. (0)

Anonymous Coward | more than 6 years ago | (#23246078)

He argues that the RIAA / et all never intended to license Media Sentry to authorize distribution or reproduction and therefore the 12 copies Media Sentry downloaded stand up as "unauthorized" copies of the works. The issue remains open as to whether Howell can be held liable for these copies.
Are you 100% sure the RIAA / Media Sentry downloaded the files and didn't just take screenshots of file titles? If the RIAA / Media Sentry have indeed been downloading files there might be billions of dollars of copyright infringement liability at those IP addresses for all the files downloaded which weren't the copyrights of the RIAA.

Re:Not Evisceration, just careful consideration. (1)

burgundysizzle (1192593) | more than 6 years ago | (#23246708)

For what it's worth, he also poked holes in EFF's argument that Media Sentry - as an agent of the RIAA, cannot infringe on their own copyright. He argues that the RIAA / et all never intended to license Media Sentry to authorize distribution or reproduction and therefore the 12 copies Media Sentry downloaded stand up as "unauthorized" copies of the works. The issue remains open as to whether Howell can be held liable for these copies.

Does this mean it's possible for the current defendant to ask for MediaSentry to be added as a co-defendant? Or, does that require permission from the RIAA (or just the judge) to do that? After all MediaSentry did make unauthorised copies (by their own admission).

Awesome! (1)

SoundGuyNoise (864550) | more than 6 years ago | (#23245382)

Totally eviscerated! Radical! To the Max!

Monitoring the network. (1)

iiiears (987462) | more than 6 years ago | (#23245394)

Did this also mean that RIAA would require means to monitor/intercept traffic to prove a transfer has teken place?

Re:Monitoring the network. (0)

Anonymous Coward | more than 6 years ago | (#23245876)

They are not a spy agency, they are not monitoring internet traffic for "infringement"

AFAIK They are basing their "evidence" of infringement off of people either seeding the infringing content or downloading content the RIAA associates have seeded themselves, and using a a modified BitTorrent client to log IPs.

This aint rocket science for anyone with basic programming skills.

RIAA = Warner Universal Sony EMI (WUSsiE) (0)

Anonymous Coward | more than 6 years ago | (#23245420)

please properly expand out RIAA so that we can expose the true perpetrators.

Re:RIAA = Warner Universal Sony EMI (WUSsiE) (1)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23245486)

Why don't you do it yourself instead of making extra work for others? Look at the court papers, jot down the names of the plaintiff record companies, and list them here.

Re:RIAA = Warner Universal Sony EMI (WUSsiE) (1, Informative)

Anonymous Coward | more than 6 years ago | (#23245644)

Err. Happen to look at the subject line Ray? Attention to detail is essential when chastising.

Re:RIAA = Warner Universal Sony EMI (WUSsiE) (1)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23245720)

Err. Happen to look at the subject line Ray? Attention to detail is essential when chastising.
Sorry 'bout that. Thanks for listing the culprits. I just don't have time. (I like your acronym too. Almost as good as kdawson's note "from the schmaking-available dept.")

Re:RIAA = Warner Universal Sony EMI (WUSsiE) (0)

Anonymous Coward | more than 6 years ago | (#23245972)

RIAA = Racketeering Industry Association of America

The recording industry aint what it used to be!

Not copyright infringement... (2, Interesting)

BUL2294 (1081735) | more than 6 years ago | (#23245658)

While IANAL, if you read the EFF brief & the judgement in depth, an interesting defense is being promulgated... Even if the defendants specifically allowed MediaSentry to download these files, as authorized agents of the copyright holders, no copyright infringement actually took place!!! There's case law that says that a copyright holder (or their agent) cannot infringe on their own copyright... Hence the new, stupid, "making available" claim...

What does that mean? Assuming this argument is valid (which I can't see how it couldn't be), the plaintiffs would have to go back to square one and find someone else on Kazaa who downloaded specific files from the defendants--specifically infringing on copyright law. And for anyone who has used P2P before, how often do you know (or remember) who you're downloading from? Personally, I think that borders on impossible to prove--unless Kazaa keeps some sort of detailed log data file that MediaSentry would have to gain access to...

Re:Not copyright infringement... (2, Informative)

Ravensfire (209905) | more than 6 years ago | (#23246128)

While IANAL, if you read the EFF brief & the judgement in depth, an interesting defense is being promulgated... Even if the defendants specifically allowed MediaSentry to download these files, as authorized agents of the copyright holders, no copyright infringement actually took place!!! There's case law that says that a copyright holder (or their agent) cannot infringe on their own copyright... Hence the new, stupid, "making available" claim...

What does that mean? Assuming this argument is valid (which I can't see how it couldn't be), the plaintiffs would have to go back to square one and find someone else on Kazaa who downloaded specific files from the defendants--specifically infringing on copyright law. And for anyone who has used P2P before, how often do you know (or remember) who you're downloading from? Personally, I think that borders on impossible to prove--unless Kazaa keeps some sort of detailed log data file that MediaSentry would have to gain access to...


The judge threw that argument out the window.

From the ruling "Amicus curiae, Electronic Frontier Foundation ("EFF"), responds that a copyright owner cannot infringe its own copyright, so its agent also cannot infringe the copyright owner's rights when acting on the owner's behalf. But the recording companies obviously did not intend to license MediaSentry to authorize distribution or to reproduce copies of their works. Rather, "the investigator's assignment was part of [the recording companies'] attempt to stop [Howell's] infringement," and therefore the 12 copies obtained by MediaSentry are unauthorized. "

-- Ravensfire

Re:Not copyright infringement... (2, Insightful)

the_leander (759904) | more than 6 years ago | (#23246718)

Ok, so MediaSentry aren't allowed to download the files because they're not authorised to do so. Fine.

Where was that evidence?

Seems to me that no matter which way the RIAA go RE mediasentry, their case is hosed...

Either they can't get the files, or it's a completely legal transaction. Superb!

a major blow to RIAA tyranny (1)

harvey the nerd (582806) | more than 6 years ago | (#23245770)

Sheer genius, a major blow to RIAA tyranny. The judge ruled that an actual infringement needed to take place...

Re:a major blow to RIAA tyranny (1)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23245836)

Sheer genius, a major blow to RIAA tyranny. The judge ruled that an actual infringement needed to take place...
Judges just following the law. That's all it will take to shut the RIAA's beserk campaign down.

Law clerk (2, Insightful)

wile_e_wonka (934864) | more than 6 years ago | (#23246026)

Just to let you know a bit more about how the courts work--
More than likely this opinion was written by a "judicial law clerk" who graduated from law school last June (likely toward the top of his class). Judges vary widely, some write their own opinions, some collaborate with their law clerks, and some let their clerks write the memos, glance through them and mail it out. Most judges fall somewhere between the last two. The prior decision (today's decision was a reconsideration of an earlier decision in the RIAA's favor) was dated last August, which means it is very possible it was written by last year's law clerk (once again, these things vary, but most clerkships are one year long and start sometime between Late July and early September.
Just thought I'd let you think about that.

He shoots, He scores! (1)

Greymoon (834879) | more than 6 years ago | (#23246488)

Foot meet Bullet.
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