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RIAA Throws In Towel On "Making Available" Case

timothy posted more than 6 years ago | from the that's-sure-a-big-towel-you've-got dept.

The Courts 252

NewYorkCountryLawyer writes "The RIAA has thrown in the towel on one of the leading cases challenging its 'making available' theory, Warner v. Cassin, in which the defendant had moved to dismiss the RIAA's complaint. We have just learned that the RIAA submitted a voluntary notice of dismissal before the judge got to decide the defendant's motion to dismiss the complaint. It will be of interest to see if Ms. Cassin pursues a claim for attorneys' fees in view of recent court rulings that successful copyright defendants are presumptively entitled to an attorneys fee award, even if the dismissal came about from the plaintiffs' having 'thrown in the towel.'"

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first (-1, Redundant)

Anonymous Coward | more than 6 years ago | (#23753863)

post?? the riaa sucks

cow suuuuuit!!!! (-1, Redundant)

Anonymous Coward | more than 6 years ago | (#23753881)

put it ON!!! The cow suuuuiiit!!!!

Interesting.. (5, Insightful)

seanadams.com (463190) | more than 6 years ago | (#23753891)

they throw in the towel to avoid precedent being established.

Seems to me further evidence that they are systematically abusing the legal system with sham lawsuits. If they actually cared about this individual case wouldn't they want to see it through?

Re:Interesting.. (4, Insightful)

Fx.Dr (915071) | more than 6 years ago | (#23754041)

Something tells me they stop caring about these cases the second they make it to court. Settlement money is where it's at, baby. After all, where's the fun in bullying the Little Guy once he refuses to lay down at take his lumps?

Re:Interesting.. (5, Insightful)

dgatwood (11270) | more than 6 years ago | (#23754487)

If that's the case, why take it to court at all? The threat of lawsuit is only a credible threat if it is backed by a willingness to actually battle it out. Every case they give up on is further weakening their cause, both by showing people that they can fight and win and by creating animosity among judges who feel like their courtroom is being abused. In the long term, they would be much better off not taking any case to court unless they are certain they can win it....

Re:Interesting.. (3, Interesting)

JesseMcDonald (536341) | more than 6 years ago | (#23754641)

I'm not a lawyer -- of course -- but it seems to me that threatening a ton of people with lawsuits in order to achieve a settlement and then never following through when the settlement is rejected would be just a bit too obvious, even for organizations like these. I doubt most courts look favorably on that sort of bluff, even ignoring the fact that only a credible threat of being sued would induce people to settle in the first place.

Re:Interesting.. (4, Interesting)

Anonymous Coward | more than 6 years ago | (#23755197)

I remember a court case about a year ago that ruled that collection companies cannot threaten to sue (with the hopes of collecting debt without going to court) unless they actually plan to follow through with it.
I agree that the RIAA just wants to settle; nonetheless, they must take, at least, some of the people who choose not to settle to court. Also, a very practical reason would be that no one would settle because there would be no fear of more costly retribution.

Re:Interesting.. (3, Interesting)

Fx.Dr (915071) | more than 6 years ago | (#23754697)

The only incentive these guys have to take a case to its conclusion is to setup the next example in the public pillory. There's absolutely no way the legal minds (using "minds" loosely, here) leading this battle expect to receive anywhere near the amount they've been awarded. The way they see it, as long as people are settling out of court then the deterrent is doing its job. They'll continue to do so as long as a modicum of their much-eroded legal footing remains.

As another poster pointed out, these cases are essentially disposable, and will continue to be treated as such by the RIAA, as long as it help keep them from establishing precedent that doesn't swing in their favor.

Re:Interesting.. (0)

Anonymous Coward | more than 6 years ago | (#23755039)

Something like that. You can't threaten to sue someone unless you actually, in good faith, intend to sue that person. But whatever.

Re:Interesting.. (3, Funny)

Kingrames (858416) | more than 6 years ago | (#23754593)

"Settlement money is where it's at, baby."

Except that they LOSE money on every settlement!

Haven't you been following along with the stories?

Re:Interesting.. (5, Informative)

TheLinuxSRC (683475) | more than 6 years ago | (#23754077)

Not to mention that in order to get the name of the defendant the RIAA had to file a "John Doe" criminal suit, which was dropped after finding the name of the defendant. In other words, a fishing expedition all the way around.

FTA:
The notice states that the dismissal is "without prejudice". However, Fed. R. Civ. P. 41 (B) states "if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." It is believed that the plaintiffs learned of the defendant's identity through a prior, "John Doe", proceeding, which it also voluntarily dismissed, so that the dismissal in this case "operates as an adjudication on the merits".

Re:Interesting.. (3, Interesting)

digitrev (989335) | more than 6 years ago | (#23754745)

How is that even possible? Is someone suddenly not a criminal when you find out who they are? I'm terribly ignorant of the law, but I was always under the impression that criminal suits had to be brought by a DA, and even then it was rare for a case to be suddenly dropped unless new information was brought to light.

Re:Interesting.. (1)

riceboy50 (631755) | more than 6 years ago | (#23755013)

Don't they drop the John Doe suit once they get the name so that they can open a suit against the named defendent, thus making the original suit a "fishing expedition" as the GP put it?

Re:Interesting.. (1)

The FNP (1177715) | more than 6 years ago | (#23755023)

However, these are civil actions with different rules, i.e. whatever the MAFIAA think they can get away with.

--The FNP

Re:Interesting.. (1)

digitrev (989335) | more than 6 years ago | (#23755131)

But if they're civil actions, why are they criminal suits? Again, I could very well be wrong, but I thought that criminal and civil were two exclusive parts of the legal system.

Re:Interesting.. (1)

timon (46050) | more than 6 years ago | (#23755255)

Not anymore when copyright or intellectual property is concerned, if certain organizations get their wishes.

Re:Interesting.. (0)

Anonymous Coward | more than 6 years ago | (#23755209)

You are correct. I think the parent misspoke when he said criminal.

You can't sue someone & withdraw forever! (4, Insightful)

Anonymous Coward | more than 6 years ago | (#23755625)

> How is that even possible? Is someone suddenly not a criminal when you find out who they are? I'm terribly ignorant of the law, but I was always under the impression that criminal suits had to be brought by a DA, and even then it was rare for a case to be suddenly dropped unless new information was brought to light.

I don't know what you mean about someone "suddenly" no longer being a criminal, but one thing in civil law is that you can't keep suing someone, then drop the case. If you withdraw, you can bring the same case ONCE more. If you drop the same case twice, that's it. You don't get to keep suing them and dropping the case.

The RIAA works by suing first to get your identity from your ISP. They may or may not have the correct person, but they don't really care. You're not a part of this case, because you probably don't even find out that there WAS a case until it's over. Then they send you to their own "settlement center" unless you refuse and go to court.

But yeah, these aren't criminal lawsuits, they're civil (the RIAA can't bring a criminal lawsuit to begin with). So double jeopardy and all that doesn't apply, but civil rules about withdrawing from cases and such DO apply. Read the FRCP (Federal Rules of Civil Procedure) if you want more information.

But please note, IANAL. Get one before engaging or deciding to engage in any litigation, because I can't give you legal advice! And if NYCL comes in to correct me, listen to him. I had exactly one law class and it didn't cover this. Given how sharp the MAFIAA's practice is, I don't doubt that they will at least try to find loopholes in my line of reasoning.

- I Don't Believe in Imaginary Property [eff.org]

More importantly... (5, Funny)

MRe_nl (306212) | more than 6 years ago | (#23754467)

, a towel has immense psychological value.
Any organisation who can sue the length and breadth of the galaxy, rough it, slum it, struggle against terrible odds, win through, and still knows where it's towel is, is clearly an organisation to be reckoned with.

Re:More importantly... (0)

Anonymous Coward | more than 6 years ago | (#23755121)

, a towel has immense psychological value.
Any organisation who can sue the length and breadth of the galaxy, rough it, slum it, struggle against terrible odds, win through, and still knows where it's towel is, is clearly an organisation to be reckoned with.
Yes, and thanks for all the fish....

Anonymous Coward :-) "It is to laugh..."

Re:Interesting.. (4, Informative)

icebike (68054) | more than 6 years ago | (#23754685)

> they throw in the towel to avoid precedent being established.

Exactly right.

By throwing in the towel here they think they are free to play this hand at another table. Avoiding a ruling was more important to them than simply losing this round.

TFA implies this may not be the case, and the dismissal may attach prejudice on any subsequent (or concurrent) claims against other defendants that are substantially similar.

IANAL, but would like to see one weigh in here with some professional observations.

Re:Interesting.. (1)

dwiget001 (1073738) | more than 6 years ago | (#23754777)

Well, the judge is the final arbiter, IIRC, on *how* the case is dismissed. The RIAA is probably gonna get a bad spanking from the judge for this and other shenanigans on this particular case.

Re:Interesting.. (1)

nurb432 (527695) | more than 6 years ago | (#23755117)

And this doesn't establish a precedent in its own right?

About time. (4, Insightful)

jeiler (1106393) | more than 6 years ago | (#23753901)

Of course, all this means is that they will seek another legal tack. Watch out for MediaSentry downloading files to establish "distribution."

Re:About time. (3, Interesting)

entmike (469980) | more than 6 years ago | (#23753925)

Wouldn't that mean that MediaSentry would be in violation of copyright itself?

Re:About time. (2)

TibbonZero (571809) | more than 6 years ago | (#23754027)

I've wondered that too. Can you get a "pass" or something to say that you're just "researching" potential piracy?

Re:About time. (2, Insightful)

Duncan Blackthorne (1095849) | more than 6 years ago | (#23754449)

I'd have to say no. If you're an author and are writing a book about the problem of child pornography, it's still illegal for you to download and/or posess child pornography, for instance.

Re:About time. (2, Informative)

Neeperando (1270890) | more than 6 years ago | (#23754811)

Can you get a "pass" or something...
I think they have a word for that... oh, right, it's "warrant".

Re:About time. (2, Insightful)

TibbonZero (571809) | more than 6 years ago | (#23754887)

And MediaDefender has one for everyone's computer in the world? A warrant has to specific property/location.

Re:About time. (1)

Neeperando (1270890) | more than 6 years ago | (#23755601)

Well, obviously not. My point was that the idea of getting permission to do something that was previously illegal in the interest of enforcement exists. The irony is that MediaSentry (presumably) doesn't have that. It appears that, once again, what I thought was a slyly worded joke turned out to make me look stupid instead.

Re:About time. (2, Interesting)

Darkness404 (1287218) | more than 6 years ago | (#23754187)

But if MediaSentry is the RIAA or has been authorized wouldn't that make them have the rights to the copyrighted material? Its the same idea on how you can pay $.99 and get the rights to download a song off the web. If the RIAA says "you can download any RIAA song" then no, it wouldn't be a violation of copyright because they have a license given by the RIAA that lets them do that.

Re:About time. (1)

digitrev (989335) | more than 6 years ago | (#23754583)

But what happens when they grab the first non-RIAA song that was mislabeled? Or worse (for them), what if they forget to turn off their file-sharing and end up sharing someone else's song?

Re:About time. (1)

Darkness404 (1287218) | more than 6 years ago | (#23754701)

Well, they can always plead that they didn't know that it was an RIAA song which would be really great for the rest of us because if the judge lets them it creates precedent that lets us use the same defense. If they share someone else's song... Most wouldn't care. Sure if they got caught they would sue them but really it is only the *AA that tries to keep a dictator-like hold on the songs they license.

Re:About time. (4, Insightful)

jeiler (1106393) | more than 6 years ago | (#23754273)

No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.

Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers. Charlie rips a song from a CD and makes an MP3 of it (perfectly legal, though the RIAA would like for it not to be). Charlie then places that song in his "Shared Files" folder (still perfectly legal). Denise downloads the song--it's only at that moment that anything illegal was done, but it is Charlie, not Denise, who has broken the law.

Re:About time. (1, Informative)

Anonymous Coward | more than 6 years ago | (#23754547)

No, both broke the law, just Denise was impossible to track (legally). Now, so is Charlie.

Re:About time. (1, Interesting)

Anonymous Coward | more than 6 years ago | (#23755109)

What if Denise actually owned an original of the CD but she was downloading a MP3 of it instead of ripping her own copy because it was easier?

Re:About time. (5, Informative)

seaniqua (796818) | more than 6 years ago | (#23754651)

I'm going to have to disagree with that analysis (IANAL, but I am a law student who is interested in practicing in copyright, so I have a little knowledge on the subject). (Before we get started, I have to say that I am not licensed to practice law anywhere, and this is not legal advice to anyone who may be reading this)

No, because the actual violation of copyright law is not downloading the song, but allowing someone else to download from you.

Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers. Charlie rips a song from a CD and makes an MP3 of it (perfectly legal, though the RIAA would like for it not to be).

Contrary to popular opinion, the legality of ripping files is not a given. I don't have the text in front of me, but I recall the legality being hinged on judicial interpretation of several seemingly obvious, but legally fuzzy terms (such as "home audio recording device," and whether or not said term includes computers).

Charlie then places that song in his "Shared Files" folder (still perfectly legal).

Still questionably legal. This is the (untested as far as I know) act that the RIAA is trying to get labeled as inducement or contributory infringement. The idea is that, but for Charlie making it available for Denise to download, no infringement could have occurred.

Denise downloads the song--it's only at that moment that anything illegal was done, but it is Charlie, not Denise, who has broken the law.

Nope, they both have. Charlie and Denise have both infringed the reproduction and distribution rights of both the song writer and the recording artist. The RIAA has been choosing to sue only those who are making the tracks available (probably either because they think it's the cheapest way to get their message across, or because they haven't figured out a way to nail the downloaders without stirring up entrapment charges), but could go after both.

Note: this doesn't mean that I think the RIAA is right, this is just my take on the system as it stands today. Personally, I think a major overhaul is in order. One that doesn't include all of the stupid special interests that bought their way into the current system.

Re:About time. (3, Informative)

tony1343 (910042) | more than 6 years ago | (#23754737)

Yeah, sorry but that's not right. Copying copyrighted material is a violation of U.S. law (without a license).

The rights of a copyright holder are listed in 17 USC 16:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Re:About time. (1)

Jarjarthejedi (996957) | more than 6 years ago | (#23755441)

Hang on a second, either you mispoke, or were just to vague. I don't think any legal system would have it be illegal to copy any copyrighted work, but then allow "reproduc[ing] the copyrighted work in copies or phonorecords". Maybe it's just two different definitions of the word copy?

Re:About time. (0)

GuruBuckaroo (833982) | more than 6 years ago | (#23754867)

Hypothetical example: Charlie and Denise (fictitious names of the "Alice and Bob" variety) both have computers.

OK... so... why not just use "Alice and Bob"? Geez. More names I have to remember.

Re:About time. (1)

Cajun Hell (725246) | more than 6 years ago | (#23754957)

Wouldn't that mean that MediaSentry would be in violation of copyright itself?
Not if they have authorization from the copyright holder.

Re:About time. (1)

FataL187 (1100851) | more than 6 years ago | (#23753951)

Thats why I keep IP logs of everyone that downloads from me.. So if MediaSentry starts downloading my stuff I can say they are breaking the law as well..

Hell, if they have the copyright I didn't illegaly distribute anything! Case Closed!!

Re:About time. (1)

exley (221867) | more than 6 years ago | (#23754721)

Depending on what's being downloaded from you, you'd better keep those logs encrypted unless you want to be *helping* their case for "making available." :)

Re:About time. (0, Offtopic)

zappepcs (820751) | more than 6 years ago | (#23754063)

But that is similar to a police person taking a 'girl' out on a date, drinks, home for sex, then offering to pay for the sex and arresting her when she refuses and claims that is not why she dresses up nicely, and didn't know it would attract that kind of attention.

Re:About time. (5, Funny)

s.bots (1099921) | more than 6 years ago | (#23754331)

But that is similar to a police person taking a 'girl' out on a date, drinks, home for sex, then offering to pay for the sex and arresting her when she refuses and claims that is not why she dresses up nicely, and didn't know it would attract that kind of attention.
What?

Re:About time. (1)

psxman (925240) | more than 6 years ago | (#23754875)

BadAnalogyGuy, is that you?

Re:About time. (4, Interesting)

terrymr (316118) | more than 6 years ago | (#23754073)

I believe this has already been tried ... the record industry can't use downloading by themselves or their agents to establish infringement because you cant infringe your own copyright - it's a legal impossibility.

This is what necessitates the "making available theory"

Re:About time. (1)

jeiler (1106393) | more than 6 years ago | (#23754317)

Ooh, that does make it interesting. So as long as Denise (in my example above) is not a MediaSentry employee, then the law was broken, but it cannot be tracked. If Denise is a MediaSentry employee, no law was broken.

I think I just had a geek legal-gasm.

Re:About time. (0)

Anonymous Coward | more than 6 years ago | (#23754719)

The "making available" [0] theory is used to get round this. Charlie[1] does not know if Denise is a MediaSentry employee, and therefore may not make the file available to her.

[0] I assume the RIAA has managed to get a judgement in their favour on this point by now.
[1] Why not just use Alice, and Bob?

Re:About time. (3, Interesting)

UncleTogie (1004853) | more than 6 years ago | (#23754909)

Charlie does not know if Denise is a MediaSentry employee, and therefore may not make the file available to her.

...which could leave an interesting loophole...

If you require all music downloaders at your site, before downloading, to check a box that states "I hereby state that I am a MediaSentry/RIAA employee/contractor, and assume responsibility for affirming as such", could that get you off the hook?

Re:About time. (1)

JeanPaulBob (585149) | more than 6 years ago | (#23755837)

...which could leave an interesting loophole...

If you require all music downloaders at your site, before downloading, to check a box that states "I hereby state that I am a MediaSentry/RIAA employee/contractor, and assume responsibility for affirming as such", could that get you off the hook?
That depends. Do you think you can tell that story (with a straight face) to a judge, without him smacking you upside the head for being cute?

Oh Boy! (1)

Dyne09 (1305257) | more than 6 years ago | (#23753907)

Now I am sure RIAA P2P copyright infringement lawsuits will come to an end once and for all! Some one wake up pa, there's a big goin's on!

Re:Oh Boy! (1)

wattrlz (1162603) | more than 6 years ago | (#23754329)

Maybe not. Since they didn't give the judge time to rule on it there's no legal precedent set and they can bring the same suit against someone else tomorrow if they so choose. They'll probably keep doing that too, until everyone's either paid settlement money or learned that they don't have to.

Re:Oh Boy! (2)

Dyne09 (1305257) | more than 6 years ago | (#23754405)

Maybe not. Since they didn't give the judge time to rule on it there's no legal precedent set and they can bring the same suit against someone else tomorrow if they so choose. They'll probably keep doing that too, until everyone's either paid settlement money or learned that they don't have to.

You really missed the sarcasm there. I was laying it on pretty thick too.

Case Law? (1)

anonicon (215837) | more than 6 years ago | (#23753917)

What's the case law say about judges granting the cost of defense from the plaintiffs? Is it based on their mood, or how bad the "evidence" was that the plaintiffs used to make their case, or something else?

Come on.. (1)

TubeSteak (669689) | more than 6 years ago | (#23753937)

Why wouldn't the Judge force them to present their failboat of a case after a year of pre-trial proceedings?
Did the defendants not contest the motion to dismiss?

Re:Come on.. (3, Informative)

TheSeventh (824276) | more than 6 years ago | (#23754037)

I know this is slashdot and all, and most people don't RTFA, but did you even RTFS (Summary) ?

The defendant filed a motion to dismiss, before the judge ruled on it, the plaintiff (RIAA) filed a voluntary motion to dismiss the case.

This means the case is over.

Re:Come on.. (1)

mOdQuArK! (87332) | more than 6 years ago | (#23754469)

Can the judge reject the plaintiff's motion to dismiss the case?

Re:Come on.. (1)

dwiget001 (1073738) | more than 6 years ago | (#23754825)

To the best of my knowledge, the judge can accept this voluntary dismissal or not, he can issue his own order regarding dismissal, like "with prejudice" and the like.

Your Honor (5, Interesting)

whisper_jeff (680366) | more than 6 years ago | (#23753983)

Your honor, we know you're going to rule against us and set a precedent which will completely torpedo most of our other legal efforts so we'd like to respectfully withdraw our claim. Kthxbai.

sigh... Gamesmanship at its most disgusting...

I'm curious - can the judge deny their voluntary dismissal and still hand down judgment?

Re:Your Honor (1)

Overzeetop (214511) | more than 6 years ago | (#23754303)

Like most slashdotters, I have no idea what is and isn't legal when it comes to techinicalities, but since it was a motion filed with the judge, it is typically within the judges discretion to grant or deny the motion. I believe that your answer is yes, the judge may deny the motion to withdraw and grant the motion to dismiss. It may be challenged, again on technical grounds, but you'd have to find a very RIAA-sympathetic judge to review the grounds for the decision given that the final result for the case in question was nominally the same. (Of course, that takes a narrow view which ignores the precedent it sets and the possibility of awarding the defense fees).

Re:Your Honor (5, Informative)

Anonymous Coward | more than 6 years ago | (#23754945)

There is another organisation that employs similar tactics against copyright infringement: scientology.

They were about to lose a(nother) case against a dutch ISP (xs4all.nl) that was hosting Karin Spaink's website and were denied to withdraw. And lost.

See http://www.xs4all.nl/~kspaink/ for more information.

All of my MP3s... (3, Interesting)

Anonymous Coward | more than 6 years ago | (#23754001)

While I actually own the CD to most of my OGGs, I gotta say that Allofmp3.com, now MP3sparks.com, have the best business model:

Let's see, reasonably-price music whose price depends upon the bit rate chosen. I can't wait to get home and send more money to the Russian mafia!

Re:All of my MP3s... (1)

Tanktalus (794810) | more than 6 years ago | (#23754763)

Paying for illegal copies doesn't make them suddenly legal...

They are not illegal copies (2, Insightful)

Anonymous Coward | more than 6 years ago | (#23755185)

They have been licensed properly in exactly the same way as websites and radio in the US and much of the rest of the world requires. The license fees are paid to the Russian equivalent of the APA and the royalties are available for collection by the artists and/or their agents.

The RIAA doesn't ask for the royalties because they can't, the APA would have to get the money. Even if RIAA can, they don't want to because that blows their lie that the music is unlicensed.

This does not stop the music from being licensed and copying music with a license (as AllOfMP3 has, and, as "making available" is the bad part, this is licensed making available) is not illegal.

It's because they are betting on the ACTA Treaty (4, Informative)

denis-The-menace (471988) | more than 6 years ago | (#23754033)

This case is small potatoes compared to a treaty that will affect many nations instead of one defendant.

They figure the lawyer fees would be better used to bribe congress critters to push ACTA, instead.

Re:It's because they are betting on the ACTA Treat (1)

Darkness404 (1287218) | more than 6 years ago | (#23754245)

Not really, the RIAA wants to set legal precedent, if they do set precedent in their favor then the "making available" theory will be accepted. If they lose enough cases on the "making available" theory then it will be thrown out by precedent.

bribing comcast you mean (1)

XHIIHIIHX (918333) | more than 6 years ago | (#23754861)

eom

stand up to a bully, they back down. (1)

swschrad (312009) | more than 6 years ago | (#23754105)

actually, the judge should refuse to accept the petition and decide the motion on facts, it is in their purvey to reject a "sorry, shoot me" petition if they don't believe it was a full and meaningful declaration of the parties' intent, made with full knowledge of the law.

RIAA is always giving up just as a case gets to the core of their behavior, and whether is is privileged, or whether it is illegal.

that should suggest strongly which case it is, and some judge who is read in more than the law has eventually to stick the fork in these guys and say they're done.

But what does it have to do with the Bible? (1)

pdq332 (849982) | more than 6 years ago | (#23754121)

Re:But what does it have to do with the Bible? (3, Funny)

skis (920891) | more than 6 years ago | (#23754485)

Religious typosquatters vs. technically-informed lawyer. Both are very rare.

Good news - Bad news (1, Insightful)

Lije Baley (88936) | more than 6 years ago | (#23754131)

Meanwhile, in Congress, new laws (H.R. 4729)are being forged right now which may make a good judge's interpretation of these issues moot in the near future.

http://news.slashdot.org/article.pl?sid=08/06/11/0213244/ [slashdot.org]

The you can't fire me... (4, Interesting)

Bullfish (858648) | more than 6 years ago | (#23754135)

I quit attempt (if it really amounts to that) to prevent a precendent from occuring is of little usefullness in practical terms. The fact remains that the outcome of the case didn't look good based on the course of the trial. Even if the RIAA is allowed to withdraw, court documents will still exist showing the course of events of the trial and they will remain on public record for any lawyer defending a client in an upcoming case brought by the RIAA. IANAL, but it would seem to me this will just be another case thrown on a growing pile of evidence that the RIAA is trying to push through nuisance cases backed by slipshod research methodology. Sooner or later judges are going to start beating them up for it.

Re:The you can't fire me... (1)

ratboy666 (104074) | more than 6 years ago | (#23754621)

Since the RIAA has ALREADY backed down from the related John Doe filing, they are not allowed to simply throw in the towel on this case. Procedure should force adjudication on the merits. Of course the Judge can decide to simply let them go home, or can judge the case anyway. So, the RIAA could stand to lose, EVEN IF THEY DON'T PURSUE. To quote Boston Legal: "I am the decider!". And, suitable compensation for the defense can be awarded (at the Judges discretion).

Bad form to back away from a case TWICE. Once, for the John Doe, and now, again.

Obvious (1)

Skeet112 (1088203) | more than 6 years ago | (#23754237)

Avoiding the truth by withdrawal from court proceedings seems pretty precedent setting. It's pretty obvious that this case has shady and probably illegal litigation tactics written all over it. All the MAFIAA are doing is reaffirming what we all already knew.

Be afraid, be very afraid (5, Interesting)

Anita Coney (648748) | more than 6 years ago | (#23754265)

The RIAA is obviously afraid of losing outright on the issue of its "making available" argument. I say that because without the "making available" argument the RIAA will no longer be able to sue it fans. Let's face it, if the RIAA had actual evidence of copyright infringement, it would not need to use the "making available" argument. Thus, it's clear that the "making available" argument is the only pseudo-legal straw available for it to grasp.

I personally think it has something to do with the nature of P2P. In the old days if you shared music, the person would download it directly from you. Now you're only sharing bits and pieces of songs,not entire songs, spread out among many different people.

Of course the RIAA could attempt to make the argument that that sharing one even one bit of a song constitutes infringement. However, when one and zeros themselves become illegal, we're all in trouble!

Re:Be afraid, be very afraid (0, Troll)

mumblestheclown (569987) | more than 6 years ago | (#23754527)

You fail utterly in your understanding of copyright law in the USA.

Copyright "law" is not, for the most part, about whether a given specific action is illegal or illegal. Rather, every action must be considered in terms of a number of factors, including its nature, scope, intent, use, and so on. This means, for example, that doing a given action once may be legal in one context may be ok, but in another it would be ruled as infringment. It also means that doing one action may be ok, but doing it 100 times may be ruled as infringment.

No reasonable human being thinks that the mechanism of P2P of sharing chunks of files has anything to do with it whatsoever. So, yes, sharing even one bit may well REASONABLY be infringment if it the action can be viewed as infringing as viewed through a reasonable observation of nature, scope, intent, use, and so forth.

Seriously. Do some reading.

start here: http://en.wikipedia.org/wiki/Fair_use [wikipedia.org]

and then, if you have the ability, continue here: http://www.copyright.gov/title17/ [copyright.gov]

seriously, read it.

Re:Be afraid, be very afraid (5, Informative)

Anita Coney (648748) | more than 6 years ago | (#23754589)

First, I'm an attorney who concentrated in IP law.

Second, there will never be any law that holds that a bit of data could constitute copyright infringement anymore than copying one note could constitute copyright infringement. Neither bits nor notes are copyrightable because neither could be considered an original work.

Re:Be afraid, be very afraid (0, Troll)

mumblestheclown (569987) | more than 6 years ago | (#23754765)

You are not an attorney, and you do not concentrate on copyright law. I am calling absolute shenanigans, since you are flat out lying.

Let's be clear, since you're trying to twist things around. The statement wasnt whether copying one bit or one note is on its own, copyright inringement. The question was whether, for example, if you placed a given file on a p2p network and, throug the distributed glories of the p2p system, you just happaned to distribute some tiny portion (let's call it one bit, even though of course actual p2p systems work on slightly larger granularities) of a copyrighted work. If this happened, then, yes, of course this could be seen as copyright infringement. It would be provable (through the hash of the file involved) that you were involved in the unlawful redistribution of copyrighted work - that you happened to have only distributed a tiny part of it is nothing more than a technological accident.

To put it another way, it's like you robbed a bank with a gun on a day that due to some weird scheduling and cash movement issue in the bank the bank only had $1. To make a de minimis claim that this is not armed robbery would be absurd.

Mr "attorney" who "concentrated" on IP law - actually do have a read of Title 17. I encourage you to consider the word "any" in 17.501.(a). Any means any.

Re:Be afraid, be very afraid (1)

gurps_npc (621217) | more than 6 years ago | (#23755157)

That would be true except that copyright law specifically states that it IS legal to copy small amounts of data.

Worse, you stupid example confounds the issue by using additional felonies, namely brandishing a gun. Also a bit is the smallest possible bit of data, so your example should use a cent, not a dollar. If he had said Byte, then Dollar would make sense.

Try it again without your blatant errors and you get:

Person goes into a bank WITHOUT a gun. Hands the teller a note saying "Give me a penny of the banks money NOW!". Please pay attention to the fact that NO threat was made (that would be another crime, just like brandishing the gun.)

A claim that this is not a robbery would in fact hold up pretty well in court. Even if the teller gave him a penny.

The attorney that concentrates on IP Law seems to know a LOT more than you do, mublestheclown.

Re:Be afraid, be very afraid (5, Informative)

Anita Coney (648748) | more than 6 years ago | (#23755253)

"You are not an attorney, and you do not concentrate on copyright law. I am calling absolute shenanigans, since you are flat out lying."

I am, I did, I never said I do, I don't care what you call it, and I'm not.

"you just happaned to distribute some tiny portion... this could be seen as copyright infringement."

I think the problem you have is that you don't understand how systems such as bittorrent work. When you share data on bittorrent, you're not sharing sequential data. Thus, unless a lot of data was shared, it would be impossible to prove that the nearly random data you've shared was a part of an actual song.

When you download from bittorrent, you're immediately sharing. However, since you're downloading from many computers you're downloading faster than you're uploading. Combined with the fact that you cannot share what you do not have, when the download is complete, you're necessarily going to have shared less than what you've downloaded. And because you're sharing with numerous people, that random non-sequential data is going to become even less recognizable as a song because it was spread out to different computers.

Let's take a real world example, Let's say you download one 4MB MP3 from bittorrent. You download it from 100s people and some of those people start sharing from you. Let's say during that download you uploaded one forth of it, thus you've uploaded one non-sequential megabyte. However, because you shared it across 100 or more people, that one non-sequential megabyte has to be divided into at least 100 non-sequential parts. That means that each person you shared with got about 10KBs of data each. Do you really think that someone could determine a song based on 10KBs of non-sequential data? Really? The answer is "no," you cannot. And that's why the RIAA is making this ludicrous "making available" argument.

Re:Be afraid, be very afraid (1)

Evanisincontrol (830057) | more than 6 years ago | (#23755483)

To be clear, I agree you with you, not the clown. However, I have a question. Consider this hypothetical scenario:

You begin downloading a very unpopular song via bittorrent. We'll say it's 4MB to keep up with your example. This song is so unpopular, in fact, that it has only one seed and no other leeches (downloaders). When you get to, let's say, 75% of the download, the only other seed disconnects. Now the torrent only has one person distributing information: you.

Now, say another person begins downloading from that torrent. You are the only person distributing data, and in fact you distribute all 3MB of your data to that new person. It may or may not be sequential data, but 3MB out of 4 is certainly enough to identify the information that data represents.

This brings up a couple questions. Did you steal that song, even though you only have 3/4 of it? Did you also give a copy of it to someone else, even though you only gave them 3/4 of something?

Obviously this hypothetical is not a typical situation, but it is not entirely uncommon and certainly not unfathomable. What do you make of it?

Re:Be afraid, be very afraid (4, Informative)

Anita Coney (648748) | more than 6 years ago | (#23755599)

First, the United State Supreme Court held in DOWLING v. UNITED STATES, 473 U.S. 207 (1985) that copyright infringement is not stealing and is not even analogous to stealing. That does not mean infringement is legal, it only means it is not theft.

Second, I think sharing a part of a song without permission of the copyright holder could be infringement, ignoring any fair use arguments or the like. I've not seen any case law to support that, however.

My point is that the "making available" argument is infinitely easier to prove than the actual infringement argument. And furthermore, that under the current P2P systems available, that actual infringement will be nearly impossible to prove.

Re:Be afraid, be very afraid (0, Troll)

mumblestheclown (569987) | more than 6 years ago | (#23755733)

Except for the fact that clearly, you have never heard of file hashes, which blow your whole "provability" argument out of the water. Anita, I encourage you to read the slashdot article from yesterday as to how exactly the RIAA's identification and takedown system works.

But thanks for pointing out that copyright infringement is not actually stealing. It sounds like one of your crowning achievements from "law school" (though most people would have gotten this from high school freshman civics).

Re:Be afraid, be very afraid (-1, Flamebait)

mumblestheclown (569987) | more than 6 years ago | (#23755639)

If you are indeed an attorney, you are a horrible one since you apparently lack any understanding whatsoever of legal principle. Though, I will give you some credit - you do show the "lawyer stereotype's" ability to twist arguments and flail and spin.

Sigh, ok, Mr/s "Lawyer."

Let's see what you're arguing this time. The previous time, you tried to twist it to claim that I was claiming that sharing one bit was unlawful. i called your lie on that, and now I will call your lie on your next little game. Now, you have dropped the pretense of claiming that it is not unlawful (since you have been shown to be oh so wrong on that - and I didn't even have to bring up Bridgeport Music, Inc. v. Dimension Films do do so), your new ploy is to claim that it's not determinable.

In other words, you are trying to argue not that it's not unlawful (which it is), but you're trying to argue that it's the perfect crime - that you can't get caught.

Here, again, you fail. Here you exit the land of "pretend lawyer" and join the fantasy world of "pretend technologist."

Fine, let's talk about bittorrent. Bittorrent works via what's known as file hasshes. In simple terms, you don't ask for "give me 10kb of some random file", since then you'd never end up with KasierChiefs-Ruby.mp3. Rather, you say "give me such and such 10kb of a file with hash XXX" which you just happen to know is KaiserChiefs-Ruby.mp3.

See, Mrs pretend lawyer, the very hashes that make bitTorrent work are the ones that make it traceable. It's very much like DNA in some sense - to make a crude but apt analogy - no jury in the world will believe "yes, your honor, but she didn't have so much of my (DNA) on her."

Now, there are games that bittorrent users can play to "anonymize" themselves - but these are basically IP games like using anonymizing networks which basically shift or distribute IP identities. These make things a bit harder to trace, but this technology is totally different from what you are talking about. what you have described betrays your COMPLETE AND TOTAL CLUELESNESS about how bittorrent works, to say nothing of IP law.

If you have indeed studied law, you really should be embarrassed.

Re:Be afraid, be very afraid (1)

digitrev (989335) | more than 6 years ago | (#23754659)

And then once you're suitably pissed off, go check out this amazing argument [baens-universe.com] in favour of reasonable copyright terms (specifically, 42 years or until death).

Showing their true colors (1)

Duncan Blackthorne (1095849) | more than 6 years ago | (#23754383)

The RIAA are just a bunch of opportunistic scavengers, and like that ilk, they're complete and utter cowards.
I'd call them vultures, but that would give vultures all over the world a bad rap.

It will be of interest (1)

DingerX (847589) | more than 6 years ago | (#23754399)

So, what will Ms. Cassin do? Who's representing her anyway? Maybe that attorney could find out and get back to us?

RIAA Must Pay (2, Insightful)

Nom du Keyboard (633989) | more than 6 years ago | (#23754415)

The RIAA should be required to pay every cent of the Defense's costs, as well as for pain, suffering, and time lost defending this truly meritless case! For them to say that each party must bear their own costs is beyond the Height of Arrogance, and a poke in the eye of Justice itself!

Isn't copyright infringement when a COPY is made? (1)

MitchInOmaha (1053116) | more than 6 years ago | (#23754541)

I'm certainly not the most up to date on all the RIAA's done, etc. however ... It seems to me that it's the DUPLICATION that is an infringement of copyright and not simply making something available. Putting my MP3s in my shared music folder so I can listen to them at work is not necessarily a copyright infringement. When my neighbor copies them, however, so he can listen to them for his enjoyment and not pay for the license to do that, well then, THAT is the infringement. Just like photocopier days ... if I forgot my musical score on the photocopier after legally making copies for my music students, and someone else makes a copy, THEY are the ones that have infringed, not me. I suppose it could be argued that I was negligent in protecting their IP, but that wasn't really part of the agreement when I purchased the score for classroom use (and presumably paid for that level of use). I'm sure it's all been hashed about before, but what am I missing?

Re:Isn't copyright infringement when a COPY is mad (4, Informative)

mumblestheclown (569987) | more than 6 years ago | (#23754633)

Code 17, Section 1101 (a) (2) would tend to disagree with you. You do realize that actual law exists, right? It doesn't work that way that just whatever you want to be true is the law?

http://www.copyright.gov/title17/92chap11.html#1101 [copyright.gov]

Of course, reasonable interpretation is necessary. If you put KaiserChiefs-Ruby.mp3 in your public folder of a limewire machine, is it reasonable to assume that you have put it there for your own use? Of course not. If you put it in a non-advertised publicly accessible folder that is password protected? then yes. Reasonableness matters. this is why, if you are caught in the bank with a gun in your hand, the "aliens just teleported me here and implanted false memories in the witnesses' brains to make them think that i robbed this bank" defense won't work, even if the existence of such a possibility means that your guilt is not "certain" in some mathematical sense.

Additionally, i find it very ironic that you are arguing that it's not the making available, but the downloading that's illegal, when we just had a whole different thread of idiots yesterday arguing exactly the opposite to justify their piracy.

Re:Isn't copyright infringement when a COPY is mad (1)

Tanktalus (794810) | more than 6 years ago | (#23754955)

Arguing both sides are fine is no different than identical twins pointing the finger at each other to get out of a murder rap where the sole evidence is DNA. It's up to the plaintiff to prove the infringement/prosecution to prove the crime, not the defendant to prove innocence. Since we are talking about two defendants/cases, one defendant/case can argue that downloading is fine (whereas I thought the problem was lack of proof) while the other can argue that sharing is fine. There is no problem here because we're dealing with independent cases.

Re:Isn't copyright infringement when a COPY is mad (2, Insightful)

jedidiah (1196) | more than 6 years ago | (#23755283)

The only problem with all of this snark is the fact that
software is often installed without the knowledge or full
understanding of the end user. The computer is capable of
doing all manner of things on it's own. It is often not
at all clear that the owner of the machine is in control
of it.

Many if not most end users are barely able to use these
machines and have no hope of fully understanding what
the computer is doing or the full implications thereof.

Re:Isn't copyright infringement when a COPY is mad (1)

tony1343 (910042) | more than 6 years ago | (#23754781)

Copyright law is a pain in the ass.

Distributing copyrighted material is a violation.
Also, maybe there is could be contributory/vicarious infringement.

GPLv3 and making available: FSF's view (4, Informative)

john1040 (1191701) | more than 6 years ago | (#23755001)

GPLv3 FAQ: http://www.gnu.org/licenses/gpl-faq.html#v3MakingAvailable [gnu.org]

GPLv3 gives "making available to the public" as an example of propagation. What does this mean? Is making available a form of conveying?

One example of "making available to the public" is putting the software on a public web or FTP server. After you do this, some time may pass before anybody actually obtains the software from youâ"but because it could happen right away, you need to fulfill the GPL's obligations right away as well. Hence, we defined conveying to include this activity.

Re:GPLv3 and making available: FSF's view (0, Troll)

uucp2 (731567) | more than 6 years ago | (#23755619)

I did not know that Warner's music was GPL'd. Thanks for the info.

hmm (0, Flamebait)

thatskinnyguy (1129515) | more than 6 years ago | (#23755015)

And thanks to all of the documents of the case being in public now, the government has "made available" to us the counter arguments that were good enough to get this case dismissed. Awesome.

Defendant could keep them in (1)

Unixnoteunuchs (990069) | more than 6 years ago | (#23755065)

If the defendant had already filed an answer, they could refuse to consent to the dismissal and force the RIAA to trial regardless of the RIAA's motion to dismiss. FRCP 41a

Seems Fishy... (4, Informative)

Dripdry (1062282) | more than 6 years ago | (#23755067)

What if they know that H.R. 4279 (PRO-IP), that article a couple clicks down on the main /. page, is going to fix all this for them? Sort of a "Hey look at this hand!" while they pound civil rights into the ground with the other?

Other mens (1, Informative)

Anonymous Coward | more than 6 years ago | (#23755223)

Between the now Pro IP Act and the Anti-Counterfit Agreement, they wont need to care about lawsuits anymore.
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